(4) In a British possession, or in a foreign country in which the Queen has jurisdiction, and to which the Act has been applied, by any judge, justice of the peace, or other officer having the like jurisdiction as one of the Bow Street police magistrates; or by such other Court, judge or magistrate as may be from time to time provided, in a possession by an Act or ordinance of the Legislature of that possession, in a foreign country, by Order in Council. Queen to The Queen has power by Order in Council (Her Majesty in Power to Council standing in the place of the Legislature of a possession), make Orders the Order being laid before Parliament in the usual way (1) To define the offences committed in a foreign country to which the Act, or any part of it, shall apply: (2) To determine the Court or Judge or other person by whom the jurisdiction under this Act is to be exercised in a foreign country, and the manner of its exercise: (3) To regulate all questions of payment of costs incurred in carrying the Act into execution : (4) To give general directions for carrying the Act into execution in any foreign country in which she has jurisdiction. in Council in several In the case of offences committed at sea, or which are triable Offences at in several parts of the Queen's dominions or in foreign countries sea or triable in which she has jurisdiction, the necessary warrant may be Courts issued from any part or country, in which the accused can be (ss. 33-35). tried, if he happen to be there, and the fugitive is to be returned there, although there is jurisdiction to try him in the place where he is apprehended; unless a Secretary of State in the United Kingdom, the Governor of a British possession, or Her Majesty's representative in a foreign country, according to where the fugitive is apprehended, is satisfied that under all the circumstances of the case it would be more conducive to the interests of justice for the fugitive to be tried where he was apprehended. In such case the warrant shall not be executed. And conversely if, in such cases, the accused is in custody, a superior Court, and also the authorities mentioned above, according to where he may be in custody, may direct the removal of the prisoner to some other part of Her Majesty's dominions, or of the foreign country, where the offence is also triable, if it would be more conducive to the interests of justice that the prisoner should be tried there. The warrant for removal is to be in all things treated as if it were a warrant for the return of a fugitive. The Act applies generally to escaped convicts. S. 34. s. 38. Examination on commission to Consular Court. Criminal The Act applies also to offences committed before the application of the Act. XII. 48 & 49 Vict. c. 74. An Act to amend the law relating to taking evidence by commission in India and the Colonies, and elsewhere in Her Majesty's dominions. By the application of this Act, where in any civil proceeding in an English Court an order for the examination of any witness has been made, and a commission for his examination is addressed to any Court or Judge in India, the Colonies, or any foreign country where the Queen has jurisdiction, the Court or Judge may nominate some fit person to take the examination. In criminal proceedings, where a mandamus or order for proceedings. examination of a witness is addressed to any Court or Judge in India, the Colonies, or any foreign country where the Queen has jurisdiction, the Court or Judge may nominate any Judge of the Court or of an inferior Court, or magistrate within the jurisdiction of the Court, to take the examination. General nature of And in both cases the depositions or examinations so taken shall be of the same effect as if they had been taken by the Court or Judge to whom the commission or other order was addressed. The "Evidence by Commission Act, 1859" (22 Vict. c. 20: see ante, p.64), is to apply to proceedings under this Act. The examination is to be conducted in all respects according to the law in force at the place, or to the law enforced by the Court, where the examination is conducted; and it is to be as effectual for all purposes as if the witness had been examined on oath before a person duly authorized to administer an oath in the Court ordering the examination. These Acts, which the Queen is empowered by section five to applied Acts. extend to the Consular Courts by Order in Council, will be seen to be of two kinds: those relating to procedure which have been passed from time to time to facilitate the progress of actions by removing some of the difficulties which the jurisdictional limit imposes; and those relating to jurisdiction in respect of crimes committed out of this limit. The practical result of their application is to bring the powers of a Consular Court up to the level of those of a Colonial Court. The section seems to bear out the point to be hereafter examined, that from the general incorporation of English common post, p. 98. and statute law by Order in Council are necessarily excluded all laws which are extra-territorial in their nature. If it were not so, these statutes would come within the general incorporation. The section, however, makes special provision with regard to certain extra-territorial statutes which are in more common use. The peculiar form of words used in the second sub-section, with the unfortunate "colonial" reference, is obviously inserted in the Act to enable the necessary changes in the words of the statutes to be made. A very grave question arises as to whether the grant of jurisdiction in the Treaties warrants the application of some of the enactments; but this may be reserved for consideration at a later stage of the enquiry. schedule. The schedule, curiously enough, is not exhaustive of the Acts Acts not which the Queen may apply to her Consular Courts. In certain included in statutes which, like those in the schedule, have an extra-territorial application, special power is given to extend their application to Courts acting under the Foreign Jurisdiction Act. By the "Colonial Courts of Admiralty Act, 1890," 53 & 54 Admiralty Vict. c. 27, sec. 12, that Act may be extended to the Consular jurisdiction. Courts, the effect of the order being to give them Admiralty in lieu of Vice-Admiralty jurisdiction. Removal of By the "Colonial Prisoners Removal Act, 1884," 47 & 48 Vict. c. 31, sec. 15, that Act may be extended to the Consular prisoners and Courts. This Act is "to make further provision respecting the removal of prisoners and criminal lunatics from Her Majesty's possessions out of the United Kingdom." By its application, where prisoners are undergoing sentence of imprisonment in a foreign country in which there are Consular Courts, they may be removed to any British possession or to the United Kingdom to undergo the sentence or the residue thereof, if it appears— criminal lunatics. (a) That it is likely that the life of the prisoner will be en- Conditions of dangered or his health permanently injured by further imprison-removal ment in the foreign country; or (b) That the prisoner belonged, at the time of committing the offence, to the Royal Navy or to Her Majesty's regular military forces; or (s. 2). Return of prisoner removed (s. 3). Regulations as to removal (s. 4). s. 5. Warrant (s. 7). Dealing with Escape (s. 9). (c) That the offence was committed wholly or partly beyond the limits of the foreign country; or (d) By reason of there being no British prisons in the foreign country in which the prisoner can properly undergo his sentence, or otherwise, the removal of the prisoner is expedient for his safer custody or for more efficiently carrying his sentence into effect; or (e) That the prisoner belongs to a class of persons who, under the law administered by the Consular Court in the foreign country, are subject to removal under this Act. A Secretary of State, or the Government of the possession to which a prisoner has been removed, may order him to be returned to the foreign country for the purpose of undergoing the residue of his sentence, or for the purpose of being discharged. In other cases, when discharged at the expiration of his sentence, the prisoner is entitled to be sent free of cost to the foreign country from which he was removed, except in case (b) above. The Queen in Council may make regulations for the removal, return, and discharge of prisoners under the Act. They may provide for varying the conditions of a sentence of imprisonment where they differ from the conditions of a sentence in the possession to which the prisoner is removed, with a view to bringing the sentence more into conformity with those conditions; but a prisoner is not to undergo an imprisonment of longer duration than his actual sentence. And if the conditions of a sentence would become more severe in consequence of the removal, a Secretary of State may remit a portion of the imprisonment so as to equalize the conditions. The "removing authority "is a Secretary of State acting with the concurrence of Her Majesty's representative in the foreign country from which, and of the Government of the possession to which, the prisoner is removed. Both the removal and return are to be by warrant directing the manner in which, and the persons by whom, they are to be carried out. A removed prisoner is to be dealt with as if his conviction had taken place and his sentence had been pronounced in the possession to which he is removed. If a prisoner in custody under this Act escapes out of custody, he may be retaken in the same way as prisoners may be retaken by the law of the country to which he escapes. The offences of escaping or attempting to escape, and aiding or attempting to aid a prisoner to escape, may be tried in the British possession or foreign country to or from which the prisoner is being removed or returned, in which he escapes, or in which he is found: the offence is to be deemed an offence according to the law administered by the Court where the offence is tried. The provisions of the Act are to apply to persons in custody Application as criminal lunatics. of Act to removal of lunatics Where a Secretary of State, or Her Majesty's representative criminal in the country from which, or the Government of the British. (s. 10). possession to which, the criminal lunatic was removed, considers that he has become sufficiently sane to be tried for the offence, and requires him to be returned for trial to the foreign country from which he was removed, he shall be returned there in custody as if he had been arrested under a warrant on a charge for the offence. The expression "criminal lunatic" means a person detained in custody by reason of his having been charged with an offence, and either found to have been insane at the time of such offence, or found, or certified, or otherwise lawfully proved to be unfit on the ground of his insanity to be tried for the same, and includes a person convicted of an offence and afterwards certified or otherwise lawfully proved to be insane. S. 6. trial to 6. That persons charged with offences cognizable by a Con- Principal Act. sular Court may be sent, by warrant, under the hand of the Power to send person having authority from Her Majesty in that behalf, for per charged with trial to any British possession for the time being appointed in offences for that behalf by Order in Council. The Court in the possession Colony. specified in the Order, or, if none is specified, the Supreme Criminal Court of that possession, is to try the offence, and on conviction to punish the offender as if the offence had been committed within the jurisdiction of that Court. Before the accused is sent for trial he may tender before the Evidence. Consular Court any competent witness whose evidence he deems material to his defence, and whom he alleges he is unable to produce at the trial in the possession. The witness is to be examined and cross-examined as if he had been produced at the trial, his evidence is to be reduced into writing, and transmitted to the Court in the possession certified under the seal of the Court or signature of the Judge. |