R v Allen (1862) 121 ER 929
COCKBURN CJ: I am of opinion that there ought to be no rule in this case. It is an undoubted power of the Attorney General, as representative of the Crown in matters of criminal judicature, to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi ban been entered by the flat of the Attorney General, this Court ban taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment. Nor, if the Court were to take that unprecedented course, is there anything to prevent the Attorney General from entering a noble prosequi toties quoties. It is not for us to create a precedent which is contrary to the established practice, and which would be fraught with great inconvenience. Our attention has been called to the practice of Attorney General in his office, as laid down in the books, to summon the prosecutor, and hear the parties before granting his flat for a nolle prosequi. I think that is a wholesome practice; and generally the law officer of the Crown, before entering a nolle prorequi either ex mero motu or at the instance of the defendant, and thereby debarring the prosecutor from proceeding further, would act wisely in calling the prosecutor before him; but, from particular circumstances known to him, or from the nature of the charge, he may feel called upon to grant his fiat for a nolle proacqui without adopting that course. Suppose it possible that there could be an abuse of his power by the Attorney General, or injustice in the exercise of it, the remedy is by holding him responsible for his acts before the great tribunal of this country, the High Court of Parliament. I have no doubt that the Attorney General has this power; and this Court has never interfered with it
CROMPTON J: It would be very mischievous, by granting a rule nisi, to raise any doubt in so clear a matter. In this country, where private individuals are allowed to prefer indictments in the name of the Crown, it is very desirable that there should be some tribunal having authority to say whether it is proper to proceed farther in a prosecution. That power is vested by the constitution in the Attorney General, and not in this Court. The Attorney General may enter a nolle prosequi ex mero motu. The practice, that there should be a summons to the prosecutor to shew cause why the Attorney General should not grant his fiat, is generally satisfactory, but be is the judge where the nolle prosequi should be entered, and there is nothing in the books to shew that he cannot do it without bearing the parties. Moreover, there is nothing in this case to shew that we ought to interferfere if we had the power....
