§ Order of the Day for the Second Reading read.
§ LORD BRAMWELL
, in moving that the Bill be read the second time, said, that the object of the measure was not to compel, but to enable, any accused person and his wife, with his consent, to give evidence at any stage of the proceedings against him. This Bill had already once passed through their Lordships' House, and it had the approbation and strong support of the noble and learned Earl (the Earl of Selborne) who recently sat on the Woolsack, of the late Earl Cairns, and of the noble and learned Lord who sat below him (Lord Fitzgerald). Of all persons in the world, the man who knew best whether an accused person was guilty or not was the man who was charged with an offence; and yet under the present law that was precisely the man whose mouth was closely shut. It must be a most grievous thing to an accused person that, when he could prove his innocence, he was not allowed to give evidence. Already steps in the direction of allowing an accused person to give evidence on his own behalf had been taken to a certain limited extent, and this Bill merely proposed to go further upon that path. The principle of the measure had been recognized in the Explosives Act and in the Criminal Law Amendment Act which was passed in the last Session of Parliament. 224 The part of the Law of Evidence which he proposed to repeal was the last remnant of the very unreasonable condition of that law which existed some 50 years ago. He was surprised that a measure of this kind should be opposed by the noble Lord (Lord Denman) opposite, whose father, when Lord Chief Justice of the Queen's Bench, had been the first to carry an Act which had for its object the amendment of the Law of Evidence. A similar Bill to the present had passed through the other House of Parliament some time ago. He begged to move the second reading of the Bill.
§ Moved, "That the Bill be now read 2a."—(The Lord Bramwell.)
said, he would quote from the Bill of Pains and Penalties, 1820 remarks by his noble Relative, then Solicitor General to Queen Caroline, as to not calling an accused witness. Mr. Denman said—I was about to observe that there were certain individuals whom we have not called before you, and it is simply for this reason that our case is already proved; and we do not think it decent or consistent with the principles of justice to overload these minutes of evidence already so vast and unwieldy—we do not think it consistent with the principles of justice to admit that we are bound to go one step further. We heard the challenges and defiances, and we heard that the corespondent might be called. This is a fiction, this is one of the unparalleled circumstances of this extraordinary case. From the beginning of the world to the present moment no instance is to be found in which a party accused is called to prove the adultery. We are to be told, forsooth, because he knows the fact he ought to be called to the bar take his oath upon the subject. The answer is in a word—there is either a case against us or there is none; if there is no case there is no occasion for us to call a witness. If there is a case no man would believe the supposed adulterer. That is a circumstance upon which the nicest casuists might dispute, with some prospect of success, on either side of the question; but I think the feelings of mankind would triumph over their morals, and it would be thought more excusable even to deny on oath a circumstance so degrading as that—a circumstance of confidence so unfit to be betrayed, that perjury would be thought venial, in comparison with the exposure of the woman he might have betrayed into his toils. Will my learned Friends show a case in which such a witness has been produced? And, if not, it must be taken that the abstinence from calling such witness must be founded on too deep principles in the nature and heart of man to be repelled, even upon this occasion, to which so many principles have been made a sacrifice."—(2 Hansard,  179–80.)He, as a magistrate, could never believe a defendant in an affiliation case on his oath. 225 He found that oaths by persons charged with debt were no longer admitted, he alluded to the extension of creeping on; but was convinced that it had gone too far, and ought to be restrained rather than extended.
§ THE MASTER OF THE ROLLS (Lord ESHER)
said, that it was opposed to the principles of the law of England that a man should be convicted by hostile examination out of his own mouth. He was afraid that if accused persons were to be submitted to cross-examination they would be convicted, in 99 cases out of 100, otherwise than by evidence produced by those who prosecuted them. It was quite a mistake to suppose that because an accused person could not now give evidence on oath he was thereby prevented from giving his own account of the matter. An accused person now had an opportunity of making a statement without being liable to cross-examination; and the question left to the jury then was, whether that statement, if it suggested innocence, was consistent with the evidence of guilt brought forward by the prosecution; and the jury was always directed that if it was they should acquit the prisoner; but if he were allowed to be sworn he could be cross-examined as to his character as well as in reference to the particular crime charged against him; and if he were found to be of bad character, it might, and would, be pressed upon the jury that he was a person who was extremely likely to have committed the offence of which he was accused. With every deference to his noble and learned Friend, who had had very large experience in those matters, he could not help expressing a strong dislike to the proposed innovation in our Criminal Law, the most careful of freedom yet known to the world.
§ LORD MONKSWELL
begged to thank his noble and learned Friend for introducing that most important and beneficial alteration in the law. Many Judges had lately adopted the practice of allowing the prisoner to give his account of the transaction not on oath; but that seemed to him to be a very inconvenient compromise between shutting the prisoner's mouth and not permitting him to give evidence in the regular and proper manner, subject to cross-examination. It was to be presumed that every innocent man would like to give 226 an account of the transaction in his own way; and why was an innocent man, wrongly accused, to be prevented from doing that simply because a guilty man might commit perjury? It might be said that if accused persons were allowed to give evidence they might at times be convicted out of their own mouths; but if a man's examination were not compulsory and he chose to give his evidence, and it convinced everybody of his guilt, why should he not be convicted? To deprive innocent men of the opportunity of explaining their conduct in order to screen a few guilty men who might at present escape was not a reasonable mode of proceeding. If the prisoner's evidence was to be given, it ought to be given subject to the usual right of cross-examination. There was no fear of that right being abused in this country; the authority of the Judge, and the feeling of the jury, the Bar, and public opinion would repress any such abuse; and they knew that prosecutions in England were conducted with great forbearance and moderation.
THE EARL OF MILLTOWN
said, they were told that the Bill would not make it compulsory on the prisoner to give evidence; but if the measure became law it would be known that the prisoner could give evidence if he chose; and, therefore, if he did not do so, would not the obvious inference be drawn by every jury that he was a guilty man? Under those circumstances, the guilty man would feel that his only chance of escape was by going into the witness-box and committing perjury. But the prisoner might be a man who was innocent of the charge brought against him, though he might be well known to the police as having committed previous offences; and if it could be shown to the jury—what was now carefully kept from them—that he was a bad character, that circumstance would prejudice the case of the prisoner. If he had been previously convicted that fact was kept from the jury, that they might come to an unbiassed conclusion; but if that Bill were passed, that fact would be immediately brought forward by the counsel for the prosecution. Again, an innocent accused person might feel a burning sense of indignation which would cause him not to give his evidence with the clearness which might otherwise characterize it; and when cross-examined by 227 a practised counsel he might give such answers as tended to convict himself. That Bill would introduce a gigantic innovation in our Criminal Law, and he could not but look upon it with considerable suspicion.
§ VISCOUNT CRANBROOK
said, he felt bound to state that it was by a gradaal growth in his own mind that he had come to the conclusion that, after what had already been done in that direction, it was almost inevitable that they should go still further. The principle of that Bill had been partially introduced already in some cases. The precedent of the Explosives Act had been mentioned. It was introduced into a measure which was carried through the House last year; and if it were accepted to meet the difficulty of getting evidence in some instances they could hardly reject it in others. He dared say that if they adopted it in criminal cases a prisoner might find himself compelled to give evidence; and it would be much better that he should be put upon his oath than that he should make the kind of statement that was commonly made now. At present a prisoner often reserved his defence; and if he had an opportunity of giving evidence on oath when before the magistrate he would be under a strong inducement to do so, because if he did not he would lay himself open to the suspicion that he had no defence. Everything that had been done of recent years had been not for the sake of either one party or the other, but to bring out the truth; and he was bound to say that he thought, if the prisoner was to give evidence at all, it was much better that he should give it on oath, and subject to cross-examination. The whole case came to this—how best to determine the guilt or innocence of the man who was charged. It seemed to him that if they once introduced the system of allowing a husband or wife to give evidence, the one for or against the other, it would be a great improvement on the present state of the law to allow a prisoner to give evidence if he thought proper to do so. At the present time the Criminal Law was a sort of Game Law for giving a fair chance to a prisoner, instead of obtaining a knowledge of whether he was guilty or not.
§ LORD FITZGERALD
said, he believed that there was no noble and learned Lord present who had a larger experience 228 of the Criminal Law than he had. The result of his long experience had induced him to believe that the present state of the law inflicted a good deal of hardship, and not infrequently much injustice. In many cases, where the prisoner had been tried on a serious charge, the accused might have been able to dispose of the whole case against him if the state of the law had allowed him to go into the witness-box and be subjected to examination. Many convictions, indeed, were passed because the accused person was not allowed to give evidence. The Bill being intended to remedy this state of things, he would give it his support. If a prisoner was competent to be heard as a witness, they ought to get rid of all those hindrances which at present prevented him going into the witness-box, and which sometimes led to the accused being unjustly convicted.
§ THE LORD CHANCELLOR (Lord HERSCHELL)
said, he agreed with the views which had been expressed by the noble Viscount. He thought there had been a remarkable change not only in public feeling, but in professional opinion, on this question during recent years. He remembered, when he first had a seat in the House of Commons, that this question was discussed; and the general feeling, not only of the House, but of professional opinion in the House, was against the proposed alteration of the law. As time went on, however, and men weighed the arguments for and against the change, an alteration—perhaps the more important because it had been gradual, and not the result of any agitation—had passed over men's minds; and during the late Parliament many Members were found to be in favour of this measure who in former years had been opponents of it. If he thought that this measure would merely tend to the greater certainty of convicting the guilty he would not be prepared to support it, if he thought that, at the same time, it would add to the dangers of the innocent. He thought it was such a terrible thing that a man innocent of a crime should be convicted of it, that he would not be disposed to alter the law even if it were shown that an increase in the conviction of the guilty would, at the same time, result in an increased danger to the innocent. He believed, on the whole, however, that it would be 229 to the advantage of the innocent that this change would tend. He did not deny that there might be cases in which there might be an increase of danger to an innocent man on account of nervousness and other matters, but they must weigh the matter as a whole; and he was certain that the advantage to the innocent man of being able to tell his story himself, and even to have his attention directed by examination and cross-examination to the points which were telling against him—though he might not be able to see them himself—would be of the utmost advantage to the accused. He wished to add a word of practical experience in this matter. He had been professionally engaged in a trial under the Explosives Act in which this change of the law was seen in operation. It was a crucial test of the advantage or disadvantage whether prisoners should be allowed to give evidence, inasmuch as each prisoner electing to give evidence set up a different defence, and the defences were hostile to one another—that was to say, that the defence which each prisoner set up really told against his fellow-prisoner, although in favour of himself. Their Lordships would see that it was, therefore, a very trying case by which to test the advantage or disadvantage of allowing the prisoner to give evidence. He believed that every counsel who was engaged in that case—some of them prejudiced against this change of the law—confessed, at the end of the trial, that they believed distinctly it was to the advantage of the prisoners in the case cited to give evidence, and make their statement of the case. He believed the more experience was gained of this change of the law the more it would be found that the dangers which were depicted were really imaginary, while the advantages were very real.
§ LORD BRAMWELL
said, that the opinions of the noble and learned Earl (the Earl of Selborne) and the late Earl Cairns, uttered in a former debate furnished arguments in reply to those now used by the Master of the Rolls (Lord Esher). The noble and learned Lord spoke of a practice which he said was common; but he should like to ask the noble and learned Lord whether that which he said was common had ever occurred in his own practice? It did not do full justice to the prisoner to make a statement 230 if he were not subject to cross-examination. The accused ought to be able to give his evidence if he thought fit, and to be dealt with as every other witness was, giving evidence on oath under the responsibility which attached to the making of an untrue statement. Undoubtedly, that would give rise to perjury, for, unfortunately, the more evidence the more perjury; but they must look not merely to the disadvantages, but also to the advantages, which in this case preponderated. There might be a possibility of mischief resulting from the measure, from prisoners committing themselves on cross-examination; but he did not think this would be a serious evil. The prosecuting counsel did not now resort to bullying; if he did he would be cheeked by Judge and jury and public opinion. A change had occurred in the conduct of prosecutions, and the prosecuting counsel regarded himself as a public official whose duty it was to see justice done. If they wanted to give a prisoner the right of making a defence upon oath, subject to his story being impeached upon cross-examination, the only way to do it was to encounter the dangers referred to by enabling him to give his evidence as the Bill would allow him to do.
§ Motion agreed to; Bill read 2a accordingly.