« PrejšnjaNaprej »
Court in the colony (1). If the offender has escaped arrest on
An endorsed warrant may be executed either by Executing an enthe bearer, or by any of those to whom it was originally directed, or by officers of the place of indorsation (4). Indorsation applies only to warrants for Indorsation apprehension for examination in order to trial, not to arrest in order to the case of persons ordered to be apprehended with a view to their being bound over to keep the peace (5), or to their being punished under a sentence already pronounced (6)
When arresting, the officer should state the sub- Procedure in stance of the warrant. The officer, if required, should show the warrant, and particularly if he be only acting as an officer pro hac vice, or be beyond his ordinary bounds (7).
Before breaking open doors, even with a warrant, admission must have been asked and Forcing refused. The right to break in applies to any house, or place within the house (8).
A person arrested must be brought before a magis- Prisoner brought trate without delay. Detention for one single night is trate without permissible, if distance or lateness of the hour render this necessary (9). This is the rule where the arrest is
1 Act 6 and 7 Vict. c. 34, § 2, as amended by 16 and 17 Vict. c. 118.
2 In such cases the procedure must of course in a great measure be regulated by the foreign power.
3 Act 33 and 34 Vict. c. 52, $ 13.
4 Act 11 and 12 Vict. c. 42, $ 15, and 12 and 13 Vict. c. 69, § 15.Hume ii. 79.-Alison ii, 124.
5 Hume ii. 79, case of Taylor in note 1.-Alison ii. 129.
6 Beattie v. Sir John Maxwell's Trustees, H.C., March 9th 1846 ; Ark. 14.
7 Hume ii. 79, and cases of Edmonston and others : and Sinclair there. --Alison ii. 124.
8 Hume ii. 80.-Alison ii. 124. – Campbell 335, 336.
9 Hume ii. 80.-Alison ii. 129, 130. — Campbell 336. — See also Crawford v. Blair, H.C., Nov. 17th 1856 ; 2 Irv. 511 and 29 S.J. 12.
sea to a non
on warrant, and applies with greater force where there is no warrant (1). Burgh statutes generally enact that the person arrested must be brought before a magis
trate, in no case later” than the first lawful day after Prisoner arrested arrest (2). Where arrest is on an endorsed warrant warrant taken the officer must take the prisoner before a magistrate of place of trate of the bounds to which the indorsation applies,
that the question of bail may be disposed of. If bail is not accepted, or cannot be found, the magistrate remands the prisoner to the custody of the officer, to
be conveyed back to the jurisdiction from which he Conveyance from has escaped. Where the apprehension is in England, England.
the officer, on receiving the prisoner from the magistrate, should convey him before a magistrate of a county adjacent to England (3). But in modern practice this rule is not carried out as regards land carriage, the facilities of travelling being such that it would
be no advantage to the accused to be detained in a Conveyance by southern county. But where a prisoner was conveyed adjacent county from England by sea to a county not adjacent to Eng
land this was held illegal (4).
The rules in regard to foreign criminals, who are to be arrested, with a view to their being surrendered to the authorities of their own country, are fixed by statute (5). The arrest must be on a warrant issued by a magistrate on an order from the Secretary of State, and on such evidence as would justify the issue of a warrant for a crime committed in England, or by a Sheriff, Sheriff-substitute, police magistrate, or justice of peace, on such information, complaint and evidence as would justify a warrant for an offence committed in Scotland (6)
1 Macdonald v. Lyon and Main, and 12 and 13 Vict. c. 69, $ 15. H.C., Dec. 8th 1851 ; J. Shaw, 516 4 Matthews v. the Glasgow Iron and 24 S.J. 65 and 1 Stuart 129. Company, H.C., Nov. 28th 1836 ; 1
See 3 and 4 Will. IV. c. 46 8 79 Swin. 393 and Bell's Notes 154. (General Burgh Act) and 11 and 12 5 Act 33 and 34 Vict. c. 52. Vict. c. 113, § 89 (Edinburgh Police 6 Ibid. § 8 as amplified in § 26 Act).
and by § 6 of Act 36 and 37 Vict. c. 3 Acts 11 and 12 Vict. c. 42 § 15,
MUST BE BEFORE
acting as sherify
If the crime charged is too serious to be tried sum- EXAMINATION marily, the first step after apprehension is the judicial examination, before the magistrate to whom the accused is first presented, or before some other magistrate on his remit. The magistrate need not have power or Any magistrate jurisdiction to try the offence. It is even doubtful Baron-bailie. whether a baron-bailie cannot preside (1). A person Temporary acting temporarily and gratuitously as sheriff-substitute may preside (2). But no one who is not a magistrate can do so (3). It is not competent for a sheriff-clerk, Sheriff-clerk acting as sheriff-substitute by deputation, to take a cannut declaration (4).
The magistrate must be present during the exami- Magistrate must nation to protect from unfair or oppressive examina- be truly present, tion (the prisoner not being permitted to have legal advice), and therefore, a declaration emitted in his absence, though acknowledged afterwards in his hearing as correctly taken down before being signed, is invalid (5). In one case it was held—one judge Law now more dissenting--that though the magistrate fell asleep at merly. intervals for a quarter of an hour at a time, the declaration was good (6). But a declaration would certainly not be sustained in similar circumstances
In a later case, where the magistrate put questions, but went away while the declaration was being
strict than for
1 Alison ii. 566.-Thos. Hay, 22d 1857; 2 Irv. 614 and 29 S. Feb. 2d 1824; Shaw 113 and Hume J. 344. ü. 77, note a.
6 Hume ii. 327, case of Davidson 2 John Mabon and Edward Shil- in note a.- - Alison ii. 560, 561.linglaw, Jedburgh, April 4th 1842; Jas. Davidson, Aberdeen, April 9th 1 Broun 201 and Bell's Notes 151, 1829, or April 17th 1827 (reports referring to 6 Geo. IV. c. 23, § 9, as differ); Shaw 207 and Syme Appx. amended by 9 Geo. IV. c. 29, $ 22. p. 46.-Dietrich Mahler and Marcus
3 Hume ii. 327, case of Erskine Berrenhard, H.C., June 15th 1857 ; in note a.-ii. 329, cases of Hughes : 2 Irv. 634 and 29 S. J. 562. and Ronald and others in note 1.- 6 Murdo Mackay and others, Alison ii. 560.
Feb. 21st 1831 ; 3 S. J. 302 and 4 John Stewart, Perth, April Bell's Notes, 242
senses and speak
written out, for about a quarter of an hour, and only heard it read over before signing, the declaration was held invalid, though the magistrate declared that it. was in substance what the accused had said (1).
The prisoner must be in his sound and sober senses,
and the magistrate must assure himself of this (2). Prisoner in sound What he says must be free and voluntary, not induced ing voluntarily. or elicited by threats or promises (3).
A mere proprisoner.
mise by the person injured that if the accused confessed he would not prosecute him will not nullify the declaration. Such a fact cannot be admitted to proof (4). But any inducements held out by a superior officer of police will probably make a declaration inadmissible (5). If a police-officer were to tell the accused that it would be better, or greatly in his favour, for him to tell all about the matter, the declaration will be inadmissible, but not if he merely bids him tell the truth (6). A declaration was received, although the procurator-fiscal told the prisoner, he
ought to speak the truth and tell no lies” (7). But the magistrate must be specially cautious not to say a word that may even seem like an inducement to the
MODE OF TAKING
1 Jas. M‘Millan, Glasgow, Sept.
2 Hume ii. 80-ii. 328.--Alison
Connacher, Ayr, April 14th 1823;
3 Hume ii. 328, 329.-Alison ii. 561 to 564.
4 Hume ii. 335, case of Honeyman and Smith in note 1.-Alison ii. 563.—Samuel Ferguson and others, Dumfries, April 19th 1819; Shaw 59.
5 Hume ii. 324, case of M‘Laren and Grierson in note a.-Alison ii. 564. Dietrich Mahler and Marcus Berrenhard, H.C., June 15th 1857; 2 Irv. 634 and 29 S. J. 562.
6 Joseph Darling, Perth, April 20th 1832 ; 5 Deas and Anderson 255 and Bell's Notes 241.
7 Rob. Fulton, Ayr, Sept. 20th 1841 ; 2 Swin. 564 and Bell's Notes 241.
Prisoner told he
prisoner to speak (1). He must inform the prisoner MODE OF TAKING of the charge against him. He should warn him that what he says may be used in evidence against him, need not answer, and that he may decline to answer, and these solemni- may be used ties are now so established, that the want of them would probably invalidate the declaration, although formerly they were not held essential (2). If the Prisoner remainprisoner remain silent the magistrate should interro- refusing to gate him till his determination not to speak is clearly shown (3), and the fact that he remained silent should be recorded by the magistrate (4). If the prisoner verbally refuses to answer, his refusal is taken down and forms a valid declaration. If he answer, what he answers taken says is taken down, but the magistrate need not have read over. every word he says recorded, provided he fairly take down all that is material (5). On the examination being concluded the whole must be read over and the accused's explanations or amendments adhibited (6). Should not be The writer should be a neutral party—the Sheriff- connected with
prosecution clerk or his depute—and not the procurator-fiscal, or one under his control (7).
If the prisoner does not understand English, a Interpreter. sworn interpreter must be employed, and what is taken down translated to him (8). The declaration of a deaf and dumb prisoner who can write may be
down and whole
written by person
1 Hume ii. 331, case of Wilson in note b.-Alison ii. 562, 563.
2 Hume ii. 80, 81.-ii. 330.--Alison ii. 564.
3 Jas. Bell and others, H.C., Jan. 19th 1846 ; Ark, 1. See also Jas. Scott, H.C., Nov. 17th 1827 ; Syme 278.
4 See the cases of Bell and others, and Scott supra ; also Hugh Thomson and Jas. Watt, Aberdeen, Sept. 26th 1844; 2 Broun 286.
5 And. Brown, H.C., Jan. 8th
1866 ; 5 Irv. 215 and 1 S. L. R. 98.
6 Hume ii. 81.-ij. 330.--Alison ii. 568, 569.
7 Agnes Kelly, Ayr, April 28th 1843; 1 Broun 543 and Bell's Notes 157.-Galbraith v. Sawers and others, Nov. 13th 1860; 3 D. 52 and 13 S. J. 23. (Lord Justice Clerk Boyle's opinion.)
8 Alison ii. 569, 570.- Archibald Campbell, Inverary, April 1837 ; Bell's Notes 243 - Roderick Mackenzie, Inverness, April 13th 1839; 2 Swin. 345 and Bell's Notes 241.