A CRIMINAL APPEAL COURT.
WE have hitherto refrained from commenting at length on the Lord Chancellor's Bill, which last month passed its second reading in the House of Lords, because to some extent it seemed a ballots cr mai, and its introducer promised a close examination in the Committee stage. Since its introduction, however, its provisions have been carefully analysed by eminent lawyers like Sir H. Poland and Mr. Montague Crackanthorpe, and the difficulties which we indicated then appear more real on fuller con- sideration. We have always been in favour of some kind of Court of Criminal Appeal. No fewer than eight Bills on the subject have been brought in during the past seventy years, which argues both in the public and in the legal profession a sense of the necessity of some reform. At present, while the machinery of civil appeal is as ample as could be desired, criminal appeals are limited to appeals to Quarter Sessions in insignificant cases, an appeal on law by means of a case stated to the Court of Crown Cases Reserved, and in exceptional circumstances an appeal on both law and fact by means of a certiorari to the King's Bench. This is manifestly not enough, as the Beck case showed, to prevent an innocent man being•condemned without a chance of a rehearing. The appeal on a point of law, which is in the discretion of the Judge who tries the case, and the chance of the Home Office revising the evidence, are the only securities against the consequences of a wrong conviction. There ought clearly to be an opportunity as of right for the prisoner to have the whole circumstances of his trial reviewed by another tribunal, and the law reargued. and the facts re-examined if such a tribunal thinks it neces- sary,—not the right of appeal, but the right of having the justice of an appeal considered. So far we are wholly on the side of the reformers.
The Bill which the Lord Chancellor introduced begins by abolishing the Court for Crown Cases Reserved, which was ever an unwieldy piece of mechanism, and will not be missed. It constitutes in its stead a Court of Criminal Appeal consisting of Judges of the High Court—appar- ently both King's Bench and Chancery—with the Lord Chief Justice as President. To this body an appeal will lie in all criminal cases as a matter of right both on law, fact, and sentence. A prisoner may or may not be allowed to be present, but he need have no counsel, for the Court will consider the depositions and the evidence given at his trial. The Home Secretary will continue to have the power to revise sentences and investigate fresh evidence, but in cases of difficulty he will be able to hand. over the task to the new Court. Such are the simple details of a highly controversial measure, which goes far beyond any earlier proposal. To the appeal on law we have no objec- tion. The principle was established by the Report of the Beck Commission, and was embodied in a Bill last year. At the same time, we agree with Mr. Crackanthorpe's con- tention in his letter to the Times last Saturday that instead of treating the matter as an ordinary appeal it would be preferable to require the Judge of first instance to state a case. The chance that such a duty would be required of him would be a useful stimulus to close attention to the legal argument at the trial. And in our view the appeal on law, also, should be by leave, the Court on good primei-facie evidence granting a rule calling upon the Crown to support the impugned. decision. But the mere fact that arguable points of law are not very common in criminal cases will of itself keep this form of appeal within reasonable bounds. Nor have we any complaint to make against the power vested in the Appeal Court to revise the sentence. That power the Home Secretary already possesses, and his functions may well be shared with the Court. The only difficulty lies in the wide variation of opinion among Judges as to what constitutes a fair sentence. If, as Mr. Crackanthorpe points out, the Appeal Court were a permanent body composed. of the same members, it might do much in the way of " standardising " sentences. Since it is, however, like the Divisional Court, a mobile tribunal, it will be impossible to expect,from it any great consistency of practice. But one power should, in our opinion, be given it which is withheld by the Bill,—the power to increase sentences up to the legal limit for the offence in question. The existence of this right might act as a deterrent to frivolous appeals. And it may as easily happen that the Judge of first instance has erred on the side of leniency as on the side of hardness.
The crux of the Bill is the appeal as of right on the facts. In the earlier measures this was suggested, and rejected because of -the obvious practical difficulties. The Lord Chancellor has not convinced us that these obstacles have been removed, and on this point the opinion of all who have anything to do with criminal practice is unanimous against the Bill. First, the right of appeal without any expense and any responsibility will make the procedure inevitable in almost every case. No man will be prepared to forego a chance of escape. In 1904, according to the official returns, there were nearly nine thousand convictions at Assizes and Quarter Sessions. Assuming that one-third of the persons convicted had appealed, and allowing for three appeals being heard. in the day, it would have taken a thousand days to hear the appeals of that one year. Similar figures were quoted by Sir Henry James against a like amendment to the Bill of 1883, and we are at a loss to understand what has led Lord James of Hereford to alter his opinion. The immense crop of appeals would put the whole of our judicial system out of gear, and a dozen new Judges would. scarcely cope with it. But apart from this practical difficulty, there is one grave danger which will follow from making appeals universal. The Court of Appeal will speedily become the Court of first instance. In criminal trials Judge and jury feel keenly the weight of responsibility that is on them. On them alone depends the liberty or the life of a fellow-citizen. But if appeal is made certain this responsi- bility will go. Jury and Judge, knowing that their work will be revised, will do it perfunctorily, shifting the burden on to the unfortunate Appeal Court, with whom the real decision pill rest. The high traditions of our criminal, jurisdiction will be destroyed, and a tribunal which does not hear evidence and does not see the prisoner or the witnesses will have the tasic of deciding a case from a sheaf of papers. India offers a warning, if one were needed, of the confusion which will follow suck a pro- cedure. Under the old system, the Sudder Courts, ignorant of the language and the customs of the district from which the appeal came, cheerfully retried all cases on paper, and upset the decisions of highly competent local tribunals who had the facts far more fully before them. The abuse was so great that the Appeal Court became the despair of active Magistrates and the certain refuge of rascaldom. We do not suggest that any such result would attend the passing of the Bill. But with the best will in the world no Court, it seems to us, can retry a case from the " dead record" with the same fairness as if the persons concerned were actually before it. Evidence on paper is not the same thing as the facts presented to a jury by living witnesses, and any Court which has nothing but paper to follow is without half the data.
The obvious emendation is to make all appeals a matter of leave. We do not agree with Mr. Crackanthorpe that the best way would be to leave it to the Judge who presided at the trial or to the Secretary of State to say whether an appeal should be allowed. It seems to us that a fresh and impartial mind is wanted, and that some form of permanent tribunal is desirable. The Home Secretary might have the right of permitting or disallowing an apifeal in the case of smaller sentences, say imprisonment for a less term than six months or a year. But for all graver cases we should prefer to see the decision rest with the Court of Criminal Appeal. The prisoner's counsel or representative would appear before it and ask for a rule, and on the hearing the Court would have power either to send back the case for a new trial or to deal with it itself. We would extend this practice both to appeals on fact and on law, though as to the latter, the chances of abuse being fewer, safeguards are less vital. The right to order a new trial, which is not given by the present Bill, .seems to us also, indispensable. New facts may have been discovered, and new witnesses may have appeared, so that the whole complexion of the case is altered, and in such circumstances a new trial is the only possible method of arriving at the truth. Besides, as Mr. Crackanthorpe points out with justice, an innocent man will, as a rule, prefer to be acquitted by a jury to having his sentence quashed by an Appeal Court, or receiving a Royal pardon for a crime of which he has not been guilty.
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