COMMON INFORMERS BILL (Hansard, 5 June 1951)

§ VISCOUNT SIMON

My Lords, this Bill was introduced into another place by a Private Member, Mr. Lionel Heald, Member of Parliament for Chertsey, and it comes to us from the House of Commons, as I understand, with the approval of His Majesty's Government. In another place, the then Attorney-General spoke warmly in its support and, what is more, the Government draftsmen lent their aid to secure that the language of the Bill was such as would be satisfactory. Consequently, this Bill, both in substance and in form, is now before your Lordships' House, I think, with the approval of the Government of the day.

The object of the Bill is to abolish procedure by a common informer, and although the hour is getting late—there is probably no opposition, and no ex- 1050 tended explanation will be required—it is right, perhaps, shortly to put on record what is meant by a "common informer." Our criminal law includes a large number of offences defined by Statute and punish-able, on conviction, by a money penalty, whatever the penalty may be—£500, £50; there are all sorts of figures. If your Lordships will look at the Schedule to this Bill, which certainly provides an interesting piece of what I might call mixed reading, you will see how extremely various in our history have been the measures which come within the present proposal. In these measures not only is the penalty for committing an offence defined as a money penalty of a certain amount, but there is a provision which enables anyone—any member of the public—to institute civil proceedings against the alleged offender in order that he may be made to pay the penalty, with the remarkable further pro-vision that if this individual can make the offender pay the penalty he shall get for himself, as informer, sometimes the whole amount and sometimes half the amount or some other proportion. That is to say, he enforces the criminal law in a civil court, not because he is zealous that the law shall be observed, not because he is a good citizen and does not like to see other citizens offend, but because he is a person who thinks that this is an easy way of putting money into his own pocket. That is what a common informer is.

To-day I should think it will be universally agreed that that system is wrong, and that if we have—as we have to-day— adequate means of administering the criminal law without encouraging people to refer to it for the purpose of their private advantage and remuneration, it is shocking that such provisions should survive. It is shocking that an informer should use the criminal law for his private advantage and profit. At the best, the common informer is not acting from a zeal for justice. At the worst, the process is almost indistinguishable from black-mail. So long as such opportunities exist, there are likely to be far more cases in which the ingenious common informer threatens proceedings and privately compromises with the person he would other-wise accuse than cases in which he actually brings them into court.

I will not delay your Lordships by giving a large number of illustrations, but your Lordships may be interested in look- 1051 ing at the Schedule to see one or two cases, supposed to be dealt with by this procedure, that are as yet on the Statute Book. First of all there is the Statute of the fifth year of Edward III, which I suppose is in practice quite inoperative but which is better cleared out of the Statute Book—namely, the Statute which provides for a penalty to be imposed if, when a fair has been set up by charter between certain hours or on certain days, anybody seeks to carry on the fair after closing time. A common informer may proceed to bring an action against such a person and claim that the offender ought to pay the penalty, which the common informer is then able to put into his own pocket. That is merely a piece of archaism, but it is better to cut it out of the Statute Book.

Let us take a case which really exists to-day. The law about stealing was put into the Statute Book many years ago. It is the Larceny Act of 1861, and, subject to very small changes, that is the law governing stealing and larceny to this day. In this Schedule your Lordships will see a reference to Section 102 of the Larceny Act of 1861, and, if I may, I will read it to the House. This is what it says: Whoever shall publicly advertise a Reward for the Return of any Property whatsoever which shall have been stolen or lost, and shall in such Advertisement use any Words purporting that no Questions will be asked, or shall make use of any Words in any public Advertisement purporting that a Reward will be given or paid for any Property which shall have been stolen or lost, without seizing or making any Inquiry after the Person producing such Property, or shall promise or offer in any such public Advertisement to return to any Pawnbroker or other Person who may have bought or advanced Money by way of Loan upon any Property stolen or lost the Money so paid or advanced, or any other Sum of Money or Reward for the Return of such Property, or shall print or publish any such Advertisement, shall forfeit the Sum of Fifty Pounds for every such Offence to any Person who will sue for the same by Action of Debt, to be recovered, with full Costs of Suit. In other and simpler words, if I put up an advertisement which says that I have lost my watch, and that if the man who has got it will bring it back no questions will be asked, and offer a reward of five pounds, I commit a criminal offence; but, oddly enough, the way such a criminal offence is to be dealt with is by somebody else, who has nothing whatever to do with it, bringing an action for the penalty, of which he will get the benefit. I do not 1052 think that at this time of day anybody believes that that is the proper way of enforcing the criminal law. There is no doubt at all that your Lordships will agree with this Bill. Of course, it is the duty of the good citizen to inform the authorities, at any rate in some cases, when he has good grounds of knowing that a serious offence has been committed. That is a duty which rests on the citizen because he is a citizen, and he ought not to be rewarded for doing his duty. It is part of his duty, without any reward other than the reward which comes from the consciousness of having done his duty.

But the real reason why it is high time to get rid of the common informer is something different from that. I do not entirely agree with those who have spoken of the common informer as though in all times and in all circumstances this is a shocking procedure. If we go back to the old days when there was no efficient police force, when, indeed, in some parts of the country there was no police force at all, and consider the importance of enforcing the law against criminal offences, it would seem that it was not altogether unnatural for our ancestors, because they could not do any better, to set up the system of common informers. There may be another class of case where it would have been justified. If we lived in an age when the authorities could be suspected of refusing, out of favouritism or fear, to prosecute a particular kind of person, it might be a very useful thing to have this machinery of the common informer to secure that in proper cases a man would be brought to book. As I was preparing to make this speech, I thought of the passage in Shakespeare's Much Ado About Nothing, which all your Lordships will remember. Dogberry and the other members of the Watch were supposed to be the police of the neighbourhood. Your Lordships will recall that Dogberry, addressing one of his colleagues called Seacole (who, it was pointed out, could read and write), said: … You are thought here to be the most senseless and fit man for the constable of the watch; therefore bear you the lantern. This is your charge: you shall comprehend all vagrom men; you are to bid any man stand, in the prince's name. The other man says: How if a' will not stand? 1053 Dogberry replies: Why, then, take no note of him, but let him go; and presently call the rest of the watch together and thank God you are rid of a knave. If the administration of the criminal law at this time of day had to be governed so far as the police are concerned by those principles, there might be something to be said for the common informer, but there is nothing in the world to be said for him under present conditions. In these matters a citizen ought not to be paid for doing his duty, and if people are brought to book for a criminal offence, they ought to be brought to book in the public interest and not for the private profit of anybody at all.

I hope I do not delay your Lordships if I add this historical observation. It is remarkable how long ago people in this country began to see what an evil was this machine of the common informer. By the end of the Tudor period the operations of the common informer had become so oppressive and objectionable that Statutes were passed through Parliament expressly to regulate and curb his activities. There is the Statute, for instance, of 31 Elizabeth, which speaks of divers of the Queen's subjects being daily and unjustly taxed and disquieted by common informers. Parliament did not get rid of them in those days, but obviously it was felt that their methods were not always acceptable or commendable. I noticed that in another place my learned friend Mr. Lionel Heald, who made a most attractive speech, quoted some words used by a great master of the law at about the same period, Sir Edward Coke. They are to be found in his great law book called The Institutes. After classifying common informers as including "relators, informers and promoters," and calling them turbidum hominum genus, he then proceded to refer to the common informer—in language that might almost seem to be modern—as "that viperous vermin." It is extraordinary how, in the English language, words beginning with a "v" have a special attraction to certain minds. Mr. Tony Weller interrupted the proceedings in a famous trial by advising his son, in the box, Mr. Samuel Weller, to, "Spell it with a ' V'." However, Sir Edward Coke went on to say: The vexatious informer who, under the reverend mantle of law and justice, instituted 1054 for the protection of the innocent and the good of the commonwealth, doth vex and pauperise the subject and community of the poorer sort, for malice of private ends and never for love of justice. That was very good talk; indeed, Sir Edward Coke was a great master of language. There was another occasion on which he used the epithet "viper." if I remember rightly. It is recorded that when he was prosecuting Sir Walter Raleigh he denounced him as: "You Spanish viper"—language, my Lord Chancellor, which I do not think even a junior prosecutor would be allowed to use in a criminal court to-day.

I noticed that not long ago a judge who is now dead but whose memory retains not only the admiration but the affection of all who knew him well, Sir Sidney Rowlatt, was trying one of these cases, where the plaintiff was a lady, who brought this kind of action. He said: The action before me is a penal action, a form of proceeding invented by Parliament to ensure that a law should never become a dead letter for lack of a prosecutor, the motive of private greed being enlisted to ensure that someone should come forward. He went on to observe that the plaintiff, a few days before the writ was issued, had changed her name by deed poll—I will not say what the change was—thinking, said the learned judge, possibly that under her new designation she could more colourably come forward as the champion of the English Sunday. That leads me to observe that one of the cases in which a common informer may operate is in an endeavour to enforce the Sunday Observance Acts. But let it be quite plain that those who feel deeply attached to the traditional observance of the English Sunday—represented, for example, by the Lord's Day Observance Society—repudiate altogether the idea that they want that law to be enforced by the machinery of the common informer. Nothing in this Bill alters the criminal law in any degree. Whatever was an offence before this Bill was introduced will be an offence after it is passed. The only difference that this Bill makes—and I think it is important, as well as being historically most interesting—is that while the offence remain:; what it was before, and the penalty remains what it was before, the offence must be prosecuted by, and the penalty must be ordered as a result of, ordinary criminal proceedings, and not by this antiquated and, I think, 1055 now shameful method of some individual thinking this is a way in which he can add to his resources for his private pocket. I was in the House of Commons—as perhaps were other noble Lords also—at a time when one Member, who certainly had not the slightest intention of offending, was found, because his firm had entered into a certain contract, to have offended against the provision in the law in that behalf; and he had to pay £13,000 to a common informer who proceeded to take steps against him. I would point out one further fact: that in cases where the penalty under the law which we are now seeking to alter is to be shared between the Crown and the common informer, the Crown can in a proper case exercise the prerogative of mercy and reduce or remove the burden, so far as the money is going to the Crown; but that part of it which has to go to the common informer belongs to him as of right and, having succeeded in his action, he is entitled to have judgment for the full amount; and nobody can take it from him.

That is the short, but not, I think, uninteresting account which has to be given in promoting this Bill. It does not—as I noticed a gentleman who wrote to the Daily Telegraph the other day thought it did—interfere with the prosecution of anybody for any existing offence. It secures merely that procedure by way of the common informer shall be abolished. It is high time that it was abolished, and I feel great satisfaction in being entrusted by the private Member in another place who moved and carried this Bill with the duty of com-mending it to your Lordships' House. I beg to move.