SECOND READING. (Hansard, 22 February 1865)

§ MR. DENMAN
, in moving the second reading of the Bill, said, that it consisted of two parts, and that the object of the first part, contained in clause 2, was the same as that of the Bill which he introduced on the subject in 1860. That Bill passed through that House, and had received general approval, having been supported by the present Lord Chancellor, then one of the Law Officers in this House, and by Lords Brougham, Campbell, and Chelmsford in the House of Lords; but had been dropped on its return to that House, in consequence of an alteration which had been introduced in its progress through the other House, which seemed inconsistent with its spirit. That was a proviso that it should be discretionary with the judge in each particular case whether to allow or disallow the right to sum up the evidence. The object of this part of the Bill was to assimilate the practice in criminal cases to that which prevailed in civil cases; and to allow counsel, whether for the prosecution or the defence, to sum up the evidence. Another provision of the Bill had reference to the discrediting of witnesses by the party producing them. The clause would not allow a party to discredit his own witness by general evidence of bad character; but enable him, under certain circumstances, to offer evidence to prove that he has made at other times a statement inconsistent with his present testimony. Proof might also be given of contradictory statements of adverse witnesses under the same circumstances which render such statements admissible in civil cases. There was also a provision as to cross-examination with reference to a previous statement made in writing or reduced to writing, without requiring such writing in the first instance to be shown to him. He saw no reason why a difference should 577 exist between civil and criminal cases in that respect. The next provision of the Bill was one making a certificate of a conviction for felony or misdemeanor, evidence of the fact that a witness had been so convicted, without requiring the formal and expensive proof now required in criminal cases. He proposed that it should no longer be necessary to call the attesting witnesses to prove the validity of any instrument to the validity of which attestation is not requisite. He saw no reason why the criminal law should not be assimilated to the law in civil proceedings in this respect. He also proposed to permit a disputed writing to be compared by a witness or by the jury with any writing proved to the satisfaction of the judge to be genuine. In cases of forgery it was of the utmost importance not only that the opinions of experts should be had as to the character of the writing, but that witnesses and the jury should be allowed to see and compare the documents. He once happened to be arbitrator in a case in which he had to decide whether a certain handwriting was or was not a forgery. It was said to be the handwriting of a deceased bishop. It related to the receipt of a sum of £2,000 said to have been handed to him in his lifetime. To test the genuineness of the alleged receipt, twenty-two letters written by the bishop were put into his hand, and experts gave an opinion that the handwriting was genuine. But these letters had been in the possession of the party who got up the receipt, and he had an opportunity of copying them. On the other side, 111 genuine letters were put in, and the result of a careful comparison was to satisfy him beyond all possibility of doubt, that the disputed document was not genuine. The very exactness of the resemblance of each word in the disputed document to the same word in some one or other of the twenty - two genuine documents which had been in the defendant's possession, and the total absence of that sort of resemblance in the 111 to which he had had no access, was next to conclusive. Yet, had a prosecution for forgery been instituted, as the law now stood, no such comparison could have been made. In a case tried before Baron Channell at the last Winter Assizes, though evidence of a precisely similar character would have been in the last degree important in determining whether particular checks were or were not forgeries, the learned Judge was obliged to direct that 578 such light as this kind of evidence might throw upon the case could not be received. He had not been aware when framing the Bill, that these very clauses were at the present moment law in Ireland. The hon. and learned Member for Clare (Sir Column O'Loghlen) had drawn his attention to the 19 AMP; 20 Vict. c. 102, s. 25–30, which contained these identical provisions, and the Report of the English and Irish Law and Chancery Commission of 1863 actually recommended that in these very respects the law of England should be assimilated to that of the sister country. The only hesitation which he felt in bringing forward the Bill in its present shape was, that the proposition as to summing up the evidence was virtually embodied in the measure brought forward by the hon. and learned Member for East Suffolk. On carefully reading over both the Bills, however, he had arrived at the conclusion that it was better to leave that clause in the present Bill, inasmuch as he observed that his hon. and learned Friend had varied the language considerably; and with a view to the success of the measure he thought it better to adhere to the very words in which this House and the House of Lords, with the exception of the proviso before alluded to, had passed the same measure in 1860. As to the rest of the Bill it had nothing in common with that of his hon. and learned Friend. The hon. and learned Member explained that the wording of the clauses made them only applicable to cases of felony and misdemeanor, but that he thought it convenient to adopt the provision of 19 AMP; 20 Vict. c. 102, s. 98, which extended the evidence clauses of this Bill to all courts and all cases, and he would so alter the wording in Committee as to carry out that view. He concluded by moving the second reading of the Bill.

§ MR. ROEBUCK
said, this Bill afforded an admirable specimen of English legislation. A rule had been established in civil cases which his hon. and learned Friend desired to extend to criminal cases; but instead of saying, in so many words, that all the rules of evidence now applicable in civil cases should in future be applicable to criminal cases, he felt it necessary to repeat every one of the clauses, thereby incumbering the statute-book with an unnecessary mass of verbiage. He appealed to the right hon. Gentleman the Secre- 579 tary of State, whether the plan he had suggested was not the shortest, the most effective, and certainly the most scientific way of effecting the alteration.

§ SIR GEORGE GREY
said, that his hon. and learned Friend the Attorney General, if present, would have given his assent to the second reading of the Bill, and on the part of the Government he (Sir George Grey) now gave that assent. He thought it would prove a very useful measure. With the exception of one clause, which was different in its wording, he thought the suggestion of the hon. and learned Member for Sheffield (Mr. Roebuck) might be acted upon by simply declaring that the enumerated sections of the Common Law Procedure Act should apply to criminal cases as well.

§ MR. LOWE
said, it struck him that the suggestion, though very plausible, could not safely be acted upon. One of the results would be that, as in civil suits, all admissions given by the prisoner under any circumstances would be admissible against him.

§ MR. DENMAN
said, that the suggestion that had been thrown out by the hon. and learned Member for Sheffield had occurred to himself, but he had refrained from taking that course, fearing he should be met with the objection that it was a highly inconvenient mode of legislation to pass an Act of Parliament referring to another Act. In a court, or elsewhere, the other Act might be sent for, when it might be found not to contain what was wanted, and become necessary to refer back to another Act. The most convenient plan was to put down in black and white the alteration that it was intended to make, copying, if desirable, the clauses from the existing Acts.