Form of warrant Proceedings generally regulated by Jervis' Act In general no limitation of time for taking proceedings Warrant or summons for attendance of accused What justices have jurisdiction Statements by accused Justices cautioning accused where offence not committed Arresting criminals in a foreign country Compelling attendance of witnesses before justices Accused entitled to copies of depositions When offence committed in a county or place where justices have not jurisdiction Expenses of witness's attendance before justices REMARKS BY CRIMINAL CODE COMMISSIONERS. sioners. 49 Before making any observations as to the proceedings CH. XIII. before justices, it may be as well to notice the following re- Remarks marks made by the Criminal Code Commissioners at p. 32 of by Crimitheir report :-" A crime having been committed, there are nal Code at present four entirely different modes of proceeding against Commisthe accused person. He may be taken before a magistrate and committed for trial; he may, except in a few cases, be indicted by a grand jury, without being so committed; he may, in the case of homicide be committed and tried upon a coroner's inquisition; and in cases of misdemeanor, he may be put upon his trial by a criminal information, filed either by the Attorney-General, ex officio, or, if the Queen's Bench Division so orders, by the Master of the Crown Office, at the instance of a private person injured. According to the ancient theory of the law, from which it still derives its form, the course is this The Queen, from time to time, sends commissioners through the country to hear and determine all accusations of crime, and to deliver the gaols. The grand juries of the different counties accuse, by way of presentment certain persons as offenders, and the accusations are referred to a petty jury, by whom they are disposed of. The common practice is different. Suspected persons are brought before a justice of the peace by the police or by private complainants. The magistrate takes the depositions of witnesses, and either discharges the prisoner or commits him for trial. The accusation is put in the form of an indictment and laid before the grand jury, who, having heard the evidence, determine whether the accused is to be put on his trial or not. The grand jury are still, however, in theory, the sole accusers; but inasmuch as they have long ceased to report matters within their own knowledge and have come to act upon information supplied by others, anyone can send up a bill before them, accusing any person of any offence whatever, with certain specified exceptions. The proceeding upon coroner's inquisition is a relic of times preceding the appointment of justices of the peace. The coroner and his jury at that time had a power of accusation concurrent with that of the grand jury, much as if a suspected person could, in the present day, be put on his trial upon the magistrate's committal, without any bill being found by the grand jury. As to criminal informations, they form a mode of proceeding adopted in peculiar cases, and call for no observation here. In all common cases we think that of these modes of prosecution, that of initiating the charge before a magistrate, is by far the fairest and most satisfactory in every way. It D PART IV. gives suspected persons full notice of the case against them, and it enables the judge and jury, who finally dispose of the prosecution to discharge their duties with confidence that the whole matter has been properly prepared for their decision. It is, moreover, the mode in common use. All the others have become exceptional, and we think that, being the common course, it ought to be made imperative in all cases. We doubt whether the existence of the power to send up a bill before a grand jury without a preliminary inquiry before a magistrate, the extent of this power, and the facilities which it gives for abuse, are generally known. It is not improbable that many lawyers, and most persons who are not lawyers, would be surprised to hear that theoretically there is nothing to prevent such a transaction as this :-Any person might go before a grand jury without giving any notice of his intention to do so. He might there produce witnesses, who would be examined in secret, and of whose evidence no record would be kept, to swear, without a particle of foundation for the charge, that some named person had committed some atrocious crime. If the evidence appeared to raise a primâ facie case, the grand jury, who cannot adjourn their inquiries, who have not the accused person before them, who have no means of testing in any way the evidence produced, would probably find the bill. The prosecutor would be entitled to a certificate from the officer of the court that the indictment had been found. Upon this he would be entitled to get a warrant for the arrest of the person indicted who upon proof of his identity, must be committed to prison till the next assizes. The person so committed would not be entitled as of right to bail, if his alleged offence were felony. Even if he were bailed he would have no means of discovering upon what evidence he was charged, and no other information as to his alleged offence than he could get from the warrant, as he would not be entitled by law to see the indictment or, even to hear it read, till he was called upon to plead. He would have no legal means of obtaining the least information as to the nature of the evidence to be given, or (except in cases of treason) even as to the names of the witnesses to be called against him, and he might thus be tried for his life, without having the smallest chance of preparing for his defence, or the least information as to the character of the charge. Of course in practice the conviction of an innocent man under such circumstances would be practically impossible. The judge would postpone the trial, the jury would acquit the prisoner, the prosecutor would probably be subjected to exemplary damages in an action for malicious prosecution, CH. XIII. but it still remains that such is the law, though it could not be put in force without shocking the feelings of the whole community. That such, however, is the law, subject only to certain exceptions hereinafter mentioned, there can be no doubt, although the law is theoretically the same in Ireland, a salutary practice has prevailed there, whereby if the accused has not been committed for trial, a private prosecutor is not permitted to lay an indictment before a grand jury without the leave of the presiding judge obtained in open court. The exceptions we have referred to are constituted by the statutes which provide that it shall not be lawful to present an indictment against any person for perjury, subornation of perjury, conspiracy, obtaining property by false pretences, keeping a gambling house, keeping a disorderly house, or any indecent assault, or certain offences under the Debtors Act, 1869, unless the prosecutor has been bound over to prosecute or give evidence, or unless the accused person has been committed to or detained in custody, or is bound by recognizance to appear to answer to the indictment, or unless the indictment is preferred with leave of the court or of a judge or the Attorney-General, as in these statutes mentioned. So far as it goes, this legislation appears to us wise and sound. On the one hand, it secures to the person accused the fullest possible notice of the nature of the charge against him, and of the evidence on which it is to be supported; on the other, it does not invest the magistrate with an absolute veto on a prosecution. It enables the prosecutor, if he thinks proper, to take the opinion of a grand jury as to whether the accused person should or should not be put upon his trial. It is, however, impossible to defend on any principle which occurs to us, the narrow range of the provisions. Why are indecent assaults included and other charges of indecency, most easily made, most hard to refute, and commonly employed as the engines of extortion, excluded? On what possible ground can it be right that a man should be at liberty to accuse another of murder, piracy, or arson, without giving him notice of the nature of the charge against him, whilst he is obliged to give notice if he charges him with perjury or conspiracy? It is obvious that this legislation. was partial and tentative." In all cases proceed It is usual in cases of felony, and in most cases of mis- Usual demeanor, to take proceedings before justices as presently course of mentioned before preferring an indictment. except where otherwise provided by statute, an indictment may be preferred for an indictable offence at the court ing. PART IV. having jurisdiction without previous investigation before When justices. By 22 & 23 Vict. c. 17, entitled "An Act to Prevent necessary Vexatious Indictments for Certain Misdemeanors,” s. 1, no to go before a bill of indictment for any of the following offences, viz :justice before pre ferring an indictment. Perjury; subornation of perjury; conspiracy; obtaining money or other property by false pretences (R. v. Burton, 13 Cox C. C. 71); keeping a gambling house; keeping a disorderly house; and any indecent assault (a); can be presented to or found by a grand jury, unless the prosecutor or other person presenting the indictment has been bound by recognizance to prosecute or give evidence against the accused, or unless he has been committed to or detained in custody, or has been bound by recognizance to appear to answer to an indictment to be preferred against him for such offence, or unless such indictment for such offence, if charged to have been committed in England, be preferred by the direction or with the consent, in writing, of a judge of the Q.B. division of the High Court of Justice, or of Her Majesty's AttorneyGeneral or Solicitor-General for England, or (in the case of an indictment for perjury), by the direction of any court, judge, or public functionary authorised by 14 & 15 Vict. c. 100, to direct a prosecution for perjury. (R. v. Heane, 33 L. J. M. C. 115; R. v. Bray, 32 L. J. M. C, 11; 3 B. & S. 255.) By sect. 2 of 22 & 23 Vict. c. 17, where any charge or complaint is made before one or more justices of the peace, that any person has committed any of the offences aforesaid within the jurisdiction of such justice, and he refuses to commit or to bail the accused to be tried for the same, then in case the prosecutor desires to prefer an indictment respecting the said offence, the said justice, must take the recognizance of such prosecutor to prosecute the said charge or complaint, and transmit such recognizance, information, and depositions, if any, to the court in which such indictment ought to be preferred, in the same manner as such justice would have done (a) By 32 & 33 Vict. c. 62 (The Debtors Act, 1869), s. 18, every misdemeanor under the second part of this Act shall be deemed to be an offence within and subject to the above Act, 22 & 23 Vict. c. 17; and when any person is charged with any such offence before any justice, he must take into consideration any evidence adduced before him tending to show that the act charged was not committed with a guilty intent. By the Newspaper Libel and Registration Act, 1881, 44 & 45 Vict. c. 60, s. 60, every libel or alleged libel, and every offence under this Act shall be deemed to be an offence within and subject to the provisions of 22 & 23 Vict. c. 17 |