ought to be preferred (u), and the indictment may then be preferred in spite of the magistrate's refusal to commit; this, however, does not apply where the magistrate has refused to grant a summons (w). Subsequent process. The grand jury having found a true bill, the next point to be considered is the process (the writs or judicial means) issued, or made to proceed, to compel the attendance of the accused to answer the charge. Of course this is not required if he is in custody, or if, having been bound by recognisance to appear and take his trial, he surrenders to his bail; in such case he may be tried as soon as is convenient. If he is in custody of another Court for some other offence, the course is to remove him by a writ of habeas corpus, and bring him up to plead. But if he is already in the custody of the same Court, there is no need for such writ (a). If, however, an indictment has been found in the absence of the accused, and he is not in custody and has not been bound over to appear at the assizes or sessions, then process must issue to bring him into Court. Process in ordinary cases is now regulated by 11 & 12 Vict. c. 42, s. 3. When an indictment has been found at the assizes or sessions against some person who is at large, the clerk of indictments, or clerk of the peace, after such assizes or sessions, upon the application of the prosecutor or any person on his behalf, will grant a certificate of such indictment having been found. Upon production of this certificate to any justice of the jurisdiction where the offence is alleged to have been committed, or in which the accused resides, or is, or is suspected of residing or being, such justice must issue his warrant to apprehend the person so indicted and bring him before some justice of the jurisdiction, who, upon proof by oath that the person present is the person indicted, will, without further enquiry or examination, commit (u) 22 & 23 Vict. c. 17, s. 2. (w) Ex parte Reid, [1885] 49 J. P. 600. him for trial or admit him to bail. Provision is also made for the backing of such warrant if the accused is out of the above jurisdiction (b). If he is already in prison, the justice must issue his warrant to the gaoler, ordering him to detain him until removed by habeas corpus or otherwise in due course of law (c). Another mode of proceeding, though one not usually adopted unless the case is urgent, is for the Court before whom the indictment is found to issue a bench warrant for the arrest of the accused, and to bring him immediately before such Court. At the assizes it is signed by the Judge, at sessions by two justices of the peace. It has been said, however, that this process only applies to cases of misdemeanour (d). Any Judge of the King's Bench Division, upon affidavit or certificate that an indictment has been found, or information filed in that Court against any person for a misdemeanour, may issue his warrant for apprehending and holding the accused to bail, and in default of bail he may commit him to prison (e). Outlawry. If the accused person does not appear to plead to the indictment and summary process proves ineffectual to secure his apprehension, process of outlawry is issued and after the issue of certain writs and proclamations judgment of outlawry may be pronounced (ƒ). An outlawry in treason and felony amounts to a conviction upon the indictment, but in cases of misdemeanour it amounts merely to a conviction for the contempt in not appearing. In any case, however, the defendant incurs forfeiture of his goods, and in treason or felony of his lands also, the Forfeiture Act, 1870, not applying to forfeiture on outlawry (g). Proceedings in outlawry are rare and may almost be said to be extinct (h). (b) 11 & 12 Vict. c. 42, s. 11. (c) Ibid. s. 3. (d) Archbold, 84. (e) 48 Geo. III. c. 58, s. 1. (f) See Crown Office Rules, 1906, 88-101. (g) v. p. 7. (h) Archbold, 86. Time of Trial.-Indictments for felony are tried at the same assizes or sessions at which they are found by the grand jury. The trial may, however, be postponed to the next assizes or sessions, on the application of either the prosecutor or the defendant. But he must satisfy the Court by affidavit that there is sufficient cause for the postponement, such as the illness or unavoidable absence of a material witness. The defendant will be detained in custody till the trial, or admitted to bail, as the Court thinks fit (i). In misdemeanours, formerly when the defendant was not in custody it was the practice not to try him at the same assizes or sessions at which he pleaded not guilty to the indictment, but to require him to give security to appear at the next assizes or sessions. But now it is provided generally that-No person prosecuted is entitled to traverse or postpone the trial of any indictment found against him, provided that, if the Court be of opinion that the defendant ought to be allowed a further time either to prepare for his defence or otherwise, it may adjourn his trial to the next subsequent session, upon such terms as to bail or otherwise as may seem proper (k). (i) As to postponement when an indictment has been amended, v. p. 312. (k) 14 & 15 Vict. c. 100, s. 27. CHAPTER VII. CERTIORARI. We have already ascertained where the trial of an offence will, in the regular course of things, take place. But any criminal proceeding may be removed by a writ of certiorari into the King's Bench Division, the supreme Court of criminal jurisdiction. This writ is directed to the inferior Court, requiring it to return the records of an indictment, or inquisition, depending before it, so that the party may have a trial in the King's Bench Division or before such justices as the King shall assign to hear and determine the cause. The result is that the jurisdiction of the inferior Court is superseded, and all subsequent proceedings there are illegal, unless the King's Bench remands the record back to the inferior Court for trial. The proper time to apply for this writ is before issue is joined on the indictment, or at least before the jury are sworn, though it may be allowed at a later stage (1). The writ is demandable as of right by the Crown, and issues as of course when the Attorney-General or other officer of the Crown applies for it (m). Formerly, it was granted almost of course to private prosecutors; but now it is provided that no indictment (except indictments against bodies corporate not authorised to appear by attorney in the Court in which the indictment is preferred) shall be (1) Archbold, 112. Proceedings may be removed into the King's Bench Division from the Crown Court of Assize, even after judgment, without a certiorari by an order for removal, which is obtained in the same way as certiorari; R. v. Dudley, 14 Q. B. D. 273, 560; R. v. Chambers, W. N. 1919, p. 95. (m) R. v. Eaton, [1799] 2 T. R. 89. removed into the King's Bench Division or Central Criminal Court by writ of certiorari either at the instance of prosecutor or of defendant (except the Attorney-General on behalf of the Crown), unless it be made to appear to the Court from which the writ is to issue, (i) that a fair and impartial trial of the case cannot be had in the Court below; or (ii) that some question of law of more than usual difficulty and importance is likely to arise upon the trial; or (iii) that it may be necessary to have a view of premises [in "some other county” (n)] in respect whereof the indictment is preferred; or (iv) that a special jury may be required to ensure satisfactory trial (o). But an application by the defendant will not be granted for the removal of an indictment for perjury or other heinous misdemeanours when the delay tends to defeat the prosecution, nor usually for murder or a serious felony (p). Nor in general will it be removed from a Court of competent jurisdiction where one of the Judges of the High Court presides (q), unless great local prejudice, likely to lead to an unfair trial, is shown to exist. a The mode of obtaining the writ by private prosecutors or by defendants as settled by the Crown Office Rules, 1906, is the following: Every application for a writ of certiorari to remove an indictment must, during the sittings, be made to a Divisional Court by motion for an order nisi to show cause, and in the vacation to a Judge at Chambers, for a summons to show cause; but where, from special circumstances, the Court or a Judge may be of opinion that the writ should issue forthwith, the order may be made absolute in the first instance. Every application must be supported by an affidavit showing the ground upon which it is made. Upon the return of the order nisi, or of the summons, as the case may be, the Court or Judge will, if sufficient cause be shown, order a writ of certiorari to issue. No writ of certiorari will be allowed (n) R. v. Martin, L. R. 1 C. C. R. 378; 41 L. J. M. C. 113. (0) Crown Office Rules, 1906, r. 13. (p) Archbold, 112. (q) Ibid. |