§ THE LORD CHANCELLOR (The Earl of HALSBURY)
My Lords, after this Bill has been passed so often in your Lordships' House, and twice 1171 read a second time in the House of Commons—once, 20 years ago, by a majority of 109, and only last year by a majority of 200 to 41—I should not have troubled your Lordships with many words upon the Motion for its Second Reading but that there has been persistently of late an effort to misrepresent its object, and I think so mistaken an apprehension of its effect, that I will ask your Lordships indulgence for a few moments, though, perhaps, I shall be only repeating an already oft-repeated thesis. One learned Gentleman thinks it right to say that this Bill, ostentatiously put before the public as intended for the protection of the innocent, is not framed in the interest of prisoners at all, whether innocent or guilty, but to ensure that more of them are convicted. My Lords, I am not very much concerned by such an accusation. I share the responsibility with the late Lord Bramwell, the late Mr. Russell Gurney, my noble Friend Lord Herschell, and Mr. Evelyn Ashley. My Lords, I am not certain that I should recommend such a change in the law merely upon what I should call expert authority. I am not certain that lawyers are, as a rule, the most enthusiastic law reformers; but when I see it appealed to on the other side by dogmatic and peremptory appeals to the writer's own experiences, and the opinions of such authorities as the late Lord Chief Justice, the present Lord Chief Justice, and such judges as Mr. Justice Hawkins, Mr. Justice Mathew, Mr. Justice Wills, and Mr. Russell Gurney brushed aside as of no value or importance, beside the individual opinions of the gentlemen who take a different view, I think I should be content to rest even upon the balance of expert authority. But, my Lords, I think the authority of the Legislature ought not to be disregarded. For more than 20 years the Legislature has been steadily advancing in the direction in which I want your Lordships to follow. Whenever a new offence has been created, it has invariably, I believe, been accompanied by the provision that persons charged with it may be examined as witnesses. My Lords, it would be absolutely impossible to give any reason why, in respect of old offences, there should be one law of evidence, but in respect of new ones another and a different law should 1172 prevail. My Lords, I shall have to call your Lordships' attention presently to some of the absurdities of such a distinction and the anomalies to which it leads, but for the present I am only dealing with the sanction which the Legislature has given to the principle for which I am contending by passing some 20 or 30 Acts to enable accused persons to give evidence on their own behalf. It is said that this Bill makes a new departure in the Criminal Law. How little it is a new departure in the Criminal Law, and what absurd incongruities the present state of the law introduces, may be tersely explained by my learned Friend Sir Henry Bodkin Poland, who is, I suppose, another of the persons whose experience is of no value. Sir H. B. Poland writes—It is impossible to allow the present anomalies to continue. I could fill a column of the Times with them. Let me state a few of them:—A man, charged with an indecent assault on a female, is a competent witness, but if he is charged with an indecent assault on a male he is not a competent witness. If he is charged with an act of indecency with intent to insult a female under the Vagrant Act he is not a competent witness; if he is accused of gross indecency with another male under the Statute, although not amounting to an assault, he is a competent witness. If a man is charged with forging a trade mark he is a competent witness; he is not a competent witness when charged with any other forgery. Suppose the whole case depends upon whether the accused wrote a particular letter or document. If he is charged with libel he can give evidence on his own behalf; but if he is charged with writing a threatening letter or with forgery he cannot give evidence.It is a further observation that, besides the anomalous state of the law thus disclosed, our own system of permitting anyone to prosecute anyone in the name of the Queen gives an option to an accuser to determine whether the person he accuses shall be heard as a witness or not. It will be observed from what I have read that there is a borderland, so to speak, between the different forms of charge, so that the accuser, by slightly varying the form of accusation, can determine whether the accused is an admissible witness or not. My Lords, I certainly do not mean to dogmatise in the peremptory tone which I have observed in some of the publications to which I have referred, but I have a right to express my own firm belief that injustice is not infrequently 1173 committed by the exclusion of the accused from the witness-box, and, arguing from what I think is the common sense of the matter, I ask if any one of your Lordships were accused falsely of something, would not your first demand be to be confronted with your accuser and give your own account of the transaction? My Lords, it is said, and said with a certain amount of plausibility, that in great causes célèbres, where eminent counsel are engaged on each side, everything is done which can be done to elicit the truth; but it appears to be forgotten that there are daily occasions where this question of excluding the accused from giving evidence arises in a very practical form. A policeman gets into an altercation with someone. He may lose his temper—after all, policemen are mortal. He takes his antagonist into custody. He can give his own account; his antagonist cannot be examined at all. I know it is said he can make his statement. My Lords, that is an absolutely illusory reply. What is wanted is that he can make his statement so that it may be cross-examined and tested by the judge or magistrate who has to decide to which witness he will give credit. Some people argue as if their only notion of cross-examination were to puzzle and confuse an honest witness. My Lords, that is certainly not my idea of cross-examination, but a real and properly conducted cross-examination makes the true case more apparent, while it breaks down falsehood. I am reluctant to refer to cases which may give pain, but I think the cases of the Oxford professor and the Oxford undergraduate must be in the recollection of some of your Lordships, and, without pronouncing absolutely on which side was the truth in these two cases, I think I may ask, with some confidence, whether it was very satisfactory that the accused in these two cases were not able to make in Court the statements they afterwards made in the Press, and be cross-examined upon them? I think I ought to mention here that that most able and experienced magistrate, Sir John Bridge, has expressed to me his hearty desire that this Bill should become law. My Lords, I have received from Sir Herbert Stephen a publication which is intended, as indeed he states, to raise an opposition to this Bill, and 1174 I am desirous of treating with every respect opinions given by one who professes to speak from actual experience; but he must forgive me for saying that I cannot recognise the superiority of his experience to that of Her Majesty's judges. But undoubtedly some statements made by him require, and have caused me to inquire, so far as they are capable of being tested, whether he is right. Now, one statement of his is this: that in those cases tried on the Northern Circuit whereof he has been a spectator, where prisoners have been examined as witnesses, on an average three or four persons a year who have been convicted are innocent. Of course, for the purpose of the argument one has to assume that these people were innocent, though the jury thought otherwise, that their conviction was produced by their giving evidence, and that they would have been acquitted had they not given evidence. No names or cases are referred to as a foundation for this extraordinary statement, and one has to rely altogether upon Sir Herbert Stephen's judgment upon each of these propositions; but I have endeavoured to test it, vague as it is, by the only mode in which I could think of testing it, and that was by applying to the Home Office for the statistics of the Northern Circuit, and, as far as they are able to inform me, there is no trace of any such case. Your Lordships are aware that a great number of those who are sentenced in the Assize and other Courts resort to the Home Office (as exercising the prerogative of mercy) for a reconsideration of their cases. It certainly appears as if no one who has, or whose friends have, any ingenious suggestion to make why the decision of the Court should be questioned, ever refrains from communicating with the Home Office. It is almost incredible that no person has been found to complain of this state of things, if anyone has been, in fact, aggrieved. I must also say that it is very unsatisfactory to find in such a statement of the case as I have referred to such loose language as that the number of cases under the Criminal Law Amendment Act during each year on the Northern Circuit is from one to two hundred. In the 10 years to which the writer appeals we know not whether he means that there were 1,000 or 2,000. This is the 1175 more unsatisfactory, as the Judicial statistics do not appear to me to warrant even the lower figure. On this subject I have received a communication from the Home Office as follows—In answer to your letter of the 15th ultimo, I am directed by the Secretary of State to acquaint you, for the information of the Lord Chancellor, that he has no ground for believing that there are any appreciable number of cases in which innocent defendants have been convicted in consequence of having proffered themselves in evidence. Among the numerous pleas brought forward, it is very seldom, if ever, urged that the prisoner had been prejudiced at the trial by giving evidence; and the Secretary of State cannot recall a single instance in which such a plea has been made a ground for advising a total or partial remission of sentence. Scarcely a day passes without one petition at least being received at this Office, from either a prisoner or the friends of a prisoner, who has been convicted in a case in which he might have given evidence in his own behalf, and if it were a fact that in cases of this kind the law of evidence has wrought injustice to innocent defendants, the Secretary of State thinks it certain that the fact would have been brought to the notice of his Department. The entire absence of any evidence in the experience of the Office in support of Sir Herbert Stephen's statement seems to him fairly strong evidence that it is not common under the existing law for innocent defendants to prejudice their cause by giving evidence on their own behalf. He has caused an examination to be made of all the petitions received from or on behalf of prisoners convicted at the Assizes held on the Northern Circuit, in 1894 and 1895, of offences in respect of which the prisoner is made a competent witness by the Criminal Law Amendment Act, 1885. Other cases in which the accused is a competent witness under other Statutes are of such rare occurrence at Assizes that they may practically be left out of account. These years were selected in preference to later years, in order to ensure that all the prisoners who are likely to petition should have done so. Eighty-six of such prisoners were convicted, and the accompanying table shows the pleas on which petitions on their behalf were based. In no case did the prisoner allege that he had been injured by giving evidence himself or by refusing to do so. Indeed, the only allusion to this question which is to be found in these petitions is a statement that the judge asked the prisoner to go into the box, but that the latter refused because he felt confused. Apparently this man regretted that he had not given evidence.My Lords, the experience of the Home Office, I need not say, is not confined to one circuit, and the entire absence of any such complaint during a period of 13 years seems to me to be indeed an example of experience against theory, to 1176 use a phrase whereby Sir Herbert Stephen distinguishes what he considers his own experience as against the theoretical views, as he considers them, of the learned judges. My Lords, I have once or twice mentioned the name of Mr. Russell Gurney. That he was a most able and upright judge I should think no one would deny, and that his opinion on any such Act connected with the administration of the Criminal Law, I should think, would be acknowledged by everyone who had the advantage of knowing him; but there is a circumstance which appears to be unknown to Sir Herbert Stephen, which, even in his eyes, would give value to his testimony, and that is, that Mr. Russell Gurney studied this question in the United States and by the light of actual experience, where all accused persons are admissible as witnesses in respect of offences. I heard from his own lips the result of his investigations, and he told me that he thought that his experiences during that study had proved to his mind the great superiority of the system which allowed all the sources of investigation to be free, and that after what he had seen there, he could not entertain a doubt about the propriety of allowing accused persons to be heard as witnesses on their own behalf. This matter has now been five or six times before your Lordships' House, and I do hope that a great improvement in the law will now be carried out. I move the Second Reading of the Bill.
§ LORD HERSCHELL
My Lords, like my noble and learned Friend I should not have intervened in the present Debate, for I have often expressed my views on the subject, were it not for the arguments recently placed before the public with a view to defeat the Measure which my noble and learned Friend has proposed. I quite agree with what my noble and learned Friend has said, that there are only two alternatives—namely, either to pass this Measure, or to repeal all those provisions in the law which have been passed during the last 20 years, permitting accused persons to give evidence. The present state of the law is utterly indefensible and ridiculous, and every argument used against the passing of this Bill into law is an argument in favour of the repeal of those provisions 1177 which the Legislature has passed in previous years. The case put before the public is this: Although there is much weight of authority on the part of those experienced in criminal trials in favour of the change, their opinion has been denounced without any experience of the effect of the change, and that the experience of the effect of the change by those who have watched these operations proves that the result would be, not beneficial, but mischievous. My Lords, I admit that my experience of accused persons giving evidence in their own favour is slight, and I am not going to generalise from it; but Sir Herbert Stephen is inaccurate when he says that I have had no experience of such cases. It so happens that I have had experience of evidence in a case which I think may be looked upon as a crucial one. I was prosecuting two persons charged with an offence under the Explosives Act, at a time when the charge was of a nature to excite a good deal of feeling and prejudice. The two prisoners elected to give evidence, and each was called as a witness; and if ever there was a case in which the accused was likely to suffer from going into the witness-box, that was such a case. The prisoners were acquitted, I believe, quite rightly. I felt satisfied at the time it was to their advantage that they had been able to tell their story; and, even though they told it under such circumstances as might be calculated in some degree to prejudice them, yet an opportunity might, nevertheless, prove to their advantage. My Lords, what is the experience which it is alleged renders this charge of no importance? It is to be found in the views which have been expressed by so many who have had to do with the administration of the criminal law, and to be the result of watching the effect of accused persons giving evidence under the Criminal Law Amendment Act, 1885. I quite admit that this is a class of case in which there is, perhaps more than in any other individual class, the danger of a mistake being committed, as well as the danger of a miscarriage of justice. It is said that observation of these cases on the Northern Circuit, to which I had the honour to belong, shows that on an average three or four innocent persons have been convicted every year, for several years past, because they gave 1178 evidence on their own behalf. But no particulars are given; no facts are stated; no proof is offered. The assertion is made, and it rests entirely on the observation of the gentleman who has written the book to which my noble and learned Friend has referred. I have not had experience of trial in these cases during the last 12 or 13 years, but I have had experience for upwards of 20 years of the action of juries on the Northern Circuit, and I claim to be as good an authority as to the mode in which the criminal law was administered by those juries as the gentleman who wrote the book. I myself am not in the slightest degree satisfied—I say it with all respect—that, by the statement of Sir Herbert Stephen, he was right and the juries were wrong. Not a fact is given pointing to the possession of any such evidence, and, no doubt, it would have been forthcoming if it had beer in his possession. It is simply the impression produced on his mind that, in certain cases, the juries convicted where the accused were innocent. But that is not all. How can he prove that they were convicted, though innocent, because they gave evidence on their own behalf, and that if they had not given evidence on their own behalf they would have been acquitted? It is the merest speculation and I confess that my confidence in such a statement is very much shaken when any one dogmatises so far as to assert as a fact that innocent persons were convicted, the opinion being arrived at simply through the impression produced on his mind as an onlooker at the trial. There is another statement in the book which I think sufficiently startling. The learned gentleman says that the law allowing an accused person to give evidence entirely alters the attitude of mind of the jury, and that he is perfectly convinced of this by prolonged observation. Can any human being, by watching the course of the trial, so far master the internal consciousness of the jury as to know that the attitude of their mind is different in one case than in another, and that the question, as it presents itself, is different in one case from the same question in another case? I do not believe that it changes at all—the attitude is the same in every case. I do not believe that they put themselves 1179 any question excepting the one: "Is he guilty of the offence of which he is charged?—did he do it, or did he not?" I daresay that sometimes one juryman might view the question in one way, and another in a totally different way, but what they set themselves to determine is—"are we perfectly satisfied that he is guilty of the offence with which he is charged?" That is the attitude of mind before, and that is the attitude of mind now, and I do not believe that, in the whole course of the day in which there were cases—we will say, in one of which the prisoner gives evidence, in the other of which he does not give evidence—their attitude oscillates from one condition to another, according to whether the prisoner can and does give evidence, and can and does not give evidence. I base my support of this Bill on the ground that it is right in principle. If a man is innocent of an offence, and desires to give evidence, and by so giving evidence submits himself to cross-examination, is it right that the law should preclude him from doing so on the mere fanciful delusion that if he can give evidence there are a certain number of cases where prisoners would benefit by it, although there will be a certain number of cases, and, it is suggested, a smaller one, where he would not? Is it right, because, possibly, in some cases prisoners would not benefit by it, to deprive a man of the possibility of telling his story as against the story on the other side, and submitting to have that story tested by the evidence of the time and place and circumstance? My Lords, it is an unsound principle, and I do not believe that an unsound principle will ever result in the wise, and just, and satisfactory administration of justice. My Lords, I admit that the opinions of lawyers are divided upon this question—there are certain opinions in favour of the change, there are some opinions the other way. But in support of which of the changes that had been made in the administration of the law have you found a unanimous consensus of opinion amongst the members of the profession? Why, my Lords, I believe that the judges were not unanimous upon the question as to whether you could safely abolish hanging people for committing thefts of articles of over 40s. in value, and some very distinguished judges in your Lordships' House expressed the strongest possible 1180 opinion that you could not safely make such a change in the law. The matter is not to be decided upon the authority of lawyers, or upon the experience, one way or the other, of this lawyer or that. When you have such a difference of opinion, it seems to me that you should go upon the question of principle—which is the sounder and the more defensible system—and in my opinion, the much more sound and defensible system is to allow a man, if he wishes to do so, to tell his own story in the witness-box. My Lords, it is said that the result of the change will be to alter, not only the attitude of the jury, but that of the counsel and of the judge towards the prisoner. It is said that counsel, in other cases, prosecute with quasi-impartiality, which disappears when they have to cross-examine a prisoner upon the evidence that he has given. That, I think, my Lords, is a good deal exaggerated. I think that the motives, the state of mind, the feelings which now dictate that quasi-impartial attitude, will not be destroyed by a change in the law such as this Bill proposes; and I hesitate very much to believe that in practice it will be found to be destroyed amongst the members of the circuit to which I had the honour to belong. My Lords, I would venture to throw out a suggestion for my noble and learned Friend—whether it might not be desirable to make a change of procedure which, at all events, would go far to remove some apprehensions such as that to which I have just alluded. Of course, anyone who has defended prisoners knows that it was the great object to avoid a reply from the other side—you wanted the last word, and, consequently, you sometimes hesitated to call witnesses whom you would have called if it would not have deprived you of the last word; and under this Bill, no doubt, you cannot call the prisoner, though there should be no other witness, without giving the right of reply. I think there is a great deal to be said for this change, that the advocate for the prisoner should always have the last word—that is to say, that, where the prisoner is called to give evidence on his own behalf, the counsel for the prosecution should make his speech upon the whole case as presented to the jury, and that the prisoner's advocate should make his speech upon the whole case as so 1181 presented. I think, upon the whole, it would be some advantage, but not an unfair advantage, to the prisoner, and I think that some of the dangers suggested as to the reply of the counsel for the prosecution, upon the effect of the prisoner giving evidence, would be mitigated, or, perhaps, altogether done away with, by a change of that description. There is one other matter to which I should like to allude also. There has always seemed to me to be a blot upon our present system in this respect—that when a person is charged with an offence, and brought before the Petty Sessions, before committal for trial, as soon as the evidence is concluded he is told that he can make any statement he pleases, but every effort seems to be made to prevent his making that statement. He is warned, and he is told that any statement which he makes will be taken down, and will be used against him. I confess that I do not see any satisfactory reason for that procedure, and I think it would be well that, instead of being as much as possible deterred from making a statement, he should be encouraged to make it at the earliest opportunity—for this reason: that, if he is an innocent man, it is likely to assist him when the case comes on for trial. The statement that he so makes may afford the means of corroboration of that statement, and it may satisfy the police authorities that there is evidence which would tell in his favour, which they would not otherwise be aware of. I remember a case in my own experience. A person was charged with stabbing a policeman. It was a very serious case, and, no doubt, if convicted, the punishment would have been very heavy. He called witnesses to prove that he was not near the spot, and he accounted for the wound which he had in some other way than that suggested by the prosecution—the suggestion being that he received it in the encounter with the policeman, because there was no doubt that the person who stabbed the policeman was severely wounded by him in return. The jury were unable to agree upon their verdict. I subsequently learned that there were nine in favour of a conviction and three against. The case consequently stood over to be heard at the next sessions. I found that the prisoner was not there for trial when the sessions came on. I made inquiry, and 1182 I was informed that, in the interval, the police had investigated the statements that were made on behalf of the prisoner at the former sessions, and had satisfied themselves that he was not the man. Now, obviously, it would have been a great advantage that this person should have told his own story in the first instance at the police court, and if he had done so there can be no doubt he would never have been imperilled at all. It was only by means of three of the jurymen holding out against the nine that he was not sentenced, in all probability, to several years' penal servitude. Therefore, my Lords, there seems to me to be a great advantage in prisoners telling their own story, and in their being invited to tell their own story, at the police court, instead of doing it in a manner which is calculated to do anything but induce them to bring forward their case at the time. I venture to suggest these two matters for the consideration of my noble and learned Friend, because, although they do not touch the question immediately of the prisoner giving evidence, I think they suggest steps which may be taken to mitigate to some extent the fears of those who are apprehensive of the results of the change.
§ *LORD LUDLOW
My Lords, having had some considerable experience, both at the Bar and on the Bench, in the administration of the criminal law, I am anxious to say that I entirely approve of the principle of this Bill. It so happens that the first case that arose under the Criminal Law Amendment Act, 1885, was tried by myself at the Old Bailey. It was a very important case, it lasted eight or nine days, and whatever doubts I may have previously had with regard to the propriety of this change of the law were entirely removed during the course of that case. I do not propose to repeat the arguments which have been used both in this House and in the other House, and by many eminent authorities in the Press and elsewhere. They are well known. To my mind, the only real, substantial argument made against this Measure is one which I will now state. It it is this: that there is a fear that when the accused is made a competent witness, his not tendering himself as a witness will raise the inference of guilt 1183 against him in the minds of the jury. If I thought any such risk were likely to be incurred by an accused person, I should not be so favourable to this Measure as I am. But I do not believe in that idea. At the present moment a prisoner is invited to make a statement, and I have never heard or found that the mere effect of his not making a statement—of not endeavouring to explain his innocence—has in any way militated against him in the eyes of the jury, or induced them to convict him where otherwise they would not have done so. I do not believe that his not tendering himself as a witness would prejudice him with the jury any more than his not making a statement. I presume that the judge would tell the jury that the time-honoured principle, that the Crown is bound to make out the case beyond reasonable doubt, is a principle which still exists, and is a principle which the are to be guided by; and I do not for one moment believe that the fact of the accused party not tendering himself as a witness will then militate against him in any respect. Cases have been referred to showing the remarkable and intolerable anomalies in the criminal law as it now exists. I could illustrate those anomalies by numerous cases. A person is charged with common assault. He is able to explain it if he had an opportunity, but he cannot be called. If, on the other hand, he was charged with an indecent assault, he is a competent witness and can be called—in point of fact, making it depend upon the part of the body assaulted as to whether or not he can give evidence. Having regard to the experience I have had, I believe that this Measure is one which is loudly called for, and so far from in any way tending to the conviction of the innocent, it will be found to be a safeguard to the innocent, although I admit freely that it may bring about more convictions of the guilty.
§ THE LORD CHANCELLOR
My Lords, I can only say, with respect to what my noble and learned Friend has said, that the changes he suggests in the law of procedure of the criminal law does not seem to me to be at all unreasonable, because, as he says, though they do not arise immediately upon this Bill, some 1184 of the apprehensions which have been indicated may be removed by the changes he advocates. Of course, as to who last addresses a jury ought not in itself to make any difference to a jury, and I am not quite certain that it does make the difference that it is supposed to make. I am, of course, aware that it is supposed to make a difference as to who has the last word. A very distinguished lawyer once said that he did not care who had the last word so long as he had the first, but whether that is so or not I myself will not say, but if it at all facilitates the passage of this Bill, I can see no objections to the suggestion made by my noble and learned Friend. I have now only to say to your Lordships that I wish to present to you a petition from the Incorporated Law Society, who petition your Lordships in favour of this Bill. The petition runs as follows—That in the opinion of your petitioners the existing law, which ignores the evidence of accused persons, produces substantial hardships and injustice, and the proposed alteration will be a great benefit to innocent persons who may be charged with offences, and will produce no hardships or injustice to those who are guilty. Your petitioners, therefore, humbly pray that the said pending Bill may be passed into law.
§ Question put, and agreed to.
§ Bill read a second time and committed to a Committee of the whole House.