COMMITTEE. (Hansard, 3 March 1887)

THE EARL OF MILLTOWN,
in moving, as an Amendment, the omission of the following words, "nor shall such wife or husband be an admissible witness on any such hearing," with the object of making husband or wife an available witness for the prosecution, as well as the defence, said, that as it stood the clause made the husband or wife an available witness for the defence only; but that ought not to be the case, if it was right that everyone who could throw light on the circumstances should be allowed to give evidence. There were some cases in which the evidence of the wife alone could be available against the husband, and was the man to escape for want of legal evidence? To give the prisoner a veto would be to create a greater anomaly than that which it was proposed to abolish. In the case, for instance, of a father committing a gross outrage on his child, which was too young to be examined, the mother might be the only witness, the prisoner would, of course, object to her being called, and a failure of justice would result.

§ LORD BRAMWELL
I cannot accept the Amendment. The scope of the Bill is enabling, and not compulsory. It enables certain persons to give evidence, but does not compel them. Another reason why I cannot accept the Amendment is, that it is of the greatest importance that perfect confidence shall exist between husband and wife; and that they shall be able to communicate freely with one another, without the danger of what is said being brought up in evidence against the speaker. If communication with a man's lawyer is privileged, it is still more important that what is said between husband and wife shall be privileged.

THE EARL OF MILLTOWN
said, that according to the provisions of the Bill it was compulsory on the husband or wife of the prisoner to give evidence, if the prisoner wished it. He (the Earl of Milltown) would enable the husband or wife to be called, whether the prisoner objected or not. No doubt, the home relations might not be so happy as before, but that might happen also when a child of the prisoner gave evidence, which was allowable under the existing law. It was quite as painful and undesirable, if it could be avoided, to convict a prisoner on the evidence of a son or daughter as on that of a wife or husband.

§ THE LORD CHANCELLOR (Lord HALSBURY)
said, he thought it would be better on every conceivable ground that the law should remain as it was, than that there should be such an invasion of the marriage tie as the Amendment would make.

THE EARL OF MILLTOWN,
in moving, as an Amendment, the omission of the clause, which provided that no prisoner giving evidence on his own behalf should be cross-examined as to his previous career before the jury had returned their verdict—said that such a 1026 provision would give prisoners an unfair advantage, in having their evidence considered of equal value to that of prosecutors, when, in point of fact, the previous history of such prisoners might be such as to render them totally unworthy of belief. As the practice of the law was now, if a witness was a man of bad character he would be sharply cross-examined as to his previous life; why, then, should a prisoner giving evidence on his own behalf be exempt from cross-examination? He might have been convicted of felony over and over again, and yet, under this clause, counsel for the prosecution would not be allowed to ask a single question as to his past life. If their Lordships admitted the principle that a prisoner might be called as a witness, he thought it would be wise that the prisoner should be subject to the same rules that were applied to all other witnesses.

§ LORD BRAMWELL
said, he quite approved of the principle of the suggestion of the noble and learned Lord, and if he divided the House upon the Amendment, he (Lord Bramwell) should, in all truthfulness, feel bound to support it. That being so, it might be asked why he introduced the clause. He did so to save the time of the House. In the Bill of last year the clause was not inserted, and the noble and learned Lord on the Front Bench opposite (Lord Halsbury) moved to insert it. Believing that the noble and learned Lord would take the same course on this occasion, if the clause was omitted, he (Lord Bramwell) had put it in with the view of saving time, although he must say he did not approve of it.

§ THE EARL OF SELBORNE
said, he supported the retention of the clause. The whole subject of the Bill was one in which it was necessary to strike a balance between conflicting considerations. On the one hand, it was wrong that an innocent man should be unable to prove his own innocence when all might depend upon his personal testimony; on the other hand, the prisoner ought not to be put morally upon the rack, as seemed to be done in France. He could not see how there could be any objection to the principle that it was better that they should not run the risk 1027 of having innocent men convicted merely because, at some previous time, the accused had been in trouble. It was certainly no impossible thing that a jury might convict a man who ought to be acquitted of the crime with which he was charged, merely on account of his bad character.