A police officer of whatever rank has no right ex officio, and should not be permitted to act as advocate or to take any part in the proceedings at all; that is, unless he is the actual informant : even in the latter event, whatever his actual right under the S.J. Act 1848, his activities should be confined, so far as possible, to those of a witness. The attendance of a witness may be enforced either by a Crown office subpoena or by a summons or warrant of a justice.
If there is a variance between the evidence and the information, and the party charged is prejudiced thereby, an adjournment on terms should be granted. At the close of the evidence for the prosecution, if the court is of opinion that there is a case to answer, the defendant may open his case and call his witnesses, subject to this : that if the defendant be the only witness on his side as to fact, he must be called immediately after the close of the evidence for the prosecution.
(c) The Judgment: The judgment follows the opinion of the majority of justices present at the hearing, and the chairman has no second or casting-vote. In the case of an equality of votes, unless a justice withdraws his vote, the case should be adjourned for a rehearing before another court, when, if the same result ensues, the case should be dismissed. If the court decides to dismiss the information either upon the non-appearance of the informant or as being of opinion that the charge is not proved, it makes an order to that effect and may award costs to the defendant: but costs do not follow the event so frequently as in civil cases. If the charge is without foundation and the de fendant is in no way to blame, there seems no reason why he should bear any part of the costs of the defence, whether the prosecution is by the police or by a private person, but a variety of considerations, generally unstated, influence the courts in this matter, and it cannot be pretended that there is any general or settled practice. If the defendant has pleaded guilty or the court is of opinion that the charge is proved, the court may either: (i.) Postpone judgment (either for consideration or to avoid inflicting sentence of imprisonment) and remand the defendant either in custody up to 8 days, in an appropriate case, or for that or a longer period, on recognizance, with or without sureties, or (ii.) Convict the defendant, and commit him to the Assizes
or Quarter Sessions in order that a sentence of detention in a Borstal institution may be passed, or (iii.) Convict and sentence the defendant. The maximum term of imprisonment and the maximum fine which can be inflicted are in general fixed by the statute or bye law creating the offence : an order for costs can be included in the conviction. Whatever the provisions of the statute, or bye law, the imprison ment may be either with or without hard labour, and the court may reduce the term as it thinks fit or substitute for imprison ment (where no power to fine existed) a fine not exceeding L25 and not involving, on default, a longer term of imprisonment than that prescribed by the Act or bye law: and where a fine is prescribed, the court may, if it is imposed as in respect of a first offence, reduce the prescribed amount, or (iv.) Without proceeding to conviction, where the court is of opinion that having regard to a variety of circumstances (see Probation of Offenders Act 2907 S. I) make an order dismissing the information or charge, or discharge the defendant condition ally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sen tence at any time within not more than 3 years.
(d) Execution and Enforcement of Payment of Fines and Costs: Fines and costs, ascertained by conviction, are enforced by warrant of distress and, in default of distress, imprisonment on a scale set out in S. 5 of the S.J. Act 1879. The court may issue a warrant of commitment in the first instance if the de fendant has sufficient means to pay or if he does not ask for time to pay or has no fixed estate within the jurisdiction or for other special reasons. (See further C.J. Act 1914 S. 25.) Where no fine has been inflicted but costs have been ordered to be paid either by the defendant or, upon dismissal, by the informant, recovery is by distress under S.J. Act 1848 S. 18 and C.J. Act 1914 S. 25. There are exempt from distress : the wearing apparel of the defendant and his family, and, to the extent of L5, the tools and implements of his trade. Provision is made in C.J. and S.J. Acts and rules for payment by instalments.