CHAPTER XI.

ARREST-MAGISTERIAL EXAMINATION-SUMMARY

JURISDICTION.

Now touching the arrest of offenders some distinctions must be taken. The arrest is made with or without a magistrate's warrant; it is made for felony or some other offence; it is made by a private person, or by a constable or other peace officer.1 An illegal arrest is of course a serious matter; therefore we will first take a statement of the common (non-statutory) law from Mr. Justice Stephen's History :—

"1. Any person may arrest any person who is actually committing or has actually committed any felony.

"2. Any person may arrest any person whom he suspects on reasonable grounds to have committed any felony, if a felony has actually been committed.

"3. Any constable may arrest any person whom he suspects on reasonable grounds of having committed any felony, whether in fact any such felony has been committed or not.

1 It seems probable that justices, sheriffs, and coroners, have at least some of the special powers of constables, but there is little modern authority on the topic, since it is not now considered one of their regular duties to seek out and arrest offenders.

"The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual. In such cases, the arrest had to be made not so much for the purpose of bringing the offender to justice as in order to preserve the peace, and the right to arrest was accordingly limited to cases in which the person to be arrested was taken in the fact, or immediately after its commission."

The distinction between the power of the private man and that of the constable is so important that a second statement may be welcome: "Under the common law, if a felony were actually committed, a person might be arrested without a warrant by any one, if he were reasonably suspected of having committed the felony; and a constable could go further: if he had reasonable ground for supposing that a felony had been committed, and reasonable ground for supposing that a certain person had committed the supposed felony, he might arrest him, though no felony had actually been committed." "2

But on this basis of common law an elaborate superstructure has been raised by modern statutes, which have largely extended the power of summary arrest allowed to the private man, and still more largely the power of the constable. Any person may now, without warrant, arrest any person whom he finds committing any crime at night, and may arrest at any time any person whom he finds committing any one of several great classes of crime. One of these classes comprehends the various forms of theft and crimes cognate to theft, another

1 Stephen, Hist. Crim. Law, Vol. I., p. 193.

2 Mr. Justice Blackburn, Law Reports, Queen's Bench, Vol. I., p. 456.

coinage offences, and there are others. Some of these crimes are felonies, some misdemeanours; but the power thus given by statute is not a power to arrest on suspicion or even on certain knowledge that a crime has been committed; it only exists when a person is "found committing" the crime. Again, to constables statutes have given powers of summarily arresting persons found committing any of many other offences some of which are not (in our sense) 1 crimes, especially what are called "street offences." Within the Metropolitan Police District there prevails a special code which denounces small punishments against various petty nuisances committed in the open street, riding on the footway, beating carpets, throwing things out of window, leaving cellar-traps open, and so forth; and a somewhat similar code prevails in every "urban district." 2 Persons who are found committing these street offences a constable can arrest without warrant, if he cannot ascertain their names and residences. Divers acts of cruelty to animals are offences punishable on summary conviction, and a constable may arrest for these without warrant if he sees them, or is informed of them by a person who gives his name and abode. So the man who is drunk and disorderly in a public place may be arrested. Indeed, the catalogue of offences for which a constable may take one into custody flagrante delicto is long. Then again (more particularly within the Metropolitan District) constables have certain powers of apprehending those who, in

1 See above, p. 16.

2 This includes the municipal boroughs and some other places. See Citizen Series, Chalmers, Local Government, p.

109.

certain suspicious circumstances, are apparently about to commit crimes.

The outline of these statutory powers is irregular and not to be briefly defined. A power of immediate arrest is requisite for the punishment of some small offences, and not nearly so requisite in the case of some grave crimes. If a man is "wanted" for bigamy (which is a felony), perjury, bribery, or the like, there is no great need for arresting him without warrant, but there is little chance of punishing street offences unless the offender can be apprehended on the spot.

When no arrest has been made, and it is desired that a person accused of crime shall be committed for trial, then an information must be laid before a justice, who will issue a summons against that person, or a warrant for his apprehension. The information is a statement that he has committed, or is suspected of having committed, the crime, and if, as is most usual, a warrant is to be issued without any previous summons, the information must be in writing and sworn. A summons will contain a brief statement of the accusation, and an order requiring the accused to appear at a given time and place. It must be served upon him personally, or, if he cannot conveniently be met with, left with some person at his last or usual abode. If he fails to appear, a warrant can be issued for his apprehension; but, as already said, the justice having a sworn information before him can, if he thinks fit, issue a warrant in the first instance, and generally does so. The warrant must state the substance of the charge, and must name or describe the person to be arrested, and will order some constable, or other person named in it, or generally the constables of the area over which the magistrate's com

mission extends, to apprehend the accused. Territorially the magistrate has power to cause his arrest, if either he be resident within that area, or (according to the information) the crime was committed within that area; but if the arrest is to be made elsewhere, then, as a rule, the warrant must be backed by some magistrate commissioned for the place where the arrest is to be made. The apprehending constable must have with him the warrant, and show it if required. Unless there is some grave and apparent irregularity the constable must obey the warrant, and in so doing will have the law on his side.

A police constable enjoys some special protection; for assaulting him when in the execution of his duty one may be punished summarily by a £20 fine or six months imprisonment, which is a severer sentence than can be passed after a summary conviction for a common assault on a private man; while to assault any person with intent to resist lawful apprehension is a serious indictable crime. But the law expects of bystanders more than benevolent neutrality; it expects them to assist a constable who in making an arrest calls for their aid, and it will punish them if they refuse assistance.

Thus far as to the means for compelling the appearance of one who is charged with a crime. If it is desired to bring before a Court of Summary Jurisdiction one who has been guilty of a minor offence and who is not in custody, the process is much the same. An information is laid before a magistrate whose commission extends over the place where the deed was done, and he, unless the charge seems groundless, issues a summons, or, if he thinks fit and the information is

1 See above, p. 8.