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difficulties, disadvantages, and evils would accrue from enlarging the privilege of appeal which now obtains in criminal cases. I am anxious to state these fairly and fully, not only because of their intrinsic importance, but because of the conviction they have wrought in the minds of so many eminent jurists and statesmen.
The following are the principal objections which have been urged against extending the right of criminal appeal:-First, that in criminal cases the questions involved are generally so simple that new trials would be unnecessary. Mr. Baron Parke put this argument strongly in his evidence before the House of Lords' Committee,-" Disputes respecting civil rights-rights to property-are of a complicated nature, involving difficult propositions of law and fact, from which the administration of criminal justice is free; and upon the whole it is better to give an unlimited power of appeal on questions both of law and fact in civil, and to withhold it in criminal, cases." * There are two obvious answers to this objection. First, that as to questions of law, however seldom they may occur, the legislature has considered them of so much importance as to have established a special court for their consideration. Secondly, however simple the facts deposed to upon a criminal trial may be, the verdict may, notwithstanding, be against the weight of evidence, or returned under surprise, or in the absence of material facts which have transpired subsequent to the trial.
The next objection which I shall notice, refers to the delay in the execution of the criminal law which the exercise of the right of appeal would-introduce. Lord Brougham has illustrated this in a very forcible manner- "The criminal law depends, for the effect, more or less, which it has in deterring from crime by example of punishments, upon the speediness with which the execution of the sentence follows the trial. But in this case you would have a prisoner found guilty at
*See Report of Select Committee of the House of Lords on the Adminis tration of the Criminal Law, 1848, p. 8.
York in the first fortnight in July, but no sentence, even in the most flagrant case of murder, ever could be executed till the middle of the November following."* As to the deterrent force of punishment, his lordship has proved, in a remarkable dissertation to which I cannot here refer more particularly, that at best the influence of punishment in deterring others from crime has been greatly exaggerated. The delay of a few months, upon which his lordship laid so much emphasis, was satisfactorily anticipated in the scheme of Sir Fitzroy Kelly, which, among other things, provided that the Court of Appeal should sit a few days after the Summer Assizes.
Again, it is said that the number of appeals would be so great, that the present bench of judges would not be able to accomplish the work. It is probable that after the first few years, the result of an appeal in criminal cases would become so well understood, that the applications would not be very numerous. But even if they continued to be numerous, I contend that it is the first duty of a State to provide for the satisfactory administration of its laws.
Again, it has been asked, at whose cost are appeals to be conducted? If at the expense of the prisoner, an advantage is conferred upon the rich; but if the public are to bear the expense, the burden of litigation would be thrown upon those who have no direct personal interest in the result. It is better to grant a relief which may be open to all though available to a few, than to perpetuate a hardship from which rich and poor must alike suffer. When a question of law is now reserved, it is very seldom that the poverty of the prisoner is an effectual barrier against the prosecution of an appeal. And even under the present system, the rich have a decided advantage over the poor. In how many instances might the life of a pauper convict have been saved, if the funds were at his disposal to set in motion the machinery which would move the Home Office? It probably costs more to secure professional and
* Ibid. 49.
other assistance sufficiently powerful to promote an effectual representation to the Home Office, than it would cost to bring the case under the notice of a Court of Appeal. The best system of laws cannot raise the enjoyments of the poor to the level of the rich. The wealthy will always command a better literature, better medical aid, as well as better legal assistance. When it was proposed to enable all prisoners to be defended by counsel, the same objection was raised. The Prisoners' Counsel Act has, however, given much satisfaction, for the poor as well as the rich have gained by it.
Another objection is, that instances of improper convictions are rare. Let those who wish to obtain reliable information on this subject, consult the second report of the Criminal Law Commissioners. Mr. Wilde, who held the shrievalty of London, and was also an attorney by profession, stated, "I am perfectly satisfied that many persons have suffered punishments where they have been positively innocent of the crime with which they were charged, and which, if there had been any court of appeal, with of course proper officers appointed, to whom the parties accused might have stated the grounds of appeal, there would have been a reversal of their conviction or sentence." (p. 99.)
He stated further, "within the space of nine months during which he was one of the sheriffs of London, no fewer than six persons who had been capitally convicted at the Old Bailey, and left for execution, were saved from death in consequence of investigations showing that they had been improperly convicted. From the want of a proper appellate tribunal, the sheriffs and the officers of the prison, who, of course, are the only persons in constant communication with the prisoners, are often placed in a most painful situation, in having to judge how far, consistently with the discharge of their own duties, they ought to interfere." (Report, Vol. viii., p. 20.)
There are other objections which I cannot here stop to discuss. I shall only enumerate them :-First, that if new trials were granted, witnesses could in the meanwhile be
tampered with, and the crime of perjury would very much increase. Secondly, that if appeals were to be granted in cases of a conviction, they ought also to be conceded to prosecutors in cases of an acquittal. Thirdly, that the right of appeal would open a door through which the guilty might escape. Fourthly, that jurors would shirk their responsibility and return ill-considered verdicts on the ground that their decisions might be reviewed and rectified by a superior
Let me, in the next place, briefly relate what attempts have been made by the legislature to amend this department of the law. The first, and indeed the most comprehensive measure that has hitherto been laid before Parliament, was the Bill of 1844, introduced to the House of Commons by our learned Chairman. I may perhaps be permitted to add, that the speech of Sir Fitzroy Kelly, upon bringing in the Bill, remains to this day among the most exhaustive and learned dissertations on. Criminal Appeal. "The substantial object of the Bill," to use the language of its learned author, "was to enable all persons convicted of any criminal offence, whether at the Assizes, or at the Central Criminal Courts, or before Courts of Quarter Sessions, or other inferior Courts, to make the same application to set aside the verdict, to have a new trial, to enter a verdict of not guilty, or to arrest judgment, before any of the superior courts of Westminster Hall as may now be made in civil cases, and upon much the same system of practice; that is, upon an application in the first instance, for a rule nisi; and in the event of a rule nisi being granted, then, upon hearing counsel on both sides, to make the rule absolute or discharge it, and enter final judgment accordingly."
In point of fact the scheme of Sir Fitzroy Kelly, as embodied in the Bill of 1844, amounted almost to a complete assimilation of appellate procedure in civil and criminal cases. It extended to all indictable offences-felonies as well as misdemeanors-and the appeal was to be a matter of right, and not a concession dependent upon the will and
pleasure of the judge. Beyond this it is impossible to go. I am afraid, however, that the legislature of 1864 would follow the example of the Parliament of 1844 in rejecting a bill which proposed changes so comprehensive and important. Our system of law making is empirical; we advance by short steps cautiously taken. Beginning with small experiments, which result sometimes in failure, sometimes in success, we hit upon a good principle, we mould and shape it to our existing laws. If it assimilates-well; if it proves a mistake, we throw it away, and proceed upon some other experiment. Whether this be philosophical or not, it is a fact— a fact of which every statesman must take due notice, and for which he must make due allowance.
The Bill of Sir Fitzroy Kelly passed the first reading, but was withdrawn in the month of July, 1844, at the request of Sir James Graham, who stated "that he wished it to be understood that, in so acting, he did not preclude the Government from taking up the subject, when they had examined it calmly and at leisure." Four years later, that is to say in February, 1848, Mr. Ewart brought in a measure on the subject of appeal in criminal cases. Its second reading was postponed in favour of Lord Campbell's Bill, for granting appeals on matters of law in criminal cases. The Act 11 & 12 Vict., c. 78, passed in pursuance of Lord Campbell's Bill, established a court of appeal for the consideration of Crown Cases reserved.
The last discussion in Parliament on the Law of Criminal Appeal took place on the 31st June, 1860, upon the second reading of Mr. M'Mahon's Bill. That Bill, which was lost in the second reading, proposed only a small extension of the right of appeal. To this extent only, that the writ of certiorari should issue from the Queen's Bench after conviction as well as before trial. Inasmuch as the Court of Queen's Bench has the power of ordering new trials on all requests formed there, and also in all cases removed thither by certiorari; the effect of Mr. M'Mahon's Bill would have