The Sheriff said, this is a new point. I have always understood the right of the private party to be as great as that of the Public Prosecutor. I do not think the private party is prevented from investigating by any guarantee given by the Public Prosecutor; and therefore refuse the petition for Hare, reserving his right to apply to the Court of Justiciary, for which purpose I shall sist proceedings for two days. The question is new and delicate, but I see no reason for stopping proceedings.
Mr. Miller then stated that the respondent’s agent had got authority from the Lord Provost to examine Burke, but just as he was about to enter the prison, a note was put into his hand by the Governor from the Magistrates, stating that until the judgment of the Sheriff was known, access could not be given. The urgency of the case, and the inapplicability of the objections to his examination were represented, and the Sheriff thought proper to provide for Burke’s examination by a note to his interlocutor, which was as follows:
“Edinburgh, 21st January 1829.—The Sheriff having resumed the consideration of the petition for William Hare, and having heard counsel for William Hare and the respondents, Janet Wilson, senior and junior: In respect that there is no decision finding that the right of the private party to prosecute, is barred by any guarantee or promise of indemnity given by the Public Prosecutor, Refuses the desire of the petition, but in respect of the novelty of the case supersedes further proceedings in the precognition before the Sheriff, at the instance of the respondents, till Friday night at seven o’clock, in order that William Hare may have an opportunity of applying to the Court of Justiciary.”
“Note.—The application which has been made to the Lord Provost for liberty to see Burke, by the private prosecutors, is not before us, but remains to be disposed of by the Lord Provost.”
This judgment of the Sheriff was brought under review of the Court of Justiciary by a bill of advocation, and of suspension and liberation for Hare, which came on for discussion before the Court on the 26th of the same month, when
The Lord Justice Clerk said,—After having heard the counsel, I have now to state, that the Court have resolved, before giving their opinions, in the first place to make an order on the Lord Advocate to make any answer to this bill that he may see necessary. The Court desire to decide this question in the gravest manner, after seeing informations; and the counsel will make arrangements for giving them in as speedily as possible.
Informations were then ordered to be lodged on Saturday following.
In obedience to this order of Court, answers for the Lord Advocate, and Informations for Hare and the relatives of Wilson were accordingly lodged; and their Lordships, on the 2d February, proceeded to pronounce judgment on the very nice and important points of law embraced in the discussion.
The Lord Advocate’s Answer is as follows:
The Respondent has not failed to observe the guarded terms in which this order is conceived, calling upon him only to give such information as he shall deem proper, and thus relieving him from the necessity of questioning the power, even of this Court, to require, in this shape, a disclosure of the grounds on which the Public Prosecutor has been guided in the exercise of his official discretion. Influenced, however, by those feelings of respect which the respondent has ever endeavoured to evince towards this High Court, he readily submits the following statement, in deference to their wishes, on so extraordinary a case.