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those which, it is understood, were the imme- which can in truth be described as a popular diate occasion of the passing of the English clamour for change. Criminal Appeal Act of 1907. Before that Act The question is whether in future the only was passed some thirty Bills had been intro- means of redress available to a person conduced dealing with the subject of criminal victed should, as hitherto, be by petition to the appeal in England, but failed to become law. Secretary for Scotland for the exercise of the

The investigations before trial in Scotland Royal Prerogative, or whether he should, as in by those invaluable public servants the Pro- England since 1907, have the right of going to curators-Fiscal have proved a practical safe- a Court of Criminal Appeal. In considering guard against cases of mistaken identity. The this question it is desirable to analyse and readiness with which Procurators-Fiscal in the distinguish between the application of the exercise of their duty test, by searching investi- principle of appeal as it affects (a) the functions gation, statements made by or on behalf of of the judge and (b) the functions of the jury. accused persons has often stood an innocent man in good stead and enabled Crown Counsel (A) APPEAL AS AFFECTING THE FUNCTIONS to make an order for his liberation.

OF A JUDGE, Scotland does not know coroners' inquests; public examination before committal by magis

The judge has to decide, in the first place, on trates ; charges to or findings by Grand Juries. the relevancy of the indictment; he has to When a case goes to trial due provision is made

determine the proper procedure, e.g. when the for the defence of accused persons by poors? question of the prisoner's sanity is raised by agents and counsel when the accused is without

the Crown. During the case he may have to funds. In this respect there

is a marked con- decide questions as to the admission or rejection trast in favour of accused persons in Scotland of evidence : in his charge he has to lay down between the law of Scotland and England. In

the law to the jury, and also to see that the

essential facts are before them. After the another respect it may be said the law of England is more favourable to the accused, because verdict, if there is a conviction, he has to pro

nounce sentence. in England he is provided with copies of the depositions. In Scotland he is not.I A list of

No new principle is involved in making proproductions and witnesses for the Crown is, vision for the review of what is done by a judge

There are however, served on the accused with the in- during the conduct of the case. dictment before trial. It is open to the defence provisions under the existing law of Scotland to inspect the productions and to interview the intended to secure this, both in High Court witnesses. When necessity arises in a serious Cases and in Sheriff Court Cases, but they are case, Crown Counsel assist the defence by ob- not effective. taining analyses, or adding to the Crown List the names of witnesses, including experts, etc.,

1. High Court Cases. whose attendance is desired by the defence. Although a trial commence before the The expense thus involved is borne by the judges on a Circuit Ayre, yet it may happen not Crown.

to terminate with them, since they may remit The conduct of a criminal trial in Scotland is it for the consideration of all their brethren, a in marked contrast with that in a civil jury case. power which is obviously necessary for the ends The Advocate-Depute, or Procurator-Fiscal, of justice and seems indeed to be a regular consedoes not hold a brief for a private prosecutor, quence of the constitution of the Circuit Courts."'? or for the police. He is discharging a public The method of securing review here referred to duty, in the performance of which he ought (which exists in theory but not in practice) is to bring out in evidence what is in favour of the for the judge to certify » the case for the accused as well as what is against him.

opinion of the High Court with a view to disThe Scottish system of procedure in Criminal posal of the question by three or more judges. Cases is one of which all who are concerned in the judge presiding at the trial who desires to its administration are justly proud. It depends certify, pronounces an Order reporting the for its success on the way it is worked. It has point raised to the High Court for disposal on commanded general approval, because the a day fixed in the Order, and continues the diet public have confidence in those who work it. or adjourns the proceedings to that day. It is While there has been of recent years considerable essential that the day be named in the Order ; discussion in law societies and in the press of an indefinite adjournment is incompetent and Scotland as to the desirability of some further brings to naught the whole proceedings. provision being made for appeal in criminal

If a case were certified on a question of relecases, there is not at the present day anything



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1 See H.M. Advocate v. Brown, 1907 S.C. (J.) 67. 1 See Wynn, 1883, 5 Coup. at p. 372.

2 Hume, “Criminal Law,” ii. p. 26.








vancy before the trial began, or on a question

(1) That the indictment is not relevant ; as to the sentence to be pronounced, or as to the (2) That there has been a wrong decision as effect of the verdict, little, if any, difficulty

to admission or rejection of evidence ; would occur.

(3) That there has been an irregularity in the When the jury have either not begun or have

procedure. finished their part in the trial, there is nothing Further, if objections to the relevancy or to prevent an adjournment to a fixed date some competency of an indictment are sustained, time ahead.

the prosecutor may bring the decision under It is doubtful whether certification on a the review of the High Court by means of a Bill question as to the admissibility of evidence is of Advocation. If such objections are repelled competent. Even if competent it is un- the defence cannot use this means to submit satisfactory.

the judgment to the review of the High Court If the trial were adjourned at the moment at this stage of the proceedings, though, as the objection was taken, an adjournment to a already mentioned, suspension will be open to fixed date some time ahead, though competent him if he is convicted on an irrelevant under section 55 of the Criminal Procedure indictment. (Scotland) Act, 1887, would be attended with The law laid down by the Sheriff in his charge considerable risk. The bringing together again to the jury cannot be reviewed by the High of the jury after an interval of some weeks is Court. This state of the law was the subject undesirable, and may not be possible. If, of adverse criticism as far back as 1866 ; 5 and on the other hand, the presiding judge were to it was pointed out in 1877 6 that review on this decide the question as to the admissibility of the ground would involve no interference with the evidence, the trial were to proceed to a verdict, province of the jury. In 1899 remarks were and the case were then adjourned to a fixed date made suggesting that though a Sheriff could not with a view to consideration of the question by be interfered with in the ordinary case he could the High Court—the result might still be un- if he went flagrantly wrong?; the defect in the satisfactory. If a conviction had been obtained, system has been the subject of comment and the High Court were of opinion that evi- recently. There are no proper materials for dence tendered for the prosecution was wrongly the review of an erroneous charge by a Sheriff admitted, or that evidence tendered for the to a jury, as there is no record of the charge, or defence was wrongly rejected, the accused would of the grounds on which the jury proceeded. have to be discharged, though it might well be (The Act, 9 Geo. IV. cap. 29, section 17, might that the jury would still have convicted without by implication have been held to provide for the wrongly admitted evidence for the prose- this, but was not.) It was pointed out in 1833 cution, or notwithstanding the wrongly rejected that the only competent mode of obtaining evidence for the defence. If a conviction had review in the case of an erroneous charge by a not been obtained, the prosecutor would have Sheriff is to get a special verdict pronounced no interest to bring before the High Court any by the jury finding certain facts proved which question as to the admission or rejection of may bring out the question of law “and evidence, for no further proceedings could be every upright judge in an Inferior Court will taken against the prisoner.

feel relieved rather than hurt by such a proIt is to be observed that this method of review ceeding being suggested.”.9 would not afford the accused anything in the The greatest institutional writer on the nature of a right of appeal. It is for the judge Criminal Law of Scotland, Baron Hume, dealing to determine whether he will certify the case. with review by the High Court of proceedings

For these reasons it is clear that certification in the Sheriff Court, distinguishes à challenge affords a very partial and unsatisfactory method which impeaches the skill and proceedings of of review, and this no doubt explains why, in the judge " who has not laid the lawful and

, modern times at all events, it appears to have proper materials before the assize" from a been little resorted to.

challenge of the verdict of the jury if all has

1 Priteca, 1906, 8 F. (J.) 66; Wynn, 1883, 5 Coup. 370; 2. Sheriff Court Cases.

Burns, 1856, 2 Irv, 571.

2 M‘Vey, 1911 S.C. (J.) 94 ; hite, 1901, 4 F. (J.) 3 ; In cases tried by jury in the Sheriff Court M‘Garth, 1869, 1 Coup. 260. there is a limited right of appeal under the 3 Dunbar, 1904, 7 F. (J.) 40. existing law. A person convicted in such a trial • Muir, 1912 S.C. (J.) 41.

5 Quarns v. Hart, 1866, 5 Irv. 251, per Lord Neaves may, by presenting a Bill of Suspension to the High Court, bring his conviction under the

6 Moncrieff on Review in Criminal Cases, p. 173. review of that Court on any of the following ? Lloyd v. H.M. Advocate, 1899, 2 Ad. 637, per Lord grounds :

Justice-Clerk (Macdonald) at p. 644.

8 Cameron, 1924, J.C. 101, per Lord Justice-General. 1 Davie, 1881, 4 Coup. at p. 453, footnote.

• Alison, “Criminal Law,” ü. 679, 680.

at p. 257.

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been right on the part of the judge. He adds: the conclusion arrived at by the jury, then, if

, But if all is right on the part of the judge .... the case were fairly put before them, the verdict there can be no enquiry concerning the suffi- must stand. This is the view upon which the ciency of the evidence to warrant the conclusion Criminal Appeal Court in England has acted.1 which the inquest (i.e. the jury) have come to If the Court considers the verdict cannot be upon the charge."

supported on the evidence, the question arises, It thus appears (and there is indeed a general ought there to be a new trial? Upon this consensus of opinion) that the provisions at question (much debated in England) our view present existing for review of the rulings of a is that the prisoner, who has in our familiar judge, whether of the High Court or the Sheriff Scottish phrase, tholed his assize, ought not Court, are not satisfactory. The case for to be tried again. It must be borne in mind amendment of the law in this respect appears that in Scotland with the principle of the to be clear, notwithstanding the virility of the majority verdict no proceedings are abortive. common law of Scotland as regards crime, which Disagreement of the jury, involving a fresh trial, distinguishes it from countries dependent on is unknown. The principle of returning á a statute or code.

verdict by a majority of the fifteen constituting The next matter which arises as regards the the jury has worked satisfactorily in criminal judge is the question of sentence. At present cases and ought to be maintained. In England, there is no provision for review except by where a second or subsequent trial is not unpetition to the Secretary for Scotland for exer- known owing to the failure of a jury to agree, cise of the Royal Prerogative, and experience in there may be a disposition to view with disour opinion has shewn that it is not satisfactory favour an Act which makes no provision for that this should be the sole method of review. a new trial. We are definitely in favour of the This in itself is a strong reason for the establish- maintenance of the Scottish tradition which is ment of a Court of Criminal Appeal in Scotland. adverse to any interference with the sacred

principle of tholing an assize. (B) APPEAL AS AFFECTING THE FUNCTIONS

For this reason we negative any suggestion OF THE JURY.

that the prosecutor should have any extended

right of appeal. (In coming to this conclusion There is at present no means of bringing the we keep in view that under the existing law the verdict of the jury under judicial review whether prosecutor may appeal by advocation in a case the trial is in the High Court or the Sheriff before Sheriff and jury where the indictment Court. The most difficult questions arise in has been dismissed as irrelevant or incompetent.) this connection. A change theoretically justi- We consider that, if the Court of Appeal, applyfiable may by some be considered unnecessary ing the rules applicable to the verdict of a jury in practice. It is impossible to approach this in civil cases, is of opinion that there has been topic without misgivings, in view of the auth- a miscarriage of justice, then the conviction ority of institutional writers and immemorial ought to be quashed. practice as to the finality of a jury's findings in If, however, a case arises in which fresh evifact. If, however, a Court of Criminal Appealdence, documentary or oral, is tendered, power is to be established, power to review the verdict should be given to the Court to admit this, cannot be entirely withheld from that Court. though it may well be that the power would be

It is most undesirable to do anything that will rarely exercised. If and when such evidence is unduly lessen the jury's sense of responsibility. admitted, it is obvious that a conclusion would The feeling of responsibility is undoubtedly have to be reached upon data different from bound up with the sense of finality. It is this those on which the jury had proceeded. In sense of finality which weights the disposal of these circumstances, and to a limited effect, a case in favour of a prisoner by giving him what it is unavoidable (new trial by jury being out is called the benefit of the doubt. It would be of the question) that the judgment of a bench a misfortune for all, and not least for the accused, of judges may on rare occasions have to be if the sense of responsibility which a jury now substituted for the verdict of the jury. has were to be unduly impaired. If a due sense The efficacy of a Court of Criminal Appeal for of responsibility is to be preserved then, so far securing the acquittal of an innocent man who as possible, no greater power of interference has been wrongly convicted must not be overshould be given to a Court of Appeal in criminal rated. The Court of Appeal, just as much as than in civil cases. The verdict of a jury in a the Court of first instance, must be bound by criminal case ought not to be reviewed as if it the rules of evidence. It may, therefore, happen were the judgment of a judge of first instance. (and we believe it has happened in England) This means that the Appeal Court is not to that the innocence of a prisoner whose conre-try a case. If there was evidence


which a reasonable man or woman could have reached

1 Ross, " The Criminal Court of Appeal," p. 89, note (f).



viction by a jury has been confirmed on appeal

appeals under the proposed legisis afterwards established in the course of


all advocations from the investigation instituted on a petition craving

Sheriff Court, and all cases which may the exercise of the prerogative. The institution

be certified by a single judge of the of a Court of Criminal Appeal ought not, there

High Court, in accordance with rules fore, to affect the prerogative in any way,

to be made by Act of Adjournal. except in so far as it may relieve the Secretary (2) The rule, under which the presiding for Scotland from the necessity of considering

judge at a sitting of the High Court certain questions in connection with the exercise

has no vote unless the other judges of the prerogative.

are equally divided, should not The annual cost of the Criminal Appeal Court

apply, and the presiding judge in the in England may be estimated at approximately

Court of Appeal ought in all cases £14,000.

to have a vote. Each member of In England, taking the average for the five

the Court ought to have an opporyears 1919 to 1923 inclusive, the number of

tunity of expressing an opinion. convictions at assizes and quarter sessions-i.e. (3) On an appeal against conviction the of convictions on indictment—was 7171 ; the

Court of Appeal should have the number of applications for leave to appeal was

same powers to deal with the sen406, and the number of appeals heard or other

tence as if the appeal were an appeal wise disposed of was 93. In Scotland the

against sentence. number of cases tried on indictment, taking (4) On the establishment of a Court of the average for the same five years, was 1053

Criminal Appeal the existing right (including cases disposed of on a plea of guilty

to bring a suspension of a sentence under section 31 of the Criminal Procedure

pronounced on trial by jury in the (Scotland) Act, 1887).

Sheriff Court should be abrogated.

The prosecutor should have the right CONCLUSIONS.

to bring a decision in such a trial

before the Court of Appeal by way For the following reasons, viz :

of advocation, and a High Court (1) That the law of Scotland in principle

judge should have power to certify already provides a judicial appeal

a case to the whole Court, subject to which, however, is admittedly de

such provision as may be made by fective;

Act of Adjournal, and as may be (2) That it is not satisfactory that the sole

necessary to conform to the proeffective method of review should be

visions which may be enacted reby petition to the Secretary for

garding the Court of Appeal. Scotland for the exercise of the pre- (5) There should be no appeal from the rogative; and

Court of Criminal Appeal to the (3) That it is desirable to substitute there

House of Lords. The High Court for, so far as practicable, review by

of Justiciary has for centuries been a a Court of Justice,

Supreme Court.2 Section 72 of the our general conclusion on the first part of our

Act of 1887 provides : “ All interremit is that a Court of Criminal Appeal for

locutors and sentences pronounced Scotland should be established to review con

by the High Court of Justiciary victions on indictment whether in the High

under the authority of this Act shall Court or in the Sheriff Court.

be final and conclusive, and not subWith regard to the latter part of the remit,

ject to review by any court whatsowe think the legislation necessary to establish

ever, and it shall be incompetent to the Court should, so far as consistent with

stay or suspend any execution or Scottish law and practice, follow the lines on

diligence issuing forth of the High which the English Act proceeds. The drafting of that Act has given rise to few questions of 1 Rintoul v. Scottish Insurance Commrs., 1913 S.C. construction. The general opinion is that the (J.) 120, per L.J.G. Dunedin at p. 128; Summerlee Iron Act has proved successful in its working. Co. Ltd. v. Thomson, 1913 S.C. (J.) 34, per L.J.C. We suggest the following modifications :

Macdonald at p. 43; Muir v. Hart, 1912 S.C. (J.) 41, (1) All the judges of the High Court of per L.:J.G. Dunedin at p. 55; Ross v. Johnston, 1886,

i White, 171; Riddell v. Stevenson, 1881, 4 Coup. 397, Justiciary should be judges of the per L.J.C. Moncrieff at p. 405; H.M. Advocate v. Court of Appeal, and not less than Stewart, 1866, 5 Irv. 310, per Lord Neaves at p. 311 ; three judges should sit for the

Cobb, 1836, 1 Swin. 354 at p. 392; Macdonald, pur"Criminal Law," p.

253. pose of determining appeals. The

2 Bywater v. The Crown, 1782, Paton, 563; Mackin. Court so constituted should hear all I tosh v. Lord Advocate, 1876, 3 R. (H.L.), 34.

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Sorrel v.

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Court of Justiciary under the

Smith. authority of the same.' In our opinion the law in this respect ought

REPARATION-INTERFERENCE WITH BUSINESS. to remain unaltered, except in so far as the —A federation of retailers considered that the judgment of a single judge may be submitted number of retailers in a particular district was to review by the Court of Appeal.

sufficient. A new retailer commenced business within the district and obtained his supplies

from R. In order to induce R. to cease to As we go to press we learn with much pleasure of the appointment of Mr D. Oswald Dykes, supply the newcomer, 8., a member of the M.A., LL.B., advocate, to the Professorship of from R. to W. R. appealed to the producers'

retailers' federation, transferred his business Constitutional Law and Constitutional History federation, who informed W. that if he supplied at Edinburgh University in succession to Professor J. Hepburn Millar, B.A., LL.D., who S. they would cease to supply W. w. then has resigned.

ceased to supply S. There was no breach of

contract. In an action by S. against the The death occurred with startling suddenness producers' federation held that no actionable on Monday on the banks of the Caledonian wrong had been committed, per the Lord Canal of Mr James Maclay, of the firm of that the defendants had not acted with malice,

Chancellor and Lord Sumner on the ground Messrs Maclay, Murray, and Spens, writers, that the defendants had not acted with malice, Glasgow.

per Lords Dunedin and Buckmaster on the It appears that Mr Maclay, who with his ground that there was no conspiracy to injure. family was spending a holiday at Muccomer, in Decision of Court of Appeal affirmed. - House Lochaber, had gone by train to Invergarry,

of Lords.—15th May 1925. and after fishing in a neighbouring loch was

Kempler v. Bravingtons. hurrying to catch the west-bound steamer at Laggan, when, within about a hundred yards of the locks there, he was seen to collapse. A PASSING OF PROPERTY—SALE OF GOODS ACT, 1893 doctor who happened to be on board the (56 & 57 VICT. CAP. 71), SECTION 18, RULE 4.steamer hurried to the spot to lend what A delivered a parcel of diamonds to B on terms assistance he could. Examination, however, of a sale or return note which provided, “the disclosed the fact that life was extinct.

goods specified above remain my property until Mr Maclay, who resided at 3 Woodlands charged by me.” B sold the diamonds to C Terrace, received his early education at Glasgow and failed to account for the price to A. A had Academy, and later he entered Glasgow Uni- not charged the goods to B. In an action for versity, where he graduated M.A. and LL.B. recovery of the diamonds by A against C, held He became a partner of the firm of Messrs (a) that the note represented the real transaction Maclay, Murray, and Spens about forty years between the parties, and therefore (6) that the ago. In his early life Mr Maclay was a keen property had not passed to B, who consequently mountaineer, having climbed many of the could confer no title on C. Judgment of Macwell-known peaks in Switzerland. He was also kinnon J. affirmed.—Court of Appeal (Bankes, a member of the Scottish Mountaineering Club. Scrutton, and Sargant L.JJ.).—25th May 1925. An enthusiastic churchman, Mr Maclay gave valuable service in connection with home Pritchard v. Bettisfield Colliery Co. Ltd. mission work, a branch of Church activity in

WORKMEN'S COMPENSATION ACT, 1906 (6 EDW. which he was deeply interested. He was an

13-DEPENDANTSelder of Woodlands United Free Church. Mr


-WORKMEN'S COMMaclay leaves a wife and two sons.

PENSATION ACT, 1923 (13 & 14 GEO. V. CAP. 42),
SECTION 2-CHILD.-A workman was killed in

an accident leaving a widow and an illegitimate DECISIONS OF THE ENGLISH

granddaughter, aged eleven, dependent on his COURTS.

earnings. Held (1) that the word "child"

in section 2 of the Act of 1923 means a young Turnbull v. Turnbull and Coats.

person without reference to parental relationWIFE-DIVORCE—ADULTERY ship, and (2) that as the child was a dependant -CONDONATION.-Held that sexual intercourse within the definition in section 13 of the Act of by a husband with knowledge of his wife's 1906, the provisions of section 2 of the Act of adultery is conclusive proof of condonation and 1923 were applicable, and additional compensacannot be rebutted by proof of the fact that tion could be claimed in respect of her. ---Court he never forgave her.- Probate, Divorce, and of Appeal (Pollock M.R., and Warrington and Admiralty Div. (Swift J.).-12th May 1925. Atkin L.JJ.).—27th May 1925.




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