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213
APPEAL

unreasonable, or because it cannot be supported having regard to the evidence, or that the judgment should be set aside on the ground of a wrong decision on any point of law, or that on any ground there was a miscarriage of justice. Power is given to the court to dismiss the appeal if they consider that no substantial miscarriage of justice has occurred, even though they are of opinion that the point raised in the appeal might be decided in favour of the appellant. The sentence passed at the trial may be quashed by the appeal court and such other sentence (whether more or less severe) warranted in law by the verdict substituted. Notice of appeal or notice of application for leave to appeal must be given within ten days of the date of conviction; where a conviction involves sentence of death or corporal punishment the sentence must not be executed until after the expiration of ten days, and, if notice of appeal is given, not until after the determination of the appeal or the final dismissal of the application for leave to appeal. The act gives the court power to order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court, and to receive the evidence, if tendered, of any witness who is a competent but not compellable witness. If any question arises on the appeal involving prolonged examination of documents or accounts or any scientific or local investigation, which the court thinks cannot be conveniently conducted before it, the matter may be referred to a special commissioner appointed by the court, and the court may act on the report of that commissioner if it thinks fit. An appellant is given the right to be present on the hearing of his appeal, if he desires it, except where the appeal is on some ground involving a question of law alone, but rules of court may provide for his presence in such a case, or the court may give him leave. The act requires shorthand notes to be taken of the proceedings at the trial of any person, who, if convicted, would have a right to appeal under the act. Nothing in the act affects the prerogative of mercy, and the home secretary may, if he thinks fit, at any time refer a case to the court of criminal appeal.

The Court of Appeal.—The court of appeal, constituted under the Judicature Acts, is one of the two permanent divisions of the Supreme Court of Judicature. As now constituted the court consists of ex officio members and five ordinary members, styled lords justices of appeal. The ex officio members are the lord chancellor, every person who has held that office, the lord chief justice, the master of the rolls, and the president of the probate, &c., division.

The ordinary business of the court is carried on by the lords justices under the presidency of the master of the rolls, who in 1881 ceased to be a judge of the High Court (Judicature Act 1881, § 2). The court usually sits in two divisions of three judges, but on occasion a third court can be formed, with the assistance of the other ex officio judges, in the absence of the ordinary judges from illness or public engagements, or to deal with arrears of business. The quorum for final appeals is three, for interlocutory appeals two judges.

The court of appeal has succeeded to the appellate authority exercised (1) in the case of equity and bankruptcy matters by the lord chancellor and the lords justices of appeal in chancery (Judicature Act 1873, § 18); (2) in the case of common law matters, by the court of exchequer chamber, as a court of error, and the superior courts of common law sitting to review the decisions of single judges of these courts sitting with or without a jury at first instance in civil actions; (3) in the case of divorce or probate causes by the full court of divorce (Judicature Act 1881, § 9); (4) in the case of admiralty causes by the king in council or the judicial committee of the privy council; (5) in the case of applications for new trials in jury actions by the king’s bench division (Judicature Act 1890, § 1).

The court never had jurisdiction to hear an appeal in any criminal cause or matter, but was able to review by writ of error decisions of the king’s bench division in such cases, unless the court for crown cases reserved had dealt with the question under the Crown Cases Act 1848. This procedure has been abolished by the Criminal Appeal Act 1907. Instances of procedure by writ of error were rare. Those best worth notice are the cases of the Tichborne claimant on his conviction of perjury, and the case of C. Bradlaugh on the sufficiency of the indictment against him for publishing the Fruits of Philosophy.

The appellate jurisdiction of the court as now exercised entitles the court to hear and determine (1) appeals from every judgment or decree of every division of the High Court in all civil cases in which such judgment is not declared final by statute; (2) applications for a new trial in civil cases tried in the king’s bench division by judge and jury which, until 1890, were dealt with by two or more judges in that division; (3) appeals in matters of civil practice and procedure from decisions of a single judge in chambers, which, until 1894, were dealt with in a divisional court or by a judge in open court; (4) appeals from the chancery courts of Durham (Palatine Court of Durham Act 1889) and Lancaster (act of 1890, c. 23) and the Liverpool court of passage (Anderson v. Dean, 1894, 2 Q.B. 222), and on error in a record of the mayor’s court of London (Le Blanche v. Heaton Telegram Co., 1876, 1 Ex.D. 408); and from county courts under the Agricultural Holdings Acts and Workmen’s Compensation Acts; (5) appeals on questions of law from decisions of the railway commissioners in England (Railway and Canal Traffic Act 1888).

The court of appeal also exercises the lunacy jurisdiction of the lord chancellor, but in regard to this the jurisdiction of the court is for the most part original and not appellate.

The jurisdiction of the court of appeal is excluded or limited in the following cases:—(1) judgments of the High Court—(a) where its jurisdiction is consultative only; (b) where there is an appeal to the High Court from an inferior court of civil jurisdiction; (c) where there is an appeal to the High Court from any court of person, unless in cases (b) and (c) leave be obtained of the court by which the order is made, or of the court of appeal; (2) orders of the High Court in registration and election cases except with the like leave; (3) orders made by consent of parties, or as to costs only which by law are left to the discretion of the court; (4) certain interlocutory orders mentioned in § 1 of the Supreme Court of Judicature (Procedure) Act 1894, except by leave of the judge appealed from or of the court of appeal (5) orders of the admiralty division in cases of prize, the appeal from which lies to His Majesty in Council; (6) where the decision of any court whose jurisdiction was transferred to the High Court is declared by statute to be final; (7) matters which from their nature were not appealable to any court before the Judicature Acts, or in which the court of appeal has no means of enforcing or executing its judgment. For example, it was held in the House of Lords, in Cox v. Hakes, 1890, 15 A.C. 506, that no appeal lies from the order of a judge discharging a prisoner under a writ of habeas corpus. “If,” said Lord Herschell, “the contention of the respondent is to prevail, the statute has effected a grave constitutional change”; and later, “if” the High Court “has inherited the combined powers of the courts whose functions were transferred to it, but none of them had any jurisdiction or authority to review a discharge by a competent court under a writ of habeas corpus, or to enforce the arrest of one thus freed from custody ... it seems to me to follow, that however wrong the court of appeal might think a discharge to have been, it would have been powerless to order a rearrest, or at least to enforce such an order.”

The procedure of the court of appeal is regulated by the rules of the Supreme Court. A distinction is drawn between appeals from a final judgment or order (which, unless the parties consent to a smaller quorum, must be heard by three judges) and an appeal from an interlocutory order (which may be determined by two judges of the court of appeal).

In the case of appeals from a final or interlocutory “judgment,” or from an order, including applications for a new trial, the appeal must be brought within three months from the time when the judgment or order is signed, entered or otherwise perfected, or in the case of refusal of an application from the date of refusal. The appeal is by notice of motion, which