37.

Giving the judgment of the Court of Appeal, Watkins LJ said (at page 818):

“That expresses more aptly and clearly than we think we could

what we deem to be the true position. We go further and say
that our experience as judges in the criminal courts leads us
inevitably to the conclusion, unassisted by the authorities to
which we have referred in the course of this judgment, that it
would be wholly insensible to speak of the commencement of
the trial as being other than when the jury have been sworn and
take the prisoner into their charge, to try the issues and, having
heard the evidence, to say whether he was guilty or not of the
charge against him, always remembering that it is inevitably a
trial by jury, not by a judge.” (emphasis added)