formerly prosecuted as serious offences by an indictment before
the court of assize or quarter sessions have, where the offence was
a trivial one, been made punishable, on summary proceedings
before justices, by a small fine or a short term of imprisonment.
The extension of the jurisdiction of the justices is open to the observation that it deprives a person charged of the protection of a jury, and also that it throws upon him, if convicted, and upon the prosecution if there is no conviction, the cost of the proceedings. The former objection is much mitigated by the enactment made in 1879, that a person if liable on conviction to be sentenced to imprisonment for more than three months, or to a fine exceeding £100, can claim to be tried by a jury. But the objection as to the costs remains, and the payment of costs is often a very serious addition to the trivial fine; and it is anomalous that a person convicted of a trifling offence should bear the cost of the prosecution, while if he is convicted before a superior tribunal of the most serious offence he does not pay the costs.
In English law until 1907, where a criminal case had been tried by a jury the verdict of the jury of guilt or innocence was final and there was no appeal on the facts. Any considerable defect or informality in the procedure might be theAppeal. subject of a writ of error. And if any question of law arose at the trial, the judge might, if he chose, reserve it for the opinion of the court for the consideration of crown cases reserved, by whom the conviction might be either quashed or confirmed.
By the Criminal Appeal Act 1907, a new court was established, to which any person convicted on indictment might appeal. (See Appeal.)
The expenses of prosecution for crime in England are dealt with in the following manner. Prosecutions for high treason and the cognate offence known as treason-felony are at the expense of the state, which alone undertakesCosts. such prosecutions. In the case of all other felonies and of many misdemeanours the expense of the prosecution falls on the local rate. In the case of other misdemeanours the expense falls on the prosecutor. Where an offence is summarily prosecuted the costs are in the discretion of the court, which may order the accused to pay them, if convicted, or the prosecutor to pay on acquittal, or may leave the parties to pay their own expenses. On charges of felony and a few misdemeanours the court may order the accused person to pay the expenses of his prosecution in relief of the local rate. In a few cases, chiefly where the prosecution is vexatious, the court may order the prosecution to pay the expenses of the defence. The expenses of witnesses for the defence in any indictable offence may be paid out of the local rate when they have been called at the preliminary inquiry; and where the court in the case of a poor prisoner has certified that he should have legal aid, the expenses of the defence may be charged to the local rate. The local rate upon which the expenses fall is usually that of the county or borough in which the offence was committed; but sometimes is that of the place where the offence is tried.
Between 1852 and 1888 parliament reimbursed to the local authorities the expense imposed on the local rate. In 1888 the proceeds of certain taxes were set aside and handed over to the local authorities as a set-off to the expense incurred in prosecutions. In one class of case, offences committed in the admiralty jurisdiction, i.e. outside England, the treasury directly reimburses to the local authorities the expense incurred.
Under most, if not all, European codes, the state pays for the prosecution, subject to reimbursement by the accused, if the court so orders.
The English system of criminal procedure is the basis of that of most of the states which form the United States of America, and, with few exceptions, of the procedure throughoutNon-British criminal procedure. the British empire.
The French penal code and code of criminal procedure are substantially the model of all systems of continental criminal law. They were promulgated in 1811 by Napoleon I., and although he called in the aid of the greatest French jurists, he guided, and occasionally even revised, their labours. The French codes have been improved upon by later European codes, and more especially by the Italian penal code. All European codes have an opening chapter where the general principles of criminal law in its practical application are enunciated, such as, for instance, the rules that—(1) no person is liable to punishment for any act not expressly declared to be an offence; (2) no person can be punished for an act which by virtue of a subsequent law is declared not to be an offence; (3) whoever commits an offence within the kingdom is tried and punished according to the criminal law of the kingdom, and by the tribunals created for the administration of justice, to the exclusion of special tribunals created for temporary purposes. This rule really lays down that no citizen can be deprived of his own judges when he is accused of a criminal offence. (4) A citizen, although he may have been tried in a foreign country for an offence committed within the kingdom, can be retried according to the law of the kingdom. (5) Extradition only applies to foreigners, not to citizens. The preliminary chapter is followed by the classification of offences according to the importance of the punishments the law assigns to them. The lowest degree of offence is denominated “contravention.” It applies mainly to the pettiest offences, or to infractions of police regulations, and can be punished by fine or by imprisonment under a week, or by both fine and imprisonment, limited to a week. Next comes the “délit,” which includes all offences punished by imprisonment over a week and under five years. Then, finally, we arrive at the “crime,” the highest form of offence in French criminal law. It includes all offences subject to a more severe sentence than the punishment assigned to a délit. All cases are held to be crimes where death, life-imprisonment with or without hard labour, deportation out of the kingdom, detention or seclusion in a fortress or other expressly assigned place, are the punishments mentioned by the law. A certain number of explanatory definitions follow, of which the most important concern attempts to commit offences, and in “crimes” they are punishable if the execution of the attempt was only prevented by circumstances beyond the will of the offender, whilst in “délits” an attempt is not punishable as an offence unless the law specially provides that it should be punished. As regards “contraventions,” attempts not carried out are not held to be offences at all. Accomplices are generally subject to the same punishment as the principal. Old offenders (récidivistes) are subject to severer punishments. The usual exceptions as regards responsibility for crime, such as madness and extreme youth and force majeure, are to be found in all codes. The excuse of youth extends to all offenders under the age of sixteen, when the tribunal decides whether the offender has acted without “discernment,” and acquits where the discernment is not found, whilst one-half of the usual punishment is inflicted where discernment is found. Foreign codes differ from the English law in allowing the injured party to claim damages in the criminal suit, appearing as partie civile. On another question there is a wide divergence on the continent of Europe from English law. According to the law of England there is no prescription in criminal law (with a few exceptions created by statute). An offender is always liable to punishment whatever time may have elapsed since the committal of the offence. On the continent of Europe the limitation of a judgment and sentence for a crime is twenty years; five years for a délit, and for a contravention two years. No proceedings can be taken as regards a crime after a lapse of ten years, whilst as regards a délit the limit is three years, and two years for a contravention.
There are three main differences between English criminal procedure and European criminal procedure.
1. A criminal prosecution directed on European criminal procedure at once passes into the hands of the state as an infringement of law which must be repressed, on the ground that the whole community bases its security on obedience to law. In England the repression of all minor crime is left to the injured party.
2. In England every criminal trial from beginning to end is, and has always been, public. Preliminary inquiries into an
