recognisance by him to appear at the trial and give evidence. If they do not appear, the recognisances may be estreated and the penalty levied. All other witnesses may be compelled to attend by subpoena. This may be issued either at the Crown Office in London, or by the clerk of assize, or clerk of the peace at sessions. A copy of the writ is served upon the witness personally, the original writ being shown to him, and the subpoena may be served in any part of the United Kingdom (r).

The Merchant Shipping Act, 1894, contains a provision (s) by which, under certain circumstances, evidence taken abroad can be used upon a trial in England for a criminal offence. Whenever in the course of any legal proceeding the testimony of a witness is required, then, upon due proof that the witness cannot be found in the United Kingdom, any deposition that the witness may have previously made on oath relative to the same subject-matter before any magistrate in His Majesty's Dominions other than the United Kingdom, or any British Consular officer elsewhere, shall be admissible, provided that in criminal cases the deposition shall not be admissible unless it was made in the presence of the person accused, and the fact of it being made in his presence must be certified by the official before whom the deposition is made. If a written instrument, required as evidence, is in the possession of some person, he is served with a subpoena duces tecum, ordering him to bring it with him to the trial. Unless he has some excuse, allowed to be valid by the Court, he must produce it at the trial. Such lawful excuses are the following that the instrument will tend to criminate the person producing it, or, if he be a solicitor, his client, or that it is his title-deed.

In the event of the non-appearance of a witness in answer to a subpœna, he incurs certain penalties. If the writ has been sued out of the Crown Office, the King's Bench Division of the High Court will, upon application, grant an attachment for the contempt of Court. In other cases the

(r) 45 Geo. III. c. 92, ss. 3, 4.
(s) 57 & 58 Vict. c. 60, s. 691.

proceedings must be by way of indictment (t). But to render a witness subject to these penalties, he must have been served personally a reasonable time before the trial, and, if he is served in Scotland or Ireland, a sufficient sum to cover his expenses of coming and attending to give evidence and of returning must have been tendered to him at the time of service (u). And as regards a witness served in England, if his expenses have not been tendered, and he is so poor as not to be able to go to the place of trial, this will probably be allowed by the Court as a sufficient excuse.

If the witness is in custody, the proceedings are different. If in criminal custody, a Secretary of State, or any Judge of the King's Bench Division, may, on application by affidavit, issue a warrant or order under his hand for bringing up such person to be examined as a witness (w), or his attendance may be secured by a writ of habeas corpus ad testificandum. If in civil custody, a writ of hab. corp. ad test. is obtained upon application to a Judge in Chambers, founded upon an affidavit stating that the person to be brought up is a material witness. If the evidence of a person in Court is required, he is bound to give it, although he has not been subpoenaed.

A witness, whether subpoenaed or bound over by recognisance or even if attending voluntarily (r), either to prosecute or give evidence, is privileged from arrest whilst attending the trial on every day of the assizes or sessions until the case is tried, also for a reasonable time before and after trial whilst coming to or returning from the place of trial.

As we have seen, preventing a witness from attending or giving evidence is a contempt of Court; and intimidating a witness from giving or attempting to persuade him not to give evidence for the prosecution is a misdemeanour (y).

(t) Archbold, 468.

(u) 45 Geo. III. c. 92, s. 4.

(w) 16 & 17 Vict. c. 30, s. 9; Crown Office Rules, 1906, rr. 228, 229; 61 & 62 Vict. c. 41, s. 11.

(x) Archbold, 467; Meekins v. Smith, [1791] 1 H. Bl. 636.

(y) v. p. 82.

A Court of Assize or Quarter Sessions before which any indictable offence is prosecuted, and also a Court of summary jurisdiction by which an indictable offence is dealt with summarily, or justices before whom a charge of an indictable offence is made but is not dealt with summarily, may direct the payment of the costs of the prosecution, or the defence, or both, out of the funds of the county or county borough; these costs are, subject to the regulations of the Secretary of State (who may fix rates or scales of payment), such as appear to the Court to be reasonably sufficient to compensate the prosecutor for the expenses incurred by him in carrying on the prosecution, and to compensate any witness for the prosecution or defence (except witnesses to character only unless specially directed) for his expense, trouble, or loss of time in attending and giving evidence (2).

In addition to any other punishment the Court before which any person is convicted of an indictable offence may, if it think fit, order the person convicted to pay the whole or any part of the costs of the prosecution (a). And in certain cases-viz., where a person is acquitted on an indictment by a private prosecutor for the publication of a defamatory libel, or for any offence against the Corrupt Practices Prevention Act, 1854 (b), or for any corrupt practice under the Corrupt and Illegal Practices Prevention Act, 1883 (c), or on an indictment under the Merchandise Marks Acts, 1887 to 1894, or on an indictment under the Vexatious Indictments Act, 1859 (d), in a case where the defendant has not been committed for trial or bound by recognisance to answer the indictment the Court before which he is acquitted may order the prosecutor to pay the whole or part of the costs of the defence (e). Moreover, where justices dismiss a charge of an indictable offence they may make a similar order against the prosecutor if they are of opinion that the charge was not made

(z) 8 Edw. VII. c. 15 (Costs in Criminal Cases Act, 1908), s. 1.
(a) Ibid. s. 6, sub-s. 1.

(b) 17 & 18 Vict. c. 102.

(c) 46 & 47 Vict. c. 51.

(d) 22 & 23 Vict. c. 17.

(e) 8 Edw. VII. c. 15, s. 6, sub-s. 2.

in good faith, but if the amount of the costs so ordered to be paid exceeds £25 the prosecutor may appeal to Quarter Sessions against the order (ƒ).

Similarly if a person is committed for trial and is not tried (which may be because no indictment is preferred against him or because the grand jury have refused to find a true bill), the prosecutor may be ordered to pay costs as if the defendant had been acquitted (g).

The Costs in Criminal Cases Act, 1908, does not apply to prosecutions for the non-repair or obstruction of any highway, public bridge, or navigable river. Costs in such cases may be allowed against the unsuccessful party as in civil proceedings (h).

(f) Ibid. s. 6, sub-s. 3.
(g) Ibid. s. 7.

(h) Ibid. s. 9, sub-s. 3.

CHAPTER XII.

THE EXAMINATION OF WITNESSES.

THIS is a subject on which, though a wide latitude is allowed to counsel, some rules may be laid down as directly authorised, others as developed in and sanctioned by practice.

We have already noticed the general course of the examination of witnesses (a); namely, that the witnesses for the prosecution are first examined in chief by the counsel for the prosecution, and then cross-examined by the counsel for the defence; and after the case for the prosecution has closed, then the witnesses for the defence are examined by the counsel for the defence, and cross-examined by the counsel for the prosecution; in each case the witness being reexamined by the party calling him, if it is thought desirable. It should also be remembered that the Court may at any time put such questions as it thinks fit to the witness, even after he has left the witness-box; and that if after the counsel has finished his examination or cross-examination, he thinks of some other question which ought to have been asked, that question can be put only through or by leave of the Court.

It is usual for counsel for the prosecution to call all the witnesses whose names are on the back of the indictment, even though he may not wish to ask them any question, the object being to afford the defence an opportunity to cross-examine if they so desire. In such a case the counsel for the prosecution may may re-examine. Nevertheless prosecutor is not in strictness bound to call every witness whose name is on the back of the indictment, although it

(a) v. p. 361.

a