1902 Encyclopedia > Summary Jurisdiction

Summary Jurisdiction




SUMMARY JURISDICTION. By a court of summary jurisdiction is meant a court in which cases are heard and determined by a justice or justices of the peace, without the intervention of a jury. Such a court has duties to perform of two different kinds. It either hears and determines a case in a judicial capacity, or it acts rather in a ministerial capacity where a prima facie case has been established, as by issuing a warrant of distress for non-payment of poor rate, or by committing an accused person for the decision of a higher court, generally assizes or quarter sessions. It is to the court acting in the former capacity that the term " court of summary jurisdiction " more strictly applies. Ever since the first institution of justices of the peace (see JUSTICE OF THE PEACE), the tendency of English legislation has been to enlarge their jurisdiction and to enable offences of a less heinous nature to be tried in their courts without a jury. This inroad upon the functions of the jury can only be made by legislation. "The common law is a stranger to it, unless in the case of contempts," says Blackstone. At common law all offences must be proceeded against by indictment, and an indictment can only be tried before a jury. Even where an offence is created by statute and is unknown to the common law the procedure must be by indictment, unless the statute creating the offence or some other statute specially makes it summary. The history of the gradual growth of summary jurisdiction will be found in Stephen, History of the Criminal Law, vol. i. chap. iv. The summary jurisdiction exercised by justices is the only one of much practical importance. It is unnecessary to do more than mention in passing the two other kinds named by Blackstone, that of the commissioners of taxes for revenue offences and that of the superior courts for CONTEMPT OF COURT (q.v.). A very remarkable case of the latter is the power given to a judge by 12 Geo. I. c. 29, s. 4, to summarily sentence to seven years' penal servitude a solicitor practising after conviction for perjury, forgery, or barratry.





The principal Acts now dealing with summary jurisdiction are the Summary Jurisdiction Act, 1848 [641-1] (11 and 12 Vict. e. 43), one of what are called Jervis's Acts, and the Summary Jurisdiction Act, 1879 (42 and 43 Vict. c. 49). The former consolidated the law up to that time of a large number of Acts, but only to a certain extent, for a considerable number of previous enactments dealing in a greater or less degree with this subject are still law, the earliest being 5 Hen. IV. c. 10. It also amended the law in several im-portant particulars. The amendment was in the direction of greater simplicity of procedure, and related to both criminal and only quasi-criminal matters. The procedure under the Act is shortly this. In all cases where an information is laid or complaint made the justices are, on proof of a prima facie case, to issue a SUMMONS (q.v.). An information is laid in criminal matters in which the decision of the justices, if adverse to the defendant, would be a conviction. A complaint is made where the decision of the justices in such an event would be an order for the payment of money or otherwise in what may be called only quasi-criminal matters, e.g., claims under the Employers and Workmen Act. If the summons is disobeyed, a warrant may (in criminal charges only) issue in the first instance at the discretion of a justice. The warrant is good only within the local jurisdiction of the justice issuing it ; and, if it is required to be executed in another jurisdiction, it must be backed, i.e., endorsed, by a justice of that jurisdiction (unless in case of a fresh pursuit, when it is good for 7 miles beyond the bounds of the jurisdiction in which it was issued). Complaints need not be in writing ; informations usually are, though the Act does not make writing necessary. Where a warrant issues in the first instance, the information must be upon oath. In all cases not otherwise provided for, the information must be laid or com-plaint made within six calendar months from the time at which the matter of the information or complaint arose. The hearing is in open court, and parties may appear by counsel or solicitor. If both parties appear, the justices must hear and determine the case. If the defendant does not appear, the justices may hear and determine in Iris absence, or may issue a warrant and adjourn the hearing until his apprehension. If the complainant does not appear, the justices may dismiss the complaint or adjourn the hearing. The punishment inflicted may be fine or imprisonment, or both. Imprisonment as a rule cannot exceed six months. The regular mode of proceeding where a conviction adjudges a pecuniary penalty, or an order requires payment of a sum of money, is by issue of a warrant of distress to be levied on the goods of the defendant. The court usually consists of two or more justices, but the lord mayor or an alderman of the City of London, a metropolitan police magistrate, and a stipendiary magistrate have each the authority of two justices. The Act further makes provision for curing defects in form in the proceedings for the payment of costs, for removing difficulties as to the boundaries of jurisdiction, and for various other matters. The schedule gives forms of proceedings, which are as far as possible to be followed. The Act of 1879 amended the Act of 1848 in several important particulars, chiefly in the direction of greater leniency and enlarged jurisdiction and power of appeal. A greater discretion in the infliction of punishment is conferred on the court. A scale of imprisonment in respect of non-payment of a fine or default of distress is fixed at periods varying according to the amount of the fine unpaid, but in no case exceeding three months (except in certain revenue offences, where the limit is six months), and without hard labour, unless hard labour is specially authorized by the Act on which the conviction is founded. Time may be given for payment of money, or it may be ordered to be paid by instalments, or security may be taken. Summary trial of children under twelve is allowed at the discretion of the court in case of any indictable offence other than homicide, unless objection is made by the parent or guardian. A child cannot on summary conviction be imprisoned for more than a month or fined more than 40s. Summary trial of juvenile offenders between twelve and sixteen and of adults is allowed in certain crimes mentioned in the Act, if the accused assents and foregoes his right to trial by jury. There are cases in which the court can deal summarily with an adult pleading guilty where it would have been necessary to commit him for trial had he pleaded not guilty. The court may in trivial cases discharge the accused without punishment or with only a nominal punishment. Improvements are made in the prac-tice as to sureties, recognizances (see SURETY, RECOGNIZANCE), and the issue and execution of warrants of commitment and distress. The issue of such a warrant may be postponed if the court thinks fit. The wearing apparel and bedding of a person and his family, and the tools and implements of his trade to the value of £5, are exempt from distress. Imprisonment may in certain cases be ordered instead of distress. The right of appeal is much extended. An appeal now lies from every conviction or order adjudging imprison-ment without the option of a fine where the accused did not plead guilty. The appeal by the Act of 1884 must be in accordance with the procedure of the Act of 1879, or of any subsequent Act giving a right of appeal in the particular case. The appeal is to QUARTER SESSIONS {q.v.). A summons or warrant is not avoided by the death or cesser of office of the justice issuing it. Under the powers of the Act rules and forms were framed which came into effect on 1st January 1880. The Summary Jurisdiction (Process) Act, 1881 (44 and 45 Vict. c. 24, applying to Great Britain, but not to ireland), gave additional facilities for serving and executing the process of an English court of summary jurisdiction in Scotland or of a Scotch court in England, on endorsement in the country where it is executed. The Summary Jurisdiction Act, 1884 (47 and 48 Vict. c. 43), repealed a number of enactments rendered obsolete by the Acts of 1848 and 1879 and explained certain sections of those Acts as to which doubts had arisen. There are numerous other enactments dealing less directly with the powers of courts of summary jurisdiction. For instance, the Merchant Shipping Acts give justices large powers in case of salvage claims and of offences by seamen. The Criminal Law Consolidation Acts of 1861 give them limited jurisdiction in larceny, coining, malicious injuries to property, and offences against the person. Among many other Acts conferring summary jurisdiction are the Army, Bastardy, Customs, Employers and Workmen, Game, Highway, Licensing, Post Office, and Vagrant Acts. Some of the later Acts, such as the Customs and Army Acts, apply to the United Kingdom. The decision of a court of summary jurisdiction may be reviewed by, besides appeal, a writ of certiorari, mandamus, or habeas corpus, or by statement of a special case.

Scotland. — Summary jurisdiction in Scotland depends chiefly upon the Summary Jurisdiction Acts, 1864 and 1881. A court of summary jurisdiction includes the sheriff court. The Acts follow, mutatis mutandis, the lines of English legislation. All proceedings for summary conviction or for recovery of a penalty must be by way of complaint according to one of the forms in the schedule to the Act of 1864. The English summons and warrant are repre-sented in Scotland by the warrant of citation and the warrant of apprehension. Where no punishment is fixed for a statutory offence, the court cannot sentence to more than a fine of £5 or sixty days' imprisonment, in addition to ordering caution to keep the peace. The Act of 1881 adopts many of the provisions of the English Act of 1879. In addition, it confers the discretion as to punishment to a sheriff trying by jury in cases where the prosecu-tion might have been by complaint under the Acts. Appeals from courts of summary jurisdiction are now mainly regulated, by 38 and 39 Vict. c. 62, and proceed on case stated by the inferior judge.





Ireland.—The principal Acts dealing with the subject are the Summary Jurisdiction and Petty Sessions Acts, 1851 (14 and 15 Vict. cc. 92, 93). Those Acts are more extensive in their purview than the English Acts, as they form in a great degree a code of substantive law as well as of procedure. The exceptional political circumstances of Ireland have led to the appointment of resident magistrates under 6 and 7 Will. IV. c. 13, and to the conferring at different times on courts of summary jurisdiction of an authority, generally temporary, greater than that which they can exercise in Great Britain. Recent instances are the Peace Preservation Act, 1881, and the Prevention of Crime Act, 1882. The provisions of the English Act of 1879 as to children were extended to Ireland by 47 and 48 Vict. c. 19.

United States.—By Art. III. s. 2 of the constitution the trial of all crimes, except in cases of impeachment, is to be by jury. By Art. V. of the amendments no person can be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury. Considerable changes have been made by State legislation in the direction of enlarging the powers of courts of summary jurisdiction. (J. W†.)


Footnotes

641-1 This name of the Act of 1848 is an example of a title of an Act conferred retrospectively (see STATUTE). The name was given to it by the Act of 1879. In the same way the name of the Scotch Summary Procedure Act, 1864, was changed to that of the Summary Jurisdic-tion Act, 1864, by the Summary Jurisdiction Act, 1881.



The above article was written by: James Williams, B.C.L.



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