Recent Judicial Decisions
| Published date | 01 April 1948 |
| Date | 01 April 1948 |
| DOI | http://doi.org/10.1177/0032258X4802100204 |
| Subject Matter | Article |
Recent Judicial Decisions
PROCEDURE AT PRELIMINARY
INVESTIGATION:
CAUTION
R. v, Berry
IFthere is some defect in the preliminary investigation before magis-
trates into an indictable offence, such as the giving of the caution
to the accused prescribed by the Criminal Justice Act, 1925, S. 12 (2)
at the wrong stage in the proceedings, there is a danger
that
the sub-
sequent trial may be held to be a nullity as the accused has never been
properly committed.
The
procedure which the defence was allowed
by the magistrates to adopt in R. v. Berry (32 Cr. App. R. 70) is possibly
not uncommon.
The
Court of Criminal Appeal was able to hold that
it did not invalidate the subsequent trial and conviction.
Immediately after the last witness for
the
prosecution had been
called at
the
preliminary investigation and before the justices had
administered to the prisoner
the
statutory caution, the prisoner's
solicitor made asubmission
that
there was no case to answer for com-
mittal for trial.
The
justices heard the submission, which was a
lengthy one, and ruled
that
there was a prima facie case for committal
in custody to
the
next assizes.
The
justices then administered the
statutory caution and gave the prisoner the opportunity of making a
statement, giving evidence and calling witnesses;
but
the
prisoner,
after protesting against the procedure, said that he was
not
guilty and
reserved his defence. On his subsequent conviction an appeal was
brought on the ground of non-compliance with the provisions of the
Criminal Justice Act, 1925, in
that
the justices had determined to
commit the prisoner before he had had the opportunity of making a
statement, giving evidence or calling witnesses.
In
dismissing the appeal the Court said
that
as the solicitor for
the defence chose to make his submission that there was no case to
answer, the justices naturally had to rule upon it.
They
might have
said to him: " Sit down; we are going to
put
the statutory caution and
we will hear you afterwards,"
but
the solicitor having got up and
caught the ear of the court, made a lengthy submission.
Then
the
justices said
that
there was sufficient prima facie evidence to commit;
in other words, they did
not
agree with the submission. When
the
caution was then
put
to the accused, obviously acting under
the
advice
of his solicitor, he said: "
Just
now I thought the case was finished
because
the
magistrate said bail
had
been refused, or words to that
effect. I did not get a chance to plead before
the
case was closed.
The
question which has
just
been read to me was read after the magis-
trate had said that there was sufficient evidence. I very strongly
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