The sureties. Refusing or delaying bail. probability of the accused appearing to take his trial, and not his supposed guilt or innocence (z). Though this latter point may be one element to be considered in applying the test. Thus it has been laid down that the points which the court will consider in exercising their discretion include the seriousness of the charge, the evidence in support of it, and the punishment which the law awards for the offence (a). Practically in charges of murder, bail is never allowed. And when a bill has been found against the accused, naturally more caution will be exercised. Who may be bail? The magistrate (or court, v. infra) will act according to his discretion as to the sufficiency of the bail. The proposed bail may be examined upon oath as to their means, though in criminal cases no justification of bail is required. A married woman, an infant, or a prisoner in custody, cannot be bail; nor can a person who has been convicted of an infamous crime, as perjury (). The usual number of bail is two; but sometimes only one is required, and sometimes three or more. The sureties or bail are not compelled to act as such for a longer time than they wish. If they surrender the accused before the magistrate or court by whom he has been bailed, he will be committed to prison, and they will be discharged of their obligation. But the accused may then find fresh sureties. Both at common law and by statute (c), to refuse or delay to bail any person bailable is a misdemeanor in the magistrate. But it has been held that the duty of a magistrate in respect of admitting to bail is a (z) R. v. Scaife, 5 Jur. 700. (a) In re Barronet, 22 L. J. (M.C.) 25; In re Robinson, 23 L. J. (Q.B.) 286. (b) v. R. v. Edwards, 4 T. R. 440. (e) 3 Edw. 1, c. 15; 31 Car. 2, c. 2 (Habeas Corpus); 1 Wm. & M. st. 2, c. 1 (Bill of Rights). judicial duty; and therefore that not even an action can be maintained against him for refusing to admit to bail, where the matter is one as to which he may exercise his discretion (d). It is provided by the Bill of Rights that excessive bail ought not to be required; though Excessive bail. what is excessive must be left to be determined by the court in considering the circumstances of the case. If the magistrate or other authority admits to bail where this is not allowable, or if he takes insufficient bail, he is liable to punishment on the non-appearance of the accused (e). committal for trial. The stage in the proceedings where the question of Bail after bail usually arises is when the accused is before the magistrates. But when a person charged with an indictable offence has been committed to prison to await his trial, it is lawful at any time afterwards, before the first day of the sessions or assizes at which he is to be tried, for the magistrate who signed the warrant for his commitment to admit him to bail (ƒ). As to bail in other cases than in proceedings before the magistrates: Division. The Queen's Bench Division, or, in vacation time, a Bail by Queen's Bench judge thereof (g), has a discretionary power of admitting to bail a prisoner charged with any indictable offence, or on suspicion thereof; and this whether he is brought before the court by a writ of habeas corpus or otherwise. It may bail as well in cases where bail has been refused by the magistrate, as when the charge has been originally brought before the Division. It may order the accused to be admitted to bail before a magistrate when it is inconvenient to bring him and his bail up to town. (d) Linford v. Fitzroy, 18 L. J. (M.C.) 108; R. v. Badger, 12 L. J. (M.C.) 66. (e) Hale's Sum. 97. (f) 11 & 12 Vict. c. 42, s. 23. (g) 1 & 2 Vict. c. 45. Y Bail by judicial officers. The accused may have copies of the depositions. It seems to be a good general rule that so far as any persons are judges of any crime, so far they have the power of bailing a person indicted before them of such crime (h): so that:— Justices in Sessions may bail persons indicted at the sessions. Judges of Gaol Delivery, &c., may bail those indicted at the assizes or Central Criminal Court when they are sitting. If one accused of treason or felony is not tried at the first sessions of gaol delivery after commitment, he may demand to be released or bailed, unless it appears on oath that the witnesses for the prosecution could not be present at those sessions. If he is not tried at the second sessions, he must be discharged from imprisonment (). Coroners are authorized to admit to bail persons charged with manslaughter by verdict of the coroner's jury (k). It may be noticed here that at any time between the conclusion of the examination before the magistrate and the first day of the trial at the assizes or sessions, the accused, whether held to bail or committed to prison for trial, may have on demand copies of the examination of the witnesses upon whose depositions he has been so held to bail or committed, on payment of a reasonable sum for the same, not exceeding three halfpence for each folio of ninety words (). And at the time of trial he may inspect the depositions without any fee (m). The same rules apply also to depositions on behalf of the prisoner (n). (h) 2 Hawk. c. 15, s. 54. (i) 31 Car. 2, c. 2, s. 7. (k) 22 Vict. c. 33, s. 1. As to personating bail, v. p. 238. (n) 30 & 31 Vict. c. 35, s. 4. &c., to the The recognizances whereby the prosecutor and wit- Delivery of nesses are bound over to appear at the trial, together recognizances, with the written information (if any); the depositions; court. the statement of the accused; the recognizances of bail (if any); are to be delivered to the proper officer of the court where the trial is to be had (0). (0) 11 & 12 Vict. c. 42, s. 20; 30 & 31 Vict. c. 35, s. 3. Modes of prosecution. After a finding CHAPTER V. MODES OF PROSECUTION. THE accused has either been committed to prison for safe custody, or has been left at liberty in virtue of his having found sureties for his appearance. The next point to be considered is the prosecution (p), or manner of formal accusation. This may be either (q): A. Upon a previous finding of the fact by an inquest or grand jury. B. Without such previous finding. A. The most usual mode is by indictment, though by the grand it will be necessary in the first place to say a few jury. Presentment. words on Presentment. This term, taken in a wide sense, includes both indictments by a grand jury and inquisitions of office. In a narrow sense it refers to the former only, and is the notice taken by a grand jury of any matter or offence from their own knowledge or observations, without any bill of indictment laid before them at the suit of the Crown, as the presentment of a libel, &c., upon which the officer of the court must afterwards frame an indictment before the party prosecuted can be put to answer it (r). So that it differs from (p) In a wide sense the term "prosecution" is applied to the whole of the proceedings for bringing the offender to justice. (q) 4 Bl. 301. (r) Ibid. |