CHAPTER VIII.

TRIAL AT BAR.

Right of the Crown to demand a Trial at Bar.

THE Attorney-General, suggesting that the Crown is interested in the result of a cause, may demand a trial at bar as a matter of right, the Court not having power to grant a writ of nisi prius where the King is a party, or where the matter touches the right of the King, without a special warrant from the King or the assent of the AttorneyGeneral. (Fitzh. N. B. 241 a ; 2 Inst. 424; Rowe v. Brenton (1828), 8 B. & C. 737; 3 Man. & R. 133; 5 L. J. (O. S.) K. B. 137; Paddock v. Forrester (1840), 1 Man. & G. 583; 9 L. J. C. P. 342.) He may also demand a trial at bar as of right when the interests of the King as Duke of Lancaster are concerned. (Brown v. Lord Granville (1835), 1 Har. & W. 270.)

The Crown has exercised its right in cases of many kinds, both civil and criminal; on a criminal information prosecuted by the Attorney-General (R. v. Johnson (1726), 1 Stra. 644; R. v. Hales (1728), 2 Stra. 816; 1 Barn. K. B. 88); in trials on indictment (R. v. Castro (1874), L. R. 9 Q. B. 350; 43 L. J. Q. B. 105, and cases there cited; R. v. Jameson, [1896] 2 Q. B. 425; 65 L. J. M. C. 218); in an action against a colonial governor (Lord Bellamont's Case (1700), 2 Salk. 625); on an information of intrusion (A.-G. v. Walsh (1832), Hay. & Jon. 65); on an information for penalties (A.-G. v. Bradlaugh (1885), 14 Q. B. D. 667; 54 L. J. Q. B. 205); on a petition of right (Baron de Bode's Case (1845), 8 Q. B. 208, 242 ; West Rand Central Gold Mining Co. v. R., [1905] 2 K. B. 391; 74 L. J. K. B. 753; see also above, p. 392); in an action against the Secretary of the Board of Trade under the Merchant Shipping Acts (Dixon v. Farrer (1886), 18 Q. B. D. 43; 56 L. J. Q. B. 53). R. v. Lynch, [1903] 1 K. B. 444; 72 L. J. K. B. 167, was a trial at the bar of the King's Bench Division under 35 Hen. VIII. c. 2, s. 1, for high treason committed abroad.

The nature of the Crown's interest which entitles it to a trial at bar was discussed in Dixon v. Farrer, ubi sup. Lord Esher, M.R., said: "It is obvious that if the property of the Crown, either in the personal capacity of the Sovereign or in the Sovereign's capacity as head of the State, is to be touched by the decision in the case, the

Crown is interested; but can the Crown be interested, although neither the personal property of the Sovereign nor the property of the Sovereign as head of the State is affected? On the one side it is urged that the Crown cannot be interested unless one of those two things is made out, and on the other side it is said that the Crown is interested if an executive officer of the Government acting for the executive, and therefore for the Sovereign, is charged with maladministration in his official capacity, that is, as servant of the Crown." He then concluded that this latter contention was right, and that in such a case the Crown had sufficient interest.

The Court relies on the Attorney-General's discretion in exercising his right. (4.-G. v. Walsh (1832), Hay. & Jon. 65; Butler v. Lord Mountgarrett (1855), 7 Ir. Jur. (O. S.) 149.) The right of the Attorney-General is not affected by the Judicature Acts. (Dixon v. Farrer (1886), 18 Q. B. D. 43; 56 L. J. Q. B. 53.)

Where the Attorney-General refuses to interfere, the Court may still make an order for a trial at bar on the application of one of the parties, if it thinks fit. (Anderson v. Gorrie (1894), 10 T. L. R. 383.) In Sir Samuel Astrey's Case (1704), 2 Salk. 651; 6 Mod. 123, the Court said that a trial at bar was never denied to any officer of the Court, nor hardly to any gentleman at the bar," and granted one on the application of an officer of the Court, who was defendant to a scire facias, in spite of the disapproval of the Attorney-General.

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Method of Application on behalf of the Crown.

The whole matter was examined in Dixon v. Farrer (1886), 18 Q. B. D. 43; 56 L. J. Q. B. 53. Lord Esher, M.R., said: "It was suggested at one time that if the Attorney-General stated that the Crown was interested, the Court was bound to make the rule absolute in the first instance, and that such order could not afterwards be questioned. It was afterwards, however, suggested that, though the statement of the Attorney-General is accepted in the first instance, a party to the action could come before the Court, and, the burden of proof being upon him, if he could show that the Attorney-General had been misinformed, and had misinformed the Court, as to the Court being interested, the Court would set aside the rule absolute which it had made; and I think that is the true state of the case. Looking at the report of Rowe v. Brenton (1828), 8 B. & C. 737; 3 Man. & R. 1:3; 5 L. J. (O. S.) K. B. 137, in Concanen's report of that case, the first decision, as I understand it, was that upon the mere statement of the Attorney-General, coming ex officio before the Court, that the Crown was interested, although the cause was appa

rently between private individuals, the Court made the rule absolute for a trial at bar. Then Mr. Brougham endeavoured to set aside that rule on the ground that the Crown was not interested, and he certainly was admitted to be heard on that question. It turned out that upon his own affidavits it appeared that the Crown was interested, though not directly, and thereupon the rule absolute was maintained. That case of itself would not show that the Court can set aside the rule absolute, because, as the affidavits showed that there was an interest in the Crown, it was not necessary to determine the point; but in Paddock v. Forrester (1840), 1 Man. & G. 583; 9 L. J. C. P. 342, we have the authority of Tindal, C.J., that the AttorneyGeneral had a right to demand on the part of the Crown a trial at bar, but he added that it was "for the plaintiff to show the Court that it is misinformed upon the case, if that is the fact." I think that is an authority for the proposition that the Attorney-General is entitled to a rule in the first instance upon his statement that the Crown is interested, but that it is open to the party who objects to that order to show that, in point of fact, the Court is misinformed on this point, and unless he can show this the rule would stand." See also Lindley, LJ., and Lopes, L.J. This view is embodied in the Crown Office Rules, 1906, Rule 151, below.

It is clear from the above decisions and from Adams v. Fremantle (1848), 2 Ex. 453, 454, per Parke, B., that the Attorney-General makes his application ex parte without affidavit, merely suggesting ore tenus that the Crown is interested. (See further R. v. Hayes (1801), Rowe, 565, 566; and below, p. 595.)

The application is made to a Divisional Court, but it does not appear to be essential that the Attorney-General should make the application in person. In West Rand Central Gold Mining Co. v. R., [1905] 2 K. B. 391; 74 L. J. K. B. 753, the application was made by the author; but in that case the Crown was actually a party, so there was no doubt of its interest. Where the Crown's interest did not appear upon the face of the proceedings, probably the Court would be right in not receiving a suggestion, without affidavit, that the Crown was interested except from the Attorney-General or Solicitor-General.

Practice.

This is governed in part by the Crown Office Rules, 1906, Rules 150-155, which are as follows:

150. A trial at bar shall not be had except by order of the Court. 151. An application for a trial at bar shall be by motion for an order nisi, except when made by the Attorney-General on behalf of

the Crown, when the order shall be absolute in [the] first instance as of course.

152. On making the order absolute for a trial at bar, the Court may impose such terms on the applicant as to payment of costs, or otherwise, as the Court may think fit.

[NOTE.-This will not apply where the applicant is the AttorneyGeneral.]

153. The Court may direct the jury to be summoned from the county in which the offence was committed, or from any other county not exempt by law at any time after joinder of issue. The order for the jury shall be lodged with the sheriff of such county in sufficient time for the jury to be summoned six days before the trial.

[NOTE.-18 Eliz. c. 5, s. 2, provides that no jury shall be compelled to appear at Westminster for the trial of any issue in an informer's suit on a penal law for any offence committed more than thirty miles from Westminster, except where the Attorney-General, for some reasonable cause in that behalf to be showed, requires the same to be tried at bar at Westminster, which request is to be noted on the back side of the writ of distringas thereupon awarded, to the end the sheriff or his bailiff may signify the same to the jury that are in such case impanelled. See also Short and Mellor, Crown Office Practice, pp. 309, 310.]

154. Three copies of the roll upon which the trial is to take place shall be delivered by the applicant for the trial at bar at the Crown Office for the use of the judges four days before the day fixed for the trial.

155. A trial at bar may be continued, de die in diem, or adjourned to a subsequent day at any time, in the discretion of the Court, without any reference to the sittings of the High Court, and no formal order shall be drawn up for any such continued sitting or adjournment, nor shall any such order be entered on the roll.

[NOTE.-See also the Supreme Court of Judicature Act, 1873, s. 26; and for the old law R. v. Castro (1874), L. R. 9 Q. B. 350; 43 L. J. Q. B. 105.]

The trial is in charge of the Crown Office Department, except on the Revenue side of the King's Bench Division (see above, p. 232), and is usually before three judges and a special jury. There was no jury in West Rand Gold Mining Co. v. R., [1905] 1 K. B. 383; 74 L. J. K. B. 753.

Judgments on points of law are given in the ordinary way by the judges seriatim. The senior judge sums up the evidence to the jury, but it is said that each judge has the right to do so separately, as in the Case of the Seven Bishops (1688), 12 St. Tr. 183, 478; see Rowe

v. Brenton (1828), 3 Man. & R. 133, 364. The senior puisne judge passes sentence, as in R. v. Lynch, [1903] 1 K. B. 444; 72 L. J. K. B. 167; but in R. v. Jameson, [1896] 2 Q. B. 425; 65 L. J. M. C. 218, sentence was pronounced by the Lord Chief Justice.

With regard to appeals, it was held in A.-G. v. Bradlaugh (1885), 14 Q. B. D. 667; 54 L. J. Q. B. 205, that an appeal lies to the Court of Appeal from any order or judgment made or given by the King's Bench Division either during, or afterwards with respect to, a trial at bar in a civil proceeding, and whether or not the appeal is brought from a decision upon a motion for a new trial on the ground of misdirection or wrongful reception of evidence; but the appeal must be brought on by notice of motion, an ex parte application for a rule nisi to the Court of Appeal being irregular.