being an habitual criminal; although we do not say that when
a mistake has been made, and the judge has told the jury that
the matter must not be taken into account at all, and the case is
brought before us, that that would be sufficient ground for
inducing us to quash the conviction. Though we do not by any
means say that, we do say that this fact, taken into consideration
with the other facts, forms a powerful reason for our conclusion
that this conviction cannot stand. Only one further observation
as to Detective Fitzgerald and the belief he expressed. It must
be borne in mind that in these trials evidence of character and
repute may, if the court thinks fit, be admitted as evidence on
the question whether the accused is leading persistently a dis-
honest life. Without formulating any rule of law, because that
is unnecessary, we are not satisfied with the direction given by
the deputy chairman that it was matter upon which the officer
had no business to express the opinion he had formed. It is
unnecessary to go further into the particular facts of that case.
With reference to the general question which has been raised,
I desire to express the opinion of the Court so that there may
be, so far as the Court thinks there can be, guidance in dealing
with these cases in future. I must point out that all that we
are entitled to do is to express our opinion on the meaning of
the words in the Act of Parliament. These words are that in
dealing with cases where a prisoner is convicted on indictment
and is then found by the jury to be an habitual criminal and
sentenced to penal servitude, the Court may pass a further
sentence ordering that on the determination of the sentence of
penal servitude the prisoner be detained for such period not
exceeding ten, nor less than five years, as the Court may
determine. The question involved in the argument addressed
to us is as to the meaning of those words "for such period not
exceeding ten years nor less than five." It is said that in the
general opinion a rule has been laid down by this Court in the
case of Rex v. Hamilton (9 C. A. R. 90) that in the absence of
special circumstances the court should impose a term of five
years' preventive detention where there was nothing in a
particular case which made it worse than others; that five
years
was to be the sentence to be passed. It is sufficient for us to
say that the Court did not intend to lay down any rule of law
which was to bind judges subsequently in passing sentences of
preventive detention. All that was intended was to deal with.
that particular case, and the Court said that in the absence of
circumstances making it desirable to pass a sentence of more
than five years-that is to say, some special circumstance which
made it necessary to pass the severest sentence or a more severe
sentence than five years-that a sentence of five years was
enough; but in the opinion of this court it would be just as
wrong to say that this statute is to be interpreted as laying
down the rule that five years is to be the term unless there are
special circumstances when it may be increased, as to say that

REX

v.

CROWLEY;

REX

V.

SULLIVAN.

1913.

Habitual criminalSentence of ten years' preventive

detentionlimit of five

No rule as to

years

Prevention of 1908 (8 Edw.7,

Crime Act,

c. 59), s. 10.

REX

v.

REX

v.

1913.

ten years must be the sentence unless there are special circumstances under which it should be reduced. Neither of those CROWLEY; rules would be correct. They are not the rules laid down by this Court. What this Court says is this: In order to arrive at SULLIVAN. the proper term of years for which preventive detention is to be imposed, once the court has come to the conclusion that it should be imposed (and it is for the court to come to that conclusion), the judge has to determine and take into account, in the exercise of his discretion, all the circumstances of the case. He may impose a period of five years; he cannot impose a period exceeding ten years; it is for him to determine, having detention regard to all the special circumstances of the case before him No rule as to what sentence within those limits he will

Habitual criminal

Sentence of ten years preventive

limit of five

years-

1908 (8 Edw.7,

c. 59), s. 10.

pass.

It is, however, of importance that judges in passing this Prevention of sentence should bear in mind the policy of the Act. No doubt Crime Act, the sentence of preventive detention must be punitive; it deprives a man of his liberty and imposes upon him against his will restrictions and rules of life which are only possible if he has committed an offence which justifies such restrictions; and then, according to the view of the Legislature, he may be sentenced to this term of preventive detention. But it is not intended to rank as, or be the same as, imprisonment; it certainly is not the same as penal servitude, because the most casual reference to the rules will show that there are very special rules which have been framed under this statute in regard to these cases of preventive detention. Instances of such rules are Separating the detention into three grades, and giving special privileges, assuming that a man conducts himself properly; allowing a man to be employed at useful trades in which he may earn money; giving power for part of that money to be applied for the benefit of his family; allowing canteens to be opened where prisoners may purchase articles of food at prices to be fixed by the directors; allowing prisoners of the ordinary grade to associate at meal times, and allowing those in the special grade (after getting their second certificate) to associate at meal times and in the evening; and also giving them such relaxation of a literary and social character as may be prescribed from time to time. In addition to this, advice and counsel will be given to them. There is a Board of Visitors, appointed by the Secretary of State, who hold office for three years, which has the power of doing much good and useful work. We have had brought to our notice the work of one board, consisting of Sir Edward Clayton, Sir Douglas Straight, and Sir Bryan Donkin, who have been doing work most useful to the State, and doing their utmost under this Act to carry out the duties which they are allowed to perform by virtue of these rules made under this Act of Parliament. We call attention to these rules and to the work being done under them for the purpose in particular of drawing the attention of those who have to pass sentences of preventive detention to what happens under

REX

v.

CROWLEY;

REX

υ.

1913.

criminalSentence of ten years'

preventive

detentionNo rule as to

these sentences, assuming that a prisoner conducts himself during this period of preventive detention properly and well. If he shows that he has become a reformed character, not only does he get the benefit of the increased privileges as he passes from one grade to the other during the term, but he is allowed SULLIVAN. out by the order of the Secretary of State. It may be there are conditions, sometimes stringent, at other times very easy. But, at any rate, there is the fullest power given to the Secretary Habitual of State to deal with the matter, and a man will be kept in preventive detention only for the period of five years, or, it may be, ten years, according to his sentence, if it is clear that during that period he has not become a reformed character; if he has reformed, we have had our attention called to cases in which a man has been released after one year, certainly after eighteen months. It is, however, too early to say yet what the effect of Prevention of these rules will be, because the Act of Parliament has only been 1908 (8 Edic.7, in force such a short time, and it is as well to point out that this c. 59), s. 10. is the first opportunity this Court of Criminal Appeal has had of dealing with the provisions and the general policy of the Act. There must be, first of all, the imposition of a sentence of three years' penal servitude before there can be a term of preventive detention, and the sentences of preventive detention actually served must have been very short, because not more than two years can have been served.

Under the circumstances it is sufficient for us to say that we think all these matters should be taken into account by the judge when he has to determine what term of years of preventive detention should be imposed; he should take into account the special circumstances of the case, and the intention of the Act that this term of preventive detention should be not only punitive but reformatory. We want to make it quite plain that, whilst laying down no rule, we point out that it is entirely a matter for the discretion of the judge who presides at the trial, having regard to the Act which he is called upon to enforce, and applying it to the special circumstances of the case then before hin, to decide what the period of preventive detention shall be.

Counsel for the appellant instructed by the Registrar of the Court of Criminal Appeal.

Counsel for the Crown instructed by the Director of Public Prosecutions.

limit of five

years

Crime Act,

KING'S BENCH DIVISION.

Thursday, Nov. 20, 1913.

(Before DARLING, ROWLATT, and ATKIN, JJ.)

RADFORD (app.) v. WILLIAMS (resp.). (a)

Licensing-Licensed premises-Permitting drunkenness-Reasonable steps for preventing-Order of two drinks by one personDuty of licenceholder to ascertain for whom second drink is intended-Licensing (Consolidation) Act, 1910 (10 Edw. 7 & 1 Geo. 5, c. 24), 8. 75, sub-s. 3.

By sect. 75, sub-sect. 3, of the Licensing (Consolidation) Act, 1910, if the holder of a justices' licence is charged with permitting drunkenness on his premises, and it is proved that any person was drunk on his premises, it shall lie on the holder of the licence to prove that he and the persons employed by him took all reasonable steps for preventing drunkenness on the premises. Held, that it may be a reasonable step for preventing drunkenness on licensed premises for the barman who supplies two drinks to a sober person to ascertain for whom the second drink is intended, and if he omits to do so, he may be omitting to take all reasonable steps for preventing drunkenness on the premises if in fact the second drink is intended for a drunken person.

CASE stated by the metropolitan police magistrate sitting at

the Thames Police Court.

On the 19th day of June, 1913, certain summonses against the appellant were heard by the magistrate, which summonses were issued on the information of the respondent Alfred Williams against the appellant, whereby the appellant was summoned for that he, on the 17th day of May, 1913, at the Walnut Tree public-house, No 18, Ben Jonson-road, in the metropolitan police district, being the holder of a justices' licence within the intent and meaning of the Licensing (Consolidation) Act, 1910, did unlawfully (1) sell intoxicating liquor to a drunken person, and (2) permit drunkenness on his licensed premises, contrary to sect. 75 of the Licensing (Consolidation) Act, 1910.

(a) Reported by W. W. ORR, ESQ., Barrister-at-Law.

V.

(resp.).

On the same day a summons against one Georgina Evans was RADFORD also heard by the magistrate, which summons was issued on the (app.) information of the respondent against Georgina Evans whereby WILLIAMS she was summoned for that she on the 17th day of May, 1913, being on the premises licensed for the sale of intoxicating liquor, to wit, the Walnut Tree public-house, No. 18, Ben Jonson-road, did procure liquor for consumption by a drunken person, contrary Licensingto sect. 7 of the Licensing Act, 1902.

1913.

Licensed

Permitting

-Reasonable steps for preventing

Upon the hearing of the informations the magistrate dis- premises missed the summons against the appellant for selling intoxicating drunkenness liquor to a drunken person, but he convicted the appellant on the summons for permitting drunkenness on his licensed premises on the ground hereinafter set forth, and imposed the nominal penalty of a shilling and no costs, and he convicted Georgina two Evans for procuring liquor for consumption by a drunken person and fined her 2s.

Order of drinks by

one person -Duty of licenceholder

The following facts were admitted or proved before the magis- to ascertain

trate :—

for whom second drink is intended

Licensing

tion) Act, 1910

1. At about 11.30 p.m. on Saturday, the 17th day of May, 1913, the private bar of the Walnut Tree public-house was very nearly (Consolida full, there being about eighteen persons in the bar, Six of the (10 Edw. 7 & 1 persons were seated on the right-hand side of the bar, and the Geo. 5, c. 24), remainder, some of whom were women, were standing between 8. 75, sub-s. 3. the front part of the counter and the door of the bar leading into Ben Jonson-road. A man named Brenchley, who was drunk, and a woman named Georgina Evans, who was sober, came into the bar together from the road. Brenchley remained just inside and on the left-hand side of the door. He was a small man, about 4ft. 11in. in height. Georgina Evans walked past the customers in the bar, went up to the counter and called for two drinks, which were supplied to her by the barman who was serving behind the bar, and which were then paid for by her. Evans then, passing back through the customers, gave one of the drinks to Brenchley, who was still standing just inside the door.

2. About two minutes after Brenchley and the woman Evans had entered the bar, the respondent Superintendent Divisional Inspector Alfred Williams, accompanied by a police constable, entered the bar (having previously visited two public bars of the public-house) and saw Brenchley standing just inside and on the left-hand side of the door, holding in his right hand a glass of beer, the beer dropping from the glass on to the floor.

3. Brenchley was quite quiet and there was no disorder, and as he was a short man and a number of persons were standing round the counter and between the counter and the door, the barman, who was busy serving the customers, did not see Brenchley or know that he had entered the premises. The magistrate therefore dismissed the summons charging the appellant with selling intoxicating liquor to a drunken person.