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Principles to consider that the probability is, that the accused would sooner guide justices in deciding as
that he and his bail should forfeit a sum of money than run to accepting the risk of trial and conviction and the sentence likely to bail.
follow, they should refuse bail, as it is the practice of the judges to do so in such cases. If the decision is to admit the accused to bail, it should be observed, that there should be one surety at the least, although on a remand the accused's own recognizance (if the justice consents to bail being given) is sufficient (see s. 21, ante, pp. 936, 937). The amount of the recognizance is in the justice's discretion entirely, and should depend upon the nature of the offence and the position of the parties. A magistrate, however, must not, in a case where he is bound by law to bail, require excessive bail, as, in effect, to amount to a denial of bail, as it is a misdemeanor to do so, for which an action will lie at the suit of the person wrongfully imprisoned, or an indictment may be preferred.1 For the purpose of determining the ability of the persons tendered (whose names the justice may require to be given to the prosecutor some time previously, say twenty-four or forty-eight hours 2), the justice may administer to them an oath “ to make “ true answer to all such questions as may be demanded of “them," and asking them the usual questions as to their means, property and liabilities, whether or not they have been bankrupt or insolvent, or are surety for another; but the justice ought not to interfere in any way to dissuade them from becoming bound as bail (Reg. v. Saunders, 2 Cox, C. C. 249); nor can he legally inquire into the personal character or political opinions of the persons offered as bail, for his duty is confined to an inquiry into the sufficiency of their property to meet their recognizances (R. v. Badger, supra, Note 1). In a more recent case (R. v. Broome, 18 Law T. 19), before Martin, B., at chambers, that learned judge is reported to have stated his opinion to be, that if the justice is satisfied of the solvency of the persons tendered as bail, he is not justified in rejecting them on account of any alleged objections to their moral character, and from the fact of their being indemnified by the defendant. If either of the bail be not a
1 Reg. v. Badger, 12 L. J. (N. S.) M. C. 66; 4 Ad. & E. 468; Reg. v. Tracey, 15 L. J. (N. S.) M. C. 145.
2 The requirement may be added to the certificate of consent to bail, S 3, or S 4 in the schedule to 11 & 12 Vict. c. 42, as shown in Form No. 57, p. 494, Oke's “ Formulist,” 6th ed., indorsed on the warrant of coinmitment; Notice of bail, Id. p. 487, No. 78.
housekeeper, or appear not to be worth the sum for which he comes to be bail, both may be rejected; but if they both appear to be responsible persons and housekeepers, the recognizance is taken. Should the justice decline to take bail, the accused may apply to the High Court of Justice or to a judge at chambers, to be admitted to bail.
The 11 & 12 Vict. c. 42, s. 23, before referred to as govern- 11 & 12 Vict. ing the subject of bail, enacts,—" that where any person shall c. 42.
Sect. 23. appear or be brought before a justice of the peace charged
Examining “ with any felony,
magistrate “ Or with any assault with intent to commit a felony,—or may, admit to
bail in felonies " with’any attempt to commit any felony,—or with obtaining and certain
or attempting to obtain property by false pretences,-or misde“with a misdemeanor in receiving property stolen obtained “by false pretences,-or with perjury or subornation of per“jury ;-or with concealing the birth of a child by secret “ burying, or otherwise,--or with wilful or indecent exposure “ of the person,-or with riot,-or with assault in pursuance “ of a conspiracy to raise wages,-or assault upon a police
officer in the execution of his duty,—or upon any person " acting in his aid, -or with neglect or breach of duty as a "peace officer,-or with any misdemeanor for the prosecution " of which the costs may be allowed out of the county rate,3
“Such justice of the peace may, in his discretion, admit “ such person to bail, upon his procuring and producing such “ surety or sureties as in the opinion of such justice will be " sufficient to ensure the appearance of such accused person
at “ the time and place when and where he is to be tried for such “offence ;—and thereupon such justice shall take the recogni
zance (S 1, 2) of the said accused person and his surety or sureties, conditioned for the appearance of such accused
person at the time and place of trial, and that he will then “ surrender and take his trial, and not depart the court without " leave;
“ And in all cases where a person charged with any in- Or after com. “ dictable offence shall be committed to prison to take his trial mittal, “ for the same, it shall be lawful at any time afterwards, and " before the first day of the sitting or session at which he is to “ be tried, or before the day to which such sitting or session
3 For which see 14 & 15 Vict. c. 55, ss. 1, 2, post, pp. 984, 985, which extend the provisions of the 7 Geo. 4, c. 64, to many other misdemeanors.
11 & 12 Vict. “ may be adjourned, for the justice or justices of the peace
“who shall have signed the warrant for his commitment in his Sect. 23.
or their discretion to admit such accused person to bail in to grant certificate of con
manner as aforesaid ; sent to bail, “Or if such committing justice or justices shall be of opinion
" that for any of the offences hereinbefore mentioned the said “accused person ought to be admitted to bail, he or they shall “ in such cases and in all other cases of misdemeanors certify
(S 3) on the back of the warrant of commitment his or their
consent to such accused party being bailed, stating also the "amount of bail which ought to be required, it shall be lawful " for any justice of the peace attending or being at the gaol “ or prison where such accused party shall be in custody, on
production of such certificate, to admit such accused person
" to bail in manner aforesaid; and bail taken “ Or if it shall be inconvenient for the surety or sureties in at gaol.
“such a case to attend at such gaol or prison, to join with “such accused person in the recognizance of bail, then such “ committing justice or justices may make a duplicate of such “ certificate ($ 4) as aforesaid, and upon the same being pro“ duced to any justice of the peace for the same county, riding, “division, liberty, city, borough or place, it shall be lawful “ for such last-mentioned justice to take the recognizance of “the surety or sureties in conformity with such certificate, and “upon such recognizance being transmitted 4 to the keeper of "such gaol or prison, and produced, together with the certifi“ cate on the warrant of commitment as aforesaid, to any jus“ tice of the peace attending or being at such gaol or prison, " it shall be lawful for such last-mentioned justice thereupon “ to take the recognizance of such accused party, and to order “him to be discharged out of custody as to that commitment,
" as hereinafter mentioned; Bail in
“And where any person shall be charged before any justice other mis. demeanors.
“ of the peace with any indictable misdemeanor other than " those herein before mentioned, such justice, after taking the “examinations in writing as aforesaid, instead of committing “ him to prison for such offence, shall admit him to bail in
manner aforesaid, -or if he have been committed to prison,
4 Instead of the parchment recognizance being transmitted, the war. rant of deliverance (s 5) may be altered so as that it may be conditional on the accused entering into his own recognizance. Vide Form No. 76, p. 602, of Oke's “ Formulist," 6th ed.
“and shall apply to any one of the visiting justices of such 11 & 12 Vict. “ prison, or to any other justice of the peace for the said
Sect. 23. “ county, riding, division, liberty, city, borough or place, “ before the first day of the sitting or session at which he " is to be tried, or before the day at which such sitting or "session may be adjourned, to be admitted to bail, such jus“ tice shall accordingly admit him to bail in manner afore" said ;
“And in all cases where such accused person in custody “shall be admitted to bail by a justice of the peace other than “the committing justice or justices as aforesaid, such justice “ of the peace so admitting him to bail shall forthwith trans“ mit the recognizance or recognizances of bail to the com“ mitting justice or justices or one of them, to be by him or " them transmitted, with the examinations, to the proper “officer;
“Provided nevertheless, that no justice or justices of the No bail to “ peace shall admit any person to bail for treason, nor shall be taken in
treason. " such person be admitted to bail, except by order of one of “her Majesty's secretaries of state, or by her Majesty's Court “ of Queen's Bench at Westminster, or a judge thereof in “ vacation." 5
The above enactments may be thus analyzed :1. It is discretionary with the committing magistrate at any time Analysis of before the trial to admit to bail in any case of felony, and in enactments as
to bailing. the first specified misdemeanors; and to certify his consent
to bail being taken by another justice : 2. In other misdemeanors than those specified he must take bail,
if tendered and sufficient; and if the accused is committed
he must certify his consent to bail:
tify his consent, where such consent is optional (as in case 1),
take those of the accused, and his sureties also, if convenient: 4. If the accused committed for any of the misdemeanors not
specified (as in 2), a visiting justice of the prison,--or any
justice of the same county, &c.,—may admit him to bail: 5. The committing justice, at any time after committal, may take
5 A proviso to this section contained the practice relative to traverses, where the defendant was entitled thereto, as well as a form of recognizance; but traverses were abolished by 14 & 15 Vict. c. 100, s. 27, and therefore that proviso has been omitted here.
11 & 12 Vict. bail for any offence either at the gaol, or the sureties for the c. 42.
accused elsewhere, and certify that fact, upon which the
accused's recognizance may be taken by the visiting justice : 6. Justices are not to admit to bail for treason,-and under no
circumstances do they upon a charge of murder: 7. There should be at least one surety, the accused's recognizance
alone not being sufficient, as on a remand (ante, p. 937); but
it is usual to require two sureties: Amount of 8. The amount of the recognizances is discretionary with the bail.
justices certifying, or (where not certified) with the justice taking the bail; but the recognizance of the accused himself
is usually in a sum double that of one of the sureties. [The cases in which it is discretionary to take bail, and where compulsory, are shown in the fifth column of Chap
ter II., post, under each offence.] When bail By sect. 24,—“In all cases where a justice or justices of the taken after committal,
shall admit to bail any person, who shall then be in
peace warrant of any prison, charged with the offence for which he shall be deliverance to ( be lodged.
so admitted to bail, such justice or justices shall send to or
cause to be lodged with the keeper of such prison a warrant Sect. 24.
“ of deliverance (8 5) under his or their hand and seal or “ hands and seals, requiring the said keeper to discharge the “ person so admitted to bail, if he be detained for no other “ offence ;—and upon such warrant of deliverance being de“livered to or lodged with such keeper, he shall forth with
“ obey the same." Surrender of It is laid down in 1 Hale's Sum. 96; also 2 Hawk. c. 15, accused by
s. 3, pp. 138, 139, 8th edit. by Curwood, that bail is a custody, his bail.
and therefore the bail may retake the prisoner, if they doubt he will fly, and detain him, and bring him before a justice; and the justice ought to commit the prisoner in discharge of the bail, or put him to find new sureties ;-or the bail may make a complaint before a justice, and obtain a warrant for the accused's apprehension; but this is not indispensably requisite, though it may prevent any breach of the peace. 6
FORMS. [Vide S 1, 2, 3, 4, 5, Nos. 71–76, Oke's "Formulist," 6th ed. pp. 501, 502.]
6 Vide Forms of Complaint, Warrant and Commitment, Nos. 80–83, pp. 504, 505, Oke's “ Formulist," 6th ed.