Courts of Summary Jurisdiction

Date01 January 1940
DOI10.1177/002201834000400101
Published date01 January 1940
Subject MatterCourts of Summary Jurisdiction
TIle
J
ourIlal
of
Crilllillal
Law
VOL.
I\".
;\0.
I.
].o\)'I;L\Hy-MARCH,
1940
Courts
of
Summary Jurisdiction
THE
EXTENT OF AN ADYOCATE':; AUTHORITY TO
E.1"ITTER
A PLEA
FOR
HIS
CLIENT
Police u. Kalmanson
Axinteresting point on the extent of the authority of a
solicitor to coriduct his client's case arose in
the
above
prosecution at Bow Street police court before
Mr.
R. E.
Dumrnett.
The
defendant, who was charged with dangerous
and careless driving, was originally summoned to appear on
the
16th August. On
that
date he was reported to be abroad
and
the
hearing was accordingly adjourned to the
rzth
October.
During
the
adjournment war broke out,
and
when the case
was called again, the solicitor appearing for the defendant
stated
that
he was still in Madeira
and
unable,
under
existing
travel conditions, to return.
The
defendant's advocate added,
however,
that
he had consulted with counsel for
the
prosecu-
tion and had an opportunity of learning
the
case he
had
to
meet, and on the facts disclosed he felt
that
he must, on
behalf of his client, plead guilty to the summons for careless
driving. Counsel for
the
police was willing to accept this
plea and
not
to proceed
with
the
charge of dangerous driving.
The
magistrate inquired whether the defendant
had
authorized
the
course proposed to be. taken,
and
his solicitor
admitted
that
he had
not
but
that
his instructions were
generally to plead not guilty.
The
solicitor gave it as his
opinion, having read the statements of
the
witnesses of
the
prosecution,
that
he could not resist aconviction
on
the
lesser charge.
Mr.
Dummett
said, however,
that
he did
not·
A
2
THE
JOURNAL OF CRIMINAL LAW
feel in the circumstances that he ought to accept the plea
offered, and he adjourned both summonses sine die.
In Chinen v. Parrott (1863, 14 C.B.
N.S.,
74), Erie C.J.
said:
"I
apprehend the rule of law is well established that
the general authority to conduct a cause gives the attorney
authority to
compromise";
but
in Fray v. Voules (1859,
1E. &E., 839) there was a modification of this general
pronouncement and the ruling of the court was expressed
in these
words:
"An
attorney retained to conduct a cause
is entitled, in the exercise of his discretion, to enter into
acompromise, if he does so reasonably, skilfully, and bona
fides . . . provided always that his client has given him no
express directions to the contrary." Both these decisions
related to civil actions and are not necessarily strictly applicable
in all circumstances to criminal cases; for an advocate in a
criminal case has a duty to the court to assist it in doing justice
and is not merely engaged in securing a
triumph
for his
client.
It
is clear from R. v. Southey (1865, 4F. &F.,
864)-
a
murder
case-that
adefendant
uiho»
is present and hears
his counsel adopt acertain course and .does not expressly
disavow him, cannot afterwards set up that the defence
put
forward was unauthorized. But
R.
v. Yscuado (1854, 6Cox
C.C., 386) and R. v. Aves (1871,
35
J.P., 533) show
that
the
judges will be
prompt
to disallow legal representation which
is not directly acknowledged by
the
defendant..
In
the former
case the accused was found to be ' mute of malice ' when
he refused to plead to the
charge;
he still remained mute
when the judge offered him counsel, and counsel, though
willing to act, was held
not
to be entitled to appear and
conduct the defence. R. v. Aves was a case in which the
father of a defendant who was ill instructed asolicitor to
appear in a criminal prosecution.
The
solicitor advised and
entered a plea of guilty.
It
was held
that
he had not been
instructed by the accused and the conviction was quashed.
It
is doubtful whether, if
Mr.
Dummett
had accepted
the plea tendered in the Bow Street case, the conviction could

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