Evel®Prnent ®F the Right ®F Appeal in 1Xgland In: Criminal Cases

evel®prnent ®f the Right ®f Appeal in 1xgland in: Criminal Cases

with the Canadian Aspect o£ Directing New Trials in Murder Cases ,

C. H. O'HALLORAN Victoria Until the constitution of the Court of Criminal Appeal in 1907 the review of criminal cases in Efgland was limited to a degree now hard to realize. That it was then revolutionized is credited in some quarters to the public-spirited activity of Conan Doyle in the George Edalgi case (convicted in 1903), which quickly caught - the mind of a public already aroused over the Adolph Beck case (convicted, in 1896) .2 The Judicature Acts, 1875, had done little if anything to improve the opportunity for review in a "criminal cause or matter"; which the new Court of Appeal of 1875 early ruled outside its Jurisdiction by including in the term any question which was collateral, even in the widest sense, to a criminal cause or matter.3 From early times there was a marked contrast between the right of review and appeal in criminal cases and that prevailing in the civil common law courts. In the latter, until the culmina tion in the Judicature Acts, 1875, of the changes begun by the To avoid multitudinous footnotes it may be noted here that the main sources from which this paper is drawn, with special acknowledgement to - the English Legal System by Radcliffe & Cross (1937), are: Sir William Holdsworth's History of English Law ; Blackstone's Commentaries (Draper edition, 1898) ; Lord Campbell's Lives of the Lord Chancellors and his Lives of the Lord Chief Justices ; T . E. May, Constitutional History of England : 1760-1860 (1863) ; Stephen's Criminal Law .of England (1890) ; 'Taswell-Langmead, English Constitutional History (1890) ; Tbayer, Evi- dence at the Common Law (1898) ; Chitty's Criminal Law (1826) ; Select Essays in Anglo-American History, Vol . 1 (1907) ; and Pollock & Maitland, History of English Law (1898) . 2 John Dickson Carr ("Carter Dickson"), When Conan Doyle was .Sherlock Holmes, Harper's Magazine, January 1949. . 3 O'Halloran, Right of Review and Appeal in Civil Cases before the Judicature Acts 1875 (1949), 27 Can. Bar Rev. 46, at pp. 46-66.

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first Common Law Procedure Act, 1852, the right of review, generally speaking, had been two-fold: (a) before judgment, by motion to a court en bane for a new trial ; arrest of judgment, and so on, and (b) after judgment, by a writ of error to a Court of Error. The Court of Error was really confined to points of law by the limitations of the record of the case then permitted, with a further appeal by writ of error to the House of Lords. But in criminal trials it was quite different. There was no court en bane of the Royal Commissioners who presided in criminal trials at assizes. Their jurisdiction arose from and was confined by the Commissions under which they acted. The Commissioners could give judgment then and there on the verdict of the jury. Judges hearing civil trials on circuit at Nisi Prius in the common law courts of King's Bench, Common Pleas and Exchequer could not, for judgment could be given only at Westminster by the court en bane (which was the full bench of the court to which the trial judge belonged).4 In criminal law the right of review and appeal was much more restricted than in the common law and equity courts. For many centuries, it would seem that, unless the case was removed by certiorari into the Court of King's Bench for trial there, the remedies of the accused were pretty well limited to exceptions to the indictment and motions to arrest judgment because of insufficient certainty in describing the person, the time, the place or the offence. After 1705 writs of error to the Court of King's Bench afforded a limited opportunity of appeal to a higher court. But before 1907 there was no right of appeal in the modern sense in criminal cases.s To indicate how limited that right was, a quick perspective view is now taken of trial in criminal cases, with particular reference to the kind of evidence that was allowed to be heard progressively over the centuries and also to the severity of the punishment imposed. During the 16th, 17th and 18th centuries, and the first part of the 19th, punishment for. offences was savage in the extreme. This paper aims to give a general summary, with no pretension to technical precision. Much of the jurisdiction

, The right of review and appeal in the civil common law courts before the Judicature Acts, 1875, was examined in (1949), 27 Can. Bar Rev . 46, to which the present article is really a companion paper. For references therein to the difference in giving judgment in civil and criminal cases, see pp. 47-8, 53-4. s For a description of an appeal in the modern sense see (1949), 27 Can. Bar Rev. 46, at pp. 64-5 ; Atty. Gen . v. Sillem (1864), 10 H.L.C. 704 ;11 E.R . and Fewhurch Export Corp. v. Sitka Spruce Lbr. Co., (No . 2), [1947] 2 D.L.R. at p. 149.

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and practice of the criminal courts in the olden days -is hard to describe accurately,. let alone to describe in terms of full meaning - to the busy modern lawyer. From its inception the Court of King's Bench 6 had the administration of the criminal law within its special province. Nevertheless, it was not usual for felonies ormisdemeanours (the latter originally known as "trespasses") to be tried in that court. Indictable offences were tried mainly by Justices of the Peace at Quarter Sessions or in each county (as well as in London and Middlesex) by Royal Commissioners of Assize ; the latter included not only judges of the King's Bench and Common Pleas but also serjeants-at-law and even, in the early middle ages, prominent- laymen. Assizes in our sense of the term are direct descendants of the '.Itinera or Eyres which were first reduced to a system during the time of Henry II (1154-1189) . At first the duty of these Royal Commissioners was to hold inquisitions in every part of the Kingdom concerning crimes, civil suits, royal rights, local customs and a vast. variety of matters connected with revenue, feudal services and anything the King wished to -know for the purposes of his government 7 These duties were specified in the Commissions under which they acted and varied from time to time according to circumstan- ces. From local juries 8 the King was able to collect -information about his demesne lands, his feudal rights, the receipts of his sheriffs and the conduct of his officers. The administration of criminal justice could not be dissociated from these and other sources of the King's revenue that had a relation to the enforce- ment and preservation of law and order. It is said that in 1274 some two thousand Commissions of Assize were issued. It is not easy to learn exactly how and when the duties of these Commissioners of Assize (itinerant justices) began to be restricted to the hearing of criminal trials and came to be marked off clearly from the .. duties- of the judges of King's Bench and - Common Pleas who -went on circuit and took civil trials at Nisi Prius.9 But this division of duties did occur sometime in: the 14th century and became the foundation for an -important distinction between civil and criminal ,trials in the- giving of judgment and the opportunity for review before judgment.

c (1949), 27 Can. Bar Rev. at pp. 51-2 as to the origin of the Court of King's Bench. ' 7 Stephen, General View of the Criminal Law (1890), p. 15. $ (1949), 27 Can. Bar Rev. 46, reference to juries at pp. 47, 49, 52. 9 Ibid., p, 53, as to the origin of Nisi Prius.

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The Commissioners of Assize exercised a jurisdiction in criminal law practically coextensive with that of the courts of common law. They acted not by virtue of their office of judges, but by virtue of their temporary commissions. But an indictment for felony or misdemeanour brought in any county might be removed into the Court of King's Bench by certiorari and tried there instead of by Commissioners of Assize or the County Quarter Sessions; the existence of the latter is noted in 1360. The King's Attorney-General, largely as an inheritance from the Star Chamber," had power to file informations in the Court of King's Bench in any case of misdemeanour (but not felony) without an indictment brought or presentment made by a grand jury. Criminal cases brought before the Court of King's Bench were tried at Westminster, but often were sent for trial at Nisi Prius to some assize, as though they were civil actions, with the consequence that the record of the case after verdict had to be returned to Westminster for judgment to be pronounced there by the court en bane.,, The very important distinction arose between criminal trials at Nisi Prius and trials by the King's Commissioners of Assize (Commissioners of Oyer and Terminer and of Gaol Delivery). In the former the judge could not himself give judgment, since, as in civil trials, that was the prerogative of the court en bane at Westminster . ,, But trials under criminal Commissions (even though the Commissioners were judges of the King's Bench) were conducted independently of the Court of King's Bench and, subject to some exception to the conduct of the trial, judgment could be pronounced by the judge in court after the verdict of the jury, unless the case was removed by certiorari into the Court of King's Bench. Applications for a new trial were more restricted than in civil cases.,, In cases of felony a new trial could not be ordered." In misdemeanours a new trial could not be awarded after a trial at Quarter Sessions or at a Criminal Assize but only after the comparatively rare trials before the Court of King's Bench in the exercise of its original criminal jurisdiction. Whenever a prisoner appeared in person upon either a capital or inferior conviction (in misdemeanours the prisoner could be found guilty

,o The Star Chamber, originating in 1487 but abolished in 1641, is not examined in this paper. (1949), 27 Can. Bar Rev. at pp. 47-8; 52-56. ,~ Ibid. is Ibid., at pp. 54 ff. 14 And see Reg . v. Byramjee (1847), 11 Jur. 855 ; 13 E.R. 496 (P.C .) .

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in his absence, if he had once appeared), he could then, as well as at his arraignment, offer an exception to the indictment or move to arrest Judgment for want of sufficient certainty in setting forth the person, the time, the place or the offence. And if the exception were well taken the whole proceedings were set aside, though the prisoner could be indicted again. Praying ."the benefit of clergy" (abolished in 1827) ranked among the motions in arrest of judgment and did much to reduce the number 'of death sentences in capital crimes. A writ or error against a conviction at a criminal Assize or Quarter Sessions was limited, like the writ of error in common law civil -cases,15 to errors on the face of the record. The record set out in full the commission under which the court sat, the . arraignment, the plea and the issue, and, finally, the verdict and the judgment. But it contained little or nothing of the course of the trial, the evidence or the judge's summing up to the jury. . Prior to 1705, writs of error in criminal cases were not issued as of right but as, a matter of favour on the fiat of the Attorney- General. After that date they were not often refused but,, because of their restricted scope, were seldom applied for. The writ of error lay to the Court of King's Bench, from which . a further writ of error lay to the House of Lords. Since the case- of Daniel O'Connell is the rule has prevailed that only lords learned in the law should take part in House of Lords hearings;, it is said that the lay peers then waived their right to "Vote in deference to the views of the Duke of Wellington . Mr. Justice Stephen wrote that until 1820 the criminal law of England was unsatisfactory to the last degree; he described it as unsystematic,- vague, cumbersome and too severe, - and. characterized its punishments as capricious .17 The practice of allowing an accused to call witnesses received authority in the time of Queen Mary (1553-1558), but was denied in Udall's case." Witnesses on behalf of the accused were permitted in the 17th century, but were not allowed to be sworn and thus received less credence than the Crown witnesses, who were sworn. The rules of evidence did not begin to take shape until the 18th century and then were patterned on the rules first developed in the civil courts.' 9 The Crown would come prepared with its testimony written and oral, but the prisoner; kept in ignorance

is The writ of- error is described in- (1949), 27 Can. Bar Rev . at .pp . 57-8 16 (1844), 11 Cl. F. 155; 8 E.R. 1061 . l' Stephen, General View o£ the Criminal Law (1890), p. 51. is (1590), 1 How. St. Tr. 1271. is (1949), 27 Can. Bar Rev. at pp. 49, 52.

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of the particulars of the case he was to meet, could make no similar preparations and could produce no sworn evidence. All the advantages were with the Crown. Until Bushell's case 2° juries could be fined if they acquitted the accused. By that time the jury had lost its original character of an inquisition brought together to give the King information upon oath through the Royal Commissioners he had sent to make inquiry into matters of fact. In 1701 witnesses for the prisoner were allowed to be sworn. In 1708, it was enacted that in cases of High Treason not only the copy of the indictment but also a list of the witnesses for the Crown and of the jury should be given the prisoner ten days before the trial. But this did not apply to felonies. It was not until 1836 that the accused in felony cases could be defended by counsel, although that right had been given in 1695 to persons accused of High Treason. As a matter of practice the rule was relaxed prior to 1836 and counsel allowed to do every- thing but address the jury on behalf of the accused. It is recorded that Baron Parke threatened to resign if an Act were passed allowing counsel to accused, and that twelve of the fifteen judges strongly condemned the proposal.21 In 1827 it was enacted that if a prisoner stood mute from whatever cause a plea of not guilty should be entered on his behalf. Until 1898, the accused or his wife could not give evidence under oath in his own defence. The statutes of Jeofail,22 for the amendment of mistakes in civil cases, did not extend to proceedings or indictments in criminal cases, with the result that defective indictments were not aided by verdict in the manner that defective pleadings were in civil cases. Although the presumption of innocence rule was mentioned by Bracton in 1260, its general application in practice in its more modern sense, despite the efforts of Lord Chief Justice Holt (Chief Justice of the King's Bench 1689-1710) . to enforce it, must remain in doubt until the end of the 18th century. Under the old modes of trial, such as the ordeal, the oath, wager of

20 (1670), 124 E.R. 1006. Bushell was the foreman of the jury which acquitted the famous Quakers, William Penn and William Mead. The Recorder of London fined each of the jury forty marks (£26, 13s, 4d.) . Bushell, committed to prison for refusal to pay, applied for habeas corpus in the Court of Common Pleas. The return was made that he had been committed for finding a verdict "against full and manifest evidence and against the direction of the Court" . Lord Chief Justice Vaughan of the Common Pleas held the ground to be insufficient and discharged him from custody. 21 Select Essays in Anglo-American History, p. 725. 22 Described in (1949), 27 Can. Bar Rev. at p. 55.

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law, and battle, the person charged in a criminal case might be, punished- if he did not clear himself. At least in many political cases the defenceless condition of the prisoner was taken advan- tage of to subject him to abuse and ridicule. It is said -that the trials in the latter part of the 17th century were perhaps even more unjust than those of the Star Chamber in the 16th century. The increase in the number of capital crimes was amazing, considering that there were not more than eleven in the reign of Henry III (1216-1272) . At the assizes, except in the case of murder since 1824, judgment of death did not require to be formally pronounced in open court. It could be merely entered on the record. Lord Campbell tells us that seventy-two thousand executions of the death sentence took place during the reign of Henry VIII - (1509z-1547) .23 Blackstone, who _wrote between 1765 and 1769, said that the number of capital crimes without "benefit of clergy" had increased to one hundred and sixty. That the number -of capital offences at that time was very much greater than that figure may be inferred from the wide interpretation and frequent use of "benefit of clergy" to reduce the number of death sentences imposed for many trivial and- common offences. In -larceny, for a period, if the article was proven to be worth twelve pence, the penalty,was death. Thomas Erskine May stated that from the Restoration (1660) to ~ the death of George III (1820) no less than one hundred and eighty-seven offences were added to those carrying the, penalty of death ; of these thirty-three were added during the reign of George II (1727- 1760) and .sixty-three during the reign of George III between 1760 and .1810. 24 By 1810 nearly three hundred offences were punishable by death. In a speech in the House of Commons in 1822 Sir James MacKintosh . pointed out that in England there were then two hundred and twenty-three capital crimes compared with only six in France. The efforts of Sir Samuel Romilly and Sir. James MacKintosh in the House, of Commons to humanize punishment were sternly and successfully opposed in the House of Lords by Lord Eldon (Lord Chancellor 1801-1806 and 1807-1827) and Lord Ellenborough (Chief Justice of Ahe King's Bench 1802- 1818). Even under Sir Robert Peel's Revision in 1830 upwards of forty kinds of forgery . remained punishable by death. The House of Commons in that year, on the petition of one thousand 23 Lives of the Lord Chancellors, Vol. 2, p. 340. - 24 T. E . May, Constitutional History of England (1863), Vol. 2, p . 595.

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bankers, struck out the death penalty for forgery, but the House of Lords restored ît.25 It was a capital crime to break down the mound of a fish- pond so that fish escaped. It was a capital crime to cut down a cherry tree in an orchard. But the very severity of the law helped to defeat its purpose. In cases of felony, juries would sometimes be encouraged by the court to return verdicts contrary to the evidence in order that the death sentence might be avoided in trivial cases. Although it was computed that between 1810 and 1845 some fourteen hundred persons had suffered death for crimes that later ceased to be capital, some writers estimate that only about one in twenty of the death sentences were carried out. In the year 1836, of four hundred and ninety-four persons condemned to death it is said that only thirty-four were hanged. After the Restoration (1660) the royal pardon was invoked to substitute transportation overseas. Penal servitude was substituted for the death penalty in most cases in 1853 and, since 1867, no convict has been sent overseas. Pardon remained the personal prerogative of the Sovereign until some time after the accession of Queen Victoria (1837) when it came to be exercised by the Home Secretary. The formation of the Court of Criminal Appeal in 1907 reduced in some degree the necessity for the Royal prerogative of mercy, although the lack of jurisdiction in this court to grant new trials has left ample scope for invoking it. In 1934 it is reported to have been exercised in 203 cases ; free pardons were granted in two of these cases, while in 187 cases the sentence was mitigated by commutation or by remission in whole or in part. The judges themselves sought informal means of mitigating the harshness of the criminal law. In Lord Raymond's time (Chief Justice of the Court of King's Bench 1725-1733) the practice prevailed in murder and manslaughter cases of having the jury find the facts by a special verdict, leaving the question of guilt or innocence as a question of law to the judges en bane. This practice was later extended to other cases. The custom also arose, when the jury found the prisoner guilty, of permitting the judge to respite the sentence and take the opinion of all the common law judges upon the case.26 Again the severity of the law was defeated by invoking extremely strict, technical and

21 Ibid., Vol. 2, p. 599. 26 E.g., Rex. v. Bontien (1813), R. & R. 260; 168 E.R. 791 ; and Rex v. Peacock (1814), R. & R. 278 ; 168 E.R. 801.

1949] Right of Appeal in Criminal Cases 161 purely verbal rules of interpretation. Shakespeare portrayed this tendency in the law generally in the successful submission advanced by Portia in the Merchant of Venice. Sir Matthew Hale (Chief Justice of the King's Bench 1671-1676 but previously a Judge, of Common Pleas 1653-1658 and Chief Baron of the Exchequer 1660-1671), a merciful judge, deplored the fact that more offenders escaped by the over-easy ear given to exceptions in indictments than by their own innocence. The Act for Improving the Administration of Criminal Justice, passed in 1851, was directed to the removal of technical objections not material to the merits of the case. When difficult points of law arose at an assize, judges developed the custom of postponing judgment and causing questions of law to be argued in London .before the King's Bench en bane. But it is doubtful if this course was available when the prisoner was tried at quarter sessions. In 1848, by the Crown Cases Act, chapter 78 of 11 & 12 Victoria, a further advance was made by setting up a tribunal known as the Court for Crown Cases Reserved, consisting of a quorum of five judges of the three common law courts. Its duty was to hear and finally determine questions of law reserved by any Court of Oyer and Terminer and Gaol Delivery or Court of Quarter Sessions. It was required - to give its judgments in open court. However whether any question of law could be reserved lay wholly in the discretion of the court before whom the case was tried. at first -instance. In this condition of things there was no opportunity of appealing on the facts in a criminal 'case and only a limited opportunity in law. In many cases a pardon was the only remedy for an unsatisfactory conviction. When the Judicature Acts were. passed in 1875, the jurisdiction exercised by Commissioners of, Assize (Oyer, Terminer and Gaol Delivery) was vested in the High Court of Justice (section 16 of the Act of 1873 and section 19 of the Act of 1875), but the presiding judge still sat by virtue of his commission. Commissions can still be issued to persons not judges of the High, Court, such as King's Counsel and County Court Judges. . It is understood that the practice is still frequently invoked whenever there is a shortage of judges of the King's Bench Division. The names of King's Counsel on the circuit may be included in the commission, so that it is always open to a Judge of Assizd, should he foresee difficulty in completing his calendar at one town before he is due at another, to request one of the -named King's Counsel to hear some of the cases on the list.

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The restricted appeal jurisdiction possessed by the Court of Crown Cases Reserved in cases stated was not vested by the Judicature Acts in the new Court of Appeal,27 but in the judges of the High (trial) Court to be exercised by any five of them sitting together. Their decision was expressed to be "final and without appeal" by section 47, which concluded : And no appeal shall lie from any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the said Judges under the said Act of 11 & 12, Viet . [viz., The Crown Cases Act, c. 78 of 1848, setting up the Court of Crown Cases Reserved . The italics are mine .] One would have thought that this provision meant that when the High Court, or 'any five judges thereof acting as a court within the High Court, exercised the jurisdiction in error formerly possessed by the Court of Crown Cases Reserved, then the . judgment would be final - and without appeal to the new Court of Appeal, except in respect to an error in law apparent on the record but not raised in the case stated to the High Court or judges thereof. But the new Court of Appeal early saw, fit to reject this construction and to give at one and the same time (a) the widest possible interpretation to the expression "criminal cause or matter", to include even a case when the 'substance of a proceeding in form criminal . is civil, if the defendant on conviction might suffer fine and imprisonment ;" and (b) to give the narrowest interpretation of its own general appellate jurisdiction under section 19 of the Judicature Act, to the length that it excluded even its power to review the supervisory jurisdiction that the King's Bench had exercised' from earliest days through the prerogative writs of habeas corpus and certiorari (and see Ex parte Woodhall,29 founded upon Reg v. Steel 3o and Reg. v. Fletcher 11). It would appear that the new Court of Appeal of 1875 was led t6 take the view it did because the Judicature Acts did not expressly give it jurisdiction in any question of civil common law which could arise in or out of a criminal proceeding, but instead chose to vest in five trial judges of the High Court the jurisdiction in error (limited though it was) formerly possessed by the Court of Crown Cases Reserved. In Ex parte Woodhall 27 (1949), 27 Can. Bar Rev. at pp. 46-7. 28 And see Rex v. Johnston (1860), 29 L.J.M.C. 133 . 29 (1888), 20 Q.B .D . 37; 57 L.J.M.C. 71 . 30 (1876), 2 Q.B.D. 27; 46 L.J.M.C. 1 . 31 (1876), 2 Q.B.D. at p. 43 ; 46 L.J.M.C. at p. 4.

1949] Right of Appeal in Criminal Cases 163 (supra) Lord Esher M.R. said that :the new Court of Appeal was constituted only for the hearing of appeals in civil causes or matters and that, if a question was collateral. "in the widest sense" to a criminal cause or matter, the court had no jurisdiction. It' may be interjected that if this is a correct view of Ex parte Woodhall and the decisions upon which it is founded, then it is a deceptive and misleading guide for Canadian lawyers who may turn to it for the meaning of "any criminal cause or matter" when that expression occurs in a Canadian statute. In Canada, breaches of provincial law for which imprisonment may be imposed are not crimes within the meaning of the "Criminal Law" in respect to which the )Dominion has sole jurisdiction. Canada is a federal and not a 'unitary State as England is, with the consequence that in purely criminal proceedings questions of constitutional law may arise over the respective jurisdictions of the Dominion and the Provinces, which have -no relation . whatever, except consequentially, to the Criminal Law as such. The British North America Act, 1867, cannot be regarded as a criminal statute simply because it happens to allocate criminal law its place in the Canadian constitutional set-up. If in Canada the Criminal Law happens to collide with civil rights,32, there is a conflict between federal and provincial sovereignties - a situation that - cannot arise in a unitary state like England. ° The Judicature Acts, 1875, left the opportunities for criminal appeals little improved over what they were in 1848. The restricted right for revision and appeal in criminal cases was not remedied until the Court of Criminal'Appeal was formed in - 1907,33 composed of a quorum of not less than three trial judges of the High Court chosen from the King's Bench side, and including the Lord Chief Justice of England. An appeal lies from it to the House of Lords if the Attorney-General certifies that the case involves a point of law of exceptional public importance and that it is in' the public interest that a further appeal should be brought. In 1862 the death penalty was finally swept away for all crimes except murder and treason. The stern belief in the death penalty for even minor offences during the 16th, 17th, 18th and beginning of the 19th centuries cannot be explained only by different conceptions of the elements of a criminal offence. It is 32 Civil Rights in Head 92(13) of the B.N.A. Act is used there in "its largest sense"; see Citizens Insurance Co. v. Parsons (1881), 51 L.J.P.C. at B. 18 and Reference re Natural Products Acts, [19361 S.C.R. at p. 416. 33 The Criminal Appeal Act, 1907, 7 Edw. VII, c. 2a (U.K.).

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true that during the 17th century and much of the 18th, the law did not look severely upon wrongs to the person that did not result in death. Until 1803 no specific punishment was provided for wounding with intent to murder or to do grievous bodily harm, or -for unlawful wounding. Such acts were misdemeanours punishable by fine and imprisonment. An attempt to commit murder (not done in a few specified ways) was a mere common law misdemeanour until 1861. It is noted also that receiving stolen goods knowing them to have been stolen became a substantive misdemeanour in 1701. And, until 1757, obtaining property by false pretences was not generally a crime ("shall we indict a man for making a fool of another?" asked Holt C.J.K.B .) and then only if it had been done by false tokens or counterfeit letters. After the Restoration (1660) the Court of King's Bench in criminal law recognized many of the decisions of the Star Chamber (abolished 1641) and to some extent assumed the authority the latter had exercised in treating as crimes acts which though not forbidden by an express law were nevertheless highly and plainly injurious to the public. The change of sovereigns in 1689, the Stuart movements to overthrow the monarchy in 1715 and 1745, and the ominous undertones of the approaching French Revolution of 1789 tended to make those in power suspicious of the seeds of revolution in any sign of lawlessness or disrespect of authority, if not immediate- ly and harshly repressed. J. A. Spender 34 wrote that for a large part of the 18th century parliamentary control was mainly in one hundred and fifty Whig families who through their proprietor- ship of close boroughs and purchase of "rotten boroughs" were able to ensure a majority in the House of Commons and prevent the return of the Stuart Kings. Again, the political philosophy of the 18th and early 19th centuries encouraged the dominance of property rights over personal rights." This outlook harmonized with the interest of the landed class and the new monied groups springing up during the Industrial Revolution, which began in the latter half of the 18th century. A well-known illustration is Ilott v. Wilkes 38 where the plaintiff entered the defendant's wood to gather nuts and was injured by the discharge of one of ten spring-guns set by the owner to

34 Government of Mankind (1938), p. 279. 3s "Penal Laws which are in the hands of the rich are laid upon the poor and all our paltriest possessions are hung round with gibbets", Goldsmith's Vicar of Wakefield . 36 (1820), 3 B . & Ald . 304; 106 E.R. 675.

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"discourage" trespassers. The judge at Nsi Prius had directed the jury to find a verdict for the plaintiff (which they did in the sum of fifty pounds) but reserved the defendant liberty to move the court en bane to enter a non-suit. The court en bane ruled against the plaintiff. Lord Wright observed that even at the time the decision was given it elicited public rebuke ; 37 later, in 1827, it led to an amending Act. - As already mentioned it was not until the formation -of the Court of Criminal Appeal as late as 1907 that a person convicted on .indictment had an appeal as of right on questions of law and, with leave of the trial judge or the Court of Criminal Appeal, on any question of fact or of mixed law -and fact. Furthermore, opportunity to. appeal against sentence was then made easily available, if the sentence was in the discretion of the judge and not fixed by law and if leave was first obtained from the Court of Criminal Appeal. This-imposes on the appellate court the heavy responsibility of sharing to an important degree in the revision or -mitigation of punishment which formerly resided in the Sovereign and later in. the Executive. The wide provisions of the English Criminal Appeal Act, 1907, were substantially reproduced in Canada in 1923 by amendments to the Criminal Code, appearing in the present sections 1012 to 1022 inclusive.33 One notable distinction, to which some attention -will now be given, is that Canadian courts of criminal appeal may direct a new trial under our Code section 1014(3)-. . The Court of Criminal Appeal in England has no power to grant .a new trial, although where the actual trial is completely abortive it may order a venire de novo, as it did in Crane v. Regem.3s In the case of acquittals, Lord Chief- Justice Coleridge in The Queen v. Duncan 4° said that for centuries the practice was that a new trial should not be granted if the prisoner or defendant "in danger of imprisonment" had been acquitted. Even after conviction a new trial was not allowed in capital cases. A single case to the contrary, The Queen v. Scaife,41 was explained by the Judicial Committee in Reg. v> Bertrand.41 However in England frequent use is made of the power of substitution . This power is particularly useful in murder appeals, for when the Court of .37 Legal Essays and Addresses (1939), p. 368. 38 13-14 Geo. V, c. 41, s. 9 (Can .). as (1921), 90 L.J.K.B. 1160 . 40 (1881), 7 Q.B.D. 198. 41 (1851), 17 Q.B. 238 ; 17 A. & E. 237. 42 (1867), L.R. 1 P.C. 320 ; and see also Atty.-Gen. of N.S . Wales v. Murphy (1869), 11 Cox C. C. 372 (P.C.) .

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Criminal Appeal is satisfied that the verdict of murder must be set aside because of misdirection, misreception of evidence or other prejudicial irregularity at the trial, but is nevertheless convinced that it was reasonably possible for the jury to have found a verdict of manslaughter, the court will substitute manslaughter.43 Although the like power to substitute manslaughter for murder has also existed in Canada since 1923 in section 1016(2) of the Criminal Code, there has been considerable hesitation in using it. This section reproduces almost verbatim section 5.(2) of the English Criminal Appeal Act, 1907. The Supreme Court of Canada in express terms called attention to the existence of the jurisdiction in Manchuk v. Regem.44 Manchuk had killed a husband and wife. He was tried first for the murder of the husband and the jury found him guilty of manslaughter and he was sentenced to 20 years imprisonment. He was then tried for murder of the wife. The jury's verdict of murder was set aside and a new trial directed by the Court of Appeal for irregularities in the conduct of the trial. The Supreme Court of Canada upheld the Court of Appeal. Found guilty of murder again at the new trial, Manchuk appealed unsuccessfully to the Court of Appeal, but successfully to the Supreme Court of Canada. The Supreme Court was faced with the problem of directing a third trial of Manchuk for murder of the wife (his fourth if his trial'for murder of the husband is counted) and it substituted a verdict of manslaughter. Since the Manchuk decision the power of substitution has been exercised by some of the provincially constituted Courts of Appeal where the murder verdict had to be set aside.45 It may take some time in Canada before the power of substituting manslaughter for murder will be exercised as freely as it is in England, where the power to grant a new trial does not. exist. A tendency may linger in Canada to avoid doing so unless. the Court 'of Appeal is satisfied that in a new trial no reasonable jury ought to convict the accused of murder. To many persons this must appear an unsatisfactory test (if it is a test) . Where manslaughter has been put to the jury the latter have the right to bring in a verdict of manslaughter, even though the trial judge or a Court of Appeal might think a - verdict of murder . 43 E.g., Rex v. Hopper, [1915] 2 K.B. 431 ; Rex v. Cobbett (1940), 2& C.A.R. 11 ; Rex v. Roberts, [1942] 1 All E.R. 187; and Rex v. Prince (1941), 28 C .A.R. 60. 44 [1938] S.C .R. at pp. 349-360. 4s Rex v. Barilla (1944), 60 B .C. at p. 517; Rex v. Harrison (No . 2) (1945), 62 B.C. 420; Rex v. Mclean, [1947] 1 W.W.R. 39 (Man.) ; and Rex v. Hrynyk, [19491 1 W.W.R. 129 (Man.) ; and see also Rex v. Reid, [19331 O.W.N . 106 .

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more consistent with the evidence. A Court of Appeal steps on dangerous ground if. it attempts to decide which of two available courses a jury ought to have adopted, or will adopt in a new trial. Perhaps the root of the matter is that a Court of Appeal not only is not a jury but, above all, is not the jury in the case who have-seen and heard the witnesses and have made up their minds in the living atmosphere of the trial, an opportunity denied the members of the Court of Appeal who peruse the unemotionally revealing pages of the transcript of the evidence. The Court of Criminal Appeal in England expressed the concept understandingly in Rex v. Roberts : We cannot delve into the minds of the jury and say what they would have done if it [manslaughter] had been left open to them. We may take the view, and we are disposed to take the view, that it is extremely unlikely in this case, that the jury would have returned a verdict of manslaughter, seeing that as we know, they regarded this as a deliber- ate act. We cannot, however, say that it is certain that the jury would have returned a verdict of murder, if manslaughter had been open to them 46 The Court of Criminal Appeal then substituted manslaughter . It is to be noted in the Manchuk case that the Supreme Court , of Canada adopted Rex v. Hopper.47 In this case the defence was accident. The judge directed the jury that it was "impossible" for them to find a verdict of manslaughter on the evidence and that they must either acquit - the accused on the ground of accident or convict him of murder. The Court of Criminal Appeal came to the conclusion, according to the Law Journal report, that it was ".`possible" (which is assumed to mean reasonably possible) for the jury to find manslaughter if they took a certain view of the facts. "It is not for us to say whether or no they would have returned such a verdict" said Lord Reading. The court accordingly' substituted manslaughter. It would seem to flow from Hopper's case that so long as it may be reasonably possible for the jury to find manslaughter, then if a verdict of murder must be set aside for prejudicial irregularities at the trial the Court of Appeal may properly substitute manslaughter. By incorporating Hopper's case into its judgment in the Manchuk case the Supreme Court of Canada seems to have adopted that principle as implicit in our Code section 1016(2) .

46 [1942] 1 All E.R. at p. 193 ; 28 C.A.R. at p. 110 ; and cf. Rex v. Flett (1943), 59 B.C. at pp. 35-6. 47 (1915), 84 L.J.K.B. 1371 ; 2 K.B . 431 . These two reports disclose a variation in language .

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Rex v. Hopper was also applied by the Judicial Committee in Kwaku Mensah v. The King.48 There is another aspect of the Manchuk case. In reaching its decision to substitute manslaughter the Supreme Court of Canada took into consideration that Manchuk had already been tried for murder of the husband (the jury found manslaughter) . In one sense that had no connection with a new and third trial for the murder of the wife. But the court appeared to take the larger and more human view that repeated trials of the same person for murder on facts arising out of the same conditions were repellent to the spirit of our criminal procedure. If three trials or four trials were repellent, why not two? The notion of repellency as it exists in England, whence our own sense of repellency is presumably derived, lies not in the number of re-trials but in the idea of re-trial at all. It is not infrequent in Canada that a murder case goes twice in succession to the Court of Appeal, and' sometimes twice to the Supreme Court of Canada, where a third new trial may or may not be directed. Not infrequently on the second trial the jury find manslaughter . A great deal of time and expense would have been saved if the Court of Appeal had substituted manslaughter in the first place. The thinking non-lawyer may be forgiven if he remains in a puzzled state of mind. The public is apt to pass hasty judgment that members of the courts are "not up to their job"; else why the constant new trials? And some of them directed only after an expensive appeal to the Supreme Court of Canada? It all tends to undermine public confidence in the judges and the courts. If one seeks to explain the situation by a description of the system under which the judges and courts must work, the answer is apt to be "it is time that the methods of the courts should be streamlined and brought up to date". Glancing over the reports of Canadian murder cases during the last twenty-five years, it is not an exaggeration to say that, except in clear cases of direct evidence, it seems to be next to impossible for a judge to charge a jury so fully and adequately that an astute, experienced counsel before a Court of Appeal, which must be governed by every consideration in favorem vitae, cannot find some flaw in the judge's charge or conduct of the trial that will lead the verdict to be set aside on the ground that the accused was not proven "guilty according to law" . The same appeal judges who set aside a murder verdict on appeal, 48 [19461 A.C. 83 (P.C.) .

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if any one of them had been the trial judge, would likely have made, if not the identical errors, then other errors equally fatal. The charge to the jury in a murder case, except in. clear cases of direct evidence, is required to cover so . many eventualities, to provide for so many contingencies, to surround the accused with so much protection, that in the effort to prevent an unjust conviction for murder appellate courts have set a standard so high that the individual trial judge, no matter what his ability, or ex- perience, can rarely hope to reach it. This may be a splendid thing in itself, and an enviable trait of our criminal law and the system of government under which we live. But if it leads to appeal after appeal., and re-trial after trial, its very virtues beget its greatest evil. When an appellate court unanimously upholds a conviction of murder, the public may be assured that every avenue of innocence available on the evidence presented to the court has been explored within human limits. If however an appellate court finds it necessary to set aside the conviction for one of many. hundreds of prejudicial irregularities that may so easily occur during a complicated trial, there is room for the view that, the prosecuting officers of the Crown having performed their duty to the public and the trial judge having done his human best to assure a fair trial, the man ought not to be tried again for his life. Not a few people feel it offends a balanced sense of the fitness of things that a man should be tried twice for his life. There is a certain sporting instinct in human nature which prompts the feeling that the demands of society have been satisfied when a man has once "run the gauntlet" of the courts for his life. To place him on trial again carries intimations of persecution as distinguished from prosecution. If manslaughter is substituted, all that is avoided. Avoided also is the expense of subsequent trials and appeal, not only to the country but to the man himself and his family or relatives . Reduced is the newspaper description of the crime and its central figures through the trials and appeals, to the point of making a "roman holiday" out of the sordid lives of the unfortunate man and his family, giving a ghoulish glamour to the sins, frailties and misfortunes of the man who is pilloried before the public in a glare of newspaper publicity. Section 1016(2) 4s gives the power to substitute where, on the "actual finding" by the -jury, the jury -"must have been satisfied of facts which proved" manslaughter. This requirement 49S. 1016(2) reads in relevant part :

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is met when the fact of unlawful killing by the accused in the sense of manslaughter is proven. Murder of course requires the additional ingredient of intent, or wilful recklessness as to consequences. But the expression "actual finding" does present difficulty. If the actual finding is made in a case where there has been misdirection or misreception of evidence prejudicial to the accused (if it is not prejudicial it may be cured under section 1014(2) ), then the "actual finding" of the jury loses its meaning ; for there has been a mistrial, and there is no actual finding in a legal sense. The jury has made a finding it is true, but it is a wrong and unreliable finding because it has been influenced by improper evidence or an incorrect instruction upon the law. Were it not for the authoritative construction placed on section 1016(2) in the Manchuk case, the words "convicted of an offence" might have been interpreted as "properly convicted", in which case the power of substitution thereunder would not arise when an irregularity that section 1014(2) cannot cure occurred at the trial. It may be that the real root of the Court of Appeal's jurisdiction to substitute manslaughter may be found in its power to do what the court below ought to have done.60 Under Code section 951(2) the jury can find manslaughter "if the evidence proves manslaughter but does not prove murder". If the admis- sible evidence at the trial proved manslaughter, and the proof of murder rested upon inadmissible evidence or could be occasioned by misdirection, then it might be said, within section 951(2), that, if these prejudicial irregularities had not occured, the evidence at the trial did prove manslaughter but not murder, and hence the jury ought to have brought in a verdict of manslaughter. On this reasoning it could be argued with some force that in such a case it would be the duty of the Court of Appeal to substitute manslaughter and, further, that it would not be within its power to direct a new trial.

"Where an appellant has been convicted of an offence, and the jury . could on the indictment have found him guilty of some other offence, and on the actual finding, it appears to the Court of Appeal that the jury . . . must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may . . . substitute for the verdict found, a verdict of guilty of that other offence . ." (my italics) . The foregoing is almost word for word a copy of s. 5(2) of the English Criminal Appeal Act, 1907 . That the Canadian section has "actual finding" and the English Act "finding" (leaving out the word "actual") does not appear to make any difference in the aspect under consideration. so Rule 26, Criminal Appeal Rules 1943 (B .C.), read with Code s. 1021(1) and Rule 5, Court of Appeal Civil Rules 1943 (B.C.).

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However that maybe, reverting to section 1010(2) it would seem that "actual finding" must be related in some way to what the Court of Appeal thinks the jury would have done if there- had been no misreception of evidence, misdirection or other prejudicial irregularity at the trial. This brings us ,back to the problem illustrated previously by Rex v. Roberts," which in turn gives support to the principle regarded as implicit in the Manchuk. case, namely that manslaughter may be substituted whenever the Court of Appeal is of opinion that on the evidence properly admitted at the trial it was reasonably possible for the jury to have found manslaughter. According to Lord Reading in Hopper's case (supra) it is not for the Court of Appeal to say whether or not the jury would have found manslaughter . From the Manchuk case, as well as from Hopper's case which it adopted, it would appear that it was intended to make it easy to substitute manslaughter , and not to make it difficult. A good illustration is the consideration given in the Manchuk case .to the first trial for the murder of the husband, and the general ground given there for the substitution, that a new (and fourth) trial for murder would be repellent to the . spirit of .our criminal procedure. By way of caution it is added that nothing said here is intended to deny in all cases,, the wisdom of a new trial confined to manslaughter. It would be contrary to all sense of fairness to substitute manslaughter in a case where a man seems to have a reasonable chance for acquittal -of manslaughter. Where manslaughter is substituted, the sentence of imprisonment can be more easily fitted to the degree of the crime. In the gravest cases life imprisonment may be imposed. But circumstanées may lead human wisdom to impose much less severe sentences. For example, in a case in Scotland a son was charged with the murder of his father.-12 The defences were pro- vocation and sèlf-defence .. The jury could have found the son guilty of murder, but instead found manslaughter (culpable homicide in Scotland). A sentence of eighteen months' imprisonment was imposed. In Canada, the statutory crime of murder in effect denies degrees of murder by making death the uniform _penalty. But murder, however accurately defined, must always admit of degrees of guilt. It may be said that executive clemency under Code section 1022 can be invoked to change the death penalty 51 Supra, p.167. 52 H. M. dvocate v. Kizileviczius, [19381 Sess. 60 ; in Rex v. Hopper (supra), in substituting manslaughter (which the trial judge had not thought was open on the evidence) for murder, the Court of Criminal Appeal imposed a sentence of four years' imprisonment .

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to imprisonment, particularly where the jury has recommended mercy. In practical effect, the exercise of executive clemency in that way substitutes manslaughter for murder after the courts have declared that the offence is murder and not manslaughter .'s Where such a power is exercised under section 1022 the section is open to the criticism that it enables the executive to acknow- .ledge the existence of degrees of murder, although the Criminal Code generally denies the power to judges and juries to do so. Examined in this light there is much to be said in favour of statutory changes that will recognize degrees of murder in harmony with the actual realities of life. The few illustrations now given 54 do not deny intent or wilful recklessness as to consequences to be an essential ingredient of murder. If the evidence is mainly or entirely circumstantial the jury could be instructed that they may find the accused guilty of murder in the first degree or murder in the second degree ; but if they find the latter, the death penalty would be excluded and a life sentence be the maximum punishment. Again, if A shoots at B and kills C instead, or if in a struggle between A and B a revolver is discharged and a bystander, C, is killed, the jury could be instructed that at most the offence is murder in the second degree with life imprisonment as the maximum sentence. Two more illustrations - if A kills B in the course of a medley brawl, the jury could be instructed that they may find A guilty of first degree murder (carrying the death penalty) or guilty of second degree murder (carrying life imprisonment as the maximum penalty) . Again if A, B and C agree to hold-up X and in the course of the hold-up X is killed by the hand of A, then, subject to Code section 69(2)," the jury could be instructed that they may find A, B and C all guilty of first degree murder (carrying the death penalty) or they may find only A guilty of first degree murder, and B and C guilty of second degree murder (carrying life imprisonment as the maximum penalty). 53 Cf. Reference re Royal Prerogative of Mercy, [1933] S.C .R . at p. 274 . 54 O'Halloran, Punishment of Criminal Offenders (1945), 23 Can. Bar Rev. at p. 562 . 55 Rex v. Hughes et al. (1942), 57 B .C . at p. 544. Code s. 69(2) was not touched on in [1942] S.C.R . 517 affirming the decision. In Kwaku Mensah v. The King, [19461 A.C. 83 (P.C.) it is noted that the jury found the man who fired the fatal shot guilty of murder, but found the nine others with him guilty of manslaughter . The West African Court of Appeal quashed the manslaughter verdict on the ground it was either murder or acquittal in their case, but sustained the murder verdict against Kwaku Mensah. The latter appealed successfully to the Judicial Committee who directed the West African Court of Appeal to substitute manslaughter in his case. The other nine persons involved were not before the Judicial Committee .