(2) Appeal by Case Stated.-Appeal may be brought by case stated under the provisions of two statutes; these are the Summary Jurisdiction Acts of 1857 and 1879. Also on an appeal to the Court of Criminal Appeal (in cases to which the Act applies) against conviction on a point of law, the Court of Criminal Appeal, may, if it so thinks fit, require a case to be stated under the Crown Cases Act, 1848. (q) Under the Summary Jurisdiction Act, 1857, either party to the proceedings, on information or complaint before a court of summary jurisdiction, may, after the hearing and determination, apply to the justice or justices to state a case for the opinion of the High Court, on the ground that the determination is erroneous in a point of law. (r) Under the Summary Jurisdiction Act, 1879, any person aggrieved who desires to question a conviction, order, determination, or other proceeding of a court of summary jurisdiction, may apply to the court to state a case on either of two grounds : (1) That the conviction, order, etc., is in excess of jurisdiction; (2) That it is erroneous in point of law. (s) Both under the Act of 1857 and under the Act of 1879, if the justice or justices refuse to state a case, the party interested may apply to the High Court for an order requiring the case to be so stated. (t) A case so stated is heard by a divisional court, (u) whose decision in criminal cases is, by the Judicature Act, 1873, declared to be final, except in case of error of law apparent upon the record. (x) (q) 7 Ed. VII. c. 23, s. 20 (4). (t) Summ. Jur. Act, 1857, s. 5; Ib. 1879, s. 33. The application must be made to a divisional court, or in the vacation, if the cause is urgent, to a judge at Chambers (Crown Office Rules, 1886, No. 80). (u) Under the Jud. Act, 1894, s. 1 (5), which enacts that "in all cases where there is a right of appeal to the High Court from any court or person, the appeal shall be heard and determined by a divisional court; and the determination thereof by the divisional court shall be final, unless leave to appeal is given by that court or the Court of Appeal." Appeals by case stated from quarter sessions under 11 & 12 Vict. c. 78, and 13 & 14 Vict. c. 45, are not to be appeals under this section (Ib. s. 2, (1)). The latter part of the section with regard to leave to appeal does not apply to criminal cases in which the decision of the divisional court is made final by s. 47 of the Jud. Act, 1875, except in cases of error apparent upon the record. (x) Jud. Act, 1873, s. 47. The method of bringing an appeal to a divisional court by case stated under the Quarter Sessions Act, 1849, s. 11, in cases where appeal lies to quarter sessions, has already been discussed, (y) so nothing further need be said on that head here. When an appeal has been brought by way of case stated under the Summary Jurisdiction Act, 1857, the right of appeal to quarter sessions is lost, (2) and this provision applies also to cases stated under the Summary Jurisdiction Act, 1879. (a) An acquittal may be appealed against by case stated, and where a case stated under the Act of 1857 was sent back with the intimation that the magistrate ought to have convicted, the court granted a rule absolute for a mandamus to compel him to convict. (b) On the other hand, no appeal lies to quarter sessions from an acquittal, since the prosecutor is not aggrieved thereby, unless such right of appeal is expressly given by the statute creating the offence. (c) And, therefore, where an acquittal was appealed against, a prohibition to quarter sessions was granted on the ground that there could be no appeal from an acquittal by the justices. (d) Appeals from Quarter Sessions. The manner in which the proceedings of quarter sessions exercising its appellate jurisdiction in appeals from petty sessions may be brought up for review by a divisional court on case stated has already been treated of; (e) it remains to be considered by what means the proceedings or decisions of quarter sessions exercising its original criminal jurisdiction may be brought up for review by a superior court without having recourse to the writs of certiorari, error (now abolished), or habeas corpus, which will be considered later. (f) Until the passing of the Criminal Appeal Act, 1907, which provides a mode of direct appeal against conviction or sentence on indictments and informations, etc., (g) there did not exist under the old law any right of direct appeal from a judgment of quarter sessions on the trial of an indictment, and provided (y) See ante, p. 507. (z) Summ. Jur. Act, 1857, s. 14. (a) Summ. Jur. Act, 1879, s. 33 (2). (b) R. v. Haden Corser, [1892] 8 T. L. R. 563. (c) R. v. JJ. London (1891), 55 J. P. 56; 34 Sol. J. 586. (d) Payne v. JJ. Middlesex (1881), 45 J. P. 327; 46 Ib. 68. (e) Ante, pp. 506, 507. (f) See post, pp. 512 et seq. (g) See ante, p. 305. 66 the matter was one which fell within its jurisdiction, its judgment was as final and conclusive as that of the High Court itself. Further, before the passing of the Crown Cases Act, 1848 (11 & 12 Vict. c. 78), a case could not be reserved for the opinion of a higher court on the trial of an indictment at quarter sessions. (h) It is now, however, provided by that Act that when any person shall have been convicted of any treason, felony, or misdemeanour before any court of oyer and terminer, or general gaol delivery, or court of quarter sessions, (i) the judge or commissioner, or justices of the peace before whom the case shall have been tried, may, in his or their discretion, reserve any question of law which shall have arisen in the trial for the consideration of the justices of either bench and barons of the Exchequer; and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided, as he or they may think fit; and in either case the court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case may be." (k) By the Judicature Act, 1873, cases reserved under the Act of 1848 were no longer heard by the justices of either bench and the barons of the Exchequer, but by five or more judges of the High Court, of whom the Lord Chief Justice had to be one unless he certified under his hand, or that of his medical attendant, that he was unable to be present, and the judges so sitting were known as the Court of Crown Cases Reserved. (1) If the judges differed, the minority were not bound by the decision of the majority, but any one of them might require the matter to be referred to all the judges of the King's Bench Division. (m) By the Criminal Appeal Act, 1907, the jurisdiction of the Court of Crown Cases Reserved as to cases stated under the Crown Cases Act, (h) Per Ellenborough, C.J., in R. v. Salop (Inhabitants of) (1810), 13 East, at p. 98. (i) Including the recorder of a borough (see R. v. Masters (1848), 1 Den. C. C. 332). The Court of Quarter Sessions in boroughs consists of the recorder, who sits as sole judge (Ib.). (k) 11 & 12 Vict. c. 78, s. 1. (1) Jud. Act, 1873, s. 47; Ib. 1881, s. 15. (m) See Steph. Hist. Crim. Law, i. 312. 1848, is transferred to the Court of Criminal Appeal, previously treated of, and cases so stated (or required by the Court of Criminal Appeal to be stated) will now accordingly be heard by the latter court. (n) Upon the hearing of a case so reserved the Court is empowered to (1) Reverse, affirm, or amend the judgment. (2) Avoid the judgment, and order an entry to be made on the record that, in the judgment of the High Court, the party convicted ought not to have been convicted. (3) Arrest judgment, or order judgment to be given thereon at some future session of oyer and terminer or gaol delivery, or of the peace, if no judgment shall have been before that time given, as they shall be advised. (4) Or to make such other order as justice may require. (0) The judgment of the judges is to be delivered in open court, after hearing counsel or the parties, if either party so desires, (p) and the judgment is final and without appeal, save for error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the High Court under the 11 & 12 Vict. c. 78 (Crown Cases Act, 1848). It will be noticed that under the latter Act the exercise of the power of stating a case was absolutely at the discretion of the judge or justices, as the case might be, and should he or they refuse to do so, no means existed of compelling him or them to state a case. Now, however, under the Criminal Appeal Act, 1907, the Court of Criminal Appeal, upon an appeal against conviction on a point of law alone, may require a case to be stated under the Act of 1848. (q) Appeals from the Assizes on the Nisi Prius side, and from the High Court of Justice. By s. 19 of the Judicature Act, 1873, the Court of Appeal is empowered to "hear and determine appeals from any judgment or order of His Majesty's High Court of Justice, save as hereinafter mentioned." 66 By s. 47 of the same Act, no appeal shall lie from any judgment of the High Court in any criminal cause or matter, As to the Court of Criminal Appeal, (n) 7 Ed. VII. c. 23, s. 20 (4). see p. 305, ante, et seq. (o) See 11 & 12 Vict. c. 78, s. 2. The court has, however, no authority to award a venire de novo, or to order a new trial; R. v. Mellor (1858), Dears & B. 468 (sed quære). (p) 11 & 12 Vict. c. 78, s. 3. As to the practice on the hearing, sec Chitty's Statutes, vol. ii. 253, n. y, and the authorities there cited. (g) Criminal Appeal Act, 1907, s. 20 (4). save for some error of law apparent upon the record, as to which no question shall have been reserved for the consideration of the judges under the 11 & 12 Vict. c. 78 (Crown Cases Act, 1848)." As by the Judicature Act, 1873, ss. 16, 29, courts of assize were constituted part of the High Court of Justice, for the purposes of appeal in the strict sense they were embraced by s. 47 of the Judicature Act, 1873, and until the passing of the Criminal Appeal Act, 1907, no appeal lay in criminal matters except in the case of error upon the record. (r) A direct mode of appeal to the Court of Criminal Appeal has now been provided by the last-mentioned Act, which at the same time abolished the writ of error. (s) At the assizes or the Central Criminal Court a special case may be stated on a point of law by the judge for the consideration of the Court of Crown Cases Reserved (now the Court of Criminal Appeal), under the provisions of the Crown Cases Act, 1848; he cannot, however, be compelled to do so, except under the power afforded to the Court of Criminal Appeal to require a case to be stated. (t) The jury may also return a special verdict, (u) and in certain cases, both at the assizes and in the High Court, the proceedings might formerly be heard by way, either of new trial, (x) (which has now been abolished by the Criminal Appeal Act, 1907), or by venire de novo. (y) Beyond these methods, and except in case of error of law apparent upon the record, there was, in general, before the passing of the Criminal Appeal Act, 1907, no right of appeal in criminal matters from a judgment of the assize courts, or of the High Court of Justice exercising its original criminal jurisdiction, or in the hearing of cases removed into the King's Bench Division on writ of certiorari. Proceedings in Error.-Prior to the year 1852 appeals in all actions in the superior courts went to the Court of Exchequer Chamber on writ of error. (z). A memorandum in error was substituted for the writ of error by the Common Law Procedure Act, 1852, and by the effect of the Judicature (r) As to the effect of s. 47 of the Jud. Act, 1873, see Ex parte Woodhall (1888), 29 Q. B. D. 832. (8) See as to Court of Criminal Appeal, p. 305, ante, et seg. As to abolition of the writ of error, p. 308, ante. (t) See ante, p. 308. (u) As to special verdict, see post, p. 522. (x) As to new trial, see post, p. 520. (y) As to venire de novo, see post, p. 522. (z) For the history of writs of error, see Steph. Hist. Crim. Law. i. p. 309. |