Court of Criminal Appeal

CRIMINAL APPEAL, COURT OF. In discussing the question of appeals in criminal cases in England and Wales, it is convenient to consider (1) the position before the Criminal Appeal Act 1907, (2) the terms of the act, (3) the experience gained by working the act.

As to (I) the position before the Criminal Appeal Act 1907, for many years the question of criminal appeal in general had been a matter of great controversy. As early as 1844 a bill had been unsuccessfully introduced for the purpose of establishing appeal in criminal cases, and from that time up to 1906 nearly 3o bills were brought forward with the same object, but none succeeded in passing. In 1892 the question was referred to the Council of Judges and favourably reported upon by them. It may be remarked that England was practically the only civilized coun try in which there was no appeal in criminal cases. It is true there was an appeal on questions of law arising at the trial (see APPEAL), a development undoubtedly hastened by the report in the case of Adolph Beck (19o4) showing clearly that the Home Office was not a satisfactory tribunal of final appeal. In 1906 the lord chan cellor (Lord Loreburn) introduced another Criminal Appeal bill which passed the House of Lords, but was dropped in the House of Commons after a first reading. The next year the act (Criminal Appeal Act 1907) which was ultimately carried was introduced into the House of Commons.

The Criminal Appeal Act 1907.

As to (2) the terms of the Criminal Appeal Act 1907, by s. i of the act the court of criminal appeal was constituted and consisted of the lord chief justice of England and eight judges of the king's bench division of the High Court of Justice. By a short amending act, the Criminal Appeal Amendment Act 1908, it was enacted that all the judges of the king's bench division should be judges of the court. The lord chief justice of England, or in his absence the senior member of the court, acts as president. In practice the lord chief justice has almost invariably presided. By s. 3 a person convicted on indictment may appeal under the act to the court (a) against his conviction on any ground of appeal which involves a question of law alone, and (b) with leave of the court (a single judge may give leave to appeal, s. i 7) or upon the certificate of the judge who tried him that it is a fit case for appeal, on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal, and (c) with the leave of the court against the sentence passed on his conviction unless the sentence is one fixed by law. By the Prevention of Crime Act 1908 a person sentenced to preventive detention may appeal against sentence without the leave of the court of criminal appeal. By the Criminal Justice Administration Act, 1914, one sentenced by a court of quarter sessions to detention in a Borstal institution may appeal against the sentence of the court of criminal appeal as if he had been convicted on indictment, and under the Children Act 1908 a parent or guardian may appeal against an order under s. 99 (6), if made by a court of assize or court of quarter sessions. Finally a person convicted at a petty sessional court and subse quently sentenced as an incorrigible rogue under the Vagrancy Act 1824 may appeal with leave against his sentence. There is no appeal by way of bills of exception which are commonly used in criminal cases in the United States or by writ of error, nor is it possible for a new trial to be granted in a criminal case (s. 20 [ 1 ] ), but where the court comes to the conclusion that a trial has been a nullity, it has power to order that the appellant shall take his trial on the indictment in respect of which the appeal was brought.

The present modes of appeal are (1) under the Crown Case Act 1848 by cases stated by the judge on a question of law arising on the trial, (2) under the Criminal Appeal Act 1907, (3) under the case of indictments of common law for obstruction or non repair of a highway, the appeal is to the Civil Court of Appeal (s. 20 [3])• A person who wishes to appeal must apply to the court within ten days of the conviction or sentence, but the court has power in all cases to extend that time except in convictions involving sentence of death (s. 7). The act does not extend to Scotland or Ireland (s. 23), nor does it apply to convictions on indictment, or inquisitions of any peer or peeress convicted of an offence not triable by a court of assize (s. 20 [2] ). Nothing in the act affects the prerogative of mercy (s. 19).

In practice application for leave to appeal are dealt with by a single judge from whose decision there is an appeal to the full court. An appellant is entitled to be present, if he desire, at the hearing of his appeal, unless the question of the appeal is one of law only. He has no right to be present at an application for leave to appeal. The court has power to allow witnesses to be called, a power which is, however, seldom exercised, and by an important proviso to s. 4 the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred. This proviso has often been acted upon.

On an appeal against sentence the court has power to quash the sentence passed at the trial and pass such other sentence as is warranted in law by the verdict, whether more or less severe (s. 4 [3] ). This is a power which is seldom exercised and never without warning to the appellant that the court has the power. It is one of the few checks upon frivolous appeals.

The Court has power to release an appellant on bail pending the determination of his appeal (s. 14 [2] ). While waiting in prison pending a determination of his appeal, the appellant is specially treated as an appellant, but if his appeal is unsuccessful, such time of waiting is not counted as part of his sentence, unless leave to appeal has been given, or the court otherwise directs. This is another check on frivolous appeals, the result being that in most cases the appellant is kept in custody for about four or five weeks longer than he would have been had he not appealed or applied for leave to appeal.

Shorthand notes are taken of the proceedings at the trial of any person on indictment who if convicted is entitled or may be authorized to appeal, and copies are made in the event of applica tion for leave to appeal or an appeal. The cost of such shorthand notes is defrayed out of moneys provided by parliament (s. 16) .

The court must consist of not less than three judges, of whom, as above pointed out, the chief justice is almost invariably one (s. 1). In some 3o or 4o cases the court has been constituted with more than three judges, and in one case the court consisted of 13 judges. In almost every case one judgment alone is pro nounced, but where the question is a question of law, separate judgments may be pronounced if in the opinion of the court such a course would be convenient (s. i [5] ).

If in any case the director of public prosecutions or the prose cutor or defendant obtain the certificate of the attorney-general that the decision of the court of criminal appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that a further appeal should be brought, he may appeal from that decision to the House of Lords (s. i [6] ). Otherwise the determination of the court of criminal appeal is final. There have been a few appeals to the House of Lords. For further details reference should be made to the act.

Working of the Act.

As to (3) the experience gained by the working of the act, the court sat for the first occasion on May 15, 1908, so there has been about 20 years' experience. The space at the disposal of the writer forbids full details, but it may be stated that just about 7% of the total number of convicted persons have appealed. The highest number of appellants was in 191 o, when there were 712, the lowest number in 1919, when there were 355. Out of the 712 appeals in 191 o, convictions were quashed in 39 cases and sentences reduced in 42. Out of the 355 appeals in 1919, convictions were quashed in 17 and sentences reduced in 17 cases. One other figure may be given. In 1926 there were 425 appeals, with 23 convictions quashed and 27 sentences reduced. It should be mentioned that many cases never reached the full court at all, as appellants have an absolute right to abandon their appeals or applications and sometimes do so. For example, in 1926 101 appellants abandoned their appeals or applications, 57 before their cases had been considered at all, and 54 after the single judge had refused leave to appeal. The court has sat on an average 39 days a year in recent years. In 1925 it sat 42 days, in 1926 it sat 35 days and there is always a sitting of the court during the long vacation. The average time that elapses from the receipt of the notice of appeal or application for leave to appeal till the same is finally determined by the court is from four to five weeks, a short time when it is remembered that it is necessary to get copies of the shorthand notes made and the case prepared for the court. The expenses of the court, paid out of money provided by parlia ment, were for the year ending April 1924 £11,730, for the year ending April for the year ending April 1926, £12, 963, These payments do not include any part of the salaries of the judges, nor the salary of the registrar, who as such receives no salary.

It is thought that the court has amply justified its existence. It has improved the administration of the criminal law and estab lished more uniformity and certainty in its practice and procedure. No attempt has been made to standardize sentences, nor is it con sidered that such a course would be desirable. The prevalence of crime in a particular district or at a particular time may call for an increase in the severity of sentences. On the other hand tempta, tion and provocation may mitigate punishment in particular cases. Whether it is the creation of the criminal court of appeal, or a growing recognition of a more humane treatment of those con victed for crime, it is certain that the sentences imposed to-day are less severe than the sentences imposed a generation ago.

By the Criminal Appeal Scotland Act 1926 a court of criminal appeal on similar lines to the English court was constituted for Scotland with an interesting provision in s. 2 (3) which provides that on an appeal, not only against sentence, but against convic tion, the court may quash the sentence passed at a trial and substi tute another sentence whether more or less severe. This is a power that the English court does not possess, but it is certainly a useful power as it tends to prevent frivolous appeals.

There have been persons who held the opinion that not only a convicted person should be entitled to appeal to the Crown, but that the prosecutor should be entitled to appeal where the prisoner has been acquitted, and in the early days of the court expressions may be found in some of the judgments favouring such a course. Those expressions have not been made in recent years and the general opinion is that it is not desirable that the court should have a power to order a new trial in cases where the person charged has been found not guilty. Lord Hewart, lord chief justice of England, when visiting Canada and the United States in 1927, gave a lucid and interesting exposition of the history and principles of the act.

See H. Cohen, The Criminal Appeal Act 1907 (1908) ; R. E. Ross, The Court of Criminal Appeal (191I) ; W. 0. Russell, A Treatise on Crimes and Misdemeanours (8th ed., 1923) vol. ii., p. 1840; J. F. Archbold, Pleading, Evidence and Practice in Criminal Cases (27th ed., by R. E. Ross, p. 307. (J. SA.)