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having jurisdiction to try it, without a previous investigation having taken place before justices. The 22 & 23 Vict. c. 17, by sect. 1, enacts,
“After the first day of September, 1859, no bill of indictment for any of the offences following, viz.
Any indecent assault, "shall be presented to or found by any grand jury, unless the “prosecutor or other person presenting such indictment has “ been bound by recognizance to prosecute or give evidence "against the person accused of such offence, or unless the “person accused has been committed to or detained in cus
tody, or has been bound by recognizance to appear to answer “ to an indictment to be preferred against him for such offence,
or unless such indictment for such offence, if charged to “have been committed in England, be preferred by the direc“ tion or with the consent in writing of a judge of one of “the superior courts of law at Westminster, 3 or of her “Majesty's attorney-general or solicitor-general for England, " or unless such indictment for such offence, if charged to “ have been committed in Ireland, be preferred by the direc“ tion or with the consent in writing of a judge of one of the “superior courts of law in Dublin, or of her Majesty's attorney“ general or solicitor-general for Ireland, or (in the case of an " indictment for perjury) by the direction of any court, judge
or without consent of a judge, &c.
3 It is sufficient if this consent is given in writing in any informal way; and no previous summons or notice to the party or even an affidavit
of the facts is necessary (Reg. v. Bray, 32 L. J. (N. S.) M. C. 11; 7 Law T., N. S. 248). See also Knowlden v. Reg., 33 L. J. (N. S.) M. C. 219; 10 Law T., N. S. 691, in which it was held that it is not necessary that the performance of any of the conditions in this act should be averred on the face of the indictment, or proved before the petty jury. If a count for any of these offences has been added to an indictment without leave and found by the grand jury, that count should be quashed as no evidence was admissible (Reg. v. Fuidge, 33 L. J. (N. S.) M. C. 74; 1 Leigh & Cave, C. C. 390). See also the 30 & 31 Vict. c. 35, s. 1, post, p. 877, amending the 22 & 23 Vict. c. 17, as to the counts which may be inserted in the indictment, &c. See Reg. v. Heane, 33 L. J. (N. S.) M. C. 115, as to what offences are “perjury” within this act, and Ex parte Wason, 38 L. J. (N. S.) Q. B. 302, what is a “conspiracy.”
" or public functionary authorized by an act of the session 22 & 23 Vict. " holden in the fourteenth and fifteenth years of her Majesty,
c. 17. "chapter one hundred, to direct a prosecution for perjury" [i.e.
, s. 19, ante, Vol. I., p. 91). These provisions have been explained by 30 & 31 Vict. c. 35, s. 1, infra. By 22 & 23 Vict. c. 17, s. 2,—“That where any charge or Justice to
bind over "' complaint shall be made before any one or more of her
prosecutor to “ Majesty's justices of the peace that any person has com- prosecute if
he desire it. “mitted any of the offences aforesaid within the jurisdiction “ of such justice, and such justice shall refuse to commit or to “ bail the person charged with such offence to be tried for the “same, then, in case the prosecutor shall desire to prefer an " indictment respecting the said offence, it shall be lawful for " the said justice and he is hereby required to take the recog“nizance of such prosecutor to prosecute the said charge or “complaint, and to transmit such recognizance, information " and depositions, if any, to the court in which such indict“ment ought to be preferred, in the same manner as such “justice would have done in case he had committed the person "charged to be tried for such offence.” 4 By sect. 18 of " The Debtors Act, 1869," 32 & 33 Vict. c. 62, every misde- Offences meanor therein enacted is to “ be deemed to be an offence
Debtors Act, " within and subject to the provisions of the act 22 & 23 Vict. 1869. "C. 17;" but this enactment contains, apparently in error, no reference to or incorporation of the amending act of 30 & 31 Vict. c. 35, infra; and being the later in point of date, it is doubtful whether the provisions of 30 & 31 Vict. c. 35, apply to offences under the Debtors Act. (See Reg. v. Bell, 12 Cox, C. C. 37, M. Smith, J.)
The 30 & 31 Vict. c. 35, after reciting that "it is found 30 & 31 Vict. “that delay and inconvenience are frequently caused by the c. 35, s. 1. “provisions contained in the first section of the act 22 & 23
4 In Ex parte Wason, 38 L. J. (N. S.) Q. B. 302, it was held that the magistrate is not bound to take this recognizance of the prosecutor if the information or complaint does not charge one of the indictable offences specified in the statute. There is no time fixed in the act for entering into this recognizance, but it should be within a reasonable time after the dismissal of the charge by the justice, and, of course, before the sitting of the court at which the accused would have been sent for trial, if he had been committed or held to bail. Vide Form of Recognizance and Indorsement on Depositions, No. 70, Oke's “ Formulist,” 6th ed. p. 500. The prosecutor must then either go on with the prosecution or have his recognizance forfeited, as it would defeat the object of the statute if he were allowed to move to have his recognizances discharged (Reg. v. Hargreares, 2 F. & F. 790, Keating, J.).
30 & 31 Vict. “ Vict. c. 17 Cante, p. 876), in cases not within the mischief for c. 35.
“ remedy whereof the same act was passed,” and that “it is
" expedient to restrict the operation thereof," by sect. 1 enacts, Limitation of “That the said provision of the said first section of the said 22 & 23 Vict. “ act shall not extend or be applicable to prevent the presentment c. 17.
“ to or finding by a grand jury of any bill of indictment con“ taining a count or counts for any of the offences mentioned " in the said act, if such count or counts be such as may now “ be lawfully joined with the rest of such bill of indictment, " and if the same count or counts be founded (in the opinion " of the court in or before which the same bill of indictment “ be preferred) upon the facts or evidence disclosed in any
examinations or depositions taken before a justice of the
peace, in the presence of the person accused or proposed to “ be accused by such bill of indictment, and transmitted or " delivered to such court in due course of law;-and nothing " in the said act shall extend or be applicable to prevent the
presentment to or finding by a grand jury of any bill of “indictment, if such bill be presented to the grand jury with " the consent of the court in or before which the same may be
preferred." On acquittal, By sect. 2, “ Whenever any bill of indictment shall be preindicted, who
“ ferred to any grand jury, under the provisions of the act has not been “ twenty-second and twenty-third Victoria, chapter seventeen, committed or
against any person who has not been committed to or held to bail,
« detained in custody, or bound by recognizance to answer
“ such indictment, and the person accused thereby shall be cutor to pay costs to ac• acquitted thereon, it shall be lawful for the court before cused if it
which such indictment shall be tried, in its discretion, to think the prosecution
“ direct and order that the prosecutor or other person by or unreasonable. " at whose instance such indictment shall have been preferred Sect. 2.
“ shall pay unto the accused person the just and reasonable “costs, charges and expenses of such accused person and his " witnesses (if any) caused or occasioned by or consequent “ upon the preferring of such bill of indictment to be taxed “ by the proper officer of the court ;-and upon non-payment “ of such costs, charges and expenses, within one calendar “month after the date of such direction and order, it shall be “ lawful for any of the superior courts of law at Westminster, “or any judge thereof, or for the justices and judges of the
central criminal court (if the bill of indictment has been " preferred in that court), to issue against the person on
&c. of person
court may order prose
" whom such order is made such and the like writ or writs, “process or processes, as may now be lawfully issued by any " of the said superior courts for enforcing judgments thereof."
By a rule for many years in operation at the Mansion Application House, London—which has the approval of the principal to justices for criminal lawyers in London,-"No application for a sum- against ac
process “mons or warrant against any person for an offence or cause
not be made " of complaint will be permitted to be made in open court, in public. “ but the same must be made to the lord mayor or to the "chief clerk, either before the public sitting of the court or “at the termination of such sitting. If such application is “ entertained in any case where the charge is for an indict"able offence, an information in writing and on oath (of
which a skeleton form will be supplied) will be required “ from the prosecutor and his witnesses.” 5 The information is then submitted to the magistrate, and process issued or refused according to the merits of the case.
the justices would be liable to a mandamus if they refused to hear the application, or if, after hearing it, they refused to grant a summons from a mistaken view of their duty, amounting to a declining of jurisdiction (Reg. v. Fawcett, Ex parte Hodson, 19 Law T., N. S. 396; 11 Cox, C. C. 305). In the case of The Queen v. Adamson and others, Justices of Tynemouth, 45 L. J., M. C. 46, an information for conspiracy against a
5 Reasons for hearing Applications privately. 1-This regulation is within the spirit, if not the letter, of the law, and the acts regulating the procedure before justices in every case. It is only when the justices are sitting to “hear and try” any complaint or information for an offence or cause of complaint authorized to be disposed of summarily, that “the room or place" in which they sit is “ an open and public court” 11 & 12 Vict. c. 43, s. 12); for in cases where they take the examinations and depositions of witnesses in the presence of the accused in the preliminary inquiry on an indictable charge (and it is mostly in these graver offences that the ex parte applications referred to are often desired, for some private object only, to be publicly made and get reported), it is expressly provided that the room or building shall not be deemed an open court for that purpose," and that, if the justices think that the ends of justice will be best answered by so doing, they may order that no person shall have access to or be or remain therein without their consent or permission (11 & 12 Vict. c. 42, s. 19). So that, if these enactments are to be taken as an indication of the intention of the legislature upon the subject, they plainly show, we think, that a complainant cannot claim to have his application for process against a defendant or an accused heard in public, and that parliament never intended or contemplated that such applications should be so made ; the principle of the law apparently being that when justices are not trying a case or hearing the parties on both sides (whether it be preparatory to a summary adjudication or a committal for trial), every act preliminary to the hearing and in interlocutory matters ought to take place in private.
Application number of persons, supported by evidence which, if true, to justices for
clearly proved the charge, was laid before justices, with an process against application to grant summonses against such persons. The accu should not be justices, without hearing any evidence in contradiction or made in saying that they disbelieved the evidence tendered, refused public.
the application. By affidavit, on showing cause against a rule for a mandamus to compel them to hear and determine the application, they stated that they came to the conclusion that they should not be justified in granting summonses against the said persons for the offence of conspiracy, and it was held that although a discretion is given to justices by Jervis's Act (11 & 12 Vict. c. 42), s. 9, whether or no they will issue their summons or warrant, yet they must exercise that discretion upon the facts before them; and that here, as the justices had not said that they disbelieved the evidence, but only that they came to the conclusion that they should not be justified in granting the summonses, they must have acted upon some extraneous knowledge or belief, and had, in effect, declined jurisdiction, and that therefore a mandamus should go to compel them to proceed and hear and determine the application. With regard to an oath being made upon erery information as required by the rule referred to, it will be observed by sect. 8 of 11 & 12 Vict. c. 42, supra, that it is not absolutely required in indictable offences; but the approved practice is to do so as stated in Note 6, infra. Here it may be observed that it has been suggested that magistrates should receive all ex parte applications and statements upon oath. This suggestion seems to be founded upon an erroneous notion of the present law regulating proceedings before justices; for no general rule of the kind can be adopted, as an oath cannot be administered on such application, except the particular act so requires (and this applies to a very few cases), or a warrant is granted in the first instance, which likewise is not permitted in all cases. The two general acts regulating summary proceedings before justices and the prosecution of charges for indictable offences (11 & 12 Vict. cc. 42, 43), as well as some acts applicable to special offences and matters to be disposed of summarily, require that an information or complaint should be laid or made before a justice, to whom such applicant must, of course, give some grounds for a summons or warrant being granted. As to such information or complaint being upon oath, in cases