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be contrary to the common sense of the situation, since the Governor, knowing all the circumstances, in a better position to judge whether the prerogative of mercy should be exercised in any particular case. To this must be added the further consideration that the best safeguard for a careful decision in so grave a matter is the undivided responsibility of the person who makes it. I do not, however, say that, if some exceptional case were brought to the Secretary of State's notice in which there were an indication that a miscarriage of justice had occurred, he would shut his eyes to it. The Secretary of State would communicate with the Governor as the case required. The Governor would make any further investigations which might be necessary, and would obviously not proceed with the carrying out of a sentence if there were any real doubt about the case. It is inconceivable that, in order to prevent a miscarriage of justice in such a case, I should have to advise His Majesty to intervene, and in practice, therefore, it is highly improbable that intervention by His Majesty on the advice of the Secretary of State would ever take place. I am convinced that to follow any other course would seriously impair the administration of justice in the Colonies.
41
Enclosure No. 2 to Circular Despatch of 12th December, 1947.
EXTRACT FROM PRACTICE NOTE
Weekly Notes, 1941, Part 1, page 172.
Also reported in 68 Indian Appeals, 126.
In each of these thirteen cases the papers before their Lordships include (as r. 8 of the Judicial Committee Rules requires) a certificate signed by counsel in India that the petitioner has reasonable grounds of appeal to this Board.
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Their Lordships regret to find that, with the possible exception of one of the petitions, there is no basis whatever on which a certificate could, or should, have been given expressing the opinion that there were grounds on which the petition could properly be presented. This is a very serious matter, not only because those who so certify are misusing their professional position, but because the due course of criminal justice is interfered with if the delay of application to the Board is interposed without any valid reason between the judgment of the Court in India and the due execution of the sentence which that Court thinks it right to pronounce.
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Their Lordships must assume that these certificates are given under a misunderstanding of the true position, as otherwise some of them could only be explained as proceeding from an utter disregard of the solemn and serious responsibilities of the counsel who certify. Their Lordships therefore desire to restate, in unmistakable terms, the limits of the jurisdiction exercised in criminal appeals by the Judicial Committee, and trust that this explanation will be carefully noted in the quarters which it seems to be needed, and that the practice of which their Lordships have to complain will cease.
The Judicial Committee is not a revising court of criminal appeal that is to say, it is not prepared or required to re-try a criminal case, and does not concern itself with the weight of evidence, or the conflict of evidence or with inferences drawn from evidence, or with questions as to corroboration or contradiction of testimony, or whether there was sufficient evidence to satisfy the burden of proof. Neither is it concerned to review the exercise by the previous tribunal of its direction as to permitting cross-examination as a hostile witness or in awarding particular punishments. In some of the certificates of counsel which are before the Board in connection with the present set of petitions the certificate sets out particular leasons why it is considered that there is a reasonable ground for appeal, and these reasons disclose that the certifying counsel has not appreciated, or allowed for, the fact that the Judicial Committee cannot be asked to review the facts of a criminal case, or set aside conclusions of fact at which the tribunal has arrived. In all such cases an appeal on such grounds is useless, and is, indeed, an abuse of the process of the Court.
It may be of assistance to counsel who are considering whether they are justified in certifying that a petition of appeal in a criminal case might reasonably be presented, to give illustrations by way of contrast, of what are the limited but very important grounds on which a petition in a criminal case may properly be presented. Broadly speaking, the Judicial Committee will only interfere where there has been an infringement of the essential principles of justice. An obvious example would be a conviction following a trial where it could be seriously contended that there was a refusal to hear the case of the accused, or where the trial took place in his absence, or where he was not allowed to call relevant witnesses. Similarly, of course, if the tribunal was shown to have been corrupt, or not properly constituted, or incapable of understanding the proceedings because of the language in which the proceedings were conducted. Another and obvious example would arise if the Court had no jurisdiction either to try the crime, or to pass the sentence. These limitations upon the interference of the Judicial Committee with convictions arrived at by tribunals charged with criminal jurisdiction beyond the seas have been again and again laid down in the clearest terms at this Board. It is sufficient to quote Lord Watson's words, in In re Dillet (1887) 12 App. Cas. 459 at p. 467, that “the rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done"; or, as Lord Dunedin said, " there must be something so irregular, or so outrageous, as to shake the very basis of justice ".
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