§ Amendments reported (according to Order).
THE EARL OF MILLTOWN
, in rising to move to leave out Clause 5, which provided that prisoners on being called upon to give evidence as witnesses should not be cross-examined, said, that the Amendment had been introduced at the suggestion of the noble and learned Lord (Lord Halsbury); but it was very doubtful whether the effect would not be to lead to a miscarriage of justice. While the prisoner might give his evidence and be guarded from cross-examination, a prosecutor would be liable to be cross-examined and have his whole character inquired into. He could imagine a prosecutor who had been guilty of some immorality during his life, and that fact might be dragged before a jury to the benefit of the prisoner, and thus the ends of justice would be defeated.
§ Moved, "That Clause 5 be left out of the Bill."—(The Earl of Milltown.)
§ LORD HALSBURY
said, that the question was whether they would allow the prisoner to make a statement. It was not a question whether they would allow him to be cross-examined as the prosecutor would properly be cross-examined. The noble Earl (the Earl of Milltown) spoke of the prisoner and prosecutor as if they were rivals. That idea, of course, was untenable. The jury would draw the inference from the evidence. In his opinion the result of the Bill, without such a provision as Clause 5, would be to invert the whole system of our administration, and it would be calculated to do mischief if it were adopted without the restriction there laid down.
§ VISCOUNT CRANBROOK
said, he was obliged to differ from his noble and learned Friend (Lord Halsbury). If a 78 prisoner voluntarily put himself in the position of a witness he ought to be subject to the same kind of cross-examination as that to which other witnesses were exposed. In order to get rid of one anomaly his noble and learned Friend proposed to introduce another. The man having elected to come forward as a witness, on what possible ground could they protect him from the consequences of his own choice?
§ LORD BRAMWELL
said, that in two recent Statutes—the Explosives Act and the Criminal Law Amendment Act—the principle had been admitted that the person accused might give evidence in his own case; but there was no clause in either of those Acts similar to that of which the noble Earl opposite (the Earl of Milltown) had moved the omission. He (Lord Bramwell) would have submitted to their Lordships' former decision; but as the omission of the clause had been moved, he must vote for it.
§ THE MASTER OF THE ROLLS (Lord ESHER)
said, he spoke from a legal experience of 40 years, 18 years of which he had spent on the Bench. With regard to some things which had been said, it should be remembered that the Crown had no desire to convict a prisoner; and if the case depended solely on the evidence of the prosecutor, and the prosecutor was shown not to be a credible person, no conviction would ever be obtained. Criminal trials differed from civil, and no Judge, he was sure, would ever allow a jury to convict unless he himself was certain of the prisoner's guilt. He would ask their Lordships to imagine what the state of feeling would be if a timid and ordinarily ill-educated prisoner was made to say something under cross-examination which he did not want to say, and which would put him in a position of the greatest jeopardy. His conviction, under such circumstances, would not improbably lead the spectators to sympathize with the criminal rather than with the law. It should be borne in mind that a great end to be arrived at in a criminal trial was not only to secure a conviction, but to secure sympathy with the conviction; and with that view, although he somewhat objected to the wording of it, he supported the clause.
§ THE LORD CHANCELLOR (Lord HERSCHELL)
said, he had no strong view on the subject. No doubt, the clause 79 was not logical; but the Bill itself was not wholly logical, and the clause would only add another anomaly to the Bill. He was in favour of the measure, which would be a great advantage to the innocent man, and would lead to the conviction of the guilty; but though the clause might pass their Lordships' House, he knew what would be said of it in "another place." It would be said—" Fancy a poacher brought before county magistrates and asked whether he had ever been guilty of poaching before." He thought, therefore, that the Bill was a good one with that clause; but without it the Bill would not become law.
§ On Question, Whether the said Clause shall stand part of the Bill? Their Lordships divided:—Contents 31; Not-Contents 14: Majority 17.
§ Bill to be read 3a on Thursday next.