Applying the Proviso

AuthorJ. A. Coutts
DOI10.1177/002201838905300205
Date01 May 1989
Published date01 May 1989
Subject MatterComment
COMMENT
APPLYING THE PROVISO
The power conferred on the Court of Appeal by section 2(1) of the
Criminal Appeal Act 1968 to dismiss an appeal "if they consider
that no miscarriage of justice has occurred" appears to confer an
absolute discretion on the court. That that is the court's opinion
appears from the statement made by Widgery L.J. in R. v. Cooper
[1969] 267, that
"the
court must in the end ask itself a subjective
question, whether we are content to let the matter stand as it is, or
whether there is not some lurking doubt in
our
minds which makes
us wonder whether an injustice has been
done."
"This", it was
added, "is a reaction which may not be based strictly on the evidence
as such; it is a reaction which can be produced by the general feel
of the case as the court experienced it." In the light of the court's
powers as thus enacted and interpreted, comment on the actual
decision in any particular case is otiose (except on appeal to the
House of Lords) and criticism is impertinent, at least in the sense
that there can be no issue to which it pertains. Where, however, the
court has expressed the reasons for its decision or has stated the
factors which it had in mind and which can be assumed to have been
regarded as grounds for its decision, comment may perhaps be
thought to be not wholly otiose where those reasons are expressed
in general terms and may in consequence be adopted as grounds for
applying the proviso in future cases.
In any criminal trial, the issue of the capacity of the accused to
commit the crime is fundamental. Proof that he committed the
alleged act, proof that he acted with the necessary intent, the
impeccability of the judge's direction on the burden and standard
of proof of these matters are alike nihil ad rem if there is a rule of
law that he cannot (or is presumed not to be able to) commit the
crime, even if he did the act with the necessary intent. In general,
where so fundamental aquestion is not left to the jury, the Court
of Appeal will refuse to apply the proviso and will quash the
conviction. R. v. Coulburn (1987) 87
Cr.App.R.
309, is therefore
aremarkable case in that the court, by applying the proviso, upheld
210

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