CRIMINAL APPEAL AND EVIDENCE.* IN a book that would have

been vastly improved by compres- sion and better arrangement Mr. Sibley has collected a great deal of interesting and suggestive material, much of which is very difficult of access elsewhere. He has made a special examination of some remarkable cases of circumstantial evidence and wrongful conviction, and he devotes some useful criticism to the Criminal Appeal Act which has recently

• Criminal Appeal and Evidence. By N. W. Sibley, B.A., LL.M. Lonion : T. Fisher Unwin. [15e. net.]

come into force. In future editions we would entreat

Mr. Sibley to add a proper index, and to be more careful in correcting his proofs. The unfortunate phrase cadit guaestio is tortured out of all grammatical semblance, and the learned author of Paradoxes and Puzzles figures perpetually as Mr. Page, though on one occasion at least he is restored to his proper description of Mr. John Paget.

The slow and halting process by which an English criminal trial has assumed its present shape forms a fascinating branch of legal study, and it is calculated to administer some severs shocks to our national self-complacency. From time immemorial we have been in the habit of congratulating ourselves upon the perfection of our administration of justice. Even the Tudor and Stuart Judges used to preface the death sentence with a eulogy on the fairness of the trial enjoyed by the prisoners, and a succession of eminent lawyers down to the last few years have deplored the gradual relaxation of the penal laws and the extension of the range of defence. Sir James Fitzjames Stephen, indeed, was not among the optimists. To his mind, the treason trials of the seven- teenth century showed not so much that the Judges were corrupt and timid, or that juries were liable to be influenced by party spirit, as that the principles of evidence were then ill understood, and the whole method of criminal procedure imperfect and superficial. "An amount of injustice," he continues, "frightful to think of must have been inflicted at the Assizes and Sessions on obscure persons of whom no one has ever heard or will bear." Surely there is no more pathetic picture in our history than that contained in the statement of Mary Spencer, one of the Lancashire "witches" of 1634, as she lay under sentence of death in Chester Gaol :—" When she was in Court she could have explained everything, but the wind was so loud and the throng so great as she could not hear the evidence against her."

"History," wrote Professor Gardiner, deeply moved by this last most tragic touch, "occupies itself, perforce, mainly with the sorrows of the educated classes whose own pens have left the record of their wrongs. Into the sufferings of the mass of the people, except when they have been lashed by long continued injustice into frenzy, it is hard to gain a glimpse. For once the veil is lifted and we see as by a lightning flash the forlorn and unfriended girl to whom the inhuman laws of her country denied the services of an advocate, baffled by the noisy babble around her in her efforts to speak a word on behalf of her innocence."

We are too apt to forget the slow stages by which the accused has been put on an equality with his accuser, has won the right to have his witnesses sworn, to obtain access to the depositions, to be fully represented by counsel. The com- petency of the prisoner and his wife as witnesses was first admitted ia the Dynamite Act of 1883; it was extended to sexual offences in 1885, and rendered universal in 1898. In 1903 adequate provision was made for the defence of poor prisoners, and on April 18th last the Criminal Appeal Act came into operation.

It is only just to add that for over a century the working of the law has been much fairer in actual fact than on paper.

Even before counsel were permitted by the Act of 1836 to address the jury in cases of felony, they had enjoyed a latitude in cross-examination which rendered the innovation less remarkable than it appears. Judges for the most part showed

tenderness and consideration to the undefended prisoners, and in grave cases, such as murder, invariably called upon some member of the Bar to .offer his services gratuitously. The practice had grown up of allowing the accused to make an unsworn statement from the dock, and it should be borne in mind that in two recent and conspicuous miscarriages of justice the jury heard the prisoners on their oath and dis- believed them.

The existing rules of evidence, pedantic and irrational as they may sometimes appear, together with the habit of mind that they foster, have proved the salvation of countless prisoners, guilty as well as innocent. Yet they only date from the middle of the eighteenth century, and a glance at the earlier volumes of the State Trials will suffice to show the

wild irrelevances, often incapable of refutation, which were admitted and encouraged in the witness-box. The perjurer of those days has been aptly compared to a man armed with a deadly poison, which he could administer with an almost infinitesimal risk of detection. From that peril society owes its comparative immunity to the strict observance of the laws of evidence as evolved by generations of Judges, and to the systematic and scientific growth of cross- examination.

Pilate's dilemma—What is truth P—remains the most difficult of human problems, and the number of instances in which ,certainty, absolute and demonstrative, can be obtained is far smaller than we are wont to imagine. Probability must ever remain the guide of life, and in Courts of Justice, civil and criminal alike, we are perpetually driven back to that train of reasoning known as circumstantial evidence. The term is not a happy one; it is constantly misapplied and misunderstood.

The force of circumstantial evidence does not consist in the number of subalternate facts adduced, but in its negative character of excluding all rival hypotheses; and many, if not

most, of the acts of injustice perpetrated under form of law have been due to the honest mistake or the wilful falsehood pf professed eyewitnesses. Its weakness consists in the necessity that the truth of the facts composing the chain must depend often upon minute and careful observation, as to which even the most conscientious witnesses may make unin- tentional misstatements. Mr. Sibley has collected a number of cases in which a conviction has been obtained that is now admitted to be wrong, or where the mystery remains too deep for solution. In the trial of Elizabeth Canning in 1754, thirty- eight witnesses swore that the gipsy Mary Squires was wandering in Dorsetshire at a date when twenty-seven others swore that they had seen her about Enfield Wash, in Middlesex. And Squires was a woman of so hideous an appearance that it would seem impossible to be mistaken as to her identity. "Pray, Madam," she said herself to Canning, " look at this face, and sure if you have once seen it before, you must have remembered it, for God Almighty, I think, never made such another."

Mr. Sibley quotes a disquieting saying of Lord James of Hereford, made by him when he was Attorney-General in 1883, that in twelve cases during the two preceding years the Home Secretary had felt compelled to set at liberty persons convicted of the gravest crimes, and that in every one of these cases facts long concealed had come almost miraculously to light ; deathbed confessions of the real criminals and the depositions of the fellow-prisoners had proved the error of the original convictions. In spite of the Beck and Edalji cases, we are convinced that matters have improved during the last quarter of a century, though in 1894 seven "free pardons" were granted on the ground of innocence or pre- sumed innocence. The conviction of an innocent man has been described as the greatest of all earthly tragedies, and there are few more moving incidents than the final rehabilita- tion of Galley, sentenced to death at Exeter for murder in 1836, transported for life, finally pardoned, and paid 21,000 compensation in 1879, largely through the exertions of Sir Alexander Cockburn, who had been present at the trial as a young barrister forty-three years earlier.

Two other cases are cited by Mr. Sibley where compensation was voted by Parliament for wrongful conviction,—that of William Barber, whose conviction and whose treatment in Norfolk Island were equally infamous; and of Habron, who owed his release after serving three years in penal servitude to a confession made by Charles Peace when lying under sentence of death. We can oblige Mr. Sibley with another instance, and a very strange one. At the Newcastle Spring Assizes for 1879 two men called Brannagan and Murphy were sentenced by Mr. Justice Manisty to penal servitude for life on the charge of breaking into Edlingham Rectory by night and wounding with a shotgun the daughter of the vicar, by whom they were disturbed. In October, 1888, two other men, Edgell and Richardson, confessed that they were the burglars, and vowed that Brannagan and Murphy were absolutely innocent. The two latter were promptly released, and were awarded 2800 each by way of compensation. Edgell and Richardson pleaded guilty at the next Assizes and got five years' penal servitude from Baron Pollock. The only plea raised by their counsel was to the effect that the prosecution was " estopped" from alleging that they were guilty of an offence in respect of which there was a conviction against others in full force and not reversed. The sequel was even stranger, for in February, 1889, some leading members of the county constabulary were indicted for procuring and giving false evidence against Brannagan and Murphy. The case broke down utterly, and Miss Buckle, the daughter of the vicar, as well as the old vicar himself, swore positively that Edgell and Richardson were not the two men of whom they had caught a fleeting glance in the vicarage dining.room. We have reason for knowing that Mr. Justice Denman, who presided at this third trial, declared privately that during his sixteen years on the Bench be had never been more puzzled.

Among the criminal mysteries left uninveatigated by Mr. Sibley, the case of William Burke Kirwan is one of the most interesting. He was convicted at Dublin in December. 1852, for drowning his wife on the little island of Ireland's Eye, off Howth Harbour. Reprieved on the eve of the execution, he served thirty years and more in the prison at Spike Island, and was released an old and broken man. On the evidence it seems to us most emphatically a case of "Not proven"; and inquiries after the trial severely discounted the evidence of the most material witnesses for the prosecution. But Kinvan's irregular life and conjugal infidelities had raised a strong prejudice against him : he was convicted not for murder, but for adultery.

Two historical cases in which it seems certain that innocent victims suffered the last penalty of the law are those of Elizabeth Penning, hanged in 1815 for attempting to poison her master's household with arsenic, and the so-called " Campden wonder," which resulted in the execution of the two brothers Perry and their mother for the murder of William Harrison, who subsequently reappeared after an absence of over twelve months. About the facts of the latter case we must confess to very grave doubts, for the sole basis of the story is a tract in the liar leian Miscellany reprinted in Howell's State Trials. Mr. Paget has devoted, in our opinion with small success, an essay to proving that Penning was guilty. In any event, the Recorder of London, Sir John Silvester, tried her case with shocking barbarity.

In all cases where justice goes astray a heavy weight of responsibility rests upon the Judge. Barber's conviction was mainly due to the ill-fortune which substituted the in- competent " Johnny " Williams for the stern but capable Gurney at his second trial. Beck's first conviction was due to the improper rejection of evidence tendered on his behalf. Edalji could never have been convicted had he been tried before a "red Judge" at the Assizes. And both these latter had not only the advantage of the Prisoner's Evidence Act, but were defended by counsel of exdeptional ability. We are driven to the reluctant conclusion that so long as the human powers of observation and memory remain what they are, combined with the forces of prejudice and carelessness, and the occurrence, however rare, of deliberate perjury, no rules of evidence can save the administration of justice from terrible blunders.