Slike strani
PDF
ePub

BOOK III.

CRIMINAL PROCEDURE.

We now have to consider the proceedings in criminal cases. But before entering upon the subject of Criminal Procedure it is necessary to consider what are the Courts with criminal jurisdiction.

18

C.L.

CHAPTER I.

COURTS OF A CRIMINAL JURISDICTION.

IN this chapter we shall treat of Courts taking cognisance of indictable offences, reserving for a subsequent chapter the consideration of Courts of summary jurisdiction.

THE HIGH COURT OF PARLIAMENT.

The jurisdiction of the High Court of Parliament, the highest Court of the kingdom, is exercised by the House of Lords in three ways:

1. By Impeachment.

2. By Indictment.

3. On appeals from the Court of Criminal Appeal.

1. Impeachment before the Lords by the Commons.-The Commons act as prosecutors, the allegation being that it is the people, whom they are supposed to represent, who are injured; the Lords form the tribunal. In place of an ordinary bill of indictment the charge against the offender is contained in articles of impeachment, which are prepared by a committee of the House of Commons. A peer may be impeached for any crime; a commoner may be impeached, at any rate for a misdemeanour, and, according to some authorities, for any crime. No impeachment has taken place for more than a century.

2. Indictment before the House of Peers.-In this Court are tried peers and peeresses against whom an indictment for treason or felony, or for misprision of either (a), is found during a session of Parliament. The indictment-that is, a true bill-is found in the ordinary way by a grand jury in the King's Bench Division, or at the assizes; the indictment being removed to the House of Peers by writ of certiorari (b). At the trial the pleading and punishment are the same as at trials of any other accused person (c).

The Court is presided over by a Lord High Steward, appointed by commission under the Great Seal. He is not Judge, but chairman, and votes with the other peers. The privilege of being tried by this Court, which cannot be waived (d), depends upon nobility of blood rather than upon the right to a seat in the House. This kind of trial may therefore be claimed by a peer under age; by Scotch and Irish peers, though they be not representative, except an Irish peer who is a member of the House of Commons; by peeresses by birth, and also those by marriage unless when dowagers they have disparaged themselves by taking a commoner for a second husband (e). Bishops, however, are not tried in this Court, but in Courts which have jurisdiction over commoners. As to the right of bishops to take part in the trials in the House of Peers, a resolution of the House in Danby's Case has ever since been adhered to, "that the lords spiritual have a right to stay and sit in Court in capital cases till the Court proceeds to the vote of guilty or not guilty (f). They then retire voluntarily, with a protest saving to themselves such rights in judicature as they have by law."

66

The trial by the House of Peers can only be held during the sitting of Parliament. During a recess the Court of the

(a) Peers are tried for misdemeanours before the ordinary tribunals.

(b) v. p. 335. For a recent instance of a trial of this kind, v. R. v. Earl Russell, [1901] A. C. 446; 70 L. J. K. B. 998.

(c) 4 & 5 Vict. c. 22; see, generally, Archbold, 165.

(d) Archbold, 165.

(e) Ibid.

(f) May, Parl. Prac., 669.

Lord High Steward takes its place for the trial of similar offences.

Here, unlike the former tribunal, the Lord High Steward is not merely chairman of the Court, giving his vote with the rest. He is Judge of matters of law, as the Lords-triers are of matters of fact. Therefore, as a Judge, he has no right to vote. A commission under the Great Seal confers the office of Lord High Steward for the particular occasion on some member of the House of Lords. When the indictment has been found, and removed by writ of certiorari, the Steward directs a precept to the serjeant-at-arms to summon the Lords to attend the trial. In cases of treason or misprision thereof, there must be summoned all the peers who have a right to sit and vote in Parliament (g). The decision is by the majority, which must consist of twelve at the least. Bishops cannot be summoned to this Court, nor have they the right of being tried there. But they have the right to stay and sit in such Court (h).

3. Appeals from the Court of Criminal Appeal.-By the Criminal Appeal Act, 1907 (i), it is provided that if the Director of Public Prosecutions or the prosecutor or defendant obtains the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance, and that it is desirable in the public interest that a further appeal shall be brought, he may appeal from the decision to the House of Lords.

In this case the constitution of the Court is governed by the Appellate Jurisdiction Act, 1876. It is, in practice, composed only of Lords of Appeal, of whom not less than three must be present. It may sit during the dissolution of Parliament (k).

(g) 7 & 8 Will. III. c. 3, s. 11.
(h) v. supra.

(i) 7 Edw. VII. c. 23, s. 1, sub-s. 6.
(k) 39 & 40 Vict. c. 49, ss. 3, 5, 9.

« PrejšnjaNaprej »