In cases where, in the exercise of their discretion, the magistrates have the power of admitting to bail or refusing it, the principle which is to guide them is the probability of the accused appearing to take his trial, and not his supposed guilt or innocence (u), though this latter point may be one element to be considered in applying the test. Thus it has been laid down that the points which the Courts will consider in exercising their discretion include the seriousness of the charge, the evidence in support of it, and the punishment which the law awards for the offence (w). Practically, in charges of murder bail is never allowed.

Who may be bail? The magistrate (or Court, v. infra) will act according to his discretion as to the sufficiency of the bail, and the proposed bail may be examined upon oath as to their means. An infant, or a prisoner in custody, cannot be bail; nor can a person who has been convicted of an infamous crime, as perjury (x); there is now no objection to a married woman becoming bail if she has separate estate. The usual number of bail is two; but sometimes only one is required, and sometimes three or more. The sureties or bail are not compelled to act as such for a longer time than they wish. If they surrender the accused before the magistrate or Court by whom he has been bailed, he will be committed to prison, and they will be discharged of their obligation. But the accused may then find fresh sureties. If the bail agree with the defendant or other persons that, in case the defendant is not forthcoming to take his trial, the bail shall be indemnified against loss, the parties to the agreement are punishable for conspiracy (y).

Both at common law and by statute (2), to refuse or delay to admit to bail any person bailable is a misdemeanour in the magistrate. But it has been held that the duty of a

(u) R. v. Scaife, [1841] 9 Dowl. P. C. 553; 5 Jur. 700.

(w) Barronet, In re, [1852] 1 E. & B. 1; 22 L. J. M. C. 25; Robinson, In re, [1854] 23 L. J. Q. B. 286. See also R. v. Stephen Butler, [1881] 14 Cox, 530. (x) v. R. v. Edwards, [1791] 4 T. R. 440.

(y) R. v. Porter, [1910] 1 K. B. 369; 79 L. J. K. B. 241.

(z) 31 Car. II. c. 2 (Habeas Corpus); 1 Will. & M. Sess. 2, c. 2 (Bill of Rights).

magistrate in respect of admitting to bail is a judicial duty; and therefore that not even an action can be maintained against him for refusing to admit to bail, where the matter is one as to which he may exercise his discretion (a). It is provided by the Bill of Rights that excessive bail ought not to be required; though what is excessive must be left to be determined by the Court in considering the circumstances of the case. If the magistrate or other authority admits to bail where this is not allowable, or if he takes wholly insufficient bail, he is liable to punishment on the nonappearance of the accused (b).

The stage in the proceedings where the question of bail usually arises is when the accused is before the magistrates. But when a person charged with an indictable offence has been committed to prison to await his trial, it is lawful at any time afterwards, before the first day of the sessions or assizes at which he is to be tried, for the magistrate who signed the warrant for his commitment to admit him to bail (c).

As to bail in other cases than in proceedings before the magistrates:

The King's Bench Division has a discretionary power of admitting to bail a prisoner charged with any indictable offence or on suspicion thereof; and this whether he is brought before the Court by a writ of habeas corpus or otherwise. The application for bail is, in the first instance, made by summons before a Judge at Chambers (d). The Judge may admit to bail where bail has been refused by the magistrate, and it is usually in such cases that applications are made to the King's Bench Division. He may order the accused to be admitted to bail before a magistrate when it is inconvenient to bring him and his bail up to town. If the Judge refuses bail, an application may be made de novo to a Divisional Court, or to any other branch of the High Court

(a) Linford v. Fitzroy, [1849] 13 Q. B. 240; 18 L. J. M. C. 108; R. v. Badger, [1843] 4 Q. B. 468; 12 L. J. M. C. 66.

(b) Archbold, 87.

(c) 11 & 12 Vict. c. 42, s. 23.

(d) Crown Office Rules, 1906, r. 111.

or the Lord Chancellor, but no appeal lies to the Court of Appeal (e).

It seems to be a general rule that where any persons are Judges of any crime, they have the power of bailing a person indicted before them of such crime (f); so that:

Justices in Session may bail persons indicted at the sessions. Judges of Gaol Delivery, &c., may bail those indicted at the Assizes or Central Criminal Court when they are sitting. If one accused of treason or felony is not tried at the first sessions of gaol delivery after commitment, he may demand to be released or bailed, unless it appears on oath that the witnesses for the prosecution could not be present at those sessions. If he is not tried at the second sessions, he must be discharged from imprisonment (g).

Coroners are authorised to admit to bail persons charged with manslaughter by verdict of the coroner's jury (h).

In addition to judicial officers, police officers have a limited power of taking bail.

Police Officers.-If a person is taken into custody for an offence without a warrant, a Court of summary jurisdiction within twenty-four hours from the time when he is arrested, a superintendent or inspector of police, or the officer in charge of any police station, may in any case, and must, if such person cannot be brought before a Court of summary jurisdiction within twenty-four hours after he was taken into custody, enquire into the case, and, except where the offence appears to him to be of a serious nature, he must discharge the prisoner upon his giving bail with or without sureties for a reasonable amount to appear before the Court, and if such person is retained in custody, he must be brought before a Court of summary jurisdiction as soon as practicable (i). And if the person arrested is apparently

(e) R. v. Foote, [1883] 10 Q. B. D. 378; 52 L. J. Q. B. 528; 48 L. T. (N. S.) 394; 31 W. R. 490; 48 J. P. 36; 15 Cox, 250.

(f) Archbold, 86.

(g) 31 Car. II. c. 2, s. 7. But see R. v. Bowen, [1840] 9 C. & P. 509. (h) 50 & 51 Vict. c. 71, s. 5. As to personating bail, v. p. 239.

(i) 4 & 5 Geo. V. c. 58, s. 22.

under the age of sixteen years and cannot at once be brought before the Court, the superintendent or officer in charge of the police-station must release him on bail, with or without sureties, unless the charge is one of homicide or other grave crime, or unless it is necessary in the interest of the person arrested to remove him from association with any reputed criminal or prostitute, or unless the officer has reason to believe that his release would defeat the ends of justice (k). If such person is not released he must be kept in a special place of detention and prevented from associating with other persons charged with offences (7). The police must inform his parent or guardian of his arrest (m).

It may be noticed here that at any time between the conclusion of the examination before the magistrate and the first day of the trial at the assizes or sessions, the accused, whether held to bail or committed to prison for trial, may have on demand copies of the examination of the witnesses: upon whose depositions he has been so held to bail or com-mitted, on payment of a reasonable sum for the same, not exceeding three-halfpence for each folio of ninety words (n). And at the time of trial he may inspect the depositions without any fee (o). The same rules apply also to depositions on behalf of the prisoner (p).

The recognisances whereby the prosecutor and witnesses are bound over to appear at the trial, together with the written information (if any); the depositions; the statement of the accused; the recognisances of bail (if any); are remitted by the magistrate to the proper officer of the Court where the trial is to be had (q).

C.L.

(k) 8 Edw. VII. c. 67, s. 94.

(1) Ibid. ss. 95, 96.

(m) Ibid. s. 98.

(n) 11 & 12 Vict. c. 42, s. 27.

(0) 6 & Will. IV. c. 114, s. 4.

(p) 30 & 31 Vict. c. 35, s. 4.

(q) 11 & 12 Vict. c. 42, s. 20; 30 & 31 Vict. c. 35, s. 3.

20

CHAPTER IV.

MODES OF PROSECUTION.

THE accused has either been committed to prison for safe custody, or has been left at liberty in virtue of his having found sureties for his appearance. The next point to be considered is the prosecution (r), or manner of formal accusation. This may be either:—

A. Upon a presentment upon oath by the jury at an inquest, or by a grand jury.

B. Without such a presentment.

A. The most usual mode is by indictment, and it is desirable, in the first place, to say a few words on

Presentment. This term, taken in a wide sense, includes both an indictment found by a grand jury and an inquisition of office. In a narrow sense it is the formal notice taken by a grand jury of any matter or offence from their own knowledge or observation, without the intervention of any prosecutor or the examination of any witness, as the presentment of a nuisance by non-repair of highways (s). Such presentments are extremely rare.

An Inquisition is the record of the finding of a jury summoned to enquire of matters relating to the Crown upon evidence laid before them. The most common kind of inquisition is that of the coroner, which is held with a view to find out the cause of a death. The accused is afterwards arraigned upon the inquisition (†).

(r) In a wide sense the term "prosecution proceedings for bringing the offender to justice. (s) Archbold, 72.

(t) v. p. 318.

is applied to the whole of the