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446
PUBLIC RECORD OFFICE
Reference :-
TLC.O.885
سائسسالسا
7
APPENDIX B.
POINTS OF PROCEDURE ASSUMED TO EXIST IN A PROCEDURE CODE.
Though the following draft does not deal with procedure, I must, in order to make clear the intended operation of the code of the substan- tive law, indicate a few of the rules of procedure, of which. I have assumed the existence.
TRIAL OF OFFENCES.
In the division of offences into Felonies, Misdemeanours and Simple Offences, it is intended that Felonies and Misdemeanours should be indictable offences, .e., should be tried before a judge and jury, and that Simple Offences should be tried summarily, f.e., in a magistrate's
court.
To this rule there should be exceptions in regard to adults charged with comparatively trifling indictable offences, and children whose cases should be capable, under certain circumstances, of being disposed of summarily on their first appearance before a magistrate.
As regards adults, the offences, a charge of which would make it possible to treat them in this way, should be carefully scheduled; and such a treatment should be at the discretion of the magistrate, and on the application of the prisoner.
In the case of children it would probably be thought advisable to follow the present English law, and make any charge against a child, not involving homicide, capable of trial by, and at the discretion of, the magistrate; possibly giving the child's parent a right to demand to have him sent before a judge and jury in the ordinary way.
In both cases, though the charge remained one of Felony or Miade- meanour, all the incidents and consequences of the trial would be those of the trial of a Simple Offence.
Provision should be made as to the maximum sentences to be passed.
The Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), 88. 10-15, amended by the Summary Jurisdiction Act, 1899 (62 & 63 Vict. c. 22)} affords the leading example of legislation on these lines; but the draft- ing there employed could probably be considerably improved. See too the Queensland Code, as. 678, 389; 443, 444, and 480.
ARREST WITHOUT WARRANT.
The general principle to apply to arrest would seem to be, that any person who has committed a felony is liable to be arrested without a warrant by anybody. This rule, however, cannot be laid down without many qualifications, for two reasons. In the first place, the reason for making a man liable to summary arrest is not only the gravity of the offence he is supposed to have committed, but the degree of certainty which the person arresting him may have that he has committed it. Perjury, for example, may be a very serious offence, but to make it lawful for a defeated litigant to arrest his opponent on a suspicion of having committed, would probably lead to considerable confusion. In the second place, the circumstances of an arrest differ so much that a neglect to arrest might be disgraceful cowardice, or an arrest might be gross persecution. To provide the qualifications needed by my first ground of exception to the general principle, I append the draft of a section which I propose for insertion in the Code of Procedure; the qualifications needed by the second ground I have tried to provide in sections 29-37 of my draft.
Arrest without Warrant.—Any person may be arrested without a A 379. warrant who has committed any felony, except any felony created or made punishable by any of the following sections, namely, s. 73, Unlawful Drilling; &. 81, Official Corruption; s. 85, Unlawful Celebra- tion of Marriage; s. 91, Damaging Post Office Property or Telegraph ; 8. 99, Perjury; s. 101, Making a False Oath; s. 103, Fabricating Evidence; ■. 105, Conspiring to pervert or defeat Justice; a. 106, Con- spiring to bring a false Accusation : s. 107, Corruptly influencing Juries or Witnesses; a. 113, Offences by Peace Officers or Officers of Prisons; s. 120, Attempt to have unnatural carnal knowledge; s. 122, House- holder permitting Defilement, &c.; s. 162, Conspiracy and Incitement to murder: L 165, Aiding and procuring Suicide; 166, Killing unborn Child; s. 167, Procuring Miscarriage; s. 168, Woman procuring her own Miscarriage; s. 169, Supplying Instruments to procure Mis- carriage; s. 170, Neglecting to procure Assistance at Child-birth; ■. 177,
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