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is cautioned that if he does so, his words will be committed to writing, and may be given in evidence at the trial. At the trial itself he is called upon to plead. He is also allowed to make a statement (which is not evidence) if unrepresented by counsel, and it has been held that he may do so even when defended.* At no stage of the proceedings can he be examined as a witness either for the prosecution or for the defence.t Section 368 of the Code provides that at the close of the case for the prosecution he may make a statement or be examined by his own counsel, subject to cross-questioning by the counsel for the Crown, but no questions may be directed to matters affecting the defendant's credit or character. After the cross-examination is concluded the defendant may be reexamined, or make any explanation he chooses. He cannot, however, be sworn as a witness, nor is he to be liable to any punishment for making false statements. It cannot be said that the practice of interrogating a prisoner is without precedent in our jurisprudence, seeing that it existed throughout the reigns of Elizabeth, James I., and Charles I., and continued during the Eighteenth Century, when it was finally abandoned without any express abolition, legislative or judicial. Sir Fitzjames Stephen justifies the revival of this system on the ground that the purpose of a criminal trial is the elicitation of the truth, and as the facts must necessarily be within the cognizance of the accused, the most effectual method of ascertaining them is by questioning him. I By this means, we are told, the guilty
* R. v. Manzano, 2 F. & F., 64; R. v. Malings, 8 C. & P., 242; R. v. Collins, 5 C. & P., 305.
+ The Conspiracy and Protection of Property Act (38 & 39 Vict., ch. 86, sec. II), and the Merchant Shipping Act (38 & 39 Vict., ch. 83, sec. 4), are exceptions to the rule. The first instance in modern times of a prisoner being examined, occurred under the latter Statute, at the Liverpool Spring Assizes, 1876, when the innovation was deprecated by Mr. (now Lord) Justice Brett. See Harris's “ Principles of the Criminal Law," page 387.
I“ General View of the Criminal Law," ch. vi., Part iii.
will be convicted out of their own mouths, the innocent will be informed of those suspicious circumstances which require explanation, and sham defences—namely, defences concocted out of the defects in the case for the prosecution —will become an impossibility. It must be conceded that illiterate persons experience the utmost difficulty in shaping their defence in the form of a narrative. Few of them are capable of giving an account of the simplest occurrence without either irrelevant details or omissions occasioned by the assumption that what they know is equally well known to others; and bearing in mind the anxiety under which those charged with an offence must naturally labour, it is not surprising that in the hurry, confusion, and nervousness of the moment they should be oblivious of important facts which would tell in their favour. A few questions, however, might not unfrequently place matters upon a proper footing. There are, nevertheless, difficulties in the way of introducing this change which members of the legal profession will not be slow to make manifest. Mr. Wills, for one, denies that innocent persons will benefit by an alteration in the Law; on the contrary, he considers that the effect of examination and cross-examination will be to bring into high relief the prisoner's bad qualities. A forensic acquaintance with the lower orders teaches him that the ignorant and immoral have a propensity to prevaricate, and he consequently thinks that their answers will operate unfavourably with juries.* But if the interrogation of prisoners be conceded, there still remain important details which, prior to their final settlement, demand earnest reflection. What limits are to be imposed upon the right to interrogate a prisoner? By whom, Mr. Wills pertinently asks, is the cross-examination to be undertaken, when there is no counsel for the prosecution ? Assuredly neither by the Judges nor by the Chairmen of Quarter Sessions, for that would divest them of the impartiality which they are called upon to exercise. Those who view with misgivings any extension of judicial authority, will hardly rest content with the clause which permits cross-examination in the above instance to be conducted “as the Court shall direct.” Moreover, re-examination, Mr. Wills insists, is a serious ingredient in a trial, and requires great care and judgment. It is a process that no unskilled person could possibly perform for himself, and, according to the writer's showing, it would be dangerous to entrust the discharge of this function to our untrained, or imperfectly trained, magistracy.
*"Ought prisoners to be examined ? ” by Alfred Wills, Q.C.; Nineteenth Century for January, 1878, p. 169.
There are some other practical objections to the application of the new rule, to which attention will be invited. For example, it is expressly forbidden to administer an oath to the prisoner,* and he is not to be punished for his false statements. No principle is laid down as to what weight the jury are to attach to his statements, nor as to the answers given in cross-examination or re-examination thereon. Now, if juries are to be directed to accept his statements and answers as evidence, the prisoner's word will hold good against the oath of the sworn witness, who can be indicted for giving false testimony. Apart from its inconsistency, such a provision will place the injured party at so considerable a disadvantage that he may not unseldom be deterred from coming forward to prosecute. If, on the other hand, juries are to be told that what the prisoner says is not evidence, the interrogation of him may well be deemed a waste of public time. In more than one particular will this section of the Criminal Code Bill prove unsatisfactory, even to those who are in favour of the principle it embodies. Some will desire to be informed of the reason for deferring the prisoner's examination until the trial. Granting that the process may facilitate the acquittal of the innocent, why, it will be asked, should the accused await his trial in gaol, or, if on bail, still, in either case, with a groundless imputation resting on him, when a few apt questions at the preliminary hearing might establish his innocence to the presiding magistrate. But, perhaps, the most salient defect in Section 368 is that which, whilst providing for the examination, cross-examination, and re-examination of prisoners, leaves unrepealed the rule which entirely excludes the testimony of their husbands or wives.*
" Such a
* To allow a prisoner to give evidence on oath would, in the opinion of Sir Fitzjames Stephen, be placing in his way too great a temptation. restriction,” says the learned author, “is no argument against the interrogation of the prisoner; for in the one case the man is tempted to invent a lie-in the other case he is probed for the purpose of discovering the truth.”—General View of the Criminal Law, p. 202. It is not easy to follow this train of reasoning
The institution of a Court of Criminal Appeal is another of the innovations which are likely to be eagerly canvassed. The incidents of civil and criminal proceedings are dissimilar in several respects, but in none do they more widely differ than as regards the rules which govern the right to appeal. When a civil action is brought to recover, say £25, or when a right of way or an eavesdrop is in dispute, either party has a constitutional right to appeal, first to a Divisional Court, next to the Court of Appeal, and finally to the House of Lords, whereas in criminal cases, when the life, liberty, and reputation of an individual are at stake, no appeal is possible except for an informality apparent on
* It is said that in high treason, husband and wife may be witnesses against each other, but no instance can be given. (Harris's “Principles of the Criminal Law,” pp. 388, 389.) In cases of personal injury (e.g., assault) by husband to wife, and vice versa, the parties may give evidence against each other. In prosecutions under the Conspiracy and Protection of Property Act (38 & 39 Vict. c. 86, s. 11) husbands and wives are competent witnesses. Upon an indictment for bigamy the second wife is a competent witness, i Hale, 393 ; so upon an indictment for forcible abduction and marriage, the woman is a competent witness against the defendant, Bull, N.P. 286, R. v. Wakefield, Lancaster Assizes, 1827. These last, however, are not really exceptions to the rule above-mentioned, for here the woman is not de jure the wife of the defendant.
the record, or upon a point of law reserved under the Statute, 11 and 12 Vict., c. 78. When, however, it can be shown to the satisfaction of the Queen's Bench Division of the High Court of Justice that difficult questions of law will arise, or that there are unusual circumstances which render it essential that the trial should be heard by a special jury, a writ of certiorari issues to remove the case into the Queen's Bench Division. In that event either party has a right of appeal to the Divisional Court upon the merits, as well as upon any points of law; but that Court is empowered to grant new trials in misdemeanours only, and its decision is final. If we pause for a moment to inquire as to the class of persons in whose judgment the law reposes such implicit confidence that it cannot, save in the above instance, be impugned, we shall find that though in practice there are two sets of jurorsspecial and common—with certain limited exceptions, special jurors are never summoned to serve on criminal trials at all. “ It therefore happens that in the most trumpery of civil disputes, either party by giving the proper notice may pick out from the jury twelve men of first class intellect and position to try his case, yet, if the highest person in the land is to be tried for his life, he has no such liberty.”* His fate will, in all probability, be decided by a jury composed of farmers and shopkeepers who are naturally devoid of legal knowledge and experience, and who have never given an hour's sustained consideration to any subject unconnected with their daily vocation. Hence it follows, that through their incapacity to grapple with intricate details, and their inability to comprehend the bearings of the evidence, flagrant acts of injustice are from time to time committed.
* Vide Lord Coleridge's speech in charging the Grand Jury at the last Chester Assizes. Both the Lord Chief Justice of the Common Pleas and Lord Justice Bramwell are endeavouring to compel Under-Sheriffs to place the special and common jurors on one list, and to summon special jurors to serve on criminal trials.