Chapter XXVIII: Appendix: F

THE CRIMINAL APPEAL ACT, 1907

COURT OF CRIMINAL APPEAL

=1.= (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 the judges of that
court.

(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.

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.

[39](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.= 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.

RIGHT OF APPEAL AND DETERMINATION OF APPEALS.

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

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

(_b_) with the leave of the Court of Criminal Appeal or upon the
certificate of the Judge who tried him that it is a fit case
for appeal against his conviction on any ground of appeal
which involves a question of fact alone, or a question of
mixed law and fact, or any other ground which appears to the
court to be a sufficient ground of appeal, and

(_c_) with the leave of the Court of Criminal Appeal against the
sentence passed on his conviction unless the sentence is one
fixed by law.

=4.= (1) 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.

Provided that the court may, notwithstanding that they are of opinion
that the point raised in the appeal might be decided in favour of the
appellant, dismiss the appeal if they consider that no substantial
miscarriage of justice has occurred.

(2) Subject to the special provisions of this Act, the Court of
Criminal Appeal shall, if they allow an appeal against conviction,
quash the conviction and direct a judgment and verdict of acquittal
to be entered.

(3) On an appeal against sentence the Court of Criminal Appeal
shall, if they think that a different sentence should have been
passed, quash the sentence passed at the trial, and pass such other
sentence warranted in law by the verdict (whether more or less
severe) in substitution therefor as they think ought to have been
passed, and in any other case shall dismiss the appeal.

=5.= (1) If it appears to the Court of Criminal Appeal that an
appellant, though not properly convicted on some count or part of the
indictment, has been properly convicted on some other count or part
of the indictment, the court may either affirm the sentence passed
on the appellant at the trial, or pass such sentence in substitution
therefor as they think proper, and as may be warranted in law by the
verdict on the count or part of the indictment on which the court
consider that the appellant has been properly convicted.

(2) Where an appellant has been convicted of an offence and the jury
could on the indictment have found him guilty of some other offence,
and on the finding of the jury it appears to the Court of Criminal
Appeal that the jury must have been satisfied of the facts which
proved him guilty of that other offence, the court may, instead of
allowing or dismissing the appeal, substitute for the verdict found
by the jury a verdict of guilty of that other offence, and pass such
sentence in substitution for the sentence passed at the trial as may
be warranted in law for that other offence, not being a sentence of
greater severity.

(3) Where on the conviction of the appellant the jury have found
a special verdict, and the Court of Criminal Appeal consider that
a wrong conclusion has been arrived at by the court before which
the appellant has been convicted on the effect of that verdict, the
Court of Criminal Appeal may, instead of allowing the appeal, order
such conclusion to be recorded as appears to the court to be in law
required by the verdict, and pass such sentence in substitution for
the sentence passed at the trial as may be warranted in law.

(4) If on any appeal it appears to the Court of Criminal Appeal that,
although the appellant was guilty of the act or omission charged
against him, he was insane at the time the act was done or omission
made so as not to be responsible according to law for his actions,
the court may quash the sentence passed at the trial and order the
appellant to be kept in custody as a criminal lunatic under the Trial
of Lunatics Act, 1883, in the same manner as if a special verdict had
been found by the jury under that Act.

=6.= The operation of any order for the restitution of any property
to any person made on a conviction on indictment, and the operation
in case of any such conviction, of the provisions of subsection (1)
of section twenty-four of the Sale of Goods Act, 1893, as to the
re-vesting of the property in stolen goods on conviction, shall
(unless the Court before whom the conviction takes place direct to
the contrary in any case in which, in their opinion, the title to the
property is not in dispute) be suspended--

(_a_) in any case until the expiration of ten days after the date
of conviction, and

(_b_) in cases where notice of appeal or leave to appeal is given
within ten days after the date of conviction, until the
determination of the appeal;

and in cases where the operation of any such order, or the operation
of the said provisions, is suspended until the determination of the
appeal, the order or provisions, as the case may be, shall not take
effect as to the property in question if the conviction is quashed on
appeal. Provision may be made by rules of court for securing the safe
custody of any property, pending the suspension of the operation of
any such order of the said provisions.

(2) The Court of Criminal Appeal may by order annul or vary any order
made on a trial for the restitution of any property to any person,
although the conviction is not quashed; and the order, if annulled,
shall not take effect, and, if varied, shall take effect as so varied.

PROCEDURE

=7.= (1) Where a person convicted desires to appeal under this Act to
the Court of Criminal Appeal, or to obtain the leave of that Court to
appeal, he shall give notice of appeal or notice of his application
for leave to appeal in such manner as may be directed by rules of
court within ten days of the date of conviction. Such rules shall
enable any convicted person to present his case and his argument in
writing instead of by oral argument if he so desires. Any case or
argument so presented shall be considered by the court.

Except in the case of a conviction involving sentence of death, the
time within which notice of appeal or notice of an application for
leave to appeal may be given, may be extended at any time by the
Court of Criminal Appeal.

(2) In the case of a conviction involving sentence of death or
corporal punishment--

(_a_) the sentence shall not in any case be executed until after
the expiration of the time within which notice of appeal or
an application for leave to appeal may be given under this
section, and

(_b_) if notice is so given, the appeal or application shall
be heard and determined with as much expedition as
practicable, and the sentence shall not be executed until
after the determination of the appeal, or, in cases where an
application for leave to appeal is finally refused, of the
application.

=8.= The judge or chairman of any court before whom a person is
convicted shall, in the case of an appeal under this Act against the
conviction or against the sentence, or in the case of an application
for leave to appeal under this Act, furnish to the Registrar, in
accordance with rules of court, his notes of the trial; and shall
furnish to the Registrar in accordance with rules of court a report
giving his opinion upon the case or upon any point arising in the
case.

=9.= For the purposes of this Act, the Court of Criminal Appeal may,
if they think it necessary or expedient in the interest of justice,--

(_a_) order the production of any document, exhibit, or other thing
connected with the proceedings, the production of which
appears to them necessary for the determination of the case,
and

(_b_) if they think fit order any witnesses who would have been
compellable witnesses at the trial to attend and be examined
before the court, whether they were or were not called at
the trial, or order the examination of any such witnesses
to be conducted in manner provided by rules of court before
any judge of the court or before any officer of the court or
justice of the peace or other person appointed by the court
for the purpose, and allow the admission of any depositions
so taken as evidence before the court, and

(_c_) if they think fit receive the evidence, if tendered, of
any witness (including the appellant) who is a competent
but not compellable witness, and, if the appellant makes an
application for the purpose, of the husband or wife of the
appellant, in cases where the evidence of the husband or wife
could not have been given at the trial except on such an
application, and

(_d_) where any question arising on the appeal involves prolonged
examination of documents or accounts, or any scientific or
local investigation, which cannot in the opinion of the
court conveniently be conducted before the court, order
the reference of the question in manner provided by rules
of court for inquiry and report to a special commissioner
appointed by the court, and act upon the report of any such
commissioner so far as they think fit to adopt it, and

(_e_) appoint any person with special expert knowledge to act as
assessor to the court in any case where it appears to the
court that such special knowledge is required for the proper
determination of the case;

and exercise in relation to the proceedings of the court any other
powers which may for the time being be exercised by the Court of
Appeal on appeals in civil matters, and issue any warrants necessary
for enforcing the orders or sentences of the court: Provided that in
no case shall any sentence be increased by reason or in consideration
of any evidence that was not given at the trial.

=10.= The Court of Criminal Appeal may at any time assign to an
appellant a solicitor and counsel or counsel only in any appeal or
proceedings preliminary or incidental to an appeal in which, in
the opinion of the court, it appears desirable in the interests of
justice that the appellant should have legal aid, and that he has not
sufficient means to enable him to obtain that aid.

=11.= (1) An appellant, notwithstanding that he is in custody, shall
be entitled to be present, if he desires it, on the hearing of
his appeal, except where the appeal is on some ground involving a
question of law alone, but, in that case and on an application for
leave to appeal and on any proceedings preliminary or incidental to
an appeal, shall not be entitled to be present, except where rules of
court provide that he shall have the right to be present, or where
the court gives him leave to be present.

(2) The power of the court to pass any sentence under this Act may be
exercised notwithstanding that the appellant is for any reason not
present.

=12.= It shall be the duty of the Director of Public Prosecutions
to appear for the Crown on every appeal to the Court of Criminal
Appeal under this Act, except so far as the solicitor of a
Government department, or a private prosecutor in the case of a
private prosecution, undertakes the defence of the appeal, and the
Prosecution of Offences Act, 1879, shall apply as though the duty of
the Director of Public Prosecutions under this section were a duty
under section two of that Act, and provision shall be made by rules
of court for the transmission to the Director of Public Prosecutions
of all such documents, exhibits, and other things connected with the
proceedings as he may require for the purpose of his duties under
this section.

=13.= (1) On the hearing and determination of an appeal or any
proceedings preliminary or incidental thereto under this Act no costs
shall be allowed on either side.

(2) The expenses of any solicitor or counsel assigned to an
appellant under this Act, and the expenses of any witnesses attending
on the order of the court or examined in any proceedings incidental
to the appeal, and of the appearance of an appellant on the hearing
of his appeal or on any proceedings preliminary or incidental to
the appeal, and all expenses of and incidental to any examination
of witnesses conducted by any person appointed by the court for the
purpose, or any reference of a question to a special commissioner
appointed by the court, or of any person appointed as assessor to the
court, shall be defrayed, up to an amount allowed by the court, but
subject to any regulations as to rates and scales of payment made
by the Secretary of State, in the same manner as the expenses of a
prosecution in cases of felony.

=14.= (1) An appellant who is not admitted to bail shall, pending
the determination of his appeal, be treated in such manner as may be
directed by prison rules within the meaning of the Prison Act, 1898.

(2) The Court of Criminal Appeal may, if it seems fit, on the
application of an appellant, admit the appellant to bail pending the
determination of his appeal.

(3) The time during which an appellant, pending the determination of
his appeal, is admitted to bail, and subject to any directions which
the Court of Criminal Appeal may give to the contrary on any appeal,
the time during which the appellant, if in custody, is specially
treated as an appellant under this section, shall not count as part
of any term of imprisonment or penal servitude under his sentence,
and, in the case of an appeal under this Act, any imprisonment or
penal servitude under the sentence, of the appellant, whether it is
the sentence passed by the court of trial or the sentence passed by
the Court of Criminal Appeal, shall, subject to any directions which
may be given by the Court as aforesaid, be deemed to be resumed or to
begin to run, as the case requires, if the appellant is in custody,
as from the day on which the appeal is determined, and, if he is not
in custody, as from the day on which he is received into prison under
the sentence.

(4) Where a case is stated under the Crown Cases Act, 1848, this
section shall apply to the person in relation to whose conviction the
case is stated as it applies to an appellant.

(5) Provision shall be made by prison rules within the meaning of
the Prison Act, 1898, for the manner in which an appellant, when in
custody, is to be brought to any place at which he is entitled to be
present for the purposes of this Act, or to any place to which the
Court of Criminal Appeal or any judge thereof may order him to be
taken for the purpose of any proceedings of that court, and for the
manner in which he is to be kept in custody while absent from prison
for the purpose; and an appellant whilst in custody in accordance
with those rules shall be deemed to be in legal custody.

=15.= (1) The registrar shall take all necessary steps for obtaining
a hearing under this Act of any appeals or applications, notice of
which is given to him under this Act, and shall obtain and lay before
the court in proper form all documents, exhibits, and other things
relating to the proceedings in the court before which the appellant
or applicant was tried which appear necessary for the proper
determination of the appeal or application.

(2) If it appears to the registrar that any notice of an appeal
against a conviction purporting to be on a ground of appeal which
involves a question of law alone does not show any substantial ground
of appeal, the registrar may refer the appeal to the court for
summary determination, and, where the case is so referred, the court
may, if they consider that the appeal is frivolous or vexatious, and
can be determined without adjourning the same for a full hearing,
dismiss the appeal summarily, without calling on any persons to
attend the hearing or to appear for the Crown thereon.

(3) Any documents, exhibits, or other things connected with the
proceedings on the trial of any person on indictment, who, if
convicted, is entitled or may be authorised to appeal under this Act,
shall be kept in the custody of the court of trial in accordance with
rules of court made for the purpose, for such time as may be provided
by the rules, and subject to such power as may be given by the rules
for the conditional release of any such documents, exhibits, or
things from that custody.

(4) The registrar shall furnish the necessary forms and instructions
in relation to notices of appeal or notices of application under
this Act to any person who demands the same, and to officers of
courts, governors of prisons, and such other officers or persons as
he thinks fit, and the governor of a prison shall cause those forms
and instructions to be placed at the disposal of prisoners desiring
to appeal or to make any application under this Act, and shall cause
any such notice given by a prisoner in his custody to be forwarded on
behalf of the prisoner to the registrar.

(5) The registrar shall report to the court or some judge thereof any
case in which it appears to him that, although no application has
been made for the purpose, a solicitor and counsel or counsel only
ought to be assigned to an appellant under the powers given to the
Court by this Act.

=16.= (1) Shorthand notes shall be taken of the proceedings at the
trial of any person on indictment who, if convicted, is entitled
or may be authorised to appeal under this Act, and, on any appeal
or application for leave to appeal, a transcript of the notes, or
any part thereof, shall be made if the registrar so directs, and
furnished to the registrar for the use of the Court of Criminal
Appeal or any judge thereof: Provided that a transcript shall be
furnished to any party interested upon the payment of such charges as
the Treasury may fix.

(2) The Secretary of State may also, if he thinks fit in any case,
direct a transcript of the shorthand notes to be made and furnished
to him for his use.

(3) The cost of taking any such shorthand notes, and of any
transcript where a transcript is directed to be made by the registrar
or by the Secretary of State, shall be defrayed, in accordance with
scales of payment fixed for the time being by the Treasury, out of
moneys provided by Parliament, and rules of court may make such
provision as is necessary for securing the accuracy of the notes to
be taken and for the verification of the transcript.

=17.= The powers of the Court of Criminal Appeal under this Act
to give leave to appeal, to extend the time within which notice
of appeal or of an application for leave to appeal may be given,
to assign legal aid to an appellant, to allow the appellant to be
present at any proceedings in cases where he is not entitled to be
present without leave, and to admit an appellant to bail, may be
exercised by any judge of the Court of Criminal Appeal in the same
manner as they may be exercised by the Court, and subject to the same
provisions; but, if the judge refuses an application on the part of
the appellant to exercise any such power in his favour, the appellant
shall be entitled to have the application determined by the Court of
Criminal Appeal as duly constituted for the hearing and determining
of appeals under this Act.

=18.= (1) Rules of court for the purposes of this Act shall be
made, subject to the approval of the Lord Chancellor, and so far
as the rules affect the governor or any other officer of a prison,
or any officer having the custody of an appellant, subject to the
approval also of the Secretary of State, by the Lord Chief Justice
and the judges of the Court of Criminal Appeal, or any three of such
judges, with the advice and assistance of the Committee hereinafter
mentioned. Rules so made may make provision with respect to any
matter for which provision is to be made under this Act by rules of
court, and may regulate generally the practice and procedure under
this Act, and the officers of any court before whom an appellant has
been convicted, and the governor or other officers of any prison
or other officer having the custody of an appellant and any other
officers or persons, shall comply with any requirements of those
rules so far as they affect those officers or persons, and compliance
with those rules may be enforced by order of the Court of Criminal
Appeal.

(2) The committee hereinbefore referred to shall consist of a
chairman of quarter sessions appointed by a Secretary of State, the
Permanent Under Secretary of State for the time being for the Home
Department, the Director of Public Prosecutions for the time being,
the Registrar of the Court of Criminal Appeal, and a clerk of assize,
and a clerk of the peace appointed by the Lord Chief Justice, and a
solicitor appointed by the President of the Law Society for the time
being, and a barrister appointed by the General Council of the Bar.
The term of office of any person who is a member of the Committee
by virtue of appointment shall be such as may be specified in the
appointment.

(3) Every rule under this Act shall be laid before each House of
Parliament forthwith, and, if any address is presented to His Majesty
by either House of Parliament within the next subsequent thirty days
on which the House has sat next after any such rule is laid before
it, praying that the rule may be annulled, His Majesty in Council
may annul the rule, and it shall thenceforth be void, but without
prejudice to the validity of anything previously done thereunder.

SUPPLEMENTAL

=19.= Nothing in this Act shall affect the prerogative of mercy, but
the Secretary of State on the consideration of any petition for the
exercise of His Majesty’s mercy, having reference to the conviction
of a person on indictment or to the sentence (other than sentence of
death) passed on a person so convicted, may, if he thinks fit, at any
time either--

(_a_) refer the whole case to the Court of Criminal Appeal, and
the case shall then be heard and determined by the Court
of Criminal Appeal as in the case of an appeal by a person
convicted, or

(_b_) if he desires the assistance of the Court of Criminal
Appeal on any point arising in the case with a view to the
determination of the petition, refer that point to the
Court of Criminal Appeal for their opinion thereon, and the
Court shall consider the point so referred and furnish the
Secretary of State with their opinion thereon accordingly.

=20.= (1) Writs of error, and 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.

(2) This Act shall apply in the case of convictions on criminal
informations and coroners’ inquisitions and in cases where a person
is dealt with by a court of quarter sessions as an incorrigible
rogue under the Vagrancy Act, 1824, as it applies in the case of
convictions on indictments, but shall not apply in the case of
convictions on indictments or inquisitions charging any peer or
peeress, or other person claiming the privilege of peerage, with any
offence not now lawfully triable by a court of assize.

(3) Notwithstanding anything in any other Act, an appeal shall lie
from a conviction on indictment at common law in relation to the
non-repair or obstruction of any highway, public bridge, or navigable
river in whatever court the indictment is tried, in all respects
as though the conviction were a verdict in a civil action tried at
assize, and shall not lie under this Act.

(4) All jurisdiction and authority under the Crown Cases Act, 1848,
in relation to questions of law arising in criminal trials which is
transferred to the judges of the High Court by section forty-seven
of the Supreme Court of Judicature Act, 1873, shall be vested in the
Court of Criminal Appeal under this Act, and in any case where a
person convicted appeals under this Act against his conviction on any
ground of appeal which involves a question of law alone, the Court
of Criminal Appeal may, if they think fit, decide that the procedure
under the Crown Cases Act, 1848, as to the statement of a case should
be followed, and require a case to be stated accordingly under that
Act in the same manner as if a question of law had been reserved.

=21.= In this Act, unless the context otherwise requires--

The expression “appellant” includes a person who has been
convicted and desires to appeal under this Act, and

The expression “sentence” includes any order of the court made on
conviction with reference to the person convicted or his wife or
children, and any recommendation of the court as to the making
of an expulsion order in the case of a person convicted, and the
power of the Court of Criminal Appeal to pass a sentence includes a
power to make any such order of the court or recommendation, and a
recommendation so made by the Court of Criminal Appeal shall have
the same effect for the purposes of section three of the Aliens
Act, 1905, as the certificate and recommendation of the convicting
Court.

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

=23.= (1) This Act may be cited as the Criminal Appeal Act, 1907.

(2) This Act shall not extend to Scotland or Ireland.

(3) This Act shall apply to all persons convicted after the
eighteenth day of April, nineteen hundred and eight, but shall not
affect the rights, as respects appeal, of any persons convicted on or
before that date.

(The enactments affected by the schedule of repeal are four in number, namely, the Treason Act, 1695, the Crown Cases Act, 1848, and the two Supreme Court of Judicature Acts of 1875, and 1881, respectively.)

FOOTNOTE

[39] It was under this section that the notorious murderer, S. Morrison, or Morris Stein, endeavoured to carry his appeal to the House of Lords, but the Attorney-General (Sir Rufus Isaacs) refused the necessary certificate.