Lords Sitting of 26 May 1891

NEWFOUNDLAND FISHERIES BILL.
  OBSERVATIONS.
  LORD DENMAN: My Lords, on the 11th May I gave notice that on the Motion for the passing of the Newfoundland Fisheries Bill I should move an Amendment that it be passed that day four weeks, which would have been the 8th June. I believe a little delay would be extremely useful, and although, from my deafness, I was not able to hear when the question was put, yet if I had been both deaf and dumb, somebody should have been deputed to watch how the business of the House was going on. It is objected that we ought not to be in the position of waiting for the passing of a Bill in the colonies, but it is not, I think, beyond the pale of the Constitution to say that if Her Majesty chooses to withhold her Royal Assent until a Bill passes in the Legislature of Newfoundland, it would be more likely to produce peace than any hasty measure that could possibly be passed.

EVIDENCE IN CRIMINAL CASES BILL. [H.L.]
SECOND READING.
Order of the Day for the Second Reading, read.
THE LORD CHANCELLOR: My Lords, this Bill, which seems to me to be one of very serious importance indeed, has been approved, so far as I know, by every one who has discussed the matter. The object of the Bill is to enable accused persons to give evidence in their own behalf in criminal cases as well as in civil cases, and, although it has not passed into law, it has several times been before your Lordships' House as well as the other House of Parliament. I do not believe that any person, unless he were to look into the Statute Book for the purpose, could have any idea how very absurd, incongruous, and even, I may say, ridiculous, is the present state of the law in regard to giving evidence in criminal cases. Many years ago, as your Lordships are aware, the old illogical theory of the law was carried
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out to so great an extent that, in civil cases even, parties who had any interest in the subject-matter of the suit were not permitted to give evidence; but that has been changed, and for some years past now the persons concerned in such cases have been allowed to go into the witness box in their own behalf, and it is generally admitted that the change has had beneficial results. Speaking from my own experience, over a very considerable period, during the greater part of my professional life, I am convinced, and I feel sure that the experience of most Judges on the Bench will have convinced them that that was a great improvement upon the state of the law as it stood before that time. In fact, when one considers how cases are tried now, one is often at a loss to know how they could have been tried formerly with any regard to doing justice. It is difficult to understand how, under the old state of the law, it was possible to arrive at the truth. No doubt there was great skill shown in the management of causes at Nisi Prius, and people were fascinated with the great art displayed; but the result was not always in accordance with justice, though persons skilled in intellectual exercises might be interested in seeing how justice could be arrived at in certain cases without calling the parties most interested. That has long since passed away; but to the general alteration of the law in that respect an exception was made. When the law was altered in regard to civil cases it was provided that the alteration should not extend to criminal cases. It was, I presume, thought too great an alteration of the old principle of the law to be applied to them. But since then there have been alterations and departures from the original theory of the law, though it is still in the incongruous, and, as I have said, even ridiculous, condition that you may have the same tried, practically at the option of the accuser, either in a form which will allow the mouth of the accused to be open, or in a form which will shut his mouth and prevent his being examined as a witness. The Legislature has intervened to some extent, and has given accused persons and their wives, in certain cases, the right to give evidence, particulary in regard to sexual cases. Before I conclude I will give your

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Lordships a list of the exceptional cases in which the Legislature has enabled persons to be examined, and I cannot conceive anyone being content with such a system of law, and one so utterly incongruous as the present law of evidence. A great many treatises have been written upon the subject, and, as far as I know, in later years there is hardly a person who has adhered to the view that the old illogical principle of Common Law should be maintained. Conspicuously, a distinguished member of the Bench, Sir James Stephen, wrote a treatise on the subject not very long ago, referring to his experience of cases in which prisoners can be examined. He described it as undoubtedly a most successful experiment, and one which ought to be carried further. The notion that by so doing we might gradually fall into the Continental method of examining prisoners was, as far as his opinion is concerned, an entire delusion. His opinion was that prisoners were cross-examined rather too little than too much, and that the same tenderness which the law has always fixed towards accused persons would continue to be observed with regard to everybody charged criminally who was capable of being examined as a witness. In 1885 a very serious departure from the then state of the law was made not only as applicable to the particular offences treated by that Statute, but referring back to Statutes passed 25 years before, with reference to a certain class of crime, I believe one reason why it is almost impossible to appreciate the great difficulty existing in the administration of the law in this respect is the nature of the cases. The Statute to which I have referred deals with a class of topics which is not a desirable subject of public discussion, and, therefore, people have avoided talking of them. I mean offences against women and children. The result, however, is that, while the right of a person charged to be called as a witness has been extended to a certain number and class of cases, it is denied in a great number of cases in which justice essentially demands it. If a person is accused of the gravest offence against a woman's chastity, he has now, by the operation of the Act of 1885, to which I have referred, the right to be called as a witness. By the 20th section of that Act the right to
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be called as a witness applies to a considerable number of crimes which it is unnecessary to specify, but which may be comprised under the general description of sexual offences. The result of the present system is that in respect of a great number of them you have the absurd anomaly to which I referred in the first instance. In a case in which the gravest offence is imputed the accused might be called and examined as a witness, but if he is charged with an assault—with an intent to commit that offence—he cannot be called. It would, I think, be difficult for anybody to suggest the sense or reason for such a distinction. But it does not rest there. There is a variety of other offences in respect to which a similar anomaly exists, of a distinction being made between an offence being committed and its not being attended by the most serious consequences. For instance, under the Explosives Acts, if a person is accused of having explosives in his possession, he can be called as a witness; he is made a competent witness, and can be examined accordingly. But supposing that in consequence of the improper guarding of those explosives somebody is killed, and the person who had charge of them is indicted for manslaughter, that person cannot be examined. So that whether he has the right to be examined as a witness or not may depend upon what is in one sense an accident—whether or not he is found with the explosives in his possession before they have gone off, or whether they have gone off and killed somebody while he had them in his possession. In the same way as regards equipping ships and sending them to sea in an unseaworthy condition. That is a specific offence for which a person may be indicted, and upon the indictment he would be entitled to be called as a witness. But if, in the same circumstances, somebody lost his life by the commission of the offence, and the person committing it was charged with manslaughter, he could not be called as a witness, and would not be competent to give evidence. I might multiply cases of the kind to almost any extent: and when it is borne in mind that, according to the system of administering criminal justice in this country, any person may prosecute in the name of the Queen, and

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that it may, therefore, practically be in the hands of an accuser whether the person accused shall be examined as a witness or not in a variety of cases, it must be apparent that such a system of law ought not to be permitted to continue. I have thought it right to bring this matter before your Lordships at greater length than I should otherwise have done, because my attention has been lately called to one or two examples of cases in which the law does not allow the accused to be examined—that result depending upon the form of the indictment—and in which it would be the feeling of every right-thinking man, supposing that, as possibly may be the case, the charge is false, that the accused should be allowed to go into the witness-box and give his own explanation of his conduct subject, of course, to cross-examination. A case in point, to the particulars of which I need not refer at this moment, occurred recently where a false charge was made; and it was one of those cases in which the only thing that could console the person accused under the charge brought against him was the fact that he was able to go into the box and give his explanation to the jury. Notwithstanding that four persons gave testimony against him, he was thus able to establish his innocence of the charge, which if it had been established, would not only have subjected him to heavy punishment, but would for ever afterwards have ostracised him from society; and the question whether or not he was capable of being examined depended upon the form of the indictment. That charge might have been made under other circumstances which would have prevented his being examined as a witness and establishing his innocence, as he did to the satisfaction of the Judge and jury by whom he was acquitted in spite of the evidence given by the four accusers who presented themselves against him. As I have said, whether a man can be called as a witness or not in his own behalf depends often on the particular form of the indictment; and if the charge I have referred to had been made under those particular circumstances, the accused could not have been examined. That was a case which makes one almost tremble to think that he is living in a country where such accusations may be
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made, and where the man against whom they are made may be denied the ordinary reasonable means of answering them, because at the option of the prosecutor the charge may be so framed (and if framed as an indictment for conspiracy the right would not have been applicable in this case) as to deprive the accused of the right of giving evidence. I have consulted many eminent and experienced legal men on this subject, and all of them have spoken strongly in condemnation of the existing state of the law and in favour of an alteration. Among other persons with whom I have communicated I have been in correspondence with my friend Mr. Poland, whose great experience and the value of whose opinion in such matters your Lordships will readily appreciate; and he writes to me in the most earnest way advocating a change in the law, which he says is absolutely and imperatively demanded at the present time, for this among other reasons: that Judges now have to do what they had not to do formerly, that is, to explain to juries at Assizes that no prejudice should be entertained against an accused because he might not have been called as a witness, because his not having been examined was simply the result of the mode in which the indictment was drawn. Is that a reasonable condition for the law to be in? I cannot help thinking that the existing state of things works the most grievous injustice in many cases, and I am very anxious that your Lordships should give an opportunity to the other House to pass a Bill dealing with a crying and serious evil. I have, therefore, thought it right to re-introduce a Bill on the subject which was introduced before by my noble Friend Lord Bramwell, the evil being one which I think requires to be dealt with as early as possible. Under these circumstances, I ask your Lordships to read this Bill a second time.
Moved, "That the Bill be now read 2a."
LORD DENMAN: My Lords, this Bill is the counterpart of a measure which passed your Lordships' House without much consideration. It appears to me that the old law shutting out interested witnesses from the temptation to perjure themselves was far better in principle than any of the innovations which we have seen attempted. My noble and

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learned predecessor wrote an article in the Edinburgh Review, in which he advised that persons accused of forgery should be allowed to give evidence on oath in civil causes. Certainly the temptation to deny handwriting is so very great that I think it is clear in the late Parnell case, for instance, the person accused, if he had not been corroborated by some very extraordinary evidence, would not have been believed. Under the old law, if a man was sued for debt, he was allowed to swear he was not indebted. The temptations to commit perjury are very great. In the County Courts there is an idea that a great deal of perjury is committed. I do not know as a certainty that it is so; but in France, before the Juge de paix, the parties to a case are all examined, and a gentleman connected with the counsel to the Embassy at Paris told me that the opinion of the cleverest men there is in accordance with the old Common Law practice in this country, under which, if a plaintiff in a case was not called, he was nonsuited. I will refer to a case which happened a few years ago. Patrick O'Donnell, the executioner of Carey, wished to swear that Carey fired the first shot. At that time the Judges had decided that no statement of a prisoner's evidence should be made public; but, fortunately, my learned Brother admitted the statement for so much as it was worth. I wrote asking him whether, if Patrick O'Donnell had sworn to the truth of his statement, he would have escaped punishment, and he replied that the expression of intention, "I will shoot him," had been proved against the accused, and that was considered a proof of malice prepense. I wrote also to Sir Charles Russell asking him whether he thought that O'Donnell's swearing to the truth of his statement would have saved his life, and he replied that he did not think it would. This Bill, in my opinion, only multiplies temptations to perjury. Why should you tempt an unfortunate man to commit perjury as well as the crime of which he is accused? If his explanation or defence be true, it will be corroborated by witnesses; if it be untrue, it is of no value, and it had much better not be supplemented by perjury. I believe these innovations are all contrary to common sense, and
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that the change proposed in this Bill is a departure from those principles of prudence which have caused our law to be so respected as it is. I may further remark that in that article in the Edinburgh Review which I have mentioned, it was suggested that a wife should never be examined because she is always so much under the control of her husband, who could not himself be trusted to give evidence. I am one of those who oppose a Bill at every stage if I am against it. Formerly we could oppose Bills by proxy, and a great deal of useless discussion was avoided. I do not wish to go back to old cases, but there have been instances in which I have opposed Second Readings without a single supporter. I was requested by the Earl of Derby on one occasion to attend on Third Reading; and after Lord Malmesbury had moved the rejection of a Bill for 28 years, we threw out the measure. I denounce this Bill as most unconstitutional and un-English, and as long as I live I will do my utmost to prevent its passing. I move that the Bill be read a second time this day 10 months.
Amendment moved, to leave out ("now"), and add at the end of the Motion ("this day 10 months.")—(The Lord Denman.)
LORD HERSCHELL: I need not now trouble your Lordships at any length, because I have on more than one previous occasion indicated that my views are favourable to such a change in the law as this Bill proposes to introduce. I have never concealed from myself that there are dangers in the change; but, at the same time, it is impossible to shut one's eyes to the fact that the existing law, which prohibits an accused person from giving evidence, has been from time to time eaten into by one Statute after another; and I think it is a very significant fact that almost all the Acts creating new offences have provided that an accused person and his wife shall be allowed to give evidence. It is, I think, impossible to deny that that fact indicates a change in public opinion on the subject; and I do not know that there is any instance in which that has been done where any regret has been subsequently expressed, or any evidence has been brought forward to show that the

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change has worked ill or created any prejudice. I can myself bear testimony as regards one Act to which my noble and learned Friend on the Woolsack has referred, namely, the Explosives Act. On one occasion I conducted a prosecution for an offence under the provisions of that Act. Two persons were charged, and they expressed their desire to give evidence. I could not help regarding that as a somewhat crucial test, because, as it happened, each of the prisoners in his evidence reflected to some extent upon the other. Their respective defences were not by any means united, indeed they were to some extent inconsistent, and in some respects disadvantageous to one another; and yet, after hearing their evidence, I came to the conclusion that it was better for both of them they had given it. In the result, they were most properly, as I think, acquitted, and to that acquittal I think the power of giving evidence by the prisoners themselves may have contributed. It is impossible for oneself not to be impressed with such an illustration as that. No doubt there is a feeling of danger that a change of sentiment at the Bench or Bar might lead to undue pressure on accused persons through this power of giving evidence; but I have confidence that the same spirit of extreme fairness which I am quite sure ought to be shown in the trials of all accused persons, and which now animates the Bench and Bar, will continue to animate them in the future, and that the possibility of danger which I recognise will thus be avoided and mischief prevented. One great element of strength in the case for this Bill consists in the fact alluded to by the Lord Chancellor, that practically for the same offence a prisoner may or may not give evidence, according to the form which the indictment against him takes. Nobody can, I am sure, for a moment stand up and suggest that that is a satisfactory condition of the law, and that in itself constitutes a strong argument for the Bill. It is not creditable to us that the law should exist in that condition. I do not advocate it; but I think it would be better, if it were thought advisable, to make some distinct exceptions from the power given to accused persons to tender their evidence rather than that they should only have the power to give it or not, accord-
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ing to the form of the indictment. Under these circumstances, I heartily support the proposal of my noble and learned Friend. I have no doubt he will propose that the Bill should go to the Standing Committee, in order that its details may be considered, and to see whether it is desirable in any way to alter or amend it.
LORD ESHER: My Lords, I will only venture to say that I am not prepared to oppose the Second Reading of this Bill; but as I look upon the proposed alteration with considerable alarm, I hope that in the Grand Committee, if it is to go to the Grand Committee, safeguards against the dangers which I foresee may be added to it.
LORD COLERIDGE: I need not trouble your Lordships with many observations, but I should like, holding the office I do, to say why I support this Bill. I support it with the greatest pleasure. To some extent I share the feeling of my noble and learned Friend opposite (Lord Esher), but this is one of the cases in which, it seems to me, there is really no good ground for opposing the Bill, and for this reason: that the old method of treating criminal cases has been considerably altered. I quite understand the difficulty. Formerly criminal trials used to be conducted on a principle entirely different from that followed in the trial of civil cases. They were more like arguments between party and party, as far as might be, in which the prosecution was not to act as a hostile party to the prisoner, but rather as a sort of Minister of Justice, and was obliged, where the prisoner could not be heard, to make out a case "beyond all reasonable doubt," as the phrase is, and to show that he was guilty of the offence with which he was charged. But I cannot help feeling—it is impossible, I think, to help feeling—that the old view of the administration of the law has, step by step, been done away with. I am old enough to remember the time when prisoner's counsel would not be heard except in cases of high treason. It was not in all cases that counsel for a prisoner could be heard, and that must sometimes, of course, have led to great injustice being done. That which is the rule at present could not be done in the way of defending a prisoner, except by ingenious half-speeches, which led to

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very unsatisfactory results. The Prisoners' Counsel Bill was passed when I was a young man, and I can remember the prophesies with regard to it, and the suggestions which were made as to the danger of allowing counsel for prisoners to be heard, and the anticipated certainty that criminal trials would become mere struggles between advocates instead of being a calm judicial investigation into the guilt or innocence of the parties accused. It is impossible to say that, to some extent, that has not been found to be true. It is true that in such cases prosecuting counsel do now, in reply, speak with a force and energy, and with a partisanship against prisoners which formerly, when there were no speeches by counsel for prisoners, they were not in the habit of doing. Still, one cannot doubt that, on the whole, the Prisoners' Counsel Bill has been a most useful measure, and that justice is more easily done than it was when no statement on behalf of a prisoner could be made. So in civil cases, too, the examination of interested parties was unknown, though the examination of parties in criminal cases was, under particular circumstances, permitted. I will take the class of cases which my noble and learned Friend has alluded to, going to the very life and soul of the matter, in which, if they were tried in a Criminal Court, the parties would not have been allowed to be heard. It was held, and very rightly, that under the words of certain Acts of Parliament, a person accused could always be heard. I do not pretend to any special amount of experience in these things, but I had experience enough when I was at the Bar to know that unless one had had the power of calling one's client, and explaining the circumstances through his mouth the consequences would have been most serious to him, and in many cases directly the reverse of what happened. Again and again it has occurred in the course of my experience that clergymen have been triumphantly acquitted of serious accusations going to their character which, if they had not been able to be examined, would most undoubtedly have had a different result. As my noble and learned Friend on the Woolsack has stated quite truly, there are anomalies existing in the law in this respect which it is quite impossible for
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any man to justify. Take the cases which he has put of committing a rape and attempting to commit a rape. How can anyone say it is reasonable that a man should be allowed to give evidence upon an accusation against him for a graver offence, and not in a case of the commission of the lesser offence? It is said that an accused ought not to be allowed to himself give evidence in a case of the graver crime, but in these things there is no going back. It is out of the question to think of bringing back the law to the state in which it was 30 or 40 years ago, even if it were desirable to do so; and that being so, considering that in certain cases accused persons are at present allowed by virtue of Acts of Parliament to give evidence on their own behalf, where, on the whole, it does not work badly, it seems to me to be impossible to refuse a Second Reading to a Bill which merely carries into other and more important matters principles which your Lordships have established over and over again in matters of less importance.
LORD MORRIS: My Lords, I will entreat your Lordships' indulgence for a few moments, because I think, as few persons have had longer experience than I have had in criminal trials, it would be right, entertaining the opinion I do, that I should express my entire acquiescence in the Bill which has been introduced by the noble and learned Lord on the Woolsack. The object, I presume, of all criminal trials is to ascertain the guilt or innocence of the prisoner—to ascertain the truth; and I believe, from my own long experience, that that object has been very much impeded in many cases by the fact of the prisoner not being entitled to depose and give evidence on his own behalf if he so wished. The Bill of my noble and learned Friend does not compel him to do so: he gets the option. I admit, however, that it will remove a great part of the stock-in-trade of counsel defending, who are always impressing on juries that "the prisoner's mouth is closed, and that he cannot be examined as a witness for himself;" but that if the prisoner could have been called, he would have been able to give an explanation which would have cleared up the whole matter. This Bill will, I admit, prevent that being

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urged in defence, but is it not very desirable that it should be removed? Is it not a very proper solution of the difficulty to remove what is, in many cases, a great obstacle in ascertaining the guilt or innocence of the prisoner, so far as my experience in Ireland has gone. I can only express my entire concurrence in the Bill as introduced by the noble and learned Lord, and state my opinion that it will have that effect whatever its other values may be, an opinion derived from long experience, I may say almost second to none, in Ireland.
THE LORD CHANCELLOR OF IRELAND: My Lords, having regard to the position I hold in reference to the administration of the law in Ireland, I do not wish the Debate to close upon the Second Reading of this Bill without expressing my entire concurrence in the resolution which your Lordships are, I hope, about to arrive at. As far as I am aware, the Judges in Ireland hold the views which my noble and learned Friend who has just addressed your Lordships—and no one is entitled to speak on the subject with more authority—has expressed. It is obviously an anomaly and an absurdity that in a trial the object of which is to find out the guilt or innocence of the person who is accused at the Bar, the one person alone, who is no tat liberty to give evidence, should be that person on whose evidence it might depend whether or not the jury were to be satisfied as to his guilt or innocence. That is an anomaly and an absurdity so patent that if there was not a long course of practice the other way one would be astounded to find that it could be defended in any shape or form, or that any suggestion could be made for its being maintained; and every Amendment that has taken place in our law modifying that anomaly by permitting in certain cases persons charged with certain offences to give evidence in their own behalf, renders the survival of that anomaly in the case of other prisoners more indefensible, I therefore welcome the introduction of this Bill by the noble and learned Lord on the Woolsack, and I am very pleased to think it is likely to go down at an early date to the other House, accredited, I hope, by the unanimous approval of your Lordships.
THE LORD CHANCELLOR: My Lords, I certainly have no reason to complain of the reception which this Bill has received at your Lordships' hands, and I have but few observations to make in reply to what has been said. Really the only objection to the Bill is that it will be likely to produce perjury. I do not undervalue the objection; but the same objection might be urged against the examination of all parties who have any pecuniary interest in the result of a trial. One would have thought that a man's father or mother, or brother, may well have deeper interests than even the accused person himself. It is dependent upon the accident of the form of procedure in many cases, and is not a result of the crime itself, that the prisoner is disqualified from being called as a witness, and I confess I do not think that is very logical. But I should like to say why the objection seems to me unreasonable. At present the mode in which a new trial is obtained, or an attempt made to give another account of a criminal transaction, is very clumsy, that is, by a very different form of procedure, an indictment for perjury against the witnesses upon whose evidence a prisoner has been Convicted. I could not help being reminded forcibly of that by the speech of the Lord Chief Justice. I once was counsel for a clergyman who had previously been convicted of an offence on the evidence of two girls. The clergyman turned the tables upon them by indicting them for perjury. They were convicted, and the clergyman received a pardon, and was relieved of the sentence which he had received on their testimony. That is certainly not a course which one would like to have to follow. The question of perjury was raised, but it could only be done in the form I have mentioned. I cannot help recalling that during the last two or three weeks I have seen wholesale accusations of perjury against a number of witnesses who had been called to give evidence against a particular person. That person has now obtained processes against the witnesses on whose testimony he was convicted. The case will be tried in due course, and I hope justice will be done in the result, whatever the result may be. But that is an illustration of the importance of such an

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alteration of the law as your Lordships are invited to make to-night. If, instead of it being necessary to bring a charge of perjury against the witnesses after conviction, as in the case of the clergyman I have mentioned, the accused had himself been capable of giving evidence at his own trial, there would have been no necessity for the second performance. I cannot help thinking it is a most unsatisfactory state of things that in that way the trial of the same question, the guilt or innocence of an accused person, should be referred to two different juries with the possibility of having conflicting verdicts inconsequence of that particular form of procedure. Then, again, on the second occasion the mouths of the witnesses who were capable of being examined on the first trial would be shut when the tables were turned, so that two different juries would have practically to try the two sets of persons in the absence in each case of the proper evidence in the form of explanations by themselves. As I have said, this is a question which seems to me not to admit of argument upon the present state of the law. I should like to add, what I forgot to mention before, that the late Mr. Russell Gurney, one of the ablest criminal Judges who ever sat on the Bench, was strongly in favour of the change in the law proposed by the present Bill, stating that, in his opinion, it was only justice that persons accused should be capable of giving evidence. With regard to the observation which was made by my noble and learned Friend Lord Herschell, I should be very glad that the Bill should be referred to the Grand Committee, and that any alterations or provisions should be introduced into it which the Master of the Rolls thought necessary to guard against the inconveniences which he feared might arise from this proposed change in the law. I will only say, however, that, so far as I am aware, none of the inconveniences hinted at have arisen in those cases, arising out of some 30 or 40 offences, where prisoners are allowed to give evidence, although no such precautions or safeguards are imposed, and Judges, in those cases where the accused persons have been capable of giving evidence, have not been impressed unfavourably with the result of the power thus given. Under those
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circumstances, I will now ask your Lordships to read this Bill a second time.
On Question, whether ("now") shall stand part of the Motion, resolved in the affirmative.
Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

EVIDENCE IN CRIMINAL CASES BILL. [H.L.]
  BRINE PUMPING (COMPENSATION FOR SUBSIDENCE) BILL.
  Brought from the Commons; read 1a, and to be printed.—(No. 131.)

PHYSICAL EDUCATION IN ELEMENTARY SCHOOLS BILL [H.L.]—(No. 30.)
Order for the Second Reading on Thursday, the 18th of June next, discharged.
House adjourned at twenty minutes past Five o'clock, to Thursday next, a quarter before Eleven o'clock.