commissions of assize, oyer and terminer, and general gaol
delivery) are held twice or oftener in every year in each county
and also in some large cities and boroughs. They are
the lineal successorsTribunals. of the justices in eyre[1] of the
middle ages; but they are now integral parts of the High Court
of Justice. These courts can try any indictable offence presented
by a grand jury for the district in which they sit.
2. For the counties of London and Middlesex and certain adjoining districts, a special court of assize known as the central criminal court sits monthly.
3. In all counties and many boroughs the justices of the peace sit quarterly or oftener under the commission of the peace to try the minor indictable offences. (See Quarter Sessions, Court of.)
4. The High Court of Justice in the king’s bench division tries a few special offences in its original jurisdiction, and where justice requires may transfer indictments from other courts for trial before itself.
5. The court of criminal appeal has been instituted by the Criminal Appeal Act 1907; to it all persons convicted on indictment have a right of appeal. (See Appeal.)
The substantive law as to crime applies in England to all persons except the reigning sovereign, and criminal procedure is the same for all subjects alike, except in the case of peers or peeresses charged with felony, who have the right of trial by their peers in the House of Lords if it be sitting, or in the court of the lord high steward.
There are in England no courts of a special character, such as exist in some foreign countries, for the determination of disputes between the governing classes themselves or with the governed classes, whether of a civil orSpecial tribunals. criminal character. There are a few exceptional courts with criminal jurisdiction. The court of chivalry, which used to punish offences committed within military lines outside the kingdom, is obsolete. Special tribunals exist for trying naval or military offences committed by members of the navy and army, but those members are not exempt from being tried by the ordinary tribunals for offences against the ordinary law, as though they were civilians. The naval courts can be held only on board a ship, and can as a general rule try only persons entered on the books of a king’s ship. The military courts can only try persons who are actually members of the army at the time, and their authority is annually renewed by parliament, in consequence of the jealousy still felt against the trial of any man except by the ordinary courts of law. Military and naval courts can try in any part of the world, and whenever the forces are in active service can try followers of the camp as if they were actual members of the forces. (See Military Law; Martial Law.)
The ecclesiastical courts, which were formerly very powerful
in England, and punished persons for various offences, such as
perjury, swearing, and sexual offences, have now
almost fallen into disuse. Their authority overEcclesi-
astical
courts.
Protestant dissenters from the established church
was taken away by statute; their authority over lay
members of the Church of England has disappeared by disuse.
Occasionally suits are instituted in them against the clergy for
offences either against morality or against doctrine or ritual.
In these cases their sentences are enforced by penalties, such as
suspension, or deprivation of benefice, or by imprisonment;
which has replaced the old punishment of excommunication.
A system of procedure, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power or by custom and the action of the courts. Both at Rome and in England it wasProcedure. through usage and by the courts themselves that the earlier system was slowly moulded: both at Rome and in England it was direct legislation that established the later system. (See Bryce, Studies in History and Jurisprudence, 1901, ii. 334.)
The characteristics of English criminal procedure which most distinguish it from the procedure of other countries are as follows:—
1. It is litigious or accusatory and not inquisitorial (Stephen, Prel. View Cr. Law). It is for the prosecutor to prove by evidence the commission of the alleged offence. No power exists to interrogate the accused unless he consents to be sworn as a witness in his own defence, which since 1898 he may do. The right to cross-examine him even when he is so sworn is limited by law, with the object of excluding inquiry into his past character or into past offences not relevant to the particular charge on which he is being tried.
2. The forms of criminal pleading still in use are in substance framed on the lines of the old system of pleading at common law in civil cases, which was swept away by the judicature acts. Criminal pleadings have, however, one peculiarity. Indictments, being in form the presentment of a grand jury, could not be amended until provision for that purpose was made in 1851. (See Indictment.)
3. Criminal prosecutions are ordinarily undertaken by the individuals who have suffered by a crime. There is not in England, as in Scotland and all European countries, a public department concerned to deal with all prosecutions for crime. The result is that the prosecution of most ordinary crime is left to individual enterprise or the action of the local police force or the justices’ clerk.
The attorney-general has always represented the crown in criminal matters, and in state prosecutions appears in person on behalf of the crown, and when he so appears has certain privileges as respects the reply to the prisoner’s defence and the mode of trial. In the Prosecution of Offences Acts of 1879, 1884 and 1908 there is to be found the nucleus of a system of public prosecution such as obtains in other countries in case of crime. Under these acts the director of public prosecutions (up to 1908 an office conjoint with that of solicitor to the Treasury) acts under the attorney-general, but unless specially directed he only undertakes a limited number of prosecutions, e.g. for murder, coining and serious crimes affecting the government.
4. Where an indictable offence is supposed to have been committed the accused is arrested, with or without the warrant of a justice, according to the nature of the offence, or is summoned by a justice before him. On his appearance a preliminary inquiry is held for the purpose of ascertaining whether there is a prima facie case against him. The procedure is regulated by the Indictable Offences Act 1848, and is entirely different from the procedure for summary offences. It may be, though usually it is not, held in private; it is an inquiry and not a trial; the justices have to consider not whether the man is guilty, but whether there is such a prima facie case against him that he ought to be tried. If they think that there is, they commit him to prison to wait his trial, or require him to give security, with or without sureties, to the amount named by them, for appearing to take his trial. If they think the charge unsubstantial they discharge the accused at once. The prosecutor in cases of felony may if he likes go before the grand jury whether the case has or has not been the subject of a preliminary inquiry, but in the case of many misdemeanours it is obligatory first to have a preliminary inquiry, as a protection against vexatious indictments.
Whether there has or has not been a preliminary inquiry before a magistrate, no person can be tried for any of the graver crimes, treason or felony, except upon indictment found by a grand jury of the county or place whereThe grand jury. the offence is said to have been committed or is by statute made cognizable. In olden days, and even now in theory, the grand jury inquire of their own knowledge, by the oath of good and lawful men of the neighbourhood, into the crime of the county, but in practice the charges against the accused persons are always first submitted to the proper officer of the court. The grand jurors are instructed as to their inquisition by a charge from the judge, as regards the indictments concerning which they are called upon to enquire whether there is a prima facie case to send them for trial to the petty jury. The
- ↑ i.e. Itinerant justices. From the Latin in itinere, on a journey.
