The House of Lords First Criminal Appeal Case REX v. BARNES 1 By Lee M. Friedman OF THE BOSTON BAR BEFORE 1907 there was no appeal in England in criminal cases. Points of law which arose in the course of a criminal trial, in the discretion of the trial judge, were reserved for the con sideration of an appellate tribunal, but that was the only method to secure cor rection of erroneous convictions. The Criminal Appeal Act of 1907 2 allowed a defendant an appeal to a newly created Court of Criminal Appeal and, under limitations, a further appeal to the House of Lords. That act now gives an appeal either against a decision of the judge upon a matter of law, or from the decision or verdict of the jury upon the facts of the case, or upon the propriety of the sentence. Where the appeal in volves only a question of law, the defen dant may appeal without leave from any court. Where the appeal involves a question of fact alone, or a mixed ques tion of law and fact, leave of Court is required.3 In December of 1911 after almost five years of actual operation of the Court of Criminal Appeal, the first appeal was taken from a decision of that Court to the House of Lords. William Ball and Edith Ball, brother and sister, were indicted for having had carnal knowledge of each other during stated periods in 1910. Evidence was given on behalf of the prosecution as to the acts complained of, at the times 1 (1911) A. C. 47. 2 7 Edw. 7, c. 23. 3 Criminal Appeal Act, § 3.
specified in the indictment. The prose cution then tendered evidence of pre vious acts of the defendants with the view of showing what were the relations between them. This evidence was ob jected to, but was admitted. The jury found the defendants guilty, and the trial judge certified to the Court of Criminal Appeal, that the case was a fit one for its consideration, stating the question raised was as to the admissi bility on a trial for acts of incest on specified days in 1910 of evidence of previous relations between the parties from 1907, including acts of sexual inter course resulting in the birth of a child in 1908. The defendants were convicted October 14, 1910. The appeal was argued on October 31st, and the Court of Criminal Appeal rendered their judg ment, allowing the appeal and quashing the conviction November 8th. The Director of Public Prosecutions at the time the judgment was delivered raised a question as to what disposition was to be made of the prisoners pending an appeal to the House of Lords. The Court asked the Lord Chief Justice to join it, and then and there proceeded to decide upon the question presented. Until the Attorney General issued his fiat that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that a further appeal should be brought, nothing could be done to
