The

Journal of Criminal Law VOl,.

xv.

JAN.-MAR., 1951

No. 1.

Courts of Summary Jurisdiction 'SPECIAL REASONS' AGAIN.

the decision of the High Court in Whittall v. Kirby SINCE (1947,111. J.P. 1) that the power of a court of summary

jurisdiction to find 'special reasons' to order a limited period of disqualification from driving in respect of a defendant who is convicted of driving whilst under the influence of drink, or without a third-party insurance policy, may be exercised only when these 'special reasons' in fact exist, there have been a large number of cases brought before the High Court to test whether a given combination of circumstances do or do not amount to such special reasons. It seems not improbable, as a result of a decision recently given by Mr. Hopkin at the Marlborough Street Court, that yet a further case will eventually be argued before the Divisional Court. The facts in this case were that, as a result of a slight collision between two cars, police officers saw the defendant Doran, one of the drivers involved, who at the time was driving a car belonging to a Mr. Bradford, a friend of his. Doran could not then produce a certificate of insurance; subsequently he produced one issued to Bradford, but this covered the policy-holder only. On these facts a plea of guilty had to be entered for Doran for driving the car without a policy, and for Bradford for permitting this; but the solicitor for the defendants urged that as far as Doran was concerned 'special reasons' existed which would justify the court in ordering no disqualification. He stated that before borrowing the car Doran had specifically asked 1

2 THE JOURNAL OF CRIMINAL LAW Bradford if the car was properly insured, and he was told that it was. It should be noted that although the transaction between them was primarily a friendly one Doran was paying Bradford a small sum for the hire of the car. The solicitor for Doran agreed that there was no reported case on all fours with the circumstances of this case but submitted that a number of analagous cases were in his favour. In Blows v. Chapman (1947, 112, J.P. 8) a farm labourer drove his employer's tractor which, unknown to him, was not insured, and it was held that 'special reasons' existed. In Lyons v. M ay (1948, 113, J.P. 42) the owner of a lorry asked the garage proprietor with whom he had left it for repair to deliver it for him. The garage owner had no policy to cover this use of the lorry, nor did the owner's policy cover him. It was held in this case-although, as the solicitor for Doran pointed out, the respondent had made no enquiries at all as to whether the garage owner In was insured or not-that special reasons existed. Labrum v. Williamson (1947, III J.P. 334) a garage proprietor applied for a general trade cover for all vehicles used in connection with his trade and he received a temporary cover note in those terms. Subsequently a policy on a 'named driver' basis was sent to him; this he did not read, and he permitted a person to drive on the road other than the named driver; but it was again held that special reasons existed. The solicitor for the prosecution argued that although there were some similarities between the cases quoted and the facts of the present case they could all be distinguished. The basis for the court's decision in Blows v. Chapman was that the defendant had driven his employer's tractors for many years, and it was not unreasonable for him to obey without question his employer's orders since he had no reason to suspect that the insurance policy held by his employer did not cover what he was driving; in Lyons v. May the respondent's request had been made to a man (the garage owner) who in the ordinary course and according to the ordinary commercial experience of people would be covered since the very nature of his trade would require him to have such a policy; in Labrum v. Williamson it was held that the defendant had been mislead by the insurance company which, when issuing the cover-note, undertook

COURTS OF SUMMARY JURISDICTION 3 to tell him if they declined his proposal (for a general cover) but subsequently sent him a limited policy only without drawing his attention to the fact that they had not accepted his proposal. Reference was also made to the case of Quelch v. Collett (112 J.P.)-which was decided on another point-in the course of which it was held that where the vendor of a car undertook to transfer the policy to the respondent who accordingly drove it honestly believing that he was covered (whereas in fact the policy had not been transferred) there were no special reasons why the respondent should not be disqualified. The prosecution relied mainly upon the decision in Rennison v. Knowler (111 J.P. 171) in which the Divisional Court laid it down that belief in the existence of a policy, however honest, cannot be regarded as a special reason unless the belief is based on reasonable grounds. If the driver of a vehicle does not inform himself of the provisions of his policy nor gets advice on what it covers he cannot be held to have reasonable grounds for believing he is insured. The prosecuting solicitor argued that by analogy a person hiring a car from an acquaintance who did not trade in hiring-out cars could not be held to have reasonable grounds for believing the insurance was in order merely on the word of the lender. The solicitor for Doran pointed out that it is not uncommon for a friend to lend his car to another, for example to take someone home from a dance or a dinner, and it would be intolerable to hold that, despite the fact that the borrower received his friend's assurance that the insurance policy would cover him, unless he demanded to see and in fact saw the policy, he would have to be disqualified if it subsequently appeared that the policy was not in order. The magistrate said that if a case exactly on all fours with the facts outlined by the defendant's solicitor came before him he might well be in some doubt, but those were not the facts of this case. This was not a casual unpremeditated borrowing between friends; Doran was hiring the car for a few days to assist him in his business, and he was paying Bradford for this loan; in these circumstances he could and should have asked to see the insurance policy. Accordingly in his view the defendant's belief in the

4 THE JOURNAL OF CRIMINAL LAW existence of a valid insurance policy was not based on reasonable grounds, and the usual period of disqualification would follow. APPEAL OF A STREET TRADER

The difficult problem of reconciling the interests of the traffic with those of the itinerant barrow-boy is to be found in many large cities. So far as London is concerned the London County Council (General Powers) Act, 1947 attempts to provide a solution, but it must be admitted that, owing chiefly to the ineptness of the draftmanship, the attempt has largely failed. Although the Part of the Act dealing with barrow-boys is a short one, a number of cases have been stated for the opinion of the High Court, and in delivering judgment in one of these the Lord Chief Justice spoke of the Act as "an extraordinarily difficult one to construe"-an opinion which all who have occasion to deal with the Act would respectfully endorse. Despite the fact that the Act applies only to London an account of the latest case to be submitted to the High Court may be of some general interest since the judgment touches on the wider matter ot the powers of a summary court when acting as a court of appeal. This case arose out of an appeal to a metropolitan magistrate's court by a barrow-boy whose registration as a street trader had been withdrawn by the borough council. The section giving this power to the council, s.20, provides that "If in the opinion of a borough council a person who has been registered by them as a registered street trader is on account of his having been convicted of an offence .... under any enactment relating to obstruction of traffic in highways or for any other sufficient reason unsuitable to be permitted to engage in street trading the borough council may cancel the registration of that person . . . .". A further section allows any person aggrieved by such action of a borough council to appeal to a petty sessional court "and on any such appeal the court may confirm, reverse or vary the decision of the borough council and may award costs". At the hearing of the appeal the borough council proved that over a period of three months the appellant

COURTS OF SUMMARY JURISDICTION 5 had been convicted ten times for causing obstruction with his barrow, and that he had many previous convictions. It was submitted that thereupon the council, in view of the wording of s.20, had rightly held that the appellant was unsuitable to be permitted to engage in street trading. On the part of the appellant it was contended that on the hearing of the appeal the court should take into account the general character of the appellant, the general circumstances of and the exact locality of the trading, the period during which he had been trading, and the fact that he had never been convicted of any offence involving fraud upon the public. The learned magistrate stated that in his opinion it was clearly open to the council, in view of the wording of s.20, to hold on the facts of the convictions alone that the defendant's registration should be withdrawn, and accordingly he had no option but to dismiss the appeal. At the request of the appellant the magistrate stated a case for the opinion of the High Court. At this hearing Lord Goddard emphasised that, as the High Court had decided in the case of Stepney Borough Council v. Joffe (1949, 1 K.B. 199), an appeal in such circumstances is a rehearing, and the magistrate is bound to form an opinion of his own, and can substitute his own opinion for that of the borough council. He added "The magistrate may consider that the fact that the man had ten convictions in a period of three months is sufficient reason for saying that he is not a proper person to be registered as a street trader, but he must also take into account other evidence submitted to him." The matter was thereupon remitted to the magistrate for rehearing. At the rehearing, evidence on behalf of the appellant was called to show that the trader had been engaged in street trading all his life-except for a period of National Service-and that he had never been convicted of any fraud on the public. His solicitor pointed out the paradoxical position that when the applicant had applied for registration under the Act he had to furnish proof that he had been engaged in street trading for over three years, and to do this he (as other traders had done) proved that over this period he had convictions for obstruction, so that the very evidence which had resulted in his being granted

e

THE JOURNAL OF CRIMINAL LAW registration was now relied upon as a reason for cancelling that registration. The magistrate said that now that he was free to consider all the fads he was quite satisfied that the appellant should have his licence restored, and he accordingly allowed the appeal with costs against the council. The effect of this decision of the High Court is that the borough councils in exercising their powers under s.20, will also have to take into consideration such matters as the trader's general character, otherwise there would be the absurd result that the council, having regard solely to the trader's convictions for obstruction, would cancel the registration, while the magistrate, having regard to the wider issues, would restore the registration. Finally it may be noted, as an example of the unfortunate gaps in the Act, that there is no provision in the Act requiring the trader to return his "licence" which has been cancelled, so that a trader whose registration has been withdrawn may continue to trade in the streets and produce to any police officer what appears on the face of it to be a valid certificate of registration. PROBATION FOR SEvERAl, OFFENCES.

It not infrequently happens that a defendant is placed on probation after having pleaded guilty to, or having been found guilty of, a number of offences, and the question has been raised whether in such circumstances there should be one probation order reciting all the offences or whether there should be a separate order in respect of each offence. In favour of the latter view it is pointed out that the Criminal Justice Act speaks of "a" probation order being made by the court which convicts the defendant of "an" offence; it is further suggested that if the first course is adopted there may be difficulties if subsequently another court is to deal with the defendant for the original offences. Against this it may be urged that the Interpretation Act provides that, unless the contrary intention appears, words in the singular include words in the plural, so that the first objection cannot carry much weight. As regards the second suggestion, provided the order clearly shows the adjudication of the court, there should be no difficulty.

COURTS OF SUMMARY JURISDICTION 7 In discussing this matter it should be noted that the question is ambiguous owing to the different meanings attached to the word 'order'. The piece of paper which is commonly referred to as "a probation order" is merely a document embodying the decision of the court, and the actual 'order' is the order made by the bench in announcing the decision of the court to place the defendant under supervision. (See Ex parte Johnson, 1863, 27 J.P. 661-a case under the Bastardy Acts-in which it was held that an order is made when judgment is pronounced orally and the formal written order is merely the record of the adjudication). When dealing with a number of offences it is essential to make it clear beyond any doubt to the defendant exactly what order is being made in respect of each offence (it is of course equally essential that these decisions should be clearly recorded in the Court Register); it may be that the court will deal with each offence by making a probation order in respect of it; alternatively orders may be made in respect of several offences while the remainder attract only the nominal penalty of "one day's detention", or are marked "no separate penalty". Providing it is made clear to the defendant whether he is placed on probation for one or more offences the form of the document embodying the decision of the court is, subject to the necessity for it to show beyond doubt the exact terms of this decision, largely a matter of convenience. Convenience almost certainly indicates that there should be one document only, and, it is submitted, there is no legal reason why this convenient course should not be followed. CARRYING A GUN WITHOUT A LICENCE

The question arose recently at the Liverpool Magistrates' Court before Mr. A. E. Baucher, Deputy Stipendiary Magistrate, whether or not a person who has bought an air pistol requires a gun licence in order to carry it from the shop to his home. The defendant, Allan MacLean, was summoned under s. 7 of the Gun Licence Act, 1870, for carrying a gun in West Derby Road without having a gun licence, to which charge he pleaded not guilty. The facts in the case were that the defendant was

8 THE JOURNAL OF CRIMINAL LAW walking along the road with a companion when a police constable noticed that he was exhibiting a Webley Junior air pistol. The constable stopped the defendant and asked him if he had a gun licence, to which the defendant replied that he did not need one as he had only just bought the air pistol to use in the house. In the course of examination by the defendant, the constable agreed that he was carrying the air pistol quite openly. The solicitor for the prosecution submitted that assuming the defendant had only just bought the air pistol he had committed a technical offence, as it was always necessary to have a licence to carry a pistol in any public place. He agreed, however, that a gun licence was not required to use a pistol in the house. The defendant in evidence said he bought the air pistol in order that his wife could practise firing darts at a target in the kitchen. He said he was taking it home from the second-hand shop where he had purchased it and when the constable stopped him he had just met a friend and was shewing him the pistol. He had understood no firearms certificate was necessary for the air pistol and neither he nor the shop keeper thought a gun licence was required for the purpose of carrying it home. A sports outfitter whom he had since consulted had said "If you wrap it up it is quite all right". It was pointed out by the defendant that a person carrying a gun in the ordinary course of his business as a common carrier was exempt from having a gun licence. He contended there must be some legal method by which the buyer of a weapon which was legal could carry it home. Mr. Baucher said he accepted the defendant's evidence that he had just purchased the air pistol and was carrying it home, but, nevertheless, the Gun Licence Act, 1870, enacts that every person who shall use or carry a gun otherwise than in a dwelling house or the curtilage thereof without having in force a licence is subject to a penalty of £10. "Obviously", continued Mr. Baucher, "you were carrying a gun without a licence. The'common carrier' provision you have mentioned does not apply in this case. An offence has been committed." Discharging the defendant absolutely, Mr. Baucher said the proceedings would be a warning to him and others.

COURTS OF SUMMARY JURISDICTION g Amongst the persons exempt from any penalty under the section are two by which the defendant's dilemma could have been overcome. They are (1) a gunsmith or his servant carrying a gun in the ordinary course of trade, and (2) a person carrying a gun in the ordinary course of his business as a common carrier. The defendant was correct in his statement that he was not required to hold a firearms certificate under the Firearms Act, 1937. TRANSVESTISM AND FETISHISM

Among the types of sexual perversion noted by Sir Norwood East in Society and the Criminals one finds Transvestism or Cross Dressing (p. 118 et seq.). The learned author states, at p. 194, that in his opinion this conduct is infrequently associated with criminal behaviour; so it may be interesting to record two cases that resulted in proceedings before the Reading Borough Justices within the space of one month. "It is a well known fact", says Sir Norwood, "that sexual pleasure in either sex is sometimes derived from wearing clothing of the opposite sex", and the question is asked from time to time on whether the criminal courts can take recognizance of those who do so. The facts in the first Reading case were as follows :-The defendant was a farmer living a considerable distance away. He was a widower with two children. He was seen to come out of a womens' lavatory in a cinema dressed as a woman. When asked by a policeman for his identity card he produced one in the name of a woman, maintained he was the woman concerned and only confessed when he was arrested and taken into custody, where he was found to be dressed in a complete set of female clothes, and more clothing was found in his car. He was heavily 'made up'. He was released and later summoned to appear before the Magistrates' Court to show cause why he should not give security for his future good behaviour, pursuant to 34 Ed.IlI.Cap 1. The defendant was represented by an advocate who did not show cause, and the bench ordered the defendant to find a surety in £50 for his good behaviour • H.M. Stationery Office, 1949.

10 THE JOURNAL OF CRIMINAL LAW for two years and to be bound in a similar amount himself. The bond was du1y entered into. The facts in the second case were very similar. In this case the defendant was a veterinary surgeon, privately employed, and he too came to Reading from some distance away and was discovered in a cinema masquerading in female attire. He too, had been seen to enter the women's lavatory at the cinema and he too produced a false identity card. He was similarly called upon to find security for his future good behaviour and was released by the Court after entering into a similar bond as the earlier defendant. "Appearing in the clothes of the opposite sex even in public", states the writer of an article at 85 J.P.N. 92, "constitutes no crime whatsoever". That this is true is beyond doubt, and consequently police must consider very carefully cases of such conduct before deciding whether any action can be taken. There are in some places local acts, similar to section 54(13) of the Metropolitan Police Act 1839, which furnish the Police with extra powers, but these provisions are not necessarily suitable to the occasion. For instance, to take the Metropolitan section as an example, one must discover first whether the defendant was found "in a thoroughfare or public place". (Is a cinema a public place ?); secondly whether his behaviour was "threatening, abusive or insulting" (mere masquerading need not be insulting to anyone) ; and thirdly whether his intent was "to provoke a breach of the peace", or his conduct such as to lead to the inference that "a breach of the peace may be occasioned". It is true that section 5 of the Public Order Act 1936 is couched in terms almost identical with those in section 54(13) of the Metropolitan Police Act, but the defendant's behaviour must still be brought within the section, and the possibility of a breach of the peace must not lightly be assumed. On the other hand the facts in any given case may justify a charge under section 4 of the Vagrancy Act 1824 against the defendant for being "a suspected person . . . . . frequenting . . . . . any place of public resort . . . . .. with intent to commit a felony" and the cross dressing may be amongst the grounds for suspicion, although there would, in addition, have to be other and stronger grounds pointing towards the commission of a felony. Consequently in any

COURTS OF SUMMARY JURISDICTION 11 given case the important factor to consider is not the mere dressing up by the defendant, but what his intentions were, or what inference may be drawn from his conduct. In the two cases cited above there was no evidence tending to show that a felony was in contemplation and to that extent there was no power to arrest the first defendant. Nevertheless it is submitted that the going into the female lavatory is sufficient evidence of bad behaviour to entitle the Court to have required both defendants, as the Court did, to give security for their future good behaviour. Unless therefore the evidence is strong enough to bring a case within a penal statute, * it is safer for magistrates when faced with such a state of affairs to exercise the preventive justice under the Commission of the Peace, always bearing in mind the advice of Burn, that "justices cannot exercise too much caution and good advisement" in deciding whether or not to use such powers. In a different case of perversion which came before the same Court a few months earlier, the police were not faced with the same difficulties. This was a case of what is usually called fetishism, a term which can be applied to cases in which sexual interest is mainly centred on a part of the body of the desirable individual, or upon an inanimate object such as a shoe or other article of her (or his) clothing (East, Op. Cit 117). It was noticed in a certain street that womens' knickers were disappearing from the washing lines and the matter became so serious that the Police were called in and eventually a man was arrested, who admitted to being the perpetrator over a considerable period. There was no difficulty in charging this defendant with larceny, to which he pleaded guilty. He admitted that these offences were committed in order to gratify his perversion but that he always discarded the knickers soon after they had been stolen. Although there was no doubt that in committing the offence the defendant intended to deprive the owners permanently of their garments, he did not do so lucri causa. It is interesting to note that the same learned author in describing this type of perversion, states (Op. Cit. 118) * Both defendants might have been charged with making a false representation with regard to an identity card with intent to deceive-pursuant to section 8(I)(b)(i) of the National Registration Act 1939.

12 THE JOURNAL OF CRIMINAL LAW "The fetishist may commit burglary, theft and assault in order to provide himself with the required article of female clothing, and some fetishists find the garment must be stolen if full satisfaction is to be obtained". OFFENDER FAILING TO REGISTER HIS ADDRESS WITH THE POLICE-S. 22 CRIMINAL JUSTICE ACT, 1948

Thomas Rhodes was charged at Old Street Magistrates Court on 30th October with failing to register his address at a police station, he being subject to s. 22 of the Criminal Justice Act and the Fourth Schedule thereto. The facts of the case call for little mention: Rhodes was sentenced at Leeds Assizes on 11th July 1949 to 18 months' imprisonment, an order being made under section 22 that he would be subject to its provisions on his release from prison. He had not reported to the Police since 14th August, though on his release (18th July 1950) he had in fact reported to the Central After-Care Association. In his favour it was stated that he had been in regular work to the extent of 20 hours' overtime weekly, and in these circumstances the defendant, who had elected to be dealt with summarily, was warned and allowed to go on payment of a fine of lOs. The section and schedule require careful study. As one of the measures for dealing with persistent offenders the section, briefly summarised, provides that where on indictment an offender is sentenced to 12 months' imprisonment or more and the defendant has been previously convicted at least twice of offences for which he was sentenced to Borstal training or imprisonment, or has been previously sentenced to corrective training, the court, unless it otherwise determines, must order that the section shall apply to such offender. A person to whom the section applies must on his discharge from prison and thereafter from time to time inform the "appointed society", that is, a Society appointed by the Prison Commissioners, of his address. The section goes on to say that if the offender fails to comply to the satisfaction of the appointed society with the requirement to notify his address on discharge the Society shall (and if he subsequently fails to keep the Society informed of his address the Society may) give notice of the

COURTS OF SUMMARY JURISDICTION IS fact by registered post to the Commissioner of Police for the Metropolis. At the same time the Society must use its best endeavours to let the offender know that notice has been given. As from the date on which notice has been given the provisions of the Fourth Schedule are to apply to the offender. The Fourth Schedule contains the machinery for registration and reporting, and creates the offence of failing to comply with its requirements, prescribing a term of 6 months' imprisonment on summary conviction for noncompliance. Thus the giving of notice to the Commissioner of Police is a vital part of the section operating as it does to bring into play the Fourth Schedule in its application to the offender, who is liable only if the Schedule applies to him. SALE OF FIREWORKS TO A JUVENILE

The importance of accuracy in the preparation of summonses was illustrated recently in a case heard at North London Magistrates' Court on the 23rd November 1950 before the magistrate, Mr. W. Blake Odgers. The defendant, the proprietoress of a shop, was charged with selling fireworks to a child apparently under the age of thirteen years, contrary to s. 31 of the Explosives Act, 1875. That section reads: "Gunpowder shall not be sold to any child apparently under the age of thirteen years, and any person selling gunpowder in contravention of this section shall be liable to a penalty not exceeding five pounds", and makes no reference to fireworks. Section 39 of the Act, however, enacts that the provisions of Part 1 of the Act (which includes s. 31) shall apply to every other description of explosive. Section 3 defines "explosives" to include "fog signals, fireworks, fuses, rockets, percussion caps ...." etc., and s. 104 authorises the making of Orders in Council by which explosives may be defined and classified. A number of Orders in Council have been made under this section, including one dated the 5th August, 1875, which defines fireworks in detail. The case for the prosecution consisted of the evidence of a police sergeant, who said that, through the open door. of the defendant's shop, he had seen a small boy enter and go up to the counter at the far end, where the defendant

14 THE JOURNAL OF CRIMINAL LAW was serving. She passed an object to the boy, who came out, and when stopped was found to be carrying three fireworks, viz. 2 roman candles and a whizz-bang. The last of these was the article complained of. The boy was taken back into the shop and in the defendant's presence stated that she had served him with the fireworks and that he was 8 years old. When the offence was pointed out the defendant said "He has an older brother; I thought he was with him". The police sergeant stated that there was another boy present at the time of the sale but he was about the same size and apparent age. At the conclusion of the case for the prosecution, counsel for the defendant submitted that the summons should be dismissed. He argued that no evidence had been given that the defendant had sold gunpowder, or that the articles sold contained gunpowder, and that, therefore, no offence had been committed under s. 31 of the Act, per se. With regard to the composite offence of selling fireworks, created by the combined effect of sections 31, 39, 3, 104 and the Order in Council, he referred to s. 32(2) of the Criminal Justice Act, 1925, which provides that the statement of the offence in a summons shall contain a reference to the section of the Statute creating the offence. Counsel pointed out that the summons referred only to s. 31 and that there is nothing in that section to say that one must look elsewhere in the Act. The summons was therefore defective and misleading and ought to be dismissed He quoted Atterton v. Browne (1945 1 K.B. 122) as authority for the- proposition that the magistrate ought not, in such a case, to exercise his discretion under s. 1 of the Summary Jurisdiction Act, 1848 and adjourn the hearing. In that case the respondent was charged with selling, to named persons, milk which contained added water, contrary to s. 24(I)c of the Food & Drugs Act, 1938. The evidence for the prosecution showed that the respondent had made no such sales. What in fact she had done was to sell the milk to the Milk Marketing Board, who had passed the milk on to the consumers through a chain of intermediaries. Section 83 (3) of the Food & Drugs Act, 1938, enables proceedings to be taken in such a case against the original supplier as a person to whose act or default the offence was due, but the summonses did not refer to that

COURTS OF SUMMARY JURISDICTION ItS section. The justices dismissed the summonses on the grounds that the particulars of the offence given were untrue and that the summonses were defective. The Divisional Court held that the justices were justified in so doing. Counsel submitted that the present case was on all fours with Atterton v. Browne and asked the magistrate to follow that decision. The magistrate, accepting counsel's submission, said that the summons was not satisfactory. It should state those sections of the Act to which reference was necessary in order to ascertain that the conduct alleged constituted an offence. He was asked to accept that the firework produced by the prosecution was the one that gave rise to the offence. There ought to be some evidence that that particular firework was dangerous because it contained gunpowder as defined by .the Act. He accordingly dismissed the summons. CHANGING CONSENT TO SUMMARY TRIAL

Can a defendant who has consented to the summary trial, under the Criminal Justice Act, 1925, s. 24, of an indictable offence, subsequently withdraw that consent? The question arose at West London Magistrates' Court when a woman charged with false pretences who had consented to summary trial on her first appearance, had pleaded not guilty and had been remanded in custody after evidence of arrest was represented at the remand hearing by counsel who said that his client now wished to be tried by a jury. The Criminal Justice Act, 1925, s. 24. empowers a court to deal with any of the indictable offences set out in the Second Schedule of the Act with the consent of the accused at any time during the hearing "if it thinks expedient so to do, having regard to any representation made in the presence of the accused by or on behalf of the prosecutor, or by or on behalf of the accused, the nature of the offence, the absence of circumstances which would render the offence one of a grave or serious character, and all the other circumstances of the case (including the adequacy of the punishment which a court of summary jurisdiction has power to inflict)."

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THE JOURNAL OF CRIMINAL LAW

The magistrate first considered the effect of the Criminal Justice Act, 1948, s. 28 (6) which authorises a court of summary jurisdiction at any time before the conclusion of the case for the prosecution to discontinue the summary trial of any offence which it has begun to hear summarily under sub-section one of that section (that is, an offence for which there are alternative summary and indictable procedures) and then to proceed to hear the charge as for an indictable offence, and continues "except as aforesaid, a court, having begun to deal summarily with such an offence, whether under this section or under any other enactment, shall not thereafter proceed to hear the case as for an indictable offence." The charges before him were not being heard summarily under s. 28(1) and the first half of subsection 6 did not therefore apply. Could it be said that 'any other enactment' in the second half of that subsection included the Criminal Justice Act 1925? If it did it was clear that the court could not permit withdrawal of consent. The preceding subsection (5) provided the answer, for that reads "For the avoidance of doubt it is hereby declared that this section does not apply . . . . (b) to any offence which is triable summarily under . . . . section twenty-four of the Criminal Justice Act, 1925." It is difficult to think of 'any other enactment' to which subsection 6 refers, since (5) also excludes from its operation cases heard under the Summary Jurisdiction Act 1879, sections 11 and 17. There being no guidance in the 1948 Act the magistrate had to seek it elsewhere. The only reported case of relevance to which his attention was drawn was R. v. Hertjordshire Justices (75 J.P. 913 (1911) 1 K.B. 612). This was a case in which a charge of larceny was begun to be heard summarily with the consent of the accused under the Summary Jurisdiction Act 1879, s. 12, which section was repealed and replaced with modifications by the Criminal Justice Act 1925, s. 24. After the magistrates had heard all the evidence, including that of the defendant and his witnesses, they decided that the case had assumed a serious aspect and without the consent of the accused committed him to quarter sessions. That court decided not to proceed with the trial of the case. On an application for a mandamus command by the

COURTS OF SUMMARY JURISDICTION 17 quarter sessions to try the indictment the King's Bench Division held that "the power of a court of summary jurisdiction under section 12 of the Summary Jurisdiction Act 1879 to commit a person charged for trial may be exercised at any stage of the proceedings up to adjudication, notwithstanding that at an earlier stage the defendant has consented to the case being dealt with summarily and the hearing has proceeded on that basis to the close of the evidence for the defence." Lord Alverstone, C.J. said that the argument that the court of summary jurisdiction could not change its mind overlooked the fact "that s. 12 says that the court of summary jurisdiction may deal summarily with the offence if they think it expedient so to do," and that in considering whether it is expedient to do so the justices are to have regard to the character and antecedents of the person charged, the nature of the offence and all the circumstances of the case. I am unable to understand how it can be said that matters which are for the first time brought to the knowledge of the justices in the course of the defence ofa person who has consented to be tried summarily are not to be regarded as part of the circumstances of the case, or as affecting the character of the defendant or the nature of the case . . .. The conclusion I come to is that at any time, up to the time of adjudicating upon the case by conviction and sentence, the justices are entitled to say that the case is one with which it is not expedient to deal summarily." The magistrate said he considered that R. v. Hertfordshire Justices was authority for his committing for trial a case with which he had begun to deal summarily provided in the course of the hearing it appeared that one or any of the factors which he had to consider in deciding whether to consent to hear a case summarily or not was such that had he known it in the first place he would not have agreed to a summary trial notwithstanding the defendant's consent. In this case on the face of it the offence alleged was not so serious as to be unsuitable for summary trial, the prosecution wanted it tried summarily, and the defendant had originally consented to summary trial, so that he did not think he was justified in permitting the withdrawal of the consent. However, at the conclusion of the opening by counsel ]I

18 THE JOURNAL OF CRIMINAL LAW for the prosecution the magistrate said that the circumstances of the offence alleged were such as to make it desirable that a jury should hear the case and he therefore proposed, as R. o. Hertfordshire Justices clearly permitted, to hear it as an indictable offence. Depositions were then taken and the defendant was committed for trial. CONDITIONAL DISCHARGE AND QUALIFICATION FOR BORSTAL

At West London Magistrates' Court in January 1950 a youth of eighteen found guilty of larceny was discharged conditionally for twelve months under the Criminal Justice Act 1948, s. 7. In September 1950 he was sentenced to one day's imprisonment at Marylebone for being a suspected person loitering with intent to commit a felony, and was then brought before the West London magistrate on a warrant issued under s. 8(1) to be dealt with for the first offence. The magistrate, having heard that the defendant's behaviour since his last appearance before him had been most unsatisfactory, decided that having regard to his character and previous conduct and to the circumstances of the offence, it was expedient that he should undergo Borstal training, and proposed to commit him to the County of London Sessions under the Criminal Justice Act, 1948, s.20. The question was then raised as to whether he had power to do so. The Criminal Justice Act 1948, s. 8. provides that "where it is proved to the satisfaction of the court by which . . . . an order of conditional discharge was made that the person in whose case that order was made has been convicted and dealt with in respect of an offence committed ... during the period of conditional discharge . . . . the court may deal with him, for the offence for which the order was made, in any manner in which the court could deal with him if he had just been convicted by that court of that offence." Does the section put the court back into the position it was in at the moment before it decided to discharge the defendant unconditionally, or does it make the original conviction leapfrog over the intervening months so that it has all that has happened during that period behind it?

COURTS OF SUMMARY JURISDICTION 19 If the former is its correct interpretation then clearly there was no power to commit the defendant to Sessions under s. 20 because on the date of his first appearance before the court there was nothing in his' character and previous conduct and the circumstances of the case to satisfy the court that it was expedient that he should undergo Borstal training. If it was the latter, on the other hand, his misbehaviour since January and his conviction at Marylebone showed that his character and conduct previous to his second appearance at West London were such that Borstal was expedient. The use of the word 'just' in the phrase "had just been convicted" weighs the argument in favour of the view that the court in deciding sentence must do so in the light of the circumstances existing on that day and not limit itself to imposing such sentence as would have been appropriate at the time of the conditional discharge. Since, however, there was some doubt the magistrate, after committing the defendant under s. 20, allowed him legal aid. The chairman of London Sessions had no doubt that he had jurisdiction to deal with the case but instead of sending the defendant to Borstal sentenced him to one day's imprisonment so that his father could take him back to Scotland. LARCENY BY FINDING

According to the definition in section 1(1) of the Larceny Act, 1916, a person steals, who without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof. Subsection 2 of the same section defines the various ways in which a person "takes" and among these is the obtaining possession of property by finding, where at the time of finding the finder believes the owner can be discovered by taking reasonable steps. Cases have decided that before goods can be found, they must have been lost and not merely left. A purse containing money was left by mistake on the prisoner's stall in a market, and when it was pointed out to her by a

20 THE JOURNAL OF CRIMINAL LAW stranger, she took possession of it, but denied all knowledge The jury of it when the customer returned to claim it. found that when the prisoner took it she intended to appropriate the purse to her own use, but did not then know the owner. The Court held that this was not a finding under circumstances which justified the prisoner in treating the property as lost, and a conviction for larceny was supported. (R. v. West, 24 L.]. 4). A conviction was also upheld where a customer dropped his purse in a hairdresser's shop, and the jury had found that the prisoner believed at the time he picked up the purse that the owner could be found. (R. v. Moore 25 J.P. 132). Of particular interest too, is the case of R. v. Pierce (6 Cox 117), where it was held that property left in a railway carriage is in the possession of the railway company, and a railway servant who appropriates it instead of taking it to the proper officer is guilty of larceny. Two recent cases which were tried at Marylebone Magistrates' Court before Mr. G. G. Raphael provided useful illustrations of this aspect of the law. In the first case, the prisoner was charged with stealing, by finding, one leather purse containing 17s. 6d., the property of the loser, who was named. The defendant consented to summary trial, and pleaded guilty, but having heard a recital of the facts by the police officer in charge, the Magistrate entered a plea of not guilty in his register. The first witness was the prosecutrix who stated that almost immediately after leaving a telephone kiosk she discovered that she had not got her purse which she had placed on the directories when making her call. She said that she returned to the kiosk but found rio trace of the purse. A woman standing by the next booth pointed out the defendant who was in an adjoining booth. The witness asked him if he had been in the booth which she had used, and she said that he replied "Yes, but I didn't see anything". She then told him that she had lost her purse, and according to the witness he replied that he was sorry, but he could not help her and he thereupon walked away. A The police officer who had been called went after him. witness later went to the police station where she was shown her purse containing the cash which had been in it when she left it in the kiosk. In answer to Mr. Raphael, she said

COURTS OF SUMMARY JURISDICTION 21 there was nothing in the purse by which she could have been traced. The next witness was the woman to whom the loser spoke. She said she saw the prosecutrix leave the telephone kiosk and that the prisoner, who was in an adjoining kiosk, left it and entered that vacated by the prosecutrix. After a few moments, he came out without having made any attempt to use the 'phone, and then re-entered the booth he had left. As to subsequent events, she corroborated the prosecutrix. In answer to the Magistrate, she said that, in all, the prisoner entered three telephone kiosks. The last witness was the police officer who stopped the prisoner. He deposed that he asked him if he knew anything about a lady's purse. He said that the prisoner replied that he did not, but on being asked again he produced the lost purse saying "Well, I have got it. I didn't mean to do it." When charged with the offence, he made no reply. Without calling upon the defendant to go into the witness box, Mr. Raphael dismissed the case under the Summary Jurisdiction Act. The magistrates' remarks in so doing are particularly interesting. He said that if the defendant had been charged with simple larceny of the prosecutrix's property, the case being that he was loitering for the purpose of stealing anything which could be stolen from unoccupied telephone booths, he thought that there might have been a case for the defendant to answer. But in fact he had been charged with larceny by finding. To convict him of larceny by finding, said the magistrate, he had to be satisfied that he took the property and could have found the owner by making proper enquiries. There was nothing in the evidence to show that he could have found the owner of the property. The only question which arose, therefore, was whether as a subsequent condition, in having possession of the purse, he fraudulently converted it to his own use at the time he had denied possession of it. Mr. Raphael said that in his view there could be no question of fraudulent conversion unless he was the bailee of the property. Mr. Raphael continued that the defendant found the property and in finding it he committed no offence and even if he told one, two or fifty lies afterwards it would not turn it into stealing. The learned magistrate

22 THE JOURNAL OF CRIMINAL LAW concluded by saying that although he thought there might have been a case to answer in the nature of ordinary larceny, the charge, as preferred, must fail. A week later, another defendant appeared before the same magistrate, charged with stealing by finding on an underground train, a purse containing £2 8s. ltd. cash, the property of some person unknown. The defendant consented to summary trial, and pleaded not guilty. The only witness for the prosecution was a police officer who said that he was on an underground station platform in plain clothes and that as he was entering a train he saw a dark object lying on a far seat. In the train the prisoner pushed by him and took possession of this seat, placed his hand over the dark object, and eventually put the object into his overcoat pocket. Some stations further on, the prisoner left the train and hurriedly went up the escalator. He surrendered his ticket at the barrier and left the station. In the street the officer stopped him and said to him " I have reason to believe you picked up something in the train". According to the officer, the prisoner replied "I picked up nothing." The officer then said to him "I think you picked up a purse". Thereupon, said the officer, the prisoner took a purse from his pocket and said " I did pick this up. I intend to hand it in." The officer then asked him why he did not surrender it to the collector with his ticket, but the defendant did not reply. When charged at the police station, the defendant said " I intended to hand it in in the morning." In the purse there was £2 8s. lid., a yale key, and two receipts with 'phone numbers on them. The defendant elected to give evidence on his own behalf. He said that he found the purse in the train and was going to hand it in the next morning at the Lost Property Office, as he thought that was the proper action to take. He said that he had immediately admitted to the police officer his possession of the purse and he stressed that he had not looked inside it and had no idea what it contained. Convicting the defendant, Mr. Raphael, said that the prisoner must have known perfectly well that the owner could, on reasonable enquiries have been found and it was his duty to hand the purse to the railway authorities. The

COURTS OF SUMMARY JURISDICTION 23 learned magistrate went on to say that the proper way to frame a charge in these circumstances was to charge the defendant with ordinary larceny of the property of the Railway Executive. He concluded that in any case there was a contradiction in terms if a person were charged with stealing by finding the property of a person unknown, for, if the police did not know the owner, how could a-person charged with stealing by finding know him? The essence of such an offence was that the owner could be found. These two cases should provide useful guidance to the Police when they are called upon to frame charges in similar circumstances. A CLAIM OF RIGHT MADE IN GOOD FAITH

It is not very often that defendants, charged with larceny, are able to put forward the defence of a claim of right made in good faith, but an example of this occurred recently when a husband and wife were charged before the Kingston Borough Justices with stealing a sheet and some crockery from a dwelling house. The defendants, Mr. and Mrs. Chipping, were both in their early twenties and were unrepresented. They elected to be tried summarily and pleaded not guilty. The facts, as given by Counsel for the prosecution and borne out by the evidence, were that the defendants went to lodge at the house of a widower, Mr. Tucker. They had one furnished room and their rent of £1 a week included the use of Mr. Tucker's kitchen, linen and crockery. For the first few months everything went smoothly, but differences had arisen and in October Mr. Tucker had given the Chippings notice to quit, the notice expiring on a Monday. On the previous Sunday afternoon, for some reason which he was unable to explain to the Court, Mr. Tucker had checked over his crockery, and he said in his evidence that it was all there. He then went out and when he returned in the evening the Chippings had left without telling him and without leaving any address. He said that he then went to their room and found that they had taken one of his sheets from the bed and that a glass jug and two dishes were missing from the kitchen. He reported the matter to the Police, who traced the defendants to their

24 THE JOURNAL OF CRIMINAL LAW new lodgings. On the bed they found the sheet, alleged to have been stolen, but there was no sign of the crockery. Mr. Tucker identified the sheet by a seam down the middle which he said he had helped his late wife to machine and by his laundry mark. He denied that the glass jug and one dish mentioned in the charge had been broken some time before the Chippings had left. The defendants, with a foresight unusual in unrepresented defendants, had brought with them to Court several articles of household linen, all bearing the same laundry mark as Mr. Tucker's. He admitted those articles were the property of the defendants, and the laundry mark on them was identified by a witness from the laundry, called by the prosecution,as having been made by her in indelible ink. The defendants' story was that they had had a few items of household linen of their own when they went to live in Mr. Tucker's house, including three sheets, and these articles had been sent to the laundry from time to time with Mr. Tucker's. One of their sheets had been torn while they were there and the wife had cut it up for dusters. When she was packing up to leave, she thought she should have two sheets to take away. One of her sheets was clean and this she put into a suitcase, together with one of the sheets from the bed, which she believed to be her own property. She said that some of the crockery alleged to have been stolen had been broken and denied that she had taken any of it away with her. There was no evidence apart from that of Mr. Tucker, to say that the items he had mentioned had been in his house on Sunday afternoon and missing on Sunday evening. The defendants made certain allegations against Mr. Tucker and said that it was in view of his behaviour towards Mrs. Chipping that they had decided to go a day before their notice expired without taking leave of him. The wife maintained all along that the sheet in question was her own property and in Court refused to accept that it was not. The Justices held that although there was no doubt that the sheet actually did belong to Mr. Tucker, yet Mrs. Chipping, in packing up to leave, had taken it in good faith believing it to be her own property. Her husband had had no part in packing anything before their departure. The

COURTS OF SUMMARY JURISDICTION 25 Justices also accepted the evidence of the defendants regarding the crockery and dismissed the charges against both defendants. USE OF BICYCLE WITH AUXILIARY MOTOR

Police v. Barrett This was an interesting prosecution brought under s. 1 of the Road and Rail Traffic Act, 1933, against a shoerepairer for using a goods vehicle on a road for the carriage of goods in connection with his trade or business without a licence. For such use the proper licence is, of course, a 'C'licence. The facts were that the defendant was seen riding a tradesman's bicycle in the basket of which were customer's shoes which he was delivering after repairing them; the bicycle was propelled by an auxiliary motor engine of a type commonly seen to-day and the machine bore a numberplate and carried a current tax licence. The case for the prosecution (stated to be probably the first of its kind) was that the bicycle fitted with a motor engine fell within the definition of 'motor vehicle' contained in s. 36 of the Road and Rail Traffic Act, 1933, i.e., Ita mechanically propelled vehicle intended or adapted for use on roads"; that it was constructed for the carriage of goods; and that it was being used for such carriage in connection with the trade carried on by the defendant, and therefore a 'C' licence was necessary. The defendant, who was unrepresented, argued that his machine could be propelled by human or mechanical power, or by both simultaneously; that it was not a motor vehicle within the meaning of s. 1 (2) and that no licence was required for the carriage of goods. The wide use of bicycles fitted with small motor engines makes this case of some little importance. It seems clear and beyond argument that such a bicycle when it is actually being propelled by its motor, is a motor vehicle. It is regarded as such for taxation purposes; for the purpose of driving licences and also for insurance. It must equally be a motor vehicle for the purpose of the Road and Rail Traffic Act, 1933, and in this case the court had no hesitation in deciding that a 'C' licence was necessary.

26 THE JOURNAL OF CRIMINAL LAW Having regard to the defendant's excellent character, and his belief that no licence was required, he was discharged absolutely. It is worth while, however, considering some other aspects of the use of these machines. They are capable of propulsion by means of pedals only, by motor only, or by both pedals and motor. In the last two cases it would be futile to endeavour to argue that the machine is not "mechanically propelled", and when so propelled its use must comply with all the provisions of the law relating to motor vehicles generally. Thus, charges of dangerous driving, driving under the influence of drink, or exceeding a speed limit, could, in the proper circumstances, be brought against the rider. The question of interest is the category into which the vehicle falls if the engine is not in use, and here two cases may be considered (a) where the engine is incapable of being used because of damage, or absence of petrol from the tank, and (b) where the engine is capable of use, but is not "switched on". The definition of a motor vehicle in the Road Traffic Act, 1930, s. 1, is similar to that quoted above-a mechanically propelled vehicle intended or adapted for use on roads. It has been stated judicially that this definition applies equally to a motor vehicle which has temporarily hroken down as it does to one in working order and going along the road (per Humphreys J. in Wallace v. Major (1946, 2 All E.R. 87, at p. 90). It was held also in Saycell v. Bool (1948, 2 All E.R. 83), that a person who steers a motor lorry down a hill without the engine running is driving a motor vehicle. In short the definition of a motor vehicle may be said to have been extended to include "a vehicle which is capable of being mechanically propelled and which is constructed or adapted for use on roads." It would be extremely dangerous to hold that the rider of a bicycle with an auxiliary engine can be given the discretion of deciding, merely by switching his engine on or off, whether he was riding a bicycle or a motor vehicle, and in view of the definition one feels reasonably sure that the High Court would hold that such a machine, in going order was unquestionably a motor vehicle. That leaves the first question-is it a motor vehicle

COURTS OF SUMMARY JURISDICTION 27 when incapable of proceeding under mechanical power? One feels at first that one is on more dangerous ground in reaching an unqualified decision in this case. An ordinary motor cycle with its engine out of action is still a motor vehicle (see Wallace v. Mojor, supra.), but it has no other means of propulsion. It could, however, be drawn by another motor vehicle, in which case it would become a trailer, and the person steering it would not be a "driver", and would not be subject to the penalties attaching to a driver guilty of offences against the Road Traffic Acts. A bicycle, on the other hand, with the auxiliary motor out of action, while (on the analogy of Wallace v. I'vEajor) it is still a motor vehicle, is capable of being propelled by the rider. He is still a person using a motor vehicle and must be held subject to the laws governing the use of motor vehicles. It would appear that his machine will only cease to be a motor vehicle if the auxiliary engine is completely removed from the frame. The machine then reverts to being an ordinary bicycle. It is therefore submitted that a bicycle of the type here discussed is a motor vehicle at all times while the engine is mounted in position, whether or not it is used, and whether or not it is capable of being used. PROBATION ORDERS AND CONDITIONAL DISCHARGES: PROCEDURE ON COMMISSION OF FURTHER OFFENCE

On 23rd November, James Paul Hogan was charged before Mr. F. J. Powell, Metropolitan magistrate at Clerkenwell Magistrates' Court with stealing six books worth £7 from a bookseller's shop in Bloomsbury. Hogan pleaded guilty. The police informed the magistrate that he had never been convicted before. The defendant said that he hoped to go to Canada in the near future and asked the magistrate if he would discharge him conditionally, because if he was fined or imprisoned the Canadian authorities would not allow him to enter the Dominion. The magistrate agreed to take this course, and in addition to making the order of conditional discharge he ordered Hogan to pay £5 costs. The next day, 24th November, Hogan was again charged with stealing three more books worth £5 8s. from

28 THE JOURNAL OF CRIMINAL LAW another shop. For this he was sent to prison for two months. Mr. Powell further directed that Hogan should be also charged with the breach of the order of conditional discharge made the day before. The magistrate said that he had been studying the complicated and detailed provisions of the Criminal Justice Act, 1948, s. 8 which dealt with the procedure to be followed where a defendant in respect of whom a probation order or an order of conditional discharge had been made had committed a subsequent offence. Sub-section 5 of s. 8 he thought seemed to allow the court which made such an order or the supervising court if the order had originally been made by a court of summary jurisdiction to deal with such a breach immediately without issuing a summons or warrant or even making a formal charge. The final words of sub-section 5 were that in such cases 'the court may deal with him, for the offence for which the order was made, in any manner in which the court could deal with him if he had just been convicted by or before that court of that offence'. The word 'just' seemed to rule out the necessity for a summons or warrant or even the formality of a separate charge. This was the view of the section taken by the Editor of Stone's Justices Manual. Sub-section 1 of s. 8 provides that a summons or warrant must be issued upon conviction of a further offence. In a footnote on this provision the Editor observes 'This subsection will operate only where proceedings are taken at some time after the conviction. A court of summary jurisdiction or the supervising court empowered by subsection 5 to deal with the matter may do so immediately after the conviction for a fresh offence by that court without the issue of a summons or warrant'. Despite the wording of subsection 5, and in particular the inclusion of the emphatic word 'just', the magistrate thought it might be held that subsection 1 governed the whole of section 8. He felt quite sure that a charge under s. 8 should be formulated like any other charge and put to the defendant. Hogan was then charged for that he was a person in whose case on 23rd November an order of conditional discharge had been made and had since been convicted of

COURTS OF SUMMARY JURISDICTION 29 an offence during the period of conditional discharge, to wit on 24th November, and had been dealt with for this subsequent offence. Hogan pleaded guilty to this charge and was sentenced to one month's imprisonment to be consecutive to the sentence of two months imposed for the offence of 24th November. DANGEROUS

STRUCTURES

AND

THE

LIMITATION

ACT.

It cannot be often that the Statute of Limitations is called in aid by the defence in reply to a summons seeking a charging order for a dangerous structure, but this was the main plank of the defence in a case recently heard at the Old Street Magistrates' Court. The case was finally decided on a different point, but the magistrate gave a decision on both points of law as there was a possibility of him being asked to state a case for the consideration of the Divisional Court. In 1940 the London County Council obtained a dangerous structure order relating to each of two adjacent properties. The owner was not known, so the notices, summonses and orders were served by addressing them to "the Owner" and affixing them to the property, which is a legal method when the owner is not known. The orders were not obeyed so the Council entered the premises and did certain work. Because of the conditions due to the war the whole danger was not removed but shoring was employed as a temporary measure. Every six months until 1949 the shoring was examined by the District Surveyor and pronounced satisfactory. While the work was being done further parts of the premises were found to be dangerous, were so certified, and this danger was also removed by the Council in a temporary manner. In 1949 a demand was made by the Council for the expenses they had incurred. This demand was also These addressed to "The Owner" and left on the site. expenses were not paid and an application was made to Old Street Magistrates' Court for a charging order in respect to each property. These summonses were also addressed to "The Owner". A further demand incorporating the expenses incurred on both properties was sent to the

30 THE JOURNAL OF CRIMINAL LAW Ironmongers' Company a little later than the other demands. On the day of hearing counsel appeared for the Ironmongers' Company stating that the premises were owned by that Company. After evidence had been given proving the above facts counsel took the point that the action was barred by the Limitation Act, 1939. The work was all done in 1940 and no demand was made until 1949. By Section 2 (1) of the Limitation Act "The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:(d) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture." The demand was thus out of time. The prosecution replied that certain work was done in 1940 but the whole danger was not removed then as shoring is not an answer to a dangerous structure order, see L. C.C. v. Jones (1912, 2 K.B. 504). Until the whole of the danger is removed the order has not been obeyed, so the 6 years has not begun to run. The magistrate raised the point of the wording of s. 70 of the London Building Act under which the Council were proceeding. This reads :"Where the Council have incurred any expenses in respect of any dangerous or neglected structure and have not been paid or have not recovered those expenses it shall notwithstanding anything to the contrary in any Act be lawful for a court of summary jurisdiction on complaint by the Council within twelve months after the date of the demand for the payment of the said expenses to make an order fixing the amount of the said expenses and the costs of the proceedings before the said court and directing that no part of the land upon which the dangerous or neglected structure was or is situate shall be built upon or that no part of the dangerous or neglected structure if repaired or rebuilt shall be let for occupation until after payment to the Council of the said amount and thereupon no part of the said land shall be built upon and no part of the dangerous or neglected or dangerous structure so repaired or rebuilt shall be let for occupation until payment to the Council of the said amount." He pointed out that this Act is later than the Limit-

COURTS OF SUMMARY JURISDICTION 31 ation Act so, on the face of it, the words "notwithstanding anything to the contrary in any Act" appeared to remove the 6 years' limitation. Counsel for the defendant company argued that the placing of these words immediately before the words "a court of summary jurisdiction may" showed that they referred to the powers of such a court. Under the Summary Jurisdiction Acts there is a six months' time limit and the London Building Acts (Amendment) Act was simply extending this to twelve months from the date of demand for the recovery of expenses. The words went no further than that. If read otherwise it would mean that if the work was once done on a building by the Council it could make a demand at any time from an unsuspecting owner and still have a further twelve months in which to recover those expenses. The Limitation Act laid down a six year limit for everybody with certain specified exceptions and it was against the spirit of the Act to remove the limit in favour of the L.C.C. for this purpose. The solicitor for the L.C.C. replied that the words were plain. "Notwithstanding anything to the contrary in any Act" could only mean what they said and the six year limitation must be removed by them. The magistrate reserved his decision on this point. Further evidence was then given by the District Surveyor and in cross-examination he stated that some time about 23rd March 1949 he found out that the owners of the property were the Ironmongers' Company. Counsel for the company then submitted that the demand was bad. It is only when the owner is not known that the Council can serve notices and other documents addressed to the owner by leaving them on the site. Each demand must relate to one property so the second demand served on the Ironmongers' Company could not be used as a basis for this summons, so the L.C.C. had to rely on the notices served on the site, and these were not properly served. With this argument the L.C.C. solicitor had to agree and the magistrate dismissed the summonses. In view of the importance of the other point raised he said that if he had had to decide it on the argument so far heard he would have held that the demand was out of time. He has not been asked to state a case. It is understood that this point may be raised in

32 THE JOURNAL OF CRIMINAL LAW future summonses. It is of importance to local councils who have similar cases where repair work was held up by the war, so it is hoped that it may soon be decided by a superior court. MULTIPLICITY OF OFFENCES

A limited company was recently charged at Old Street Magistrates' Court with three breaches of the Petroleum (Consolidation) Act, 1928. There was one summons which read :"being a person to whom a licence was granted under the Petroleum (Consolidation) Act, 1928, did unlawfully contravene conditions of such licence in that (1) you did keep a quantity of petroleum mixture in a spraying room on the said floor of the said premises. (2) you did keep a quantity of petroleum mixture in a polishing shop adjoining the spraying room. (3) spraying with petroleum mixture was carried on at the said premises. whereby you became liable to the penalty provided by section 1(3) of the said Act as made applicable by the Petroleum (Mixture) Order 1929." Until he was asked to plead the defending solicitor said that he understood that only one offence was alleged, namely the breach of a licence. He then submitted that there should only be one offence as, however many conditions of the licence were broken, there was only one licence. The prosecuting solicitor, in reply, referred to the Act, s. 1(3) of which reads "If any person to whom a petroleum spirit licence is granted contravenes any condition of the licence, he shall be liable on summary conviction to a fine not exceeding £20 for every day on which the contravention occurs or continues. " A contravention of any condition is thus a separate offence. Two conditions of the licence were (1) that the petroleum mixture must be stored in a specified container on the roof, (2) no spraying with petroleum mixture shall be carried on in the said premises. The magistrate agreed that if two conditions of the licence were contravened two offences had clearly been

COURTS OF SUMMARY JURISDICTION 33 committed according to the wording of the Act. This would make the charge number 3 a separate offence. The separation of the other two charges was a more difficult question as they each referred to a contravention of the same condition, and wherever in the building the petroleum mixture was stored other than as specified in the licence only one condition was broken. The prosecuting solicitor agreed that this was so but argued that every separate storing was a separate breach of this condition and therefore constituted a separate offence. If the licensee contravenes any condition of the licence he is liable to the penalty laid down by the Statute, so for every contravention whether of the same condition or not he is liable to a penalty. The magistrate accepted this argument, whereupon the defendant company pleaded guilty to all three summonses and fines were imposed of £10 on each with £10 lOs. costs. This can be contrasted with the well-known argument about brakes and steering under the Motor Vehicles (Construction and Use) Regulations 1947. The relevant Regulation is No. 68 which reads "Every windscreen wiper required by these Regulations to be fitted to a motor vehicle and every part of every braking system and of the means of operation thereof fitted to a motor vehicle or trailer, and all steering gear fitted to a motor vehicle shall at all times, while the motor vehicle or trailer is used on a road, be maintained in good and efficient working order and shall be properly adjusted." Regulation 94 reads "If any person uses or causes or permits to be used on a road a motor vehicle or trailer in contravention of or fails to comply with any Regulation contained in Part III of these Regulations he shall for each offence be liable to a fine not exceeding £20." By the use of the word "and" in Regulation 68 the whole of the windscreen wiper, brakes and steering gear must be maintained efficiently and if any or all of these parts are wrong only one Regulation has been contravened. By Regulation 94 the offence is the use, etc. of a vehicle which has contravened a Regulation, so there is only one offence. In the petroleum mixture case it is the contravention of a condition which creates the offence and thus there were three offences in the above case.