If, when all the evidence against the accused has Discharge. been heard, the magistrate does not think that it is sufficient to put the accused on his trial for an indictable offence, he is forthwith discharged. But if he Committal thinks otherwise, or the evidence raises a strong or for trial. probable presumption against the accused, he commits him for trial, either at once sending him to gaol so as to be forthcoming for trial, or admitting him to bail (u). Under certain circumstances a third course is open to the magistrate; he may dispose of the case and punish the offender himself (v). It will be noticed that there are two forms of com- The accused committed mitment to prison: (a) for safe custody; (b) in execu- for trial. tion, either as an original punishment, or as a means of enforcing payment of a pecuniary fine, or of enforcing obedience to the sentence or order of a magistrate or the sessions. The warrant of commitment under the hand and seal of the committing magistrate, directed to the gaoler, contains a concise statement of the cause of commitment. By the Habeas Corpus Act (w) the gaoler is required, under heavy penalties, to deliver to the prisoner, or other person on his behalf, a copy of the warrant of commitment or detainer within six hours after demand. The imprisonment of which we Imprisonment pending trial. are now speaking is merely for safe custody and not for punishment; therefore, those imprisoned are treated with much less rigour than those who have been convicted. Thus, they may have sent to them food, clothing, &c., subject to examination and the rules made by the visiting magistrates. They have the option of employment, but are not compelled to perform any hard labour; and if they choose to be employed, and are acquitted, or no bill is found against them, an allowance is paid for the work (x). Bail. In what cases a magistrate may bail. Principles guiding magistrates, when Bail. This admitting to bail consists in the delivery (or bailment) of a person to his sureties, on their giving security (he also entering into his own recognizances) for his appearance at the time and place of trial, there to surrender and take his trial. In the meantime, he is allowed to be at large; being supposed to remain in their friendly custody. We shall, in the first place, treat of the law of bail by the magistrate, and then of bail by the Queen's Bench Division and other exceptional cases. In what cases may, and in what cases may not a magistrate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a secretary of state, or by the Queen's Bench Division, or a judge thereof in vacation. If the prisoner is charged with some other felony, or one of the misdemeanors enumerated below, the magistrate may, in his discretion, but is not obliged to, admit to bail. These misdemeanors are:-Obtaining, or attempting to obtain, property by false pretences; receiving property stolen or obtained by false pretences; perjury or subornation of perjury; concealing the birth of a child by secret burying or otherwise; wilful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a peace officer in the execution of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misdemeanor for the prosecution of which the costs may be allowed out of the county rate. In other misdemeanors it is imperative on the magistrate to admit to bail (y). In cases where, in the exercise of their discretion, the magistrates have the power of admitting to bail or exercise their refusing it, the principle which is to guide them is the they may discretion as to bail. (y) s. 23. probability of the accused appearing to take his trial, and not his supposed guilt or innocence (z). Though this latter point may be one element to be considered in applying the test. Thus it has been laid down that the points which the court will consider in exercising their discretion include the seriousness of the charge, the evidence in support of it, and the punishment which the law awards for the offence (a). Practically, in charges of murder, bail is never allowed. And when a bill has been found against the accused, naturally more caution will be exercised. Who may be bail? The magistrate (or court, V. The sureties. infra) will act according to his discretion as to the sufficiency of the bail. The proposed bail may be examined upon oath as to their means, though in criminal cases no justification of bail is required. A married woman, an infant, or a prisoner in custody, cannot be bail; nor can a person who has been convicted of an infamous crime, as perjury (b). The usual number of bail is two; but sometimes only one is required, and sometimes three or more. The sureties or bail are not compelled to act as such for a longer time than they wish. If they surrender the accused before the magistrate or court by whom he has been bailed, he will be committed to prison, and they will be discharged of their obligation. But the accused may then find fresh sureties. Both at common law and by statute (c), to refuse or Refusing or delay to bail any person bailable is a misdemeanor in delaying bail. the magistrate. But it has been held that the duty of a magistrate in respect of admitting to bail is a (z) R. v. Scaife, 5 Jur. 700. (a) In re Baronet, 22 L. J. (M.C.) 25; In re Robinson, 23 L. J. (Q.B.) 286. See also R. v. Stephen Butler, 14 Cox, 530. (b) v. R. v. Edwards, 4 T. R. 440. (c) 3 Edw. 1, c. 15; 31 Car. 2, c. 2 (Habeas Corpus); 1 Wm. & M. st. 2, c. 1 (Bill of Rights). judicial duty; and therefore that not even an action can be maintained against him for refusing to admit to bail, where the matter is one as to which he may exercise his discretion (d). It is provided by the Bill of Rights Excessive bail. that excessive bail ought not to be required; though what is excessive must be left to be determined by the court in considering the circumstances of the case. If the magistrate or other authority admits to bail where this is not allowable, or if he takes insufficient bail, he is liable to punishment on the non-appearance of the accused (e). Bail after committal for trial. Bail by The stage in the proceedings where the question of bail usually arises is when the accused is before the magistrates. But when a person charged with an indictable offence has been committed to prison to await his trial, it is lawful at any time afterwards, before the first day of the sessions or assizes at which he is to be tried, for the magistrate who signed the warrant for his commitment to admit him to bail (ƒ). As to bail in other cases than in proceedings before the magistrates: The Queen's Bench Division, or, in vacation time, a judge thereof (g), has a discretionary power of admitting to bail a prisoner charged with any indictable offence, or on suspicion thereof; and this whether he is brought before the court by a writ of habeas corpus or otherwise. The decision of a Divisional Court on a question of bail is a judgment of the High Court in a criminal matter, and there is no appeal to the Court of Appeal (h). It may bail as well in cases where bail has been refused (d) Linford v. Fitzroy, 18 L. J. (M.C.) 108; R. v. Badger, 12 L. J. (M.C.) 66. (e) Hale's Sum. 97. (f) 11 & 12 Vict. c. 42, s. 23. (g) 1 & 2 Vict. c. 45. (h) R. v. Foote, 10 Q. B. D. 378; 48 L. T. N. S. 394. by the magistrate, as when the charge has been originally brought before the Division. It may order the accused to be admitted to bail before a magistrate when it is inconvenient to bring him and his bail up to town. cial officers. It seems to be a good general rule that so far as any Bail by judipersons are judges of any crime, so far they have the power of bailing a person indicted before them of such crime (i); so that : Justices in Sessions may bail persons indicted at the sessions. Judges of Gaol Delivery, &c., may bail those indicted at the assizes or Central Criminal Court when they are sitting. If one accused of treason or felony is not tried at the first sessions of gaol delivery after commitment, he may demand to be released or bailed, unless it appears on oath that the witnesses for the prosecution could not be present at those sessions. If he is not tried at the second sessions, he must be discharged from imprisonment (j). Coroners are authorized to admit to bail persons charged with manslaughter by verdict of the coroner's jury (k). may have It may be noticed here that at any time between The accused the conclusion of the examination before the magistrate copies of the and the first day of the trial at the assizes or sessions, depositions. the accused, whether held to bail or committed to prison for trial, may have on demand copies of the examination of the witnesses upon whose depositions he has been so held to bail or committed, on payment of a (i) 2 Hawk. c. 15. s. 54. (j) 31 Car. 2, c. 2, s. 7. (k) 22 Vict. c. 33, s. 1. As to personating bail, v. p. 248. |