Courts of Summary Jurisdiction
| DOI | 10.1177/002201836202600101 |
| Published date | 01 January 1962 |
| Date | 01 January 1962 |
| Subject Matter | Article |
The
Journal
of
Criminal Law
VOL.
XXVI. No. 1
JANUARy-MARCH,
1962
Courts
of
Summary Jurisdiction
AMAGISTRATE'S DISCRETION
AMA
TTER
of considerable importance to all magistrates
was decided on 24th August
1961
in
the
comparative
obscurityof
the
chambers of the Vacation Judge.
It
arose upon an application for an order of mandamus
directed to a Metropolitan Magistrate to compel him to hear
certain matters urged in objection to
the
grant of bail before
hearing evidence.
The
case came before
the
judge in
the
following way.
A
number
of men were arrested by
the
Police shortly
after adaring daylight robbery in which
£10,000
was stolen
and were charged with committing
that
offence. On their
appearing in court, brief evidence (commonly called "evidence
of arrest") was given by
the
Police and an objection was made
to the grant of bail.
The
evidence given did not connect
the
men in
the
dock
with the actual offence, indeed, as
the
officer in charge of
the
case pointed
out
to the magistrate, this would involve several
witnesses and
the
results of fingerprint and other scientific
evidence which were not yet to hand.
The
magistrate said
that
in
that
case he could not con-
sider aremand in custody and, without evidence connecting
the
defendants with
the
crime, he could not even listen to
the
various objections which
the
Police wished to urge against
the
grant of bail.
It
will immediately be appreciated
that
if
this
contention
expressed
the
law and were rigidly to be adhered to, it would
greatly affect
the
position of the Police when they have effected
the
arrest of any person on a grave charge.
The
magistrate was not represented at
the
hearing of
the
application for mandamus, so
that
it may here be appropriate
to give a resume of his reasons for
the
decision.
He
was given,
I
CL-l
2
THE
JOURNAL
OF
CRIMINAL
LAW
he said, a discretion to exercise.
This
discretion
must
be
exercised judicially.
To
act judicially is to act
upon
sworn,
admissible evidence.
In
the absence of such evidence how
could he exercise
the
discretion?
There
must
be a good reason
for
the
rule
that
an arrested person
must
be brought before a
magistrate
and
not
detained by
the
Police indefinitely.
That
reason
must
be to secure
that
any detention is as a result of
the
judicial discretion of
the
court
and
not
the
administrative
discretion of
the
Police.
At
the
hearing in
the
High
Court, argument ranged over
quite a wide period of legal history and it was striking to note
how great adearth of authorities exists on a question so vitally
affecting
the
liberty of the subject. None could be cited which
dealt with bail on first appearing before a magistrate, i.e.
before
the
court has begun to enquire into the matter as
examining justices.
It
was apparent that
the
question to be
resolved was one of
the
interpretation of sections 6and l0S of
the
Magistrates Courts Act 1952, the former of which gives
examining justices power to adjourn the hearing before begin-
ning to enquire into
the
offence
and
if they do so they
must
remand
the
accused. Section l0S provides
"Where
amagis-
trates' court has power to remand any person . . . the court
may remand
him
in custody . . . or . . . on bail".
On
behalf of the defendant it was strongly urged
that
Parliament could not possibly have intended these two sections
to be literally interpreted, having regard to
the
strong tradi-
tion, which has been built up in
the
courts over the years, of
safeguarding the liberty of the subject.
Widgery J., having recited
the
circumstances of
the
case,
the
provisions of
the
statute and the arguments thereon, went
on to say
that
he had no doubt
that
the nature of the evidence
in support of the accusation is one of the matters which a
court at some stage
must
have regard to, but, when called
upon
to consider
the
matter of bail before the enquiry has
begun, it may have to consider some kind of unsworn infor-
mation such as a police officer may sometimes have to act
upon
at the stage of apprehension.
It
seemed to him
that
the
words of the Act were crystal clear and without ambiguity
and
he concluded:
"They
appear to me to say that remand with
discretion as to bail, which s.105 introduces, is something
which can occur before
the
magistrate has begun to hear
the
matter at all and, therefore, I am bound to rule that the dis-
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