asked the Lord Advocate, Whether it is true that in the action for malicious prosecution, brought by Mr. James Christie, of Glasgow, against Mr. Gelson, of Belfast, in the Irish Court of Queen's Bench, and which resulted in a verdict in Mr. Christie's favour, access to the criminal information on which the original prosecution had been founded was refused to Mr. Christie by the Crown Office in Edinburgh, on the plea that such refusal was for the ends of public justice, while a certified copy of it and other documents was given to Mr. Gelson; and, if so, on what grounds such distinction was made; and, whether the Procurator Fiscal, who conducted the original prosecution, and who disregarded a subpoena from the Irish Court of Queen's Bench to attend and produce documents in the action of "Christie v. Gelson," did so on his own responsibility or with the sanction of the Crown Office in Edinburgh
§ THE LORD ADVOCATE
Sir, in order to give a satisfactory Answer to the Question of the hon. Gentleman, it will be necessary for me, with the indulgence of the House, to make a somewhat fuller reference to the case out of which the Question has arisen than is made in the Question itself. In October last Messrs. Gelson, tobacco manufacturers, Belfast, lodged information with the Procurator Fiscal, Glasgow, charging their agent, Mr. James Christie, of 130 Hope Street, Glasgow, with breach of trust and embezzlement. The Procurator Fiscal immediately investigated the charge, and in the course of doing so, communicated with the police of Liverpool, whither Christie had gone. The result was that Christie was apprehended, and committed for trial. The precognitions having been considered by Crown counsel, Christie was indicted for the Christmas circuit at Glasgow; but the jury, by a majority, found him not guilty. He then raised before the Court of Queen's Bench, Ireland, an action for malicious prosecution, false arrestment, and slander. Christie's agent applied in April last to the Crown agent in Scotland for a copy of the information which had been lodged with the Procurator Fiscal, and asked that the principal 376 documents should be made forthcoming, if necessary, at the trial before the Irish Court. The Crown agent, under the instructions of the Crown counsel, declined to comply with the application, the ground of the declinature being that it would entirely destroy the value of the office of public prosecutor if, whenever an accused person was acquitted, he could call upon the Crown authorities in criminal prosecutions to produce the confidential documents in their possession, in order to found an action of damages against the accuser. The right of the public prosecutor to withhold such documents has been uniformly recognized by the Courts in Scotland; but it is proper I should state that in exercising it those representing the Crown would feel bound to consider whether the charge made against an accused person had been made recklessly or maliciously; and if satisfied that it had been so made, they would not hesitate to waive the right. In the present case, which was very carefully considered, there was no reason for holding that the charge had been made maliciously. I regret to say that since the Question of the hon. Gentleman was put on the Paper, the Crown authorities have learned for the first time that when the action of damages was threatened, the Procurator Fiscal of Glasgow, without consultation or authority, gave to the agents of Messrs. Gelson a copy of the information and of the warrants proceeding upon it. I can only explain the action of the very careful and experienced gentleman who committed the mistake, by supposing that he did not think he was acting against the Crown Office regulation, by giving Messrs. Gelson a copy of the information which they had themselves lodged with him. It was a mistake, however, and if the Crown authorities had known that copies of any documents had been given to the one party, they would at once have afforded similar information to the other. In regard to the non-attendance of the Procurator Fiscal on the subpoena from the Irish Court, I have to state that that gentleman has explained to the Crown agent that from the state of his health he was unable to go to Dublin. He was informed by the Crown agent that he must act in regard to this matter upon his own responsibility. He accordingly forwarded a medical certificate as to the 377 state of his health to Mr. Kavanagh, the attorney for Christie in Dublin, who acknowledged the receipt of it before the trial took place. Mr. Kavanagh then intimated his intention of serving me with a subpoena, but he did not carry out his intention, and I observe he obtained a verdict without my assistance or the aid of the documents for which he had called. I should only further add that the subpoena required the Procurator Fiscal to attend before the Chief Justice of the Queen's Bench in Dublin on the 14th day of June, but it was not served upon him until the 17th of that month. Possibly this may arise from peculiarities of Irish procedure, with which I am unacquainted.