286
CRIMINAL
tices hear the case in open court; the person charged can make his defence either in person or by his solicitor or Procedure counsel> l16 can cross-examine the witnesses, for for the prosecution, call his own witnesses, and summary address the justices in his defence. The jusoffences. t|ceS) after hearing the case, either acquit or convict him, and in case of conviction award the sentence. If the sentence is a fine and the fine is not paid, the person convicted is liable to be imprisoned for the term fixed by the justices, not exceeding a scale fixed by an Act of 1879, the maximum of which is one month. The imprisonment may be with or without hard labour. Of late years this summary jurisdiction of the justices has received very large extensions, and many offences which were formerly prosecuted as serious offences by an indictment before the Court of Assize or Quarter Sessions have, where the offence was a trivial one, been made punishable, on summary proceedings before justices, by a small fine or a short term of imprisonment. The extension of the jurisdiction of the justices is open to the observation that it deprives a person charged of the protection of a jury, and also that it throws upon him, if convicted, and upon the prosecution if there is no conviction, the cost of the proceedings. The former objection is much mitigated by the enactment made in 1879, that a person if liable on conviction to be sentenced to imprisonment for more than three months, or to a fine exceeding <£100, can claim to be tried by a jury. But the objection as to the costs remains, and the payment of costs is often a very serious addition to the trivial fine ; and it is anomalous that a person convicted of a trifling offence should bear the cost of the prosecution, while if he is convicted before a superior tribunal of the most serious offence he does not pay the cost. The Criminal Evidence Act, 1898, is explained in the article on Evidence ; but as it goes to the root of the English system of criminal trials, this article requires a brief reference to it. Bentham wrote that amongst the singularities of the English common law the most remarkable is the rule that does not allow any questions to be put to the accused which might lead to the proof of his guilt. Sir James Stephen rather defended Evidence, ruiG) because it stimulated independent inquiry. Other writers maintained that any interrogation of the prisoner would be contrary to the principle “ nemo tenetur se ipsum accusare.” On the Continent of Europe the prisoner can be interrogated; and the Criminal Evidence Act, 1898, now enables every person, and the wife or husband of such person, to be a competent but not compellable witness for the defence at every stage of the procedure. No comment is allowed by the prosecution on the abstention of the accused or the accused’s wife or husband from giving evidence. Cross-examination is allowed, but previous convictions and bad antecedents are not allowed to influence the court, which is bound to judge according to the facts presented to it. The Indian procedure does not go so far as this English reform. The court is empowered to ask the accused questions generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. His answers are taken into consideration, and the court and the jury may draw such inference from the answers as appears just. The accused does not render himself liable to punishment by refusing to answer or by giving false answers. Theoretical objections often do not stand the test of practice, and the Criminal Evidence Act, 1898, has given satisfaction. In England, as already pointed out, although the prosecution is in the name of the Crown, and although a public prosecutor has been appointed, still criminal charges are conducted, with few exceptions, by
LAW
the person injured, with the assistance of the police. In the Prosecution of Offences Acts of 1879 and 1884 there is to be found the nucleus of the system of the public action such as obtains in other countries in case of crime. Under these Acts the Solicitor to the Treasury acts as Director of Public Prosecutions under the Attorney-General. But both these high officials have many other duties, and the outcome of the present system, worked as it is now, is small. The annual average of cases by jury on indictment for the five years ending 1897 was 11,633; if the indictable cases disposed of summarily were included, the annual average would be 55,174. Yet in 1897 only 414 cases were prosecuted by the Public Prosecutor. In Ireland the system is nominally the same as in England, but in practice almost all prosecutions are instituted and conducted under the direction of the Attorney-General for Ireland, who is a member of the Government of the day, and so responsible to Parliament, as in the case of the Lord Advocate. In Ireland, owing to the police being a centralized force, under the management of Commissioners residing in Dublin, any prosecution which in England might be conducted by the local police, would in Ireland be conducted under the direction of the chief of the police in Dublin, who is neceessarily in close communication with the Attorney-General. In Ireland the law relating to crimes is nearly the same as in England, but in Scotland hardly any crimes are constituted by statute law, the common law being to the effect that if a judge will direct any act to be a crime, and a jury will convict, that act is a crime. This great elasticity of the common law to include every sort of new crime which may arise is obviously one very dangerous to political liberty, as it greatly enlarges the power of the Crown to oppress political opponents, but in modern days it has its convenience in facilitating the punishment of persons committing crimes for the punishment of which in England a new Act of Parliament may be necessary. The localization in England of crime, and the procedure for punishing it, differ largely from the view taken in France and most European countries. The French theory is that a Frenchman owes allegiance to the French State, and commits a breach of that allegiance whenever he commits a crime against French law, even although he is not at the time within French territory. And in modern days this theory has been extended so as to allow the French courts to punish Frenchmen for crimes committed in foreign countries. The principle of the French law, though not expressly recognized in England, must be invoked to justify two departures from the English principle—(1) as regards offences on the high seas, and (2) as regards certain limited offences committed outside the United Kingdom. In early days offences comseas mitted by Englishmen on the high seas were punished by the Lord High Admiral, and he encroached so much on the ordinary courts as to render it necessary to pass an Act in Bichard II.’s reign (15 Kich. II. st. 2, c. 3) to restrain him. In the time of Henry VIII. (28 Hen. VIII. c. 15) an Act was passed stating that as the admiral tried persons according to the course of the civil law, they could not be convicted unless either they confessed or they or the witnesses were submitted to torture, and that therefore it was expedient to try the offences according to the course of the common law. Under that Act a special commission of Oyer and Terminer was issued to try these offences at the Old Bailey, and English law was satisfied by permitting the indictment to state that the offence was committed on board a ship on the high seas, to wit in the county of Middlesex. Since 1861 these special commissions have
