EVIDENCE IN CRIMINAL CASES BILL. (Hansard, 1 August 1898)

§ LORD RUSSELL OF KILLOWEN
My Lords, I agree with the Motion of the Lord Chancellor that the House should accept the Commons' Amendments down to the point he has indicated. My absence on circuit prevented me having an opportunity when this Bill was before your Lordships' House of expressing my views upon it, and I therefore ask your Lordships' permission to do so now. I am the more anxious to express my views upon this Bill, because of the character of the criticisms to which the Bill has been subjected. Some of the criticisms undoubtedly have been directed towards it from persons well able to speak upon the matter. Their views are therefore entitled to consideration, but I think a great many of the criticisms have certainly not been of a very enlightened or a very well-informed character, and have proceeded from quarters not particularly well able to usefully criticise this Measure. For my own part, I hail this Bill with great satisfaction. Your Lordships are now, in part—not fully, but in part.—giving effect to the policy started as long ago as the year 1878 by one of the most experienced and distinguished criminal lawyers this country has ever produced. 660 I mean the Recorder of London, Mr. Russell Gurney, who supported the Bill introduced in 1878—I think it was by Mr. Evelyn Ashley—which went even further in some respects than the Bill now before your Lordships. What has been the policy of the Legislature since that Act? There have been altogether some 25 statutes passed, many of them dealing with very important subjects, as to which, under, not one Government, but several different Governments, the law has provided that a person accused of the subject-matter dealt with in those. Bills shall have a full opportunity of being heard, and of being heard upon oath. The position, therefore, is this: if the opponents of the Bill, the critics of this Bill, are to be consistent, they ought to ask this House and the Legislature to reverse the policy of the last 20 years, and to repeal some 25 Acts of Parliament. My Lords, speaking for myself, with a professional experience1 which is not a brief one, and so far as my judicial experience goes, I have never had brought to my attention or notice one single case in which the existence of the law as it now is, after the passage of these various Acts, has been the cause of any injustice to anyone. On the contrary, I have a strong belief that, while it is possible to conceive cases in which an unscrupulous and adroit person charged with an offence may escape the punishment of his offence, yet I believe such a case would be of a most exceptional kind. But I cannot conceive any case in which an innocent person will be in any way prejudiced or damnified by having the facility given to him of tendering evidence upon oath upon the matter of which the Bill treats. Nobody can doubt that theoretically the provisions made by this Bill is absolutely right. A person charged is the most interested and knows most about the subject-matter, and yet, according to our law, he is to be excluded, in a certain number of cases—some of them the more important cases—from giving his own explanation, on oath, and subject to cross-examination.. The inconsistency of the position is made more marked, I think, by drawing attention to one of the existing provisions of 661 our law. In the preliminary inquiries into indictable offences a magistrate, before he is entitled to commit a prisoner for trial, is bound by the law to inform the accused person that he may, if he desires, make any statement, and at the same time he is warned that if he makes a statement it may be used as evidence against him. He is, therefore, allowed to make a statement, but what is the character and weight of that statement? It is not evidence in the ordinary sense of the term at all. It is evidence, of course, against the man who makes it, but it is not evidence of the facts contained in the statement; and a judge, dealing with the statement of a prisoner under such circumstances, is compelled to do this—absolutely he can do no more—to tell the jury that the statement of the prisoner made before the magistrate is not evidence in point of law, because, according to the law of this country, except where a statutory exception is made, the evidence must be given upon oath, or upon the equivalent; and all the judge can tell the jury is to take into account the statement, to view it in the light of their impression of what the probabilities of the facts involved are, and if that statement fits in with, and is consistent with, their view of the true facts of the case, then they may, in that indirect way, give effect to the statement. That is not, I venture to submit, a satisfactory position in which to leave the matter, and it seems to me, therefore, that the propositions in the Bill are theoretically right. The 25 Acts of Parliament giving the accused party the opportunity of tendering evidence has worked well, and I see no reason whatever to apprehend in future that the extension which this Bill proposes will not work equally well. There are two points as to which I desire to say a word. Once you admit an accused person to be accepted as a witness, to be competent as a witness, it seems to me that it is impossible logically to maintain any kind of artificial safeguards as to the cross-examination of that witness, and for this reason: the object is, after all, to get at what is the force and effect of the statement the man makes, and you cannot get at the true estimate of what is its force unless it is subjected to the ordinary test of truth—cross-examination. I there- 662 fore am strongly of opinion that the limitation of cross-examination which this Bill proposes is not one that is logically defensible and cannot be long maintained. I admit that the point raises a question of considerable importance, and I should be unwilling, especially at this stage of the Bill, and at this period of the Session, to raise any topic which might imperil the passing of the Bill, which I regard as a great boon, and which I believe will operate for good, so far as it goes. The Bill makes the evidence of the husband against the wife and the wife against the husband admissible in certain cases in which it has not hitherto been admissible. It seems to me the time has come when the evidence of both the one and the other ought to be, not only competent, but compellable. The law as it is at the present moment is not possibly defensible. For instance, a wife who has been wounded by her husband is a competent witness to give evidence against him; but if the husband has killed one of her children, and one of his children, she is not a competent witness. This is an extraordinary state of the law, which ought to be set right as speedily as possible. My Lords, I do not intend to occupy the time of your Lordships further, but I did think that, holding the position I do in relation to the criminal judicature of this country, I should avail myself of the opportunity of saying that I regard this Bill as an important step in the right direction, and that I cannot anticipate that it will work any injustice in the administration of the criminal law.

§ * LORD JAMES OF HEREFORD
My Lords, I am sure it will be felt that the speech we have just listened to from the Lord Chief Justice is likely to prove a speech of great utility. During the progress of this Bill through Parliament many adverse criticisms have been applied to its provisions, and much prophecy has existed that it will prove an engine of injustice. I say, my Lords, it is satisfactory to hear the Lord Chief Justice of England, who must represent, to a great extent, the judges of this country, expressing the confident opinion that the Bill ill be a great aid to the administration of true and complete justice. My Lards, 663 it is but to be expected, when a great reform of this kind is proposed, that many persons should be somewhat frightened at its application, and we find from experience that very often opposition to legal reform comes from within our profession more than from without. There are many who can recollect the strong objection that was made to that legislation which allowed parties to a civil suit to give evidence, and it was then foretold, on the authority of the judges, that it would be impossible to secure true verdicts if such evidence were allowed. It is somewhat interesting to read the account which was given by the Lord Chief Justice of that time of that intended reform. Lord Campbell, in his diary, says— The great controversy now is upon the Evidence Bill, allowing the parties to be examined against and for themselves. The Bill is opposed, as might be expected, by the Lord Chancellor. If it passes it will create a new era in the administration of justice in this country. I support it, and I think it will be carried, although the Common Law judges, with one exception, are hostile to it. After four years' experience of that Act—in 1856—he adds the note— The Act has been made to work most admirably. All mankind praise it. That was a reform very similar to the one which is now proposed, and experience has proved that it is a wise and just provision. For 20 years now some of us have been working in support of this Bill, and the experience of those who have had to deal, either as advocates or as judges, with the administration of law, if it could be fully told, would confirm the opinion that this reform can only result in justice. The great object we should have in view in the administration of criminal justice is that no innocent man should be convicted. It is an evil, doubtless, that a guilty man should escape, but of far more importance than the escape of a guilty man is the conviction of an innocent man. I could give you many instances wherein gross injustice has proceeded from the present state of the law. If your Lordships will forgive me, I should like to mention two of them. An elderly gentleman of position, 80 years of age, was indicted criminally for having placed a prospectus fraudulently before 664 the public. He was convicted and sentenced to three months' imprisonment. Immediately after the expiration of his term of imprisonment he had to defend a civil action brought against him on the same ground—the issue of this prospectus—and in the trial he went into the witness-box, gave his evidence, supported his statement with documents, and thereupon the jury stopped the case, giving a verdict for the defendant, the judge remarking that there was not the slightest ground for the assertion that he had been guilty of fraud. If in the criminal suit he could have given evidence on oath, he would never have suffered the injustice and indignity which he had to bear. Another instance arose under the administration of the Explosives Act, which was passed through every stage, under the direction of my right honourable Friend Sir William Harcourt, in a single day, for the purpose of punishing persons in possession of explosives. Twenty years' penal servitude was the sentence to be imposed upon those who had explosives in their possession under certain circumstances. The following year after the passing of the Act a man was indicted for having explosives in his possession under circumstances which entailed the heavier sentence. Happily, as the Lord Chief Justice has stated, wherever we have created a new offence, we have, for the past 20 years, always allowed the accused person to give evidence. The person to whom I am referring had against him a primâ facie case, containing almost certain proof that he was guilty. He went into the witness-box and explained away the evidence. It is true that one juryman refused to find a verdict of "not guilty," but the remainder wished to return a verdict of acquittal. The law officers of that time had to inquire into the facts, which led to the abandonment of the prosecution. But for the clause allowing the accused to give evidence upon oath, that man would probably now be undergoing penal servitude. I have had before me many other cases of a similar character, but I do not wish to detain your Lordships by referring to them. But I desire to offer my sincere congratulations to my noble and learned Friend on the Woolsack upon the result of his persistent 665 and determined efforts to secure this great reform. Many attempts have been made to pass this Measure into law. Some of us, as private Members of the House of Commons, have had charge of the Bill, but all our efforts failed. My noble Friend Lord Herschell, as Chancellor, made several attempts to bring this Measure into force, but in those attempts he failed also. But the determination, I may say the pertinacity, of my noble Friend the Lord Chancellor have at last succeeded, and in time to come many an innocent man who will secure his freedom through the provisions of this Bill ought gratefully to associate the benefit he receives with the name of my noble Friend.

THE LORD CHANCELLOR
My Lords, I should like to say one word with regard to the criticisms that have been referred to. I observe that in some criticisms of the Bill it has been suggested that there is a possibility that innocent persons might be convicted who otherwise would be acquitted by reason of their being exposed to cross-examination. The only reply I have to make to this is that, after 20 years' experience of the result of allowing defendants to give evidence, nobody can assert that in a single instance an accused person has suffered from giving evidence. It does appear to me that that is one of those facts which is worth a great deal.

§ LORD RUSSELL OF KILLOWEN
My Lords, I should like, in reference to the proposed Amendment as to the application of the Act to courts-martial, to express the opinion that it is important in proceedings in courts-martial that an accused person should be allowed to give evidence.

THE LORD CHANCELLOR
I understand that in the House of Commons it was assumed that the Act would apply to courts-martial. The language of the Amendment moved is such that it will in due course apply under an existing Act giving power to apply the procedure of 666 ordinary courts to courts-martial. As to the ultimate application, I do not think there can be any doubt that it was proposed.
Other Amendments agreed to, with Amendments, and Bill returned to the Commons.