"EVELYN v. HURLBERT." (Hansard, 20 June 1892)

§ * LORD COLERIDGE
My Lords, before drawing attention to the Rule which is the subject matter of this discussion it may be convenient that I should state shortly to your Lordships what was the state of the case before that Rule or Order was passed. When the Courts sat at Westminster before the building in which they sat was destroyed there was no room at all appropriated for keeping documents. Sometimes, as in a very well-known case that was tried twice and lasted along while, these documents were exceedingly voluminous, and the Associate had no place except his own spare room for putting these documents aside; he did the best he could, but he had no strong room, and there were no means of keeping documents safely which, for a time at all events, it was very often important should be so kept. When the Courts moved to the Strand we were more fortunate. The Government of the day gave us a strong room where documents could be properly kept and are properly kept, but it is obvious that a strong room for the keeping of documents is of comparatively little value unless the Court that impounds them has during the time that they are so impounded complete control over them. To put documents into a strong room to which anybody has access is 1505 of course idle, and it is desirable, therefore, that there should be somewhere a proper control exercised over the documents that are impounded. Now, there being no Rule, this matter was left really in the hands of the Associate, the present Associate being Mr. Erle, and personally they cannot be in better hands, but he had no real authority about the matter, and when he was asked, for any purpose, to give over a document to this person or that, he had no authority himself either to give or to withhold. He did for the best; he sometimes consulted me as being the head of the Queen's Bench, but I was consulted only as a friend and unofficially; I had no power whatever to give orders in the matter. He was left very much at sea as to what was the state of the document or documents which the Court had ordered to be impounded. That was so in the month of April last year, in which month, from the 13th to the 20th, a case which is known to many of us through the papers called "Evelyn v. Hurlbert" was tried before Mr. Justice Cave. The case lasted a very long time; there were a number of documents relating to it which were produced. I did not try the case myself, but I have had an opportunity of looking at Mr. Justice Cave's notes, and I have got from the officers of the Court a very clear account of what passed. The action was for breach of promise of marriage, and the letters which were the subject-matter of the discussion were only incidentally produced; the action was not about them, but they were produced for the purpose of showing that the defendant had promised the plaintiff to marry her. The greater part of the correspondence was put in in packets; it was referred to on both sides when necessary, the plaintiff producing and putting in most of the letters. A few only of the letters were shown both to the plaintiff and defendant; the plaintiff swearing that a person called Wilfrid Murray and the defendant were one and the same person, the defendant denying this and denying all knowledge of the letters. The plaintiff was examined and cross-examined as to certain diaries besides these letters. The defendant pro- 1506 duced and put in two letters signed by Wilfrid Murray and addressed to himself; he also produced a photograph with writing on the back from Mr. Murray to Mr. Hurlbert. He also produced a number of letters signed "Hurlbert," which were obtained from persons to whom they had been sent, mostly bankers, as genuine specimens of his handwriting. There is no note of any formal question having been put to the jury either in Mr. Justice Cave's note-book or in any other report which is accessible to me. The jury found there was no promise of marriage. In the report of the summing up the following passage, however, occurs:— If the defendant did not write these letters there was an end of the plaintiffs case; but if he did there was still the question whether there had been a promise of marriage, for unless there was a promise the plaintiff had no cause of action, and judgment accordingly was given for the defendant. Upon the application of the Attorney General the Judge ordered all the documents to be impounded on the 20th April. In that case the Attorney General was leading counsel for the defendant, but do not let me be supposed for an instant to suggest that in his so being, and afterwards being obliged to act officially in the matter, I, for one, make the smallest complaint. Years ago, when I was in the House of Commons, I resisted to the best of my ability the Motion made by Mr. Fawcett to restrain the Law Officers of the Crown from private practice; I thought then and think now that so to restrain the Law Officers would be a very mischievous thing. Therefore I never have made and never should think of making the smallest complaint that the Attorney General takes part in any case in which he is retained as a private barrister. But it must of course now and then a little complicate the matter when he acts as a private person as a Queen's Counsel on one side or the other of a great case, and then afterwards as Law Officer of the Crown and as representing practically the Government of the day takes some step either for or against the person for whom he has appeared as a private practitioner in Court; it is a con- 1507 sequence, however, that I, for one, am quite prepared to say must be faced. Mr. Justice Cave was asked to allow the counsel for the plaintiff to have access to these documents that had been directed to be impounded. This was mentioned to myself, and I agreed with Mr. Justice Cave, and upon the action of both of us the documents were not allowed to be given. Now, my Lords, I ought to say that of Mr. Hurlbert personally I know nothing whatever; I never saw him; I never met him; I never read a word of his writing; I am absolutely ignorant of him. Whether he is entitled to the description which an illustrious American gave of him—namely, that he is a man of fathomless and measureless turpitude, or whether he is a person entitled to the eulogies that have been passed upon him, and to the respect, admiration, and intimacy which has been given to him by persons of very high rank and position in this country I neither know nor care. He is an absolute stranger to me. But it was obvious to me, and I think it must be obvious to your Lordships, that if he was the person the plaintiff represented him to be, and if he was capable of the production of those letters, three only of which I have looked at, and until I saw those letters the capacity of the human mind for filth was unknown to me, if I say he was the person capable of writing those letters—I say "if," for I do not know or suggest whether he was or not—it is obvious that such a person would spare no means and would spend any money he had got to make himself the possessor of this body of letters, I forget the exact number, I think something over two hundred. I have only seen three of them, but I suppose they were all much of the same character. Under those circumstances it seemed to me that it was right, the officer having no authority of his own and there being no Rule to give him any authority, that there should be some distinct authority to apply to documents which were impounded by Order of the Court and which should authorise the person who had those documents to act under the Orders of the Court as might be advisable; and under those circum- 1508 stances it was that the Rule which I will read to your Lordships and which has occasioned so much discussion was passed. The action, as I have told your Lordships, was in April; the judgment was on the 20th April, and this Rule was passed in May— Impounded documents which are in the custody of the Court are not to be parted with and are not to be inspected except on a written Order signed by the Judge on whose Order they were impounded, and by the President of the Division in which they are impounded, or in case of documents impounded by an Order of the Court of Appeal by an Order of that Court. Such documents shall not be delivered out of the custody of the Court except upon an Order made on a motion in open Court. I pause there only for a moment, because in the correspondence I shall have to refer to presently there is an entire misconception of the meaning of this last phrase— Such documents shall not be delivered out of the custody of the Court except upon an Order made on a motion in open Court. My Lords, the Judges were not so unreasonable or so foolish as to make a Rule which prescribed that nothing should be done, that no Order should be made upon them except upon a motion in open Court which might be the most mischievous possible Rule, and would be felt by any person accustomed to public affairs to be capable of being, misapplied. The meaning of that clause, as anyone who considers the subject will see in a moment, is that the documents are to be in the possession of the Court and are to be kept by the Court as long as is material for the purposes of justice; and then they are not to be kept in the Court which so far as its own function is concerned has done with them, but they are, as soon as they have become useless for purposes of justice, to be, parted with, given out of the custody of the Court, and returned to any person who has a right to their possession. But that is a motion which, inasmuch as some of these documents are very important documents, we thought at all events should be made by counsel in Court, not that every Order dealing with them should be made in open Court, but that the documents having, come into the custody of the Court should only leave the Court for good under such Order as, is mentioned in 1509 the Rule. That, my Lords, was in May, and in June there followed this correspondence which has been laid upon the Table of the House, and with which I do not mean to trouble your Lordships at any length; it was laid upon the Table of both Houses I believe, but it was ordered by the House of Commons to be printed on the 13th May of the present year. The first document is a letter from Sir Augustus Stephenson to Mr. Erle, saying that he was informed that it was necessary to make a formal application to see these documents, and he proposed to ask him to be good enough to give him an appointment to attend with the expert for the purpose of making the necessary inspection and comparison. To that Mr. Erle replied, after communicating with us, that we wanted to know for what purpose he desired the documents: that if he wanted them for any public purpose no objection of course could be taken for a moment to their production, but we thought it right to say—I do not wish to deny my full responsibility in the matter—that my learned brother who tried the case was of opinion—and I entirely agreed with I him—that any prosecution of the plaintiff upon these letters was a thing that we were not disposed to encourage. Whoever was inclined to prosecute the plaintiff was at liberty to prosecute her, but so far as any facilities which we could give for such prosecution were concerned we were not disposed to give them. Then Sir Augustus Stephenson writes a long letter saying that he desired to confer with counsel with respect to the particular documents, and he goes on to say— The Attorney General has directed me to act under the directions of the Solicitor General, to whom I have, therefore, forwarded a copy of our correspondence, and pending his directions I have only to ask that you will consider my application with reference to the impounded documents as withdrawn. I cannot help thinking—I do not want to blame anybody—that there was too much form about this. If instead of this a letter had been written to myself or to Mr. Justice Cave saying: "There is no mystery about this; we want for the purpose of a prosecution of the defendant to have the documents compared with undoubted genuine documents by 1510 an expert, and we are going to institute a prosecution," no man in his senses would have interposed the slightest obstacle in the way of such a proceeding. Well, my Lords, nothing takes place from that time until the 7th July when a letter from the Solicitor General is sent giving the information that it is their intention to prosecute Mr. Hurlbert and asking that they may see the documents. Then Mr. Erle says that there is a Rule, and that they can have inspection if they like; but he (the Associate) being bound by the Rule, and no application having been made except to the Associate up to this point, Sir Augustus Stephenson is informed that he may come and inspect them, and compare them, and do anything he likes with them, but he must not take copies. Then he asks for the name of the attorney for the plaintiff, which is given. Then on the 13th August Mr. Erle says— By all means let us know who your expert is, and every arrangement shall be made for his convenience. Then on 22nd August Mr. Inglis is nominated by Sir Edward Clarke, and then on 24th August Mr. Inglis goes, as is stated by Mr. Hullah, one of the clerks of the Associate's Department, as follows:— I beg leave to acknowledge the receipt of your letter of 22nd August, 1891. Mr. Inglis is now here, and has commenced his examination of the letters. From that time to the 27th November, more than three months, nothing takes place. Why I do not know. I have never heard—it is no business of mine to inquire why there was this very long delay of three months on the part of Sir Augustus Stephenson—but it is obvious that every information having been given on 24th August, and indeed Mr. Inglis having inspected the documents and formed his opinion and reported, I presume, to those who represent the Government about this case, nothing was done by the Director of Public Prosecutions from 24th August to 27th November. On 27th November there is a long letter written recounting what had taken place, and then saying that they are going to apply to the American Government for an extradition— 1511 I have therefore now respectfully to apply for permission to inspect the impounded documents, and to take copies of such as I may consider material. If their Lordships require that this application should be made in Court' (which, my Lords, we never did require or dreamed of requiring), "I can of course instruct counsel on my behalf, but at present, in my judgment, it would not be expedient in the interests of public justice to take that course. Immediately upon that, on 4th December there is an answer from Mr. Erle saying that he is authorised to say that Sir Augustus Stephenson is quite at liberty to have any inspection made and a list taken of the documents impounded in each case. Then on 8th December there is a letter from Sir Augustus Stephenson saying that meanwhile Mr. Hurlbert, who had been expected to be arrested in New York, had suddenly disappeared, that where he had gone they did not know, and that in consequence no action could betaken at that time; and no action has been taken from that time to the present. That is really the whole of the correspondence. In that last letter there is a statement that I have already by anticipation answered saying— I now understand that their Lordships no longer insist on the application of the Rule of Court 33A in this case, and are willing to grant me permission to inspect and take a list of the impounded documents without making a motion in open Court. I have explained already that that is a misconception; the Rule does not authorise, and certainly the Judges never contemplated that any motion in respect of these documents, as long as they were impounded and remained in the custody of the Court, should be made in open Court at all. The meaning of that Rule was that when the documents were done with, when the Court had no longer any occasion to keep them, when they were a mere incumbrance to the Court, they might properly go back to the persons to whom they belonged, and that that should be upon an application made in open Court, to which there could be no objection, but upon which I could not think it important to insist. So the matter remained till some days ago when in a meeting of the Rule Committee, at the suggestion of the Lord Chancellor, I myself moved a Rule which has been passed unanimously by 1512 the Rule Committee and which provided as follows:— Impounded documents in the custody of the Court shall, upon the requisition in writing of the Law Officers of the Crown, or either of them representing the Crown, be given into the custody of such Law Officer. My Lords, when the Rule was first passed it is true that we had never considered the matter about the Attorney General and Solicitor General at all; we were looking at the matter between party and party, and the interference of the Law Officers of the Crown, especially the Attorney General representing the function of the Public Prosecutor never occurred to us, perhaps it ought to have occurred to us; but it did not, and the words of the Rule therefore did not except them. To the Rule not excepting them I felt at once that great objection might be taken. The Government,, represented by the Attorney General, clearly, in my judgment, if they chose to take the responsibility of prosecution and of the custody of these documents, ought to have them; and not only in relief of the Court, but on the plainest principles, if the Attorney General or Solicitor General, representing the Crown, want documents for the purpose of justice, undoubtedly, on their request, the documents ought to be handed over to them. The result therefore, upon the whole, is that it was important in my judgment, and I think your Lordships will agree with me,, that there should be some Rule to protect the Law Officers; it was important that the words of that Rule should be clearly ascertained which would be binding upon them and upon everybody who comes to the Courts for justice; but the moment it was pointed out that although the Rule might be a right Rule it might nevertheless interfere, with public justice, because it hampered the action of the Attorney and Solicitor General, at once I conceived that it was desirable that that qualification should be made which now is made; and the documents will be handed over to either the Attorney or Solicitor General. If he thinks fit to ask for them and has a use for them that is a matter with which we, the Court, can have nothing to do, because if he should—which is 1513 not likely—in the least abuse the possession of such documents he is responsible to Parliament, as he ought to be, and is not responsible to any other person. My Lords, I thank you for the attention which you have given to me, and I make this Motion, which is really for the purpose of making these remarks, and which I will either press or withdraw as your Lordships think fit.

§ LORD HERSCHELL
My Lords, inasmuch as my noble and learned Friend has stated that a Rule has now been made which provides that the Law Officers of the Crown, under whose advice the Director of Public Prosecutions acts, will in future be in a position to require the delivery to the latter of impounded documents if they consider it necessary for the purpose of considering whether there should be a prosecution and against whom it should proceed, all that my noble and learned friend has said is really now matter of past history. It refers to an incident which cannot occur again, and, being matter of past history, I do not propose to take up jour Lordships' time in discussing it. In future no such difficulty can arise as has arisen in the past; and, although different views may be taken perhaps with regard, for example, to the question how far it is for the Judges to consider against whom prosecutions should be maintained by the Director of Public Prosecutions, I do not propose to enter upon such difference of opinion. All that is removed absolutely for the future by the definite Rule which has been passed, and I do not think any useful object would be served by discussing what certainly occurred.

§ THE LORD CHANCELLOR (Lord HALSBURY)
I only desire to say that when the Rule in its original form was first proposed by my noble and learned Friend the Lord Chief Justice. I can answer that it did not occur to any one of the Rule Committee that there would be any probability of a conflict arising between any of Her Majesty's Judges and the people representing the 1514 Public Prosecutor. The real object was to have a regular Rule that documents should be placed in custody when they are impounded by the Court, and—in the sense that there was no Rule about the matter—that the somewhat unauthorised and irregular custody by the officers of the Court should be protected by a Rule, and that there should be some authority to whom application might properly be made—the whole intention being to keep back from idle and prurient curiosity documents that might have been received in Court, and for which no legitimate reason could be alleged that they ought to be inspected or seen. The moment it occurred to the Rule Committee that the Rule, so framed, could be so interpreted, and possibly so misunderstood, as to place any bar in the way of the Public Prosecutor, without any exception at all, including the Lord Chief Justice, we came to the conclusion that the Rule ought to be amended at once; and we have passed a Rule, as your Lordships have heard from my noble and learned Friend who last sat down, to prevent any such conflict of opinion arising in future.