WITNESSES BILL. (Hansard, 15 June 1854)

LORD BROUGHAM
, in moving the second reading of the Witnesses Bill, said, it was intended to remedy a defect in the law of the United Kingdom in respect to the power for compelling the attendance of witnesses in civil suits. It was probably known to all their Lordships that a subpœna issued in England had no power to bring here, to give evidence, a witness from either Scotland or Ireland; and vice versâ, that a subpœna issued in Scotland or Ireland had no power to compel the attendance of a witness from England, however necessary the testimony of that witness might be for trials pending in those several parts of the United Kingdom. This, however, was confined to civil writs; for very nearly fifty years ago, by the 45 Geo. III. c. 92, in criminal cases, subpœnas operated reciprocally in the three parts of the United Kingdom; that was to say, for a criminal trial in England a subpœna issued here could bring a witness from Scotland or Ireland, and, vice versâ, a subpœna issued in Scotland or Ireland could compel the attendance of a witness from England. Upon looking at the present Bill, which was introduced into the House of Commons by an hon. and learned Friend of his, an eminent Irish barrister (Mr. Butt), he found that it had been drawn after the analogous provisions of the Act passed by Lord Eldon in 1805, with one exception, wherein he thought the present Bill was a great improvement over the former Act; although he was bound to state that the new provision, while it was perfectly adapted to a civil suit, might not possibly have been fitted for every criminal case. He referred to that provision of the Bill by which it was provided that it should not be at the option of either of the parties in a suit to carry a witness from England to Scotland or Ireland, or from Scotland or Ireland to England, but that there should be a discretion vested in the Judge, upon cause shown to 158 him, to give leave to the party to take a witness from England to Scotland or Ireland, or from Scotland or Ireland to England. He highly approval that addition to the Act of 1805; and if he wanted an instance to show the propriety some such check upon parties in summoning witnesses, he should remind their Lordships of the case of a noble Friend of his (Lord John Russell), who, having hen subpœnaed to give evidence in Ireland, was on the point of being obliged to go over for that purpose, though at his own very great inconvenience, and it might be said also to the very great inconvenience of the public, he being then in a high office, when he was told that he need not go, and that his evidence would be dispensed with. That was in a criminal case, and his Lordship was subpœnaed under Lord Eldon's Act; but the same thing might happen in a civil suit; and, therefore, he thought it was exceedingly well advised on the part of the framers of this Bill to have introduced that check, and to require that no witness should be summoned from Scotland or Ireland to England, or from England to Scotland or Ireland, without the fiat of the Judge placed upon the subpœna. He hoped and trusted that in acting under this Bill, should it be passed into law the learned Judges of the three kingdoms would not consider that their consent was to be given as a matter of course, but would really and truly exercise that sound discretion which the provisions of the Bill were intended to vest in them. The necessity for sonic such Bill was so obvious that it hardly required to be mentioned. It constantly happened when a witness was wanted to give evidence—no party being able to compel his attendance—that recourse was had to the roundabout and unsatisfactory proceeding of issuing a commission to take his evidence in private, and to transmit the written deposition. What was the consequence? The evidence of the witness was given in private and not in public; under no check of the inspection of the court or the public, and miler no check of a sufficient cross-examination, he made his deposition very repel as he or the party who examined him chose to have it; and then that deposition went before the court with this additional defect—which accompanied all written evidence—that one Judge or one Commissioner examined the witness and took down his deposition, and that another, who had 159 not seen him, decided upon it. It was to remedy that evil that this Bill had been proposed; and he hoped and trusted that their Lordships would now give it a second reading. He should take occasion in Committee to supply what he thought was a great omission in the Bill—namely, a clause providing for the payment of the reasonable and proper expenses to be allowed to a witness for his journey both ways.

THE LORD CHANCELLOR
was understood to give his sanction to the second reading of the Bill, and to express the opinion that it was not necessary to provide for the payment of the expenses of witnesses, who would be remunerated in the ordinary way.

LORD BROUGHAM
said, that he heartily wished for another improvement in the law, giving compensation to witnesses for loss of time. He had known men taken from Liverpool to Manchester, leaving the most important business in which traders could be engaged, and kept in Manchester three or four days till the cases came on, not receiving one farthing of compensation for their loss of time, and in many instances protesting that they would willingly rather pay the debt upon which they were called as witnesses than remain absent from their business during those three or four days. He would like to see some provision introduced into the Bill to amend the law in that respect.