REG.

v.

BROWNE.

Search warrant.

Dundon had searched the house of the prosecutor for treasonable papers. From the affidavit upon which the motion was founded, it appeared that on the 21st of September last, Dundon, accomPractice panied by certain others of the police force, proceeded to the house of Mr. Lawless at Sandy Mount, and having produced a warrant signed by Lieutenant-Colonel Browne, authorizing him to search for treasonable papers, a search was made accordingly, but no treasonable papers were discovered. Applications were made by Mr. Lawless to the secretary of the commissioners for the informations which, he stated, could not be seen, and on the 16th the commissioners' secretary wrote to the prosecutor, stating that the search warrant had issued upon sworn informations according to law, and that the commissioners did not feel justified in allowing an inspection of the informations; a formal notice having been served on the commissioners upon the 7th November calling for the production of the informations, which was not complied with; on a former day an application for a mandamus having been made, it was refused to be entertained by the court, on the ground that notice had not been served upon the commissioners: notice was accordingly served, and the application was now renewed.

O'Callaghan, in support of the motion.-The applicant has in the strongest manner, and using the terms of the statute, denied that there were any grounds for the search, which was made in his house under the provisions of the stat. 11 & 12 Vict. c. 89, s. 2; he also states in his affidavit that he is convinced that whoever swore the information against him, was actuated by malice and ill-will, and that there were no real grounds of suspicion against him; that he is ignorant of the contents of the information, and does not know who his accuser is. If the applicant is entitled to redress, there is no means by which he can obtain the materials for bringing an action unless the court grants a mandamus to compel the production of the information.

CRAMPTON, J.-Do you mean to bring an action against Colonel Browne?

O'Callaghan.-The applicant wishes to proceed against the

informer.

MOORE, J.-If a man comes before a magistrate, swearing that he has been robbed, and suspects A. B., and a search warrant issues, the man not having been robbed, how is the person affected to get at the informations?

O'Callaghan. I admit that the present application is without any direct precedent, but upon principle, and from the cases which bear on the subject, I submit the writ ought to issue. PERRIN, J.-What was the substance of the warrant ? O'Callaghan.-It was a warrant to search for treasonable

papers.

PERRIN, J.-Did you call for a copy of it?

The Attorney-General.-They did not.

PERRIN, J.-Is it sworn that any such warrant issued?

O'Callaghan.-The commissioners' letter admits it. PERRIN, J.-It is very much to be regretted that you did not ask for a copy of the warrant. The great difficulty I feel is not that you may not have a right of action, but that here the court is called on to issue a mandamus to one person in order that he may furnish documents to be used for the purposes of bringing an action against another person. I do not find any case where it has been held that such a mandamus would lie. That is the real difficulty in the case.

CRAMPTON, J.-If you can show upon principle that a mandamus will lie, the court will grant it though there may be no previous decision on the subject.

O'Callaghan.-It has been decided in the case of Cooper v. Booth (3 Esp. 135), that an action will lie for the maliciously obtaining a search warrant without due grounds. The law gives the person informed against a right of action, and to the informer it gives the protection of very stringent rules. It requires express proof, as against him, not only of want of probable cause, but also of express malice: both must conjoin. But the law does not give the informer the protection of concealment. It is against the whole spirit of the law that there should be concealment. It would be monstrous and irrational to say that a party has a remedy by action and yet never to allow him the means of finding who his secret accuser is. Take the cases of informations for indictable offences, or for the purpose of proceeding by summary conviction. As to the former, it is the right of the accused, at some stage of the proceedings, to be acquainted with the name of the person swearing against him. At common law the accused was not entitled to a copy of the informations before the trial (2 Gabb. Cr. L. 169); this hardship has been remedied by the Legislature, but in the present instance the informations and search warrant have done their work; there can be no other proceeding; and, therefore, as there will be no trial, this is a stronger case for the interposition of the court: (Welch v. Richards, Barnes, 468; The King v. Smith, 1 Str. 120.)

MOORE, J.-I see a great difficulty in the court compelling Colonel Browne to produce a document which may be made the grounds of bringing an action against himself.

O'Callaghan.-It should be presumed that the magistrate acted legally; and, if so, he cannot be prejudiced. If he has acted illegally, a fence ought not to be thrown round him to shelter him from the consequences of his own act; the privacy of home is regarded next to the protection of life and liberty. As the act of Parliament only gives the liberty to search, after informations have been sworn and laid before a magistrate, will not the restriction be illusory if no means exist of knowing whether, in point of fact, informations had ever been sworn? The case of Ex parte a Justice of the Peace for the County of Bedford (1 Chitty's R. 627), may be relied on as an authority against the present application, but it really is not, for Mr. Justice Bayley shows

REG.

v.

BROWNE.

PracticeSearchwarrant.

REG. บ.

BROWNE.

PracticeSearchwarrant.

that, in that case, there was another remedy open to the applicants, but the applicant here having no other legal remedy left, and having a right, the court will, by its writ of mandamus, afford a remedy to enforce that right.

:

The Attorney-General (Monahan) for the Crown.-It is to be observed, that the applicant has not ventured upon his oath to state what the object of the present application is, although his counsel has at the bar suggested that it is to bring an action for a malicious prosecution. I believe that the real object is to obtain a view of the informations, in order to know what other parties are implicated by them. This was not a simple case as between A. and B., but a search involving more than one individual. The police went to Mr. Lawless's house to search for treasonable papers they were asked for their authority, and they produced a warrant to search for treasonable papers. If the application was a bona fide one, the person who swore no less than three affidavits in the case, would have ventured to pledge his oath as to what his real object was, but he has not done so; he, no doubt, has taken up the very words of the act of Parliament and denied that there were grounds for the issuing of the warrant, but he did not deny that treasonable documents had been there previous to the search. One of the causes of complaint is, that the police searched the portmanteau of a stranger whose name is not disclosed, who was stopping at Mr. Lawless's house. [CRAMPTON, J. -I understand the applicant to swear that his object is to bring an action.] He does no such thing, but it might be very convenient for him to know who are implicated by the informations. [CRAMPTON, J.-Then the mandamus might be only for the purpose of gratifying his curiosity], and that not for a legitimate purpose. The court are now called on to make an order which is wholly without precedent. In the case cited from Strange, the action had actually commenced and was ready for trial; and in the case from Barnes's Notes an action for a malicious prosecution had been instituted. The authorities are collected in Tapping on Mandamus, p. 328. In The Queen v. The Justices of London (5 Q. B. Rep. 555), an application for a mandamus to compel magistrates to give copies of informations to a prisoner remanded for further examination was refused, and Sir Fitzroy Kelly, who argued in support of the motion, rested it entirely upon the statute, and never set up any common law right to justify the demand. [PERRIN, J.-Do you certify it to be a fact that other persons' names are in the informations besides the applicants? I do not, but I have a right to contend that it may be so.

O'Callaghan in reply.-No one has ventured to make an affidavit that any name is contained in the informations except that of my client. According to the principles laid down in Magna Charta, justice ought not to be denied to any person, but if this application be refused, my client is left without a remedy.

Cur. adv. vult.

November 26.-JUDGMENT.

ᎡᎬᏀ.

v.

BROWNE.

Practice

BLACKBURNE, C.J.-In this case an application was made on the part of John Lawless for a writ of mandamus directed to George Browne, a justice of peace for the metropolitan district of Searchwarrant. Dublin, commanding him to produce, or cause to be produced, to him (John Lawless) or his attorney, the information or informations upon oath given to him as a justice of the peace; and he further requires to be allowed to copy the information. He states a warrant to have been issued by Colonel Browne, as a justice of the peace for the metropolitan police district, and that that warrant is founded upon the sworn information of which the inspection is required, and upon which a warrant issued under the 11 & 12 Vict. c. 89, s. 2; that warrant, it is to be observed, was exhibited to the applicant by the police officer to whom it was given to be executed, and was examined before any search under it took place, and it is not now, nor was it at any time, required that it should be exhibited for inspection, or any copy of it furnished to the applicant; neither has the warrant been, as it ought to have been, submitted to the court, and we think that this omission suggests in itself a very serious objection to the present motion. The application, as I have stated, is confined to the informations, and it is Judgment. contended that it is necessary for the applicant to see them in order to negative the existence of a probable cause to warrant the informations which the statute requires. His affidavits are essentially defective in not stating any purpose or object which he hopes to effect by the mandamus which he seeks; he neither states that he has brought any action, that he meant to do so, or that he has any cause of action. It is a settled rule that, whatever be the quality of the right of the applicant for a mandamus, the court must see that it has been clearly established before it grants it. If, therefore, I went no further, there would be, from a non-compliance with that rule, a decisive objection to the application; but suppose we were at liberty to allow that defect to be supplied by the suggestions which have been made by counsel at the bar, let me inquire what effect they would have had if they had been contained in the affidavit? They are in effect thus-that the applicant, by the matters to be disclosed by the return to the mandamus, expects to be enabled to discover whether he has sustained any injury entitling him to redress; and, if so, whether he should sue the person who made the affidavit or the magistrate who issued the warrant. These suggestions, so far from proving that he has a right to the mandamus, prove that he has not, for they in effect negative that which it was incumbent upon him to show, namely, that he had a clear legal and equitable right to the writ. Can he be said to have done so, when his case is that he cannot state any right at all, but that he seeks discovery of some fact, some illegality or defect at present not known nor believed to exist, but which he states may give a cause of action for a proceeding which we have no sufficient reason to doubt was done according to the due

REG.

v.

BROWNE.

Searchwarrant.

course of law? It is further observable, so far as regards the magistrate who took the informations, that there is no impediment to the prosecutor bringing an action in which the legality Practice of his conduct may be questioned, and it is admitted that the court could not grant a writ to compel a magistrate to furnish evidence against himself, or to disclose evidence which he should adduce in his own vindication if an action were brought against him. This has obliged the prosecutor's counsel to rest his case upon the broad ground of an absolute right, without specifying any definite purpose or object, or stating any legal right, to be permitted to inspect the informations; for that no authority has been cited; on the other hand, there is the authority of the Court of Queen's Bench in the case of The King v. A Justice of Bedford (1 Chitty's Reports, 627), that an application for a mandamus to compel the production of informations to ground an indictment for perjury was without precedent, and that the court had not by law any power to grant it. The authorities cited from Barnes's Notes and Strange's Reports, which, it is said, are at variance with this decision, are not really so, neither is the case of a mandamus, and in both, legal proceedings and trials were pending, upon which the informations were ordered to be given in evidence. The difference between those cases and the present is so obvious, that it is not necessary to do more than advert to it. Here, there neither is any suit pending, nor has any step been taken to institute a suit. Upon the whole of the case, if we granted the present application for a mandamus, we should do so, not only in the absence of authority, but against authority and against the settled rules of this court: rules not merely technical or made for the convenience of practice, but founded upon the nature of that high prerogative writ and adopted for the very salutary purpose of limiting its use to cases to which it is properly applicable, and for the purpose of preventing the abuse which would necessarily and inevitably arise from issuing it at the instance of parties who do not show actual legal rights to be remedied. Therefore we pronounce no rule upon this motion.

Judgment.