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c. 42.

Sect. 3.

a

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** end of the sessions of oyer and terminer or gaol delivery or 11 & 12 Vict.
"sessions of the peace at which such indictment shall have
“ been found, upon application of the prosecutor, or of any
“person on his behalf, and on payment of a fee of one shilling,
" if such person shall not have already appeared and pleaded
" to such indictment,-grant unto such prosecutor or person a
"certificate (F) of such indictment having been found ; 22— On production

of certificate,
" and upon production of such certificate to any justice or justices to
"justices of the peace for any county, riding, division, liberty, grant warrant

of apprehen"city, borough or place in which the offence shall in such in

sion. "dictment be alleged to have been committed, or in which the

person indicted in and by such indictment shall reside or be,

or be supposed or suspected to reside or be, it shall be lawful " for such justice or justices, and he or they are hereby re" quired, to issue his or their warrant (G) to apprehend such “person so indicted, and to cause him to be brought before "such justice or justices, or any other justice or justices for " the same county, &c., to be dealt with according to law,-" and afterwards, if such person be thereupon apprehended " and brought before any such justice or justices, such justice " or justices, upon its being proved upon oath or affirmation 23 “ before him or them that the person so apprehended is the "same person who is charged and named in such indictment, "shall, without further inquiry or examination, commit (H) “him for trial, or admit him to bail, in manner hereinafter "mentioned ;—or if such person so indicted shall be confined Where " in any gaol or prison for any other offence than that charged accused is in

custody. " in the said indictment at the time of such application and "production of the said certificate to such justice or justices “as aforesaid, it shall be lawful for such justice or justices " and he or they are hereby required, upon its being proved “ before him or them upon oath or affirmation 24 that the person so indicted and the person so confined in prison are

and the same person, to issue his or their warrant (I) Justices to “ directed to the gaoler or keeper of the gaol or prison in grant a

detainer.

one

22 It is the practice of the Central Criminal Court, when granting a bench warrant on an indictment or granting this certificate, to require the prosecutor (if not already bound by the justices) to enter into a recognizance to prosecute the indictment. Hill

, J., however, held, in Reg. v. Whittaker, 2 F. & F.1, that bench warrants are not to be granted unless it is necessary that the party charged should be at once taken into custody.

23 V'ide Deposition, Oke's “ Formulist,” 6th edit. p. 478, No. 16. 24 Tide Deposition, Oke's " Formulist," 6th edit. p. 479, No. 18.

which the person so indicted shall then be confined as afore" said, commanding him to detain such person in his custody, “ until by her Majesty's writ of habeas corpus he shall be “ removed therefrom, for the purpose of being tried upon the " said indictment, or until he shall otherwise be removed or "discharged out of his custody by due course of law.”

FORus. [Vide F, G, H, and I, Nos. 13, 15, 17, 19, Oke's "Formulist," 6th ed. pp. 477–479.

4. Apprehension of Offenders without Warrant. Arrests with- As to arrests without a warrant the law may be concisely out warrant,

stated :

For treason or treason felony committed in any part of the United Kingdom, the person charged, wheresoever found, there or in any other part, may be taken and detained upon probable cause of suspicion without warrant.

So, likewise, by the common law, a person who has committed a felony in any part of her Majesty's dominions abroad, or in a foreign country (whether he is a British subject or not, or whether we have an extradition treaty with such country or not), may be arrested here or in any part of her Majesty's dominions without warrant and taken before a magistrate, to

be dealt with as the law authorizes in the respective cases. -by whom As to the person who is authorized to arrest an offender, and under what circum- any person who is present when a felony is committed may at stances. once apprehend the party and take him before a magistrate,

to be dealt with according to law; in case of a private individual, however, it is his duty, if no justice can at once be found, to hand the offender over to some constable (3 Hawk. 156). But where the offence is not committed in the presence of the party, this distinction exists between the powers of a constable and private individual,—a constable may not only apprehend a party against whom a reasonable charge of felony is made by another person, although it may afterwards turn out that no felony has in fact been committed, 25 but he may apprehend a person upon his own suspicion alone of having committed a felony, though in the result it appear that no

25 Hobbs v. Branscombe, 3 Camp. 420; Daris v. Russell, 5 Bing. 354 ; Coules v. Dunbar, M. & M. 37.

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crime has been committed ; 26 but he should act with becoming caution and upon a reasonable ground of suspicion; 27 and if, after the apprehension, the constable is guilty of any unnecessary delay in taking the party before a justice, or is guilty of any excess or abuse of power, he will still be liable to an action.28 But with regard to arrests by private persons without a warrant, although they are bound to capture, if possible, a party committing a felony in their presence (see 2 Hale, c. 13, s. 5; 2 Hawk. c. 12, 8. 1; c. 13, s. 15), yet, if a man choose to apprehend another without a warrant upon suspicion alone of felony, he will do so at his peril; for should no felony in point of fact have been committed, an action will lie against him for false imprisonment, as suspicion alone is not enough to justify a private individual in making an arrest, but whether arrested legally or illegally is immaterial for the purpose of the magistrates' jurisdiction to inquire into the offence and remand the accused.29 A person may be arrested on a Sunday for any indictable offence.30

In addition to these authorities, 14 & 15 Vict. c. 19, s. 11, Arrests withcontains a general enactment, and authorizes “

any person authorized by “whatsoever to apprehend any person who shall be found particular " committing any indictable offence by night,” which means the statutes. same as in burglary, i.e., then under 7 Will. 4 & 1 Vict. c. 86, 8. 4, between 9 o'clock p.m. and 6 a.m., which is the same as now under 24 & 25 Vict. c. 96, s. 1. Various other statutes authorize constables and others to apprehend persons found committing 31 felonies and indictable misdemeanors likewise without a justice's warrant, viz. :Under the Larceny Act, 24 & 25 Vict. c. 96, s. 103, which applies

to offences under the titles Agents, Burglary, Cattle, Embezzlement, False Pretences, Fish, Fraudulent Trustees, Game, Housebreaking, Larceny, Receivers, Reward, Sacrilege, dc. :

out warrant

28 Lawrence v. Hedger, 3 Taunt. 14; Nicholson v. Hardwick, 5 C. & P. 495. See Reg. v. Tuberfield, 11 Law T., N. S. 385; and 3 Russell on Cr.. 4th ed. p. 304, note.

27 Beckwith v. Philby, 6 B. & C. 635; Moore v. Kays, 4 Taunt. 34 ; Hogg v.Ward, 27 L. J. (N. S.) Exch. 443 ; 31 Law T. 184.

28 Wright v. Court, 4 B. & C. 595; Davis v. Capper, 10 B. & C. 28 ; Colman v. Griffin, 23 J. P. 327.

29 Stonehouse v. Elliott, 6 T. R. 315; West v. Baxendale, 2 Com. B. Rep. 141; Ex parte Kaus, 1 B. & C. 258; Hall v. Booth, 3 Nev. & Man. 316; Beckwith v. Philby, 6 B. & C. 635.

30 Rawlins Y. Ellis, 16 M. & W. 172; 16 L. J. (N. S.) Exch. 5.

31 See decisions upon the words "found committing," Note 251, ante, p. 534; and see Douning v. Capel, 36 L. J. (N. S.) M. Č. 97; 16 Law T., X. S. 323.

Upier the Malicious Injuries Act, 24 & 25 Vict. c. 97, s. 61, ap

pücable to titles Arson, Cattle, Malicious Injuries, Railways,

Riots, Telegraphs, &c.:
Under the Coinage Offences Act, 24 & 25 Vict. c. 99, s. 31, appli-

cable to title Coin.
By three of the Criminal Law Consolidation Acts of 1861,
persons loitering in the night (from 9 p.m. to 6 a.m., 24 & 25
Vict. c. 96, s. 1), and suspected of having committed or being
about to commit any felony under the acts, may be taken into
custody by any constable or peace officer without warrant
(24 & 25 Vict. c. 96, s. 104; 24 & 25 Vict. c. 97, s. 57; 24 & 25
Vict. c. 100, s. 66).
Under the title Queen, discharging or aiming fire-arms at, &c.

(5 & 6 Vict. c. 51).

Under the title Smuggling, see 16 & 17 Vict. c. 107, s. 244, &c. Arrests for Many other arrests also may be made under the common law common law by a constable and others for offences in his presence which .

are misdemeanors, for instance,-affrays, prize-fighting, or riots, child-dropping, assaults, 32 and where dangerous wounds are inflicted, and generally all breaches of the peace.

5. Extradition of Criminals, i. e., Offenders surrendered to or

by Foreign States under Treaties with this Country. It may be premised that any justice, whether he be a police or stipendiary magistrate at Bow Street or elsewhere, or unpaid, may receive an information for an offence committed within his jurisdiction in England and grant a warrant for the apprehension of an accused who has fled to another country, whether the act as to extradition of criminals applies to the crime and the foreign country or not, as that act is not intended to and does not interfere with the jurisdiction of justices in this respect, (see p. 531, as to course of procedure,) nor to the hearing of the case when the accused is apprehended. But still it will be seen by the provisions of that act infra, that the jurisdiction of the ordinary justices of the peace is excluded from the principal duties connected with the extradition of criminals flying to this country-i. e., hearing the chargesand is given to the chief or police magistrate at Bow Street,

32 See Jordan v. Gibbon, 8 Law T., N. S. 391; Reg. v. Light, 27 L. J. (N. S.) M. C. 1; Bouditch v. Fosborry, 19 L. J., Exch. 339.

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c. 52.

1

London (see ss. 8, 9, 10 and 11 of 33 & 34 Vict. c. 52, pp. 921
-923), and to a stipendiary magistrate as to crimes at sea
(s. 16, p. 924). “ The Extradition Act, 1870,” 33 & 34 Vict. Extradition of
c. 52, intituled “An Act for amending the Law relating to the criminals, i.e.

offenders sur"Extradition of Criminals," passed on the 9th August, 1870, rendered to or recites that “it is expedient to amend the law relating to the by foreign

states under
“surrender to foreign states of persons accused or convicted treaties with
“ of the commission of certain crimes within the jurisdiction this country.
" of such states, and to the trial of criminals surrendered by 33 & 34 Vict.
" foreign states to this country.” By it (s. 27, supra) the
following acts in the third schedule as to the extradition of
offenders escaping from or to France, the United States of
America, and Denmark (which were then the only foreign
states with whom there were extradition conventions or
treaties in force), -

6 & 7 Vict. c. 75, as to the convention with France,
6 & 7 Vict. c. 76, as to the treaty with America, and
25 & 26 Vict. c. 76, as to the convention with Denmark,
together with 8 & 9 Vict. c. 120, and 29 & 30 Vict. c. 121,

as to procedure under these acts,
were repealed ;-and in future this act of 33 & 34 Vict. c. 52,
is to apply to any foreign state when an arrangement is made
by a treaty as to the surrender of fugitive criminals, and an
order in council is made directing the act to apply to such
foreign state (ss. 2, 3, p. 919); and as regards the foreign
states with which this country had already treaties,-i. e.,
France, America, and Denmark,—the act is, by sect. 27, to
apply as if an order in council referring to such treaties had
been made in pursuance of this act. The section 27 referred
to is as follows,-

Sect. 27. “The acts specified in the third schedule to this act are Repeal of hereby repealed as to the whole of her Majesty's dominions ;--and acts in third

schedule. this act (with the exception of anything contained in it which is inconsistent with the treaties referred to in the acts so repealed 33) Sect. 27.

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33 As to France, the 6 & 7 Vict. c. 75, recited the convention as fol. Terms of conlows:-“Whereas by a convention between her Majesty and the King of vention made the French, signed at London on the 13th day of February, 1843, the with France ratifications whereof were exchanged at London on the 13th day of March in 1843, in the same year, it was agreed, that the high contracting parties should, confirmed by on requisition made in their name through the medium of their respective 6 & 7 Vict. diplomatic agents, deliver up to justice persons who, being accused of the c. 75. crimes of murder (comprehending the crimes designated in the French Penal Code by the terms assassination, parricide, infanticide, and poisoning), or of an attempt to commit murder, or of forgery, or of fraudulent

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