be sent thither, unless there are special reasons for preferring a trial at the Assizes1. Again, (3) if the accused ask to be released on bail the court must determine whether this is to be allowed, and, if it be, on what terms. In cases of treason, however, bail cannot be granted by the justices, but only by a Secretary of State or a judge of the King's Bench Division3. But in cases of felony the matter is in the justices' discretion. In misdemeanors they had not, at common law, even a discretion (when once the preliminary examination was over), but were bound to release the accused on his finding adequate bail. But now, by statutes, several grave misdemeanors have, in respect to bail, been placed on the level of felonies; viz., perjury, attempts to commit felony, concealment of birth, false pretences, and the other offences for which the costs of the prosecution may be charged on the county.

The Bill of Rights forbids the requiring of "excessive" bail; but the justices must use their own judgment as to what sum is adequate without being excessive. Here, as also in exercising their discretion about admitting to bail at all, they have simply to consider what likelihood there is of the defendant's failing to appear for trial". That likelihood will be affected by (1) the gravity of the charges; (2) the cogency 1 Assizes Relief Act, 1889 (52 and 53 Vict. c. 12).

* This word means properly (1) the contract whereby the man is "bailed" (i.e., delivered) to his surety, but is also applied to (2) that surety himself. Either the justice or the surety may be spoken of as "bailing" the man. Such sureties were vividly described in the thirteenth century as "a living prison" (Pollock and Maitland, II. 583-587). Even now-a-days the surety, if he should desire to discharge himself, is allowed to arrest the defendant, and even to break into his house for the purpose, that he may give him back again into the custody of the court by which he was bailed; (1 Chitty, Cr. Law, 104; L. R. [1900] 1 Ch. 41). 3 11 and 12 Vict. c. 42, s. 23.

4 Supra, p. 96.

5 38 and 39 Vict. c. 66.

6 These offences are set out in 7 Geo. IV. c. 64; 14 and 15 Vict. c. 55; and 29 and 30 Vict. c. 52. 7 Reg. v. Rose, 68 L. J. R. (Q. B.) 289.

8 Reg. v. Barronett, Dearsly 1; Re Barthelemy, Dearsly 60. Bail has occasionally been allowed even on charges of murder, as where the circumstances pointed to a verdict of justifiable homicide.

of the evidence; (3) the wealth of the offender (which renders him more willing to bear the forfeiture of bail and also less willing to bear the disgrace of a conviction); (4) whether the proposed sureties are independent or are likely to have been indemnified by the accused'; and (5) the probability of the accused tampering with the Crown's witnesses, if he be at large. But experience shews that, on the whole, very few persons admitted to bail fail to appear for trial-only about one in every thousand3. Hence of recent years the judges have urged magistrates to grant bail very readily; and whenever the offence is a small one, and the day of trial is distant, to accept the recognizances of the accused himself without any sureties.

It will further be the duty of the justices to transmit to the court where the trial is to take place the depositions of the witnesses and the prisoner's statement; of which we have already spoken". The depositions are important for several purposes. (a) They enable the opposite party to check the evidence given at the trial, and to cross-examine or contradict a witness whose evidence there varies from that

1 Reg. v. Butler, 14 Cox 530. All arrangements, between a person bailed and his sureties, that he shall abscond and shall indemnify them for the bail thereby forfeited, are so contrary to public policy that they are void as agreements (Anson on Contracts, ch. v. 1. ii.; Herman v. Jeuchner, L. R. 15 Q. B. D. 561; Lound v. Grimwade, L. R. 39 Ch. D. 605); and moreover are indictable as conspiracies to pervert the course of justice, if intention to pervert it be proved, (Rex v. Stockwell, 66 J. P. 376).

2 Hence bail is less readily granted during a preliminary inquiry, when the depositions have not yet been completed, than after its conclusion. During the preliminary inquiry a magistrate has power to remand the accused in custody for a period not exceeding eight days, by warrant, and for three days, by a verbal order (11 and 12 Vict. c. 42, s. 21).

* About one person in every five committed is admitted to bail; and yet there is only one failure to about every four thousand committals.

4 The need of such injunctions is vividly shewn by the fact that in the statistical year 1905, no fewer than 1605 persons who had been sent to prison to await indictment were ultimately acquitted.

Moreover, committing justices may now, by 3 Edw. VII. c. 38 (infra, p. 513), provide legal aid, at the public cost, for any poor prisoner whose defence is so complex that he needs legal aid.

which he gave at the commitment. (b) They form a substitute1 for the witness in the event of his being, at the time of the trial, either dead or too ill to travel or to give evidence3. But his absence abroad does not suffice to render them admissible'. (c) They assist the draftsman who has to frame the indictment. (d) They enable the judge to learn the difficulties of the case before he charges the grand jury. And (e) they inform the defendant as to the precise case which he has to meet. To him this is obviously an advantage; and it is often an advantage to the public, for if the case thus disclosed be a strong one, the defendant is the more likely to plead guilty. It is, however, to be regretted that our law does not take some measures for securing a reciprocal disclosure of the intended defence. At present it is too easy for him to raise at the trial some speculative defence, which there is then no opportunity of contradicting, and to support it by witnesses about whom it is too late to make inquiries. The facility has become greater now that the prisoner himself is allowed to come forward as a witness.

The committing justice will conclude the inquiry by binding over (1) the necessary witnesses to appear at the

1 Being a legally-required official record they are the "best evidence" (supra, p. 359) of what passed at the committal; and cannot be altered by oral evidence. Indeed oral evidence is probably not admissible even merely to supplement their omissions, when they are used as "substantive evidence," (i.e., as a substitute for an absent witness), though it is when they are used to contradict a witness who does appear (Roscoe's Criminal Evidence, p. 58). 2 11 and 12 Vict. c. 42, s. 17. 3 Reg. v. Wicker, 18 Jur. 252. Except by consent, in cases of misdemeanor; supra, p. 342; cf. p. 408. Hence he has a statutory right to purchase copies of them at 1d. per ninety words (11 and 12 Vict. c. 42, s. 27). But the witness has no such right; and indeed ought not to be supplied with a copy.

As was said by Jessel, M.R., in Benbow v. Low (L. R. 16 Ch. D. 95) :"If you give one party the opportunity of knowing the particulars of the evidence that is to be brought against him, you give a rogue an enormous advantage." Hence in civil proceedings, though the defendant is entitled to know the nature of the claim against him, he is not entitled to know by what evidence it will be supported; (Rules of the Supreme Court, Order 19, rule 4; Marriott v. Chamberlain, L. R. 17 Q. B. D. 154).

trial and (2) some person (usually a police constable) to prosecute, i.e., to prefer a bill of indictment before the grand jury. He may commit to prison anyone who refuses to be thus bound over to give evidence or to prosecute1. Witnesses and prosecutors are only bound over in their own recognizances; though defendants, as we have seen, are usually required to find one or two sureties also. "A recognizance," says Blackstone, "is an obligation of record, which a man enters into before some court of record, or magistrate duly authorised, with condition to do some particular act, as, to keep the peace." Although the magistrate's court is not a court of record, yet its records are, in this respect, on the same footing as those of the higher courts. It is a contract not by parol nor by deed, but of record'; since the record of the court is conclusive evidence as to its existence and terms, and indeed is the only evidence of them. For the party bound does not sign anything; he merely assents orally to the court's oral question. His assent consists in an admission of his owing to the Crown some specified sum of money to be payable unless a specified condition be fulfilled; e.g., unless he (or, unless the defendant) appear at the next Assizes. Unlike other contracts (which have to be sued upon) recognizances admit of direct enforcement. For, if the condition be not fulfilled, the recognizance may at once be "estreated"; i.e., an extract (Norman-French, estrait) shewing the terms of the obligation is copied from the court's record, and is sent to the clerk of the peace, who thereupon directs the sheriff to levy the amount upon the defendant's goods".

Finally the court may, in fit cases, assign to the accused a solicitor and a counsel, under the Poor Prisoners' Defence Act 19036.

1 Bennett v. Watson, 3 Maule and Sel. 1.

2 4 Bl. Comm. 341. 3 See Brooke's Abridgement, tit. Recognizance; pl. 8.

4 Anson on Contracts, part II. ch. 1.; Chitty on Contracts, ch. 1. s. 2. 53 Geo. IV. c. 46, s. 2. See Reg. v. Smith, 17 Cox 601, as to the difficulty of effectually binding an infant by recognizances, because of his incapacity to contract. Infra, p. 513.

CHAPTER XXXI.

ORDINARY PROCEDURE.

II. FROM ACCUSATION TO SENTENCE.

4. Prosecution.

THE process of commitment by a justice of the peace which we have described, though in actual practice it is adopted in almost every instance, is not legally essential1 for bringing an accused person to trial before a jury2; (except in the few crimes to which the Vexatious Indictments Act3 applies). All that is usually essential is some mode of "Prosecution," i.e., of formal accusation. Such an accusation may be made either (1) by a crown official's Information, or (2) by a jury's Presentment.

(1) An Information is a written complaint made on behalf of the Crown by one of its officers and filed in the King's Bench Division. Since such a mode of accusation dispenses with any accusing jury, and with any examination before a justice of the peace, it is only allowed in cases of

1 Yet very important; for though, without any preliminary examination, a prosecutor may (in nearly all cases) place a bill of indictment before a grand jury, there is no legal machinery by which witnesses can be compelled to appear before the grand jury to support the accusation, where they have not been bound over by a committing justice to appear and to give evidence.

2 Thus occasionally when a coroner's inquest has occupied an unusually protracted time, the magisterial inquiry is omitted; as in the case of Paine (The Times, Feb. 25, 1880), who was tried for a remarkable manslaughter (by plying with intoxicating liquor) without being taken before a magistrate, the coroner's inquest having lasted five days.

3

3 Infra, p. 464.

In 1899 only three were filed.