6

direct. The K. B. has power to order execution' where it thinks proper: Garside, conviction at Chester, execution in Surrey.

Recording judgment of death] was by 4 G. 4, 48, 1, permitted except in murder, but the statute is now a dead letter: 1 Stephen, Hist. Cr. L. 472; piracy and setting fire to the King's ships are the only crimes to which it can apply. But such sentence may not even be recorded against persons under sixteen: 8 E. 7, 67, 103.

Date of sentence] It is doubtful whether a court can antedate a sentence before the first day of assizes or Q. S.: W. S. Davies, 7 Or. A. R. 255, 1912.

For post-dating, see King v. R.

B. OTHER SENTENCES.

1. INCARCERATION.

NOT OF CHILD OR YOUNG PERSON.

By 7-8 G. 4, 28, 8 (as amended): Every person convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes especially relating to such felony; and every person convicted of any felony, for which no punishment hath been, or hereafter may be specially provided, shall be deemed to be punishable under this Act, and shall be liable to be transported beyond the seas for the term of seven years.'

Penal servitude] was gradually substituted for transportation by 16-7 V. 99, 1853; 20-1 V. 3, 2, 1857; and 27-8 V. 47, 1864, the two former of which authorise the convicts being sent beyond the seas (so that criminals were kept in confinement at Bermuda and in Gibraltar till very lately': Stephen, 1 Hist. Cr. L. 482, 1883, of which see for the history of this subject, p. 480 and foll.).

Prisoner already under sentence] See Term, &c., below. In 7-8 G. 4, 28, 10, it is doubtful whether subsequent offence' means one committed or tried subsequently: J. J. Hemming, 1912.

Sentence for life] For what remains of the Transportation A., 5 G. 4, 84, see p. 585. By 7-8 G. 4, 28, 11: If any person shall be convicted of any felony, not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable to be transported beyond the seas for life.' This s. is practically obsolete (and for simple larceny impliedly repealed).

Remanets] It was pointed out by Hawkins J., in King, 1897, 1 Q. B. 214; 66 L. J. Q. B. 87; 18 Cox C. C. 447: C. C. R., that where there is an unexpired term of penal servitude which a convict may be sent back to serve out, there is no power in the tribunal to make the new sentence run concurrently with this term, which must commence after the expiry of the sentence, under 27-8 V. 47, 9 (amended by 54-5 V. 69, 3); where the court made a mistake on this point, the C. C. A. amended: Hamilton, 1908. So in J. Smith, and M. Wilson, 1909, 2 K. B. 756; 79 L. J. K. B. 4; 73 J. P. 407; 2 Cr. A. R. 271, where the court said that no remanet should be mentioned in sentence as it operates by law.

Term] By 54-5 V. 69, 1 (1), 'Where under any enactment in force when this section comes into operation [Aug. 5, 1891] a court has power to award a sentence of penal servitude, the sentence may at the discretion of the court be for any period not less than three years and not exceeding either five years or any greater period authorised by the enactment.'

By 54-5 V. 69, 1 (2), 'Where under any Act now in force or under any future Act a court is empowered or required to award a sentence of penal servitude, the court may in its discretion, unless such future Act otherwise provides, award imprisonment for any term not exceeding two years with or without hard labour. In consequence of this 8. a large number of alterations have been made by S. L. R. Acts, in 1892 and 1893, in the Consolidation Acts, 1861, and other criminal statutes in order to bring the latter into conformity with the s. The words, too, at the discretion of the court' have been repealed in very many passages, but not in all.

Imprisonment] At the same time the power to award solitary confinement (in the old sense)-a form of punishment which before 28-9 V. 126, 1868, was allowed to be inflicted only for a short part of the whole term' and had fallen into disuse-has been taken away; it remains, however, in a (modified) form, called 'separate,' regulated by the Prison Rules (St. R. & O. Rev. 1904, Prison E. 77-108; amended St. R. & O. 1901-15). Separate confinement is now [1883] inflicted in all cases as the regular and appointed mode of punishment': Stephen, ib., who says that in practice it means much the same thing as solitary.' The only distinction' in point of character, says Sweet, Law Dict., between penal servitude and imprisonment with hard labour' seems to be that the latter is carried out within the walls of a gaol while penal servitude is carried out in any place appointed for the purpose by the proper authority.' In Hamilton, 1 Cr. A. R. 88, 1908, Alverstone L.Č.J. said, a sentence of two years' imprisonment' with hard labour is by many considered severer than three years' penal servitude.' In A. Arnold, ib. 28, he said the same of eighteen months' imp. w. h. 1. Cf. H. White, 1912. But three years' imp. w. h. 1. may still be a sentence under 14-5 V. 19, 12.

Three divisions] When hard labour is not imposed, if the court makes no order, the offender is in the third division; if it makes an order it must specify whether he is to be in the first or second: 61-2 V. 41, 6 (2); but if the visiting committee consider the case suitable for treatment in the second division' they may transfer it thither from the third: 4-5 G. 5, 58, 16 (2). Neither a court nor the committee shall put any one in the second division if his character and antecedents are such that he is likely to exercise a bad influence on first offenders': ib. 16 (3).

The moral grounds, as they may be called, of this classification are set forth in a Home Office circular of April, 1899, for which see 1 Russ. Cri. 214. The details of the distinctions will be found for local prisons in Stat. R. & O. 1899, p. 1128 and foll.; juvenile prisoners, p. 1135; for convict prisons, p. 1151 and foll., where the three classes are star,' 'intermediate' and 'ordinary.'

'I have frequently sentenced prisoners to hard labour, and then on being asked to put them in the second division I have done so, but I have increased their sentence': per Channell J., Kirkpatrick, 1 Cr. A. R. 171; 73 J. P. 29; 25 T. L. R. 66, 1908.

In refusing to put S. Harris, 2 Cr. A. R. 50, 1909, in the second division, Darling J. said: 'The question whether a convicted person should be sent into the second division or not depends upon the kind of person so convicted, and not upon the class of offence' (here corruption).

Special treatment pending appeal] under s. 14 (1) of the Crim. Ap. A. In Gylee, 1 Cr. A. R. 244, 1908, the O. C. A. stated, on the authority of the Home Office, that there is a distinction between this and the second division, but in Dyer, &c., 2 Cr. A. R. 175, 1909, that the conditions are identical.' Where a judge had first imposed hard labour for larceny, and then substituted the second division, the C. C. A. restored the former, having regard to the nature of the [previous] convictions': Mortimer, 1 Čr. A. R. 24; 72 J. P. 391; 24 T. L. R. 745, 1908, a very rare instance of that court increasing a

sentence.

Hard labour] The punishment and the phrase occur first: 5 An. 6, 2, 1706; rpd. 7-8 G. 4, 27, 1. It has always required statutory authority for its infliction. By 4-5 G. 5, 58, 16 (1), superseding unrpd. 14-5 V. 100, 29 (whereby the following indictable misdemeanours were made punishable additionally with hard labour: any common law cheat or fraud; conspiracy to cheat or defraud, to extort money or goods; falsely to accuse of crime, to obstruct, &c. public justice; escape or rescue from lawful custody on a criminal charge'; public and indecent exposure of the person; public selling or exposing for public sale or to public view, of any obscene book, print, picture or other indecent exhibition '), when there is a conviction without the option of a fine, imprisonment may be either with or without hard labour, notwithstanding that the offence is an offence at common law or that the statute under which the sentence is passed does not authorise the imposition of hard labour or requires the imposition of hard labour.' (Till then hard labour must be imposed by 46-7 V. 51, 6 (2), for personation.) But when imprisonment is imposed. in respect of the non-payment of any sum adjudged by a court to be paid,' it 'shall be without hard labour.' See E. Saunders, 12 Cr. A. R. 61, 1916; A. A. Gould, 13 Cr. A. R. 144, 1918. The result is that the only case in which hard labour cannot be imposed is when imprisonment is due to non-payment of a fine.

The incidents of hard labour are regulated by the (chief) Prison Acts (see Index) and the rules made under them. A prisoner is [now] able to earn a remission of one-sixth of the sentence by good conduct, and the really severe period of the hard labour is quite short': per Pickford J., Jenner, 6 Cr. A. R. 64, 1910.

Preventive detention] See Habitual Criminal. There can be no sentence with a view to preventive detention unless there has been a trial for being a habitual criminal: Flicker, Chuter, 5 Cr. A. R. 79; 74 J. P. 381; 26 T. L. R. 540, 1910: sentences reduced.

2. Police supervision] Where a person is convicted on indictment of any felony or . . of uttering false or counterfeit coin or of conspiracy to defraud or of any misdemeanour' under 24-5 V. 96, 58 [i.e. of being found by night armed with intent to break into any house], after a previous conviction, the court may in addition to any other punishment' direct that he be under police supervision for any period not exceeding seven years, immediately after the expiration of his sentence: 34-5 V. 112, 8, 20; s. 8 is amended 54-5 V. 69, 4 (1), and extended 42-3 V. 55, 2. When no previous conviction is proved this sentence cannot be inflicted: Bendon, 6 Cr. A. R. 178, 1911.

3. TERM AND NATURE OF SENTENCE.

Where a statute left it doubtful under which s. sentence should be passed (where it was different under each), the court will choose the lighter': Turner, 20 Cox C. C. 592, 1903: C. C. R. Cf. D. Johnston, 1913; G. W. Norman, 11 Or. A. R. 60, 1914.

The decisions of the C. C. A. in reviewing the sentences of the courts of trial are naturally some guidance on these points, but the court has laid down very few general principles. In the following pages on this subject no notice has been taken of cases in which the court above has considered fresh evidence or new facts not before the judge at the trial, or those in which it has interfered with a sentence on the ground of misdirection; see Standardisation, below.

That court only acts when it is apparent that the trial judge proceeded on wrong principle or gave undue weight to any fact proved; the term which any individual member of the court would have imposed is not the criterion: Sidlow, 1 Cr. A. R. 29, 1908; Maurice, ib. 177; Nuttall, ib. 180, 1908. Thus ten years' p. s. for manslaughter was reduced to three where the court thought that it had been overlooked, that there was provocation and no vindictive feeling and defendant was under the influence of drink: C. O'Connell, 2 Cr. A. R. 11, 1909.

Age-youth] Five years' p. s. reduced to three, in A. F. Dean, 4 Cr. A. R. 155, 1910, twenty years old, with a very bad record but no previous p. s.: housebreaking; T. Wright, seven years' p. s. reduced to three: burglary; seven years' p. s. reduced to five, larceny: Fenlon, 11 Cr. A. R. 13, 1914, who was twenty-two; three years' p. s. for burglary, after five convictions, reduced to twelve months' imp. w. h. 1., defendant being twenty-one: C. Owen, ib. 292, 1915. See Mayes and Fox, 1916, and Golding, 12 Cr. A. R. 184, 1916. Imprisonment was reduced to the second div. solely on the ground that defendant was only fifteen and a half, and though not previously convicted, he had confessed many burglaries: Leverett, 13 Cr. A. R. 1, 1917. So J. West, ib. 16, three years' p. s. reduced to eighteen months' imp. w. h. 1. Two concurrent terms of two y. imp. w. h. 1. on three indictments for larceny, altered, despite the prison-governor's view, to three y. Borstal': S. Thorpe, sixteen years of age: 13 Cr. A. R. 176, 1918. For eighteen months' imp. w. h. 1. and two years' police supervision, two years in a Borstal institution substituted, after previous convictions: G. E. Morton, 14 Cr. A. R. 37, 1919.

6

Old age] Eight months' imp. w. h. 1. reduced to four (incorrigible rogue): Annie Kent, 6 Cr. A. R. 291, 1911. Three years' p. s. for a petty theft was, despite many previous convictions, reduced to six months' imp. in the second div., defendant being seventy-two: Maria Jones, 9 Cr. A. R. 251, 1913. A man of sixty-two, against whom nothing was recorded till he was fifty, but who after that had lived a criminal life, was sentenced to three years' p. s. and seven years' preventive detention; the former was reduced to eighteen months' imp. w. h. 1. (and the latter consequently remitted): J. Thompson, 10 Cr. A. R. 124, 1914. Five years' p. s. for obtaining by false pretences reduced to three after many previous convictions (but none for three years): Montgomery, ib. 282. Seven years' p. s. for abominable crime reduced to twelve months' imp. w. h. 1., defendant being sixty-six: Kelly, 11 Cr. A. R. 12, 1914. Five years' p. s. reduced to three, defen