office, and within the limits of their jurisdiction, have on all occasions, place, pre-eminence, and precedence before the sheriffs having concurrent jurisdiction. Once more the lord-lieutenant has become the chief local military and civil personage, and with the proved efficiency of the Territorial Force in the field, his opportunities for national service have been enlarged. The public will certainly expect all lieutenants, without exception, to seize these opportunities and to realise them to the full. HUGH H. L. BELLOT. 66 II. HABITUAL CRIMINALS AND SCOTTISH THE CONVICTIONS. HE Prevention of Crime Act 1908, which enables the Court in certain circumstances to pass a sentence of preventive detention" for a period varying from five to ten years, is not free from doubts, and it is intended in the following remarks to draw attention to the effect of convictions before Scottish Courts upon the provisions of Part II of the Act (Detention of Habitual Criminals) as administered in England. The provisions of the Act which mainly concern us are as follows: Section 10. "(2) A person shall not be found to be a habitual criminal "unless the jury finds on evidence— "(A) That since attaining the age of sixteen years "he has at least three times previously to the con"viction of the crime charged in the said indictment "been convicted of a crime, whether any such con"viction was before or after the passing of this Act, "and that he is leading persistently a dishonest or "criminal life. "(6) For the purposes of this section the expression 'crime' "has the same meaning as in the Prevention of Crimes Act "1871, and the definition of 'crime' in that Act, set out in the "Schedule to this Act, shall apply accordingly." Schedule. "The expression 'crime' means in England and "Ireland any felony or the offence of uttering false or "counterfeit coin, or of possessing counterfeit gold or silver "coin, or the offence of obtaining goods or money by false 66 pretences, or the offence of conspiracy to defraud, or any "misdemeanour under the Fifty-eighth Section of the Larceny "Act 1861." The prevention of Crime Act 1908 applies to Scotland, and 66 6 "in the application to Scotland of the provisions of this Act Put briefly, the question it is proposed to consider is this. In an English Court, when it is sought to satisfy sect. 10 (2) (A) (which requires proof of three convictions of a "crime"), is it competent to the prosecution to give in. evidence, among the three necessary convictions, one or more Scottish convictions for acts which, if committed in England, would be "crimes" within the definition in the Schedule quoted above? Will three Edinburgh convictions for what we should call arson and what the Scots law calls "wilful fire-raising' "wilful fire-raising" be enough, coupled with the leading of a persistently dishonest and criminal life, to secure the preventive detention of a criminal? (A) Now, by sect. 17 (4) it is provided that "sub-sect. 6 of sect. 10 shall not apply to Scotland," that is to say, the definition of "crime" in the Schedule above quoted does not apply to Scotland. This means, it is submitted, that in Scottish proceedings the definition of "crime" is that given in sect. 17 (2) and not the definition contained in the Schedule. In other words, the Scottish definition of "crime" (sect. 17 (2)) applies in Scottish Courts, and the English definition (Schedule) applies in English Courts. Nowhere is it provided that, when an English Court is faced with Scottish convictions, it may have recourse to the Scotch definition, nor vice versa. This seems to be the flaw in the Act. "Sub-sect. (6) of sect. 10" (i.e., the English definition above quoted) "shall not apply to Scotland" (sect. 17 (4)), and similarly, the Scottish definition shall not apply to England. The latter half of the preceding sentence is not enacted in the Act, and does not require to be; for the Act applies in the first place to England and Ireland, and then with certain necessary alterations to Scotland. It seems very doubtful whether Scottish convictions will satisfy the provisions of sect. 10 (2) (A) above set out, and it is submitted that the answer to our question may have to be in the negative. We are not considering the Scottish Courts. They may have a similar problem and it is for the Scottish lawyer to solve it. But let us consider an English judge confronted with the definition of "crime" contained in the Schedule. A wicked act, to use a non-technical expression, must not be confused with a crime. The act may be equally wicked whether it is committed at any place between China and Peru or between John O'Groat's House and Land's End. But the locality of the act makes all the difference when we are considering whether it comes within the meaning of "crime" in the Schedule. Let us analyse that definition. "Felony" is meaningless to a Scottish lawyer, as such. The Coinage Act of 1861 applies to Scotland as well as England and Ireland. Obtaining goods or money by false pretences" becomes "Falsehood, fraud, and wilful imposition" across the Border. "Conspiracy to defraud " is doubtless punishable in Scotland, though under a different title. The Larceny Act 1861 does not, except in one section (114), irrelevant for present purposes, apply to Scotland. How, then, can a prisoner who has done in Scotland an act which in England or Ireland would amount to one of the scheduled offences and been convicted in Scotland of an analogous, though not identical, offence, be said in an English Court to have committed a "crime" within the meaning of the definition in the Schedule? Only by re-trying the offence and hearing the witnesses can an English Court decide, in the majority of cases, whether the offence committed in Scotland would have amounted to a felony or one of the other scheduled offences if committed in England. It is incredible that the Legislature should have imposed upon criminal Courts such a task. The Act (sect. 10 (2) (A)) requires the proof (unless admitted by the prisoner) of three previous convictions for one or more of the scheduled "crimes." That is easily done in the case of English. convictions, but the bare proof of a Scottish conviction would, in the majority of cases, be useless to a judge in deciding whether a "crime," under the Schedule, had been committed, unless he is prepared to go further and receive evidence of Scots law, and, in many cases, to re-try the case. (It may be true that in a few cases the facts necessary to constitute a particular crime in Scotland and the analogous crime in England are identical.) Sect. 17 (2) does not tend to destroy the submission which is being made. 66 6 "In the application to Scotland of the provisions of this "Act . . . . 'Secretary of Scotland' shall be substituted for Secretary of State'. . . . and the expression 'crime,' used "in reference to previous convictions, means a crime of which "a person has been convicted on indictment.” That applies to Scottish proceedings, that is, when a Scottish Court is being asked to pass sentence of preventive detention; and, it is submitted, cannot mean :— "In an English Court evidence of one or more Scottish "convictions for crimes, which in Scotland are indictable, may be given in evidence for the purpose of proving a person to be a 'habitual criminal.'” "Indictment" bears a totally different meaning in Scotland, as is clear from the case of Reg. v. Slator ([1881], 8 Q.B.D. 267), so that no common ground between the two jurisdictions can be found in the use of that word here. That "indictment" in this section must be so limited to its meaning in Scots law is clear; for otherwise the position would be that in an English Court the list of crimes given in the Schedule becomes, when a Scottish conviction is put in evidence, suddenly extended to include the whole gamut of (anglice) "indictable" "indictable" crimes, which is vastly wider than the Schedule. Surely (B) Take France or Brazil instead of Scotland. it is inconceivable that the technical words of the definition in the Schedule include the analogous offences (if such there be) in France or Brazil. A conviction in a foreign country is admissible evidence of a persistently criminal life (R. v. Heard [1911], 7 Cr. App. R. 80). That is a different matter. Picking pockets may be an incident in a "dishonest or criminal life," whether the scene of operations is Charing Cross Station or the Gare du Nord, but in the case quoted the French conviction for picking pockets was not given in evidence as one of the three necessary convictions. If the effect of a French conviction is correctly so stated, is there anything in the Act or in any other Statute or by Common law that makes the position of Scottish convictions different? It is submitted that there is not. |