those which, it is understood, were the immediate occasion of the passing of the English Criminal Appeal Act of 1907. Before that Act was passed some thirty Bills had been introduced dealing with the subject of criminal appeal in England, but failed to become law. The investigations before trial in Scotland by those invaluable public servants the Procurators-Fiscal have proved a practical safeguard against cases of mistaken identity. The readiness with which Procurators-Fiscal in the exercise of their duty test, by searching investigation, statements made by or on behalf of accused persons has often stood an innocent man in good stead and enabled Crown Counsel to make an order for his liberation.

Scotland does not know coroners' inquests; public examination before committal by magistrates; charges to or findings by Grand Juries. When a case goes to trial due provision is made for the defence of accused persons by poors: agents and counsel when the accused is without funds. In this respect there is a marked contrast in favour of accused persons in Scotland between the law of Scotland and England. In another respect it may be said the law of England is more favourable to the accused, because in England he is provided with copies of the depositions. In Scotland he is not. A list of productions and witnesses for the Crown is, however, served on the accused with the indictment before trial. It is open to the defence to inspect the productions and to interview the witnesses. When necessity arises in a serious case, Crown Counsel assist the defence by obtaining analyses, or adding to the Crown List the names of witnesses, including experts, etc., whose attendance is desired by the defence. The expense thus involved is borne by the Crown.

The conduct of a criminal trial in Scotland is in marked contrast with that in a civil jury case. The Advocate-Depute, or Procurator-Fiscal, does not hold a brief for a private prosecutor, or for the police. He is discharging a public duty, in the performance of which he ought to bring out in evidence what is in favour of the accused as well as what is against him.

The Scottish system of procedure in Criminal Cases is one of which all who are concerned in its administration are justly proud. It depends for its success on the way it is worked. It has commanded general approval, because the public have confidence in those who work it. While there has been of recent years considerable discussion in law societies and in the press of Scotland as to the desirability of some further provision being made for appeal in criminal cases, there is not at the present day anything

1 See Wynn, 1883, 5 Coup. at p. 372.

which can in truth be described as a popular clamour for change.

The question is whether in future the only means of redress available to a person convicted should, as hitherto, be by petition to the Secretary for Scotland for the exercise of the Royal Prerogative, or whether he should, as in England since 1907, have the right of going to a Court of Criminal Appeal. In considering this question it is desirable to analyse and distinguish between the application of the principle of appeal as it affects (a) the functions of the judge and (b) the functions of the jury.

(A) APPEAL AS AFFECTING THE FUNCTIONS OF A JUDGE.

The judge has to decide, in the first place, on the relevancy of the indictment; he has to determine the proper procedure, e.g. when the question of the prisoner's sanity is raised by the Crown.1 During the case he may have to decide questions as to the admission or rejection of evidence in his charge he has to lay down the law to the jury, and also to see that the

essential facts are before them. After the

verdict, if there is a conviction, he has to pronounce sentence.

There are

vision for the review of what is done by a judge No new principle is involved in making produring the conduct of the case. provisions under the existing law of Scotland intended to secure this, both in High Court Cases and in Sheriff Court Cases, but they are

not effective.

1. High Court Cases.

66

Although a trial commence before the judges on a Circuit Ayre, yet it may happen not to terminate with them, since they may remit it for the consideration of all their brethren, a power which is obviously necessary for the ends of justice and seems indeed to be a regular consequence of the constitution of the Circuit Courts."2 The method of securing review here referred to (which exists in theory but not in practice) is for the judge to certify the case for the opinion of the High Court with a view to disposal of the question by three or more judges. The judge presiding at the trial who desires to certify, pronounces an Order reporting the point raised to the High Court for disposal on a day fixed in the Order, and continues the diet or adjourns the proceedings to that day. It is essential that the day be named in the Order; an indefinite adjournment is incompetent and brings to naught the whole proceedings.

If a case were certified on a question of rele

1 See H.M. Advocate v. Brown, 1907 S.C. (J.) 67. 2 Hume, "Criminal Law," ii. p. 26.

vancy before the trial began, or on a question as to the sentence to be pronounced, or as to the effect of the verdict, little, if any, difficulty would occur.

When the jury have either not begun or have finished their part in the trial, there is nothing to prevent an adjournment to a fixed date some time ahead.

It is doubtful whether certification on a question as to the admissibility of evidence is competent. Even if competent it is unsatisfactory.

If the trial were adjourned at the moment the objection was taken, an adjournment to a fixed date some time ahead, though competent under section 55 of the Criminal Procedure (Scotland) Act, 1887, would be attended with considerable risk. The bringing together again of the jury after an interval of some weeks is undesirable, and may not be possible. If, on the other hand, the presiding judge were to decide the question as to the admissibility of the evidence, the trial were to proceed to a verdict, and the case were then adjourned to a fixed date with a view to consideration of the question by the High Court the result might still be unsatisfactory. If a conviction had been obtained, and the High Court were of opinion that evidence tendered for the prosecution was wrongly admitted, or that evidence tendered for the defence was wrongly rejected, the accused would have to be discharged, though it might well be that the jury would still have convicted without the wrongly admitted evidence for the prosecution, or notwithstanding the wrongly rejected evidence for the defence. If a conviction had not been obtained, the prosecutor would have no interest to bring before the High Court any question as to the admission or rejection of evidence, for no further proceedings could be taken against the prisoner.

It is to be observed that this method of review would not afford the accused anything in the nature of a right of appeal. It is for the judge to determine whether he will certify the case. For these reasons it is clear that certification affords a very partial and unsatisfactory method of review, and this no doubt explains why, in modern times at all events, it appears to have been little resorted to.

2. Sheriff Court Cases.

In cases tried by jury in the Sheriff Court there is a limited right of appeal under the existing law. A person convicted in such a trial may, by presenting a Bill of Suspension to the High Court, bring his conviction under the review of that Court on any of the following grounds:

1 Davie, 1881, 4 Coup. at p. 453, footnote.

8

4

The law laid down by the Sheriff in his charge to the jury cannot be reviewed by the High Court. This state of the law was the subject of adverse criticism as far back as 1866; 5 and it was pointed out in 18776 that review on this ground would involve no interference with the province of the jury. In 1899 remarks were made suggesting that though a Sheriff could not be interfered with in the ordinary case he could if he went flagrantly wrong; the defect in the system has been the subject of comment recently. There are no proper materials for the review of an erroneous charge by a Sheriff to a jury, as there is no record of the charge, or of the grounds on which the jury proceeded. (The Act, 9 Geo. IV. cap. 29, section 17, might by implication have been held to provide for this, but was not.) It was pointed out in 1833 that the only competent mode of obtaining review in the case of an erroneous charge by a Sheriff is to get a special verdict pronounced by the jury finding certain facts proved which may bring out the question of law "and every upright judge in an Inferior Court will feel relieved rather than hurt by such a proceeding being suggested."

The greatest institutional writer on the Criminal Law of Scotland, Baron Hume, dealing with review by the High Court of proceedings in the Sheriff Court, distinguishes a challenge which impeaches the skill and proceedings of the judge "who has not laid the lawful and proper materials before the assize from a challenge of the verdict of the jury if all has 1 Priteca, 1906, 8 F. (J.) 66; Wynn, 1883, 5 Coup. 370; Burns, 1856, 2 Irv. 571.

been right on the part of the judge. He adds: "But if all is right on the part of the judge. there can be no enquiry concerning the sufficiency of the evidence to warrant the conclusion which the inquest (i.e. the jury) have come to upon the charge."

It thus appears (and there is indeed a general consensus of opinion) that the provisions at present existing for review of the rulings of a judge, whether of the High Court or the Sheriff Court, are not satisfactory. The case for amendment of the law in this respect appears to be clear, notwithstanding the virility of the common law of Scotland as regards crime, which distinguishes it from countries dependent on statute or code.

The next matter which arises as regards the judge is the question of sentence. At present there is no provision for review except by petition to the Secretary for Scotland for exercise of the Royal Prerogative, and experience in our opinion has shown that it is not satisfactory that this should be the sole method of review. This in itself is a strong reason for the establishment of a Court of Criminal Appeal in Scotland.

(B) APPEAL AS AFFECTING THE FUNCTIONS OF THE JURY.

There is at present no means of bringing the verdict of the jury under judicial review whether the trial is in the High Court or the Sheriff Court. The most difficult questions arise in this connection. A change theoretically justifiable may by some be considered unnecessary in practice. It is impossible to approach this topic without misgivings, in view of the authority of institutional writers and immemorial practice as to the finality of a jury's findings in fact. If, however, a Court of Criminal Appeal is to be established, power to review the verdict cannot be entirely withheld from that Court.

It is most undesirable to do anything that will unduly lessen the jury's sense of responsibility. The feeling of responsibility is undoubtedly bound up with the sense of finality. It is this sense of finality which weights the disposal of a case in favour of a prisoner by giving him what is called the benefit of the doubt. It would be a misfortune for all, and not least for the accused, if the sense of responsibility which a jury now has were to be unduly impaired. If a due sense of responsibility is to be preserved then, so far as possible, no greater power of interference should be given to a Court of Appeal in criminal than in civil cases. The verdict of a jury in a criminal case ought not to be reviewed as if it were the judgment of a judge of first instance. This means that the Appeal Court is not to re-try a case. If there was evidence upon which a reasonable man or woman could have reached

the conclusion arrived at by the jury, then, if the case were fairly put before them, the verdict must stand. This is the view upon which the Criminal Appeal Court in England has acted.1

If the Court considers the verdict cannot be supported on the evidence, the question arises, ought there to be a new trial? Upon this question (much debated in England) our view is that the prisoner, who has in our familiar Scottish phrase, tholed his assize, ought not to be tried again. It must be borne in mind that in Scotland with the principle of the majority verdict no proceedings are abortive. Disagreement of the jury, involving a fresh trial, is unknown. The principle of returning a verdict by a majority of the fifteen constituting the jury has worked satisfactorily in criminal cases and ought to be maintained. In England, where a second or subsequent trial is not unknown owing to the failure of a jury to agree, there may be a disposition to view with disfavour an Act which makes no provision for a new trial. We are definitely in favour of the maintenance of the Scottish tradition which is adverse to any interference with the sacred principle of tholing an assize.

For this reason we negative any suggestion that the prosecutor should have any extended right of appeal. (In coming to this conclusion we keep in view that under the existing law the prosecutor may appeal by advocation in a case before Sheriff and jury where the indictment has been dismissed as irrelevant or incompetent.) We consider that, if the Court of Appeal, applying the rules applicable to the verdict of a jury in civil cases, is of opinion that there has been a miscarriage of justice, then the conviction ought to be quashed.

If, however, a case arises in which fresh evidence, documentary or oral, is tendered, power should be given to the Court to admit this, though it may well be that the power would be rarely exercised. If and when such evidence is admitted, it is obvious that a conclusion would have to be reached upon data different from those on which the jury had proceeded. In these circumstances, and to a limited effect, it is unavoidable (new trial by jury being out of the question) that the judgment of a bench of judges may on rare occasions have to be substituted for the verdict of the jury.

The efficacy of a Court of Criminal Appeal for securing the acquittal of an innocent man who has been wrongly convicted must not be overrated. The Court of Appeal, just as much as the Court of first instance, must be bound by the rules of evidence. It may, therefore, happen (and we believe it has happened in England) that the innocence of a prisoner whose con

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

viction by a jury has been confirmed on appeal is afterwards established in the course of investigation instituted on a petition craving the exercise of the prerogative. The institution of a Court of Criminal Appeal ought not, therefore, to affect the prerogative in any way, except in so far as it may relieve the Secretary for Scotland from the necessity of considering certain questions in connection with the exercise of the prerogative.

The annual cost of the Criminal Appeal Court in England may be estimated at approximately £14,000.

In England, taking the average for the five years 1919 to 1923 inclusive, the number of convictions at assizes and quarter sessions-i.e. of convictions on indictment-was 7171; the number of applications for leave to appeal was 406, and the number of appeals heard or otherwise disposed of was 93. In Scotland the number of cases tried on indictment, taking the average for the same five years, was 1053 (including cases disposed of on a plea of guilty under section 31 of the Criminal Procedure (Scotland) Act, 1887).

CONCLUSIONS.

For the following reasons, viz:

(1) That the law of Scotland in principle already provides a judicial appeal which, however, is admittedly defective;

(2) That it is not satisfactory that the sole effective method of review should be by petition to the Secretary for Scotland for the exercise of the prerogative; and

(3) That it is desirable to substitute therefor, so far as practicable, review by a Court of Justice,

our general conclusion on the first part of our remit is that a Court of Criminal Appeal for Scotland should be established to review convictions on indictment whether in the High Court or in the Sheriff Court.

With regard to the latter part of the remit, we think the legislation necessary to establish the Court should, so far as consistent with Scottish law and practice, follow the lines on which the English Act proceeds. The drafting of that Act has given rise to few questions of construction. The general opinion is that the Act has proved successful in its working.

We suggest the following modifications: (1) All the judges of the High Court of Justiciary should be judges of the Court of Appeal, and not less than three judges should sit for the purpose of determining appeals. The Court so constituted should hear all

appeals under the proposed legislation, all advocations from the Sheriff Court, and all cases which may be certified by a single judge of the High Court, in accordance with rules to be made by Act of Adjournal. (2) The rule, under which the presiding judge at a sitting of the High Court has no vote unless the other judges are equally divided,1 should not apply, and the presiding judge in the Court of Appeal ought in all cases to have a vote. Each member of the Court ought to have an opportunity of expressing an opinion. (3) On an appeal against conviction the Court of Appeal should have the same powers to deal with the sentence as if the appeal were an appeal against sentence.

(4) On the establishment of a Court of Criminal Appeal the existing right to bring a suspension of a sentence pronounced on trial by jury in the Sheriff Court should be abrogated. The prosecutor should have the right to bring a decision in such a trial before the Court of Appeal by way of advocation, and a High Court judge should have power to certify a case to the whole Court, subject to such provision as may be made by Act of Adjournal, and as may be necessary to conform to the provisions which may be enacted regarding the Court of Appeal. (5) There should be no appeal from the Court of Criminal Appeal to the House of Lords. The High Court of Justiciary has for centuries been a Supreme Court.2 Section 72 of the Act of 1887 provides: "All interlocutors and sentences pronounced by the High Court of Justiciary under the authority of this Act shall be final and conclusive, and not subject to review by any court whatsoever, and it shall be incompetent to stay or suspend any execution or diligence issuing forth of the High

1 Rintoul v. Scottish Insurance Commrs., 1913 S.C.

(J.) 120, per L.J.G. Dunedin at p. 128; Summerlee Iron Co. Ltd. v. Thomson, 1913 S.C. (J.) 34, per L.J.C. Macdonald at p. 43; Muir v. Hart, 1912 S.C. (J.) 41, per L.J.G. Dunedin at p. 55; Ross v. Johnston, 1886, 1 White, 171; Riddell v. Stevenson, 1881, 4 Coup. 397, per L.J.C. Moncrieff at p. 405; H.M. Advocate v. Stewart, 1866, 5 Irv. 310, per Lord Neaves at p. 311; Cobb, 1836, 1 Swin. 354 at p. 392; Macdonald,

"Criminal Law," p. 253.

2 Bywater v. The Crown, 1782, Paton, 563; Mackintosh v. Lord Advocate, 1876, 3 R. (H.L.), 34.

As we go to press we learn with much pleasure of the appointment of Mr D. Oswald Dykes, M.A., LL.B., advocate, to the Professorship of Constitutional Law and Constitutional History at Edinburgh University in succession to Professor J. Hepburn Millar, B.A., LL.D., who has resigned.

THE death occurred with startling suddenness on Monday on the banks of the Caledonian Canal of Mr James Maclay, of the firm of Messrs Maclay, Murray, and Spens, writers, Glasgow.

It appears that Mr Maclay, who with his family was spending a holiday at Muccomer, in Lochaber, had gone by train to Invergarry, and after fishing in a neighbouring loch was 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 doctor who happened to be on board the steamer hurried to the spot to lend what assistance he could. Examination, however, disclosed the fact that life was extinct.

Mr Maclay, who resided at 3 Woodlands Terrace, received his early education at Glasgow Academy, and later he entered Glasgow University, where he graduated M.A. and LL.B. He became a partner of the firm of Messrs Maclay, Murray, and Spens about forty years ago. In his early life Mr Maclay was a keen mountaineer, having climbed many of the well-known peaks in Switzerland. He was also a member of the Scottish Mountaineering Club. An enthusiastic churchman, Mr Maclay gave valuable service in connection with home mission work, a branch of Church activity in which he was deeply interested. He was an elder of Woodlands United Free Church. Maclay leaves a wife and two sons.

DECISIONS OF THE ENGLISH COURTS.

Mr

Turnbull v. Turnbull and Coats. HUSBAND AND WIFE -DIVORCE- -ADULTERY -CONDONATION.-Held that sexual intercourse by a husband with knowledge of his wife's adultery is conclusive proof of condonation and cannot be rebutted by proof of the fact that he never forgave her.-Probate, Divorce, and Admiralty Div. (Swift J.).—12th May 1925.

REPARATION-INTERFERENCE WITH BUSINESS.

-A federation of retailers considered that the number of retailers in a particular district was sufficient. A new retailer commenced business within the district and obtained his supplies from R. In order to induce R. to cease to

supply the newcomer, S., a member of the from R. to W. R. appealed to the producers' retailers' federation, transferred his business federation, who informed W. that if he supplied S. they would cease to supply W. W. then ceased to supply S. There was no breach of contract. In an action by S. against the producers' federation held that no actionable Chancellor and Lord Sumner on the ground wrong had been committed, per the Lord that the defendants had not acted with malice, per Lords Dunedin and Buckmaster on the ground that there was no conspiracy to injure. Decision of Court of Appeal affirmed.-House of Lords.-15th May 1925.

Kempler v. Bravingtons.

SALE OF MOVEABLES-SALE OR RETURN

PASSING OF PROPERTY—SALE OF GOODS ACT, 1893 (56 & 57 VICT. CAP. 71), SECTION 18, RULE 4.A delivered a parcel of diamonds to B on terms of a sale or return note which provided, "the goods specified above remain my property until charged by me." B sold the diamonds to C and failed to account for the price to A. A had not charged the goods to B. In an action for recovery of the diamonds by A against C, held (a) that the note represented the real transaction between the parties, and therefore (b) that the property had not passed to B, who consequently could confer no title on C. Judgment of Mackinnon J. affirmed.-Court of Appeal (Bankes, Scrutton, and Sargant L.JJ.).—25th May 1925.

Pritchard v. Bettisfield Colliery Co. Ltd. WORKMEN'S COMPENSATION ACT, 1906 (6 EDW. VII. CAP. 58), SECTION 13-DEPENDANTS— ILLEGITIMATE GRANDCHILD- -WORKMEN'S COMPENSATION ACT, 1923 (13 & 14 GEO. V. CAP. 42), SECTION 2-CHILD.-A workman was killed in an accident leaving a widow and an illegitimate granddaughter, aged eleven, dependent on his "child earnings.-Held (1) that the word in section 2 of the Act of 1923 means a young person without reference to parental relationship, and (2) that as the child was a dependant within the definition in section 13 of the Act of 1906, the provisions of section 2 of the Act of 1923 were applicable, and additional compensation could be claimed in respect of her. Court of Appeal (Pollock M.R., and Warrington and Atkin L.JJ.).-27th May 1925.