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See also 16 & 17 Vict. c. 30, s. 9, in Vol. I., p. 164, as to 11 & 12 Vict. procuring a prisoner or person in gaol to be brought before justices to give evidence. 5
A person attending before a magistrate as a witness on a Witness charge of felony, after a remand, is privileged from arrest on privileged
from arrest. civil process eundo morando et redeundo, though he was not under recognizance or summons to appear. 6
FORMS. [Fide L 1–4, Nos. 44-50, Oke's “ Formulist,” 6th ed. pp. 488– 490.]
SECT. V. THE PRELIMINARY EXAMINATION AND COMMITTAL
OF ACCUSED. 1. The Court. 2. Taking the Depositions in Ordinary Cases. 3. Adjourned Examination. 4. Defence of Accused, and examining his Witnesses. 5. Examination for an Offence in another Jurisdiction. 6. Committal or Discharge of Accused. 7. Ordering Prosecution in certain Cases. 8. Returning Depositions, furnishing Copies, and Restoration
of Prisoner's Property. 9. Removal of Prisoners for Trial at the Central Criminal
Court. 10. Taking Depositions of Persons dangerously ill after Com
mittal or Bailing Accused, or where no Accused.
the 11 & 12 Vict. c. 42, and which has not been altered by that act. Two cases are referred to,-Cropper v. Horton, 4 D. & R., M. Č. 42 ; 8 D. & R. 166, and In re Hadland, 1 Dowl., N. S. 835 (referred to in 2 Burn's Justice, 29th ed. pp. 465, 466), in which it seems to have been admitted, although the proceeding failed on a point of form, that such a power existed if the question put is one upon which the witness is lawfully compelled to answer. Further, in Reg. v. Sadler, 4 C. & P. 218, it was held that a person who is present in court when called as a witness is bound to be sworn and to give his evidence in a criminal case, although he has not been subpænaed. As to privileged communications, it is laid down that the privilege not to disclose facts is strictly confined to communications made to counsel, solicitors and attorneys (see 3 Russ. on Cr., 4th ed. p. 503). Vide Form of Commitment of such a witness, Oke’s “ Formulist,” 6th ed. p. 490, No. 49.
5 It is the practice of the superior courts to require that the affidavit used on the application for the habeas referred to should state, if the fact be so, that the party whose evidence is desired is willing to be removed from his present custody to give evidence.
6 Montague v. Ilarrison, 27 L. J. (N. S.) C. P. 24; 30 Law T. 155.
1. The Court. One justice in
In all cases one justice acting alone may hear the charge all cases. and commit the accused for trial or hold him to bail. See
post, p. 964, as to course to be taken when more than one
justice hears a charge. Non-appear
If the accused does not appear on the day appointed by the ance of ac
summons (if he has been summoned and not apprehended cused.
upon or without warrant) the justice may issue a warrant for
his apprehension. See 11 & 12 Vict. c. 42, s. 9, ante, p. 894. 11 & 12 Vict. By 11 & 12 Vict. c. 42, s. 19, it is enacted,—“That the c. 42.
"room or building in which such justice or justices shall take Places where
" such examinations and statements as aforesaid 1 shall not examinations taken not an “ be deemed an open court for that purpose ;-and it shall be open court.
“ lawful for such justice or justices in his or their discretion, Sect. 19.
“ to order that no person shall have access to or be or remain “ in such room or building, without the consent or permission “ of such justice or justices, if it appear to him or them that
“ the ends of justice will be best answered by so doing.” 2 Withdrawal Although, as will be seen in Vol. I. p. 175, parties cannot of a charge when before
compromise without the justices' consent, justices have no justices. power to compel the person making a charge to proceed with
the prosecution ; yet, “if a primâ facie case is made out
against the prisoner by witnesses entitled to a reasonable “ degree of credit” (per Bayley, J., in Cox v. Coleridge, 1 B. & C. 50), they have no discretion whether or not they will commit the accused for trial.3 If the prosecutor do not offer any evidence, it is the practice of the highest criminal courts,
1 Meaning the examination of the witnesses in sect. 17 (post, pp. 945, 946), and the statement of the accused in sect. 18 (post, p. 951).
2 Under this provision, the professional advisers of the prosecutor and accused may be excluded; but s. 17, post, pp. 945, 946, speaks of the accused's counsel or attorney cross-examining the witnesses. It would seem, however, that the omission of the legislature to make an exception in favour of the legal advisers of the accused was accidental, for in the corresponding act for Ireland, passed in the following year (12 & 13 Vict. c. 68, for which the 14 & 15 Vict. c. 93, s. 9, art. 2, is now substituted) a similar clause to the above expressly reserves the right of the counsel or attorney of the accused to be present.
3 See cases in Notes 19 and 20, Vol. I. p. 175, and Rowlands v. Symonds, 14 J. P. 290, and a charge of Mr. Baron Parke in 1852, 16 J. P. 241, 242. The Act abolishing Forfeiture for Treason and Felony, 33 & 34 Vict. c. 23, s. 4, (set out in “Preliminary Observations” to Chap. II. of this Part),
apparently admits of compromises ; but see Reg. v. Lovett, 23 Law T., N. S. 95, there noticed. “The Debtors Act, 1869," 32 & 33 Vict. c. 62, s. 11, sub-ss. 13, 14, 15, admits also the payment a debt after criminal proceedings are taken, as an answer to the charges.
on some explanation being given for that course, to discharge the accused ; and it is likewise the practice of justices, under special circumstances, to permit the withdrawal of certain charges of misdemeanor, and even of felony, after some evidence has been given. But they should not be parties to any compromise of the case.
Upon this subject attention must be drawn to the 3rd rule 42 & 43 Vict. of the Rules as to prosecutions under the 42 & 43 Vict. c. 22,
C. 49, r. 3. 8. 8 (“The Prosecution of Offences Act, 1879"), which directs that
“Upon every application made by a prosecutor to withdraw from a prosecution, the clerk to the justices or to the police " court before whom the prosecution has been, in which such "application is made, shall forthwith give notice to the "Director of Public Prosecutions of such application, and of " the reasons for making it.”
2. Taking the Depositions in Ordinary Cases. The prosecutor and his witnesses with the accused party being before the justice or justices, the fairest and usual course of proceeding (if the accused has not been charged at a police station and the charge written down or he has no counsel or attorney) is, to state the charge to him from the information, summons or warrant, and then to tell him that, after each witness has been examined, he may ask him any question he thinks fit; but that he should not interrupt him while giving his evidence, and that after all the witnesses have been examined, he will be called upon to make any statement he likes. The examination of the witnesses should then be proceeded with in his presence, 4 whose statements should be taken down in the first person, and as nearly as possible in their natural language, 5 omitting all matters which are irrevelant, and not strictly evidence. It must also No objections be observed, with respect to any information or complaint, or to informa
tion, sumthe summons or warrant taken or issued, that no objections can be made to them from any defect therein, or for any
4 No formal information need be taken, or, if previously taken, again sworn to, when the defendant is before the justices, as is the practice at some benches of magistrates. See 3 Russell on Cr., 4th ed. p. 442.
5 Cohen v. Morgan, 6 D. & R. 8; Carratt v. Morley, 1 Ad. & E. (N. S.) 18.
variance between them and the evidence adduced on the part of the prosecution ; but if any variance has misled the accused, the hearing may be adjourned (see 11 & 12 Vict. c. 42, s. 8,
ante, p. 881, and sect. 9, ante, p. 895). Cases where It will be seen by 11 & 12 Vict. c. 42, s. 3, ante, p. 911, that indictment found.
where the person charged is apprehended after indictment found, and brought before a justice, no examination of the witnesses is required (that having been done before the grand jury), but merely a deposition of his identity. If the accused
be in custody, a detainer is lodged at the gaol. Admissions Admissions of facts cannot be made for an accused by his by accused.
counsel or solicitor; but if it is desirable to admit formal or other matters with a view to shorten the inquiry or save expenses, the accused may admit the fact during any stage of the examination, and such admission should be placed on the face of the depositions in the same way as voluntary observations during the examination may be made and taken down as
stated at p. 953. Order of pro
The order of the various steps in the procedure on the precedure on the liminary inquiry may be here briefly stated to be :preliminary inquiry. 1. Prosecutor's counsel or solicitor to open case :
2, Depositions of prosecutor's witnesses taken:
to put questions to the witness, such cross-examination being
chief: 4. When case for prosecution completed, depositions read over to
and signed by the witnesses : 5. In long cases, or where there have been several examinations,
it is convenient to hear the prosecutor's counsel or attorney at this stage sum up the evidence and give his reasons for the
committal of the accused on the charges alleged : 6 6. If evidence insufficient, and not calling for an answer, accused
discharged (see sect. 25, post, p. 956). 7. If evidence sufficient for an answer, solicitor of accused to
address the bench if case for prosecution completed; or if not completed and remand intended, to state his objections
to a remand : 8. If evidence incomplete, accused remanded or bailed till a future
day (ante, p. 936):
6 There is no right of reply to the prosecution (unless the bench allow it) after the accused has made his statement and called his witnesses, if any. The 28 Vict. o. 18, s. 2, does not apply to a preliminary examination before magistrates.
9. If evidence sufficient and case completed, depositions read as Order of proNo. 4, and magistrate's clerk to inform the accused of the cedure on the
preliminary precise legal charge against him: 7
inquiry. 10. Justice to caution accused as required by sect. 18 (p. 957), and
30 & 31 Vict. c. 35, 8. 3 (p. 939): 11. Accused's statement to be taken down and read over to him: 12. Accused's witnesses (if any) heard, and their depositions taken
(see pp. 958, 959): 13. If accused calls witnesses, prosecutor's solicitor to cross
examine them : 14. If case not sufficient to put accused on his trial, accused to be
discharged; if otherwise, committed or held to bail for trial
(sect. 25, post, p. 956): 15. Bailing or consenting to bail accused (see pp. 975—980): 16. Binding over prosecutor and his witnesses to prosecute and give
evidence (see p. 971), and also accused's witnesses (p. 971): 17. Granting certificate of expenses of prosecutor and his and
accused's witnesses (p. 981). The 11 & 12 Vict. c. 42, s. 17, describes the course of pro- Mode of exaceeding : it enacts,—“that in all cases where any person shall mination in " appear or be brought before any justice or justices of the indictable " peace charged with an indictable offence,—whether com
offences. "mitted in England or Wales or upon the high seas, or on
11 & 12 Vict. “ land beyond the sea, or whether such person appear volun
Sect. 17. " tarily upon summons, or have been apprehended with or “ without warrant, or be in custody for the same or any other “offence,-such justice or justices, before he or they shall com" mit such accused person to prison for trial,-or before he or " they shall admit him to bail, 8—shall, in the presence of "such accused person,-who shall be at liberty to put questions “to any witness produced against him,-take the statement “(M), on oath or affirmation, of those who shall know the facts " and circumstances of the case,—and shall put the same into
7 Vide Oke's “ Formulist,” 6th ed. pp. 514—612, for a description of all indictable offences.
8 Therefore the depositions need not be completed as required by this section when it is intended to discharge the accused ; and it may be mentioned that it is not the practice in the justice rooms of the City of London for the witnesses to sign their depositions, unless the accused is committed or bailed for trial, the evidence being in each case fully taken in the manner stated in Note 16, post, p. 950, and so preserved for future reference. These notes would be admissible in evidence in a subsequent proceeding between the same parties, and may be proved by the clerk who took them, or any one who heard the evidence given. See 3 Russell on Cr., 4th ed. pp. 489–491. The accused is not, however, entitled to a copy of them. See Note 43, Vol. I. p. 49, and Note 52, post, p. 967.