CO885-(16-18) — Page 30

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

With particular reference to this Section, I am further to submit that, so far from enabling Colonial Courts to request evidence to be taken in England for use in any criminal proceedings in a Colony, it enables only United Kingdoin courts to get evidence taken in India or a Colony or elsewhere in His Majesty's dominions--and that only in the limited classes of criminal proceedings pending in the United Kingdom under the enactments mentioned in paragraph (2) of Sir John Macdonell's letter of the 7th May, 1917, viz. :-

(a) Offences committed in India and tried here.

(b) Offences committed abroad by public officers and tried here.

(c) Slave trade offences committed in the Colonies and tried here.

6. It is a significant circumstance that no other Colony, so far as the Colonial Office is aware, has attempted to make use of the Evidence by Commnission Act, 1885, as Malta has done, in order to obtain the taking of evidence in this country for use in criminal proceedings in a Colonial Court, and the inference is that it is recognised generally in the Colonies that it is of the very essence of British criminal justice that the witnesses on either side shall be examined and cross-examined in open Court and their demeanour observed by the Jury and Judge, and that consequently it has not been sought by any other Colony to construe the Act so as to give its Courts the power claimed by the Court of Judicial Police in Malta. The fact that the whole judicial system and traditions

of Malta are derived from other than English origins may perhaps help to explain the views of that Colony on this subject.

7. With regard to the Court of Judicial Police in particular, I am to enclose a copy of the Criminal Laws of Malta from which (Section 367 sqq.) it would appear that the Court is not a Superior Court, and it is questionable whether it is a Court of Competent Jurisdiction" under the Act of 1859, whilst if Section 3 of the Act of 1885 enables any Colonial courts at all to address a mandamus or order for the examination of witnesses to an English court it is submitted that this could not be done by an inferior court in a Colony, and it may be that Section 4 of this Act by applying the Act of 1859 impliedly raises the same question whether the Malta Court of Judicial Police is a Court of Competent Jurisdiction"

so as to possess the power (if it is possessed at all by any Colonial Court) conferred by Section 3 of the Act of 1885.

8. Having regard to the fact that a case is actually pending in Malta, as mentioned in paragraph 4 of this letter, and that action with regard to the Letter of Request forwarded in that case must necessarily await the receipt of your Report, I am to request you to regard this matter as an urgent one, and to favour Mr. Long with your Report at your earliest convenience on the following questions :-

any

(1) Does Section 3 of the Evidence by Commission Act, 1885, enable Court in a Colony to address a mandamus or order to an English Court for the taking of depositions of any witness or person in this country so that such depositions may be admissible in evidence in a criminal proceeding in the Colony ? (2) If so, is the Malta Court of Judicial Police acting either as a "Court of Criminal Judicature"

or as a "Court of Instruction," a Court possessing this power?

(3) If the answer to question (1) is in the negative, do Sections 3 and 4 of the Act of 1885 read together enable" any Court or Tribunal of Competent Juris- diction" in a Colony to address

(i) a mandamus or order under that Act or

(ii) a "Commission Order or other process "under the Evidence by Commission

Act, 1859,

to an English Court for the taking of depositions as mentioned in question (1)?

(4) If the answer to either part of question (3) is in the affirmative, is the Malta Court of Judicial Police, acting either as a "Court of Criminal Judicature or as a "Court of Instruction," a "Court of Competent Jurisdiction" within the meaning of the Act of 1859 ?

(5) Apart from the provisions of the Acts of 1859 and 1885, can a Letter of Request from a Court in a Colony for the taking of depositions as mentioned in question (1) be given effect to in England under the Rules of the Supreme Court Order XXXVII, rules 54-59 ?

(6) If so, is the Malta Court of Judicial Police, acting either as a "Court of Criminal Judicature 11

or as a "Court of Instruction," a Colonial Court which can

issue such a Letter of Request ?

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(7) Generally, what is the true and proper construction of Sections 3 and of the Evidence by Commission Act, 1885 ?

(8) Whether in view of the final paragraph of Sir John Macdonell's letter of 7th May, 1917, you are of opinion that amending or explanatory legislation should be introduced, and if so upon what lines it should proceed?

I

am, &c.,

REPORT.

C. STRACHEY

(for Under Secretary of State)

1. The questions put to us (or some of them) are not free from doubt, but on the whole we think they should be answered as follows:-

1. No.

2. This does not arise.

If

3. This question would appear to be mis-conceived, Section 4 extends the 1859 Act to cover depositions taken under Section 3 of the 1885 Act. Section 3 does not confer the power, Section 4 certainly does not.

4. This does not arise.

5. No

6. This does not arise.

7. This is question 1, in a general form.

We have only to add that either the Act makes a general provision of a very sweeping character or else that it merely provides machinery to ensure that existing powers may be better exercised. The former view can a priori be defended by considerable argument; but it is certainly strange that although the Act has been in force for 33 years there is no trace in the records of such a construction having been suggested in other cases. As already indicated we are

on the whole of opinion that the object of the Act was to provide machinery.

8. The position is unsatisfactory. The main Acts were passed before the Judicature Act and the resultant situation ought to be reviewed.

The rule in criminal matters is that witnesses must appear in person, and it

is particularly undesirable that the rule should be relaxed in favour of a Police Court.

Any power of relaxation should be restricted and only allowed when absolutely necessary to prevent miscarriage of justice.

We are unable without discussion in consultation to make a recommendation as to legislation.

Law Officers' Department,

1st October, 1918.

FREDERICK SMITH. GORDON HEWART

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