Page images

and, if the summons be disobeyed, he may then issue a warrant to apprehend him, and bring him before the court: or, if the justice think fit, he may,–in the case of an information, and provided it be supported by the oath of the prosecutor (k),—cause a warrant instead of a summons to be issued in the first instance (?). By the general rule, however, and subject to exception in any particular case where a different limitation as to time is provided by Act of Parliament, every such information or complaint must be laid or made within six calendar months from the time when the matter arose (m).

A summons may also be issued by the justice to compel the attendance of witnesses for the prosecutor, complainant, or defendant, as the case may be; and if the summons be disobeyed, the justice may issue his warrant for the same purpose; or, if satisfied by evidence upon oath that the witness will not attend, may issue such warrant in the first instance (n).

The hearing is to take place before one justice, or two or more, as may be directed in the Act of Parliament relating to the particular offence: or, where there is no direction, then before any one justice of the county or place where the matter has arisen ; and the room where it takes place is to be deemed an open court, to which the public are to have access; and the prosecutor or complainant is to be allowed to conduct his case, and to examine and cross-examine the witnesses, by his counsel or attorney; and the like privilege is to be allowed to the defendant(o).

under this Act, is given in a schedule thereto.

(k) In proceedings before magistrates, (as well as in other cases,) an affirmation, in lieu of oath, will suffice in the case of Quakers, Moravians or Separatists; and (with respect to the witnesses) will also suffice in the case of any persons

unwilling to be sworn from conscientious scruples.

(1) 11 & 12 Vict. c. 43, ss. 2, 3, &c.

(m) Sect. 11.
(n) Sect. 7.

(0) Sect. 12. See 18 & 19 Vict. c. 126, s. 4.

The hearing commences by a statement being made to the defendant of the substance of the information or complaint; and he may then show cause, if he can, why he should not be convicted or an order made (p); but if he do not admit the truth of what is charged, the court is to proceed to hear the prosecutor or complainant, or his witnesses; and afterwards the defendant and his witnesses ; and also to hear such witnesses as the prosecutor or complainant may examine in reply, if the defendant shall have given any evidence except as to his general character: but the former shall not be entitled to make any observations upon the evidence given by the latter, nor the latter to make any observations upon the evidence given by the former in reply. And when the evidence, (all of which is to be upon oath,) shall be closed, the court shall proceed to convict, or make an order on, the defendant, or else dismiss the information or complaint, as the case may require; every conviction or order being drawn up in proper form, and lodged with the clerk of the peace, to be filed among the records of the quarter sessions (q); and a certificate of every order of dismissal being also drawn up and given to the defendant(r).

It is also competent to the court, in any case, to award costs, either against the defendant or the prosecutor or complainant, as the case may be. And for the amount of such costs, or of any pecuniary penalty or sum of money adjudged by a conviction or order, the court may issue a warrant of distress on the goods and chattels of the party: or, in default of distress (s), or where the statute simply directs imprisonment, may issue a warrant of commitment to prison (t). But if satisfied that a warrant of distress

(P) By 11 & 12 Vict. c. 43, s. 9, a variance between the information and the evidence adduced in support thereof, when not such as to have misled the party charged, is in general immaterial; when otherwise, it will be ground for an adjournment.


(9) See 18 & 19 Vict. c. 126, s. 7.

(1) 11 & 12 Vict. c. 43, s. 14. See 18 & 19 Vict. c. 126, ss. 1, 7.

(s) 11 & 12 Vict. c. 43, ss. 18, 22. (As to sect. 22, see 21 & 22 Vict. c. 73, s. 5.) (t) 11 & 12 Vict. c. 43, ss. 20, 24.


would be ruinous to the defendant,-or that he has no goods,—the court is authorized to issue a warrant of commitment in any case, in lieu of a warrant of distress (u).

Power is also granted to the court, from time to time, to adjourn the proceedings as circumstances may require ; and in the meantime either to allow the defendant to go at large, or to commit him to prison. Or, it may discharge him on entering into a recognizance, (either with or without sureties,) conditioned for his re-appearance at the adjournment day; which recognizance, if broken, is to be transmitted to the clerk of the peace to be proceeded

upon (x).

Such is, in general, the method of summary proceedings before a justice or justices of the peace; though the particular statute which creates the offence, and authorizes its punishment, sometimes also specially points out the method in which offenders are to be convicted (y). It is to be remarked, however, that unless there be some enactment directing a prosecution before a justice or justices of the peace, no offence is capable of being so dealt with ; but the offender must be proceeded against either by indictment or information in the usual way. It also deserves notice, that a summary conviction is not generally speaking conclusive ; but is often subject to appeal. For in the greater number of the statutes which authorize this course of proceeding in particular instances, an appeal to the quarter sessions is also authorized (z). And in such cases, and if a question of law

(u) 11 & 12 Vict. c. 43, s. 19. courts of law at Westminster, to (x) Sects. 16, 29.

take the opinion of such court on (y) See 5 & 6 Will. 4, c. 76, s. 127. the facts stated in a special case,

() The course of procedure in instead of prosecuting the appeal at appeals to the sessions, is mainly the sessions. It may be also obregulated by 12 & 13 Vict. c. 45; served, that there is no appeal from which also, in most cases, enables the decision of justices as to an the parties, (after notice of appeal assault (as to which jurisdiction, given,) by consent, and leave of a vide sup. p. 331). Nor in cases disjudge of any one of the superior posed of by them under the Juvenile

be involved, the decision of the quarter sessions may, in its turn, be brought under the review of the Queen's Bench (a). Moreover, by 20 & 21 Vict. c. 43, it has been provided, with respect to informations or complaints summarily determined before a justice or justices, that any point of law arising thereon may be brought immediately before the Queen's Bench, Common Pleas, or Exchequer, in the form of a case stated,—the appellant first entering into a recognizance to submit himself to the original determination, unless it be reversed. It is provided, also, that any person, who shall appeal under these provisions, shall be taken to have abandoned any appeal to the quarter sessions, to which he would otherwise be entitled by law (b). And, on the other hand, the justice or justices themselves are now enabled by 35 & 36 Vict. c. 26, to file affidavits in the court before which such case has been brought, free of any expense by way of fee or stamp duty, in order to put the court in possession of the grounds of their decision, and of any facts which they may consider as having a material bearing on the question at issue; and this without the necessity of appearing by counsel.

III. [To this head of summary proceedings may also be properly referred the method immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereupon.

The contempts which are thus punished, are either direct; which openly insult or resist the powers of the courts, or the persons of the judges who preside there. Offenders' Acts (vide sup. p. 332). (6) 20 & 21 Vict. c. 43, s. 14. Nor under the 18 & 19 Vict. c. 126 As to the practice on such appeals, (vide sup. p. 333).

see Reg. Gen. M. T. 1857; 18 C. B. (a) The mode of proceeding in 5, 6; and 3 C. B.(N. S.) 141. And such cases is, in general, by manda- as to the cases in which it lies, see mus, requiring the quarter sessions Davys, app. Douglas, resp. 4 H. & N. to re-hear the appeal. (See Dick- 180. inson, Q. S., 6th ed., p. 658.)

z 2

[Or else are consequential: which, (without such gross insolence, or direct opposition,) plainly tend to create an universal disregard of their authority. The principal instances of either sort, that have been usually punished by attachment, are of the following kinds (c). 1. Those committed by inferior judges and magistrates: by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their distribution; or by disobeying the royal writs issued out of the superior courts,-as by proceeding in a cause after it is put a stop to, or removed, by writ of prohibition, certiorari, error, supersedeas, and the like. For as the superior courts, have a general superintendence over all inferior jurisdictions, -any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court: by abusing the process of the law, or deceiving the parties, or by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty. 3. Those committed by attornies and solicitors, (who are also officers of the court,) by gross instances of fraud and corruption, injustice to their clients, or other dishonest practices. For the malpractice of the officers reflects some dishonour on their employers; and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen in collateral matters relating to the discharge of their office: such as making default when summoned ; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviour or irregularities of a similar kind;- but not in the mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed

(c) Hawk. P. C. b. 2, c. 22.

« EelmineJätka »