Recovery of costs.

out of court.

46 L.J., C.P., 484; 36 L.T., 514; 25 W.R., 650; and M'Laren v. Home, 7 Q.B.D., 477; 50 L.J., 658.

In regard to the recovery of costs, it is provided by Section 58 of the Act of 1883:-(1.) "Where any costs or other sums (not being costs of a prosecution on indictment) are, under an order of an Election Court, or otherwise under this Act, to be paid by a county or borough, the Commissioners of Her Majesty's Treasury shall pay those costs or sums, and obtain repayment of the amount so paid in like manner as if such costs and sums were expenses of Election Commissioners paid by them, and the Election Commissioners Expenses Acts, 1869 and 1871, shall apply accordingly as if they were herein re-enacted, and in terms made applicable to the above-mentioned costs and sums. Where any costs or other sums are, under the order of an Election Court or otherwise under this Act, to be paid by any person, those costs shall be a simple contract debt due from such person to the person or persons to whom they are to be paid, and if payable to the Commissioners of Her Majesty's Treasury, shall be a debt to Her Majesty, and in either case may be recovered accordingly."

(2.)

Payment of As regards the money (if any) deposited by the petitioner security fund in court, by way of security for costs and claims of witnesses, all claims to it will be adjudicated upon by the Court or a judge. The person claiming to be entitled to it should give notice to the other side that he is about to apply for payment out, and should so apply by judge's summons at Chambers. The application must be supported by affidavits, proving that due notice of intention to apply has been given, and that all proper claims upon the fund have been satisfied or provided for. The judge, by his order, may direct payment either to the party in whose name the money was deposited, or to any person entitled to receive it. When the order has been made, drawn up and signed, it should be taken to the Clerk of the Lord Chief Justice of England, who will endorse on the order a draft on the Bank of England for the payment of the money. The bank will pay the amount on the presentation of the draft in the usual way. (Gen. Rules (Parl.), March, 1869.)

PART II.

THE PUNISHMENT OF OFFENDERS.

THE Act of 1883, with a view to the more effectual repression of offences against the election laws, provides increased facilities for detecting offenders, a new machinery for their prosecution, and augmented penalties for their punishment,

CHAPTER I.

THEIR DETECTION AND PROSECUTION.

commis

Heretofore the most efficacious means of unearthing corruption in a constituency has been found to be the appointment of Election Commissioners, who visited the particular county or borough, and, armed with the largest powers, held an exhaustive inquiry on the spot. These commissioners Inquisitiorial were appointed by the Crown under the 15th & 16th Vict. powers of c. 57, and the 31st & 32nd Vict. c. 125, upon the joint sioners. address of both Houses of Parliament; but there was this limitation upon their appointment, that they could only be appointed when an Election Court had reported that there was reason to believe that corrupt practices had extensively prevailed in the constituency to which they were sent. Now, by Section 12 of the Act of 1883, Election Commissioners may be appointed when the report is that there is reason to believe that either corrupt practices or illegal practices Now much extensively prevailed at the election. And the Commis- extended. sioners will then be bound to inquire into the prevalence of

Witnesses

may be compelled to criminate themselves.

An amnesty

for the past.

illegal practices as well as corrupt practices, and report to the House accordingly. Having regard to the fact that the Act of 1883 creates some fifteen or sixteen new offences, which it calls illegal practices, it is obvious that there is here a considerable extension of the jurisdiction of the Commissioners. The latter have the largest powers of examining witnesses on oath, compelling attendance and the production of books and documents; and witnesses examined before them are not entitled to any common law right of refusing to answer questions which may tend to criminate them. They are bound to answer, though, if they answer truly, they become entitled to certificates of indemnity, which will protect them against any criminal prosecution (except for perjury), though they may still be scheduled by the Commissioners in their report as guilty of corrupt or illegal practices, as the case may be, and thereupon they come under the disabilities and incapacities to be presently mentioned. It is the duty of Election Commissioners to report the names of all persons whom they are satisfied have been guilty of corrupt or illegal practices, and to state whether certificates of indemnity have been given to them. And by Section 60, the reports of all Election Courts and of Election Commissioners shall be laid before the Attorney-General, "with a view to his instituting and directing a prosecution against such persons as have not received certificates of indemnity, if the evidence shall, in his opinion, be sufficient to support a prosecution."

But while there is this great extension of the jurisdiction of Election Commissioners as to the class of offences into which they may inquire, there is a remarkable limitation as to the time over which their inquiries may range. By the 15th & 16th Vict. c. 57, the Commissioners were directed, if they found corrupt practices at the last election, to inquire if there were any at the election before, and if they found there were, they were to investigate the election before that, and so on; but now, by Section 49 of the Act of 1883, it is provided: "Notwithstanding the provisions of the Act 15th & 16th Vict. c. 57, or any amendment thereof in any case where after the

passing of this Act any Commissioners have been appointed on a joint address of both Houses of Parliament for the purpose of making inquiry into the existence of corrupt practices at any election, the said Commissioners shall not make inquiries concerning any election that shall have taken place prior to the passing of this Act, and no witness called before such Commissioners, or at any election petition after the passing of this Act, shall be liable to be asked or bound to answer any question for the purpose of proving the commission of any corrupt practice at or in relation to any election prior to the passing of this Act, provided that nothing herein contained shall affect any proceedings that shall be pending at the time of such passing."

of Public

The extended jurisdiction of Election Commissioners is one The Director fresh means of detecting offences. Another is the compul- Prosecutions. sory attendance at the trial of every election petition of a representative of the Director of Public Prosecutions. He

attends there with two-fold functions. The one is, in proper His functions. cases, to prosecute offenders before the Election Court. The other is to protect the public interest and see that, as the result of an arrangement between the parties or otherwise, no evidence is suppressed or withheld which may cast further light upon the proceedings at the election under investigation.

But, first, it should be observed that an election petition Withdrawal once presented cannot be withdrawn without the consent of of petitions prohibited. the Court, nor until the Director of Public Prosecutions has been heard in opposition to its withdrawal. Very stringent conditions in regard to this matter are contained in Section 41. Section 43 defines the duties of the Director of Public Prosecutions in aid of the detection of offences: "On every trial of an election petition the Director of Public Prosecutions shall by himself or by his assistant, or by such representative as hereinafter mentioned, attend at the trial, and it shall be the duty of such director to obey any directions given to him by the Election Court with respect to the summoning and examination of any witness to give evidence on such trial, and with respect to the prosecution by him of

Attendance of Director at petition.

trial of every

to call

witnesses.

offenders, and with respect to any person to whom notice is given to attend with a view to reporting him as guilty of any corrupt or illegal practice." And by Sub-section 2: "It shall also be the duty of such director, without any direction from the Election Court, if it appears to him that any He has power person is able to give material evidence as to the subject of the trial, to cause such person to attend the trial, and with the leave of the Court to examine such person as a witness." The hearing of an election petition is, therefore, no longer a proceeding merely between the two parties, which can be brought to a conclusion when it suits their convenience; but is a public investigation which can be prolonged at the instance of the official attending in the public interest until either such disclosures have been made as justify the Election Court in reporting that there is reason to believe that corrupt or illegal practices extensively prevailed, or until the information to found criminal proceedings has been obtained by the Court, or until the Court in the exercise of its summary powers has administered adequate punishment itself.

Private

Coming next to the machinery for the prosecution of offenders, it must be observed that the right of a private prosecutor to institute proceedings is in no way interfered prosecutions with. Indeed Sections 10, 12 & 13, of the 17 & 18 Vict., still permissible. c. 102, which in the case of private prosecutions for corrupt practices give the Court power: (1) When the prosecutor has duly entered into the recognizances mentioned in the 13th Section to order the defendant, if convicted, to pay him. the costs and expenses to which he has been put, and which (2) direct that the defendant shall have his costs from the prosecutor when he is acquitted, are expressly extended to any private prosecution for the offence of a corrupt practice within the meaning of the new Act (Section 53).

Prosecutions

generally by order of

It is, however, contemplated that, as a rule, prosecutions will be instituted by the special order of the Attorney(a) Attorney-General, or by the Director of Public Prosecutions. Section 60, which directs that all reports of Election Courts and Election Commissioners shall be submitted to the Attorney.

General.