Page:EB1911 - Volume 26.djvu/95

Rh Occasionally a warrant is issued in place of a summons in the first instance, in which case the information must be laid in writing and be verified by oath. The proceedings must be begun, i.e. by laying the information, not later than six months after the commission of the offence, unless by some particular statute another period is named or unless the offence is what is called a continuing offence.

In a certain number of summary cases the accused is arrested under statutory authority without application to a justice, e.g. in the case of rogues and vagabonds and certain classes of offences committed in the street in view of a constable or by night. Whether the accused is brought before the court on arrest with or without warrant or attends in obedience to summons, the procedure at the hearing is the same. The hearing is ordinarily before a petty sessional court, i.e. before two or more justices sitting at their regular place of meeting or some place temporarily appointed as the substitute for the regular court-house, or before a stipendiary magistrate, or in the city of London an alderman, sitting at a place where he may by law do alone what in other places may be done by two justices (1879, s. 20; 1889, s. 13). A single justice sitting alone in the ordinary court-house or two or more justices sitting together at an occasional court-house have certain jurisdiction to hear and determine the case, but cannot order a fine of more than 20s. or imprisonment for more than fourteen days (1879, s. 20 [7]). The hearing must be in open court, and parties may appear by counsel or solicitor. If both parties appear, the justices must hear and determine the case. If the defendant does not appear, the court may hear and determine in his absence, or may issue a warrant and adjourn the hearing until his apprehension. Where the defendant is represented by solicitor or counsel but is not himself present it is usual, except in serious cases, to proceed in his absence. If the defendant is present the substance of the information is stated to him and he is asked whether he is guilty or not guilty. If he pleads guilty the court may proceed to conviction. If he does not the court hears the case, and witnesses for the prosecution and defence are examined and cross-examined. If the complainant does not appear, the justices may dismiss the complaint or adjourn the hearing.

If necessary rebutting evidence may be called. The prosecutor is not allowed to reply in the case of the defendant. On the completion of the evidence the court proceeds to convict or acquit. Where the case is proved but is trifling the court may, without proceeding to conviction, make an order dismissing the information subject to payment of damages for injury or compensation for loss up to £10 or any higher limit fixed by statute as to the offence, and costs, or discharging the accused conditionally on his giving security for good behaviour and on paying damages and costs (1907, c. 17, s. 1). To this order probationary conditions may be attached (s. 2). Subject to this provision the punishment which may be enforced depends as a general rule on the statute or by-law defining the offence, and consists in imprisonment and (or) fine, except in cases where a minimum fine is stipulated for by a treaty, &c., with a foreign state, e.g. in sea fishery conventions. The court may mitigate the fine in the case of a first offence, even in a revenue case, or may reduce the period of imprisonment and impose it without hard labour, or substitute a fine not exceeding £25 for imprisonment. A scale is prescribed for imprisonment on failure to pay money, fines, or costs, adjudged to be paid on a conviction, or in default of a sufficient distress to satisfy the sum adjudged (1879, s. 5). Instead of sending the defendant to prison for not paying fine and costs the court may direct its levy by distress warrant, or may accept payment by instalments. In the case of distress the wearing apparel and bedding of the defendant and his family, and to the value of £5 the tools and implements of his trade, may not be taken (act of 1879, s. 21). If the defendant after going to prison can pay part of the money his imprisonment is reduced proportionally (Prison Act 1898, s. 9). The imprisonment is without hard labour unless hard labour is specially authorized by the act on which the conviction is founded. The maximum term of imprisonment without the option of a fine is in most cases six months, but depends on the particular statute. imprisonment under order of a court of summary jurisdiction is in the common gaol (5 Hen. IV. c. 10), i.e. in a local prison declared by the home secretary to be the common gaol for the county, &c., for which the court acts. The place of imprisonment during remands or in the case of youthful offenders may in certain cases be elsewhere than in a prison. The court has power to order costs to be paid by the prosecutor or the defendant. Where the order is made on a conviction it is enforceable by imprisonment in default of payment or sufficient distress.

The extent of the local jurisdiction of justices exercising summary jurisdiction is defined by s. 46 of the act of 1879 with reference to offences committed on the boundaries of two jurisdictions or during journeys or on the sea or rivers or in harbours.

Proceedings under the Bastardy Acts are regulated by special legislation, but as to proof of service and the enforcement of orders and appeals are assimilated to convictions under the Summary jurisdiction Acts. The same rule applies (except as to appeals) to orders made under the Summary Jurisdiction Married Women) Act 1895, as amended by the Licensing Act 1902.

A warrant of arrest is executed by the constable or person to whom it is directed within the local jurisdiction of the issuing court; or a fresh pursuit within seven miles of its boundaries, without endorsement, in the rest of England and Wales, and in Scotland, the Channel Islands and Isle of Man after endorsement by a competent magistrate of the place where the accused is, and in Ireland by a justice of the peace or an inspector of constabulary. An English summons to a defendant or witness, except in respect of civil debts, is served in Scotland after endorsement by a competent magistrate there (Summary Jurisdiction Process Act 1881, 44 and 45 Vict. c. 24). The attendance of a witness who is in prison is obtained by writ of habeas corpus or by a secretary of state’s order under the Prison Act 1898. If a witness will not attend on summons he can be brought to the court by warrant, and if he will not answer questions lawfully put to him may be sent to prison for seven days or until he sooner consents to answer.

Civil Jurisdiction.—In cases where justices have a summary civil jurisdiction, e.g. as to certain civil debts recoverable summarily, or to make orders to do or to abstain from doing certain acts, e.g. with reference to nuisances and building, the procedure differs in certain details from that in criminal cases.

1. The summons is issued on a complaint which need not be in writing nor on oath, and not on an information, and warrants of arrest cannot be issued.

2. The rules as to the evidence of the defendant and his or her spouse are the same as in civil actions.

3. The court's decision is by order and not by conviction.

4. The order if for payment of a civil debt or costs in connexion therewith is enforceable by distress and sale of the defendants effects or by imprisonment, but only on proof that the defendant has had since the order means of paying and has refused or neglected to pay (1879, s. 35)

Proceedings for the enforcement of local rates are not affected by the Summary Jurisdiction Acts except as to the power of submitting to the High Court questions of law arising on a summons to enforce rates (re Allen, 1894, 2 Q.B., 924). The functions of justices as to such rates are sometimes but not quite accurately described as ministerial, for their powers of inquiry though limited are judicial and of a quasi-criminal character.

Appeal.—The orders and convictions of a court of summary jurisdiction are in many cases appeal able to quarter sessions. The right to appeal is always dependent on the specific provisions of a statute. The Summary Jurisdiction Act 1879 gives a general power of appeal against an adjudication on conviction (but not on plea of guilty) to imprisonment without the option of a line, whether as punishment for an offence or for failure to do or abstaining from doing any act, other than compliance with an order to pay money or find security or enter into recognizances or to find sureties (1879, s. 19). The procedure on the appeals is regulated and made uniform by the acts of 1879, ss. 31, 32; and 1884. These provisions are supplementary of the particular provisions of many statutes authorizing an appeal.

The decisions of courts of summary jurisdiction on points of law are generally reviewed by a case stated for the opinion of the High Court under the acts of 1857 and 1879, but are occasionally corrected by the common law remedies of mandamus, prohibition or certiorari. The application of the last-named remedy is restricted by many statutes. The court of appeal has jurisdiction to review judgments and orders of the High Court dealing with appeals, &c., from the decisions of justices in the exercise of their civil jurisdiction; but not when the subject-matter is a criminal cause or matter.

In proceedings between husband and wife for separation orders there is a special form of appeal on facts as well as law to the probate, divorce and admiralty division of the High Court (Summary Jurisdiction [Married Women] Act 1895; Licensing Act 1902, s. 5).

Civil.—In the Court of Session there are certain forms of summary civil proceedings by petition, e.g. with reference to entails, custody of children, guardians and factors of minors and lunatics, which are applications for exercise of the nobile officium or extraordinary jurisdiction of the court (see Mackay, Court of Session Practice, i. 209, ii. 353). Summary jurisdiction is given to justices of the peace as to the recovery of small debts.

Criminal and Quasi-criminal.—The only act relating to summary jurisdiction procedure common to England and Scotland is the Summary Jurisdiction Process Act 1881. Summary jurisdiction in Scotland depends chiefly upon the Summary Jurisdiction (Scotland) Acts 1864 and 1881. The acts follow, to some extent, the lines of English legislation, but the sheriff and his deputies and substitutes are included in the definition of the court, as are stipendiary magistrates (1897, c. 48). The acts also apply to proceedings before burgh courts, or burgh magistrates, and to justices of the peace where they have by other statutes power to try offences or enforce penalties. All proceedings for summary conviction or for recovery of a penalty must be by way of complaint according to one of the forms in the schedule to the act of 1864. The English summons and warrant are represented in Scotland by the warrant of citation and the warrant of apprehension. Where no punishment is fixed for a