§ "1. Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness whether the person so charged is charged solely or jointly with any other person. Provided as follows:—
- "(a.) A person so charged shall not he called as a witness in pursuance of this Act without his consent;
- "(b.) The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act without the consent of the person so charged;
- "(c.) A person charged and being a witness in pursuance of this Act shall not have the right to refuse to answer any question on the ground that it would tend to criminate him as to the offence charged;
- "(d.) 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 person charged has committed or been convicted of
898 any offence other than that wherewith he is then charged, or is of bad character, unless—
- "(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
- "(ii) the person charged has asked questions of the witnesses for the prosecution with a view to establish his good character, or called witnesses to his good character, or otherwise has given evidence of good character."
§ LORD RUSSELL OF KILLOWEN
said, the Bill proposed to make, what most people who had been concerned in the administration of the criminal law had long thought a very desirable improvement. But he had great doubt whether, when once a witness was admitted to give evidence on oath, it was possible, by the artificial restraints which this Bill sought to impose, to protect that witness from the ordinary tests as to credit. He did not, however, desire on this occasion to press to its full extent that view on their Lordships; but he wished to put one case which, he thought, unless the clause were amended, might lead to grievous injustice. The clause provided that a person charged with a criminal offence might be called as a witness, but was not, when called, to be required to answer any questions tending to show that he had committed any other crime than that for which he was then on his trial. He would put this case—he might put many others, but he thought this was a strong illustration. Two men were charged with the same offence, and tried at the same time, and one of them elected to go into the witness-box, as he might elect under this Bill if it became law. Not only did he give evidence to exculpate himself, but also to the effect that it was his co-defendant in the dock who had committed the offence. It seemed to him monstrous that that witness should be allowed to go before a jury as a witness of credit without any cross-examination. He would have preferred to meet the difficulty, and he thought it would be the better way to meet it, by leaving it to the discretion of the Judge to allow cross-examination where justice seemed to require it. He thought the discretion of the Court might be trusted to decide where it would be proper 899 to allow cross-examination and where not. His noble Friend on the Woolsack thought that would be too great a power with which to invest the Court, and, although he was not satisfied with the concession his noble and learned Friend had made, he must be content with what he could get. He therefore proposed to meet the difficulty by adding a further proviso to the effect that a person called as a witness in pursuance of the Bill should not be asked any question tending to show that any person charged had committed any offence other than that wherewith he was charged, "unless the person charged and called as a witness has given evidence against any other person charged with the same offence." He understood his noble and learned Friend was willing to accept that Amendment, and he accordingly moved it.
THE LORD CHANCELLOR (Lord HALSBUBY)
thought the Lord Chief Justice had very justly pointed out some difficulties which might arise, and which he thought the Amendment removed. He was, however, unable to concur in the views of his noble Friend as to the general proposition. In the first place, he believed that if it were allowable to cross-examine generally a prisoner who was called on his own behalf as to his previous career, no man would ever be found guilty on the facts and evidence, but on his own character. That, he thought, would be very unjust and most undesirable. He did not think the difficulty would be removed by investing the Judge at the trial with jurisdiction to determine whether that sort of question should be put or not. Great as his respect for Judges was, he would not leave that discretion to any learned Judge. The laws of evidence ought, in his opinion, to be fixed and certain, and not left to the discretion of any Judge. The policy of the law was to leave as little as possible to the discretion of the Judge when dealing with strict law. It was true enough that in the particular case he had given his noble and learned Friend had made out a case for some amendment, and to that extent he was willing to admit amendment. He thought it was not undesirable that a person who sought to 900 incriminate his fellow-prisoner should be open to the ordinary tests as to credit.
§ Amendment agreed to.
§ Clause I, as amended, agreed to; remaining clauses agreed to without amendment; Standing Committee negatived: The report of Amendment to be received To-morrow; and Bill to be printed as amended.—[No. 12.]