Sivut kuvina

6 & 7 Vict. c. 34.

Sect. 7.

Sect. 8.

Sect. 9.

may order the person so committed to be discharged out of custody, unless sufficient cause shall be shown to such judge or judges why such discharge ought not to be ordered.

By sect. 7, Persons apprehended if not indicted within six months, or if not convicted, may be sent back.

Sect. 8 provides for the expense of removal of offenders to the United Kingdom being paid by the treasurer of the county where offence committed by the order of the court trying the offender.

By sect. 9, Proof of the signature of the person issuing the original warrant is to be given before endorsing such warrant.

The course usually pursued in order to obtain the assistance of the authorities in the colonies where the accused is supposed to be, is similar to that adopted as respects offenders escaping to foreign states, except that the home secretary communicates with the colonial secretary instead of the foreign secretary.

Course of procedure.



11 & 12 Vict.

c. 42.

Sect. 21.
To defer

11 & 12 Vict. c. 42, s. 21, enacts,—"that, if from the ab.

sence of witnesses, or from any other reasonable cause, 1 it “shall become necessary or advisable to defer the examina" tion or further examination of the witnesses for any time, “ it shall be lawful to and for the justice or justices before “ whom the accused shall appear or be brought, 2 by his or

1 Remanding Prisoners charged with certain Crimes for Inquiry into Character.] The Home Secretary issued a general circular to the magistrates in petty sessions, after the passing of “The Habitual Criminals Act, 1869,"? 32 & 33 Vict. c. 99 (which is repealed, and “The Prevention of Crimes Act, 1871," 34 & 35 Vict. c. 112, substituted for it), in which it was stated that the operation of the act "would be facilitated by a more frequent resort on the part of magistrates to the practice of remanding, for further inquiry, persons in custody on charges of felony, and of the other offences enumerated” in that act (see now 34 & 35 Vict. c. 112, s. 20, set out at p. 951, note * of Sect. V., The Preliminary Examination,” &c.], and the circular recommended that “in any case where there is reason to believe that a person brought before them so charged is lead. ing a life of habitual crime, or that the ends of justice might be promoted by a more accurate knowledge of his previous history, a remand should take place for the purpose of affording time to procure further information."

2 The accused need not have been apprehended under process to warrant a remand, and slight evidence against him upon the charge is sufficient for that purpose; for it is generally impossible, except in the most simple case, to have ready all the evidence, or to present a prima facie case sufficient to justify a committal, on the first hearing. In important cases these preliminary investigations are necessarily prolonged

c. 42.

" their warrant (Q 1), from time to time to remand the party 11 & 12 Vict. " accused for such time as by such justice or justices in their

and remand “ discretion shall be deemed reasonable, not exceeding eight accused for " clear days, to the common gaol or house of correction, or not exceeding

eight clear "other prison, lock-up house, 3 or place of security in the

days. "county, riding, division, liberty, city, borough or place for " which such justice or justices shall then be acting ;-or if " the remand be for a time not exceeding three clear days ** it shall be lawful for such justice or justices verbally to "order the constable or other person in whose custody such " party accused may then be, or any other constable or person " to be named by the said justice or justices in that behalf, to "continue or keep such party accused in his custody, and to “ bring him before the same or such other justice or justices " as shall be there acting at the time appointed for continuing " such examination provided always, that any such justice Justices may

have accused or justices may order 4 such accused party to be brought

before expi“ before him or them, or before any other justice or justices ration of “ of the peace for the same county, &c., at any time before the remand, "expiration of the time for which such accused party shall "be so remanded, and the gaoler or officer in whose custody " he shall then be shall duly obey such order :-provided also, or bail him " that, instead of detaining the accused party in custody during detaining him

instead of ' " the period for which he shall be so remanded, any one jus- in custody ; " tice of the peace before whom such accused party shall so

appear or be brought as aforesaid may 5 discharge him upon

during several weeks, and often take up tenfold the time occupied in
trying them when so completed for trial; but the advantages both to the
accused and prosecutor are manifest in having all the evidence against
him reduced into writing, with that of the accused's witnesses, under the
Recorder's Act, 30 & 31 Vict. c. 35, 8. 3. Justices will, of course, make
these remands as short as consistent with the nature of the case and the
difficulty of bringing the evidence forward.

3 See 31 Vict. c. 22, as to lock-up houses, &c., Vol. I. p. 64.
4 Vide Form of Order, Oke's Formulist,” 6th ed. p. 487, No. 40.

5 By the terms of this enactment it is in the justice's absolute discretion in every case whether he will allow the accused to go on bail during an adjournment of the hearing. It is otherwise when the justice has completed the examination and committed for trial, for then (as will be seen by s. 23, post), the accused is in certain cases of misdemeanor entitled to be admitted bail, but in felonies and certain other misdemeanors he is not so entitled. While an inquiry is pending before a justice, or an accused is in gaol under remand, a judge of a superior court cannot interfere with that discretion by ordering the accused to be adInitted to bail, like he may do after committal in any case. As a general rule it may be said, that in practice it is not usual on a remand (especially

0.s. VOL. II.

3 P

c. 42.


11 & 12 Vict. “ his entering into a recognizance (Q 2, 3), with or without a

) “surety or sureties, at the discretion of such justice, condi

“ tioned for his appearance at the time and place appointed on non-ap- " for the continuance of such examination;6_and if such pearance recognizance

accused party shall not afterwards appear at the time and forfeited. “place mentioned in such recognizance, then the said justice, Recogni- “ or any other justice of the peace who may then and there zances to be estreated.

“ be present, upon certifying (Q 4) on the back of the recog“ nizance the nonappearance of such accused party, may trans“ mit such recognizance to the clerk of the peace of the county, “ &c., within which such recognizance shall have been taken, “ to be proceeded upon in like manner as other recognizances "—and such certificate shall be deemed sufficient primâ facie

“ evidence of such nonappearance of the said accused party.”7 Remand or It will be seen by the proviso to sect. 9, ante, p. 895, that bail in other

if any variance between the summons or warrant and the evidence adduced shall appear to the justices to have deceived or misled the accused, the justices may, at his request, adjourn

the hearing, and remand the accused, or admit him to bail. Witnesses It is the practice in some districts to bind over by recogbound over nizance the witnesses in attendance on the first examination to to appear.

appear on the remand day; but, as there is no authority to do so, their recognizances could not be estreated should they not

appear, and they should be summoned. Accused not The accused not being entitled to a copy of the depositions entitled to copies of de- until the case is completed (see 11 & 12 Vict. c. 42, s. 27, post, positions on p. 967), he cannot demand a copy upon a remand for reremand or dismissal,

where the precise nature or extent of the charge is undeveloped) for magistrates to admit to bail in those cases in which an accused is not entitled to be bailed after committal (unless the amount of property involved is very small) : in other cases it is.

6 It is the practice where the accused is bailed, to extend, when desired, the further examination beyond the eight days mentioned in the first part of this section. Where many adjournments become necessary, the sureties must attend on each occasion personally with, of course, the accused, and the recognizance be entered into like on the first occasion, as it cannot be taken for the appearance of the accused “from time to time" so long as the case is before the justices. The recognizance is usually put in the form stated in Note 4, Vol. I. p. 159. The caution to be given by the justice to the accused, as required by sect. 18, post, p, 957, must not be given at the time of the remand, but " after the examination of all the witnesses on the part of the prosecution" is completed.

Ting The justices before whom the accused should have appeared may also issue their warrant for his appearance, as if no previous hearing of the case had taken place (ante, pp. 896, 897). As to estreating the recog. nizance, see Note 10, Vol. I. p. 161.

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examination ; 8 nor is he entitled to them where the charge 11 & 12 Vict. is dismissed.9

C. 42.

FORMS. [Vide Q 1, 2, 3, 4, Nos. 39, 41–44, Oke's "Formulist,” 6th ed. Pp. 470_472.]

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SECT. IV. COMPELLING WITNESSES' ATTENDANCE, &c. By 11 & 12 Vict. c. 42, s. 16, it is enacted,—"that if it shall Summons to be made to appear to any justice of the peace, by the oath

a witness.

Sect. 16. or affirmation of



any person within " the jurisdiction 1 of such justice is likely to give material "evidence for the prosecution,2 and will not voluntarily ap

pear for the purpose of being examined as a witness at the “time and place appointed for the examination of the wit

nesses against the accused, such justice may and is hereby required to issue his summons (L. 1) to such person, under " his hand and seal, requiring him to be and appear at a time " and place mentioned in such summons before the said "justice, or before such other justice or justices of the peace " for the same county, riding, division, liberty, city, borough " or place as shall then be there, to testify what he shall " know concerning the charge made against such accused

party ;-and if any person so summoned shall neglect or "refuse to appear at the time and place appointed by the " said summons, and no just excuse shall be offered for such How sum" neglect or refusal, then after proof upon oath or affirmation mons served. " of such summons having been served upon such person, " either personally or by leaving the same for him with some

8 Reg. v. Lord Mayor of London, 5 Q. B. 555; Ex parte Fletcher, 13 L. J. N. S.) M. C. 67. 9 Ex parté Humphreys, 19 L. J. (N. S.) M. C. 189; 15 Law T. 142.

1 The observations on 11 & 12 Vict. c. 43, s. 7, Note 1, Vol. I. p. 165, will apply here also, but justices have jurisdiction in these criminal matters under a greater variety of circumstances than in summary convictions (ride Vol. I. pp. !2—25, paragraphs Nos. 10—26); and therefore in these cases it is submitted the jurisdiction to summon is not confined to the place where the offence was actually committed.

2 In practice summonses to witnesses for the accused have also been issped ; and this is now expressly provided for by 30 & 31 Vict. c. 35, s. 4, which applies these provisions of 11 & 12 Vict. c. 42,"relating to the summoning and enforcing the attendance and committal of witnesses, to witnesses called by an accused on the preliminary examination.

11 & 12 Vict.

c. 42.

Sect. 16. Warrant on disobedience of summons ;


or warrant in the first instance.

Witnesses refusing to be examined, &c. may be committed.

person at his last or most usual place of abode, 3 it shall be “ lawful for the justice or justices before whom such person “shall have appeared to issue a warrant (L 2), under his or “ their hands and seals, to bring and have such person at a “ time and place to be therein mentioned before the justice “ who issued the said summons, or before such other justice

or justices of the peace for the same county, &c. as shall " then be there to testify as aforesaid, and which said warrant "may, if necessary, be backed as hereinbefore is mentioned “ (sect. 11, ante, p. 897), in order to its being executed out of “the jurisdiction of the justice who shall have issued the “same ;-or if such justice shall be satisfied by evidence upon " oath or affirmation that it is probable that such person will " not attend to give evidence without being compelled so to “ do, then, instead of issuing such summons, it shall be lawful for him to issueh is warrant (L. 3) in the first instance, and “ which, if necessary, may be backed as aforesaid ;—and if

the appearance of such person so summoned before the “ said last-mentioned justice or justices,-either in obedience “ to the said summons or upon being brought before him or " them by virtue of the said warrant,—such person shall " refuse to be examined upon oath or affirmation concerning “ the premises,—or shall refuse to take such oath or affirma“tion,-or, having taken such oath or affirmation, shall refuse “ to answer such questions concerning the premises as shall " then be put to him, without offering any just excuse for " such refusal, -any justice of the peace then present, and “having there jurisdiction, may by warrant (L 4), under his “ hand and seal, commit the person so refusing to the common gaol or house of correction for the county, &c., where "such person so refusing shall then be, there to remain and “ be imprisoned for any time not exceeding seven days, unless " he shall in the meantime consent to be examined and to "answer concerning the premises." 4


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3 A witness cannot refuse to attend, upon being served with a summons or subpæna, until his expenses are paid (R. v. James, 1 C. & P. 322); for a tender of his expenses is not necessary in indictable cases, as in summary convictions, Vol. I. p. 162.

4 Apparently a witness cannot be committed under this section unless he appears on a summons or a warrant; but it is submitted that, independently of this enactment, justices possess full power to commit a refractory witness who refuses to answer a material question put to him on the preliminary examination of an accused charged with any indictable offence. That appears to have been the view taken by various text writers prior to

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