Criminal Litigation



The object of criminal proceedings is to punish the offender and to prevent any repetition of the offence ; the object of a civil action of tort, on the other hand, is to compensate the person injured by giving him damages. It follows that criminal proceedings should never be brought in order to put money into the pocket of tlie prosecutor, or to gratify any spite which he may feel against the accused. Such proceedings should only be taken in the honest desire to bring an offender to justice in the interest of the community at large.

The State declares to be criminal every wrongful act, the repression of which is necessary for the safety of the public,
by whomsoever it may be committed. Every person within the realm, whether natural or artificial,^ is under the juris- diction of our criminal Courts. Thus, a corporation or trading company is liable to certain criminal proceedings. There are some crimes, of course, of which a corporation physically cannot be guilty, such as murder or highway robbery. But it can be indicted and fined for publishing a libel ; it can be guilty of an offence against the Pharmaceutical Acts,^ and generally of any offence which can be committed by an ageut.^ Again, if an alien commits a crime in this country, he can be tried, convicted and punished for it here; it does not matter w^hat his nationality or domicil may be, or what the object of his visit to this country ; so long as he is resident within the jurisdiction of our Courts, for however short a period, he owes our King local allegiance : he is within the protection of our laws and must therefore obey them. OFFENCES BY ALIENS. 187 To this general rule there are two exceptions :

(i.) An alien enemy, who enters the country as one of an
invading army, cannot be treated as a criminal in respect of any act of legitimate warfare.
(ii.) A foreign ambassador, his suite and servants are outside the jurisdiction of our ordinary criminal Courts in respect
of most, if not of all, crimes. While aliens have thus always been subject to our laws so long as they stay within the realm, our Courts had at common
law no power to take cognizance of any offences committed
abroad. These did not affect the safetj^ or tranquillity of this realm, and were therefore left by the comity of nations to be
dealt with by the Courts of the country in which each such
offence was committed. “All crime is local. The jurisdic- tion over the crime belongs to the country where the crime
is committed, and, except over her own subjects, Her Majesty
and the Imperial Legislature have no power whatever.”^ This was so whether the offender was a British subject or an alien, j^ow, however, by various statutes certain crimes committed
abroad by a British subject can be tried here, if the offender returns Avithin jurisdiction.
First, as to crimes committed on land : no foreigner is punishable in England for a crime committed abroad, luiless indeed he is or was within three months from the date of the crime employed as a master seaman or apprentice on a British
ship.^ A British subject, however, can be tried here for treason,^ murder and manslaughter,*^ bigamy,^ certain offences against the Foreign Enlistment Act, 1870,*^ the Official Secrets Act, 1911,’ and other minor statutes,^ and any offence punishable as perjury or subornation of perjury,^ although such
offences were committed abroad.
‘ Per Lord Halsbury in Macleod v. Att.-Gen. for New ^imth Wale.% [1891] A. C. at
p. 458.
2 57 & 58 Vict. c. 60, s. 687.
^ 35 Hen. VIII. c. 2 ; 5 & G Edw. VI. c. 11, s. 4.
” 24 & 25 Vict. c. 100, s. 9.
^ lb., s. 57.
6 33 & 34 Vict. c. 90, vost, p. 171.
7 1 & 2 Geo. V. c. 28, s. 10 ; posf, pp. 152, 153.
8 See. for instance, 45 Geo. III. c. 85, s. 1 ; 52 Geo. III. c. 104. s. 7 ; 52 \ict.
c. 10, s. 9.
» Perjury Act, 1911 (1 ct 2 Geo. V. c. fi), p. 8.
Umler ilie Larceny Act, 111 10,^ a person can be convicted in England of
receivinii:, or having in liis possession, in England without lawful excuse goods which were stolen abroad or ol)tained abroad in any manner which
would bo indictable in England. If a thief who has stolen goods abroad
brings them into this country, he can be indicted under this section for having them in his possession here, knowing them to have been stolen by himself abroad. But a person cannot be convicted in England of conspiring with a person or persons abroad to commit an offence abroad,
Avhether the act is punishable by English law or not. A conspiracy in England to commit a murder abroad has, however, been made punishable
here.- But a conspiracy abroad to commit murder or any other crime here
is not ti’iable in this country. Xcxt, as to offences committed at sea. A man-of-war is regarded as a floating portion of the land of the State to which
it belongs. Hence any one, whether a British subject or an
alien, who commits a crime on a British man-of-war, can be
tried for it in this country just as if he had committed it in England. On the other hand, no one who commits a crime on a foreign man-of-war can be tried for it here. As to any
ship or vessel other than a man-of-war, the case is somewhat
different. Any person, whether a British subject or an alien, can be tried here for a crime committed on a British ship at sea —^that is, anywhere on the high seas or in rivers below bridges
where the tide ebbs and flows and great ships go.^ But a British subject can also be tried here for a crime committed
” on board any foreign ship to which he does not belong.” * An alien can be tried in this country for pii-acy on the high
seas, whether it was committed on a British ship or not ; he can
also be tried here for any crime committed on a foreign ship,
but only if it was committed wliilst that ship was in the
territorial waters of Great Britain.’* Punishment.
Tlie object of criminal proceedings is, as we have already
stated, to prevent any repetition of the crime, whether by the
• C,k7 Geo. V. c. 5(1. s. SH (4).
2 2i & 25 Vict. c. 100, s. 4.
3 See It. V. Sattler (1858), Dearsl. & B. 525 ; R. v. ATiderson (1868), L. R.
1 C. C. R. 161.
> Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60). s. 686.
« Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), passed in consequence of the decision of the C. C. R. in R. v. Keyn (1876), 2 Ex. D. 63 ; and see R. v. Lewis (1857), 26 L. J. M. C. 104 ; R. v. Bjornsen (1865), L. & C.
‘ 189
prisoner or by any one else. Tims the State has a twofold purpose when it punishes a criminal :

(i.) To prevent that particular criminal from repeathig the
(ii.) To deter others from following his pernicious example.
The best way of preventing the particular criminal from
continuing his career of crime is to reform him. Pnnishmcnt therefore should be reformatory as well as deterrent. Sojne lawgivers have ignored all attempts to reform the
offender, and have imposed the severest penalties. on all con- victed criminals, in order to make the punishment as deterrent
as possible to others. But this is a mistake. When the law
is too severe, it excites popular sympathy in favour of the
criminal. Persons injured will not prosecute ; witnesses will not give evidence ; juries will not convict ; and technical Haws in the proceedings are welcomed even by the judges as affording the accused a chance of escape.^ In the case of civilians,- there are now only four crimes in England punishable with death :

Treason. Murder.
Piracy with violence. Setting fire to the King’s ships, dockyards, arsenals or
stores. In all other cases the punishment may consist of

Penal servitude (wdiich cannot be for less than three years)
Imprisonment, with or without hard labour (which cannot
as a rule be for more than two years) ; or Fine. Penal servitude and hard labour can only be imposed Avhere authorised by some statute. A j)risoner who has been previously convicted may
sometimes also be placed under police supervision after the expiration of his sentence.^ If convicted of an
1 See ” A Century of Law Reform,” pp. 5, 6, 43—50.
– As to soldiers and sailors guilty of mutiny or desertion, see post, p. 156
‘ As to preventive detention, see the Prevention of Crime Act, 1908 (8 Edw. VII.
c. 59), s. 10.
indictable offence he may be ordered to pay the costs of the trial.
Whipping is now only allowed in certain special cases (male
garrotters, male incorrigible rogues, male offenders against
section 2 of the Criminal Law Amendment Act, 1885, male
procurers and men who live upon the proceeds of prostitution,-‘ &c.). No person can be sentenced to be whipped
more than once for the same offence,’ but juvenile oifenders may in some cases be sentenced to receive not more than
twelve strokes with a birch-rod. Since 1820 no female
can- be either whij^ped or flogged. First offenders are always
treated with special leniency.^ Children between twelve and
sixteen years of age may be sent to a reformatory school instead of to prison ; children under twelve may be sent to a
certified industrial school.
IMany other kinds of punisliment were known to our ancestors.^ Trans-
]»ortation existed until 1857, when it was supplanted by penal servitude. Another barbarous form of punishment was the pillory, which, although
torl)idden in some cases in 1815, was not finally abolished till the year 1830. Again, the use of the ducking-stool was a form of punishment
generally inflicted on a common scold, who -was wheeled round the town in
a chair and then ducked in some pond or other water. The latest recorded
instance occurred at Leominster in 1809. Lastly, the stocks was a quaint method of punishment, which although quite obsolete is not yet entirely I’emoved from our statute book. A man was placed in the stocks as recently
as 1872. Any person convicted on indictment may appeal to the Court of Criminal Appeal on an}^ matter of law and, by leave ^ on any matter of fact and also to obtain reduction of his sentence. “Any person aggrieved by any conviction of a Coiu’t of summary jurisdiction who did not plead guilty or admit the truth of the information may ajDpeal from the
conviction to a Court of Quarter Sessions ‘”‘ on any question
of law or fact, and also to the King’s Bench Division on any
question of law. The King also has power to pardon any
1 Costs in Criminal Cases Act. 1908 (S Edw. VII.: c. l.i). s. (5. 2 See 2 & 3 Geo. V. c. 20, ss. 3, 7 (.5). 3 Criminal Justice Administration Act. 1914 (4 k 5 Geo. V. c. .58). s. 36 (1).
* See the Probation of Offenders Act, 1907 (7 Edw. VII. c. 17) ; post, Book V.
5 See Andrews’ Old-Time Punishments.
6 Criminal Justice Administration Act, 1914, s. 37 (1).
convicted criminal ;
^ but even the King cannot pardon an

(i.) who has been convicted of a public nuisance which
still remains unabated ; or
(ii.) who has sent a prisoner out of the realm in order to deprive him of the protection of the Habeas Corpus Act.- So far we have dealt Avitli the principles which are applicable
to crimes in general. In the remainder of this Book we
shall discuss specific crimes in detail and contrast each with
those which it most closely resembles. All crimes, as we have seen, are offences against the State. Even those crimes, which are attacks upon the person or property of an individual, are also injurious to the public
at large. There are other crimes which are aimed more
directly against the Constitution and tranquillity of the realm,
and are therefore more pernicious. For this purpose it has been found convenient to classify crimes into three main
groups :

I. Offences against the Sovereign, the Constitution and the Good Order of the Eealni, such as treason, sedition, riot, nuisance and conspirac\\
II. Offences against the Person, such as murder, manslaughter, rape and robbery.
III. Offences against Property, such as larceny, forgery,
burglary and arson.
1 This prerogative is in no way affected by the Criminal Appeal Act, 1907
(7 Edw. VII. c. 23). See ss. 6, 19


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