The Queen v. Hughes. 1879 [4 Queen's Bench Division, 614.] June 21, 1879. *THE QUEEN V. HUGHES. [CROWN CASE RESERVED.] Perjury-Petty Sessions—Jurisdiction of Justices—Information-Warrant, [614 H., a police constable, procured a warrant to be illegally issued, without a written information or oath, for the arrest of S., upon a charge of "assaulting and obstructing him, H., in the discharge of his duty." Upon such warrant S. was arrested and brought before justices, and was, without objection, tried by them and convicted. H. was afterwards indicted for perjury committed on the said trial of S., and convicted: Held, by Lord Coleridge, C.J., Denman, J., Pollock and Huddleston, BB., Field, Lindley, Manisty, Hawkins, and Lopes, JJ. (Kelly, L.C.B., dissenting), that H. was rightly convicted, notwithstanding that there was neither written information, nor oath, to justify the issue of the warrant, and that the justices had jurisdiction to hear the charge, though the warrant upon which the accused was brought before them was illegal. CASE reserved by Bramwell, L.J. "Owen Hughes was convicted before me at the last Anglesea *Assizes, of perjury. He swore falsely and [615 corruptly on the hearing of a charge against John Stanley at petty sessions, for an assault on him, Owen Hughes, and for obstructing him, being a police constable, in the discharge of his duty. But it was objected that the defendant Owen Hughes should be acquitted, on the ground that the proceedings were informal and without jurisdiction in the magistrates who heard the case. Hughes went to the office of the clerk to the justices, saw there a clerk of the clerk, and told him he wanted a warrant against John Stanley, for assaulting him and obstructing him in the discharge of his duty. The clerk gave him a form of a warrant to that effect, which Hughes took to a magistrate, who signed it. There was no written information nor oath by Hughes, or any other person, to found or justify the issuing of the warrant. Stanley, however, was arrested on the warrant by Hughes and brought before the magistrates. The case was gone into of assault and obstruction. No objection was taken by Stanley, who defended himself, and called a witness to show he was not guilty. I overruled the objection, and, as I have said, the defendant Hughes was convicted. "I have now to ask the court for the consideration of Crown Cases Reserved, whether, because there was no written information, nor oath, I ought to have directed an acquittal? If I ought, the conviction should be quashed, otherwise not." Bramwell, L.J., further, in answer to questions put by this court, reported as follows: "There was no evidence before me that the warrant on which the man Stanley was arrested was produced before the justices who convicted him. No one thought it necessary to inquire into such a matter. The case before me was conducted on the footing that the case before the magistrates was conducted in the same way as it would have been if the warrant had been issued on a written information duly sworn to." [The case was twice argued, the first time before five judges who, differing in opinion, ordered the case to be reargued.] C. S. C. Bowen (Muir Mackenzie, with him), for the prisoner: The prisoner was not guilty of perjury, because the proceedings in which he was sworn were coram non judice. In order to decide this, it is necessary to consider the requi616] sites for giving to justices *jurisdiction. There is, however, some difficulty in ascertaining under what statute the conviction of Stanley was supposed to be. Probably it was under 34 & 35 Vict. c. 112, s. 12, which is, "Where any person is convicted of an assault on any constable when in the execution of his duty, such person shall be guilty of an offence against this act, and shall, in the discretion of the court, be liable either to pay a penalty not exceeding twenty pounds, and, in default of payment, to be imprisoned, with or without hard labor, for a term not exceeding six months, or to be imprisoned for any term not exceeding six, or in case such person has been convicted of a similar assault within two years, nine months, with or without hard labor." It is not stated in the case what the sentence was, but it is suggested that it was one of six months' imprisonment with hard labor. If the conviction was not under the above section it must have been supposed by the justices that they were convicting under 24 & 25 Vict. c. 100, s. 38. "Whosoever shall assault any person with intent to commit felony, or shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer. ... shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor." If so, they were convicting summarily under a statute which did not empower them to convict summarily. [KELLY, C.B.: What was the charge made against the prisoner at the time, and how and in what shape was it. made?] That cannot be clearly ascertained from the case. It is contended there was no legal charge. The point raised by the case, which states that there was no information or oath in writing, is, whether, in the absence of any written information or oath, the justices had jurisdiction. Assuming that the conviction was under 34 & 35 Vict. c. 112, s. 12, the procedure is regulated by that statute, s. 17 of which enacts that any offence against that act may be prosecuted before a court of summary jurisdiction in England in manner directed by 11 & 12 Vict. c. 43, and any act amending the same. It is a statutory jurisdiction given to justices to convict summarily. Such jurisdiction created by statute is confined by statute, and *but for the statute, and in conformity with its pro- [617 visions, the justices have no jurisdiction. The above statute incorporates the procedure given in 11 & 12 Vict. c. 43: Jervis's Act. The object of this latter statute, as appears from the preamble thereto, was to consolidate the statutes with regard to the duties of justices in respect of summary convictions and orders, and to define such duties clearly by positive enactment, as well as to amend the procedure. The information always was, and is still, the foundation of the jurisdiction of justices in summary convictions, and the basis of all the subsequent proceedings. In Paley on Convictions, p. 64 (5th ed.), by Macnamara, this doctrine is clearly laid down. It is there said: "It is requisite in all summary proceedings of a penal nature that there should be an information or complaint, which is the basis of all the subsequent proceedings, and without which, the justice is not authorized in intermeddling, except when he is empowered by statute to convict on view," and, further, "a sufficient information by competent persons relating to a matter within. the magistrate's cognizance gives him jurisdiction, irrespective of the truth of the facts contained in it . . . . as, on the one hand, the information is not invalidated by reason of the statements being false, so, on the other, it cannot be rendered valid by the testimony offered in support of it, for the office of the evidence is to prove, not to supply, a legal charge." Justices are not to wade through the evidence offered, and therefrom to collect a charge, but a specific charge is first to be made, and the evidence taken, directed to prove that charge. It is of importance that justices. should be compelled to act in strict conformity with the procedure laid down for them in Jervis's Acts, for any looseness of practice in the granting of warrants, or in the dispensing with proper charges or informations, might result in serious mischief. Under 11 & 12 Vict. c. 43, Jervis's act, the information required is a written one. Sect. 1 of that act enacts, that in all cases where an information shall be laid, or complaint made, the justices may issue a summons requiring the person summoned to answer the information or complaint. Sect. 2 enables justices, if they think fit, upon oath or affirmation substantiating the matter of such information or complaint, to issue their warrant to arrest the party charged, or complained against, if he does not 618] appear to the *summons. Sects. 4, 7, 8, 9, show that it was intended that the information should be written. Sect. 10 enacts that every information for any offence punishable upon summary conviction, unless some particular act shall otherwise require, may be made or laid without any oath or affirmation being made of the truth thereof, except where the justices shall issue their warrant in the first instance, and in every such case the matter of such information shall be substantiated upon oath before any such warrant shall be issued. Here the warrant was issued without any such information. The information, the basis of all subsequent proceedings, was absent. The language of s. 10 is imperative. The justices have to deal with the hearing of the information, that is all they have jurisdiction to do. The submission or consent of Stanley could not give jurisdiction. Consent gives no jurisdiction in criminal matters; and with regard to procedure, there can be no waiver in a criminal case. [KELLY, C.B.: If there is no charge, how can what is sworn to be material to a charge?] It cannot. What a witness says on the trial is not the charge. In order to constitute perjury, there must be wilful and corrupt false swearing, or affirmation, upon a legally made charge. In Reg. v. Carr () it was held that it should be proved distinctly on the trial of an indictment for perjury what the charge was, on the hearing of which the false evidence was given. In Reg. v. Scotton () it was held that an information not on oath was not sufficient to give justices jurisdiction to entertain a charge of an offence under 6 & 7 Wm. 4, c. 65. There is no substantial difference in the wording of that enactment and Jervis's Act, 11 & 12 Vict. c. 43, upon this point. In Caudle v. Seymour (3) a warrant issued by justices was held bad which did not show any in (1) 10 Cox's C. C., 564. (2) 5 Q. B., 493; 13 L. J. (M.C.), 58; 8 Jur., 400; 1 New Sess. Cas., 27. (8) 1 Q. B., 889; 10 L. J. (M.C.), 180; 1 G. & D., 454; 5 Jur., 1196. formation on oath upon which it had been issued. Patteson, J., there says: "The everyday practice is to state an information on oath; if the magistrate omits that he must take the consequences." Coleridge, J., in the same case says: "It is true that a magistrate here has jurisdiction. over the offence in the abstract, but to give him jurisdiction in any particular case it must be shown that *there [619 was a proper charge upon oath, in that case. A man has no right, because he is a magistrate, to order another to be taken for an offence over which he has jurisdiction, without a charge regularly made." It is admitted that the justices had jurisdiction in the abstract to try Stanley for the assault, but it is contended that in order to put him on his trial an information on oath was requisite. He referred also to Reg. v. Pearce (').] [DENMAN, J., called attention to Reg. v. Millard (†).] In that case the charge was under a special statute, which rendered a sworn information unnecessary. The case of Turner v. Postmaster-General (3), which will be relied on for the prosecution, did not turn upon Jervis's Act, but upon a special statute. It is a decision that the want of an information and summons may, under the statute there in question, be cured by appearance before justices without objection. That is, that under that particular statute, the information did not go to the root of the jurisdiction of the justices. The information is not mere process to bring the accused before the court, it is procedure which cannot be waived, it is the foundation of jurisdiction, it is the charge which has to be inquired into, and in support of which evidence is adduced, to use the expression given in s. 9 of Jervis's Act. In the cases where there has been said to have been a waiver of some irregularity in the mode of summoning the accused, it is perhaps hardly correct to use the expression "waiver." In such cases, which will be found to be civil cases, or quasi-civil cases, such as bastardy proceedings, the getting the accused before the tribunal is not the foundation of jurisdiction. A man cannot waive that which, for the protection of the public, the law requires. The justices to proceed lawfully, must have jurisdiction, when they enter upon the inquiry, to make the inquiry. Denman, Č.J., in Reg. v. Bolton () says, "The question of jurisdiction is de (1) 3 B. & S., 531; 32 L. J. (M.C.), 75. (2) 22 L. J. (M.C.), 108; Dears. & P. C. C., 166; 17 Jur., 400. (3) 5 B. & S., 756; 34 L. J. (M.C.), 10; 10 Cox's C. C., 15. (4) 1 Q. B., 66; 10 L. J. (M.C.), 49. |