« EdellinenJatka »
** end of the sessions of oyer and terminer or gaol delivery or 11 & 12 Vict.
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
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,
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.
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. :
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.:
cable to title Coin.
(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.
London (see ss. 8, 9, 10 and 11 of 33 & 34 Vict. c. 52, pp. 921
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
6 & 7 Vict. c. 75, as to the convention with France,
as to procedure under these acts,
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.
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