be made as directed from time to time by rules (i). By one of these rules an application to a Court of summary jurisdiction, under section 33 of the Summary Jurisdiction Act, 1879, to state a special case shall be in writing and shall be left with the clerk of the Court within seven clear days from the date of the proceeding questioned, and there shall also be left with him a copy of such application for each of the justices constituting such Court, which shall be duly forwarded by him to each of the said justices. The case shall be stated within three calendar months after the date of the application and after the recognisance has been entered into (k).

Where the charge is of a purely criminal character and the justices refuse to commit the defendant for trial, they have no power to state a case for the opinion of the High Court. They can, however, do so if the charge which is dismissed is one of a quasi-criminal nature only, e.g., a prosecution for a breach of by-laws, and this course is often taken. Whether a case can be stated where a charge is purely of a criminal nature and is dealt with by the justices summarily and dismissed appears to be doubtful (1).

Where no notice of application for the case in writing had been given to the justices making the order, though notice of application in writing had been served on their clerk, it was held that there was no power to state a case (m). The case when stated should be signed by all the justices, whether they agreed with the decision or dissented from it (n).

When the case has been stated by the justices, the appellant must give notice of the appeal to the other party, and supply him with a copy of the case (o), transmitting the original to the King's Bench Division of the High Court, whose decision in a "criminal cause or matter" is final (p).

(i) 20 & 21 Vict. c. 43, s. 3.

(k) Rule 52 of the Summary Jurisdiction Rules, 1915.

(1) Foss v. Best, [1906] 2 K. B. 105; 75 L. J. K. B. 575.

(m) Lockhart v. The Mayor of St. Albans, [1888] 21 Q. B. D. 188; 57 L. J. Q. B. D. 118; v. also Westmore v. Paine, [1891] 1 Q. B. 482; 60 L. J. M. C. 89. (n) Barker v. Hodgson, [1904] 68 J. P. 310.

[1896] 60 J. P. 312.

(0) Service upon the solicitor of the other party is insufficient. Hill v. Wright, (p) 36 & 37 Vict. c. 66 (Jud. Act, 1873), s. 47.

When there is any fault or illegality in the commitment alone, the proper remedy is for the defendant to sue out a writ of habeas corpus, which will be directed to the gaoler in whose custody the defendant is.

Certiorari. The proceedings may also be removed by writ of certiorari from the justices to the King's Bench Division for the purpose of being examined by that Court, and, if necessary, quashed. Unlike the qualified right of appeal, this right exists in every case as a matter of common law, unless expressly taken away by statute.

A writ of certiorari will in general lie for (1) a defect or informality on the face of the proceedings before the magistrates; (2) where there has been a want of jurisdiction on their part, or any of the magistrates have had an interest in the subject-matter of the proceedings, or the proper jurisdiction of the magistrates has been exceeded; and (3) where a conviction has been obtained fraudulently. The issuing of the writ is, except when it is applied for by the Attorney-General, in the discretion of the Court, and the application must be made within six months from the date of the proceedings complained of. The application is in the first instance by motion to a Divisional Court for an order nisi (or in vacation to a Judge in chambers) to show cause why the writ should not be issued, and if the rule nisi (or summons) is granted it must be served upon the justices six days before the return day when it is to be argued, in order that they, or the other party interested, may show cause against it. The rule nisi will then either be discharged or made absolute (q).

If the case is one in which the applicant has a right of appeal to Quarter Sessions no writ of certiorari will be granted before the time for appealing has expired, or, if he has appealed, before his appeal has been heard (r). The applicant must enter into a recognisance to pay costs if his application to set aside the order should be unsuccessful (s).

(q) For fuller details as to the practice, see Crown Office Rules, 1906, and Short and Mellor's Crown Office Practice, p. 37.

(r) Crown Office Rules, 1906, r. 29.

(s) Ibid. r. 24.

PART II.

APPEAL TO THE COURT OF CRIMINAL APPEAL.

1. Constitution of Court.—(1) There shall be a Court of Criminal Appeal, and the Lord Chief Justice of England and eight Judges of the King's Bench Division of the High Court, appointed for the purpose by the Lord Chief Justice with the consent of the Lord Chancellor for such period as he thinks desirable in each case, shall be Judges of that Court.

All the Judges of the King's Bench Division are now Judges of the Court of Criminal Appeal, 8 Edw. VII. c. 46, s. 1.

(2) For the purpose of hearing and determining appeals under this Act, and for the purpose of any other proceedings under this Act, the Court of Criminal Appeal shall be summoned in accordance with directions given by the Lord Chief Justice of England with the consent of the Lord Chancellor, and the Court shall be duly constituted if it consists of not less than three Judges and of an uneven number of Judges.

See, however, s. 17 as to matters which can be dealt with by one Judge. If the Lord Chief Justice so directs, the Court may sit in two or more divisions.

The Court shall sit in London except in cases where the Lord Chief Justice gives special directions that it shall sit at some other place.

(3) The Lord Chief Justice, if present, and in his absence the senior member of the Court, shall be president of the Court.

(4) The determination of any question before the Court of Criminal Appeal shall be according to the opinion of the majority of the members of the Court hearing the case.

(5) Unless the Court direct to the contrary in cases where, in the opinion of the Court, the question is a question of law

on which it would be convenient that separate judgments should be pronounced by the members of the Court, the judgment of the Court shall be pronounced by the president of the Court or such other member of the Court hearing the case as the president of the Court directs, and no judgment with respect to the determination of any question shall be separately pronounced by any other member of the Court.

(6) If in any case 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 should be brought, he may appeal from that decision to the House of Lords, but subject thereto the determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that Court to any other Court.

(7) The Court of Criminal Appeal shall be a superior Court of record, and shall, for the purposes of and subject to the provisions of this Act, have full power to determine, in accordance with this Act, any questions necessary to be determined for the purpose of doing justice in the case before the Court.

(8) Rules of Court shall provide for securing sittings of the Court of Criminal Appeal, if necessary, during vacation.

(9) Any direction which may be given by the Lord Chief Justice under this section may, in the event of any vacancy in that office, or in the event of the incapacity of the Lord Chief Justice to act from any reason, be given by the senior Judge of the Court of Criminal Appeal.

2. Registrar of the Court.-There shall be a Registrar of the Court of Criminal Appeal (in this Act referred to as the Registrar) who [shall be appointed by the Lord Chief Justice from among the Masters of the Supreme Court acting in the King's Bench Division and shall] be entitled to such additional salary (if any), and be provided with such additional staff (if any), in respect of the office of Registrar

as the Lord Chancellor, with the concurrence of the Treasury, may determine.

The senior Master of the Supreme Court shall be the first Registrar.

The Master of the Crown Office is now the Registrar of the Court of Criminal Appeal (8 Edw. VII. c. 46, s. 2, practically repealing the words in square brackets).

RIGHT OF APPEAL AND DETERMINATION OF APPEALS.

3. A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal:

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Convicted on indictment."-Notice that by s. 20, sub-s. 2, the Act applies also to convictions on criminal information and coroners' inquisitions and in cases where a person is dealt with by a Court of Quarter Sessions as an incorrigible rogue.

Also by s. 9, sub-s. 5 of the Criminal Justice Administration Act, 1914 (4 & 5 Geo. V. c. 58), a person sentenced by a Court of Quarter Sessions under that section to detention in a Borstal institution (v. p. 466) may appeal against the sentence to the Court of Criminal Appeal and the provisions of the Criminal Appeal Act shall apply accordingly.

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(a) against his conviction on any ground of appeal which involves a question of law alone; and

Conviction."-Note that a prosecutor cannot appeal to the Court of Criminal Appeal, though with the certificate of the Attorney-General he can appeal to the House of Lords, s. 1, sub-s. 6.

The word conviction includes a conviction upon a plea of guilty (R. v. Alexander, 7 Cr. App. R. 110; R. v. Ingleson, [1915] 1 K. B. 512; 11 Cr. App. R. 21). It does not include the finding of a jury that a person arraigned was unfit to plead (R. v. Larkins, 6 Cr. App. R. 194) nor a finding that he was insane at the time he committed the act (Felstead v. R., [1914] A. C. 534; 83 L. J. K. B. 1132; 10 Cr. App. R. 129; R. v. Taylor, 11 Cr. App. R. 198).

Where the indictment is bad in law an appeal lies as of right, but unless the defect is one of substance the Court may dismiss the appeal on the ground that no substantial miscarriage of justice has occurred (s. 4, sub-s. 1) or may substitute a verdict of guilty for some other offence (s. 5, sub-s. 2); R. v. Garland, [1910] 1 K. B. 154; 3 Cr. App. R. 199. See Archbold, 321-322.

Where evidence has been wrongly admitted the conviction will be quashed unless such evidence could not reasonably be said to have affected the minds of the jury; in considering this question the nature of the evidence so admitted and the direction with regard to it in the summing-up of the Judge are the most material matters. (See Archbold, 322, and authorities cited.)

If evidence has been wrongly excluded the question for consideration again is its probable effect upon the minds of the jury, and unless the verdict would in all probability have been the same the conviction will be quashed. (Ibid.) If at the close of the case for the prosecution there is in the opinion of the Judge no evidence to go to the jury he should, upon a submission to that effect being made to him, direct the jury to find a verdict of not guilty, and it has been held that if he fails to do so the Court of Criminal Appeal may not have regard to any evidence for the defence which supplies the defect in