LORD BROUGHAMpresented a Bill, the object of which, he said, was to extend to criminal cases the provisions of the Act of 1851 which enabled parties in civil suits to he witnesses. The effect would be to enable the accused party, if he so chose, to offer himself for examination at his own trial, just in the same way that parties were enabled to present themselves for examination in their own suits—with this difference, however, that in criminal cases the examination was not to be compulsory; and therefore this measure was of a permissive character only. He readily admitted that the measure he proposed would be an important change in our criminal 761 procedure. But the more the subject was examined into the more it would be found that there was no solid foundation for the present rule of our land by which a limitation placed on the reception of evidence in criminal cases. The fact was that at present one of the parties was actually permitted to be a witness—for the prosecutor was almost invariably examined at a criminal trial. But then it was said that the Crown was the prosecutor, and that the party was only the witness of the Crown. A more utter fallacy could scarcely he imagined. In ninety-nine cases out of every hundred the Crown was only theoretically the prosecutor, and the real prosecutor was some private individual—it was a mere fallacy to maintain the contrary—yet this person was admitted to tell his own story, while his adversary the party indicted was not allowed to say a word. This was especially unjust in cases of criminal prosecutions for libel or assault or conspiracy. By adopting the course of a criminal prosecution the one party was able to deprive his adversary of the advantage he would have enjoyed if the plaint had been brought in the civil form. Surely it was most unfair that a man should be able to do by indictment what he could not do in civil action—shut up the mouth of the man he prosecuted. When in 1851 he introduced his Bill to enable defendants in civil suits to be examined on their own cases, he was met by the objection that he was giving occasion to endless perjury. But what were the facts? Why, that prosecutions and commitments for perjury had actually diminished. For a period of years preceding the passing of that Act there had been 136 prosecutions for perjury, and for a corresponding period subsequent there had been only 107. It might be objected that if, after this measure had passed, any person indicted should refuse to be examined it would raise the presumption that he was guilty. That case would be met, and he for his own part was not unwilling by making examination compulsory. He must further observe that in bankruptcy and insolvency the parties were examined at present, whether they willed it or not, and without receiving any protection against supplying evidence by which they might criminate themselves. The noble and learned Lord then presented a Bill for the further Amendment of the Law of Evidence as well in Criminal as in Civil Proceedings; and moved that it be read 1a.
LORD CAMPBELLsaid, he did not rise 762 for the purpose of opposing the Motion that the Bill be read a first time; but he believed that it was a measure that would call for the most mature consideration on the pact of their Lordships, because it was one of the most important Bills as regarded the administration of justice that had for a long time been brought under the notice of the Legislature. He had always been an advocate of the measure by which parties were allowed to give evidence in civil suits, and he was of opinion that the change of the law in 1851 had, on the whole, worked well. He must, however, at the same time observe that his noble and learned Friend appeared to him to entertain a somewhat too sanguine idea of the effect of that measure if he supposed that a considerable amount of perjury had not prevailed under its operation, and to labour under an erroneous impression if he imagined that the extent to which that offence had been committed might be correctly estimated by the number of prosecutions with respect to it which, since the passing of the Bill, had taken place, because in many cases the ends of justice had been frustrated without detection. On the whole, however, he was glad that that Act had been passed. His noble and learned Friend, however, at present proposed an utter subversion of the mode in which criminal justice had hitherto been administered in this country; he proposed that in all cases of misdemeanour, felony, and high treason, the accused party might be examined and cross-examined; and he would thus introduce into England a system which, as he must be aware, worked most lamentably in a neighbouring country. He (Lord Campbell) had read of trials in France, in which the accused parties had been put to a species of moral torture, and had been driven to tell lies in their own defence, even though they should have been innocent of the special crimes with which they had been charged. His noble and learned Friend should bear in mind that if he were to introduce that principle at all into this country it must prevail universally, and was equally applicable to cases of high treason as to misdemeanour or felony. And he would ask his noble and learned Friend to consider the situation of a person accused of the first mentioned offence if he were reduced to the necessity of either refusing to give evidence, and thus in effect make an acknowledgment of his guilt, or going into a witness-box and submitting to a cross examination as to every thoughtless expres- 763 sion which he might have uttered in his lifetime, or every indiscretion he might have committed? Such a system would exasperate the severity of the criminal law in all departments to a degree of which their Lordships could hardly form any conception. If the Bill were passed, prisoners Who should refuse to avail themselves of the permission to be examined on oath would afford the strongest presumption of their guilt; and the result would be that parties driven to tender themselves as witnesses would frequently be convicted on their own evidence. If his noble and learned Friend were to confine the operation of his measure to one or two cases, such, for instance, as indictments for perjury, and provided that the prosecutor should be heard on one side and the defendant on the other, he could have understood such a proposition; but it seemed to him that the Bill, as it stood, was one of a Most alarming character; and it was only because he was anxious to conform to the Courtesy of the House, by which a first reading was always given to any measure that might be proposed, that he was led to refrain from opposing the introduction of the Bill.
LORD BROUGHAMsaid, his noble and learned Friend had rather astonished him by his reference to the practice on criminal trials in other countries, and to this measure as bearing the slightest analogy with, much less as resembling, that practice. What was the objection to the French system—an objection in which he entirely agreed? It was that the examination of the prisoner was conducted by the Court, that it was a compulsory examination, that every prisoner was subjected to what Lord Denman called "a moral torture;" that every word he had uttered out of Court was brought against him on his examination in Court, and that he had no means of escape, being compelled in all cases to undergo this questioning. But the present measure would have no such effect. He only proposed that the prisoner should be examined if he presented himself for that purpose. No doubt cross-examination would follow; but, if the prisoner were innocent, surely he would desire above all things to submit to this examination, while, if guilty, it would be that which he would most fear. With regard to the Bill of 1851, as his noble and learned Friend approved on the whole of that measure, its effect must have been to diminish perjury; for it was impossible that the Lord Chief Justice, the 764 highest criminal judges in the kingdom, could rejoice at the increase of this crime. But his noble and learned Friend seemed partly for and partly against that Bill, reminding him very much of certain witnesses who stood at the Bar of their Lordships' House some seven and thirty years ago, and who, when certain questions were put to them, replied that they could not say either "Yes" or "No," but rather "Yes" than "No." His noble and learned Friend had given his sanction to the Bill of 1851, when it was brought forward in this House, and he (Lord Brougham) should regret very much if his experience of its effects led him to repent of the course he had taken on that occasion. Upon the whole, that measure had worked well, and had furnished the Court with additional opportunities for arriving at that which it was the only object of the Court to ascertain—the truth of the case before them.
LORD CAMPBELLwished to undeceive his noble and learned Friend if he thought that the Bill of 1851 had not led, in some cases, to perjury. But certainly, when parties were examined, they in general said nothing but what was decidedly in their own favour. When the law first came into operation, either the plaintiff or the defendant was almost always committed for perjury; and if his noble and learned Friend believed that the present measure would never tend to elicit anything but the truth, he would be greatly mistaken.
§ THE LORD CHANCELLORsaid, he had more than once endeavoured to prevent the premature discussion of measures introduced into their Lordships' House; but he felt it his duty upon that occasion to trespass on their attention for a few moments, lest it might be supposed from his silence that he approved of the Bill of his noble and learned Friend: on the contrary, he agreed with the Lord Chief Justice in his disapproval of the practice sought to be introduced by the Bill. His noble and learned Friend (Lord Brougham) said, that this practice differed entirely from the French system, and that the latter consisted in a compulsory examination of the prisoner by the Judge, who undoubtedly endeavoured, with all the practised dexterity at his command, to extract an acknowledgment of guilt. But the Bill contained even a worse feature, fur, while in France the examination of the prisoner was not upon oath, his noble and learned Friend proposed that he should be sworn 765 to the truth of his statement; and although the examination was to be optional, it was quite clear, as the Lord Chief Justice had remarked, that in practice it must be compulsory. Now, it had been the boast of our law that we exhibited the greatest forbearance towards the accused, and where there was the least reasonable doubt of guilt, it was invariably laid down that the prisoner was entitled to the benefit of that doubt. Now, suppose a person were charged with an offence, the question of his guilt or innocence being involved in considerable doubt—at present, the Judge would so direct the jury as to incline the scale in favour of such a prisoner. But what would be said if the provisions of this Bill were adopted? Why, that one man, and one man only, could clear up the uncertainty, and if, under such circumstances, the accused refused to present himself for examination and cross-examination, and to expose, in so doing, his whole life—perhaps not a very moral one—to the probing questions which would be addressed to him, the natural presumption of the jury would be that he must be guilty. The result of the Bill, therefore, would be to introduce a total change in the law, and a change for the worse. It would be a change by which this country would lose the high reputation it had gained for the pure administration of justice. He would mention a curious circumstance illustrative of the notion which Parliament entertained of the disadvantage or allowing persons criminally accused, to give evidence. In a proceeding in an action in the Court of Exchequer against a party for an offence in violation of the Revenue Laws, a question arose whether the party against whom the information was filed, was entitled to be a witness; and the decision on that point depended on the circumstance whether the case was a civil case, involving a mere debt to the Crown, or a criminal offence. The Judges of the Court of Exchequer were equally divided on the matter; and the result was, that an Act of Parliament was passed to render persons accused of offences against the Revenue Laws, not competent to be witnesses. He believed that the revenue suffered very considerably by that law, because he had not the least doubt that were the parties accused of a breach of the Revenue Laws compelled to be witnesses in every case, there would be a certain conviction. It was not his intention to go further into a premature discussion of this subject. He had considered it since last 766 Session, when a similar Bill was laid before their Lordships, and he quite agreed with the Lord Chief Justice to the extent to which that noble and learned Lord went; and he went further, because he was not desirous in the slightest degree of breaking in upon the rule of law which prevented, in criminal cases, the parties accused, from being examined.
LORD BROUGHAMobserved, that in criminal cases at present the prosecutor was examined, while the accused was not allowed to be examined, and the law was entirely inconsistent with itself.
Bill read 1a.
§ House adjourned at half-past Six o'clock, till To-morrow, half-past Ten o'clock;