REX บ. GOLDBERG. 1904. Merchant Shipping Act, 1894Summary proceedings for offences under-Trial by juryRight of defendant to elect42 & 43 Vict. c. 49, s. 17; 57 & 58 Vict. c. 60, ss. 218, 680, (1, b). six months' imprisonment-Offence to be "prosecuted summarily"-42 & 43 Vict. c. 49, s. 17; 57 & 58 Vict. c. 60, ss. 218, 680, sub-s. 1 (b). The provision in sect. 680, sub-sect. 1 (b), of the Merchant Shipping Act, 1894, that an offence under the Act made punishable with imprisonment for a term not exceeding six months, or by a fine not exceeding 100l., "shall be prosecuted summarily in manner provided by the Summary Jurisdiction Acts," does not exclude the application of sect. 17 of the Summary Jurisdiction Act, 1879, to offences under the first mentioned Act. A person charged under sect. 218 of the Merchant Shipping Act, 1894, with unlawfully going on board a ship which has arrived at the end of her voyage, whereby he becomes liable under that section to a fine not exceeding 201., or, at the discretion of the Court, to imprisonment not exceeding six months, has therefore the right upon being charged before the court of summary jurisdiction, to claim to be tried by a jury. CASE stated by the stipendiary magistrate for the borough of West Ham. At a court of summary jurisdiction held at the Police-court, Stratford, in the borough of West Ham, in the County of Essex, and within the metropolitan police district, on the 2nd day of June, 1904, an information preferred by the solicitor to and on behalf of the Board of Trade (hereinafter called the appellant) against Abraham Goldberg (hereinafter called the respondent) for an offence against sect. 218 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), was heard and determined by the magistrate, and upon such hearing the magistrate at the request of the respondent, pursuant to sect. 17 of the Summary Jurisdiction Act, 1879, committed the respondent for trial at the adjourned borough sessions. The facts were as follows: The appellant was the solicitor to and on behalf of the Board of Trade, and the respondent was Abraham Goldberg, a tailor, carrying on business at Victoria Dock-road, E. The information laid by the appellant charged that the respondent on the 30th day of May, 1904, in the borough of West Ham, not then being in His Majesty's service, and not being duly authorised by law for the purpose, did unlawfully go on board the British ship Acanthus, lying at D. Jetty, Victoria Dock, which vessel had arrived at the end of her voyage, without the permission of the master of the ship, before the seamen lawfully left the ship at the end of their engagement or were discharged, contrary to the form of the statute in such case made and provided: (sect. 218 of the Merchant Shipping Act, 1894). On the hearing of the information before the magistrate, on the 2nd day of June, 1904, as it appeared to him that the respondent was liable, on summary conviction of the offence, to REX บ. GOLDBERG. 1904. be imprisoned in the first instance for a term exceeding three months, after the charge had been read to him and before the same was gone into, the magistrate addressed the respondent to the following effect, as required by sect. 17 of the Summary Jurisdiction Act, 1879: "You are charged with an offence in respect of the commission of which you are entitled, if you Shipping Act, desire it, instead of being dealt with summarily to be tried by a jury. Do you desire to be tried by a jury?" and the magistrate added to such address the statement suggested by for offences the section. The respondent, who was not represented, claimed to be so tried. Upon this counsel for and on behalf of the appellant objected to the option being given to the respondent, of being tried by a jury. In support of his objection he contended: First, that sect. 680, sub-sect. 1 (b), of the Merchant Shipping Act, 1894, which describes the manner of prosecution of offences against sect. 218 of the Act, required that the charge must be dealt with summarily, and that the magistrate ought therefore to have heard the case, and not to have sent it to the borough sessions; and that any provisions of the Summary Jurisdiction Acts which give an option to the defendant in certain cases to claim to be tried by a jury did not apply to prosecutions governed by sect. 680, sub-sect. 1 (b), of the Merchant Shipping Act, 1894. Secondly, that sect. 17 of the Summary Jurisdiction Act, 1879, did not apply to a charge which was punishable by "a fine, or, at the discretion of the court, to imprisonment for a term exceeding three months," such as a charge under sect. 218 of the Merchant Shipping Act, 1894, which is punishable with a fine not exceeding 207., or at the discretion of the court with imprisonment for any term not exceeding six months. In support of his contention he quoted the cases of Carle v. Elkington (56 J. P. 359) and Williams v. Wynne (52 J. P. 343), but the magistrate considered that these cases were not in point, and did not support the appellant's contention, inasmuch as in Carle v. Elkington (ubi sup.) it was simply held that sect. 17 did not extend to a case where more than three months' imprisonment could be given for non-payment of a fine, but only applied where the offence was punishable, as in this case, by imprisonment in the first instance, and in Williams v. Wynne (ubi sup.) the punishment by imprisonment in the first instance only extended to three months. The magistrate overruled the appellant's first objection, because he was of opinion that as sect. 680, sub-sect. 1 (b), of the Merchant Shipping Act directed that the offence should be prosecuted summarily in manner prescribed by the Summary Jurisdiction Acts, such Acts applied in their entirety to this prosecution, and that sect. 17 of the Summary Jurisdiction Act, 1879, laid imperatively on him the duty of informing the respondent of his right to a trial by a judge and jury (see Reg." Merchant 1894 Summary proceedings under-Trial 42 & 43 Vict. 57 58 Vict. REX บ. GOLDBERG. 1904. Merchant v. Cockshott; Ex parte Rickaby, 62 J. P. 325), and he overruled his second objection because he was of opinion that such lastmentioned section applied to all cases in which he had the discretion to impose in the first instance more than three months' imprisonment for the offence, and he therefore ruled Shipping Act, that the respondent was entitled to be tried by a jury. 1894- The evidence for the appellant was then heard by the Summary magistrate, and on that evidence he committed the respondent proceedings for trial at the adjourned borough sessions, and he bound him under-Trial over in his own recognisances in 201. to appear at the sessions. The question for the opinion of the Court was: Whether upon the facts stated the magistrate was right in determining that the respondent was entitled to claim the right to be tried by a 42 & 43 Vict. jury under sect. 17 of the Summary Jurisdiction Act, 1879, and c. 49, s. 17; in committing him to take his trial at the adjourned sessions for c. 60, 88. 218, the borough of West Ham, or whether he ought to have heard 680, (1, b). the case summarily without giving the respondent the option to go for trial. for offences by juryRight of defendant to elect ss. If the Court should be of opinion that the magistrate was right, then the committal to the sessions was to stand; but if he was wrong in determining that the respondent was entitled to be tried by a jury, and that the magistrate ought to have heard the case summarily, then the Court were to remit the case to the magistrate with such directions as they might think fit to give, or were to make such other order in the matter as the Court might think fit. The Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) provides : Sect. 218. Where a ship is about to arrive, is arriving, or has arrived at the end of her voyage, and any person, not being in Her Majesty's service or not being duly authorised by law for the purpose, (a) goes on board the ship, without the permission of the master, before the seamen lawfully leave the ship at the end of their engagement, or are discharged (whichever last happens); or, (b) being on board the ship, remains there after being warned to leave by the master, or by a police officer, or by any officer of the Board of Trade or of the Customs, that person shall for each offence be liable to a fine not exceeding twenty pounds, or, at the discretion of the court, to imprisonment for any term not exceeding six months; and the master of the ship or any officer of the Board of Trade may take him into custody, and deliver him up forthwith to a constable to be taken before a court capable of taking cognisance of the offence. Sect. 680-(Under the heading "Prosecution of Offences ")-(1) Subject to any special provisions of this Act, and to the provisions hereinafter contained with respect to Scotland—(a) An offence under this Act declared to be a misdemeanour shall be punishable by a fine or by imprisonment not exceeding two years, with or without hard labour, but may, instead of being prosecuted as a misdemeanour, be prosecuted summarily in manner provided by the Summary Jurisdiction Acts, and if so prosecuted, shall be punishable only with imprisonment for a term not exceeding six months, with or without hard labour, or with a fine not exceeding one hundred pounds; (b) an offence under this Act made punishable with imprisonment for any term not exceeding six months, with or without hard labour, or by a fine not exceeding one hundred pounds, shall be prosecuted summarily in manner provided by the Summary Jurisdiction Acts. (2) Any offence committed or fine recoverable under a by-law made in pursuance of this Act may be prosecuted or recovered in the same manner as an offence or fine under this Act. Sect. 681 (1). The Summary Jurisdiction Acts shall, so far as applicable, apply REX v. (a) to any proceeding under this Act before a court of summary jurisdiction, whether connected with an offence punishable on summary conviction or not; and (b) to the trial of any case before one justice of the peace, where, under this Act, GOLDberg. such a justice may try the case. The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), provides : 1904. Merchant Shipping Act, 1894Summary proceedings for offences under-Trial by juryRight of defendant to elect Sect. 17 (1). A person when charged before a court of summary jurisdiction with an offence, in respect of the commission of which an offender is liable on summary conviction to be imprisoned for a term exceeding three months, and which is not an assault, may, on appearing before the court, and before the charge is gone into but not afterwards, claim to be tried by a jury, and thereupon the court of summary jurisdiction shall deal with the case in all respects as if the accused were charged with an indictable offence and not with an offence punishable on summary conviction, and the offence shall as respects the person so charged be deemed to be an indictable offence, and, if the person so charged is committed for trial, or bailed to appear for trial, shall be prosecuted accordingly, and the expenses of the prose- 42 & 43 Vict. cation shall be payable as in cases of felony. (2) A court of summary jurisdiction, before the charge is gone into in respect of an offence to which this section applies, for the purpose of informing the defendant of his right to be tried by a jury in pursuance of this section, shall address him to the following effect: "You are charged with an offence in respect of the commission of which you are entitled, if you desire it, instead of being dealt with summarily, to be tried by a jury; do you desire to be tried by a jury?" with a statement, if the Court think such statement desirable for the information of the person to whom the question is addressed, of the meaning of being dealt with summarily, and of the assizes or sessions (as the case may be) at which such person will be tried if tried by a jury. The Attorney-General (Sir Robert B. Finlay, K.C.) (Henry Sutton and H. Stuart Moore with him) for the appellant.-The question is whether the defendant was entitled to claim to be tried by a jury, or whether, as the Board of Trade allege, he was liable to be tried summarily. It turns on sect. 680 of the Merchant Shipping Act, and sub-sect. 1 (b) is the important clause, and sect. 681 also throws some light on the matter. The offence charged against the defendant was the offence under sect. 218 of the Act, known as crimping. The right to a trial by jury is claimed under sect. 17 of the Summary Jurisdiction Act, 1879. [Lord ALVERSTONE, C.J.-There being the liability to imprisonment for a term exceeding three months, why is the defendant not entitled to be tried by a jury?] Because sect. 680, sub-sect. 1 (b), says that the offence "shall be prosecuted summarily," and in the "manner provided by the Summary Jurisdiction Acts." This being a case in which it is vital that the proceeding and the trial should be taken at once, the Legislature has provided that the accused shall be tried summarily and at once in the way provided by the Summary Jurisdiction Acts. It is conceded that there being a liability to imprisonment for six months, sect. 17 of the Summary Jurisdiction Act, 1879, would apply apart from the provision in sect. 680 of the Merchant Shipping Act, which is substantially the same as the corresponding provision in sect. 518 (3) of the Merchant Shipping Act, 1854. Effect must be given to the words "shall be prosecuted summarily "; and it is essential that it should be so, as otherwise if the ship were to depart there would be a failure of justice. It is important for shipping purposes that c. 49, s. 17; 57 & 58 Vict. c. 60, ss. 218, 680 (1, b). REX บ. GOLDBERG. 1904. Merchant the matter should be quick. In sub-sect. 1 (a) of sect. 680, under which the accused may receive imprisonment up to two years, the word " may" is used--the offence may" be prose cuted summarily; whereas under (b) the word "shall" is used -the offence "shall" be prosecuted summarily. The use of the Shipping Act, word "may" in the first clause makes all the difference, and the fact that in the second clause-clause (b)-the Legislature Summary change the language into the imperative form, and say that for proceedings offences under clause (b) the offence "shall" be prosecuted. for offences under-Trial summarily, makes all the difference. Under that clause the 1894 by juryRight of defendant to elect 57 58 Vict. c. 60, ss. 218, 680 (1, 6). necessities of the prosecution are more in view, and it would not be giving effect to the whole of the language and to the difference in the language in these two clauses to uphold the 42 & 43 Vict. magistrate's decision. Sect. 681 also tends to show that the c. 49, s. 17; intention was to have the whole proceeding summarily disposed of. The Act has said that the defendant "shall" be dealt with summarily, but the magistrate has said that he shall be dealt with summarily only at his option; and the Act has said that the offence shall be prosecuted summarily. "Prosecution" means a great deal more than charging a person, as the magistrate has found; it includes everything up to the final result. [Lord ALVERSTONE, C.J.-If your contention is correct, then I do not see the necessity of having both clauses (a) and (b).] There are cases on this point as to the summary jurisdiction, but they do not throw much light on the question, as the word used is "may"; but in sect. 144 of the Factory and Workshop Act, 1901, we have an instance of the word "shall" being used. Colam for the respondent.-The decision of the magistrate was right. If a statute merely prohibits an act, then the proceeding is by indictment, and not by summary conviction, as summary conviction is merely a creature of statute. There is the contrast between the use of the words "may" and "shall" in clauses (a) and (b), and whereas under clause (a) the proceedings may be begun under the Summary Jurisdiction Acts, under clause (b) they must be begun under these Acts. To the words in clause (b): "shall be prosecuted summarily in manner provided by the Summary Jurisdiction Acts," the learned Attorney-General wants to read in the words "with the exception of sect. 17 of the Summary Jurisdiction Act of 1879." If the Legislature had meant or intended that sect. 17 should not apply in this case, then they would have put in some such words as "with the exception of sect. 17 of the Summary Jurisdiction Act, 1879," which they have not done. [He was stopped.] Lord ALVERSTONE, C.J.-The point raised in this case is certainly one of importance, and I can see many grounds for supposing that it is a very desirable thing to legislate from the point of view that at any rate many of the offences under the Merchant Shipping Act should be dealt with in a summary manner; but it seems to me that to effect that object requires |