Page images

in Blackstone's time and much like what it is to-day in many of our American states. When it came to organizing a Court of Criminal Appeal, however, instead of following the American fashion of putting a few timid patches on an old system and calling it 'law reform,' the English enacted legislation of a quite different character. The new system, to be sure, was adopted only after a half century of agonizing parliamentary debates, of endless pamphlets by learned lawyers, after every argument of conservatism against reform had been heard and heard again. It was adopted notwithstanding the vaticinations of its opponents that it would result in a court swamped with countless frivolous appeals that would result, in turn, in delays and the general encouragement of crime.

The Act itself, it should also be noted, was largely the work of laymen, the English public having become tired of the continuous objections of a timid bar. Instead, therefore, of a hesitant and incomplete experiment, the new Act creating the Court of Criminal Appeal was a very bold innovation. In fact it is a court with powers so broad and startling that it cannot be contemplated by the average American lawyer without a shudder.

This Court of Criminal Appeal can allow an appeal and set aside a conviction if it thinks a jury's verdict is unreasonable' or cannot be supported by the evidence, or because of a wrong decision on a question of law, or if it thinks that 'on any ground there was a miscarriage of justice.'

If the judges think the sentence was too severe, they can shorten it. If, on the other hand, the prisoner appeals from a sentence because he thinks it too long, and the court, on the contrary, thinks it is too short, the court can lengthen the sentence. If the prisoner

was convicted on two counts and the court thinks he was properly convicted on one and not on the other, it can make a substitute sentence for the offense for which it thinks he was properly convicted. If it appears that the prisoner was improperly convicted of one offense with which he was charged and the court thinks he was guilty of another with which he was not charged, and if the court believes the jury must have been satisfied that the evidence proved him guilty of the uncharged offense, then, instead of allowing or dismissing the appeal, the court can substitute for the verdict found by the jury a judgment of guilty of the uncharged offense, provided that the punishment is not more severe.

This is all very bewildering to an American American lawyer. What American appeal court can to-day lengthen or shorten a sentence, or substitute a sentence on a crime of which the court thinks the jury must have thought the prisoner guilty for a sentence on a crime for which he was tried and was improperly found guilty? What American appeal court could or would allow a convicted defendant, for example, to call before it for examination a witness who had not been heard in the court below for lack of carfare to attend the original trial?

The main point seems simply to be this. The English people, when they finally concluded after a long delay and many misgivings to create an appeal court for criminal cases, did the following very original and startling thing: they gave the new court every conceivable power to correct any miscarriage of justice, and the widest possible discretion in the handling of criminal appeals.


At first blush it would seem that the misgivings of the original objectors to

the English Court of Criminal Appeal had merit and that the court was bound to be swamped with frivolous appeals. Consider the phraseology of the court's power to determine appeals. It is this:

The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal.

It would certainly seem that if the Appeal Court could set aside a verdict because it thought it was unreasonable, or because for any reason whatever the court thought there was a miscarriage of justice, the temptation to appeal would be great and the number of appeals would be excessive. Before considering the reasons why these misgivings have not proved to be real, it should be said that, according to the Chief Justice of the Court of King's Bench, who is the head of the English Court of Criminal Appeal, only 7 per cent of defendants having a right to appeal do so; that the court averages about 520 cases a year; that the range of sentences reduced has run from 17 to 47, and the number of convictions quashed from 14 to 39. The court was able to dispose of all the cases which came before it in 1924 in 41 days, in 42 days in 1925, and in 35 days in 1926.

Perhaps one reason why there have been so few appeals has been that the court, having the widest possible authority to determine whether or not a given conviction was right or wrong, has been forbidden by the Act from considering anything else. In any

other case,' the Act says, the court 'shall dismiss the appeal.'

One feature of the English court which must have immense value in the repression of crime is the speed of its work. We in America completely lose sight of the psychological importance of speed in the final determination of criminal cases. Someone, for example, is murdered. It may be a very gross and inhuman crime. We are shocked at the wrong done to the victim at the time we first hear of the case. Long before its final determination, however, the dead victim has faded from our memory and we simply have before us the picture of the living defendant squirming to escape punishment for his crime, and our sympathies go to him largely because we have forgotten his victim.

This cannot happen in England. The average length of time that elapses in England from the day the appeal is taken, which has to be ten days after conviction, to the day it is finally disposed of in the Court of Criminal Appeal is less than five weeks. Even by the shortest of memories the victim cannot be forgotten in this time. With us the pressure, if any, for speed in criminal appeals is ordinarily on the part of the prosecutor. In England it is quite the reverse. The pressure is on the part of the defendant himself. This marked difference between our system and the English is due to a provision which doubtless would seem quite shocking to us. In England when a man is convicted he never obtains a certificate of reasonable doubt, or goes out on bail. He goes to prison. If he takes an appeal he is entitled, as the English law says, 'to special consideration as an appellant,' whatever that may mean, but he stays in prison while his appeal is progressing. What is more, the time which elapses between his conviction and the time his appeal

is heard does not subsequently count on his sentence. He is obviously in a hurry, under these circumstances, to have his appeal disposed of, and the celerity of the English appeal is largely due to the stimulative celerity of the defendant.

Whereas the American system entails a long delay in printing records on appeal, the English appeal consists merely in the transcription of the stenographic records and documents of the trial. Preparing these minutes is the main cause for such delay as may be involved in the short period which elapses between conviction and appeal. Not only is the appeal speedy, but the decision also is speedy, and lacks all the common characteristics of an ordinary American appeal decision. There is absolutely no 'learning' in an opinion of the English Court of Criminal Appeal. Very rarely indeed is there any reference whatever to previous decisions, to rules of law, or to anything except the main question of whether on the whole the verdict is 'satisfactory' or 'unreasonable.' Most opinions are very short, it is a rare case when one is two pages long, — and most of them indicate on their face that they have been rendered immediately at the close of the argument itself.

Nothing will show more clearly the psychological difference between the English court and our own in determining appeals than this speed of determination, brevity of opinion, concentration on the main question of whether the appellant has been treated fairly or whether the verdict against him has been unreasonable.


There is one further observation which an American lawyer is bound to make on scanning a volume of the opinions of the English Court of

Criminal Appeal. It is that English sentences seem to be on the whole short, and that the Appeal Court itself performs a function which is unknown with us - that of equalizing sentences.

Time and again wardens of prisons have told me they cannot understand the great variations which occur in the sentences with which prisoners come to them. The warden finds, for example, that he has two men convicted of the same crime with what seems to him an unexplainable difference of ten or fifteen years in the length of their respective sentences. Cases of this kind are not infrequent. Some of our judges are severe, some are lenient, some express their headaches or family troubles in long sentences, some reflect perfect digestion in short sentences. Convicts who compare the length of their sentences are more likely to note these differences than the average layman. There is with us no process in the courts by which sentences can be equalized, however. The English Court of Criminal Appeal serves as a part of an Equalization Board in this connection.

A few illustrations will show the operation of this function of the court and also the difference between the two countries in the relative severity of sentence. Take, for example, the case of one of two men in England who pleaded guilty to breaking and entering a shop and stealing jewelry. This man received a three-year sentence. He had been convicted in 1899, in 1913, and in 1914. He had a good army record, and then in 1921 he received a penalty of three years for receiving stolen property. After he came out of prison he worked for thirteen months. When he was dismissed for slackness of work, he committed the offense of which he is now convicted. In New York this man would have received a mandatory life sentence. The English court said:

It seems clear that these sentences were passed without sufficient regard for the record of the appellants as a whole. Both men had good army characters. It is urged upon behalf of the appellants too little attention was paid to their efforts to get honest work and to the long periods during which they successfully resisted the temptation to commit crime. There seems to be substance in these contentions and, although the offense to which the appellants pleaded guilty was undoubtfully a serious offense, this court is of the opinion that each of these sentences may properly be reduced to eighteen months' imprisonment with hard labor.

Here is another.

A man convicted of housebreaking was sentenced to two years at hard labor. He appealed and conducted his own appeal and the Crown apparently was not represented. The court said:

The appellant was convicted six times of offenses of dishonesty before the war. He had enlisted in the army, served during the war, and was discharged in 1919. He reentered and served until 1922. He was then convicted of stealing a bicycle and sentenced to six months. Since that date there is no record of any offense until the one we are dealing with to-day. It does not appear that the Chairman in passing sentence took into consideration that there was an interval of three years of honest life between the offense of 1922 and that for which the appellant has lately been convicted. In these circumstances we think that the sentence is too severe and we reduce it to one of fifteen months' imprisonment. If it be assumed that these previous offenses were felonies, this man would have received a life sentence in New York under recent legislation which makes such sentence mandatory after the fourth conviction. The New York Court of Appeals, in sustaining the constitutionality of this new law, said:

This may work extreme hardship in certain cases where the sentencing judges would be justified in feeling that the

punishment was too severe for the nature and circumstance of the crime or crimes committed, but these matters are for the legislature or the Executive. Courts have no inherent power to modify sentences to meet exceptional cases. Courts declare law as it is.

Neither the English trial judge nor the English Court of Criminal Appeal is subject to these limitations. Even if he has pleaded guilty, a defendant who thinks he has received a harsh sentence may appeal from the sentence itself. This appeal is a dangerous one, to be sure, because the Appeal Court may, if it concludes that the sentence was in fact too short, lengthen it. To us this is another unheard-of judicial power.

In the treatment of those whom we call habitual criminals it may be said parenthetically that English law seems exceedingly lax and of a sentimentality bordering upon the maudlin. Not only are life sentences for habitual criminals not provided, but the most which can be done to give effect to prior convictions is to have from five to ten years added to the sentence of penal servitude fixed for the crime. This additional sentence is called 'preventive detention' and under it these habitual offenders are sent to Camp Hill on the Isle of Wight, where they are entitled to more freedom than ordinary prisoners, under the Prevention of Crimes Act of 1908, which prescribes that these prisoners are entitled to 'less rigorous treatment as the Secretary of State may provide.'


All these differences between the

legal systems of the two countries come from one main difference which has not been discussed - an essential and basic difference between English criminal law and ours. England trusts her magistrates. She selects them carefully, gives

them wide powers, and expects them to perform their duties in the maintenance of the dignity of English justice. That they have met these expectations is indicated by the criminal statistics which I have quoted at the beginning of this paper.

Here in America, power in criminal law is mainly vested in the amateur rather than the expert. We trust our juries, but do not trust our courts. We have whittled down the power of the judge so as to make him a moderator rather than a judge. Our criminal trials with the centre of authority vested in a dozen jurors, amateurs in justice, adventitiously called for the exercise of undirected powers, are public spectacles of a type utterly unknown in the British Isles. What the bullfight is to Spain the trial in murder cases is to America great spectacle. It gets continuously



Nothing paralleling the trial of the Hall-Mills case, one of the most grotesque cartoons of a murder trial that ever happened, can be found in the annals of British law. Nothing like the recent Remus case in Ohio could have occurred in England. We have overdeveloped the jury system by minimizing the authority of the judge.

To make the matter worse, we have made criminal law notoriously technical. We have multiplied in our appellate courts a learning which disfigures our jurisprudence and which complicates all the processes of criminal justice and adds to the difficulties of the trial judge. The English reform has been in simplification. The English judge can keep his mind fixed on the main point, conscious that when the trial over which he has presided is considered in the Court of Criminal Appeal it will be on the single question of whether, on the whole, justice has been done.

The English people are accustomed to believe that their judges are actuated by a fair spirit and that the rights of the defendants as well as the rights of the Crown will be fully protected. Consider what happened last year with us in the Sacco-Vanzetti matter. The whole country was turned into two contending camps on the question of whether these men were innocent or guilty and whether they had received in fact a fair trial. The highest court of Massachusetts, after seven years of delay, reached its conclusion on the case. It did not have the power to find whether, on the facts, these men had been properly convicted. The weight of the evidence was a matter for the amateur in the court below the jury. The opinion of the Massachusetts Supreme Court did not consider the real merits of the issue in which both the defendants and the American public were interested. It could consider and did consider only rulings on questions of law. It wrote a very long opinion, considering separately each of the so-called 'assignments of error,' the technical name by which questions of law are raised in an appellate court, and found no 'error' in these findings. The opinion itself was an unintelligible jargon from the layman's standpoint. It was a form of mystery made worse by learning. It settled nothing.

This would not have happened in England. The English court's opinion in such a case would doubtless have been a very short one. It would, however, have discussed and decided those vital questions in which alone the public was really concerned: Was the verdict reasonable or not? Was the verdict one supported by the evidence or was it not? Was there on any ground a miscarriage of justice? These questions an English court would have considered and these alone, and on these grounds and these only could the conviction

« PreviousContinue »