William Feilden Craies

“ While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. ”

“ While it is true that almost all crimes which in the middle ages were considered heinous fall into the categories of treason or felony, many statutory misdemeanours differ so little, if at all, from felony in character or in the mode of punishment that, in the absence of a code, no logical line of division can now be drawn, inasmuch as few felonies are now capital and none involve the forfeitures of land or goods, which at one time afforded an appreciable distinction between the two categories of crime. ”

“ In England the single-judge system is universal, save in appeal; on the continent of Europe plurality of judges is insisted upon, save in the most trivial cases, where the punishment is insignificant. In most countries of the continent of Europe the whole machinery for the prevention, investigation and punishment of crime, is conducted by what is called the parquet, which represents society as a collective unit and not the individual injured. ”

“ The interrogation and browbeating of the prisoner by the judge, consistent as it may be with the inquisitorial theory of their procedure, is strange to English lawyers, accustomed to see in every criminal trial a fair fight between the prisoner and the prosecution, and not a contest between the judge and the prisoner. The accused may, if he choose, be defended by counsel, and if poor may get legal aid at the public expense if the court certify for it. ”

“ As a review of the discretion of stipendiary magistrates in committing cases for trial, the intervention of the grand jury is in most cases superfluous; and even when the committing justices are not lawyers, it is now a common opinion that their views as to the existence of a case to be submitted to a jury for trial should not be over-ridden by a lay tribunal sitting in private, and in this opinion many grand jurors concur. But the abolition of the grand jury would involve great changes in criminal procedure for which parliament seems to have no appetite. ”

“ Value of Jury System.—The value of the jury in past history as a bulwark against aggression by the Crown or executive cannot be over-rated, but the working of the institution has not escaped criticism. Its use protracts civil trials. The jurors are usually unwilling and are insufficiently remunerated; and jury trials in civil cases often drag out much longer and at greater expense than trials by a judge alone, and the proceedings are occasionally rendered ineffective by the failure of the jurors to agree. ”

“ Opinion in England has hitherto been against subjecting a man to serious punishment as a result of conviction before a judge sitting without a jury, and the judges themselves would be the first to deprecate so great a responsibility, and the Criminal Appeal Act 1907, which constituted the court of criminal appeal, recognized the responsibility by requiring a quorum of three judges in order to constitute a court. The same act, by permitting an appeal to persons convicted on indictment both on questions of fact and of law, removed to a great extent any possibility of error by a jury. ”

“ It is for the prosecutor to prove by evidence the commission of the alleged offence. No power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. The right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried. ”

“ Thus the crime of murder, as settled by the existing law, would include offences of such very different moral gravity as killing a man deliberately for the sake of robbing him, and killing a man accidentally in an attempt to rob him. On the other hand, offences which ought to have been criminal were constantly declared by the judges not to fall within the definition of the particular crimes alleged, and the legislature has constantly had to fill up the lacunae in the law as interpreted by the judges. ”

“ In olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. The grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. ”

“ The qualification of the coroner’s jurors does not depend on the Juries Acts 1825 and 1870, and in practice they are drawn from householders in the immediate vicinity of the place where the inquest is held. Unanimity is not required of a coroner’s jury; but twelve must concur in the verdict. If it charges anyone with murder or manslaughter, it is duly recorded and transmitted to a court of assize, and has the same effect as an indictment by a grand jury, i.e. it is accusatory only and is not conclusive, and is traversable, and the issue of guilt or innocence is tried by a petty jury. ”

“ What is a reasonable ground it is of course impossible to define, but, in the case of a constable, a charge by a person not manifestly unworthy of credit is generally regarded as sufficient. An accused person who has been bailed may be arrested by his bail, and the police may assist in the arrest. In neither case is a warrant necessary. Nor is it necessary for the apprehension of one against whom the hue and cry is raised. The king cannot arrest in person or by verbal command, as no action would lie against him for wrongful arrest. ”

“ According to the law of England there is no prescription in criminal law (with a few exceptions created by statute) . An offender is always liable to punishment whatever time may have elapsed since the committal of the offence. On the continent of Europe the limitation of a judgment and sentence for a crime is twenty years; five years for a délit, and for a contravention two years. No proceedings can be taken as regards a crime after a lapse of ten years, whilst as regards a délit the limit is three years, and two years for a contravention. ”

“ In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions “against the form of the statute” and “against the peace” are still in use. ”

“ In systems of criminal law derived from England the forms of crime or degrees of complicity above stated reappear with or without modification, but as to conspiracy with a good deal of alteration. In the Indian penal code, for instance, conspiracy is limited to cases of treason (§ 121 A) , and when it goes beyond agreement in the case of other offences it is merely a form of abetment or participation (§ 107) .
The criminal law of England [1] is not codified, but is composed of a large number of enactments resting on a basis of common law. A very large part is reduced to writing in statutes. ”

“ There is no legislation authorizing the execution of traitors within the walls of a prison as in the case of murder (see Capital Punishment) . The act of 1814 in the case of men enables the Crown, by warrant under the sign manual, countersigned by a secretary of state, to change the sentence to beheading. Attainder and forfeiture for treason are abolished by the Forfeitures Act 1870, except where the offender has been outlawed. [21] The maximum penalty for a felony under the act of 1848 is penal servitude for life. ”

“ As a general rule a plea must be “issuable,” i.e. must put the merits of the cause in issue on the facts or the law, so that the decision of judge and jury thereon would put an end to the action upon the merits. ”

“ There are a few exceptional courts with criminal jurisdiction. The court of chivalry, which used to punish offences committed within military lines outside the kingdom, is obsolete. Special tribunals exist for trying naval or military offences committed by members of the navy and army, but those members are not exempt from being tried by the ordinary tribunals for offences against the ordinary law, as though they were civilians. The naval courts can be held only on board a ship, and can as a general rule try only persons entered on the books of a king’s ship. ”

“ For the common jury any man is qualified and liable to serve who has £10 by the year in land or tenements of freehold, copyhold or customary tenure; or £20 on lands or tenement held by lease for twenty-one years or longer, or who being a householder is rated at £30 in the counties of London and Middlesex, or £20 in any other county. A special jury cannot be ordered in cases of treason or felony, and may be ordered in cases of misdemeanour only when the trial is in the king’s bench division of the High Court, or the civil side at assizes. ”

“ The full definition of every crime contains expressly or by implication a proposition as to a state of mind, and in all systems of criminal law, competent age, sanity and some degree of freedom from coercion, are assumed to be essential to criminality; and it is also generally recognized that an act does not fall within the sanction of the criminal law if done by pure accident or in an honest and reasonable belief in circumstances which if true would make it innocent; e.g. when a married person marries again in the honest and reasonable but mistaken belief that the former spouse is dead. ”

“ English criminal law punishes attempts to commit crime if the attempt passes from the stage of resolution or intention to the stage of action, when the completion of the full offence is frustrated by something other than the will of the accused. Except in the case of attempt to commit murder, which is a felony, attempts to commit a crime are punished as misdemeanours. ”

“ Many acts or omissions, which are technically criminal and classified as offences and punished by fine or imprisonment, cannot be said to have a strictly criminal character, since they do not fall within the popular conception of crime. To this class belong such matters as stopping up a highway under claim of right, or failing to repair it, or allowing a chimney to emit black smoke in excessive quantities, or to catch fire from being unswept, or breach of building by-laws, or driving a motor car on a highway at a speed in excess of the legal limit. ”