COMMITTEE. (Hansard, 22 March 1886)

LORD DENMAN
My Lords, I find that The Times newspaper has taken up this Bill, and argues upon it as if it were one of the Legislative Bodies. It alludes to the case of O'Donnell; but I ask your Lordships, if that man's statement—happily admitted—had been upon oath, whether it would have saved him? I considered that he had killed a man who not only had planned the odious assassination of a noble Friend and esteemed neighbour of my own, but had also betrayed his accomplices and caused their death. I tried to obtain his respite, and wrote to the proprietor of The Morning Post, and sent the Memoirs of Captain Freeney to the Lord Mayor, Mr. (now Sir Robert) Fowler, but in vain. I complain that The Times, in the report on the second reading, in giving my extract from my noble and lamented Predecessor's speech in 1820 as to calling an unnecessary interested witness, gave it as my opinion, which weakened the effect of it; and anything I say may only appear in Hansard, too late to produce any impression, although the public have the right to know what is really said. This Bill has twice been read a third time in your Lordships' House, was read a third time on two occasions in "another place," and again brought forward on December 3, 1884, after having been withdrawn in "another place" on the 10th of July, which was fatal to so many measures in your Lordships' House. I sent a copy of the speech in 1820 to Mr. Stuart-Wortley, and he thanked me for it. I have protested against its principle when the Bill for admitting women as witnesses against their husbands passed your Lordships' House. It cannot be made a good Bill.

THE EARL OF MILLTOWN
said, he would, suggest the omission of that part of the clause which provided that the husband or wife of the person charged should not be an admissible witness without the consent of the other. No doubt it was painful for husband and wife to give evidence against each other; but the same might be said with even greater force of near relations; and the present provision would, in effect, mean that the husband or wife could only be examined for the defence, although the absence of such evidence might lead to a miscarriage of justice.

§ LORD BRAMWELL
explained that the object of the Proviso was to prevent perfect confidence between husband and wife being done away with.

§ LORD HALSBURY
said, he begged to move the omission of the clause. The first part of it was useless, or not necessary, and the latter part mischievous. He entirely objected to Judges having the power to make law, it being their duty to administer the law as passed by Parliament.

§ LORD BRAMWELL
said, he could not agree that the clause was useless or unnecessary. When a person charged was allowed to give evidence, it must follow, as a matter of course, that he could not be allowed to shelter himself from unpleasant questions, alleging that he would criminate himself if he answered them. By the latter part of the clause a discretion was given to the Court in the matter.

§ LORD HALSBURY
moved to insert a new clause to the following effect:— A person called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that any defendant has committed or been convicted of any offence other than that wherewith he is then charged, unless the proof that the defendant has committed such other offence is admissible evidence to show 1471 that such defendant is guilty of the offence wherewith he is then charged, or unless such defendant has given evidence of good character.

§ LORD BRAMWELL
said, he could not assent to the noble and learned Lord's Amendment. If a man charged with an offence chose to tender himself as a witness he ought to be subjected to cross-examination in the same way as the prosecutor or any other witness was. That was not a Bill for the benefit of prisoners. He believed that more convictions would take place under it than they had before. He thought that it was a bad Bill for the guilty and a beneficial Bill only for the innocent. He did not believe that that power of cross-examination would be abused; and he was quite certain that the Judges, the Chairmen of Quarter Sessions, the Bar, and the public would all resist and resent an unfair cross-examination. His noble and learned Friend said that that was the beginning of the process of examining prisoners whether they liked it or not. He did not wish to introduce that now, and if it were ever introduced it would require to be done by the most careful legislation. He confessed that he thought the French practice of the Judge setting his wits against the prisoner ought not to be adopted. It was said that our present law was so careful that when there was a previous conviction against a man it was not brought forward against him until he had been found guilty of the particular offence with which he was charged. That was quite true; but why was that? Because the only reason for bringing forward a previous conviction before the man had been found guilty would be to prejudice the jury against him. But when he was called as a witness he would not be asked about a previous conviction for any other purpose than that of showing that he was not a trustworthy witness. If he chose to keep out of the witness-box the jury would know nothing about his character; but if he entered the witness-box they had a right to ask what his character was, in order to see whether he was a trustworthy witness. A prosecutor's evidence was sifted in this way; and why should the prisoner be placed at a greater advantage? There could not be contradictory modes of getting at the truth and both right.

§ THE LORD CHANCELLOR (Lord HERSCHELL)
said, he thought the ques- 1472 tion raised by the Amendment was one of very considerable difficulty; and he was not convinced that it would, on the whole, tend to justice. He could not entirely regard it as a question between the prosecutor and the prisoner, because the effect of the answers of a prisoner would be very different on a jury from the replies of a prosecutor or an ordinary witness. He admitted that it was a question of the balance of advantages and disadvantages, and he did not profess to entertain any very strong opinion upon it. But when they were making that very considerable change in the law, he doubted whether it would be wise to couple that change with the limitation suggested by his noble and learned Friend.

§ VISCOUNT CRANBROOK
said, he could not understand under what system a prisoner was to be allowed to become a witness, and to be put on a totally different footing from all other witnesses. His former experience led him to think that if a man stated the whole truth, as he had sworn to do when he gave evidence, and candidly confessed that he had a bad character, he was more likely to be believed by the jury than if he acted otherwise.

THE EARL OF MILLTOWN
said, he thought that some of the arguments to which they had listened that evening were arguments against the principle of the Bill itself, and he had himself urged some of them in the discussion on the second reading. If a prisoner was to be examined at all, he must be subject to the same rule of examination as other witnesses.

§ LORD ASHBOURNE
said, he thought that logically the objections to the Amendment were sound; but he was anxious that the Bill should pass. It was a good measure not only for the innocent, but for the community at large. He would vote for the clause, because he thought public opinion was not ripe on this matter, and the measure would have a better chance of passing if the Amendment were inserted.