CHAPTER X

CRIMINAL APPEAL AND THE BALL CASE

The Criminal Appeal Act is brought into operation nowadays by almost every notorious murder case. Crippen availed himself of its provisions, and, again, more recently, Morrison, the South London murderer, drove his appeal through the new Court.

The end of sub-section (3), section 20, of the Act [see Appendix F], contains a mildly confusing line, to say the least. It runs, “But shall not apply in the case of convictions on indictments or inquisitions charging any peer or peeress, _or other person claiming the privilege of peerage_, with any offence not lawfully triable by a court of assize.” Why a person other than a peer or peeress who claims the privilege of peerage should be entitled to any special consideration it is impossible to say. A claimant unless his claim has been admitted, when he ceases to be a claimant and becomes a possessor, cannot conceivably be entitled to any right appertaining to the dignity claimed. The only persons entitled to the privilege of peerage are peers and peeresses, and a claimant to any such privilege must perforce be a peer or peeress or else be a person with no right whatever to the privilege of peerage.

The case of R. _v._ Ball and Another is of enormous interest and importance, so far as the workings of the Court of Criminal Appeal are concerned. It suggests very forcibly the need for definitely detaining all criminals pending final appeal, where any intermediate step may allow of their liberation. _The Times_ newspaper for December 16, 1910, reports the case in the following words: “HOUSE OF LORDS. Criminal Appeal. Director of Public Prosecutions _v._ William Henry Ball.--Director of Public Prosecutions _v._ Edith Lilian Ball. (_Before the_ Lord Chancellor, Earl of Halsbury, Lord Ashbourne, Lord Alverstone, Lord Atkinson, Lord Gorrell, Lord Shaw _of_ Dunfermline, Lord Mersey, _and_ Lord Robson.) This was the first appeal to the House of Lords from the Court of Criminal Appeal, consisting of Justices Darling, Pickford, and Coleridge, who quashed the conviction against the present respondents for incest, which was made a criminal offence by an Act which came into operation on January 1, 1909. The trial took place at the Central Criminal Court before Mr. Justice Scrutton, who sentenced the respondents. The Crown appealed under a section of the Criminal Appeal Act, 1907, as was reported in _The Times_ of November 30.... The Attorney-General (Sir Rufus Isaacs, K.C.), Mr. R. D. Muir, Mr. Rowlatt, and Mr. Graham Campbell appeared for the appellant; Mr. Holman Gregory, K.C., Mr. Forrest Fulton, and Mr. Eustace Fulton for the respondents. The arguments of counsel turned on the admissibility of certain evidence tendered by the prosecution. The Lord Chancellor moved that the order of the Court of Criminal Appeal be reversed, and said that evidence of previous guilty relations between the respondents was admissible, not to prove the evidence of a _mens rea_, but in support, having regard to the proved facts, of the particular charges made in the indictments. The principle that one offence is not established by proof of a similar previous offence was one which ought to be jealously guarded; but in the present case the evidence was clearly admissible.... Lord Halsbury agreed with the Lord Chancellor for the same reasons. The other noble and learned Lords concurred. Appeal allowed.”

In _The Times_ for December 20, 1910, the same case is again reported, this time in its aspect as a novelty. _The Times_, after giving the heading, “COURT OF CRIMINAL APPEAL. House of Lords’ Reversal of Criminal Appeal. (_Before the_ Lord Chief Justice _of_ England, Mr. Justice Pickford, _and_ Mr. Justice Avory)”, states, “Mr. Graham Campbell, on behalf of the prosecution, said that this Court a short time ago quashed the conviction in this case, and on Thursday last the House of Lords made an order reversing that order. The House of Lords had no machinery for enforcing its order, and it was therefore necessary to come back to this Court for an order to enforce it. The Lord Chief Justice: If the order of the Court of Criminal Appeal is set aside, you say that the conviction will stand? Mr. Graham Campbell: Yes. The Lord Chief Justice: Have the two defendants had notice of this application? Mr. Graham Campbell: Yes; the male defendant is here, but the female defendant is not present.... Mr. Forrest Fulton (Mr. E. Fulton with him) said he appeared for both defendants.... The Lord Chief Justice: The male defendant must now surrender.... The defendant having surrendered, Mr. Forrest Fulton submitted that the intention of the Legislature in section 1, sub-section 6, of the Criminal Appeal Act, 1907--the section which allowed an appeal to the House of Lords--was that, so far as the individual defendants were concerned, the order of the Court of Criminal Appeal, in quashing the conviction, should be final. The decision of the House of Lords was intended to be obtained for the guidance and direction of Courts in the future. The object of going to the House of Lords was to get a ruling on a question of exceptional public importance. The Court of Criminal Appeal had exercised the function of the jury, and that Court, having allowed the appeal from the conviction, the position was the same as if the defendants had been acquitted by the jury.... Judgment: The Lord Chief Justice, in giving the judgment of the Court, said that in their opinion there was no doubt as to the power and duty of this Court. The appeal from this Court to the House of Lords was successful, and the order of the House of Lords was that the order of this Court should be reversed, and the natural consequence was that the conviction, if he might use the expression, was re-established. In these circumstances the right procedure had been adopted--namely, to come to this Court, which was a court of record, and apply to have effect given to the order of the House of Lords, that was to say, to expunge from the record of this Court the order which had been made setting aside the verdict and entering a verdict of ‘Acquittal.’ It was said by Mr. Fulton that this being an appeal by the prosecution, and this Court having decided that the appeal should be allowed and a verdict of ‘Acquittal’ entered, the Court had no power to make a further order in consequence of the reversal of their order by the House of Lords, the decision of that House being, it was suggested, merely for the guidance of Courts in the future. That was a very serious contention, and was one which they could not adopt. By section 1, subsection 6, of the Criminal Appeal Act, 1907, an appeal to the House of Lords might be brought by the prosecution or the defendant or the Director of Public Prosecutions if the _fiat_ of the Attorney-General was obtained. If the defendant, in a case where the conviction had been affirmed, could satisfy the Attorney-General that the case was one of sufficient importance, he could take the decision of the House of Lords upon it, and if he succeeded in obtaining an order of the House of Lords that the decision of the Court of Criminal Appeal dismissing his appeal was wrong, he was obviously entitled to ask the Court for an order entering a verdict of ‘Acquittal’ and for his immediate release. When the present case was before the House of Lords last week the question as to the proper procedure was discussed, and an application to this Court, which had full power to act in accordance with the order of the House of Lords, was considered to be the proper course. As had been pointed out by Mr. Justice Pickford during the argument, the finality of the decision of the Court of Criminal Appeal was subject to the provisions of the Criminal Appeal Act, 1907. It appeared to them that by virtue of the decision of the House of Lords the conviction was restored, and, if necessary, an order would be made amending the record in accordance with the order of the House of Lords. The male defendant would remain in custody to undergo his sentence. As regards the female defendant, there would be an order for her arrest.... Mr. Forrest Fulton said that the male defendant had originally given notice of appeal against sentence as well as against the conviction. In view of what happened, the question of sentence was not gone into. He (counsel) said he would like a short time to consider as to this part of the appeal. The Lord Chief Justice said the case could be put in the list again, if necessary, early in the next sitting for this point to be considered.”

The Ball case brings out with dispassionate accuracy the utterly fantastic possibilities of intermediate acquittal, followed by an order for re-arrest. Whether the authorities, in this particular case, took the precaution to carry out a very needful network of surveillance, between the discharge of the prisoners by the Court of Criminal Appeal (when the convictions were set aside), and the moment when the Lord Chief Justice gave practical effect to the order of the House of Lords, one does not know.

A prisoner once convicted at the Central Criminal Court should have no very substantial grievance against law and order if later on he is watched during an appeal _entr’acte_. He is in a vastly better position than the prisoner convicted before the advent of the Criminal Appeal Act, when the conviction usually stood until the sentence had been worked out. The word, “usually,” is meant to add distinction to the occasional commutation of a death sentence, and to any other punitive abatement arising out of the prerogative of mercy, or from personal good conduct on the part of the convict. Under the new system of appeal, fresh opportunities are allowed the convict to obtain an acquittal. It seems clear, therefore, that until the final appeal has been settled, he should either be kept under close observation or detained in custody. It may be un-English to spy upon the every movement of any man, but it is practical and even necessary under the possibilities afforded by the Act of 1907.

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