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FORMS & PRECEDENTS BY SOME OF The most Eminent Conveyancing and Commercial Counsel. UNDER THE GENERAL EDITORSHIP OF ARTHUR UNDERHILL, M.A., LL.D., ONE OF THE .CONVEYANCING COUNSEL TO THE COURT, Author of "The Law of Trusts," and "A Treatise on the Settled Land Acts," etc. Editor of " Fisher on Mortgage." ASSISTANT EDITORS : HAROLD B. BOMPAS, of the Inner Temple, and HUMPHREY H. KING, B.A., LL.B., of the Inner Temple, Barristers-at-Law. With the Assistance of the following CONSULTING EDITORS, -who have consented to give their Advice on any points of Difficulty that may arise. W. D. RAWLINS, K.C., Author of " The Specific Performance of Contracts, 1899." Author of" The, Law of Landlord and Tenant." A. MACMORRAN, E.G., Editor of"Lumley's Public Health." T. H. CARSON, K.C., Editor of " Tudor's Leading Cases on J. SAVILL VAIZEY, Of the Middle Temple, Barrister-at-Law, Author of "The Law of Settlements." S. P. BUTLER, One of the Conveyancing Counsel to the Court. W. M. 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( 2 ) CRIMINAL APPEALS CRIMINAL APPEALS UNDER THE CRIMINAL APPEAL ACT OF 1907 WITH RULES OF COURT AND FORMS BY , Ai Q FORSTER BOULTON, M.P. ' Ml OF THE INNER TEMPLE AND THE SOUTH-EASTERN CIRCUIT, BARRISTER-AT-LAW ; AUTHOR OF "THE LAW AND PRACTICE OF A CASE STATED," ETC. LONDON : BUTTERWORTH & CO., 11 & 12, BELL YAED, TEMPLE BAB. Xaw publisbers. 1908. 66 PRINTED BY WILLIAM CLOWES AND SONS, LIMITED. LONDON AND BECCLBS. THIS BOOK WAS TO HAVE BEEN DEDICATED BY PERMISSION TO Cbc late it Jobn Latoson C&aitcm ATTORNEY GENERAL IT IS NOW REGRETFULLY INSCRIBED TO HIS MEMORY INTRODUCTION THE creation of a Court of Criminal Appeal is probably the greatest change in English law and practice that this generation has seen. Up to the passing of the Act England was practically the only civilized country in the world which had not a Court of Criminal Appeal. At one time it was thought that the tribunal of the Home Office was an adequate Court of Appeal for the review of verdicts and sentences in criminal cases, but lately there has been a considerable development of opinion in regard to this question of criminal appeal. Two circumstances have contributed to bring this about. First of all, prisoners are now allowed to give evidence in their own defence, and the examination and cross- examination of these prisoners has rendered the conduct of criminal cases much more difficult, and made it more important that there should be some tribunal of review. In the second place, the Home Office has been the subject of investigation by a Boyal Commission, which has made clear that, admirable as the machinery is for many of its purposes, it could not be held by any jurist to fill in any satisfactory way the place of a tribunal of criminal appeal. Both the public and the profession had therefore arrived at the conclusion that Vlll INTRODUCTION some review of the evidence upon which convictions in criminal cases rested was necessary. The disadvantages of the late system may be summed up in a few words. In the first place, the Home Office has no power, if it is dissatisfied with a conviction, of quashing it. If, after full inquiry, the case appears doubtful, the Home Secretary may advise the granting of a pardon to the prisoner, or he can grant a remission of the imprisonment. But the Home Office can give no definite and final judicial finding, such as a Court of law can give. In the second place, on a petition to the Home Office the prisoner's case only is before it. The result of that is that the Home Office has to discover the case against the prisoner, to test his conviction and his guilt in order to establish, if possible, his innocence. In the third place, there is no legal finality in the position of the Home Secretary. The consequence is that, although he might come to a clear and definite decision, he is always exposed to pressure to reconsider his decision. In the fourth place, the Home Office cannot, as a general rule, state its reasons for its decision. Fifthly, the Home Office cannot take fresh evidence on oath and allow the cross-examination of witnesses. The Home Office inquiry is not conducted by legal minds. There is no representation of the accused and no argument. The reasons upon which the decision is based are not disclosed, and therefore unknown to the public. INTRODUCTION IX Of late there has undoubtedly been a tendency to criticize the proceedings of the Home Secretary in a tone which would not be tolerated by any judicial tribunal in the country. There must, therefore, be a great advance in our legal system if the burden of an investigation, which must be essentially judicial in its character, is cast upon a judicial tribunal. The Court of Criminal Appeal will be composed of judges of the King's Bench Division. It will have the power of quashing a decision, and thus removing the effect which a conviction must have upon the status of the prisoner. Its decisions will, save in the exceptional cases when an appeal to the House of Lords is per- missible, be final, and it will be enabled to hear both sides, and, if necessary, to take the sworn testimony of fresh witnesses, or hear fresh evidence and allow of cross- examinations. Finally, it can give the reasons for its decision. The Home Office, too, will have an added advantage. In the first place, the number of cases which come before the Home Office for interference will be greatly diminished, though they will certainly not be altogether removed. In the next place, it will have a choice. The Home Secretary can either deal with the case as heretofore by confidential inquiry, and arrive at an independent judgment if necessary; or he will be able, under the power given by the Act, to refer the whole case, or any point in connection with the case, for the opinion of the Court of Criminal Appeal. X INTRODUCTION That power will be invaluable to the Home Office. Then, again, in a case where the Court of Criminal Appeal has delivered its judgment, and fresh evidence is forthcoming, it is still open to the Home Office to consider that fresh evidence, and to take such action within its constitutional powers as it takes at the present time. Therefore, undoubtedly, as regards the question of appeal, of review, and of protection against miscarriage of justice, the establishment of a Court of Criminal Appeal must be a greatly added security. When the Act was before Parliament it was urged that it should be limited to that part only which allowed an appeal on questions of law. The answer to this was the great difficulty in dissevering questions of law from questions of fact. Every lawyer knows that the region of legal fact and the region of law sometimes become so involved that it is extremely hard to discriminate, and in the opinion of the authors of the Act it was necessary to set up a Court which could deal with the whole of the elements that might have led to a miscarriage of justice. If there had been a summing-up which, though legally correct, was inadequate, that would now be a matter which the Court would have power to deal with. Or, again, if counsel for the prisoner had neglected to put ques- tions which he ought to have put, or had neglected to call evidence which he might have called, power is given by the Act to the Court of Criminal Appeal to put these questions or call such evidence. Had the INTRODUCTION XI Act been confined to appeals on questions of law, subjects such as these which belong rather to the domain of fact than the domain of law, would have been excluded from consideration. The Act has now become the law of the land, and defects no doubt will be discovered in it after it has been put into practice. But, on the whole, it is believed it will prove a workable measure, and go far to secure that every facility that human foresight can procure shall be given to every prisoner tried on indictment to prove his innocence. In putting forward this Edition of the Act the Author has laboured under the difficulty that no assist- ance can be derived from previous decisions. Time alone can supply these ; but it is hoped that the explanatory notes may prove of some assistance to appellants in bringing their cases before the new Court of Criminal Appeal. In doing this the Author desires to record his grateful thanks to his friend Mr. Allan J. Lawrie, of Lincoln's Inn, for valuable assistance rendered in the elucidation of some of the more difficult sections of the Act. A. C. FORSTER BOULTON. 5, KING'S BENCH WALK, TEMPLE, April, 1908 TABLE OF STATUTES 17 Geo. HI. 1777. 4 Geo. IV. 1823. 5 Geo. IV. 1824. 7 Geo. IV. 1826. 7 Geo. IV. 1826. 9 Geo. IV. 1828. 8& 9 Viet. 1845. 11&12 1848. 16&17 1853. 24&25 1861. 24&2S 1861. 24&25 1861. 24&25 1861. 24&25 1861. 24&2S 1861. 24&25 1861. 24&2S 1861. 24&2S 1861. 27&2S 1864. 2S&29 1865. 30&31 1867. 34*35 1871. 34&35 1871. 3S&36 1872. 35&S6 1872. 35&3G 1872. 36&S7 1873. 3S&39 1875. 3S&39 1875. 38&39 1875. 40&41 1877. 42&43 1879. 42&43 1879. Embezzlement of Woollen Materials Lotteries Vagrancy Act Crown Cases Act Criminal Law Amendment Act Poaching (2nd Offence) .... Gaming Act Crown Cases Act Betting Act Destroying Fences Destroying Vegetable Production Gardens Killing Domestic Animals Offences against the Person Salmon Fisheries Stealing Animals .... Stealing Dogs Stealing Growing Trees .... Stealing Fences Chimney Sweepers Prison Officers' Offences .... Criminal Law Amendment Forging Pedlar's Certificate . Prevention of Crimes Act Forging Pawnbroker's Certificate . Infant Life Protection .... Licensing Act Judicature Act Chimney Sweepers (2nd Offence) . Conspiracy and Protection of Property . Explosives Act Evidence Act Prosecution of Offences .... Summary Jurisdiction Act PACK . 7 . 7 . 34 . 41 . 25 . 7 . 7 . 9 . 7 . 7 . 7 . 7 25,34 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 7 . 33 . 40 6 XIV TABLE OF STATUTES 44 & 45 Viet. 1881. Army Aot 45 & 46 1882. Married Women's Property Act 46 ,, 1883. Criminal Law Amendment Act 48 & 49 1885. Criminal Law Amendment Aot 50&51 1887. Merchandise Marks Act . 52&5S 1889. Arbitration Act .... 56 & 57 ,, 1893. Sale of Goods Aot . 57 & 58 ,, 1894. Merchant Shipping Act . . . 61 & 62 1898. Criminal Law Amendment . 4 Edw. 7. 1904. Prevention of Cruelty, &c., Children PAOB . 7 . 84 . 25 . 34 . 7 . 35 . 24 . 7 . 33 7,34 TABLE OF CASES PACK Aitken v. McMeekan 13 Australian Newspaper Co. v. Bennett 12 Brisbane Municipality v. Martin 12 Brown v. Commissioners for Railways 12 Carle v. ElMngton 6 Green v. Barrett, W. N 35 Hamilton v. Merchants' Marine Insurance Co 36 Makin u. Attorney-General for N.S.W 14 Metropolitan Railway Co. v. Wright . 12 Moss v. Hancock 24 , Ormerod v. Todmorden .... 35 Phillips v. Martin .12 R. v. Justices of London, ex parte Lambert N 8 R. v. Cluderoy .41 R. v. Cockshott 6 ''Reg. v. Middlesex Justices 27 R. v. Woolley 41 Scattergood v. Sylvester 24 Scott v. Sampson 17 Solomon v. Bitton 12 ll / Z_ /f - 4^ //: 'f A st/ri*^~+ 1 C) . * U% / /r ,1 A , COURT OP CRIMINAL APPEAL. 1. Constitution of Court of Criminal Appeal. (1) There shall be a Court of Criminal Appeal, and the Lord Chief Justice of England and eight judges of King's Bench Division of the High Court, appointed for the purpose by the Lord Chief Justice with the consent of the Lord Chancellor for such period as he thinks desirable in each case, shall be judges of that court. The judges composing the court will undertake the duties arising under this Act in addition to the functions which they now discharge. The jurisdiction of the Court of Crown Cases Reserved is transferred to the Court of Criminal Appeal, but the machinery in connection with the old Court is untouched, and will be at the disposal of the new Court of Criminal Appeal. The prerogative of the Crown is unaffected, but by sect. 19, post) p. 52, the Home Secretary is enabled to take the opinion of the Court of Criminal Appeal upon any question on which his advice to the Sovereign may depend. The Home Secretary retains under the Act all the powers which he has had hitherto, and has the right at any time to obtain the assistance of the Court of Criminal Appeal with a view to eliciting an answer which might be of some guidance to him in the discharge of his functions. (2) For the purpose of hearing and determining appeals under this Act, and for the purpose of any other proceedings under this Act, the Court of Criminal C.A. B 2 CRIMINAL APPEALS Appeal shall be summoned in accordance with directions given by the Lord Chief Justice of England with the consent of the Lord Chancellor, and the court shall be duly constituted if it consists of not less than three judges and of an uneven number of judges. Under this section, if necessary, three courts may be constituted of three judges each, the full court consisting of the Lord Chief Justice and eight judges, nine in alL If the Lord Chief Justice so directs, the court may sit in two or more divisions. The court shall sit in London except in cases where the Lord Chief Justice gives special directions that it shall sit at some other place. By sect. 9, post, p. 30, provision is made for the taking of evidence by a judge of the court, or by certain persons appointed by the court for the purpose. This will practically do away with any necessity for the court to sit at any other place than in London. If some exceptional circumstances arise then, under this section the court may, when the Lord Chief Justice directs, sit at some other place. (3) The Lord Chief Justice, if present, and in his absence the senior member of the court, shall be president of the court. (4) The determination of any question before the Court of Criminal Appeal shall be according to the opinion of the majority of the members of the court hearing the case. (5) Unless the court direct to the contrary in cases where, in the opinion of the court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the court, the judgment of the court shall CRIMINAL APPEALS 3 be pronounced by the president of the court or such other member of the court hearing the case as the president of the court directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court. This section follows the practice in the Privy Council, which allows no dissentient judgment to be pronounced except in very special circumstances. No minority judgments are to be allowed in criminal matters, and in this way the executive in the execution of a sentence will have the full support of the tribunal. Where, however, the question for appeal is one of law the court may direct to the contrary. It is obvious that questions of law may occasionally arise in reference to which it would be desirable to have the view of a minority of the Bench having regard to the possible necessity for amendments in the criminal law. (6) If in any case the Director of Public Prosecu- tions or the prosecutor or defendant obtains 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 JjordsiJbul subject thereto the deter- mination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to any other court. I 9 /, This section makes provision for an appeal to the House of ' r Lords, but only in cases of the greatest public importance, and on the fiat of the Attorney-General. Appeals of this character will be restricted to appeals in the public interest in order that (< (8) Kules of court shall provide for securing sittings of the Court of Criminal Appeal, if necessary, during vacation. (9) Any direction which may be given by the Lord Chief Justice under this section may, in the event of any vacancy in that office, or in the event of the incapacity of the Lord Chief Justice to act from any reason, be given by the senior judge of the Court of Criminal Appeal. 2. There shall be a Kegistrar of the Court of Criminal Appeal (in this Act referred to as the Kegistrar) who shall be appointed by the Lord Chief Justice from among the Masters of the Supreme Court acting in the King's Bench Division, and shall be entitled to such additional salary (if any), and be provided with such additional staff (if any), in respect CRIMINAL APPEALS 5 of the office of Kegistrar as the Lord Chancellor, with the concurrence of the Treasury, may determine. The Registrar is to keep a list of all cases in which notice of appeal or leave to appeal has been given, and such list shall he kept open to inspection (Rule 42 (a) ()), post, p. 86. He shall also keep a list for daily sittings of the Court, and if the appellant is in custody and has obtained leave to be present or is entitled to be present, the Registrar shall give notice to the appellant and the governor of the prison in which the appellant is in custody ; and see " Registrar," Rule 2, post, p. 65. The senior Master of the Supreme Court shall be the first Registrar. RIGHT OP APPEAL AND DETERMINATION OF 3. A person Convicted _on_ Jndictment may appeal '" under this Act to the Court of Criminal Appeal (a) against his conviction on any ground of appeal / ,/ which involves a question of law alone ; \^_^- lf*~*~^ and 5 .~~~ z-*^- ^ (6) Avith the leave of the Court of Criminal Appeal 1/f" k "/*-&*-* or upon the certificate of the Judge who tried i him that it is a fit case for appeal against his * conviction on any ground of appeal which t .^ ' involves a question of fact alone, or a question ^ m i xe( i l ftw an( i f&ct, or any other ground which appears to the court to be a sufficient ^ , ^ , ; ground of appeal ; and * ne leave of the Court of Criminal Appeal against the sentence passed on his conviction, > / \ ''t<~ unless the sentence is one fixed by law. C CRIMINAL APPEALS The word "indictment" includes indictable offences triable with the consent of the accused by summary jurisdiction, but in which the prisoner has elected to go before a jury. It is possible that this may have the effect of increasing the number of cases sent for trial which have hitherto been disposed of summarily. If an indictable offence is one which may be tried summarily, and the prisoner elects to be so tried, then there cannot be an appeal, the prisoner in case he is convicted not having been convicted on indictment; but if he elects to go before a jury then, if convicted, he will have the right of appeal. The Summary Jurisdiction Act, 1879 (42 & 43 Viet c. 49, s. 17), enacts as follows: "(0 A. person when charged before a Court of Summary Jurisdiction with an offence in respect of the commission of which an offender is liable on summary conviction to be imprisoned for a term exceeding three months, and which is not an assault, may, on appearing before the court, and before the charge is gone into but not afterwards, claim to be tried by a jury ; and thereupon the Court of Summary Jurisdiction shall deal with the case in all respects as if the accused were charged with an indictable offence and not with an offence punishable on summary conviction, and the offence shall as respects the person so charged be deemed to be an indictable offence, and if the person so charged is committed for trial, or bailed to appear for trial, shall be prosecuted accord- ingly, and the expenses of the prosecution shall be payable as in cases of felony. . . . " (2) A Court of Summary Jurisdiction, before the charge is gone into in respect of an offence to which this section applies, for the purpose of informing the defendant of his right to be tried by a jury in pursuance of this section, shall address him to the following effect : 'You are charged with an offence in respect of the commission of which you are entitled, if you desire it, instead of being dealt with summarily, to be tried by a jury ; Do you desire to be tried by a jury ? ' with a statement, if the Court think such statement desirable for the information of the person to whom the question is addressed, of the meaning of being dealt with summarily, and of the assizes or sessions (as the case may be) at which such person will be tried by a jury." In /?. v. Cockshott and others, ex parte Rickaby [1898] (i Q. B. 582 ; 62 J. P. 325 ; 14 T. L. R. 264 ; 67 L. J. Q. B. 467 ; 78 L. T. 1 68), the conviction was quashed, on the ground that the Justices had not, before going into the charge, informed the defendant that, if he desired it, he had a right to be tried by a jury. This section only applies to offences punishable in the first instance by a term not exceeding three months, and not to those punishable by a fine, which in the event of non-payment would render the defendant liable to the said term (Carle v. Elkington, 56 J. P. 3595 67L.T.374)- " (3) This section shall not apply to the case of a child, unless CRIMINAL APPEALS 7 the parent or guardian of the child is present," but if he is " the claim under this section may be made by such parent or guardian." The following is a list of statutes in general use relating to cases in which the caution in this section will be required : The Army Act, 1881, 44 & 45 Viet. c. 58, s. 153. The Betting Act, 1853, 16 & 17 Viet. c. 119, s. 3. Chimney Sweepers, 27 & 28 Viet. c. 37, s. 9. Chimney Sweepers (Second Offence), 38 & 39 Viet. c. 70, s. 19. The Criminal Law Amendment Act, 1885 (Second Offence), 48 & 49 Viet. c. 69, s. 13. Destroying Fences (Second Offence), 24 & 25 Viet. c. 97, s. 25. (The Malicious Damage Act of 1861.) Destroying Vegetable Productions in Gardens, 24 & 25 Viet. c. 97, s. 23. (The Malicious Damage Act, 1861.) Embezzlement of Woollen Materials, etc. (Second Offence), 17 Geo. III. c. 56, s. i. (The Frauds by Workmen Act, I777-) The Explosives Act, 1875, 38 & 39 Viet. c. 17, ss. 79 and 91. Forging Pawnbroker's Certificate, 35 & 36 Viet. c. 93, s. 44. Forging Pedlar's Certificate (Second Offence), 34 & 35 Viet. c. 96, s. 12. The Gaming Act, 1845, 8 & 9 Viet. c. 109, s. 4. The Infant Life Protection Act, 1872, 35 & 36 Viet. c. 38, s. 9. Killing Domestic Animals, etc., 24 & 25 Viet. c. 97, s. 41. (The Malicious Damage Act, 1861.) The Licensing Act, 1872, 35 & 36 Viet. c. 94, s. 3 (3) (Third Offence). Lotteries, 4 Gep. IV. c. 60, s. 67. (The Lotteries Act, 1823.) The Merchandise Marks Act, 1887, 50 & 51 Viet. c. 28, s. 2, sub-s. (3). The Merchant Shipping Act, 1894, 57 & 58 Viet. c. 60, s. 680. Poaching (Second Offence), 9 Geo. IV. c. 69, s. i. (The Night Poaching Act, 1828.) The Prevention of Crimes Act, 1871, 34 & 35 Viet. c. 112, s. 7. (Certainl cases under s. 5 may require a caution under the section.) Prevention of Cruelty to Children, 4 Edw. 7, c. 15, s. i. Prison Officers, Offences by, 28 & 29 Viet. c. 126, s. 38. Public Health (London), 54 & 55 Viet. c. 76, s. 47. Salmon Fisheries (Third Offence), 24 & 25 Viet. c. 109, ss. 8, 9, 14, 17. See 28 & 29 Viet. c. 121, s. 56. Stealing Animals, 24 & 25 Viet. c. 96, s. 21. (The Larceny Act, 1 86 1.) Stealing Dogs, 24 25 Viet. c. 96, s. 18. (The Larceny Act, 1861.) Stealing Fences (Second Offence), 24 25 Viet. c. 96, s. 34. (The Larceny Act, 1861.) Stealing Growing Trees (Second Offence), 24 25 Viet. c. 96, s. 33. (The Larceny Act, 1861.) The Conspiracy and Protection of Property Act, 1875, 38 & 39 Viet. c. 86, s. 9 ; and see Hasker v. Hopkins^ 67 J. P. 428. 8 CRIMINAL APPEALS In addition to the notice required to be given to the prisoner, it would be advisable for the Court of Summary Jurisdiction to add words to the effect that the prisoner, if he elect to go before a Court of Quarter Sessions or Assizes, would have a right of appeal against the conviction and sentence. Prisoners convicted by a Court of Summary Jurisdiction, i.e. before a single police magistrate or two or more justices, have no right of appeal under this Act. They may appeal in certain cases to Quarter Sessions on the facts, and by way of a case stated for the opinion of the King's Bench Division on a point of law (see Boulton on " The Law and Practice of a Case Stated") But in indictable cases, where the prisoners have elected to be tried by a Court of Summary Jurisdiction, there is no appeal to Quarter Sessions, such as exists in non- indictable cases. Tfie Queen v. Justices of London^ ex parte Lambert (1892), i Q. B. 664 ; 56 J. P. 421. Section 20 (sub-sects. 2 and 3, post> p. 55) gives the same right of appeal to a person convicted 1. On criminal information. 2. On coroner's inquisition. 3. By a Court of Quarter Sessions, , as an incorrigible rogue, under the Vagrancy Act, 1824. But does not apply, in the case of convictions on indictments charging any peer or peeress, or other person claiming the privilege of peerage, with any offence not now triable by a Court of Assize; nor does it apply to persons or corporations, convicted upon an indictment at common law, in relation to the obstruction of highways and other similar offences. Appeals under the Act may be Against conviction. Against sentence. Appeals against conviction may be on three grounds, or, perhaps more accurately, on four 1. On a question of law alone. 2. On a question of fact alone. On a question of mixed law and fact. 3. On any other ground which appears to the Court to be a sufficient ground of appeal. With regard to an appeal against conviction on any ground of appeal which involves a question of law alone there is an CRIMINAL APPEALS apparent qualification of this right under sect. 15 (2), post, p. 47, but even that section does not and cannot prevent the hearing of an appeal on a point of law by the Court of Criminal Appeal. The prisoner is by section 3 (a), supra, given an unqualified right of appeal on a point of law. The right of appeal on a point of law to the Court for Crown Cases Reserved, Crown Cases Act, 1848, n & 12 Viet. c. 78 (repealed as to sections 3 and 5, see Schedule of Repealed Statutes,/^/, p. 5 8), depended upon the consent of the court of trial to state a case. The court of trial has still power to state a case under the unre- pealed sections of the Act of 1848, and such case will be heard by the Court of Criminal Appeal under its transferred jurisdic- tion, see sect. 20, sub-sect, 4,posf, p. 56, and see sect. 14, sub- sect. 4, post, p. 46 ; but in case of a refusal by the court of trial to so state a case, the prisoner may now appeal as of right to the Court of Criminal Appeal on the point of law without a certificate from the Judge of trial or leave from the Court of Criminal Appeal. Two curious provisions are also attached to this particular form of appeal (1) The appellant's case may be in writing, but must never- theless be considered by the Court of Criminal Appeal. Sect. 7 (i), post, p. 26, and Rule 43, post, p. 86. (2) That on trial of a point of pure law the appealing prisoner's presence is not only unnecessary, but is not even permissible save where the rules of court give him the right, or the court itself gives him leave to be present. Sect, n (i), post, p. 39, and Rule 25, post, p. 75. Under 2 and 3 there is a right of appeal only if (a) Leave be obtained from;the Court of Criminal Appeal. (b) A certificate be granted by the Judge who tried the prisoner that it is a fit case for appeal. Apparently, either the court which tries the prisoner or the Court of Criminal Appeal may give leave to appeal. Application for leave to appeal can be made at the con- clusion of the trial to the presiding Judge for a certificate that the case is a fit one for appeal. The form of such certificate will be found in the schedule, post, p. 90. If the certificate is granted the prisoner is entitled to appeal without making application to the Court of Criminal Appeal for leave to appeal. If the trial Judge does not certify that it is a fit case for appeal, then application must be made to the Court 10 CRIMINAL APPEALS of Criminal Appeal for leave to appeal. It is, moreover, optional for the accused person to apply to the trial Judge or not. He can, if he choose, apply in the first instance to the Court of Criminal Appeal for leave to appeal Rule 6 (b) t post, p. 68, enables the Judge of the court of trial without application to give a certificate that the case is a fit one for appeal. When an application is made to the Court of Criminal Appeal a written notice is required (Rule 4, post, p. 66 ; Rule IT, post, p. 73 ; and see sect. 7, fast, p. 26) ; but the application itself can be made to the Court of Appeal by the appellant or respondent, or by counsel on their behalf, orally or in writing (Rule 43, post, p. 86). No notice is required either by the Act or the Rules for an application to the trial Judge, and when such an application is made it can apparently be made orally or in writing. There is, however, no provision made in the Act or Rules for this form of application ; but as the right is given to apply for a certificate to the trial Judge, it follows that the application may be made in a convenient way. In the case of an appeal on a question of mixed law and fact, the Act does not give an unqualified right of appeal as it does when the appeal is on a point of law alone. It is, therefore, a matter of considerable importance to find out what is meant by a question of mixed law and fact. It may be suggested that it means an appeal on two grounds one of law and one of fact If this be so, then an appellant who has only one ground of appeal, that is, one on law, is put in a better position for the purpose of launching his appeal than an appellant who has a claim to appeal on both a question of fact and a point of law. This surely cannot be the meaning of a question of mixed law and fact. What then does it mean? A question, it is submitted, which depends for its answer upon the truth of certain facts and their relation to a principle of law. For instance, the question to be answered may be whether a set of facts constitute an accident within the Workmen's Compensation Act. In answering such a question as this the first thing to be asked is, What are the facts proved, and do these fall within the definition of accident? The determination of the meaning of the word "accident" is a question of law. What is an accident in particular cases is a 'question of fact, and see Boulton on " The Law and Practice of a Case Cited," chapter on Law and Fact If an appellant has any doubt as to the ground of his appeal, the better practice would be to make an application for leave to appeal, and if this is refused, to appeal from the decision to the Court of Appeal, and there raise, if it becomes CRIMINAL APPEALS / \C*\ " ~* (2) that the judgment should be set aside (a) if there has been a wrong decision on any point of LUf (b) that on any ground there has been a miscarriage of justice. but subject always to the proviso attached. Such an appeal, therefore, can be upheld either by attacking the finding of the jury, or the ruling of the judge, or by reason of a miscarriage of justice. With regard to the meaning of the phrase " if the verdict is ^unreasonable " it appears to be explained and covered by the judgments in the cases of: Metropolitan Railway v. Wright, n A. C., 152 Exp. 156. Phillips v. Martin, 15 App. Cas. 193. Brown v. Commissioners for Railways, 15 App. Cas. 240. Australian Newspaper Co. v. Bennett, 1894, A. C. 284. Brisbane Municipality v. Martin, 1894, A. C. 249. From these cases it would seem that a similar power is given to the Court of Criminal Appeal under subdivision (a) to reverse the verdict of the jury as is given in civil cases to the Court of Appeal. A new trial ought not to be granted on the ground that the verdict of the jury was against the weight of the evidence, unless the verdict was one which a jury, viewing the whole of the evidence reasonably, could not find. Lord Halsbury in giving judgment in the Metropolitan Railway Co. v. Wright referred to the case of Solomon v. Bitton (8 Q. B. D. 176), and criticizing the judgment in that case said: "If a court not a Court of Appeal in which the facts CRIMINAL APPEALS 13 are open for original judgment, but a court which is not a court to review facts at all can grant a new trial whenever it thinks that reasonable men ought to have found another verdict, it seems to me that they must form and act upon their own view of what the evidence in their judgment proves. That I think is not the law. If reasonable men might find (not c ought to,' as was said in Solomon v. Eittotf) the verdict which has been found, I think no court has jurisdiction to disturb a decision of fact which the law has confided to juries, not to judges. " If their finding is absolutely unreasonable a court may consider that that shows that they have not really performed the judicial duty cast upon them, but the principle must be that the judgment upon the facts is to be the judgment of the jury, and not the judgment of any other tribunal." The right of the Appeal Court to review the decisions of juries in civil actions is confined by the judgments in the cases quoted to verdicts which are unreasonable in the sense mentioned. The Court of Criminal Appeal, however, cannot be held to be so restricted, because they may also allow the appeal (under subdivision 1 (b)) "if the verdict of the jury cannot be supported having regard to the evidence." It is difficult to say with any certainty what powers of review are added by these words, but it is clear that these words must in some degree vary, and, therefore, increase the powers given under subdivision 1 (a). It is submitted that to have any meaning these words must give the Court of Criminal Appeal powers after reviewing the evidence either to decide (1) De novo i.e. as if they were constituted a jury in a new trial ; or (2) That the verdict while not unreasonable (in the sense explained above) was against the weight of evidence, and such that no ordinary jury would be likely to have given. In this connection the practice with regard to the probate of a will in the case of Aitken v. McMeekan, 1895, A. C. 310, seems to take the question of appeal somewhat further than in the other case quoted, but the power given to the new Court of Criminal Appeal must, it is submitted, be even larger than those exercised in that case. The courts will probably adopt the narrower view, and, just as the decisions of juries can be upset in civil actions, only if they are so contrary to reason as to be almost ridiculous, 14 CRIMINAL APPEALS the verdicts of juries in criminal cases will stand unless they are very clearly against the weight of evidence. With regard to (2a). The words " on the ground of a wrong decision on any question of law " are very wide, and seem to cover any wrong decision on any point of law whatever arising in the course of the trial, however unimportant it may be, and however little weight it may have had in assisting the convic- tion of the appellant. This point is more fully dealt with when the proviso to the sub-section infra is considered. The meaning of the expression, " on any ground there was a miscarriage of justice " (26) must, it is submitted, refer not so much to the proceedings at the trial which have already been provided for, but rather to the discovery of new material or new fact subsequent to the conviction which were not known, or, at any rate, not used during the trial. It seems that the powers of review and reconsideration at present exercised in private by the Home Office are extended to the Court of Appeal who must exercise them in public. Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal \6*/\( might be decided in favour of the appellant, dismiss the/*^* -/appeal if they consider that no substantial miscarriage of justice has actually occurred, fy f7u.J^ '(<*(* *S " L~ ' l ' ' - The precise nature and extent of the restrictions imposed by ^ / the proviso are almost impossible to determine. But it would A* ' t ^e^ t seem that if a point of law raised in the appeal, however insig- ^ nificant and of however little weight in assisting the conviction ~ /-arrived at, has nevertheless been wrongly decided, the conviction must be quashed. If, on the other hand, the point on which ,L, the appeal is brought is a point either of law or fact and of considerable doubt which " might be decided in favour of the appellant," as opposed to " which ought to be " so decided, the ^ court may dismiss the appeal so long as they are satisfied that /S *.f L no substantial miscarriage of justice has actually occurred. It is quite clear under the law as it stood previous to the passing of the Criminal Appeal Act that where a trial Judge admits evidence which the Court of Crown Cases Reserved afterwards decide was improperly admitted, the conviction must be quashed. In Makin v. Attorney-General for New South Wales (A. C. 1894, at p. 69), Lord Herschell said : " The point of law involved is, whether where the Judge who tries CRIMINAL APPEALS 15 the case reserves for the opinion of the Court the question whether evidence was improperly admitted, and the Court comes to the conclusion that it was not legally admissible, the Court can nevertheless affirm the judgment if it is of opinion that there was sufficient evidence to support the conviction, independently of the evidence improperly admitted, and that the accused was guilty of the offence with which he was charged. It was admitted that it would not be competent for the Court to take this course at common law, but it was contended that sect. 423 of the Criminal Law (Amendment) Act, 1883 (46 Viet. 3017 N.S.W.), empowered, if even it did not compel the Court to do so. That section is in these terms : " ' The Judge by whom any such question is reserved shall as soon as practicable state a case setting forth the same with the facts and circumstances out of which every question arose and shall transmit such case to the Judges of the Supreme Court who shall determine the questions and may affirm amend or reverse the judgment given or avoid or arrest the same or may order an entry to be made on the record of the person convicted or may make such other order as justice requires. Provided that no conviction or judgment thereon shall be reversed arrested or avoided on any case so stated unless for some substantial wrong or other miscarriage of justice.' "Reliance was of course placed upon the language of the proviso. It was said that if without the inadmissible evidence there were" evidence sufficient to sustain the verdict, and to show that the accused was guilty, there has been no substantial wrong or other miscarriage of justice. It is obvious that the construction contended for transfers from the jury to the Court the determination of the question whether the evidence that is to say, what the law regards as evidence established the guilt of the accused. The result is, that in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment passed upon him is made to depend not on the finding of the jury, but on the decision of the Court. The judges are in truth substituted for the jury, the verdict becomes theirs and theirs alone, and is arrived at upon a perusal of the evidence without any oppor- tunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords. " It is impossible to deny that such a change of the law would be a very serious one, and that the construction which their Lordships are invited to put upon the enactment would 16 CRIMINAL APPEALS gravely affect the much cherished right of trial by jury in criminal cases. The evidence improperly admitted might have chiefly influenced the jury to return a verdict of guilty, and the rest of the evidence, which might appear to the Court sufficient to support the conviction, might have been reasonably disbelieved by the jury in view of the demeanour of the witnesses. Yet the Court might under such circumstances be justified, or even consider themselves bound, to let the judgment and sentence stand. " These are startling consequences, which strongly tend in their Lordships' opinion to show that the language used in the proviso was not intended to apply to circumstances such as those under consideration. " Their Lordships do not think it can properly be said that there has been no substantial wrong or miscarriage of justice, where, on a point material to the guilt or innocence of the accused, the jury have, notwithstanding objection, been invited by the Judge to consider in arriving at their verdict matters which ought not to have been submitted to them. u In their Lordships' opinion, substantial wrong would be done to the accused if he were deprived of the verdict of a jury on the facts proved by legal evidence, and there were substituted for it the verdict of the Court founded merely upon a perusal of the evidence. It need scarcely be said that there is ample scope for the operation of the proviso without applying it in the manner contended for. " Their Lordships desire to guard themselves against being supposed to determine that the proviso may not be relied on in cases where it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury, as, for example, when some merely formal matter not bearing directly on the guilt or innocence of the accused has been proved by other than legal evidence." The Australian statute is apparently expressed in stronger language than the proviso to the fourth section of the Criminal Appeal Act. In the Australian statute it is provided that no conviction or judgment thereon shall be reversed, arrested, or avoided on any case so stated unless for some substantial wrong or other miscarriage of justice. Lord Herschell, how- ever, as already quoted, gave it as his opinion that he did not think it could properly be said that there was no substantial miscarriage of justice when on a point material to the guilt or innocence of the accused the jury have considered matters which ought not to have been submitted to them. The judgment of Lord Herschell, it is submitted, must CRIMINAL APPEALS 17 govern the proviso, at least so far as it relates to an appeal on a question of law. If evidence has been admitted which the trial Judge had no right to admit, then the Court of Criminal Appeal must allow the appeal. The reservation in Lord Herschell's judgment at the foot of p. 70 may, however, be applied to the proviso under consideration, and where " it is impossible to suppose that the evidence improperly admitted can have had any influence on the verdict of the jury, as, for example, when some merely formal matter not bearing directly on the guilt or innocence of the accused has been proved by other than legal evidence," then, although the Court " might " for this purely technical error allow the appeal, yet by virtue of the proviso they are not required to do so unless a substantial miscarriage of justice has actually occurred, which in the circumstances could not be the case. As to the meaning, to be attached to "substantial mis- carriage of justice," some assistance seems to be provided in the judgment of Matthew, J. in Scott v. Sampson, 8 Q. B. D. 496. The only other ground on which an appeal lies is against the sentence (and see sect. 21, under "sentence," post, 57) and in this regard it is to be noticed that an appeal against sentence may lead to an increase in the sentence appealed against, because, while the sentence may be reduced it may also be increased (infra (3). Appeals against sentence are also dealt with under sect. 3 (c), ante, p. n. (2) Subject to the special provisions of this Act the Court of Criminal Appeal shall, if they allow an appeal ^ j against conviction, quash the conviction and direct x *'jf^ c judgment and verdict of acquittal to be entered. y' %jjr (3) On an appeal againstsentence the Court of *,. Criminal Appeal shall, if they think that a different i^ sentence should have been passed, quash the sentence ^u^< passed at the trial, and pass such other sentence war- ranted in law by the verdict (whether more or less severe) in substitution thefefor as they think ought to have been passed and in /any other case shall dismiss ^, the appeal. / -fai****' C.A./ \),#ost, p. 76. 5. (1) If it appears to the Court of Criminal Appeal that an appellant, though not properly convicted on some count or part of the indictment, has been pro- perly convicted on some other count or part of the indictment, the court may either affirm the sentence passed on the appellant at the trial, or pass such sen- tence in substitution therefor as they think proper, and as may be warranted in law by the verdict on the count or part of the indictment on which the court consider that the appellant has been properly convicted. If the Court of Criminal Appeal come to the conclusion that the appellant was not properly convicted on the count upon which he was convicted, but that the evidence was suffi- cient to prove him guilty of the offence alleged in another count in the indictment, the court may either affirm the sen- tence or find the appellant guilty of the offence charged in the other count, and for which the evidence was sufficient. Thus, in an indictment for forgery, the prisoner may have been con- victed of forging the instrument. If in the opinion of the Court of Criminal Appeal the evidence does not prove that the appel- lant forged the instrument, but does prove that he uttered it knowing it to be forged, and the appellant is so charged in another count, the court may affirm the sentence or find the appellant guilty of uttering, or, in the words of the section, sub- stitute for the verdict found by the jury (that is, forgery) a ver- dict of guilty of that other offence, that is, uttering. (2) 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 finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which proved 20 CRIMINAL APPEALS him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, snb8titute_Jtor_the_ verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. The section enables the Court of Criminal Appeal when a prisoner has been found guilty by the court of trial of an offence, to reduce the offence from the major to the minor charge, and impose a new sentence for such minor charge in substitution for the sentence imposed by the court of trial for the major charge. For instance, on an indictment for murder the Court of Criminal Appeal may reduce the verdict of murder to that of manslaughter; on an indictment for malicious wounding, to one of unlawful wounding ; on an indictment for infanticide, to concealment of birth; on an indictment for rape, indecent assault, and so on. It is to be noticed that the words of the section are, " the jury could on the indictment have found him guilty of some other offence." These words preclude the Court of Criminal Appeal from substituting any other verdict than one which might be found by the jury on the indictment. It may be said that this would still permit the court when the indictment was for murder and the verdict manslaughter to substitute a verdict of murder for that found by the jury, and likewise in all other cases of the same class. It is submitted, however, that the words, " and on the finding of the jury it appears to the Court of Criminal Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence," are conclusive to prevent the substitution by the Court of Criminal Appeal of the major offence for the minor offence found by the jury. The " finding of the jury " that the prisoner was guilty of the lesser offence, must neces- sarily negative the suggestion that they were satisfied of facts which would prove the prisoner guilty of the major offence. Taking the illustration of an indictment for murder, the jury can if they be satisfied of facts proving the prisoner guilty of manslaughter, so find him, and the finding by the jury of a verdict of manslaughter must be conclusive to show that they were satisfied of facts proving the absence of the element of malice aforethought, and that the prisoner was guilty of CRIMINAL APPEALS 21 manslaughter and not of murder. The finding of the jury of a verdict of manslaughter, that is to say that other offence which on an indictment for murder they have a right to find a verdict, is sufficient to show that the jury must have been satisfied that the facts prove manslaughter and not murder. The object of the section is to enable the court to reduce the verdict, and hence the court can substitute a verdict of manslaughter for that of murder for the reason that on the verdict of murder the jury must have been satisfied of facts which proved the prisoner guilty of manslaughter plus malice aforethought. If the court thinks the evidence does not show malice aforethought, then the court can reduce the verdict to manslaughter, as the finding of murder must include the facts upon which a verdict of manslaughter could be entered. The concluding words of the section further safeguard the prisoner, as the Court of Criminal Appeal cannot pass a sentence of greater severity than the one passed by the court of trial for the major offence. If it were not for these words it would be possible for the Court of Criminal Appeal to increase the sentence in many cases, notwithstanding that the verdict was reduced from the major to the minor offence. (3) Where on the conviction of the appellant the jury have found a special verdict, and the Court of Criminal Appeal consider that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Criminal Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law. The jury have a right in all criminal cases to find a special verdict, but the judge has no right to compel them to find such a verdict. The jury must find all the facts necessary to enable the court to pronounce judgment, as the court cannot infer further facts from those found by the jury. Sub-sect. (3) enables the Court of Criminal Appeal to correct such a judgment of the court of trial upon the facts found by the 22 CRIMINAL APPEALS jury, and enter a verdict in accordance with the special verdict. It will be possible under this sub-section for the Court of Criminal Appeal to pass a more severe sentence than the one passed by the trial judge, and, in fact, enter a verdict for a more serious offence, if such is warranted by the special verdict. (4) If on any appeal it appears to the Court of Criminal Appeal that, although the appellant was guilty of the act or omission charged against him, he was insane at the time the act was done or omission made so as not to be responsible according to law for his ^ ^actions, the court may quash the sentence passed at the trial and order the appellant to be kept in custody as a criminal lunatic under the Trial of Lunatics Act, 1883, in the same manner as if a special verdict had been found by the jury under that Act. The Trial of Lunatics Act, 1883, provides as follows : Sect. 2 (i) When in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, accord- ing to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict to the effect that the accused was guilty of the act or omission charged against him, but was insane as aforesaid at the time when he did the act or made the omission. (2) Where special verdict is found, the court shall order the accused to be kept in custody as a criminal lunatic, in such place and in such manner as the court shall direct till her Majesty's pleasure shall be known; and it shall be lawful for her Majesty thereupon, and from time to time, to give such order for the safe custody of the said person during pleasure, in such place and in such manner as to her Majesty may seem fit. CRIMINAL APPEALS 23 The Court of Criminal Appeal has thus power under sub-sect. 4, section 5 of the Act, if it is of opinion that the prisoner was insane at the time of the commission of the offence, to find a special verdict to that effect, in the same way as the jury could have done at the trial under the sections quoted from the Trial of Lunatics Act, 1883. 6. Re-vesting and Restitution of Property on Con- viction. The operation of any order for the restitution of any property to any person made on a conviction on indictment, and the operation in case of any such con- viction, of the provisions of sub-section (1) of section twenty-four of the Sale of Goods Act, 1893, as to the re-vesting of the property in stolen goods on conviction, shall (unless the court before whom the conviction takes place direct to the contrary in any case in which, in their opinion, the title to the property is not in dispute) be suspended (a) in any case until the expiration of ten days after the date of the conviction ; and in cases where the operation of any such order, or the opera- tion of the said provisions, is suspended until the determination of the appeal, the order or provisions, as the case may be, shall not take effect as to the property in question if the conviction is quashed on appeal. Provision may be made by rules of court for securing the safe custody of any property, pending the suspension of the operation of any such order or of the said provisions. (&) in cases where notice of appeal or leave to appeal is given within ten days after the date of con- viction, until the determination of the appeal ; 24 CRIMINAL APPEALS Where goods have been stolen, and the offender is pro- secuted to conviction, the property in the goods so stolen revests in the person who was owner of the goods stolen, not- withstanding any intermediate dealing with them. Section 24 (i), Sale of Goods Act, 1893. Section 100 of the Larceny Act of 1 86 1 enables the convicting court to make an order for restitution ; but, as the effect of the statute is to revest the property, the original owner has his ordinary legal remedies without resorting to this special one. If the court makes an order, it is in the nature of execution. If the court refuses to order restitution, this will not prevent the property revesting in the original owner, but leaves him to his remedy by action. (Scattergood v. Sylvester, 15 Q. B. 506 ; 19 L. J. Q. B. 447 ; 14 Jur. 977; Moss v. Hancock (1899), 2 Q. B. in.) The section applies to both the Larceny Act, 1861, and the Sale of Goods Act, 1893. The words in brackets enable the court of trial in its dis- cretion to make an order for the immediate delivery of the stolen goods if in the opinion of the court the title to the property is not in dispute. Rule 10, post, p. 70, enables the court of trial in such a case as this to order a sample or portion or facsimile to be produced for use at the hearing of the appeal if in the opinion of the court of trial such sample, etc., is reason- ably necessary. If, in the opinion of the person in possession of the stolen goods, the title to the property is in dispute, then an application can be made to the Court of Criminal Appeal under sub-sect. (2), infra. (a) This covers the period in which the prisoner may exercise his right of appeal by taking the first step in the appeal, that is, giving notice of appeal, or notice of his application for leave to appeal. The order which may be made by the court of trial for restitution, and the operation of sect. 24, sub-sect, (i) of the Sale of Goods Act, are only suspended during the period of ten days from the date of the conviction, and such order and the operation of sect 24 will, if no notice of appeal be given, revive and take effect after the expiration of ten days from the date of the conviction. (b) Provision is here made for cases in which notice of appeal or leave to appeal has been given for the suspension of any order for restitution, or the opera- tion of the provisions of sect. 24, Sale of Goods Act, until the determination of the appeal, when the order of the court of trial, or the operation of the provisions CRIMINAL APPEALS 25 of sect. 24 (i), Sale of Goods Act, 1893, will revive if the appeal is dismissed. If the conviction is quashed, neither the Larceny Act, nor sect. 24 (i) of the Sale of Goods Act, will apply, and any order made at the trial will have no effect upon the property in question. (2) The Court of Criminal Appeal may by order annul or vary any order made on a trial for the restitu- tion of any property to any person, although the con- viction is not quashed ; and the order, if annulled, shall not take effect, and if varied, shall take effect as so varied. The sub-section only applies to an order made at the trial. The Court of Criminal Appeal may by order annul or vary " any order." Hence if the order made at the trial on convic- tion is annulled, the owner of the stolen goods is left to his other legal remedies. If the matter is one calling for the exercise of this special power to annul an order for the restitu- tion of stolen goods, the court may be depended upon to deal with the matter under the power given by the sub-section to vary as well as to annul. If the Court of Criminal Appeal deal with the matter by making a new order varying the one made at the trial, then this new order must govern the facts and be conclusive as to the method and manner of dealing with the stolen property. By Rule 9, post, p. 69, persons interested in property the subject of a restitution order by the Judge and the court of trial are entitled to be heard by the Court of Appeal before any order is made annulling or varying such order of restitution, and see also sect. (/) of Rule ii,/to/, p. 71. It will be seen that the section refers to any property, and does not limit such property to stolen property under the Sale of Goods Act, and power is given for rules of court to be made for securing the safe custody of any of such property, pending the time within which notice of appeal may be given or until the appeal itself is heard and determined. Rule n (0), pos^ p. 70, makes provision for the temporary suspension of orders made on conviction as to money rewards, costs, etc., under sect. 30 of the Criminal Law Amendment Act, 1826 (7 Geo. IV. c. 64), sect. 74 of the Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), sect. 9 of the Criminal Law Amendment Act, 1867 (30 & 31 Viet. c. 35), 26 CRIMINAL APPEALS the Forfeiture Act, 1870 (33 & 34 Viet c. 23), and by the same rule (), post, p. 71, the judge of the court of trial may give directions as to the security of such property. Further pro- visions are made by Rule n (c),post, p. 71, for the suspension of disqualifications consequent on conviction, the securing payment of money by a convicted person pending the appeal, the suspension of any order for the destruction or, forfeiture of property, and the suspension of proceedings or claim consequent on conviction. PROCEDURE. 7. Time for appealing. (1) Where a person con- victed desires to appeal under this Act to the Court of Criminal Appeal, or to obtain the leave of that court to appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within ten days of the date of conviction: Such rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the court. The notice of appeal or notice of application for leave to appeal must be signed by the appellant (Rule 4 (a), post, p. 66). Where it was contended at the trial that appellant was not responsible for his actions the notice may be given and signed by his solicitor or any person authorised to act on his behalf (Rule 4 (0sf, p. 77. If the judge states a case, as he may under the Crown Cases Reserved Act, 1848, either voluntary or under provision of Rule 26 (a) (b) (c), sufra, the person convicted shall be deemed to be an appellant under sect. 3 (a) of the Act, ante, p. 5, and in such a case the registrar will not be able to deal with the case under sect. 15, sub-sect. 2 (Rule 26 (d)),post> p. 77. The section does not specifically refer to applications to the trial Judge for a certificate (sect. 3 (b) t ante, p. 5), nor do the Rules make any reference to such an application ; but it is sub- mitted that an application for such a certificate should be made within ten days. Except in the case of a conviction involving sentence of death, the time within which notice of appeal or notice of an application for leave to appeal may be given may be extended at any time by the Court of Criminal Appeal. When the death sentence has been passed, the notice 01 appeal or notice of application for leave to appeal must be given within the ten days. In all other cases the time may be extended. Application for such extension must be made to a Judge of the Court of Criminal Appeal, see/ar/, p. 50, under sect. 17, and Rule 2$,J>ost, p. 75. (2) In the case of a conviction involving sentence of death or corporal punishment (a) the sentence shall not in any case be executed until after the expiration of the time within which notice of appeal or of an application for leave to appeal may be given under this section ; and CRIMINAL APPEALS 29 (fe) if notice is so given, the appeal or application shall be heard and determined with as much expedition as practicable, and the sentence shall not be executed until after the determi- nation of the appeal, or, in cases where an application for leave to appeal is finally re- fused, of the application. (a) This sub-section postpones the carrying out of a sentence of death or corporal punishment until after the time has expired for giving notice of appeal or notice of application for leave to appeal. (b) This refers to sentences of death or of the infliction of corporal punishment, and provides in such cases that sentence shall not be executed until the appeal or application for leave to appeal shall be heard and determined; further, that the appeal or the application for leave to appeal shall be heard and determined at the earliest practicable opportunity. 8. Judge's Notes and Report to be furnished on Appeal. The judge or chairman of any court before whom a person is convicted shall, in the case of an appeal under this Act against the conviction or against the sentence, or in the case of an application for leave to appeal under this Act, furnish to the Registrar, in accordance with rules of court, his notes of the trial; and shall also furnish to the Registrar in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case. Rule 14, post, p. 73, provides that the judge of the court of trial shall furnish the registrar on request with the whole or any part of his note of the trial, or a copy of such note or any part thereof. Rule 15 (a), post, p. 73, deals with the report of the judge of the court of trial, and provides that wherever it appears to be necessary for the proper determination of any appeal or application the judge shall furnish the registrar with a report in writing. The report, except with the leave of the 30 CRIMINAL APPEALS Court of Appeal, shall not be given to any other person (Rule 15 (b)),post t p. 73. If the registrar requests the judge of the court of trial to furnish a report, he shall send to the judge the notice of appeal, or of application for leave to appeal, or any other document which is material (Rule i6,j>ost, p. 73). The registrar is also required to obtain from the proper officer of the court of trial particulars of the trial and convic- tion according to form (II.) in the schedule, post, p. 90, and also the calendar supplied to the judge of the court of trial, or a copy of it, so far as it refers to the appellant (Rule 20 (a), post, p. 74), and under the same rule (), the registrar may obtain, in the same way, the original depositions, indictments, pleas, etc. The effect of this section, and the rules cited, is to make it compulsory in every appeal, or application for leave to appeal, for the trial judge or chairman of the court upon request to furnish the registrar of the Court of Criminal Appeal with his notes of the trial, and a report upon the case or any point arising in it It is submitted that this will be complied with if the trial judge or chairman, when he sends up his notes, at the same time states what his opinion of the case was. He might say in doing so that the case was perfectly clear, or that there was doubt about the evidence of some witnesses, or that for some other reason the verdict was open to some doubt 9. Supplemented Powers of Court For the purposes of this Act, the Court of Criminal Appeal may, if they think it necessary or expedient in the interest of" justice, (a) order the production of any document, exhibit, or other thing connected with the proceedings the production of which appears to them ne- cessary for the determination of the case ; and (b) if they think fit order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order the examination of any such CRIMINAL APPEALS 31 witnesses to be conducted in manner provided by rules of court before any judge of the court or before any officer of the court or justice of the peace or other person appointed by the court for the purpose, and allow the admission of any depositions so taken as evidence before the court ; and (c) if they think fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such an application ; and (d) where any question arising on the appeal in- volves prolonged examination of documents or accounts, or any scientific or local investiga- tion, which cannot in the opinion of the court conveniently be conducted before the court, order the reference of the question in manner provided by rules of court for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commissioner so far as they think fit to adopt it ; and (e) appoint any person with special expert knowledge to act as assessor to the court in any case where it appears to the court that such special know- ledge is required for the proper determination of the case ; 32 CRIMINAL APPEALS and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the court of appeal on appeals in civil matters, and issue any warrants necessary for enforcing the orders or sentences of the court : Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial. (a) This section enables the Court of Criminal Appeal to have before it all the materials necessary to determine the appeal. There is to be no power to order a new trial, and the Court of Criminal Appeal has thus the sole responsibility of confirming or quashing the verdict. To enable it to do so, full power is given to the Court of Criminal Appeal, and ample machinery provided so that the court may have at its disposal everything in the way of evidence that can be produced which appears to the court necessary or expedient in the interests of justice. The evidence taken at the trial, and the summing up of the judge or chairman, will constitute the materials on which the Court of Criminal Appeal will be called upon to decide. If it is suggested that there are new witnesses who can throw a new light on the case, then provision is made by this section for the taking of their evidence, or for the production of any docu- mentary evidence necessary for the determination of the case. Rule 8, post, p. 69, makes provision for the custody, dis- posal, or production of exhibits. Exhibits are usually returned to the person producing them, but the court have power to make any order for their disposal (Rule 33, post, p. 81, and see sect. 15 (3),/0*/i p. 47, and see Rule 36, post, p. 82). By Rule 32 (a) , post, p. 81, the registrar, on the application of the appellant or respondent, or where he thinks it necessary, may obtain any documents, exhibits, etc., for the purposes of the appeal, and pending the determination of the appeal, keep them open for the inspection of any party interested. The court may also order the production of any document or exhibit by any person having the custody or control of such documents (Rule 32 (b), post, p. 81). Service of any order for the production of any document or exhibit shall be personal service, and the registrar has power to require the assistance of the police for the purpose (tb. (c)). CRIMINAL APPEALS 33 An appellant or respondent, or their solicitor, may obtain copies of any documents or exhibits which the registrar has in his custody on payment of the charges fixed by the treasury for the purpose (Rule 39 (a), posf, p. 83). In cases wherever legal aid has been assigned, counsel or solicitors may be supplied with copies of documents or exhibits free of charge (ib. (ft)), and poor appellants not legally repre- sented may also in the registrar's discretion be supplied with such copies. The transcript of the shorthand notes taken at the trial are not included in the description documents and exhibits, and are not to be supplied free of charge. If it is required, an order of the court must be obtained (ib. (c)). (b) " Any witnesses who would have been compellable wit- nesses at the trial." The distinction between competent and compellable witnesses must be noted. The Criminal Evidence Act, 1898, 6 1 & 62 Viet c. 36, s. i, makes this important, as " Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person." The Court of Criminal Appeal cannot, therefore, order the prisoner, or the wife or husband of the prisoner, to be examined as a witness, as they are competent but not compellable witnesses. The schedule to the Criminal Evidence Act of 1898 gives the cases where the wife or husband of a person charged with an offence under any enactment mentioned in the schedule may be called as a witness either for the prosecution or defence, and without the consent of the person charged. The law as to who are competent and who are compellable witnesses may be summed up in this way : The husband or wife of a defendant to an indictment within the Evidence Act of 1877 (40 & 41 Viet. c. 14) is a competent and compellable witness for the Crown or the defence. [The Evidence Act of 1877 applies to indictments or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying and enforcing a civil right only.] The husband or wife of a defendant is a competent witness for the defence in all criminal cases, whether the accused is charged solely or jointly. C.A. D 34 CRIMINAL APPEALS The wife or husband of a person charged with an offence under The Vagrancy Act, 1824, The Offences against the Person Act, 1861, The Married Women's Property Act, 1882, The Criminal Law Amendment Act, 1885, The Prevention of Cruelty to Children Act, 1904, is a competent and compellable witness. Witnesses who would have been compellable witnesses at the trial, whether they were or were not called at the trial, may be ordered (i) to attend and be examined before the Court of Criminal Appeal, whether they were or were not called at the trial ; (2) to be examined according to the Rules of Court, before any judge of the court, or before any officer of the court, or justice of the peace, or other person appointed by the court for the purpose. Apparently witnesses (including the appellant) who are competent but not compellable witnesses cannot be ordered to give evidence before the Court of Criminal Appeal, notwith- standing that they gave evidence at the trial. Rule 40, post, p. 84, deals with the procedure by which witnesses may be examined by the court or a judge of the court or other person appointed by the court to take evidence. The order of the court for the examination of witnesses is to be in Form XXX., post, p. 108, and the order specifying the time and place of examination is to be served upon the witness. The order for the examination of witnesses may be made on the application of either the appellant or respondent at any time, and if the appellant is in custody the application is to be made in the Form, XXVI., post, p. 105, and Rule 40, post, p. 84 (b). If the examination is not to be before the court the order for such examination is to specify the person appointed to take the evidence, the place where it is to be taken, and the person or persons to be examined (ib. (c)), and in such case the registrar is to furnish the examiner with the necessary exhibits, etc., for the examination, which are to be returned by the examiner, together with the depositions taken by him, to the registrar after he has concluded the examination (ib. (_- lant, notwithstanding that he is in custody, shall be l^ 1 ^^ entitled to be present it Jiejieskeg. it on the hearing ov^ his appeal, except where the appeal is on some ground # ^~> involving a question of law alone^ but in that case and on an application for leave to appeal and on any pro* ceedings preliminary or incidental to an appeal shall not be entitled to be present, except where rules of court provide that he shall have the right to be present, or where the court gives him leave to be present. The section gives the prisoner an unqualified right to be present on the appeal if he desires it, but not when the appeal is on a question of law alone, nor has the prisoner a right to be present on the application for leave to appeal, or on any of the proceedings preliminary or incidental to the appeal. But, on any application to the court, the prisoner may be allowed to be present if the court give the necessary leave. See also section impost, p. 73, and Rule impost, p. 75. Rule 31 (a), post, p. 80, makes provision for the attendance of warders at the sittings of the court, and by the same rule () the appellant, when not in custody, must surrender himself when his case is called on and remain in custody until released on bail or otherwise dealt with by the court. (2) The power of the court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present. It is not necessary under the Act for the prisoner to be present on the hearing of the appeal. If he desires it, he has the right to be present, except where the appeal is on a point of law. Under the sub-section this right is qualified as to the passing of the sentence. Thus provision is made if the court think fit to reserve judgment for the passing of sentence in the absence of the prisoner. 12. Duty of Director of Public Prosecutions. -It shall be the duty of the Director of Public Prosecutions to 40 CRIMINAL APPEALS appear for the Crown on every appeal to the Court of Criminal Appeal under this Act, except so far as the solicitor of a Government department (Rule 2, post, p. 65), or a private prosecutor in the case of a private prosecution, undertakes the defence of the appeal, and the Prosecution of Offences Act, 1879, shall apply as though the duty of the Director of Public Prosecutions under this section were a duty under section two of that Act, and provision shall be made by rules of court for the transmission to the Director of Public Prosecutions of all such documents, exhibits, and other things connected with the proceedings as he may require for the purpose of his duties under this section. Sect. 2 of the Prosecution of Offences Act, 1879, provides that it shall be the duty of the Director of Public Prosecutions, under the superintendence of the Attorney-General, to institute, undertake, or carry on such criminal proceedings (whether in the court for Court Cases Reserved before Sessions of Oyer and Terminer or of the Peace, before magistrates or otherwise), and to give such advice and assistance to chief officers of police, clerks to justices, and other persons, whether officers or not, concerned in any criminal proceeding respecting the conduct of that proceeding as may be for the time being prescribed by regulations under the Act, or may be directed in a special case by the Attorney-General. The effect of sect. 1 2 of the Act is to add to duties of the Director of Public Prosecutions the duty of appearing for the Crown in the Court of Criminal Appeal, or, to put it in another way, to substitute for the Court of Crown Cases Reserved, referred to in sect. 2 of the Prosecution of Offences Act, the Court of Criminal Appeal. When the prosecution has been undertaken by the solicitor to a Government Department or a private prosecutor, and such solicitor or private prosecutor undertakes the defence of the appeal, then the Director of Prosecutions is not required to appear for the Crown on the hearing of the appeal. The name and address of the prosecutor at the court of trial, whether private or public, must be recorded by the proper CRIMINAL APPEALS 41 officer at the court of trial, and also the solicitor for the prosecution (Rule 21, post, p. 74). It is the duty of the registrar when notice of appeal or notice of appeal on law alone which does not fall within sect. 15, sub-sect. 2, or where leave has been granted to the appellant, and the prosecutor is a private individual, to ascertain from such prosecutor or his solicitor if he intends to defend the appeal. If such prosecutor does not intend to defend the appeal, the registrar must notify the Public Prosecutor. If the prosecutor at the trial was the Director of Public Prosecutions, the registrar shall notify him of such appeal (Rule 27 (a), post, p. 77)- If a private prosecutor does not defend the appeal, it shall be his duty to afford all information, documents, etc., which may be required to the registrar or Director of Public Prosecutions (Rule 27 (b),post, p. 77). The Court of Criminal Appeal may at any stage of the proceedings substitute the Director of Public Prosecutions or the solicitor for a Government Department for a private prosecutor (Rule 2S,posf, p. 77). 13. Costs of Appeal. (1) On the hearing and deter- mination of an appeal or any proceedings preliminary or incidental thereto under this Act no costs shall be allowed on either side. The court has no power to order one side to pay costs to the other as in civil cases ; nor is any provision made in the Act for payment of the costs of a private prosecutor who appears in the Court of Criminal Appeal by counsel for the purpose of defending the appeal. When a case has been stated by the court of trial under the unrepealed sections of the Crown Cases Act, 1848, ante, p. 9, and post, p. 56, the court of trial has power under 7 G. 4, c. 64, s. 22, to make an order for payment out of the local rate of the costs of the argument on the part of the prosecution. Jt. v. Cluderoy, 3 C. & K. 205 ; R. v. Woolky, 1850, 4 Cox 452. (2) The expenses of any solicitor or counsel assigned to an appellant under this Act, and the expenses of any witnesses attending on the order of the court or examined 42 CRIMINAL APPEALS in any proceedings incidental to the appeal, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal, and all expenses of and incidental to any exami- nation of witnesses conducted by any person appointed by the court for the purpose, or any reference of a question to a special commissioner appointed by the court, or of any person appointed as assessor to the court, shall be defrayed, up to an amount allowed by the court, but subject to any regulations as to rates and scales of payment made by the Secretary of State, in the same manner as the expenses of a prosecution in cases of felony. Provision is here made for the expenses (1) Of any solicitor or counsel assigned to an appellant under this Act ; (2) Of any witnesses attending on the order of the court, or examined in any proceedings incidental to the appeal ; (3) Of the appearance of an appellant on the hearing, or on any proceedings preliminary or incidental to the appeal ; (4) All expenses of, and incidental to, any examination of witnesses conducted by any person appointed by the court for the purpose ; (5) Any reference of a question to a special commissioner appointed by the court ; (6) Of any person appointed as assessor to the court. No mention is made of the expenses of the prosecutor, in the case of a private prosecution, and, having regard to sub- sect i, it is clear that a private prosecutor will have no costs given to him, unless provision has been made for such costs by the court of trial when a case is stated on a point of law (ante, p. 9, and/w/, p. 56). If the court orders the prosecutor to be examined as a witness, then under (2) he may get his expenses ; but apart from this and a special case, if the private prosecutor appears in the Court of Criminal Appeal he must do so at his own expense. CRIMINAL APPEALS 43 14. Admission of Appellant to Bail, and Custody ivlwn attending Court. (1) An appellant who is not admitted to bail shall, pending the determination of his appeal, be treated in such manner as may be directed by prison rules within the meaning of the Prison Act, 1898. (2) The Court of Criminal Appeal may, if it seems fit, on the application of an appellant, admit the appel- lant to bail pending the determination of his appeal. Power to admit an appellant to bail is given to a judge of the Court of Criminal Appeal by sect. 17, post, p. 50, but if the judge refuses the application for bail, an appeal will lie from his decision to the court. Under Rule 29 (a), post, p. 78, the Court of Criminal Appeal shall specify the amount of the bail and before whom the recognisances of the appellant and his sureties, if any, are to be taken. In case the court does not make any special order, then the recognisances are to be taken before a visiting justice, at the prison where the appellant is confined, or the governor of such prison, and the recognisances of the sureties may be taken before any Petty Sessional Court (Rule 29 ()). The registrar must notify the appellant or the governor of the prison of the terms and conditions of any order as to bail (29 (c)). The police of the district in which a Petty Sessional Court taking the recognisances of a surety or sureties is situate shall assist in inquiring as to the sufficiency of any sureties (Rule 29 (d),post, p. 78). When the appellant's and the sureties' recognisances have been duly taken, the governor of the prison and the clerk of the Petty Sessional Court shall forward the recognisances to the registrar of the Court of Criminal Appeal. The clerk of the Petty Sessional Court, after the recognisances of a surety have been taken, shall give to the surety a certificate of recognisances in the Form XV., post, p. 99, which such surety shall sign and retain (Rule 29 (e)),post, p. 78. The registrar, on receiving the recognisances in due form, shall send to the governor of the prison in which the appellant is confined a notice (Form XII., post, p. 97). And this notice shall be authority to the governor to release the appellant from custody (Rule 29 (,f),post,y. 78). The forms for the recognisances are X. and Xl.,p0sf, p. 96. An appellant who has been admitted to bail shall, by order of the court or the judge who made the order for bail, be 44 CRIMINAL APPEALS ordered to be and shall be personally present at each and every hearing of his appeal, and at the final determination thereof. If he is not present, the court may decline to consider the appeal, and may dismiss the appeal and issue a warrant for the appellant's apprehension (Form XIX., post, p. 101). The court may, however, consider the appeal in the absence of the appellant, and make such order as they think right (Rule 29 (K), post, p. 79). The Court of Appeal may vary the order for bail when the appellant is present before the court, and may do so either upon the application of any person or without any such application (Rule 29 (*)). If the surety or sureties suspect that the appellant intends to leave England or Wales, or break his recognisances, such sureties may lay an information before a Justice of the Peace in the Petty Sessional District in which the appellant is or is believed to be, or in which the sureties may be. The information is to be in the Form XVI., post^ p. 99, and the Justices shall issue a warrant for the apprehension of the appellant in the Form XVlI.,post, p. 100, and Rule 29 (j). If the appellant is arrested on the information of the sureties, he must be brought before the Petty Sessional Court from which the information was issued, or any such other court as is specified in the warrant, and if the information is verified on the oath of the informant, the appellant is to be committed to prison (Rule 29 ()). If the prison to which he is committed is not the one from which he was released on bail, the Prison Commissioners, subject to any order of the Court of Appeal, may transfer him to such prison (#.). When the appellant has been committed to prison, the clerk of the Petty Sessional Court shall notify the registrar of the Court of Appeal, and send to the registrar the warrant of commitment (29 (/)). The court may also, at any time, after the appellant has been admitted to bail revoke the order for bail and issue a warrant (Form XIX.) for his apprehension (29 (m)). In any case where the appellant after his release on bail has been arrested and committed to prison, the governor of the prison shall notify the registrar, and the registrar shall inform the court in order that directions may be given as to the disposal of the appeal (29 ()). The rules made under this Act are not to affect the common law right of the surety to apprehend the appellant and so discharge himself from his suretyship (29 (o)). The practice of the Crown Office with regard to estreating recognisances (C.O.R., 1906, Rule 115) is to be followed in similar proceedings under this Act (29 (/)). CRIMINAL APPEALS 45 In all cases where it is necessary to ascertain the appellant's means it shall be the duty of the police to inquire and report to the registrar if requested by that official to do so (Rule 30, post t p. 80). (3) The time during which an appellant, pending the determination of his appeal, is admitted to bail, and subject to any directions which the Court of Criminal Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is spe- cially treated as an appellant under this section, shall not count as part of any term of imprisonment or penal servitude under his sentence, and in the case of an appeal under this Act any imprisonment or penal servitude under the sentence of the appellant, whether it is the sentence passed by the court of trial or the sentence passed by the Court of Criminal Appeal, shall, subject to any directions which may be given by the court as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and, if he is not in custody, as from the day on which he is received into prison under the sentence. This section gives full power to the Court of Criminal Appeal to fix the date at which the sentence imposed upon the prisoner will begin to run. If a prisoner who is convicted by the court of trial and sentenced to penal servitude or im- prisonment gives notice of appeal, then during the time he is awaiting the determination of his appeal, he will be under a different regimen than he would be under if he was fulfilling his sentence in the ordinary way. He is not, as a matter of fact, serving the sentence which is suspended until the deter- mination of the appeal, and he has during that time to be dealt with on a different principle. The Court of Criminal Appeal, if the appeal is dismissed, may under sub-sect. (3) say whether or not the period between 46 CRIMINAL APPEALS the sentence by the court of trial and the determination of the appeal is to count as part of the sentence. If no directions are given by the Court of Appeal, then the time during which the appellant is out on bail, or if in custody is specially treated pending the determination of his appeal, is not to count as part of any term of imprisonment or penal servitude under his sentence. (4) Where a case is stated under the Crown Cases Act, 1848, this section shall apply to the person in rela- tion to whose conviction the case is stated as it applies to an appellant. (5) Provision shall be made by prison rules within the meaning of the Prison Act, 1898, for the manner in which an appellant, when in custody, is to be brought to any place at which he is entitled to be present for the purposes of this Act, or to any place to which the Court of Criminal Appeal or any judge thereof may order him to be taken for the purpose of any proceedings of that court, and for the manner in which he is to be kept in custody while absent from prison for the purpose ; and an appellant whilst in custody in accordance with those rules shall be deemed to be in legal custody. 15. Duties of Registrar with Respect to Notices of Appeal, etc. (1) The registrar shall take all necessary steps for obtaining a hearing under this Act of any appeals or applications, notice of which is given to him under this Act, and shall obtain and lay before the court in proper form all documents, exhibits, and other things relating to the proceedings in the court before which the appellant or applicant was tried, which appear necessary for the proper determination of the appeal or application. CRIMINAL APPEALS 47 (2) If it appears to the registrar that any notice of an appeal against a conviction purporting to be on a ground of appeal which involves a question of law alone does not show any substantial ground of appeal, the registrar may refer the appeal to the court for summary determination, and where the case is so referred, the court may, if they consider that the appeal is frivolous or vexatious, and can be determined without adjourning the same for a full hearing, dismiss the appeal sum- marily, without calling on any persons to attend the hearing or to appear for the Crown thereon. This is an apparent qualification of the absolute right of appeal on a point of law. The sub-section does not, however, bar the right of appeal ; all it does is to enable the court to deal summarily with a frivolous objection. A notice of appeal on a point of law alone does not require the leave of the Court of Criminal Appeal, and hence without this section all such appeals would of necessity be set down for hearing. Counsel for the Crown would be briefed, or, in the case of a private prosecutor, counsel for the prosecutor and expenses would be incurred, perhaps in a frivolous matter that was on its face without any substance whatever. In such a case as this, the registrar can, if he is of opinion that the notice of appeal does not show any substantial ground of appeal, refer the case to the court for summary determination, and the court can dismiss the appeal summarily without calling on any persons to attend on behalf of the Crown. The section does not prevent the prisoner being represented by counsel, and no doubt due notice will be given to appellants when their appeals will be dealt with summarily. (3) Any documents, exhibits (see interpretation of rules, post, p. 65), or other things connected with the proceedings on the trial of any person on indictment, who, if convicted, is entitled or may be authorised to appeal under this Act, shall be kept in the custody of the court of trial in accordance with rules of court 48 CRIMINAL APPEALS made for the purpose, for such time as may be provided by the rules, and subject to such power as may be given by the rules for the conditional release of any such documents, exhibits, or things from that custody. This mainly provides for the security of documents, etc., connected with the conviction of a person who desires to appeal, or who has the right to appeal. See also notes to sect. 9, antf, p. 32, and Rules 8, 32 (a), and 33. (4) The registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application under this Act to any person who demands the same, and to officers of courts, governors of prisons, and such other officers or persons as he thinks fit, and the governor of a prison shall cause those forms and instructions to be placed at the disposal of prisoners desiring to appeal, or to make any application under this Act, and shall cause any such notice given by a prisoner in his custody to be forwarded on behalf of the prisoner to the registrar. Facilities for taking the necessary steps in an appeal are, under this sub-section, given to persons desirous of appealing to the Court of Criminal Appeal. And see Rule 25, post, p. 75, and notes to sect. 17, post, p. 50. (5) The registrar shall report to the court or some judge thereof any case in which it appears to him that, although no application has been made for the purpose, a solicitor and counsel or counsel only ought to be assigned to an appellant under the powers given to the court by this Act. This sub-section should be read with sect 10, ante^ p. 36. The sub-section enables the registrar, if he thinks the appel- lant's case is one which should be put before the court by CRIMINAL APPEALS 49 counsel, to report this fact to the court. Cases may arise in which the appellant may have prepared his case himself; there may be some difficult legal question raised not apparent to the appellant. In such a case the registrar can, if he thinks it advisable, report the circumstances to the court. The report is to be made by the registrar to a judge of the court, and the directions given by the judge on the report are to be final (Rule tfipostt p. 82). 16. Shorthand Notes of Trial. (1) Shorthand notes shall be taken of the ^proceedings at the trial of_ any person on indictment who, if convicted, is entitled or may be authorised to appeal under this Act, and on any appeal or application for leave to appeal, a transcript of the notes or any part thereof shall be made if the registrar so directs, and furnished to the registrar for the use of the Court of Criminal Appeal or any judge thereof : Provided that a transcript shall be furnished fJl ? ^ to any party interested upon the payment of the pre- ^ ~ A scribed charges as the Treasury may fix. u /, This clause makes it compulsory for a shorthand note to . be taken of every criminal trial on indictment. The transcript v of the note need not be made until the registrar of the Court " Ti* */! of Criminal Appeal directs it to be done. The latter part of ^ /- "/" / the section enables any person interested to obtain a transcript on payment of the charges fixed by the Treasury. And see ( l'f Rule 5,#0st t p. 66. (2) The Secretary of State may also, if he thinks fit in any case, direct a transcript of the shorthand notes to be made and furnished to him for his use. (3) The cost of taking any such shorthand notes, and of any transcript where a transcript is directed to be made by the registrar or by the Secretary of State, shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of moneys C.A. E 50 CRIMINAL APPEALS provided by Parliament, and rules of court may make such provision as is necessary for securing the accuracy of the notes to be taken and for the verification of the transcript. 17. Powers which may be exercised by a Judge of the Court. The powers of the Court of Criminal Appeal under this Act to give leave to appeal, to extend the time within which notice of appeal or of an application for leave to appeal may be given, to assign legal aid to an appellant, to allow the appellant to be present at any proceedings in cases where he is not entitled to be present without leave, and to admit an appellant to bail, may be exercised by any judge of the Court of Criminal Appeal in the same manner as they may be exercised by the court, and subject to the same pro- visions ; but if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the appli- cation determined by the Court of Criminal Appeal as duly constituted for the hearing and determining of appeals under this Act. Under Rule 25, post, p. 75, applications under this section to a judge are deemed to be applications to the Court of Appeal. The registrar of the court must notify the appellant of the decision of the judge, and in the event of the judge refusing the application the registrar, when notifying the appellant of such decision, is required to forward to the appellant the form of appeal to the Court of Appeal (Form XIII. ,/w/, p. 98), for the appellant to fill up and return to the registrar. If the appellant desires to appeal from the judge to the Court of Appeal he is required to fill up the form and return it to the registrar forthwith, and also within five days to fill up and return to the registrar Form XIV. (post, p. 98). If this Form XIV. is not returned within five days to the registrar the refusal of his CRIMINAL APPEALS 51 application by the judge shall be final (Rule 25 (3), post> P- 75)- When the appellant is not legally represented on his appeal to the Court of Appeal he may, if the Court of Appeal gives him leave, be present at the hearing of the appeal from the judge, but if he is legally represented he can only be present when special leave has been given by the Court of Appeal (Rule 25 (b), post, p. 75). Application for leave to be present at the appeal to the Court of Appeal shall be in Form XIV., and this application must be laid before the court by the registrar, and notice of the decision given to the appellant. If the application is granted, notice must also be given by the registrar to the governor of the prison where the appellant is in custody (Rule 25 (b), post, p. 75). The judge who has refused the original application may sit as a member of the Court of Appeal (25 ()). The judge may sit and act wherever convenient when acting under the provisions of this section (Rule 25 (<:)). 18. Rules of Court. (1) Kules of court for the pur- poses of this Act shall be made, subject to the approval of the Lord Chancellor, and so far as the rules affect the governor or any other officer of a prison or any officer having the custody of an appellant, subject to the approval also of the Secretary of State, by the Lord Chief Justice and the judges of the Court of Criminal Appeal, or any three of such judges, with the advice and assistance of the Committee herein-after mentioned. Bules so made may make provision with respect to any matter for which provision is to be made under this Act by rules of court, and may regulate generally the prac- tice and procedure under this Act, and the officers of any court before whom an appellant has been convicted, and the governor or other officers of any prison or other officer having the custody of an appellant and any other officers or persons, shall comply with any requirements 62 CRIMINAL APPEALS of those rules so far as they affect those officers or persons, and compliance with those rules may be en- forced by order of the Court of Criminal Appeal. (2) The Committee herein-before referred to shall consist of a chairman of quarter sessions appointed by a Secretary of State, the Permanent Under Secretary of State for the time being for the Home Department, the Director of Public Prosecutions for the time being, the Eegistrar of the Court of Criminal Appeal, and a clerk of assize, and a clerk of the peace appointed by the Lord Chief Justice, and a solicitor appointed by the President of the Law Society for the time being, and a barrister appointed by the General Council of the Bar. The term of office of any person who is a member of the Com- mittee by virtue of appointment shall be such as may be specified in the appointment. (3) Every rule under this Act shall be laid before each House of Parliament forthwith, and if an address is presented to His Majesty by either House of Parlia- ment within the next subsequent thirty days on which the House has sat next after any such rule is laid before it, praying that the rule may be annulled, His Majesty in Council may annul the rule, and it shall thenceforth be void, but without prejudice to the validity of any- thing previously done thereunder. SUPPLEMENTAL. 19. Prerogative of Merey. Nothing in this Act shall affect the prerogative of mercy, but the Secretary of State on the consideration of any petition for the CRIMINAL APPEALS 53 exercise of His Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person so convicted, may, if he thinks fit, at any time either (a) refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person con- victed ; or Under the Act, the Home Secretary retains all the powers which he has hitherto possessed. The Home Office can still hold the same inquiries, take the same informal evidence, and, in doing so, go outside the rules of legal evidence and do the same amount of justice in the future as in the past. The pre- rogative of mercy, in fact, remains untouched. Hence, a con- victed prisoner has (i) the same rights now that a prisoner has always had of petitioning the Home Secretary to reduce the sentence or grant a free pardon, and (2) under the Act and subject to sect. 3, ante, p. 5, of appealing to the Court of Criminal Appeal. Under sect. 19, supra, if the prisoner has petitioned the Home Office, the Secretary of State may, at any time, under (a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by that court as in the case of an appeal by a person convicted. The procedure will in fact be the same as if an appeal had been made direct to the Court of Criminal Appeal. There is, however, this difference, that no application for leave is required ; in other words the Home Secretary enters an appeal for the convict. Such a course may or may not be favourable to the prisoner. It must not be forgotten that the Home Office is not a court bound by rules of evidence. Its procedure is much more elastic and flexible, and enables it to deal with fresh facts and evidence which would not be admissible in a court of law. Again, the Home Office on a petition is moved by considerations of mercy alone, and it has no power to increase a sentence but only to diminish it or grant a free pardon. On the other hand, the Court of Criminal Appeal is bound by legal rules of evidence, and under sect. 4, sub-sect. 3, ante, p. 17, may increase the sentence passed by the court of trial. These circumstances C.A. E 2 54 CRIMINAL APPEALS will no doubt be borne in mind by the Secretary of State, and on the whole the Secretary of State may be trusted only to act under the power given to him by this section, when it will clearly be in the interest of the prisoner, or when the prisoner cannot be placed by such action, in a less favourable condition than he would be if the petition was dealt with by the ordinary procedure of the Home Office. In cases where the whole matter has been referred to the court by the Secretary of State the petitioner is to be deemed an appellant under the Act for all purposes (Rule 48, post, p. 87). (6) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall con- sider the point so referred and furnish the Secretary of State with their opinion thereon accordingly. Further power is given to the Secretary of State under (b) to obtain the assistance of the Court of Criminal Appeal on any point arising in the petition. A question of law may arise on the petition, and the Secretary of State may require the opinion of the court as to whether or not the prisoner was legally con- victed. In this way the question of law may be decided in open court with, it may be, the assistance of counsel for both the prosecution and the prisoner, and a decision given by the highest criminal court in the Realm. The court may decide to deal with the point in private, but it is submitted that the more satisfactory method of dealing with such a case is to deal with it in open court, and the fact that the decision is given in open court is far more satisfactory than can be the case when the case is dealt with in secrecy, as must be the case in the Home Office. Having obtained the decision of the Court of Appeal on a question of law, the Home Office can then proceed with the consideration of the petition and, untram- melled by legal rules as to fresh facts and evidence, decide in accordance with its own methods of procedure. The section does not limit the right of the Home Setretary to refer points of law only to the Court of Criminal Appeal. CRIMINAL APPEALS 55 But it is submitted that the practice under this sub-section will be confined to questions of law only. 20. Criminal Informations, Procedure in the High Cowrt, ete. (1) Writs of error, and the powers and practice now existing in the High Court in respect of motions for new trials or the granting thereof in criminal cases, are hereby abolished. The necessity for writs of error and motions for new trials is done away with by the Act, the Court of Criminal Appeal having full power to hear and determine all questions of law and fact on appeal. Sect. 20 specifically abolishes writs of error and the practice in respect of motions for new trials. (2) This Act shall apply in the case of convictions on criminal informations and coroners' inquisitions and in cases where a person is dealt with by a court of quarter sessions as an incorrigible rogue under the / Vagrancy Act, 1824, as it applies in the case of con- ft * victions on indictments, but shall not apply in the case * ^ . fl of convictions on indictments or inquisitions charging any peer or peeress, or other person claiming the privi- lege of peerage, with any offence not now lawfully triable by a court of assize. Apart from proceedings by way of summary conviction, the only modes of criminal procedure are by way of indictment information and coroner's inquisition. Under sect. 3, ante, p. 5, an appeal is given to persons convicted on indictment, and under this sub-section an appeal is given in cases of conviction on criminal informations and coroners' inquisitions. A right of appeal is also granted when a person is dealt with as an incorrigible rogue by a court of quarter sessions. 1 Hence, the only persons who have no right of appeal to the Court of 1 Incorrigible rogues are only sent to sessions for sentence, and presumably the only form of appeal will be one from the sentence imposed at sessions. 56 CRIMINAL APPEALS Criminal Appeal in criminal matters are persons convicted by courts of summary jurisdiction, peers or peeresses who may claim the privilege of peerage, and under sub-sect. (3), infra, persons convicted on indictment at common law in relation to the non-repair or obstruction of any highway, public bridge, or navigable river. (3) Notwithstanding anything in any other Act, an appeal shall lie from a conviction on indictment at common law in relation to the non-repair or obstruction of any highway, public bridge, or navigable river in whatever court the indictment is tried, in all respects as though the conviction were a verdict in a civil action tried at assizes, and shall not lie under this Act. An appeal from a civil action tried at assizes is now heard by the Court of Appeal (Finlay's Act, 43 & 44 Viet. c. 44), and appeals from convictions under this sub-section on indict- ment at common law in relation to the non-repair or obstruc- tion of any highway, public bridge, or navigable river, will therefore be heard by the Court of Appeal and not by the Court of Criminal Appeal. (4) All jurisdiction and authority under the Crown Cases Act, 1848, in relation to questions of law arising in criminal trials which is transferred to the judges of the High Court by section forty-seven of the Supreme Court of Judicature Act, 1873, shall be vested in the Court of Criminal Appeal under this Act, and in any case where a person convicted appeals under this Act against his conviction on any ground of appeal which involves a question of law alone, the Court of Criminal Appeal may, if they think fit, decide that the procedure under the Crown Cases Act, 1848, as to the statement of a case, should be followed, and require a case to be CRIMINAL APPEALS 57 stated accordingly under that Act in the same manner as if a question of law had been reserved. The Crown Cases Act, 1848, is not repealed except as to sects. 3 and 5 (see schedule to Criminal Act, post, p. 58) ; but the sub-sect. (4) now under consideration transfers the jurisdiction and authority of the Court for Crown Cases Reserved to the Court of Criminal Appeal. A case may still be stated on a point of law by the judge at the trial, but the case will be heard by the Court of Criminal Appeal (and see ante, p. 46). The court which reserves a question of law for the con- sideration of the Court of Criminal Appeal has the power, under 7 G. 4, c. 64, s. 22, to make an order for payment out of the local rate, of the costs of the argument on the part of the prosecution. R, v. Cluderoy, 3 C. & K. 205. 21. Definitions. In this Act, unless the context otherwise requires, The expression "appellant" includes a person who has been convicted and desires to appeal under this Act ; and The expression "sentence" includes any order of the court made on conviction with reference to the person convicted or his wife or children, and any recommendation of the court as to the making of an expulsion order in the case of a person con- victed, and the power of the Court of Criminal Appeal to pass a sentence includes a power to make any such order of the court or recommen- dation, and a recommendation so made by the Court of Criminal Appeal shall have the same effect for the purposes of section three of the Aliens Act, 1905, as the certificate and recom- mendation of the convicting court. 58 CRIMINAL APPEALS 22. Repeal. The Acts specified in the schedule to this Act are hereby repealed to the extent mentioned in the third column of that schedule. 23. (1) This Act may be cited as the Criminal Appeal Act, 1907. (2) This Act shall not extend to Scotland or Ireland. (3) This Act shall apply to all persons convicted after the eighteenth day of April, nineteen hundred and eight, but shall not affect the rights, as respects appeal, of any persons convicted on or before that date. SCHEDULE. ENACTMENTS REPEALED. Session and Chapter. Short Title. Extent of Repeal. 7 & 8 Will. 3. c. 3. 11 & 12 Viet, c. 78. 38 & 39 Viet c. 77. 44 & 45 Viet, c. 68. The Treason Act, 1695. The Crown Cases Act, 1848. The Supreme Court of Judicature Act, 1875. The Supreme Court of Judicature Act, 1881. In section nine, from " but neverthelesse" to the end of the section. Sections three and five. In section nineteen, the words " including the practice and procedure with respect to Crown cases reserved." Section fifteen. APPENDICES RULES UNDER THE CRIMINAL APPEAL ACT, 1907. FORMS UNDER THE CRIMINAL APPEAL RULES, 1 908. COSTS IN CRIMINAL APPEALS CITATION FROM STATUTES. ( 59 ) EULES UNDEE THE CEIMINAL APPEAL ACT, 1907. THE CEIMINAL APPEAL EULES, 1908. EULES MADE, WITH THE APPROVAL OF THE LOED CHANCELLOE AND THE SECBETARY OF STATE, BY THE LOBD CHIEF JUSTICE AND THE JUDGES OF THE COUET OF CEIMINAL APPEAL. Nos. List of Rules. 1 2 2(b) 3 4 (a) 4(b) 4(c) 4(d) 4(e) 5 (a) 5(b) 5(c) 5(d) 5(e) 5(f) 5(g) 5(h) 6 (a) 6(b) 7 (a) 7(b) INTERPRETATION OF RULES, Citation Definitions Interpretation Act, 1889, to apply to Rules Scheduled forms to be used NOTICES OF APPEAL. Notices of appeal to be signed by appellant and addressed to registrar How notices, etc. , may be sent or given - Where appellant unable to write .... Appellant's representative may act for him where question of insanity involved .... Notices, etc. , on behalf of corporations - SHORTHAND WRITERS AND TRANSCRIPT OF NOTES. Shorthand writers, how appointed - - - - Shorthand note to be certified by writer - Transcript to be furnished on application of registrar Party interested may obtain transcript from short- hand writer- Party interested may obtain transcript from registrar Definition of " party interested" Transcript to be made by writer thereof, or some other person on registrar's directions - Verification of transcript for use of Court of Appeal - CERTIFICATE OF JUDGE OF TRIAL. Judge's certificate under s. 3 (b) Judge's certificate may be given at trial without application --...... APPEALS WHERE FINE ONLY is INFLICTED. Where fine imposed on conviction to be retained pending appeal Person in custody in default of payment of fine deemed to be person sentenced to imprisonment - 65 65 65 65 66 66 66 66 66 67 67 67 67 67 67 67 67 68 68 68 C.A. 60 RULES UNDER CRIMINAL APPEAL ACT, 1907. Noe. Last of Rules. Page-. 7(c) 7(d) 7(e) 8 (a) 8(b) 8(0) 9 10 11 (a) 11 (b) ll(c) 11 (d) 11 (e) 11 (f) 12 13 (a) 13 (b) 14 15 (a) 15 (b) 16 APPEALS WHERE FINE ONLY is INFLICTED continued. Person fined may in certain cases intimate appeal, and not pay fine. Power of court of trial in such ounce to impose recognizances Fine to be repaid on success of appeal How appellant committing breach of recognizance under this Rule may be dealt with CUSTODY OF EXHIBITS USED AT TRIAL. Judge's directions as to custody of exhibits Record of judge's directions as to custody of exhibits Last of exhibits produced before committal to be made by coroner or clerk to justices ... ORDER MADE AT TRIAL. CONSEQUENTIAL ORDERS AND SUSPENSION OF SAME PENDING APPEAL. Varying order of restitution of property. Persons affected may appear on appeal Non-suspension of orders for restitution, etc. to be subject to property or a sample, etc. being neces- sary for purposes of appeal Temporary suspension of orders made on conviction, as to money rewards, costs, etc. .... Judge's directions as to property of convicted person Suspension of disqualifications consequent on con- viction Judge's directions as to securing payment of money by convicted person pending appeal Suspension of order for destruction or forfeiture of property Suspension of proceedings or claims consequent on conviction Period of suspension of orders under s. 6 of Act Certificate of conviction not to issue for ten days after conviction After ten days from conviction, clerk to be satisfied no appeal pending before issuing certificate of conviction NOTES AND REPORT OF JUDGE OF TRIAL. Judge's note to be furnished to the registrar on request Report of judge of court of trial - Judge's report to be furnished to Court of Appeal - Registrar to furnish judge of court of trial with materials for report 68 68 69 69 70 70 71 71 71 71 71 72 72 72 73 73 73 73 RULES UNDER CRIMINAL APPEAL ACT, 1907. 61 Nos. List of Rules. 17 18 19 20 (a) 20 (b) 21 22 23 24 25 (a) 25 (b) 25 (c) 26 (a) 26 (b) 26 (c) 26 (d) 27 (a) 27 (b) 28 29 (a) NOTICES OF APPEAL AND PERIOD FOR APPEALING ; ABANDONMENT OF APPEALS. Obligation on appellants to fill up forms of appeal notices and answer questions thereon - - - Time for appealing against conviction to run from verdict Time for appealing against sentence to run from pronouncement of sentence ...... Registrar to require proper officer of court of trial to furnish him with particulars, etc. of trial Registrar to require proper officer of court of trial to furnish him with depositions, indictments, pleas, etc. for use of Court of Appeal .... Prosecutor at trial to be ascertained - Notice of application for leave to appeal - Abandonment of appeal Notice of application for extension of time for PROCEEDINGS BEFORE JUDGE OF APPEAL COURT UNDER s. 17. How application for leave to appeal and other pre- liminary applications are to be dealt with Procedure where judge of Court of Appeal refuses applications under s. 17 of Act - Sittings of a judge under s. 17 of Act PROCEDURE UNDER CROWN CASES ACT, 1848. Procedure for adoption of Crown Cases Act, 1848 Materials to be supplied to judge for statement of special case -------- Judge to forward special case to registrar and copies to be supplied to appellant and respondents - These Rules to apply to convicted person where case stated under Crown Cases Act, 1848 DUTIES OF DIRECTOR OF PUBLIC PROSECUTIONS. Registrar's duties as to ascertaining respondent Prosecution to afford all information, documents, etc., to registrar and Director of Public Prose- cutions Court may at any stage substitute Director of Public Prosecutions for a private prosecutor - PROCEDURE ON APPLICATIONS FOR BAIL : RIGHTS OF SURETIES : ESTREAT OF RECOGNIZANCES. Bail Court of Appeal to specify amount and before whom recognizances to be taken - 73 74 74 74 74 74 75 75 75 75 75 76 76 76 77 77 77 77 77 78 62 RULES UNDER CRIMINAL APPEAL ACT, 1907. Nos. List of Rules. Pages. 29 (b) 29 (c) 29 (d) 29 (e) 29 (f) 29 (g) 29 (h) 29 (i) 29 (j) 29 (k) 29(1) 29 (m) 29 (n) 29(o) 29 (p) 30 31 (a) 31 (b) 32 (a) 32 (b) 32 (c) 33 34 (a) 34 (b) PROCEDURE ON APPLICATIONS, ETC. continued. Appellant's recognizances to be taken before a visiting justice, surety's recognizances before petty sessional court Appellant and prison governor to receive notice of terms of bail Police of district to assist petty sessional court in inquiring as to surety's sufficiency .... Appellant's and surety's recognizances to be for- warded to registrar. Clerk to give surety certifi- cate of recognizances Registrar on receiving recognizances in due form to notify governor of prison to release appellant Form of recognizance Presence of appellant on bail at hearing of his appeal Varying order for bail by Court of Appeal Provisions for sureties discharging their obligations - How appellant on bail to be dealt with on arrest at instance of sureties ...... Arrest and commitment of appellant to be notified to registrar by clerk to petty sessional court Power of Court of Appeal to revoke order for bail - Governor of prison on commitment of appellant to notify registrar Sureties' rights at common law preserved - Estreat of recognizances Duty of police to inquire and report as to appellant's means for purposes of Act on request of registrar - Warders, etc. to attend sittings of Court of Appeal - Appellant to surrender on appeal, be searched, and remain in custody until further dealt with - Registrar on application of appellant or respondent, or where he thinks necessary, to obtain documents, exhibits, etc. for purposes of appeal, and same to be open for inspection Court of Appeal may order production of any document or exhibits, etc. Service of orders EXHIBITS IN COURT OF TRIAL, HOW DEALT WITH. Exhibits to which Rule 8 (a) relates to be returned to persons producing same subject to order of court - NOTIFYING RESULT OF APPEALS. On final determination of appeals, etc. registrar to notify appellant, prison governor, prison com- missioners In cases of death sentence, notice of appeal and of final determination to be sent to Secretary of State 78 78 78 78 78 79 79 79 79 79 80 80 80 80 80 80 80 81 81 81 81 81 82 82 EULES UNDER CRIMINAL APPEAL ACT, 1907. 63 Nos. List of Rules. Pages. 35 (a) 35 (b) 36 37 38 (a) 38 (b) 39 (a) 39 (b) 39 (c) 39 (d) 40 (a) 40 (b) 40 (c) 40 (d) 40 (e) 40 (f) 40 (g) 40 (h) 40 (i) 40 (j) 41 42 (a) 42 (b) 42 (c) NOTIFYING RESULT OF APPEALS continued. Registrar to notify officer of court of trial result of appeal Officer of court of trial to enter decision of court on records Registrar after appeal to return original depositions, exhibits, indictment, etc. to officer of court of trial when received from him .... LEGAL AID TO APPELLANTS. Reports as to legal aid under s. 15 (5) to be made to judge of court List of counsel and solicitors for purposes of Act to be prepared and maintained by clerks of assize Legal aid to be provided from such lists ... COPIES OF DOCUMENTS FOB USE OF APPELLANTS. How appellant or respondent may obtain from registrar copies of documents or exhibits Counsel and solicitor assigned to appellant to receive copies of documents and exhibits free on his request Transcript of shorthand notes not to be suppb'ed free except on order of judge or court - - - - Poor appellant not legally represented may obtain copy of documents or exhibits free PROCEDURE AS TO WITNESSES BEFORE COURT OF APPEAL AND THEIR EXAMINATION BEFORE EXAMINER. Attendance of witness before Court of Appeal - Application to court to hear witnesses Order appointing examiner Registrar to furnish examiner with exhibits, etc. necessary for examination Notification of date of examination - ... Evidence to be given on oath Deposition of witness, how to be taken - Travelling expenses of witnesses before examiner Service of notices and orders under rule - Presence of parties at examination of witnesses Proceedings under s. 9 (d) on reference ... CAUSE LISTS. Register of appeals to be kept by registrar Registrar to keep general list of appeals - List of cases for daily sittings of court. Notices to appellants in custody 82 82 82 82 83 83 83 84 84 84 84 84 84 84 85 85 85 85 85 85 85 86 86 86 64 RULES UNDER CRIMINAL APPEAL ACT, 1907. Nos. List of Rules. Pages. MISCELLANEOUS PEO VISIONS. 43 (a) Applications not specially provided for, bow made - 86 43 (b) Audience of solicitors 87 44 Notice by registrar to appellant of result of all applications - .... 87 45 Non-compliance with Rules not wilful may be waived by court - 87 46 Enforcing duties under Rules - 87 47 Warrants for arrest of appellants to be deemed to be warrants issued under Indictable Offences Act, 1848 87 48 A petitioner under s. 19 (a) to be deemed an appel- lant for all purposes 87 49 Payment of expenses under 8. 13 - 87 50 Sittings during Long Vacation 88 51 Reference to court under s. 19 (b) - 88 INTEKPKETATION OF KULES. 65 INTERPRETATION OP RULES. 1. Citation.'] These Rules may be cited as the Criminal Appeal Rules, 1908, and shall come into operation on the 18th of April, 1908. 2. Definitions.'] (a) The expression "the Act" shall mean the Criminal Appeal Act, 1907. The expression " judge of the court of trial " shall mean the judge or chairman of any court from the conviction before or the sentence of which a person desires to appeal under the Act. The expression " proper officer of the court of trial " shall mean the clerk of assize or clerk of the peace, or other person for the time being acting as such in any court of assize or court of quarter sessions or as officer for the time being of any court held under the Central Criminal Court Acts, 1834 to 1881, from the conviction before or the sentence of which a person desires to appeal under the Act. The expression " Secretary of State " shall mean his Majesty's Principal Secretary of State for the Home Department. The expression " registrar " shall- include any person temporarily appointed by the Lord Chief Justice from among the Masters of the Supreme Court acting in the King's Bench Division to act during the absence of the registrar through sickness or other unavoidable cause. The expression " shorthand writer " shall mean the person or persons appointed from time to time as such for the purposes of section 16 of the Act. The expression " respondent " shall mean the person who under section 12 of the Act has the duty of appearing for the Crown, or who undertakes the defence of the appeal. The expression " Government Department " shall, for the pur- poses of these Rules, be deemed to include the Commissioners of Police of the Metropolis. The expression " exhibits " shall include all books, papers, and documents, and all other property, matters and things whatsoever connected with the proceedings against any person who is entitled or may be authorised to appeal under the Act, if the same have been forwarded to the court of trial on the person accused being committed for trial or have been produced and used in evidence during the trial of, or other proceedings in relation to a person entitled or authorised under the Act to appeal, and any written statement handed in to the judge of the court of trial by such person, but shall not include the original depositions of witnesses examined before the committing justice or coroner nor any indict- ment or inquisition against any such person nor any plea filed in the court of trial. Interpretation Act, 1889, to apply to Rules.'] (b) The Interpreta- tion Act, 1889, shall apply for the interpretation of these Rules as it applies for the interpretation of an Act of Parliament. 3. Scheduled forms to be used.~\ The forms set out in the Schedule to these Rules, or forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable. CO RULES UNDER CRIMINAL APPEAL ACT, 1907. NOTICES OF APPEAL. 4. Notices of appeal to be signed by appellant and addressed to registrar.] (a) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given under the Act shall be signed by the appellant himself, except under the provisions of paragraphs (d) and (e) of this Rule. Any other notice required or authorised to be given for the purposes of the Act or these Rules shall be in writing and signed by the person giving the same or by his solicitor. All notices required or authorised to be given for the purposes of the Act or these Rules to the Court of Criminal Appeal shall be addressed to " The Registrar of the Court of Criminal Appeal, London." How notices, etc., may be sent or given.] (b) Any notice or other document which is required or authorised by the Act or these Rules to be given or sent shall be deemed to be duly given or sent if forwarded by registered post addressed to the person to whom such notice or other document is so required or authorised to be given or sent. Where appellant unable to icrite.] (c) When an appellant or any other person authorised or required to give or send any notice of appeal or notice of any application for the purposes of the Act or of these Rules is unable to write he may affix his mark thereto in the presence of a witness who shall attest the same and there- upon such notice shall be deemed to be duly signed by such appellant. Appellant's representative may act for him where question of insanity involved.] (d) Where on the trial of a person entitled to appeal under the Act, it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omission made by him any notice required by these Rules to be given and signed by the appellant himself may be given and signed by his solicitor or other person authorised to act on his behalf. Notice, etc., on behalf of corporations.] (e) In the case of a body corporate where by the Act or these Rules any notice or other document is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager, or solicitor of such body corporate. SHORTHAND WRITERS AND TRANSCRIPT OF NOTES. 5. Shorthand writers, how appointed.] (a) Shorthand writers shall be appointed from time to time as required for the purposes of the Act by the Lord Chancellor and the Lord Chief Justice for such period and on such conditions as they shall think right. SHOKTHAND WRITERS AND TRANSCRIPT OF NOTES. 67 Shorthand note to lie certified by the writer."] (b) The shorthand writer shall sign the shorthand note taken by him of any trial or proceeding, or of any part of such trial or proceeding, and certify the same to be a complete and correct shorthand note thereof, and shall retain the same unless and until he is directed by the registrar to forward such shorthand note to him. Transcript to be furnished on application of registrar .] (c) The shorthand writer shall, on being directed by the registrar, furnish to him for the use of the Court of Appeal a transcript of the whole or of any part of the shorthand note taken by him of any trial or proceeding in reference to which an appellant has appealed under the Act. Party interested may obtain transcript from shorthand writer.~\ (d) The shorthand writer shall furnish to a party interested in a trial or other proceeding in relation to which a person may appeal under the Act, and to no other person, a transcript of the whole, or of any part of the shorthand note of any such trial or other proceedings, on payment by such party interested to such short- hand writer of his charges on such scale as the Treasury may fix. Party interested may obtain transcript from registrar.] (e) A party interested in an appeal under the Act may obtain from the registrar a copy of the transcript of the whole or of any part of such shorthand note as relates to the appeal subject to the provisions of section 16 of the Act. Definition of "party interested."] (f) For the purposes of this Rule, " a party interested " shall mean the prosecutor (not being the Director of Public Prosecutions), or the person convicted, or any other person named in, or immediately affected by, any Order made by the judge of the court of trial, or other person authorised to act on behalf of a party interested, as herein defined. Transcript to be made by writer thereof or some other person on registrar's directions.] (g) Whenever under the Act or these Rules a transcript of the whole or of any part of such shorthand note is required for the use of the Court of Appeal such transcript may be made by the shorthand writer who took and certified the shorthand note, or by such other competent person as the registrar may direct. Verification of transcript for use of Court of Appeal.] (h) A transcript of the whole or any part of the shorthand note relating to the case of any appellant which may be required for the use of the Court of Appeal shall be typewritten and verified by the person making the same by a statutory declaration in the Form (VIII.) in the Schedule to these Rules that the same is a correct and complete transcript of the whole, or of such part, as the case may be, of the shorthand note purporting to have been taken, signed, and certified by the shorthand writer who took the same. CEETIFICATE OF JUDGE OF TRIAL. 6. Judge's certificate, under section 3 (b).] (a) The certificate of the judge of the court of trial under section 3 (b) of the Act may be in the Form (I.) in the Schedule to these Rules. C.A. O 68 KULES UNDER CRIMINAL APPEAL ACT, 1907. Judge's certificate may be given at trial without application.'] (b) The judge of the court of trial may, in any case in which he considers it desirable so to do, inform the person convicted before or sentenced by him that the case is in his opinion one fit for an appeal to the Court of Appeal under section 3 (b), and may give to such person a certificate to that effect in the Form (I.) in the Schedule to these Rules. APPEALS WHERE FINE ONLY is INFLICTED. 7. Where fine imposed on conviction to be retained pending appeal."} (a) Where a person has, on his conviction, been sentenced to payment of a fine, and in default of payment to imprisonment, the person lawfully authorised to receive such fine shall, on receiving the same, retain it until the determination of any appeal in relation thereto. Person in custody in default of payment of fine, deemed to be person sentenced to imprisonment.] (b) If such person remains in custody in default of payment of the fine, he shall be deemed, for all purposes of the Act or these Rules, to be a person sentenced to imprisonment. Person fined may in certain cases intimate appeal, and not pay fine. Power of court of trial in such cases to impose recognizances.] (c) Where any person has been convicted and is thereupon sentenced to the payment of a fine, and, in default of such payment, to imprisonment and he intimates to the judge of the court of trial that he is desirous of appealing against his con- viction to the Court of Appeal, either upon grounds of law alone, or, with the certificate of the judge of the court of trial, upon any grounds mentioned in section 3 (b) of the Act, such judge may, if he thinks right so to do, order such person forthwith to enter into recognizances in such amount, and with, or without, sureties in each amount as such judge may think right, to prosecute his appeal. And, subject thereto, may order that payment of the said fine shall be made at the final determination of his said appeal, if the same be dismissed, to the registrar of the Court of Appeal, or as such court may then order. The recognizance under this Rule shall be in the Forms (XX.) and (XXI.) in the Schedule hereto. A surety becoming duly bound by recognizance under this Rule, shall be deemed to be, for all purposes, and shall have all the powers of a surety under the provisions of Rule 29. The proper officer of the court of trial shall forward the recognizances of the appellant and his surety or sureties to the registrar. Fine to be repaid on success of appeal.] (d) An appellant who has been sentenced to the payment of a fine, and has paid the same in accordance with such sentence, shall, in the event of his appeal being successful, be entitled, subject to any order of the Court of Appeal, to the return of the sum or any part thereof so paid by him. APPEALS WHERE FINE ONLY is INFLICTED. 69 How appellant committing breach of recognizance under this Rule may be dealt with.~\ (e) If an appellant to whom Rule 7 (c) applies, does not serve in accordance with these Rules, a notice of appeal upon grounds of law alone, or with the certificate of the judge of the court of trial upon any grounds mentioned in section (3) (b) of the Act, within ten days from the date of his conviction and sentence, the registrar shall report such omission to the Court of Appeal, who may, after notice in the Forms (XXII.) and (XXIII.) in the Schedule hereto has been given to the appellant and his sureties, if any, order an estreat of the recog- nizances of the appellant and his sureties in manner provided by Rule 29 (p) hereof, and may issue a warrant for the apprehension of the appellant and may commit him to prison in default of payment of his fine, or may make such other order as they think right. CUSTODY OF EXHIBITS USED AT TRIAL. 8. Judge's directions as to custody of exhibits.~\ (a) The judge of the court of trial may make any order he thinks fit for the custody, disposal, or production of any exhibits in the case, but unless he makes any such order, exhibits shall be returned to the custody of the person producing the same or of the solicitor for the pro- secution or defence respectively. Such person or solicitor shall retain the same pending any appeal and shall, on notice from the registrar or Director of Public Prosecutions, produce or forward the same as and when required so to do. Record of judge's directions as to custody of exhibits.~\ (b) The proper officer of the court of trial shall keep a record of any order or direction of the judge thereof given under this Rule. List of exhibits produced before committal, to be made by coroner or cleric to justices.] (c) Whenever a person is committed for trial, it shall be the duty of the coroner or of the clerk to the justice committing such person for trial to make and forward, with the depositions taken in relation to such person, a complete list of such exhibits as have been produced and used in evidence for or against him during any proceedings before such coroner or justice, to the court before which such person is to be tried. Such list shall be in the Form (XXXIII.) in the Schedule to these Rules, subject to the necessary modifications, and shall be signed by such coroner or clerk. The exhibits appearing on such list shall be marked with consecutive numbers for the purpose of readily identifying the same. Any exhibits put in for the first time at the trial shall be added to such list by the proper officer of the court of trial and marked as herein provided. ORDER MADE AT TRIAL. CONSEQUENTIAL ORDERS AND SUSPENSION OF SAME PENDING APPEAL. 9. Varying order of restitution of property. Persons affected may appear on appeal.'} Where, upor the trial of a person entitled to appeal under the Act against his conviction, an order of restitution G 2 70 RULES UNDER CRIMINAL APPEAL ACT, 1907. of any property to any person has been made by the judge of the court of trial, the person in whose favour or against whom the order of restitution has been made, any person in whose favour or against whom an order to which Rule 10 relates has been made, and, with the leave of the Court of Appeal, any other person, shall, on the final hearing by the Court of Appeal of an appeal against the con- viction on which such order of restitution was made, be entitled to be heard by the Court of Appeal before any order under the pro- visions of section 6, sub-section 2, of the Act, annulling or varying such order of restitution is made. 10. Non-suspension of orders for restitution, etc., to be subject to property or a sample, etc., being necessary for purposes of ajjpeal.] Where the judge of the court of trial is of opinion that the title to any property the subject of an order of restitution made on a conviction of a person before him, or any property to which the provisions of sub-section 1 of section 24 of the Sale of Goods Act, 1893, apply, is not in dispute, he, if he shall be of opinion that such property or a sample or portion or facsimile representation thereof is reasonably necessary to be produced for use at the hearing of any appeal, shall give such directions to or impose such terms upon the person in whose favour the order of restitution is made, or in whom such property revests under such sub-section as he shall think right in order to secure the production of such sample, portion or facsimile representation for use at the hearing of any such appeal. 11. Temporary suspension of orders made on conviction, as to money, rewards, costs, etc.} (a) Where, on the conviction of a person, the judge of the court of trial makes an order condemning such person to the payment of the whole or of any part of the costs and expenses of the prosecution for the offence of which he shall be convicted out of any moneys taken from such person on his apprehension or otherwise, or where such judge lawfully orders a reward to any person who shall appear to have been active in the apprehension of any such convicted person, or where such judge makes any order under section 30 of the Criminal Law Act, 1826 (7 Geo. 4, c. 64), or under section 74 of the Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), or under section 9 of the Criminal Law Amendment Act, 1867 (30 & 31 Viet. c. 35), or where such judge makes any order awarding to any person aggrieved any sum of money to be paid by such convicted person under the Forfeiture Act, 1870 (33 & 34 Viet. c. 23), or where such judge lawfully makes on the conviction of any person before him any order for the payment of money by such convicted person or by any other person or any order affecting the rights or property of such convicted person the operation of such orders shall in any of such cases be suspended until the expiration of 10 days after the day on which any of such orders were made. And in cases where notice of appeal or notice of application for leave to appeal is given, within 10 days from and after the date of the verdict , against such person, such orders shall be further suspended until the determination of the appeal against the conviction in relation to which they were made. The Court of Appeal may by order, ORDER MADE AT TRIAL. 71 annul any order to which this Rule refers on the determination of any appeal under the Act, or may vary such order, and such order, if annulled, shall not take effect, and, if varied, shall take effect as so varied. The proper officer of the court of trial shall keep a record of any orders to which this Rule refers. Judge's directions as to property of convicted person pending appeal.] (b) Where the judge of the court of trial makes any such order on a person convicted before him, as in this Rule mentioned, he shall give such directions as he thinks right as to the retention by any person, of any money or valuable securities belonging to the person so convicted and taken from such person on his apprehension or of any money or valuable securities at the date of his conviction in the possession of the prosecution for the period of ten days, or in the event of an appeal, until the determination thereof by the Court of Appeal. The proper officer of the court of trial shall keep a record of any directions given under this Rule. Suspension of disqualifications consequent on conviction.] (c) Where upon conviction of any person of any offence any disqualification, forfeiture or disability attaches to such person by reason of such conviction, such disqualification, forfeiture or disability shall not attach for the period of ten days from the date of the verdict against such person nor in the event of an appeal under the Act to the Court of Appeal until the determination thereof. This Rule shall not affect the provisions of section 8 of the Forfeiture Act, 1870 (33 & 34 Viet. c. 23). Judge's directions as to securing payment of money by convicted person pending appeal.] (d) When the judge of the court of trial on the conviction of a person before him, makes any order for the payment of money by such person or by any other person upon such conviction, and, by reason of this Rule, such order would otherwise be suspended, such judge may, if he thinks right so to do, direct that the operation of such order shall not be suspended unless the person on whom such order has been made shall in such manner and within such time as the said judge shall direct, give security by way of undertaking or otherwise for the payment to the person in whose favour such order shall have been made of the amount therein named. Such security may be to the satisfaction of the person in whose favour the order for payment shall have been made or of any other person as such judge shall direct. Suspension of order of destruction or forfeiture of property.] (e) Where on a conviction any property, matters or things the subject of the prosecution or connected therewith, are to be or may be ordered to be destroyed or forfeited under the provisions of any statute, the destruction or forfeiture or order for destruction or forfeiture thereof shall be suspended for the period of 10 days from and after the date on which the verdict on such indictment was returned, and in the event of an appeal under the Act, shall be further suspended until the determination thereof by the Court of Appeal. Suspension of proceedings or claims consequent on conviction.'] (f) Where, upon conviction of any person of any offence, any claim 72 RULES UNDER CRIMINAL APPEAL ACT, 1907. may be made or any proceedings may be taken under any statute against such person or any other person in consequence of such conviction, such proceedings shall not be taken until after the period of 10 days from the date on which the verdict against such person was returned nor in the event of an appeal under the Act to the Court of Appeal until the determination thereof. Any person affected by any orders which are suspended under this Rule may, with the leave of the Court of Appeal, be heard on the final determination of any appeal, before any such orders are varied or annulled by the Court of Appeal. 12. Period of suspension of orders wider section 6 of Act.] The time during which an order of restitution or the operation of sub-section 1, of section 24 of the Sale of Goods Act, 1903, is suspended under section 6 of the Act, shall commence to run from the day on which the verdict of the jury was returned, and, in cases where notice of appeal or notice of application for leave to appeal is duly given within 10 days after such day, the period of suspension of such order or of the operation of the sub-section shall continue until the determination of the appeal. 13. Certificate of conviction not to issue for 10 days after con- viction.] (a) The clerk of the court of trial or other officer thereof, having the custody of the records of such court, or the deputy of such clerk or other officer, shall not issue, under any statutes authorising him so to do, a certificate of conviction of any person convicted on indictment in the court to which he is such clerk, officer, or deputy, for the period of 10 days after the actual day on which such conviction took place, nor in the event of such clerk, officer, or deputy receiving information from the registrar of the court within such 10 days, that a notice of appeal or of application for leave to appeal has been given under the Act, until the determination thereof. After 10 days from conviction, clerk to be satisfied no appeal pending before issuing certificate of conviction.] (b) Where an application is made to such clerk, officer, or deputy to issue such certificate of conviction, as in this Rule mentioned, after the expiration of the said period of 10 days, he shall require, before issuing the same, to be satisfied that there is no appeal then pending in the Court of Appeal against such conviction. A person desirous of obtaining a certificate of conviction from such clerk, officer, or deputy shall be entitled to obtain from the registrar a certificate in such form as the said registrar may think right for the purpose of satisfying by the production thereof, such clerk, officer, or deputy that no appeal against such conviction is then pending. After the expiration of two months from the date of the con- viction a certificate thereof may be issued by such clerk, officer, or deputy as heretofore, except in cases in which he has had notice of an appeal still undetermined. For the purposes of this Rule the expression " conviction " shall mean the verdict or plea of guilty and any final judgment passed thereon. NOTES AND REPORT OF JUDGE OF TRIAL. 73 NOTES AND KEPORT OP JUDGE OF TRIAL. 14. Judge's note to be furnished to the registrar on request.] The registrar when he has received a notice of appeal, or a notice of application for leave to appeal, under the Act, or a notice of application for extension of the time within which under the Act such notices shall be given, or when the Secretary of State shall exercise his powers under section 19 of the Act, shall request the judge of the court of trial to furnish him with the whole of or any part of his note of the trial or with a copy of such note or any part thereof, and .such judge of the court of trial shall thereupon furnish the same to the registrar in accordance with such request. 15. Report of judge of court of trial.] (a) The registrar when he has received a notice of appeal, or a notice of application for leave to appeal under the Act, or a notice of application for extension of time within which under the Act such notices shall be given, or when the Secretary of State shall exercise his powers under section 19 of the Act, or whenever it appears to be necessary for the proper determination of any appeal or application, or for the due performance of the duties of the Court of Appeal under the said section may and, whenever in relation to any appeal under the Act the Court of Appeal or any judge thereof directs him so to do, shall, request the judge of the court of trial to furnish him with a report in writing, giving his opinion upon the case generally or upon any point arising upon the case of the appellant, and the judge of the court of trial shall furnish the same to the registrar in accordance with such request. Judge's report to be furnished to Court of Appeal.] (b) The report of the judge shall be made to the Court of Appeal, and except by leave of the court or a judge thereof the registrar shall not furnish to any person any part thereof. 16. Registrar to furnish judge of court of trial with materials for report.] When the registrar shall request the judge of the court of trial to furnish a report under these Rules, he shall send to such judge of the court of trial a copy of the notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which under the Act such notice shall be given or any other document or information which he shall consider material, or which the Court of Appeal at any time shall direct him to send, 1 or with which such judge may request to be furnished by the registrar, to enable such judge to deal in his report with the appellant's case generally or with any point arising thereon. NOTICES OF APPEAL AND PERIOD FOR APPEALING ; ABANDONMENT OF APPEALS. 17. Obligation on appellants to fill up forms of appeal notices and answer questions thereon.] A person desiring, under the provisions of the Act, to appeal to the Court of Appeal against his conviction or sentence, shall commence his appeal by sending to the registrar a notice of appeal or notice of application for leave to appeal, or 74 RULES UNDER CRIMINAL APPEAL ACT, 1907. notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notices respectively set forth in the Schedule to these Rules, and in the notice or notices so sent, shall answer the questions and comply with the requirements set forth thereon, subject to the provisions of Rule 45. 18. Time for appealing against conviction to run from verdict.'] The time within which a person convicted shall give notice of appeal or notice of his application for leave to appeal to the Court of Criminal Appeal against his conviction, shall commence to run from the day on which the verdict of the jury was returned, whether the judge of the court of trial shall have passed sentence or pronounced final judgment upon him on that day or not. 19. Time for appealing against sentence to run from pronouncement of sentence.] The time within which a person convicted and sentenced, shall give notice of appeal or notice of application for leave to appeal against such sentence under the Act to the Court of Criminal Appeal, shall commence to run from the day on which such sentence shall have been passed upon him by the judge of the court of trial. 20. Registrar to require proper officer of court of trial to furnish him witii particulars, etc., of trial.] (a) When the registrar has received a notice of appeal, or a notice of application for leave to appeal, or a notice of application for extension of time within which, under the Act, such notices shall be given, or where the Secretary of State shall exercise his powers under section 19 of the Act, he shall forthwith apply to the proper officer of the court of trial for the particulars of the trial and conviction, according to the Form (II.) in the Schedule hereto, and for the calendar supplied to the judge of the court of trial or a copy thereof so far as the same refers to the appellant, and such officer shall forthwith furnish the same to the registrar. Registrar to require proper officer of court of trial to furnish him v:ith depositions, indictments, pleas, etc., for use of Court of Appeal. .] (b) The registiar may, if it appears to him to be necessary for the proper determination of any appeal or application or for the due performance of the duties of the Court of Appeal under the said section or whenever in any such cases he is directed by the Court of Appeal so to do, shall require the proper officer of the court of trial to furnish him with the original depositions of witnesses examined before the committing justice or coroner, or with any exhibit retained by such officer, and with the indictment or indictments or inquisition against the appellant, or with an abstract or copy thereof or any part thereof or with any plea filed in the court of trial, and such officer shall forthwith furnish the same to the registrar. 21. Prosecutor at trial to be ascertained,] The proper officer of the court of trial shall ascertain and record in every case the name and address of the person, whether a private prosecutor or not, who is responsible for and is carrying on a prosecution in such NOTICES OF APPEAL AND PEEIOD FOR APPEALING. 75 court, and the name and address of the solicitor, if any, for the prosecution. 22. Notice of application for leave to appeal.] Where the Court of appeal has, on a notice of application for leave to appeal duly served, and in the form provided under these Rules, given an appellant leave to appeal, it shall not be necessary for such appellant to give any notice of appeal, but the notice of application for leave to appeal shall in such case be deemed to be a notice of appeal. 23. Abandonment of Appeal. ~\ An appellant at any time after he has duly served notice of appeal or of application for leave to appeal, or of application for extension of time within which under the Act such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the Form (III.) in the Schedule to these Rules to the registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Appeal. 24. Notice of application for extension of time for appealing] An application to the Court of Appeal for an extension of time within which notices may be given, shall be in the Form (IX.) in the Schedule hereto. Every person making an application for such extension of time, shall send to the registrar together with the proper Form of such application, a Form, duly filled up, of notice of appeal, or of notice of application for leave to appeal, appropriate to the ground or grounds upon which he desires to question his conviction or sentence, as the case may be. PROCEEDINGS BEFORE JUDGE OF APPEAL COURT UNDER SECTION 17. 25. How application for leave to appeal and other preliminary applications are to be dealt icith.] (a) Notice of application for leave to appeal, or for extension of time within which notice of appeal, or notice of application for leave to appeal shall be given under the Act, in the Forms in the Schedule hereto, and the answers to the questions in Forms (IV.), (V.), (VI.) and (VII.), which an appellant is, by these Rules required to make, in reference to legal aid being assigned to him, or to leave being granted to him to be present at the hearing of his appeal, shall be deemed to be applications to the Court of Appeal in such matters respectively. Procedure where judge of Court of Appeal refuses applications, under section 17 of Act.] (b) The registrar when any application mentioned in this Rule has been dealt with by such judge shall notify to the appellant the decision. In the event of such judge refusing all or any of such applications the registrar on notifying such refusal to the appellant shall forward to him Form (XIII.) in the Schedule hereto, which Form the appellant is hereby required to fill up and forthwith return to the registrar. If the appellant does not desire to have his said application or applications 70 RULES UNDER CRIMINAL APPEAL ACT, 1907. determined by the Court of Appeal as duly constituted for the hearing of appeals under the Act, or does not return within five days to the Registrar Form (XIV.) duly filled up by him, the refusal of his application or applications by such judge shall be final. If the appellant desires that his said application or applica- tions shall be determined by the Court of Appeal as duly constituted for the hearing of appeals under the Act, and is not legally represented, he may, if the Court of Appeal give him leave, be present at the hearing and determination by the Court of Appeal of his said application : Provided that an appellant who is legally represented shall not be entitled to be present without special leave of the Court of Appeal. When an appellant duly fills up and returns within the prescribed time to the registrar Form (XIV.) expressing a desire to be present at the hearing and determination by the Court of Appeal of the applications mentioned in this Rule, such form shall be deemed to be an application by the appellant for leave to be so present. And the registrar, on receiving the said form, shall take the necessary steps for placing the said application before the Court of Appeal. If the said application to be present is refused by the Court of Appeal, the registrar shall notify the appellant ; and if the said application is granted, the registrar shall notify the appellant and the governor of the prison wherein the appellant is in custody, and the prison commissioners, as provided by these Rules. For the purpose of constituting a Court of Appeal the judge who has refused any such application may sit as a member of such court, and take part in determining such application. Sittings of a judge under section 17.] (c) A judge of the Court of Appeal sitting under the provisions of section 17 of the Act may sit and act wherever convenient. PROCEDURE UNDER CROWN CASES ACT, 1848. 26. Procedure for adoption of Crown Cases Act, 1848.] (a) Where a person is entitled to appeal under the Act on grounds of appeal involving a question of law alone, and his appeal is not dealt with under the provisions of section 15, sub-section 2, of the Act, an application by him or by the respondent may at any time be made to the Court of Appeal that the questions of law raised in such appeal should be decided by the Court of Appeal in accordance with the procedure under the Crown Cases Act, 1848, as amended by the Act. And the Court of Appeal may upon such application, or upon a report made to them by the registrar that the procedure under the Crown Cases Act, 1848, as amended by the Act, would, in his opinion, be a more convenient method of dealing with the points of law raised in such appeal, make an order that the same shall be so dealt with. Alaierials to be supplied to judge for statement of spttial case.] (b) When an order has been made under this Rule, the registrar shall notify the judge of the court of trial thereof, and shall for- ward to him for the purpose of giving to him facilities in the statement of the case, a copy of the notice of appeal and any PROCEDURE UNDER CROWN CASES ACT, 1848. 77 supplemental or explanatory statement furnished by the appellant to the registrar and any other information or material which the registrar may think necessary or such judge may require. Judge to forward special case to registrar and copies to be supplied to appellant and respondent.'] (c) The judge of the court of trial shall forward a case stated by him in pursuance of this Rule to the registrar, together with all documents or other material received from the registrar, who shall on receiving the same send a copy of such case to the appellant and respondent respectively. TJiese Rules to apply to convicted persons where case stated under Cr own Cases Act, 1848.] (d) Where under the provisions of the Crown Cases Act, 1848, the judge of the court of trial states a case for the consideration of the Court for Crown Cases Reserved, the person convicted shall for the purposes of these Rules be deemed to be an appellant who has appealed under section 3 (a) of the Act, provided that in such case section 15, sub-section 2 thereof shall not apply. DUTIES OP DIRECTOR OP PUBLIC PROSECUTIONS. 27. Registrar's duties as to ascertaining respondent.] (a) When the registrar has received a notice of appeal, or a notice of appeal on grounds of law alone, which does not, in his opinion, fall within the provisions of section 15, sub-section 2, of the Act, or where leave to appeal is granted to any appellant, he shall forthwith ascertain from the person specified in Form (II.) as the prosecutor, unless such person shall be the director of public prosecutions, or a Government Department, or from the solicitor of such person, whether the prosecutor intends to undertake the defence of the appeal. And in the event of the prosecutor declining to undertake the defence of the appeal, notice to that effect shall be sent by the registrar to the director of public prosecutions. Where such prosecutor in the court of trial was the director of public prosecutions, the registrar shall notify him of such appeal. Prosecutor to afford all information, documents, etc. to registrar and director of public prosecutions.] (b) It shall be the duty of a prosecutor who declines to undertake the defence of an appeal, and of his solicitor, to furnish to the registrar and the director of public prosecutions, or either of them, any information, documents, matters, and things in his possession or under his control connected with the proceedings against the appellant, which the registrar or director of public prosecutions may require for the purposes of their duties under the Act. 28. Court 'may at any stage substitute director of public prosecutions for a private prosecutor.] Where the defence of an appeal is under- taken by a private prosecutor the Court of Appeal may, at any stage of the proceedings in such appeal, if it shall think right so to do, order that the director of public prosecutions or the solicitor of a Government Department shall take over the defence of the appeal and be responsible on behalf of the Crown for the further proceedings in the same. 78 RULES UNDER CRIMINAL APPEAL ACT, 1907. PROCEDURE ON APPLICATIONS FOR BAIL : BIGHTS OF SURETIES : ESTREAT OF RECOGNIZANCES. 29. Bail: Court of Appeal to specify amount and before whom recognizances to be taken.] (a) When the Court of Appeal under the Act admits an appellant to bail pending the determination of his appeal on an application by him duly made in compliance with these Rules, the court shall specify the amounts in which the appellant and his surety or sureties (if any be required) shall be bound by recognizance, and shall direct, if they think right so to do, before whom the recognizances of the appellant and his surety or sureties (if any) may be taken. Appellant's recognizances to be taken before a visiting justice : surety's recognisances before petty sessional court.] (b) In the event of the Court of Appeal not making any special order, or giving special directions under this Rule, the recognizances of the appellant may be taken before a justice of the peace being a member of the visiting committee of and at the prison in which he shall then be confined or the governor thereof, and the recog- nizances of his surety or sureties (if any) may be taken before any petty sessional court. Appellant and prison governor to receive notice of terms of bail.] (c) The registrar shall notify the appellant and the governor of the prison within which he is confined, the terms and conditions on which the court shall admit the appellant to bail under the Act. Police of district to assist petty sessional court in inquiring as to surety's sufficiency.'] (d) The said petty sessional court shall be entitled to require the assistance of the police acting within such petty sessional division, for the purpose of making inquiry as to the sufficiency or otherwise, of any person offering himself as a surety on behalf of any appellant who has, under the Act, been granted bail, and it shall be the duty of such police to give such assistance to and as and when required by a petty sessional court under this rule. Appellant's and surety's recognizances to be forwarded to regis- trar: clerk to give surety certificate of recognizances.] (e) After the recognizance of a surety has been duly taken under these Rules by such petty sessional court, the clerk thereof shall forward such recognizance to the registrar, and the governor of the prison in which the appellant is then confined shall, after the appellant's recognizance has been duly taken in pursuance of this Rule, forward the same to the registrar. The clerk shall after the recognizances of a surety are taken give to him a certificate in the Form (XV.) in the Schedule hereto, which such surety shall sign, and retain. Registrar on receiving recognizances in due form to notify governor of prison to release appellant.] (f) The registrar on being satisfied that the recognizances of the appellant and his surety or sureties (if any) are in due form and in compliance with the order of the court admitting the appellant to bail, shall send, in the Form (XII.) PEOCEDUBE ON APPLICATIONS FOB BAIL, ETC. 79 in the Schedule to these Rules, a notice to the governor of the prison in which the appellant shall then be confined. This notice, when received by the said governor shall be a sufficient authority to him to release the appellant from custody. Form of recognizance.] (g) The recognizances provided for in this Rule, shall be in the Forms (X.) and (XI.) in the Schedule hereto. Presence of appellant on ball, at hearing of his appeal.'] (h) An appellant who has been admitted to bail under the Act, shall by the order of the Court of Appeal or a judge thereof under which he was so admitted to bail be ordered to be and shall be personally present at each and every hearing of his appeal, and at the final determination thereof. The Court of Appeal may, in the event of such appellant not being present at any hearing of his appeal, if they think right so to do, decline to consider the appeal, and may proceed to summarily dismiss the same, and may issue a warrant for the apprehension of the appellant in the Form (XIX.) in the Schedule hereto. Provided that the Court of Appeal may consider the appeal in his absence, or make such other order as they think right. Varying order for bail by Court of Appeal.] (i) When an appellant is present before the Court of Appeal, such court may, on an application made by any person, or, if they think right so to do, without any application, make any order admitting the appellant to bail, or revoke or vary any such order previously made, or enlarge from time to time the recognizance of the appellant or of his sureties, or substitute any other surety for a surety previously bound, as they think right. Provisions for sureties discharging their obli-gations.] (j) Where the surety or sureties, for an appellant under the Act, upon whose recognizances such appellant has been released on bail by the Court of Criminal Appeal, suspects that the said appellant is about to depart out of England or Wales, or in any manner to fail to observe the conditions of his recognizances on which he was so released, such surety or sureties may lay an information before one of his Majesty's justices of the peace, acting in and for the petty sessional division in which the said appellant is, or is by such surety or sureties believed to be, or in which such surety or sureties may then be, in the Form (XVI.) in the Schedule hereto, and such justice shall thereupon issue a warrant in the Form (XVII.) in the Schedule hereto, for the apprehension of the said appellant. How appellant on bail to be dealt with on arrest at instance of sureties.] (k) The said appellant shall, on being apprehended under the said warrant, be brought before the petty sessional court in and for which the said justice acts before whom the said infor- mation was laid, or some other petty sessional court specified in the said warrant. The said petty sessional court shall, on verifica- tion of the said information by oath of the informant, by warrant of commitment in the Form (XVIII.) in the Schedule hereto, commit him to the prison to which persons charged with indictable offences before such petty sessional court are ordinarily committed. 80 BULES UNDER CRIMINAL APPEAL Ad, 1907. The governor of such prison shall, unless such prison was the prison from which the appellant was released on bail under these Rules, notify the prison commissioners of such commitment, as in this Rule mentioned. Where the appellant is by such petty sessional court committed to a prison which was not the prison from which he was released on bail after his conviction, the prison commissioners, subject to any order of the Court of Appeal, may transfer him to the prison from which he was so released. Arrext and commitment of appellant to be notified to registrar by clerk to petty sessional court.] (1) The clerk of the said petty sessional court on the commitment of any such appellant, shall forthwith notify the registrar to that effect, and forward to him the said information and the depositions in verification thereof token before such petty sessional court together with a copy of the said warrant of commitment. Power of Court of Appeal to revoke order for bail.] (m) At any time after an appellant has been released on bail under the Act, the Court of Appeal may, if satisfied that it is in the interest of justice so to do, revoke the order admitting him to bail, and issue a warrant in the Form (XIX.) in the Schedule hereto for his apprehension, and order him to be committed to prison. Gorerttor of prison OH commitment of appellant to notify registrar.] (n) When an appellant has been released on bail and has, under a warrant under these Rules, or by his surety or sureties been apprehended, and is in prison, the governor thereof shall forthwith notify the registrar, who shall take steps to inform the court thereof, and the Court of Appeal may give to the registrar such directions as to the appeal or otherwise as they shall think right. Sureties rights at common law preferred.] (o) Nothing in these Rules shall affect the lawful right of a surety to apprehend and surrender into custody the person for whose appearance he has become bound, and thereby to discharge himself of his suretyship. Estreat of recognizances.] (p) The Court of Appeal may, on any breach of the recognizances of the appellant, if it thinks right so to do, order such recognizances and those of his surety or sureties to be estreated, and the manner of such estreat shall be that provided for estreating recognizances under the Crown Office Rules, 1906 (Rule 115). 30. Duty of police to enquire and report as to appellant's means, for purposes of Act on request of registrar.] It shall be the duty of the chief officer of police of the district in which the appellant shall have resided before his conviction, or of the district from which he was committed, to enquire as to and to report to the registrar when applied to by him. upon the means and circumstances of any appellant where a question as to his means and circum- stances arises under the Act or these Rules. 31. Warders, etc., to attend sittings of Court of Appeal.] (a) The Prison Commissioners shall, on notice from the registrar, cause from time to time such sufficient number of male and female warders to PROCEDURE ON APPLICATIONS FOR BAIL, ETC. 81 attend the sittings of the Court of Appeal, as having regard to the list of appeals thereat they shall consider necessary. Appellant to surrender on appeal, be searched, and remain in custody until further dealt ivith.] (b) An appellant who is not in custody, shall, whenever his case is called on before the Court of Appeal, surrender himself to such persons as the court shall from time to time direct, and thereupon shall be searched by them, and shall be deemed to be in their lawful custody until further released on bail or otherwise dealt with as the court shall direct. 32. Registrar on application of appellant or respondent, or where he thinks necessary, to obtain documents, exhibits, etc., for purposes of appeal, and same to be open for inspection.] (a) The registrar may, on an application made to him by the appellant or respondent in any appeal, or where he considers the same to be necessary for the proper determination of any appeal or application, or shall, where directed by the Court of Appeal so to do, obtain and keep available for use by the Court of Appeal any documents, exhibits, or other things relating to the proceedings before the court, and pending the determination of the appeal, such documents, exhibits, or other things shall be open, as and when the registrar may arrange, for the inspection of any party interested. Court of Appeal may order production of any document or exhibits, etc.] (b) The Court of Criminal Appeal may, at any stage of an appeal, whenever they think it necessary or expedient in the interest of justice so to do, on the application of an appellant or respondent, order any document, exhibit, or other thing connected with the proceedings, to be produced to the registrar or before them, by any person having the custody or control thereof. Any order of the Court of Appeal under this Rule may be served as in this Rule provided. Service of orders.] (c) Service of any order made under this Rule shall be personal service, unless the court otherwise order, and, for the purpose of effecting due service thereof, the registrar may require the assistance of the metropolitan police, or may forward the order together with instructions to the chief officer of police of the county or borough in which the person is, or is believed to be, in whose custody or under whose control such document, exhibit, or other thing is ; and it shall be the duty of the metropolitan police or of such chief officer of police to carry out any directions of the registrar under this Rule. EXHIBITS IN COUKT OF TRIAL, How DEALT WITH. 33. Exhibits to which Rule 8 (a) relates to be returned to persons producing the same subject to order of court.] (a) Exhibits, other than such documents as are usually kept by the proper officer of the court of trial, shall, subject to any order which the Court of Appeal may make, be returned to the person who originally produced the same, provided that any such exhibit to which the provisions of section 6 of the Act relate shall not be so returned except under the direction of the Court of Appeal. 82 RULES UNDER CRIMINAL APPEAL ACT, 1907. NOTIFYING RESULT OF APPEALS. 34. On final determination of appeals, etc., registrar to notify appel- lant, prison governor, Prison Commissioners.] (a) On the final determination of any appeal under the Act or of any matter under section 17 of the Act, the registrar shall give to the appellant, if he is in custody and has not been present at such final determination, and to the Secretary of State, and to the governor of the prison in which the appellant then is, or from which he has been released on bail, or to which under such determination he is committed, and to the Prison Commissioners, notice of such determination in the Forms (XXIX.), (XXX.), (XXXI.) and (XXXII.), respectively provided for such cases in the Schedule hereto. In coxes of death sentence, notice of appeal and of final determination to be sent to Secretary of State.] (b) In any case of an appeal in relation to a conviction involving sentence of death, the registrar shall on receiving the notice of appeal or of application for leave to appeal, send a copy thereof to the Secretary of State, and on the final determination of any such appeal by the Court of Appeal shall forthwith notify the appellant, the Secretary of State, the governor of the prison in which the appellant then is or to which he is committed under such determination, and the Prison Commis- sioners thereof. 35. Registrar to notify officer of court of trial result of appeal.'} (a) The registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the proper officer of the court of trial the decision of the Court of Appeal in relation thereto, and also any orders or directions made or given by the court under the Act, or these Rules, in relation to such appeal or any matter connected therewith. Officer of court of trial to enter decision of court on records.] (b) The proper officer of the court of trial shall, on receiving the notification referred to in this Rule, enter the particulars thereof on the records of the court of which he is such officer. 36. Registrar after appeal to return original depositions, exhibit*, indictment, etc. to officer of court of trial when received from him.] Upon the final determination of an appeal for the purposes of which the registrar has obtained from the proper officer of the court of trial any original depositions, exhibits, indictment, inquisi- tion, plea, or other documents usually kept by the said officer, or forming part of the record of the court of trial, the registrar shall cause the same to be returned to such officer. LEGAL AID TO APPELLANTS. 37. Reports as to legal aid under section 15, sub-section 5, to be made to judge of court.] A report made by the registrar under section 15, sub-section 5, of the Act shall be made to a judge of the court, and any directions given thereupon by such judge shall be final. LEGAL AID TO APPELLANTS. 83 38. List of counsel and solicitors for purposes of Act to be prepared and maintained by clerics of assize.] (a) The clerk of assize on each circuit in England and Wales shall cause to be prepared, in such form as he thinks most convenient, a list of counsel usually attending courts of assize and county and borough quarter sessions held in the counties on his circuit who are willing to act as counsel for appellants, if and when ' nominated under the Act. In the preparation of such list the clerk of assize shall, as far as possible, indicate the towns or places on his circuit at which such counsel usually practise. The clerk of assize on each circuit shall also cause to be prepared in such form as he thinks most convenient a list of solicitors practising at places within counties comprising his circuit as shall be willing to act as solicitors on behalf of appellants, if and when nominated so to do, under the Criminal Appeal Act, 1907 ; and the clerk of assize may, for the purposes of preparing such list of solicitors, consult with the president of the Law Society, or the president or chairman of any local law society within the counties comprising his circuit. Such list shall be prepared and forwarded to the registrar as soon as may be after the 18th April, 1908, and, before the conclusion of the winter assize in each succeeding year, shall be similarly revised by, and, when revised, forwarded by the clerk of assize to the registrar. For the purposes of this Rule the quarter sessions for the counties of London and Middlesex respectively and the sessions of the Central Criminal Court shall be deemed to be courts of assize for their respective jurisdictions ; and the clerks of the peace of the said counties and the clerk of the Central Criminal Court shall be respectively deemed to be clerks of assize. Legal aid to be provided from such lists.] (b) When legal aid is assigned to an appellant, the Court of Appeal may give such directions as to the stage of the appeal at which such legal aid shall commence, and whether counsel only, or counsel and solicitor shall be assigned or otherwise as they think right. The registrar shall thereupon, subject to any special Order of the Court of appeal, select from such lists, or otherwise, a counsel or/and solicitor for the purpose of affoiding legal aid to an appellant under the directions of the Court of Appeal, having regard in so doing to the place at which the appellant was tried and the counsel or solicitor, if any, who represented the appellant at his trial, and the nature of the appeal. COPIES OF DOCUMENTS FOR USE OF APPELLANTS. 39. How appellant or respondent may obtain from registrar copies of documents or exhibits.] (a) At any time after notice of appeal or notice of application for leave to appeal has been given under the Act or these Rules, an appellant or respondent, or the solicitor or other person representing either of them, may obtain from the registrar copies of any documents or exhibits in his possession under the Act or these Rules for the purposes of such appeals. C.A. H 84 RULES UNDER CRIMINAL APPEAL ACT, 1907. Such copies shall be supplied by the registrar at such charges as may be provided in regulations as to rates and scales of payment to be made by the Treasury, and such charges shall be paid by stamps. Counsel and solicitor assigned to appellant may receive copies of documents and exhibit* free un hi* request.] (b) Where solicitor and counsel, or counsel only, are assigned to an appellant under the Act, copies of any documents or exhibits which they or he may request the registrar to supply shall without charge be supplied unless the registrar thinks that they are not necessary for the purpose of the appeal. Transcript of shorthand notes not to be supplied free except on order of judge or court.~\ (c) A transcript of the shorthand notes taken of the proceedings at the trial of any appellant shall not be supplied free of charge, except by an order of the Court of Appeal or a judge thereof, upon an application made by an appellant or by his counsel or solicitor assigned to him under the Act. Poor appellant not legally represented may obtain copy of documents or exhibits free.] (d) Where an appellant, who is not legally represented, requires from the registrar a copy of any document or exhibit in his custody for the purposes of his appeal, he may obtain it free of charge if the registrar thinks, under all the circumstances, it is desirable or necessary to supply the same to him. PROCEDURE AS TO WITNESSES BEFORE COURT OF APPEAL, AND THEIR EXAMINATION BEFORE EXAMINER. 40. Attendance of witness before Court of Appeal.] (a) Where the Court of Appeal have ordered any witness to attend and be examined before the court under section 9 (b) of the Act, an Order in the Form (XXV.) in the Schedule hereto shall be served upon such witness specifying the time and place at which to attend for such purpose. Application to court to hear witnesses.] (b) Such order may be made on the application at any time, of the appellant or respondent, but if the appellant is in custody and not legally represented the application shall be made by him in the Form (XXVI.) in the Schedule hereto. Order appointing examiner.]^-(c) Where the Court of Appeal order the examination of any witness to be conducted otherwise than before the court itself, such order shall specify the person appointed as examiner to take and the place of taking such examination and the witness or witnesses to be examined thereat. Registrar to furnish examiner with exhibits, etc., necessary for examination.] (d) The registrar shall furnish to the person appointed to take such examination any documents or exhibits and any other material relating to the said appeal as and when requested so to do. Such documents and exhibits and other material shall, after the examination has been concluded, be returned by the examiner, together with any depositions taken by him under this Rule to the registrar. PROCEDURE AS TO WITNESSES. 85 Notification of date of examination."] (e) When the examiner has appointed the day and time for the examination he shall request the registrar to notify the appellant or respondent and their legal representatives, if any, and when the appellant is in prison, the governor of that prison, thereof. The registrar shall cause to be served on every witness to be so examined a notice in the Form (XXVII.) in the Schedule hereto. Evidence to be given on oath.] (f) Every witness examined before an examiner under this Rule shall give his evidence upon oath to be administered by such examiner, except where any such witness, if giving evidence as a witness on a trial on indictment, need not be sworn. Deposition of witness, how to be taken.] (g) The examination of every such witness shall be taken in the form of a deposition in the same manner as is prescribed by section 17 of the Indictable Offences Act, 1848 (11 & 12 Viet. c. 42), and, unless otherwise ordered, shall be taken in private. The caption in the Form (XXIV.) in the Schedule hereto shall be attached to any such deposition. Travelling expenses of witnesses before examiner.] (h) Where any witness shall receive an order or notice to attend before the Court of Appeal or an examiner, the police officer serving the same may, if it appears to him necessary so to do, pay to him a reasonable sum, not exceeding the amount of the scale sanctioned by the Secretary of State, for the travelling expenses of such witness from his place of residence to the place named in such notice or order, and the sum so paid shall be certified by such officer to the registrar. Any expenses certified by the registrar under this Rule shall be paid as part of the expenses of a prosecution. Service of notices and orders under Mule.] (i) Any order or notice required by this Rule to be given to any witness may be served as an order under Rule 32 (c) hereof, and any such notice shall be deemed to be an order of the Court of Appeal on such witness to attend at the time and place specified therein. Presence of parties at examination of witnesses.] (j) The appellant and respondent, or counsel or solicitor on their behalf, shall be entitled to be present at and take part in any examination of any witness to which this Rule relates. 41. Proceedings under section 9, sub-section (d) on reference.] When an order of reference is made by the Court of Appeal under section 9 (d) of the Act, the question to be referred and the person to whom as special commissioner the same shall be referred shall be specified in such order. The Court of Appeal may in such order, or by giving directions as and when they from time to time shall think right, specify whether the appellant or respondent or any person on their behalf may be present at any examination or investigation or at any stage thereof as may be ordered under section 9 (d) of the Act, and specify any and what powers of the Court of Appeal under the Act or these Rules may be delegated to such special commissioner, and may require him from time to time to make interim reports to the Court of Appeal upon the question referred to him under section 9 (d) of the Act, and may, H 2 86 RULES UNDER CRIMINAL APPEAL ACT, 1907. if the appellant ia in custody, give leave to him to be present at any stage of such examination or investigation, and give the necessary directions to the governor of the prison in which such appellant is, accordingly, and may give directions to the registrar that copies of any report made by such special commissioner shall be furnished to the appellant and respondent or to counsel or solicitor ou their behalf. CAUSE LISTS. 42. Register of appeal* to be kept by the regi*trar.~\ (a) The registrar shall keep a register, in such form as he think right, of all cases in which he shall receive a notice of appeal, or notice of application for leave to appeal under the Act, which register shall be open for public inspection in such place and at such hours as the registrar, subject to the approval of the Court of Appeal, shall consider convenient. Registrar to keep general list of appeals .] (b) The registrar shall also take the necessary steps for preparing from time to time, a general list of cases to be dealt with by the Court of Appeal when fully constituted for hearing appeals under the Act, or for con- sidering applications which a judge of the court has, when sitting, under section 17 of the Act, refused to grant, and shall cause such list to be published at such times in such a manner and at such places as, subject to the approval of the Court of Appeal, he shall think convenient for giving due notice to any parties interested, of the hearing of such cases by the Court of Appeal. List of cases for daily sittings* of court. Notices to appellant* in custody."] (c) The registrar shall also prepare from such general list a list of appeals and applications which have been refused by a judge of the Court of Appeal when sitting under section 17 of the Act, which the Court of Appeal may consider on the days on which the Court of Appeal as fully constituted shall sit, and shall cause such list to be published at such times, in such places, and in such a manner as he, subject to the approval of the Court of Appeal, shall think convenient for giving due notice to any parties interested therein of the hearing of the cases in such list by the Court of Appeal. Provided that, where an appellant is in custody, and has obtained leave or is entitled to be present at the hearing and determination of his application or appeal, the registrar shall notify the appellant, the governor of the prison in which the appellant then is, and the Prison Commissioners, of the probable day on which his appeal or application will be heard. The Prison Commissioners shall take steps to transfer the appellant to a prison convenient for his appearance before the Court of Appeal, at such a reasonable time before the hearing as shall enable him to consult his legal adviser, if any. MISCELLANEOUS PROVISIONS. 43. Application not specially provided for how made.~\ (a) Except where otherwise provided in these Rules, any application to the Court of Appeal may be made by the appellant or respondent, or MISCELLANEOUS PROVISIONS. 87 by counsel on their behalf, orally or in writing, but, in regard to such applications, if the appellant is unrepresented and is in custody, and is not entitled or has not obtained leave to be present before the court, he shall make any such application by forwarding the same in writing to the registrar, who shall take the proper steps to obtain the decision of the court thereon. Audience of solicitors,] (b) In all proceedings before a judge under section 17 of the Act, and in all preliminary and interlocutory proceedings and applications except such as are heard before the full court, the parties thereto may be represented and appear by a solicitor alone. 44. Notice by registrar to appellant of results of all applications.] When the Court of Appeal has heard and dealt with any application under the Act or these Rules, the registrar shall (unless it appears to him unnecessary so to do) give to the appellant (if he is in custody and has not been present at the hearing of such application), notice of the decision of the Court of Appeal in relation to the said application. 45. Non-compliance with Rules not wilful may be waived by court.] Non-compliance on the part of an appellant with these Rules or with any rule of practice for the time being in force under the Act, shall not prevent the further prosecution of his appeal if the Court of Appeal or a judge thereof consider that such non- compliance was not wilful, and that the same may be waived or remedied by amendment or otherwise. The Court of Appeal or a judge thereof may in such manner as he or they think right, direct the appellant to remedy such non-compliance, and thereupon the appeal shall proceed. The registrar shall forthwith notify to the appellant any directions given by the court or the judge thereof under this Rule, where the appellant was not present at the time when such directions were given. 46. Enforcing duties under Rules.] The performance of any duty imposed upon any person under the Act or these Rules may be enforced by order of the Court of Appeal. 47. Warrants for arrest of appellants to be deemed to be warrants issued under Indictable Offences Act, 1848.] Any warrant for the apprehension of an appellant issued by the Court of Appeal shall be deemed to be, for all purposes, a warrant issued by a justice of the peace for the apprehension of a person charged with any indictable offence under the provisions of the Indictable Offences Act, 1848 (11 & 12 Viet. c. 42), or any Act amending the same. 48. A petitioner under section 19, sub-section (a) to be deemed an appellant for all purposes.] When the Secretary of State exercises his powers under section 19 (a) of the Act and refers the whole case to the Court of Appeal, the petitioner whose case is so dealt with shall be deemed to be for all the purposes of the Act or these Rules a person who has obtained from the Court of Appeal leave to appeal, and the Court of Appeal may proceed to deal with his case accordingly. 49. Payment of expenses under section 13.] The payments to be made in pursuance of orders by the Court of Appeal on a county 88 RULES UNDER CRIMINAL APPEAL ACT, 1907. or borough treasurer under section 1 3, sub-section (2) of the Act shall be payable by him either to the persons in whose favour such orders are made or to the solicitor of or assigned to the appellant in any case or to any police officer named in the order. Such payments may if and when convenient be made by cheque or post-office order. Orders for payment under this Rule shall be in the Form (XXVIII.) in the Schedule hereto. 50. Sitting* during long rotation."] The judges of the Court of Criminal Appeal shall make arrangements for any sittings that may be necessary between the 1st of August and the 12th of October. 51. Reference to court under section 19 (b).] Where the Secretary of State refers a point to the Court of Criminal Appeal under section 19 (b) of the Act, such court shall, unless they otherwise determine, consider such point in private. 17th March, 1908. CRIMINAL APPEAL EULES, 1908. ADDITIONAL KULE MADE, WITH THE APPROVAL OF THE LORD CHANCELLOR, BY THE LORD CHIEF JUSTICE AND THE JUDGES OF THE COURT OF CRIMINAL APPEAL. For the purpose of section 16 of the Act proceedings at the trial shall mean the evidence and any objections taken in the course thereof, any statement made by the prisoner, the summing up, and sentence of the judge of the court of trial, but unless otherwise ordered by such judge shall not include any part of the speeches of counsel or solicitor. 27th March, 1908. ( 89 ) INDEX TO FOEMS UNDEE CEIMINAL APPEAL EULES, 1908. Form. Rule by which provided. Description. Page. 1 6 (a), (b) Judge's certificate 90 2 20 (a) & Particulars of trial 90 27 (a). 3 23 Notice of abandonment 91 4 25 (a) Notice of appeal, question of law only 91 5 25 (a) Notice of appeal upon certificate of the judge of the court of trial 92 6 25 (a) Notice of application for leave to appeal against conviction under s. 3 (b) 93 7 25 (a) Notice of application for leave to appeal against sentence -------- 94 8 5(g) Declaration verifying transcript of shorthand notes 95 9 24 Notice of application for extension of time within which to appeal 95 10 29 (g) Recognizance of appeal of the appellant - 96 11 29 (g) Recognizance of appellant's sureties - 96 12 29 (f) Notice to governor to release appellant on bail - 97 13 25 (b) Notification to appellant of judge's decisions under s. 17 98 14 25 (b) Notice of appeal by appellant from judge under s. 17 98 15 29 (e) Certificate to surety 99 16 29 (j) Information of surety for arrest of the appellant 99 17 29 (j) Warrant on information of surety - 100 18 29 (k) Commitment of appellant on surety'sinformation 101 19 f 29 (h) \ \29(m)/ Warrant for arrest of appellant on bail 101 20 7(o) Recognizance of appellant sentenced to payment of a fine 102 21 7(o) Recognizance of sureties for appellant sentenced to a fine -------- 103 22 7(e) Notice to appellant sentenced to a fine, of breach of his recognizances - 103 23 7(e) Notice to surety for appellant of estreat of recognizance 104 24 25 40 (g) 40 (a) Caption for deposition of witness before examiner Order to witness to attend court for examination 104 105 26 27 40 (b) 40 (e) Appellant's application for further witnesses - Notice to witness to attend before examiner 105 106 28 49 Order for costs and expenses of appellant's case 106 29 34 (a) Notification to appellant of result of his appeal 108 30 34 (a) Notification to appellant of result of applica- tions under s. 17 108 31 34 (a) Notice to Secretary of State, governor and prison commissioners of result of applications under s. 17 109 32 34 (a) Notice to Secretary of State, governor and prison commissioners, of final hearing of appeal 109 33 8(0) List of exhibits 110 90 FORMS UNDER CRIMINAL APPEAL BULES, 1908. Form L CRIMINAL APPEAL ACT, 1907. JUDGE'S CERTIFICATE. In the Court of , holden at , in and for the , of B. r. Whereas the said was tried and convicted before me, the undersigned, in the said court on the day of , on an indictment charging him with [state shortly the offence, e.g., larceny, murder, forgery, etc.] and was thereupon sentenced by me to I do hereby certify that the case is a fit case for an appeal by the said to the Court of Criminal Appeal under section 3 (b) of the Criminal Appeal Act, 1907, upon the following grounds : [Here specify in general terms the groutula on which certificate granted.] (Signed) Judge or Commissioner of Assize. Recorder of the Borough of Chairman of Quarter Session for the County of Dated this day of 19 . Form II. CRIMINAL APPEAL ACT, 1907. R. r. PARTICULARS OP TRIAL. 1. Where tried ? 2. When tried ? 3. Name of judge, chairman, or recorder who tried ? 4. Verdict of jury ? 5. Sentence, and any orders made consequent thereon ? (a) Restitution of property. (b) Orders referred to in section 21 of the Act, or in Rules. 6. Copy of the list of exhibits directed by these Rules to be kept by the proper officer of the court of trial. 7. Whether a certificate under section 3 (b) was given. 8. Name and address of the prosecutor ? State names of counsel and/or solicitor for prosecution, and address of solicitor. 9. Whether appellant was defended by counsel and solicitor privately, or under Poor Prisoners' Defence Act, 1904, or by counsel at request of court ? Give names of counsel ami /or solicitor for appellant and address of solicitor. I Name and address of shorthand writer FORMS UNDER CRIMINAL APPEAL EULES, 1908. 91 11. Whether appellant bailed before trial, if so in what amount, and whether with sureties, if so in what amount ? (Signed) Clerk of assize, or clerk of the peace, or officer of the court of trial. Dated this day of 190 . N.B. Particulars from judge's copy of the calendar, referring to the above-named person should be inserted here, or the calendar forwarded with this form to the registrar. Form III. CRIMINAL APPEAL ACT, 1907. R. v. NOTICE OF ABANDONMENT. I, having been convicted of at the assizes at [at the quarter sessions for the of ] and having been desirous of appealing and having duly sent notice to that effect to the Court of Appeal against my said conviction [or the sentence of passed upon me on my said conviction] do hereby give you notice that I do not intend further to prosecute my appeal, but that I hereby abandon all further proceedings in regard thereto as from the date hereof. (Signed) (Witness) Dated this day of 190 . To the registrar of the Court of Criminal Appeal. Form IV. CRIMINAL APPEAL ACT, 1907. NOTICE OF APPEAL. Question of Law only. To the registrar of the Court of Criminal Appeal. I, having been convicted of the offence of [here state the offence, e.g., larceny, murder, forgery, cte.],and being now a prisoner in his Majesty's prison at [or, where appellant for any reason not in custody, now living at ] do hereby give you notice of appeal against my conviction (particulars of which hereinafter appear) to the Court of Criminal Appeal on questions of law, that is to say [Here state as clearly as you are able the question or questions of law on which you desire to appeal.'} (or mark) (Signed) Appellant. Signature and address of witness attesting mark. Dated this day of , 190 . 92 FORMS UNDER CRIMINAL APPEAL RULES, 1908. Particulars of Trial and Conviction. 1. Date of trial. \ 2. In what court tried. [Fill in all 3. Sentence. > these 4. Whether above questions of law were raised I particulars.] at the trial ? / You are required to answer the following questions : 1. If you desire to apply to the Court of Criminal Appeal to assign you legal aid on your -appeal, state your position in life, and amount of wages, or salary, etc., and any other facts which you submit show reasons for legal aid being assigned to you. 2. Do you desire to be present on the hearing of your appeal by the Court of Criminal Appeal ? If you do so desire, state the reasons upon which you submit the said court should give you leave to be present. 3. The Court of Criminal Appeal will, if you desire it, consider your case and argument if put into writing by you or on your behalf, instead of your case and argument being presented orally. If you desire to present your case and argument in writing, set out here as fully as you think right your case and argument in support of your appeal. Form V. CRIMINAL APPEAL ACT, 1907. NOTICE OF APPEAL UPON CERTIFICATE OF THE JUDGE OF THE COURT OF TRIAL. To the registrar of the Court of Criminal Appeal. I, having been convicted of the offence of [here state tiie offence, e.g., larceny, murder, forgery, etc.] and being now a prisoner in his Majesty's prison at [or, where appellant for any reason not in custody, now living at ] and having duly obtained a certificate which is hereto annexed from the judge before whom I was tried for the said offence, that it is a fit case for appeal, do hereby give you notice of appeal against my said conviction (particulars of which hereinafter appear) to the Court of Criminal Appeal. or (mark) (Signed) Appellant. Signature and address of witness attesting mark. Dated this day of 19 . Particulars of Trial and Conviction. 1. Date of trial. \ 2. In what court tried. > [Fill in all these particulars.] 3. Sentence. ) You are required to answer the following questions : 1. If you desire to apply to the Court of Criminal Appeal to assign you legal aid on your appeal, state your position in FORMS UNDER CRIMINAL APPEAL EULES, 1908. 93 life, amount of wages, or salary, etc., and any other facts which you submit show reasons for legal aid being assigned to you. 2. Do you desire to be present on the hearing of your appeal by the Court of Criminal Appeal ? 3. The Court of Criminal Appeal will, if you desire it, consider your case and argument if put into writing by you or on your behalf instead of your case and argument being pre- sented orally. If you desire to present your case and argument in writing, set out here as fully as you think right your case and argument in support of your appeal. You must send with this notice to the registrar the certificate of the judge who tried you. Form VI. CRIMINAL APPEAL ACT, 1907. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST A CONVICTION, UNDER SECTION 3 (b). To the Registrar of the Court of Criminal Appeal. I, having been convicted of the offence of [here state the offence, e.g., larceny, murder, forgery, etc.] and [being now a prisoner in his Majesty's] prison at [or, lohere applicant for any reason not in custody, now living at ] and being desirous of appealing against my said conviction do hereby give you notice that I hereby apply to the Court of Criminal Appeal for leave to appeal against my said conviction on the grounds hereinafter set forth, (or mark) (Signed) Applicant. Signature and address of witness attesting mark. Dated this .day of 19 . Particulars of Trial and Conviction. 1. Date of trial. \ 2. In what court tried. I [Fill in all these particulars.] 3. Sentence. ) Grounds for application. [Here state as clearly and concisely as possible the grounds on which you desire to appeal against your conviction.] You are required to answer the following questions : 1. If you desire to apply to the Court of Criminal Appeal to assign you legal aid on your appeal, state your position in life, amount of wages or salary, etc., and any other facts which you submit show reasons for legal aid being assigned to you. 2. If you desire to be present when the Court of Criminal Appeal considers your present application for leave to appeal, state the grounds on which you submit that the Court of Criminal Appeal should give you leave to be present thereat. 94 FORMS UNDER CRIMINAL APPEAL RULES, 1908. 3. The Court of Criminal Appeal will, if you desire it, consider your case and argument if put into writing by yon or on your behalf, instead of your case and argument being pre- sented orally. If you desire to present your case and argument in writing, set out here as fully as you think right your case and argument in support of your appeal. State if you desire to be present at the final hearing of your appeal. Form VIL CRIMINAL APPEAL ACT, 1907. NOTICE OF APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE. To the Eegistrar of the Court of Criminal Appeal. I, having been convicted of the offence of [here state the offence, e.g., larceny, murder, forgery, etc.] and being now a prisoner in his Majesty's prison at [or, where appellant for any reason not in custody, now living at ] do hereby give you notice that I desire to apply to the Court of Criminal Appeal for leave to appeal to the said court against the sentence of passed upon me for the said offence, on the following grounds : [Here set fortii Vie grounds on which you desire to question the sentence.] (or mark) (Signed) Appellant. Signature and address of witness attesting mark. Dated this day of 19 . Particulars of Trial and Conviction. 1. Date when sentence passed. ) r . ., .. , n 2. In what court tried. } 1 FM '" al1 theie *****"! You are required to answer the following questions : 1. If you desire to apply to the Court of Criminal Appeal to assign you legal aid on your appeal, state your position in life, wages, salary, etc., and any other facts which you submit show reason for legal aid being assigned to you. 2. If you desire to be present when the Court of Criminal Appeal considers your present application for leave to appeal, state the grounds on which you submit that the Court of Criminal Appeal should give you leave to be present thereat. State if you desire to be present at the final hearing of your appeal. 3. The Court of Criminal Appeal will, if you desire it, consider your case and argument if put into writing by yon or on your behalf instead of your case and argument being pre- sented orally. If you desire to present your case and argument in writing, set out here as fully as you think right your case and argument in support of your appeal FOKMS UNDER CRIMINAL APPEAL KULES, 1908. 95 Form VIII. CRIMINAL APPEAL ACT, 1907. DECLARATION VERIFYING TRANSCRIPT OF SHORTHAND NOTES. I, of , do solemnly and sincerely declare that, having been required by the registrar of the Court of Criminal Appeal to furnish to him a transcript of the shorthand note relating to the trial [or other proceeding] in relation to , which shorthand note is now produced and shown to me marked , and pur- porting to have been signed and certified by [or signed and certified by me], I have made a correct and complete transcript thereof to the best of my skill and ability in pursuance of the said requirement, which said transcript is now shown to me marked " B." And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act, 1835. Dated this day of , 19 . (Signed) Form IX. CRIMINAL APPEAL ACT, 1907. NOTICE OF APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL. To the Registrar of the Court of Criminal Appeal. I, having been convicted of the offence of [here state the offence, e.g., larceny, murder, forgery, etc.'] at the court of held at in this of on the day of , A.D. 19 , and being now a prisoner in his Majesty's prison at [or, where appellant for any reason not in custody, now living at ] give you notice, that I hereby apply to the Court of Criminal Appeal for an extension of the time within which I may give notice of appeal [or notice of application for leave to appeal], on the grounds following [Here set out clearly and concisely the reasons for the delay in giving such notice, and the grounds on which you submit the court should extend the time.] (Signed) (or mark) Appellant. Signature and address of Witness attesting mark. Dated this day of , 19 . You are required to send to the registrar of the Court of Criminal Appeal, duly filled up, and with the questions appearing thereon properly answered, Form IV., if your proposed appeal involves a question of law alone ; or Form V. if you have obtained the certificate of the judge of the court of trial ; or Form VI. if you have not obtained such certificate ; or Form VII. if you desire to appeal against your sentence only, together with this notice. 96 FORMS UNDER CRIMINAL APPEAL RULES, 1908. Form X. CRIMINAL APPEAL ACT, 1907. RECOGNIZANCE OP BAIL OF APPELLANT. Be it remembered that whereas was convicted of on the day of , 19 (and was thereupon sentenced to ), and now is in lawful custody in his Majesty's prison at and has duly appealed against his conviction (and seotence) to the Court of Criminal Appeal, and has applied to the Raid court for bail pending the determination of his appeal, and the said court has granted him bail on entering into his own recognizances in the sum of (and with sureties each in the sum of ), the said personally cometh before me the undersigned being one of his Majesty's justices of the peace acting in and for the of and a member of the visiting committee of the said prison [or governor of the said prison], and acknowledges himself to owe to our said Lord the King the said sum of , of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements to the use of our said Lord the King, his heirs and successors, if he the said fail in the condition endorsed. Taken and acknowledged this day of , 19 , at the prison at , before me, Justice of the Peace. Condition. The condition of the within written recognizance is such that if he the said shall personally appear and surrender himself at and before the Court of Criminal Appeal at each and every hearing of his appeal to such court and at the final determination thereof and to then and there abide by the judgment of the said court and not to depart or be absent from such court at any such hearing without the leave of the said court, and in the meantime not to depart out of England or Wales, then this recognizance to be void or else to stand in full force and effect. The following to be filled up by the appellant and signed by him : When released on bail my residence, to which any notices, etc., are to be addressed, will be as follows : (Signed) Appellant. Form XI. CRIMINAL APPEAL ACT, 1907. RECOGNIZANCE OF APPELLANT'S SURETIES. Be it remembered that on this day of , 19 , of , (occupation) and of , (occupation) personally cnme before us the undersigned being (two) of his Majesty's justices of the peace sitting at a petty sessional court at in FORMS UNDER CRIMINAL APPEAL KtJLES, 1908. 97 the of and severally acknowledged themselves to owe to our Lord the King the several sums following, that is to say, the said the sum of , and the said the sum of , of good and lawful money of Great Britain, to be made and levied of their goods and chattels, lands and tenements, respectively, to the use of the said Lord the King, his heirs and successors, if now in lawful custody in his Majesty's prison at , fail in the condition hereon endorsed. Taken and acknowledged before (us) the undersigned, the day and year first above mentioned. Justices of the Peace. Condition. The condition of the within written recognizance is such that whereas the said having been convicted of and now in such lawful custody as before-mentioned (under a sentence of for such offence), has duly appealed to the Court of Criminal Appeal against his said conviction (and sentence), and having applied to the said court for bail, pending the determination of his said appeal has been granted bail on his entering into recognizance in the sum of , with sureties each in the sum of , if the said shall personally appear and surrender himself at and before the said court at each and every hearing of his said appeal to such court and at the final determi- nation thereof, and to there and then abide by the judgment of the said court and not depart or be absent from the said court at any such hearing without the leave of the court, and in the mean- time not to depart out of England and Wales, then this recognizance to be void or else to stand in full force and effect. Form XII. CRIMINAL APPEAL ACT, 1907. NOTICE TO GOVERNOR TO RELEASE APPELLANT ON BAIL. E. v. To the Governor of his Majesty's prison at Whereas has duly appealed to the Court of Criminal Appeal against his conviction for (and sentence of ), and having duly applied to the said court has been granted bail by the said court pending the determination of his said appeal on entering into recognizances himself in the sum of , (and with sureties each in the sum of ,) in the forms provided under the said Act. And whereas I, the registrar of the said court, have been given to understand that the said is now in your lawful custody in the said prison under the said conviction and sentence. And whereas I have received a recog- nizance of the said from you, (and recognizances from sureties for the said ), and the said recognizances are in due form and in compliance with the order of the said Court of Appeal, admitting the said to bail. 98 FORMS UNDER CRIMINAL APPEAL RULES, 1908. Now I do give you notice that if the said do remain in your custody under the said conviction (and sentence) and for no other cause you shall on receipt of this notice suffer him to go at large. And this notice shall be your authority in that behalf. Registrar of the Court of Criminal Appeal. Dated the day of , 19 . Form XHI. CRIMINAL APPEAL ACT, 1907. NOTIFICATION TO APPELLANT OF JUDGE'S DECISION UNDER s. 17. R. r. I hereby give you notice that a judge of the Court of Criminal Appeal having considered your application for (a) leave to appeal ; [Strike out (b) for extension of time within which notice j L , , of appeal or of application for leave to appeal may I . ^ be given ; (c) legal aid to be assigned to you ; [ (d) permission to you to be present at the hearing I of any proceedings in relation to your appeal ; has refused the applications marked (and has granted your applications marked ). If you desire to have the above-mentioned applications which have been refused determined by the Court of Criminal Appeal, you are required to fill up the enclosed form and return it to me forthwith. Dated this day of 190 . (Signed) Registrar. To the above-named Form XIV. CRIMINAL APPEAL ACT, 1907. NOTICE OF APPEAL BY APPELLANT FROM JUDGE UNDER s. 17. R. v. I, having received your notification that my applications for (a) leave to appeal ; p Tfonainn rvf tVi time within wVrirli nnfirvi L (b) for extension of the time within which notice of appeal or application for leave to appeal may be given ; (c) legal aid to be assigned to me ; (d) permission to me to be present at the hearing of any proceedings in relation to my appeal ; have been refused ; any of those which hare not been made or which have been granted.] FORMS UNDEE CRIMINAL APPEAL KULES, 1908. 99 do hereby give you notice that I desire that the said applications shall be considered and determined by the Court of Criminal Appeal [and that as I am not legally represented I desire to be present at the determination of my said applications.] [ Strike out this if you do not desire to be present.] (Signed) Appellant. Witness attesting mark. To the registrar of the Court of Criminal Appeal. Dated this day of ,190 . If you desire to state any reasons in addition to those set out by you in your original notice upon which you submit that the Court of Criminal Appeal should grant your said applications, youjmay do so in the space below. Form XV. CRIMINAL APPEAL ACT, 1907. CERTIFICATE TO SURETY. E. v. This is to certify that you [here fill in surety's name and address] of , whose signature is below, have been accepted by the petty sessional court acting in and for the petty sessional division of , on this day of , A.D. 190 , as surety for the above-named in the sum of , for the due appearance of the said before the Court of Criminal Appeal at each and every hearing of his appeal and at the final determination thereof, and that the said shall then and there abide by the judgment of the said court and not depart or be absent from such court at any such hearing without the leave of the said court, and in the meantime not to depart out of England or Wales. And that your said recognizance will be duly forwarded by me to the registrar of the Court of Criminal Appeal. (Signed) Clerk of the said court. I acknowledge that the above certificate is correct. (Signed) Surety. Form XVI. CRIMINAL APPEAL ACT, 1907. INFORMATION OF SURETY FOR ARREST OF APPELLANT. E. v. Appellant. ( ) } The information of [here fill in the name, address to wit J and description of surety] of laid before me the undersigned one of his Majesty's justices of the peace acting in and for the petty sessional division of upon an application for a warrant for the apprehension of [here state appellant's name C.A. I 100 FORMS UNDER CRIMINAL APPEAL KULES, 1908. mid address if known} and the deposition of the said in support thereof on the day of The said [here fill in the name, address and description of surety} saith as follows : I, [hfrefill in the name, address anddfncription of surety"] do say that the above-named [here state appellant's name and address if knovm} having been granted bail by the Court of Criminal Appeal, himself in the sum of , and with surety in the sum of , was released on such bail on condition that he should personally appear and be present at and before the Court of Criminal Appeal at each and every hearing of his appeal and at the final determination thereof and to then and there abide by the judgment of the said court and not to depart or be absent from such court on any such hearing without the leave of the said court and in the meantime not to depart out of England or Wales. And that I became surety for the performance of the said conditions by the said in the sum of , a certificate whereof signed by the clerk of the petty sessional division of and by me is now shown to me marked (a). And that I suspect that the said is about to depart out of England or Wales [or state in what manner the appellant is believed to be about to fail in the observance of his recognizances} and I there- fore desire to surrender the said into custody and thereby discharge myself from my said recognizances. I verily believe that the said is now in the petty sessional division of (Signed) Surety. Laid before me the day and year first above written. (Signed) ( ) Justice of the Peace. Form XVH. WARRANT ON INFORMATION OF SURETY. ( ) ) To the constables of the metropolitan police force [or to wit. ) as the case may be]. Whereas information hath been duly laid before me the under- signed by of for that [here fill in the appellant's name} having been released on bail by the Court of Criminal Appeal on recognizances conditioned to appear and to be present at and before the Court of Criminal Appeal at each and every hearing of his appeal and at the final determination thereof and to then and there abide by the judgment of the said court and not to depart or be absent from such court on any such hearing without the leave of the said court and in the meantime not to depart out of England or Wales. And that the said [here fill in the surety s name} doth suspect that the said is about to depart out of England or Wales [or as the case may be}. And that the .said is believed to be within the petty sessional division of . These are therefore to authorise you the said con- stables forthwith to apprehend the said and to bring him FORMS UNDER CRIMINAL APPEAL RULES, 1908. 101 before the petty sessional court of to the intent that he may be committed to his Majesty's prison at and there to be detained according to law. Given under my hand and seal this , day of , A.D. 190 . (Signed) ( ) Justice of the Peace. Acting in and for the petty sessional division of in the of Form XVIII. COMMITMENT OP APPELLANT ON SURETY'S INFORMATION. , x \ To the constables of the metropolitan police force [or ^ * f as the case may be~\ and to the governor of his n ' ) Majesty's prison at Whereas on the day of information was laid before one of his Majesty's justices of the peace acting in and for the county of upon an application for a warrant for the appre- hension of for that he being a prisoner released on bail by the Court of Criminal Appeal was believed and suspected of being about to fail to observe the conditions of his recognizance by the said his surety. And that the said was then desirous of surrendering the said And whereas the said [appellant] being now before the petty sessional court of and surrendered by the said in discharge of his recognizances, you are therefore hereby commanded forthwith to deliver him the said to the governor of his Majesty's prison at together with this warrant of commitment and you the said governor are required to receive the said into your custody in the said prison and there safely to keep him according to law. Given under our hands and seal this day of , A.D. 190 . (Signed) ( ) ( ) Justices of the peace for the said petty sessional division. Form XIX. CRIMINAL APPEAL ACT, 1907. WARRANT FOR ARREST OF APPELLANT ON BAIL. R. v. (In the Court of Criminal Appeal.) To the constables of the Metropolitan Police Force [or as the case may be'], and to the governor of his Majesty's prison at (Warrant issued by Court of Appeal.) Whereas an appellant in the Court of Criminal Appeal has been released by the said court on bail, and it has now been i 2 102 FORMS UNDER CRIMINAL APPEAL RULES, 1908. ordered by the said court that a warrant be issued for the appre- hension of the said These are therefore to command you the said constables forth- with to apprehend the said and to bring him to the governor of the said prison, and there deliver him with this warrant into the custody of the said governor and you the said governor are hereby required to receive the said into your custody in the said prison and there safely to keep him until further order of the said court. (Signed) , (President of the Court of Criminal Appeal). Dated this day of , 190 . Form XX. CRIMINAL APPEAL ACT, 1907. RECOGNIZANCE OF APPELLANT SENTENCED TO PAYMENT OF A FINE. ( )) Be it remembered that whereas of was on the to wit. j day of , A.D. 190 , convicted of and was thereupon sentenced to pay the sum of as a fine for his said offence by the [here fill in the court of trial} and has intimated to the said court that he desires to appeal against his said conviction on a question of law alone [or upon a certificate of the judge of the said court that his is a fit case for appeal]. And whereas the said court considers that the said appellant may in lieu of payment at and upon his said conviction of the said sum, be ordered to enter into recognizance of bail himself in the sum of and with sureties, each in the sum of to prosecute his said appeal before the Court of Criminal Appeal. The said doth hereby acknowledge himself to owe to our Lord the King the said sum of of good and lawful money of Great Britain, to be made and levied of his goods and chattels lands and tenements to the use of our said Lord the King his heirs and successors if he the said fail in the condition indorsed. Taken and acknowledged this day of at the said court, at and before the judge of the said Court. (Signed) , Clerk of the peace [or Clerk of assize, as the case may be]. Condition. The condition of the within written recognizance is such that if the said of shall personally appeal and be present at and before the Court of Criminal Appeal at each and every hearing of his appeal to such court, and at the final determination thereof and then and there to prosecute his said appeal and abide by the judgment of the said court, and not to depart or be absent from such court at any such hearing without leave of the said court, and to pay the said sum of , or such sum as the said court may order to the registrar thereof, then this recognizance shall be void, otherwise of full force and effect. FORMS UNDER CRIMINAL APPEAL KULES, 1908. 103 Form XXI. CRIMINAL APPEAL ACT, 1907. RECOGNIZANCE OP SURETIES FOR APPELLANTS SENTENCED TO A FINE. ( )) Be it remembered that on the day of 190 , to wit. / of (occupation) and of (occupation) personally came before the court of [here fill in name of court of trial] and severally acknowledge themselves to owe to our lord the King the several sums following, that is to say, the said the sum of and the said the sum of of good and lawful money of Great Britain, to be made and levied of their goods and chattels lands and tenements respectively to the use of our said lord the King his heirs and successors if now before the said court fail in the condition hereon endorsed. Taken and acknowledged before the said court of on the day and year first above mentioned. (Signed) Clerk of the peace or Clerk of assize [as the case may be]. Condition. The condition of the within written recognizance is such that whereas the said having been convicted of and having been sentenced to pay a fine of for his said offence, and having now intimated his desire to appeal on question of law alone [or with the certificate of the judge of this court] to the Court of Criminal Appeal against the said conviction, and having, in lieu of payment at and upon his said conviction of the said sum of , been ordered to enter into recognizance of bail himself in the sum of and with sureties in the sum of if the said shall personally appear and be present at and before the Court of Criminal Appeal at each and every hearing of his appeal to such court and at the final determination thereof, and then and there to prosecute his said appeal and abide by the judgment of the said court, and not to depart or be absent from such court at any such hearing without the leave of the said court, then this recognizance to be void, or else to stand in full force and effect. Form XXII. CRIMINAL APPEAL ACT, 1907. NOTICE TO APPELLANT SENTENCED TO FINE, OP BREACH OP HIS RECOGNIZANCES. R. v. To the above named appellant. Whereas you were convicted on the day of 190 of the offence of and were sentenced to the payment of , and in default of such payment to imprisonment, and that under 104 FORMS UNDER CRIMINAL APPEAL KULES, 1908. the Criminal Appeal Rules, 1908, you entered into recognizances in the sum of , with sureties in the sum of each to prosecute your appeal, and whereas 10 days have elapsed since your said conviction, and no notice of appeal has been served by you, now I hereby give you notice that unless you attend at the sitting of the Court of Criminal Appeal to be holden on day, the day of , and then shew good cause to the contrary, the court may order an estreat of your recognizances and those of your sureties, or may otherwise deal with you according to law. (Signed) Registrar of the Court of Criminal Appeal. Form XXIII. CRIMINAL APPEAL ACT, 1907. NOTICE TO SURETY FOR APPELLANT OF ESTREAT OF RECOGNIZANCE. R. P. To [fill in here surety's name and address] of Whereas you the above named, became duly bound in recog- nizances as surety, for that the said having been convicted of and for his said offence fined the sum of , should duly prosecute an appeal in relation to his said conviction before the Court of Criminal Appeal, and whereas the said has not so prosecuted his appeal, now I hereby give you notice that at the sitting of the Court of Criminal Appeal on next your recognizances may be ordered to be estreated, unless you then show good cause to the contrary. (Signed) Registrar of the Court of Criminal Appeal. Form XXTV. CRIMINAL APPEAL ACT, 1907. CAPTION FOR DEPOSITION OF WITNESS EXAMINED BEFORE EXAMINER. R. v. The depositions (on oath) taken before me the undersigned, being an examiner duly appointed by the Court of Criminal Appeal in that behalf, of of and of witnesses, examined before me under an order of the said court dated day of 190 , in the presence of the said appellant [or of his counsel and solicitor] and the respondent [or his counsel and solicitor] at on the day of which said appellant and respondent (personally or by their counsel and solicitors respectively) had full opportunity of asking questions of the said witnesses, to whom the depositions following were read by me before being signed by them the said witnesses respectively. FOBMS UNDER CRIMINAL APPEAL KULES, 1908. 105 The deposition of of who (upon oath duly administered by me) saith as follows : \_Herefollows deposition.] (Signed) Witness. Taken before me this day of 190 . Examiner. Form XXV. CRIMINAL APPEAL ACT, 1907. ORDER TO WITNESS TO ATTEND COURT FOR EXAMINATION. R. v. To of [ame, etc. of witness.] Whereas on good cause shown to the Court of Criminal Appeal you have been ordered to attend and be examined as a witness before such court upon the appeal of the above named this is to give you notice to attend before the said court on the day of , 190 , at the [Eoyal Courts of Justice, Strand, London] at o'clock in the noon. You are also required to have with you at the said time and place any books, papers or other things relating to the said appeal which you may have had notice so to produce. Registrar. Dated day of 190 . Form XXVI. CRIMINAL APPEAL ACT, 1907. APPELLANT'S APPLICATION FOR FURTHER WITNESSES. R. v. I, , having appealed to the Court of Criminal Appeal hereby request you to take notice that I desire that the said court shall order the witness [es] hereinafter specified to attend the court and be examined on my behalf. (Signed) [or mark] Appellant. [Signature of witness attesting mark.] Dated this day of 190 . You are required to fill up the following Form and sign the same : 1. Name and address of witness. 2. Whether such witness has been examined at trial. 3. If not, state the reason why he was not so examined. 4. On what matters do you wish him to be examined on the appeal. State shortly the evidence you think he can give. 106 FORMS UNDER CRIMINAL APPEAL KULES, 1908. Form XXVTL CRIMINAL APPEAL ACT, 1907. NOTICE TO WITNESS TO ATTEND BEFORE EXAMINER. R. r. To of [name, etc. of witness."] Whereas on good cause shown to the Court of Criminal Appeal you have been ordered to be examined as a witness upon the appeal of the above named, and your deposition to be taken for the use of the said court. This is to give you notice to attend at [specify place of examination] on the day of 190 , before {fill in examiner's name] at o'clock in the noon. You are also required to have with you at the said time and place any books, papers or other things under your control or in your possession in any manner relating to the said appeal of which you may have had notice so to produce. Registrar. Dated the day of , 190 . Form XXVIIL CRIMINAL APPEAL ACT, 1907. ORDER FOR COSTS AND EXPENSES OF APPELLANT'S CASE. R. r. To the Treasurer for the [county] of Whereas the above-named was tried and convicted at the assizes [or quarter sessions] for the [county] of on the day of 190 . And whereas the said has appealed to the Court of Criminal Appeal and such appeal has been finally determined by that court, and whereas the costs and expenses set forth in the Schedule hereto have been incurred in connection with the appeal of the above-named and have been allowed by the Court of Criminal Appeal. Now it is hereby ordered that the treasurer of the said [county] do pay to the persons to whom they are respec- tively due the amounts appearing against their respective names in the Schedule hereto. Dated this day of , 190 . By the Court. Registrar of the Court of Criminal Appeal. FORMS UNDER CRIMINAL APPEAL EULES, 1908. 107 The Schedule above referred to. Name of Payee. 1. Address of Payee. 2. Nature of Expenses. 3. Amount. 4. A. Professional charges, and expenses of solicitor as- signed to appellant - B. Fees of counsel assigned to appellant - ... C. Expenses of appellant's ap- pearance on appeal and on proceedings preliminary or incidental thereto D. Expenses of and incidental to examination of wit- nesses by an examiner appointed by the court other than the witnesses' expenses - E. Expenses of and incidental to any reference of a question to a special com- missioner .... F. Special commissioner's fee - G. Assessor's fee H.* . . . a witness for his attendance at during days and nights . ... For travelling from Mileage Railway fare Total . d. By the court, Registrar of the Court of Criminal Appeal. * Insert name and address of each witness and allowance for attending court of examiner or special commissioner, as the case may be. If the witness's allowances or any part thereof have been advanced and paid to such witness under the Criminal Appeal Rules, 1908, by any police officer then insert such officer's name and address in columns 1 and 2, together with a note to this effect. 108 FORMS UNDER CRIMINAL APPEAL RULES, 1908. Form XXTX. CRIMINAL APPEAL ACT, 1907. NOTIFICATION TO APPELLANT OF RESULT OF HIS APPEAL. R. v. To the above-named appellant. This is to give you notice that the Court of Criminal Appeal, having considered the matter of your appeal, have finally determined the same, and have this day given judgment to the effect following [here shortly staff the judgment of the court, e.g., that your appeal be dismissed or that the sentence against which you appealed be altered from to or as the case may be]. Signed Registrar of the Court of Criminal Appeal. Dated this day of , A.D. 190 . Form XXX, CRIMINAL APPEAL ACT, 1907. NOTIFICATION TO APPELLANT OF RESULT OF APPLICATION UNDER s. 17. R. r. To the above named appellant. This is to give you notice that the Court of Criminal Appeal have considered the matter of your application for (a) leave to appeal to the said court ; (b) leave to extend the time within which you may give notice of appeal or of application for leave to appeal ; (c) legal aid to be assigned to you ; (d) permission to be present during the proceedings in your appeal ; and have finally determined the same and have this day given judgment to the effect following [here net out decision of Court of Ajypeal, e.g., that you have days from the day of within which you may give notice of appeal or that you may be admitted to bail in your own recognizances in the sum of with two sufficient sureties in the sum of each, or as the case may be]. Signed Registrar of the Court of Criminal Appeal. Dated this day of , A.D. 190 . FORMS UNDER CRIMINAL APPEAL EULES, 1908. 109 Form XXXI. CRIMINAL APPEAL ACT, 1907. R. v. To his Majesty's principal Secretary of State for the Home Department. To the Prison Commissioners. To the Governor of his Majesty's Prison at This is to give you notice that the above-mentioned having applied for (a) leave to appeal to the said court ; (b) leave to extend the time within which he may give notice of appeal or of an application for leave to appeal ; (c) legal aid to be assigned to him ; (d) permission to be present during the proceedings in his appeal ; (e) his admission to bail ; under the said statute, the Court of Criminal Appeal has this day finally determined his said applications and has given judgment to the effect following [here set out the decision of the court}. Signed Registrar of the Court of Criminal Appeal. Dated this day of , A.D. 190 . Form XXXII. CRIMINAL APPEAL ACT, 1907. R. v. To his Majesty's principal Secretary of State for the Home Department. To the Prison Commissioners. To the Governor of his Majesty's Prison at This is to give you notice that the above-named having appealed against his conviction of the offence of at the court of for the county of [or, the sentence of passed upon him for the offence of at the court of for the county of ] the Court of Criminal Appeal has finally determined the said appeal and has this day given judgment therein to the effect following [here set out the decision of the court}. Signed Registrar of the Court of Criminal Appeal. Dated this day of , A.D. 190 . 110 FORMS UNDER CRIMINAL APPEAL RULES, 1908. Form XXXIII. CRIMINAL APPEAL ACT, 1907. K. v. LIST OP EXHIBITS. Number or other identifying mark on Exhibit. Short description of Exhibit. Produced by Prosecution or Defence. Directions of the Judge of the Court of Trial, with name and address of person retaining Exhibit. Signed Coroner. Clerk to Committing Justice. Officer of Court of Trial. ( 111 ) COSTS IN CRIMINAL APPEALS. ORDER OF SECRETARY OF STATE, DATED MARCH 27, 1908, UNDER SECTION 13 (2) OF THE CRIMINAL APPEAL ACT, 1907. In pursuance of the power conferred on me by section 13 (2) of the Criminal Appeal Act, 1907, I hereby make the following regulations : 1. The expenses of any solicitor or counsel assigned to an appellant by the Court of Criminal Appeal shall be allowed as follows : As respects an application for leave to appeal or an application for extension of time, a fee not exceeding 2 2s. for a solicitor and 1 3s. 6d. for counsel. As respects any appeal, a fee not exceeding 2 2s. for a solicitor and a fee for counsel not exceeding 1 3s. 6d., or, if in the opinion of the court the case is one of difficulty, not exceeding 2 4s. 6d. ; provided that the court, after the conclusion of the appeal, may, if it thinks fit, certify that the case was one of exceptional length or difficulty, and thereupon the fee may be increased to such sum as the court, having regard to the length and difficulty of the case, may direct, but not exceeding 7 7s. for a solicitor and 11 for counsel. In addition to such fees as aforesaid, a solicitor may be allowed travelling expenses actually and necessarily incurred by himself or his clerk on the scale applicable to an ordinary witness in a case of felony tried at assizes under the Secretary of State's Order of June 14, 1904. 2. The expenses of any witnesses attending on the order of the court or examined in any proceedings incidental to the appeal shall be allowed on the same scale as those of a witness in a case of felony tried at assizes under the Secretary of State's Order of June 14, 1904 ; except that the night allowance of witnesses necessarily detained away from home in London for one or more nights may, if the court thinks fit, be increased to not more than 8s. a night, but shall not exceed the expense reasonably incurred by the witness. 3. The expenses of the appearance of an appellant not in custody on the hearing of his appeal or on any proceeding preliminary or incidental to the appeal may be allowed on the same scale as those of an ordinary witness in a case of felony tried at assizes under the Secretary of State's Order of June 14, 1904. 112 COSTS IN CRIMINAL APPEALS. Where the appellant appears in custody, the warders attending in charge of him may receive the same allowances as warders in charge of a prisoner may receive under the said Order. 4. Where any examination of witnesses is conducted by a person appointed by the court for the purpose, the person so appointed shall be allowed, if he be a stipendiary magistrate or justice of the peace, the actual expenses of travelling, the actual cost of hiring a room for the examination, if no court or public room is available, and such other incidental expenses as in the opinion of the court are necessarily and reasonably incurred. If the person appointed be a practising barrister, he shall be allowed such expenses as aforesaid, and in addition such fee, not exceeding five guineas a day, as the court may allow. 5. Where any question is referred to a special commissioner appointed by the court, or where any person is appointed as assessor to the court, he shall be allowed such fee as the court, having regard to his qualifications and ordinary professional remuneration, may think reasonable, not exceeding ten guineas a day. Given under my hand at Whitehall, this 27th day of March, 1908. H. J. GLADSTONE, One of his Majesty's Principal Secretaries of State. ( 113 ) THE CRIMINAL LAW AMENDMENT ACT, 1826. (7 GEO. 4, c. 64.) 30. Compensation to relatives of persons killed in arresting felons."} If any man shall happen to be killed in endeavouring to apprehend any person charged with any of the offences before mentioned, the court may order the sheriff of the county to pay a sum of money to his widow, if he were married, or to his children in case his wife be dead, or to his father or mother, in case he shall have left neither wife nor child. Under the Act the sheriff is entitled to immediate recoupment from the Treasury. THE OFFENCES AGAINST THE PERSON ACT, 1861. (24 <* 25 VICT. c. 100.) 74. Payment of prosecutor's costs by defendant.'] Where any person shall be convicted on any indictment of any assault, whether with or without battery and wounding, or either of them, such person may, if the court think fit, in addition to any sentence which the court may deem proper for the offence, be adjudged to pay to the prosecutor his actual and necessary costs and expenses of the prosecution, and such moderate allowance for the loss of time as the court shall by affidavit or other inquiry and examination ascertain to be reasonable ; and unless the sum so awarded shall be sooner paid, the offender shall be imprisoned for any term the court shall award, not exceeding three months, in addition to the term of imprisonment (if any) to which the offender may be sentenced for the offence. 114 STATUTES. THE CRIMINAL LAW AMENDMENT ACT, 1867. (30 & 31 VICT. c. 35.) 9. Money found on the prisoner to be given to purchaser of property not known to be stolen, on restitution of property."] Where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence which includes the stealing of any pro- perty, and it shall appear to the court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the prisoner on his apprehension, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such moneys a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser. See also 33 & 34 Viet. c. 23, s. 4. THE FORFEITURE ACT, 1870. (33 & 34 VICT. c. 23.) 3. Persons convicted of treason or felony may be condemned in costs.] It shall be lawful for any court by which judgment shall be pronounced or recorded, upon the conviction of any person for treason or felony, in addition to such sentence as may otherwise by law be passed, to condemn such person to the payment of the whole or any part of the costs or expenses incurred in and about the prosecution and conviction for the offence of which he shall be convicted, if to such court it shall seem fit so to do ; and the pay- ment of such costs and expenses, or any part thereof, may be ordered by the court to be made out of any moneys taken from such person on his apprehension, or may be enforced at the instance of any person liable to pay, or who may have paid the same, in such and the same manner (subject to the provisions of this Act) as the payment of any costs ordered to be paid by the judgment or order of any court of competent jurisdiction in any civil action or proceeding may for the time being be enforced : Provided, that in the meantime and until the recovery of such costs and expenses from the person so convicted as aforesaid, or from his estate, the same shall be paid and provided for in the same manner as if this THE FORFEITURE ACT, 1870. 115 Act had not passed ; and any money which may be recovered in respect thereof from the person so convicted, or from his estate, shall be applicable to the reimbursement of any person or fund by whom or out of which such costs and expenses may have been paid or defrayed. 8. Convict disabled to sue for or to alienate property, etcJ\ No action at law or suit in equity for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person during the time while he shall be subject to the opera- tion of this Act ; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided. C.A. INDEX. A. ABSOLUTE RIGHT OF APPEAL ON QUESTION OF LAW, 5. ACQUITTAL, verdict of, under sub-s. (2) of s. 4 may be entered by Court of Criminal Appeal, 17. ALIENS ACT, 1905, Court of Criminal Appeal may, on an appeal against sentence, make an expulsion order, 57. APPEAL, against sentence, 5. may be from conviction on coroners' inquisitions, 8. criminal informations, 8. incorrigible rogues, 8. indictment, 5. notice of, must be given within ten days, 26. extension of, 27, 75. on matter of fact absolute right in capital cases, 5. condition precedent to, 5. on point of law absolute, 5. conditional to House of Lords, 3. APPELLANT, right of, to be present, 39. APPELLANT'S case may be in writing, 9. may give evidence on appeal, 31, 35. APPLICATION FOR LEAVE TO APPEAL may be made orally or in writing, 10, 11. must be given within ten days, 26. made to Court of Criminal Appeal, against sentence, 5, on notice, 10. 11. time for, may be extended except in death sentence, 28. ASSESSOR, court may appoint, 31. INDEX. ATTORNEY-GENERAL, certificate of condition precedent to appeal to House of Lords, 3. when issued, 3. BAIL,' application for, to be made to judge in first instance, 43. Court of Criminal Appeal may admit appellant to, 43. 9 jt-f. c. CERTIFICATE giving leave to appeal may be granted by trial judge, 5, 9. CONDITIONAL RIGHT OF APPEAL on question of fact, 5. sentence, 5. CONSTITUTION of the Court of Criminal Appeal, 1. CONVICTION, appeal against, absolute on point of law, 5. lies against, by leave on question of fact, 5. may be quashed, 17. CORONER'S INQUISITION, persons convicted on, have right of appeal, 8. COSTS, none allowed on either side, 41. when counsel assigned to be paid as in cases of felony, 42. COUNSEL, expenses of, assigned to appellant, 36. may be assigned to appellant by registrar, 36. the Court of Criminal Appeal, 36. COUNT IN INDICTMENT, court may sentence on different, from that upon which verdict given, 19. COURT OF TRIAL has power to state a case, 9. CRIMINAL INFORMATION, right of persons convicted on, to appeal, 8. CROWN CASES ACT, 1848, case may still be stated under, 46, 56. jurisdiction and authority of court of, now vested in Court of Criminal Appeal, 56. when case stated under, provisions of Criminal Appeal Act to apply, 46. [2] INDEX. D. DEFAULT, when not wilful, may be waived, 11. DEPOSITIONS, examination of witnesses by order of Court of Appeal must be in form of, 30. DIRECTOR OF PUBLIC PROSECUTIONS, a member of rule committee, 52. power to requisition documents, exhibits material to case for Crown, 39. when duty of to appear for Crown on appeals to Court of Criminal Appeal, 39. DOCUMENTS, copies of, may be obtained by appellant or respondent. 33. in custody of registrar, to be kept open for inspection, 32. E. EVIDENCE, court may obtain all, necessary for determination of appeal, 32. may be taken before judge or other person appointed for the purpose, 2, 30. EXPENSE OF APPEAL to be defrayed as expenses of a prosecution in case of felony, 41. F. FACT, appeal on conditional on leave. 5. G. GOVERNOR OF PRISON, duty of, to place forms and instructions in relation to appeal at disposal of prisoners, 48. H. HOME SECRETARY, Criminal Appeal Act does not diminish but increase power of, may refer case to Court of Criminal Appeal, 52, 53. 52, 53. HOUSE OF LORDS, appeal to, on fiat of Attorney-General, 3. I. INCORRIGIBLE ROGUES, right to appeal against sentence, 8. [3] INDEX. INDICTMENT, Court of Criminal Appeal may sentence on different count in, from that upon which verdict given, 19. offences included under, 6. INSANE, court may find prisoner, 22. J. JUDGE'S NOTES, required to be furnished on appeal in all cases, 29. JUDGE'S REPORT, may be requisitioned for the use of the Court of Criminal Appeal, 29. JUDGES, three to constitute court, 2. JUDGMENT OF THE COURT to be pronounced by one judge only, save in exceptional cases of law, 2. L. LARCENY ACT, 24, 25. LAW, appeal on point of absolute, 5. LEAVE OF THE COURT required for appeals on questions of fact and sentence, 5. LEGAL ASSISTANCE TO APPELLANT, 36. LUNATICS, TRIAL OF, ACT, 22 M. MAJORITY OF JUDGES TO DECIDE APPEAL, 2. MINORITY JUDGMENTS not allowed save in exceptional cases of law, 2. MISCARRIAGE OF JUSTICE, 14, 17. MIXED LAW AND FACT, appeal on, by leave only, 5. meaning of, 10. N. NOTICE OF APPEAL, manner in which, must be given, 5. time for giving, may be extended to prisoner by court of summary jurisdiction, 6, 8. unnecessary where leave to appeal granted, 27. NOTICE OF APPLICATION for leave to appeal, how made, 5. [4] INDEX. 0. OFFENCE, Court of Criminal Appeal may reduce from major to minor charge, 19, 20. ORDER to be made by Court of Criminal Appeal as to reverting and restitution of property on conviction for larceny, 23. P. POWERS to be exercised by a judge of the Court of Criminal Appeal, 43. PREROGATIVE OF MERCY untouched by Criminal Appeal Act, 52. PRISONERS convicted by court of summary jurisdiction have no right of appeal under Act, 8. PROCEDURE, 26. PRODUCTION OF DOCUMENTS, court may order, 30. E. REFERENCE, court may order, 31. REGISTRAR, duties of, 5. when appeal on point of law may be dealt with by, 27. RESTITUTION OF STOLEN GOODS \inder Larceny Act, 24, 25. Sale of Goods Act, 23. RIGHT OF APPEAL, absolute on point of law, 5. conditional on fact or from sentence, 5. RULES OF COURT, 52. s. SALE OF GOODS ACT, 23. SECRETARY OF STATE, power of, to refer to Court of Criminal Appeal, 52. SENTENCE, appeal from, on plea of guilty, 18. Court of Criminal Appeal may impose different, 17. leave required for appeal against, 5. no appeal against, where fixed by law, 5. not to be executed until determination of appeal, 29. [5] INDEX. SHORTHAND NOTES, costs of, to be defrayed by Treasury, 49. poor appellant may be furnished with, 33. required to be taken in every case tried on indictment, 49. transcript of, to be furnished to registrar, 49. SOLICITOR may appear in interlocutory applications, 11 be assigned to appellant, 36. SPECIAL VERDICT, court may alter, where, 21. T. TIME FOR APPEALING, limited, 26. may be extended, 28. when, begins to run, 27. u. UNREASONABLE VERDICT, can be set aside, 11. meaning of, 12. V. VERDICT OF JURY, when Court of Appeal can set aside, 12. w. WIFE OF APPELLANT may give evidence, 31, 35. WITNESSES, competent and compellable, meaning of, 33. court may order examination of, 30. WRIT OF ERROR abolished by sub-s. (1) of s. 20, 55. WRONG DECISION on any question of law, 14. APPENDIX. LOXDOX : PRINTED BY BUTTKKWOKTH & Co., CRANE COURT, E,C. BUTTERWORTH AND CO.'S STUDENTS' WORKS. HVl/frii lit/ llnulrr* In tlif Council of Legal Kilufnttnn ami other (itntlemen tpeclnllu (!.( M.I i ;<