A COURT OF CRIMINAL APPEAL.

Evening Star, Issue 12875, 26 July 1906, Page 8

A COURT OF CRIMINAL APPEAL.

(By F.RNKST fi.Williams.] J he Lord Chancellor’s proposal' has met, sp for as the Press. ,is .concerned, with an am.ost universal welcome, in which the St. Jameses Gazette ’ has _,oined • yet I wculd respectfully suggest , bat the measure should not be_ pressed forward in its present shape. W (• are all agreed that every loophole for (he miscarriage of justice should be dosed so far as human effort and prudence and; ingenuity can close a £ ‘ m- , A,, e spfePotters ' of the Criminal Appeal Bill think ,that some further loopholes may be closed 1 by the introduction of the proposed cchrt; others of us fear that the will, in fact, be the closing of one hole at the. expense of makmg other rehts in. the shield of justice. Some of my readers have probably been present at murder"trials. If they have they will . remembpiL the attitude of the jury, will perhaps",have noted the almost stunned look ttpon'Lhe jurymen’s faces as the gloomy drama, drew towards its close and the tune came" when they had to fulfil duty of pronouncing the “ yea ” or “nay” which might set a murderer free upon society or send an innocent m.™ to the horrors of a shameful death. There is no doubt that the jurymen realise their responsibility-; no one watching their faces, observing ■ their heavy gait as they leave the jury box. to consider their verdict, can think that they do not realise well the responsibility which is cast upon,them. Bach juryman knows that his decision at such a moment (apart, of course, from the sjitciai exercise, ofthe Royal prerogative of mercy) is irrevocable. But yet the responsibility is nit 100 great for a man to exercise, because of the numbers. ' Each man insl inctively: reels, if ifce verdict is .‘guilty,’’ that it .is the other eleven who are sending the prisoner to his dooin. If one man, or one ’ or two, cr even three only, formed the jury, there would probably be many cases 'in which where now the jurymen bring in, and' rightfully, a verdict of guilty, they would jgjirink from doing so. Though ! have used the instance of murder, ih i same considerations ' apply also in a less, but still in a substantial, degree to manslaughter and rape and forgery, and the other more serious felonies. Now, that is the position to-day. The interests of the prisoner and of* the law—the Combined interests of justice—are alike served. How will the case stand if we have a Court of Criminal Appeal. Is it not clear that the old sense of responsibility will be weakened? Convictions will become more frequent; the juryman will no longer trouble himself so much about the elements of doubt; he will be more content with the prima facie case which the prosecution can always make out against a prisoner, for no man is put into the dock unless there is a good prima facie case against him. The jury must not convict if it has any reasonable doubt of the prisoner’s guilt. But reasonable doubt is not a precise expression. It covers various degrees of doubt, and the juryman will more readily let himself go on the ordinary probabilities of the case when he knows, as he will of course know, that in nearly all serious eases, the, verdict will be appealed. How can it be said, then, that this provision is in ' the interests of the prisoner? It will often happen that a man will, be convicted by the jury who would

not hare been convicted had the jury’s.' word been final; and. then the case will go to the-Appeal Court, not as a new cause to he tried upon »ts merits, but as a chose jugee, which the Appeal Court may, if it moose, reverse, but will notdo so- unless it feels some compelling reason. Inevitably the prisoner’s position will be worsened by the change. Then,there is the.other, side. We,want not only that: the; innocent shall go. .free; we want the guilty man to he punished. Shall we have security of this in a court of criminal appeal? We'have ah analogous case to-day. in the difference between the'grand and the petty jury. The grand jury readily brings in a true bill .against the prisoner because it knows that the-real merits of tlvr case will be carefully gone into by the petty jury, and so it does not feel anything cn its conscience if it brings in a true bill without being assured of the prisoner’s guilt. When we have the court of criminal appeal, the petty jury will become as the grand jury, and the real arbitrament in capital and other more serious offences will he;, not with - twelve" men who, by sharing the responsibility, can bring themselves to perform ■ their repellent duty, but with two or three Judges. It ,is true enough, that these Judges -will he men who professionally set before' themselves a high standard of- duty, and 'who, by their legal training and the .abilities which have raised them to the Bench, will he better qualified to decide the facts than the ordinary jury;: but even so we must make some allowance, for ; human .nature—the shrinking from sending'a man to, death which must oppress the humane Judge—and just as this shrinking will become roore difficult to combat when'he. has- only one or two colleagues • than when he • has eleven, as has the juryman, so also will it be more easy for the Judge, with his greater subtlety of,intellect, to find possibilities of doubt upon which he can seize in order to ensure his night’s rest by acquitting- the prisoner. In these circumstances it does seem that in the result the court of criminal appeal will often prejudice the innocent man with a bad case to meet, and in the more serious cases will sometimes ensue in the acquittal of men who ought not to be acquitted. These are the main objections to the Bill—objections which go to the principle —but there are others which, if they do not possess the same force, may be mentioned. j There is the cruelty inevitable in prolonging the suspense of a prisoner under sentence of death. We may fairly hope that, we shall avoid the scandalous prolongation of appeals, running sometimes into years, which disgraces America; but obviously there must be delay, and when it is delay in the execution of capital punishment one has hot: to think of the awfulness of the which pass between sentence and execution to feel that it is hardly humane to devise a system whereby that terrible period would be increased.