4 Edw. 7. c. 15. in any place within the jurisdiction of such magistrate or justices in a manner likely to cause the child unnecessary suffering or to be injurious to its health, (h) or that any offence mentioned in the First schedule to this Act (1) has been or is being committed in respect of such a child, such magistrate or justices may issue a warrant (k) authorising any person named therein to search for such child, and if it is found to have been or to be assaulted, ill-treated, or neglected in manner aforesaid, or that any such offence as aforesaid has been or is being committed in respect of the child, to take it to and detain it in a place of safety, until it can be brought before a Court of Summary Jurisdiction, or authorising any person to remove the child with or without search to a place of safety and detain it there until it can be brought before a Court of Summary Jurisdiction; and the Court before whom the child is brought may cause it to be dealt with in the manner provided by section five of this Act:

Provided that

(a) the powers herein before conferred on any two justices may be exercised by any one justice, if upon the information it appears to him to be a case of urgency; and

(b) in the case of Scotland the jurisdiction hereby conferred on a magistrate or two justices shall be exercised only by a sheriff or sheriff substitute.

(2) Any person issuing a warrant under this section may by the the same warrant cause any person accused of any offence in respect of the child to be apprehended and brought before a justice, and proceedings to be taken for punishing such person according to law.

(3) Any person authorised by warrant under this section to search for any child, or to remove any child, with or without search, may enter (if need be by force) (1) any house, building, or other place specified in the warrant, and may remove the child therefrom.

(h) Ante, p. 47.
() Post, p. 88.

(k) The arrest of a person to

whom the terms of a warrant do not
apply is a tortious act (Money v.
Leach, 3 Burr. 1742 ; Bell v. Oakley,
2 M. & S. 259), and therefore, though
the child need not be named, it
should be identified.

(2) Before resorting to force it is
the duty of a police officer to inform
those within the house of the cause
of his coming, and to give them full
opportunity of admitting him
peaceably. He should make it clear
that he is acting under proper
authority and has a legal warrant.

Once an entry has been made within
the outer doors, the officer may pro-
ceed to break open any inner doors
without demanding further permis-
sion (see Chitty on
"Constables").
Any person may of course enter a
house by permission of the occupier,
or his agent, and it is not a necessary
condition precedent to the right of
the officer of a society, having
entered with such permission, to
afterwards take criminal proceed-
ings, that he should first have
obtained a search warrant (R. v.
Hayward, Times," Nov. 11th,
1893, Divisional Court, Charles and
Wright, JJ.).

(4) Every warrant issued under this section shall be addressed to 4 Edw. 7. c. 15. and executed by some superintendent, inspector, or other superior officer of police, who shall be accompanied by the person making the information, if such person so desire, unless the persons by whom the warrant is issued otherwise direct, and may also, if the persons by whom the warrant is issued so direct, be accompanied by a registered medical practitioner.

(5) It shall not be necessary in any information or warrant under this section to name the child. (m)

Power as to Habitual Drunkards.

11 Where it appears to the Court by or before which any person is convicted of the offence of cruelty within the meaning of this Act, or of any of the offences mentioned in the First schedule to this Act, that that person is a parent of the child in respect of whom the offence was committed, or is living with the parent of the child, and is an habitual drunkard (») within the meaning of the Inebriates Acts, 1879, (6) and 1888,(p) the Court, in lieu of sentencing such person to imprisonment, may, if it thinks fit, make an order for his detention for any period named in the order not exceeding twelve months in a retreat under the said Acts, the licensee of which is willing to receive him, and the said order shall have the like effect, and copies thereof shall be sent to the local authority and Secretary of State in like manner as if it were an application duly made by such person and duly attested by two justices under the said Acts: and the Court may order an officer of the Court or constable to remove such person to the retreat, and on his reception the said Acts shall have effect as if he had been admitted in pursuance of an application so made and attested as aforesaid :(n)

Provided that

(a) an order for the detention of a person in a retreat shall not be made under this section unless that person, having had such notice as the Court deems sufficient of the intention to allege habitual drunkenness, consents to the order being made; and

(b) if the wife or husband of such person, being present at the hearing of the charge, objects to the order being made, the

66

(m) See note (k) to sec. 10, supra. (n) An habitual drunkard is a person who, not being amenable to any jurisdiction in lunacy, is notwithstanding, by reason of habitual drinking of intoxicating liquor, at times dangerous to himself, or herself, or to others, or incapable of managing himself, or herself, and

C.

his, or her, affairs" (42 & 43 Vict.
c. 19, s. 3). A retreat is "a
house licensed by the licensing
authority named by this Act for the
reception, control, care and curative
treatment of habitual drunkards"
(id. post, p. 184).

(0) 42 & 43 Vict. c. 19.
(p) 51 & 52 Vict. c. 19.

G

Power as to habitual

drunkards.

4 Edw. 7, c. 15.

Evidence of

accused

person.

Extension of power to take deposition of child.

Court shall, before making the order, take into consideration any representation made to it by the wife or husband; and (c) before making the order the Court shall, to such extent as it may deem reasonably sufficient, be satisfied that provision will be made for defraying the expenses of such person during detention in a retreat. (9)

Evidence and Procedure.

12 In any proceeding against any person for an offence under this Act or for any of the offences mentioned in the First schedule to this Act, such person shall be competent but not compellable to give evidence, (r) and the wife or husband of such person (8) may be required to attend to give evidence as an ordinary witness in the case, and shall be competent but not compellable to give evidence.

13 (1) Where a justice is satisfied by the evidence of a registered medical practitioner that the attendance before a Court of any child, in respect of whom an offence of cruelty within the meaning of this Act or any of the offences mentioned in the First schedule to this Act is alleged to have been committed, would involve serious danger to its life (t) or health, the justice may take in writing the deposition of such child on oath, and shall thereupon subscribe the same and add thereto a statement of his reason for taking the same, and of the day when and place where the same was taken, and of the names of the persons (if any) present at the taking thereof.

(2) The justice taking any such deposition shall transmit the same with his statement

(a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper officer of the Court for trial at which the accused person has been committed; and

(q) The Inebriates Act, 1898 (61 & 62 Vict. c. 60, post, p. 187), now gives very much wider powers, and the present section will only be needed in case of persons of private means who themselves desire to go to, and remain in, a home. It will be observed that the Court has no power under this section to compel the home to retain the person sent to it or to compel payments to the home. If, therefore, the payments cease, the patient is discharged.

(7) The conditions under which he gives evidence are now, however, regulated by the Criminal Evidence

Act, 1898 (post, p. 241), so that a man giving evidence on his own behalf cannot now be crossexamined as to previous convictions unless he puts his character in issue (Charnock v. Merchant [1900] 1 Q. B. 474).

(s) See R. v. Brazil, 63 J. P. 138. (t) This is an extension of the former law under which a deposition could only be taken, where, in the opinion of the medical man, the deponent was not likely to recover from such illness (30 & 31 Vict. c. 35, s. 6).

(b) in any other case to the clerk of the peace of the county or 4 Edw. 7, c. 15. borough in which the deposition has been taken;

and the clerk of the peace to whom any such deposition is transmitted shall preserve, file, and record the same.

Admission of deposition of

child in evidence.

14 Where on the trial of any person on indictment (u) for any offence of cruelty within the meaning of this Act or any of the offences mentioned in the First schedule to this Act, the Court is satisfied by the evidence of a registered medical practitioner that the attendance before the Court of any child in respect of whom the offence is alleged to have been committed would involve serious danger to its life or health, any deposition of the child taken under the Indictable Offences Act, 1848, (x) or the Petty Sessions (Ireland) Act, 1851, or this Act, shall be admissible c. 42. in evidence either for or against the accused person without further proof thereof

(a) if it purports to be signed by the justice by or before whom it purports to be taken; and

(b) if it is proved that reasonable notice (y) of the intention to take the deposition has been served upon the person against whom it is proposed to use the same as evidence, and that that person or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of crossexamining the child making the deposition.

11 & 12 Vict.

14 & 15 Vict.

c. 93.

Evidence of child of tender

15 (1) Where, in any proceeding against any person for an offence under this Act or for any of the offences (2) mentioned in the First schedule to this Act, the child in respect of whom the years. offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not in the opinion of the Court understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the Court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth: and the evidence of such child, though not given on oath but otherwise taken and reduced into writing, in accordance with the provisions of section seventeen of the Indictable

(a) There is no provision either under the present section or the earlier Act for using a deposition taken under them in summary proceedings.

(2) 11 & 12 Vict. c. 42, post, p. 212.

(y) This notice should be in writing. In R. v. Shurmer (55 L. J. 153) the Court for Crown Cases Reserved quashed the con

viction on the ground that written
notice had not been given, although
the accused was in fact present.

(z) An attempt to commit an
unnatural offence on a boy under
thirteen is not an "offence involv-
ing bodily injury" within the
meaning of the schedule (R. v.
Beer, 62 J. P. 120). See now,
however, the schedule as amended
by the Act of 1904, post, p. 88.

4 Edw. 7, c. 15. Offences Act, 1848, (a) or of section fourteen of the Petty Sessions (Ireland) Act, 1851, or of section thirteen of this Act, shall be deemed to be a deposition within the meaning of those sections respectively:

Power to proceed with case in absence of child.

Presumption of age of child.

Provided that

(a) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this section and given on behalf of the prosecution is corroborated (b) by some other material evidence in support thereof implicating the accused; and

(b) Any child whose evidence is received as aforesaid and who shall wilfully give false evidence shall be liable to be indicted and tried for such offence, and on conviction thereof may be adjudged such punishment as is provided for by section. eleven of the Summary Jurisdiction Act, 1879, (c) in the case of juvenile offenders, or in Ireland by section four of the Summary Jurisdiction over Children (Ireland) Act, 1884, in the case of children.

(2) This section shall not apply to Scotland.

16 Where in any proceedings with relation to an offence of cruelty within the meaning of this Act, or any of the offences mentioned in the First schedule to this Act, the Court is satisfied (d) that the attendance before the Court of any child in respect of whom the offence is alleged to have been committed (e) is not essential to the just hearing of the case, the case may be proceeded with and determined in the absence of the child.

17 Where a person is charged with an offence under this Act, or any of the offences mentioned in the First schedule to this Act, or any offence under the Employment of Children Act, 1903 (ƒ) in respect of a child who is alleged in the charge or indictment to be under any specified age, and the child appears to the Court to be under that age, such child shall for the purposes of this Act and the Employment of Children Act, 1903, be deemed to be under that age, unless the contrary is proved. (g)

(a) 11 & 12 Vict. c. 42.
(b) See ante, p. 61.
(c) 42 & 43 Vict. c. 49.

(d) The words "the evidence of a
registered medical practitioner" in
the Act of 1894 were struck out by
the Act of 1904.

(e) So also were the words "would involve serious danger to its life or health, and is further satisfied." The effect of the section as it now stands, therefore, is that the attendance of a child in court is