Matters Relating to Trial on Indictment
| DOI | http://doi.org/10.1177/002201839906300510 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
TheJournal of
Criminal
Law
had
refused to
hear
him. The court dismissed
the
attempt to reverse
the
magistrate's decision
on
the ground
that
'the
ex
parte
application' (the
laying of
the
information) was a preliminary to the Crown proceedings.
On
the
duty of the magistrate, it said no more
than
that
he
had
'to
see
that
it was a proper case for
the
issue of a summons'
and
that, for
that
purpose, he may,
if
he thinks proper,
hear
the defendant. But there was
no question of his having to do so or to make
any
inquiry on his own.
His duty is limited to bringing ajudicial mind to bear
on
'the
material
before him'.
Lord Widgery CJ stated
that
aperson issuing a summons should
ascertain whether: (1)
an
offence against
the
law is alleged, (2)
the
ingredients of
that
offence are prima
facie
present, (3) the court has
jurisdiction,
and
(4)
the
informant has authority to prosecute. But he
went
on
to say
that
he should also consider
whether
the allegation is
vexatious: see R v
Bros
(1901) 85
LT
581. Stress was laid on
the
fact
that
the magistrate is
not
confined to the material
put
before
him
by the
person
who
is asking for the summons, for
'he
must be able to inform
himself of all relevant facts'.
It
was added, however,
that
there was no
question of his holding apreliminary inquiry at which
the
defendant
would have a
locus
standi.
In
the
present case, the court held
that
there
was nothing implicit in
the
statement of Lord Widgery CJ beyond the
assertion
that
the
magistrate has the discretion to go beyond
the
material
put
before
him
by
the
applicant for the summons. There was no sugges-
tion
that
he is
under
any obligation to do so. R v
Bros
appears to do little
more
than
confirm
the
magistrate's discretion. In
the
present case,
Collins J pointed to the fact that all the clerk would have
known
was
that there
had
been earlier proceedings which
had
resulted in dismissal
and
in
the
discharge of the
defendants-facts
which would
not
in
themselves have made it an abuse of process to issue a summons. Even
in these circumstances, it was not the duty of the clerk or magistrate to
hold some sort of inquiry into the matter.
Matters Relating to Trial on Indictment
R v
Winchester
cc.
ex p B (A
Minor)
[1999] 1 WLR 788
A boy
who
was 13 years of age at the time of the alleged offence
and
14
years of age
when
he was tried for it was accused of
the
anal rape of a
neighbour's son aged six years. On conviction, he was sentenced to
three years' detention
under
s 53 of
the
Children
and
Young Persons Act
1933. During
the
trial, the judge
had
made
an
order
under
s 39 of
the Act, restraining
the
publication of the defendant's identity, but, on
conviction
and
sentence, he made afurther order lifting
that
restraint,
suspended for 21 days to allow an appeal, or until any appeal
had
been
disposed of. On appeal, the Court of Appeal reduced
the
sentence to two
years,
and
it extended the restraint order until
the
then
current proceed-
ings in the High Court for the judicial review of the trial judge's orders
had been heard.
408
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