Shorthand Record of Trial.

345

wife or children, and any recommendation of the court as to the making of an expulsion order in the case of a person convicted.

22. The Acts specified in the schedule to this Act are hereby repealed to the extent mentioned in the third column of that schedule.

and a Schedule of Forms were made in 1908,* in accordance with 8. 18 (1).

Record of the proceedings] In any case in which an appeal lies to the C. C. A., Shorthand notes shall be taken of the proceedings at the trial by s. 16 (1) of the Criminal Appeal A. 1907, s. 8 of which assumes that the president of the court takes notes of the trial.' S. 16 (1) is explained by C. A. Rule 52: 'For the purpose of s. 16 of the Act, proceedings at the trial shall mean the evidence and any objections taken in the course thereof, any statement made by the prisoner, the summing up and sentence of the judge of the court of trial, but unless otherwise ordered by such judge, shall not include any part of the speeches of counsel or solicitor.' See further, Registrar's Instructions of June 30, 1910. Nothing must be omitted from the witnesses' examinations: Beauchamp, 2 Cr. A. R. 41, 1909. But irregularity in the note or transcript does not invalidate the trial: Rutter, 1908, where the summing up was omitted. Any incident affecting the trial during its course should be recorded, e.g. a statement interjected by someone not a witness, in court and heard by the jury: T. Austin, 12 Cr. A. R. 171, 1916.

In the event of a discrepancy, the judge's notes are preferred by the C. C. A.: Beauchamp, above.

The official shorthand writer is bound under the rules to keep the transcript: per Alverstone L.C.J., J. Harris, 8 Cr. A. R. 35, 1912, the C. A. Rule being, apparently, 5 b: [he] shall retain the same

Since which date no edition of the Rules seems to have appeared except that of the present editor (Jordan & Sons).

unless and until he is directed by the Registrar to forward' the note to him.'

Bail] In Rawlings, 1909, Alverstone L.C.J. said that the general rule of the court is not to allow bail pending appeal: so E. Gordon, 7 Cr. A. R. 182, 1912-especially when the sentence is for a long term: W. Garnham, 4 Cr. A. R. 150, 1910-and it especially objects to do so if notice has not been given to the prosecution: Ridley, 2 Cr. A. R. 113, 1909. It is doubtful whether it has power if it quashes a conviction and there is another indictment to try: Halikiopulo, 3 Cr. A. R. 275, 1909; the application should be made at chambers: Coulter, 5 Cr. A. R. 150, 1910. Nor is bail allowed when the application is made to delay the appeal: Horner, 4 Cr. A. R. 189, 1910.

The statute which created the C. C. A. abolished writs of error, and the method of revision in each case is so dissimilar that nothing is to be gained by reproducing the cases where relief was given or refused under the old system-especially as there does not seem to be a single instance where the modern tribunal has taken a precedent from that system. And there seems to be no instance in which relief could have been obtained through a writ of error in which it cannot now be more speedily obtained under the statute in question. Perhaps the certificate of the Attorney-General enabling, under s. 1 (6) of that A., an appeal from the C. C. A. to the H. L. is a relic of the writ of error.

New trial] The powers and practice now existing in the High Court in respect of motions for new trials or the granting thereof in criminal cases are hereby abolished': s. 20 (1) of Cr. Ap. A. p. 344. But in highway and similar cases there is an appeal from conviction as if from a verdict in a civil action: s. 20 (3); see C. O. R. 17.

Venire de novo] It is pointed out, 2 Russ. Cri. 2006, that the C. C. A. has no express power conferred on it by the Cr. Ap. A. 1907, to grant a venire de novo, and as s. 4 (1) of the Act, after providing for the cases in which that court shall allow an appeal enacts that the court in any other case shall dismiss the appeal, it seems doubtful whether that court has power to award a venire de novo at all.' Ross, however, Court of Crim. Ap. p. 5, says that it probably has the power to grant such a writ where the trial is a nullity. That court has in fact ordered a venire de novo for mistrial in W. Baker, 1912, followed in Ingleson, 1915; and in Dickman, 74 J. P. 451, Alverstone L.C.J. is reported to have said: 'I agree that if . . . there had been a mistrial, I think this court [C. C. A.] would have had jurisdiction to grant such a writ'; indeed, it is difficult to deny the argument there for the appellant that that court inherits the jurisdiction of the Court for Crown Cases Reserved under s. 20 (4) of the Cr. Ap. A.

Court for Crown Cases Reserved] By that s. the jurisdiction and authority of that tribunal is merged in the C. C. A. rather than extinguished, and cases have in fact been stated to that court: C. A. Rule 26. If, therefore, the C. for C. C. R. had (or has) the power to award a venire de novo, the C. C. A. has it. In Mellor, 1858, there was great conflict of opinion in that court whether the power existed or not, and it was decided by seven to six that it did not, but in Yeadon, L. & C. 81; 31 L. J. M. C. 70; 9 Cox C. C. 91, 1861, the five judges of that court, all of whom had taken part in Mellor, awarded

a venire without discussing the point. Yet in Martin, 1872, five judges, none of whom had been parties to Yeadon, ignoring that case, which was cited, doubted whether the court had the power. The statute 11-12 V. 78 has become relatively less important.

Doubt of court of trial on a point of law] Under that statute the court could state a case to satisfy its own doubt even after plea of guilty and sentence, as Kennedy J. did in Riley, 1896. Now the same object would be attained either by granting a certificate under the Cr. Ap. A. or by stating a case, and the C. C. A. may call for the latter: s. 20.

Depositions] In that case Kennedy J. seems to have doubted whether the court above could read the depositions-perhaps in view of Clark, L. R. 1 C. C. R. 54; 36 L. J. M. C. 16; 10 Cox C. C. 338, 1866. But there is no doubt that the C. C. A. can: W. Hillman, 1 Cr. A. R. 49, 1908.

Statutes] By 36-7 V. 66, 47, as amended, the determination of any such question [of law arising in criminal trials] by the judges of the High Court in manner aforesaid shall be final and without appeal, and no appeal shall lie from any judgment of the High Court in any criminal cause or matter, save for some error of law apparent upon the record as to which no question shall have been reserved for the consideration of the said judges' under 11-12 V. 78. This s. is dealt with in s. 20 (4) of the Cr. Ap. A. See Fletcher, 2 Q. B. D. 43; 46 L. J. M. C. 4; 13 Cox C. C. 358, 1876: C. A.

By 38-9 V. 77, 19, as amended, 'subject to the first schedule' (of the A.) and any rules of court to be made under this Act, the practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively shall be the same as the practice and procedure in similar causes and matters before the commencement of this Act.'

d. COSTS.

a. Payable by a local authority.

By s. 1 of 8 E. 7, 15, the Costs in Criminal Cases A. 1908: (1)(a)‘a court of assize or a court of quarter sessions before which any indictable offence is prosecuted or tried may on any such proceedings by order direct the payment of the costs of the prosecution or defence or both, in accordance with the provisions of this Act, out of the funds of the county or county borough out of which they are payable under this Act.

By s. 1 (2) these costs are to be regulated by the Secretary of State, and must appear to the court reasonably sufficient to compensate the prosecutor for the expenses properly incurred by him in carrying on the prosecution and to compensate any person properly attending to give evidence for the prosecution or the defence or called to give evidence at the instance of the court, for the expense, trouble or loss of time properly incurred in or incidental to the attendance and giving of evidence,' and the amount is to be ascertained as soon as practicable.' By s. 1 (4) no expenses are allowed to witnesses to character only, unless the court shall otherwise order.'

Director of Public Prosecutions] By 8 E. 7, 3, 2 (4), the Director of Public Prosecutions is for this purpose in the position of a private

prosecutor. By 42-3 V. 22, 7, his intervention releases any private prosecutor from recognisance or security for costs, but though he cannot be made to give either, he is liable for security in lieu of the person he displaces. Hence, if the private prosecutor had not given such security, the Director was not liable on acquittal: Stubbs v. Director, &c., 4 Q. B. D. 577; 59 L. J. Q. B. 201; 17 Cox C. C. 1, 1890. The Secretary of State's Regulations under the 1908 A. give mere forms without the figures of the costs allowed: St. R. & O. 1908, p. 234. Consequently, the actual scale of allowances must be sought in St. R. & O. 1904, p. 117 (which was in force on Dec. 31, 1915).

Where bigamy was committed in London, but tried at Manchester, the K. B. D. was clear that under s. 4 of the 1908 A. the London County Council was liable to pay the costs: L. C. C., ex parte Keys, 24 Cox C. C. 263, 1914.

By s. 4 (1), Costs in the case of offences committed or supposed to have been committed in a county borough, whether the court directing the payment is held in the borough or not, are payable under this Act out of the borough fund or borough rate of the county borough, and costs in the case of other offences are payable under this Act out of the county fund of the administrative county in which the offence is committed or is supposed to have been committed.' This enactment adopts the law in the following case.

Where murder was alleged in a borough but the death took place in the county, and the only charge was on the county coroner's inquisition, the borough magistrates having refused to commit, it was held, under rpd. ss., that an order that the borough must pay the expenses of the prosecution was right: Re Brown; Ex parte Mayor, &c., Wigan, 19 Cox C. C. 33, 1898.

Admiralty] S. 4 (1) continues: For the purposes of this provision, offences committed within the jurisdiction of the Admiralty of England shall be deemed to have been committed in the place where the offender is prosecuted or tried, or where the offender is tried at the Central Criminal Court, in the county of London; but any costs paid in the case of those offences out of the funds of any county or county borough shall be repaid out of moneys provided by Parliament.'

b. Payable by defendant or prosecutor.

Defendant] By s. 6 (1) of the 1908 A.: The court may, if they think fit, in addition to any other lawful punishment, order the person convicted to pay the whole or any part of the costs incurred in or about the prosecution and conviction, including any proceedings before the examining justices as taxed by the proper officer of the court.'

By 33-4 V. 23, 13, a convict's administrator (see Convict's Property) may pay out of his property all costs and expenses which the convict may have been condemned to pay.'

Prosecutor] By s. 6 (2): On an acquittal on any indictment or information by a private prosecutor for the publication of a defamatory libel or for any offence against the Corrupt Practices Prevention A. 1854, or for the offence of any corrupt practice within the meaning of the Corrupt and Illegal Practices Prevention A. 1883, or on an indictment for an offence under the Merchandise Marks A. 1887 to 1894,

Costs Payable by Defendant or Prosecutor.

349

or on an indictment presented to a grand jury under the Vexatious Indictments A. 1859, in a case where the person acquitted has not been committed to or detained in custody or bound by recognisance to answer the indictment, the court may order the prosecutor to

pay the whole or any part of the costs incurred in or about the defence, &c., as in sub-s. 1, above.

By sub-s. (4), such an order on an individual may be in addition to that on local funds,' and in that case the costs shall primarily be payable out of local funds.'

No trial] By s. 7, any one committed and not ultimately tried' is to be deemed acquitted for this purpose.

Highway, &c. cases] By s.

purposo civil.

9 (3), such proceedings are for this

'Incorrigibles'] committed to Q. S. are for this purpose deemed to be indicted: s. 9 (4).

6

7 G. 4, 64, Criminal L. A. 1826] In what is left of this statute, payment of expenses means the payment of costs out of local funds under this Act . . . or in any other enactment': s. 9 (6).

Delinquent directors, &c.] By s. 217 of 8 E. 7, 69 (1) If it appears to the court in the course of a winding up by or subject to the supervision of the court that any past or present director, manager, officer or member of the company has been guilty of any offence in relation to the company for which he is criminally responsible, the court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to prosecute for the offence and may order the costs and expenses to be paid out of the assets of the company.' And (2) the liquidator in a voluntary winding up may, with the previous sanction of the court,' take such action, and then the proper expenses are so payable 'in priority to all other liabilities.'

On appeal] The C. C. A. cannot make an order for the costs of the trial unless appellant appeals against sentence: Reynolds, 6 Cr. A. R. 28, 1910; but it can decrease sentence by remitting costs: H. Howard, ib. 17, where it thought that to enforce them would be unfair to prior creditors.

Recovery of costs] It seems to follow from Richardson v. Willis, L. R. 8 Exch. 69; 12 Cox C. C. 351, 1873, that costs may be recovered exactly as in civil cases: a writ of fi. fa. may be sealed in the High Court as well as in the court of trial.

Central Criminal Court] By 19-20 V. 16, 13, the expenses of a prosecution removed into the Central Criminal Court under that A. may be ordered by that court to be paid, in the same way as if that court were holden under a commission of oyer and terminer and gaol delivery for the county or place in which the indictment was found. By s. 25 (slightly amended S. L. R. A. 1898), when the trial there is obtained by the crown, a sum not exceeding 201. may be ordered by the K. B. (D.), or by a judge, to be paid by the Treasury to the person charged, to defray the expenses of the attendance of his witnesses. By s. 26, that court may order the expenses of any person,