Anomalies of the English law

I. The Poor Prisoners’ Defence Act

An extremely short enactment, interesting from several points of view, is that which deals with the defence of poor prisoners. In itself it is scarcely anomalous, though the necessity for a poor prisoner to satisfy the committing justices or the judge of a court of assize, or chairman of a court of quarter sessions that he, the prisoner, comes within the meaning of the Act, sometimes tends to produce difficulty and obstruction. The Act reads:—

An Act to make Provision for the Defence of Poor Prisoners.

(14th August, 1903)

Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1. (1) Where it appears, having regard to the nature of the defence set up by any poor prisoner, as disclosed in the evidence given or statement made by him before the committing justices, that it is desirable in the interests of justice that he should have legal aid in the preparation and conduct of his defence, and that his means are insufficient to enable him to obtain such aid—

(a) the committing justices, upon the committal of the prisoner for trial, or

(b) the judge of a court of assize or chairman of a court of quarter sessions, at any time after reading the depositions,

may certify that the prisoner ought to have such legal aid, and thereupon the prisoner shall be entitled to have a solicitor and counsel assigned to him, subject to the provisions of this Act.

(2) The expenses of the defence, including the cost of a copy of the depositions, the fees of solicitor and counsel, and the expenses of any witnesses shall be allowed and paid in the same manner as the expenses of a prosecution in cases of indictment for felony, subject, nevertheless, to any rules under this Act and to any regulations as to rates or scales of payment which may be made by one of His Majesty’s Principal Secretaries of State.

2. Rules for carrying this Act into effect may be made in the same manner and subject to the same conditions as Rules under the Prosecution of Offences Act, 1879.

3. In this Act—

“Prisoner” includes a person committed for trial on bail.

“Committing justices” includes a magistrate of the police courts of the metropolis and a stipendiary magistrate.

“Chairman” includes recorder or deputy recorder or deputy chairman.

4. This Act shall not extend to Scotland or Ireland.

5. This Act may be cited as the Poor Prisoners’ Defence Act, 1903, and shall come into operation on the first day of January one thousand nine hundred and four.

The Act is straightforward and clear in its wording, but it seems to leave something unsaid in its provision for establishing the prisoner’s insufficiency of means to maintain his defence. The functionary who has to decide whether or not the prisoner’s poverty is genuine does not seem to be given any special standard by which to govern his decision. The responsibility of using public funds where there may be no real justification must influence him towards excessive caution. It would be better to make it perfectly plain what would constitute justification. A judge or quasi-judicial functionary, may be guided by his own intelligence, so far as he can apply it to the prisoner’s circumstances, but it may thus involve more time and consideration to arrive at a proper estimate of the truth than the case is worth. On the other hand, the prisoner and the police may, and probably do, conflict in their statements. What is to be done? There is no solution, unless it be, where the prisoner has got as far as quarter sessions or the assize, to set the man’s case back, pending the submission of an affidavit from a police officer deputed to make reasonable inquiry into the prisoner’s means and resources. Where there is no evidence of funds put by, an affidavit to this effect should satisfy the recorder, or judge, in the matter of providing for the defence. In a case where the prisoner requests legal aid in the police court, a similar principle could be applied. A police affidavit would be useful as a record.

II. The Perjury Bill

A short Bill “to consolidate and simplify the law relating to perjury and kindred offences,” to be known to future generations as the Perjury Act, 1911, has recently left the printer. Its sponsor is the Lord High Chancellor, and its provisions are not without interest to the general public. It is made up of nineteen clauses and a schedule. It is proposed to here transcribe it bodily. The Bill, after reciting the formula of Royal and Parliamentary enactment, runs as follows:—

1.—(1) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall on conviction thereof on indictment be liable to penal servitude for a term not exceeding seven years, or to imprisonment with or without hard labour for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

(2) The expression “judicial proceeding” includes a proceeding before any court, tribunal, or person having by law power to hear, receive, and examine evidence on oath.

(3) Where a statement made for the purposes of a judicial proceeding is not made before the tribunal itself, but is made on oath before a person authorised by law to administer an oath to the person who makes the statement, and to record or authenticate the statement, it shall for the purposes of this section be treated as having been made in a judicial proceeding.

(4) A statement made by a person lawfully sworn in England or Ireland for the purposes of a judicial proceeding—

(a) in another part of His Majesty’s dominions, or

(b) in a British tribunal lawfully constituted in any place by sea or land outside His Majesty’s dominions, or

(c) in a tribunal of any foreign state,

shall for the purpose of this section be treated as a statement made in a judicial proceeding in England or Ireland.

(5) Where for the purposes of a judicial proceeding in England or Ireland, a person is lawfully sworn under the authority of an Act of Parliament—

(a) in any other part of His Majesty’s dominions, or

(b) before a British tribunal or a British officer in a foreign country, or within the jurisdiction of the Admiralty of England,

a statement made by such person so sworn as aforesaid (unless the Act of Parliament under which it was made otherwise specifically provides) shall be treated for the purposes of this section as having been made in the judicial proceeding in England or Ireland for the purposes whereof it was made.

(6) The question whether a statement on which perjury is assigned was material is a question of law to be determined by the court of trial.

2. If any person—

(1) being required or authorised by law to make any statement on oath for any purpose, and being lawfully sworn (otherwise than in a judicial proceeding) wilfully makes a statement which is material for that purpose and which he knows to be false or does not believe to be true, or

(2) wilfully uses any false affidavit for the purposes of the Bill of Sale Act, 1878, as amended by any subsequent enactment,

he shall be guilty of a misdemeanour, and on conviction thereof on indictment shall be liable to penal servitude for a term not exceeding seven years or to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

3. (1) If any person—

(a) for the purpose of procuring a marriage, or a certificate or license for marriage, knowingly and wilfully makes a false oath, or makes or signs a false declaration, notice or certificate required under any Act of Parliament for the time being in force relating to marriage, or

(b) knowingly and wilfully makes, or knowingly and wilfully causes to be made, for the purpose of being inserted in any register of marriage, a false statement as to any particular required by law to be known and registered relating to any marriage.

(c) forbids the issue of any certificate, or license for marriage by falsely representing himself to be a person whose consent to the marriage is required by law, knowing such representation to be false,

he shall be guilty of a misdemeanour and on conviction thereof on indictment shall be liable to penal servitude for a term not exceeding seven years or to imprisonment, with or without hard labour, for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

(2) No prosecution for knowingly and wilfully making a false declaration for the purpose of procuring any marriage out of the district in which the parties or one of them dwell shall take place after the expiration of    months from the solemnization of the marriage to which the declaration refers.

4. (1) If any person—

(a) wilfully makes any false answer to any question put to him by any registrar of births or deaths relating to the particulars required to be registered concerning any birth or death, or wilfully gives to any such registrar any false information concerning any birth or death or the cause of death, or

(b) wilfully makes any false certificate or declaration under or for the purposes of any Act relating to the registration of births or deaths, or knowing any such certificate or declaration to be false, uses the same as true or gives or sends the same as true to any person, or

(c) wilfully makes, gives or uses any false statement or declaration as to a child born alive as having been still-born, or as to the body of a deceased person or a still-born child in any coffin, or falsely pretends that any child born alive was still-born, or

(d) makes any false statement with intent to have the same inserted in any register of births or deaths:

shall be guilty of a misdemeanour and shall be liable—

(i) on conviction thereof on indictment to penal servitude for a term not exceeding seven years, or to imprisonment with or without hard labour for a term not exceeding two years, or to a fine instead of either of the said punishments; and

(ii) on summary conviction thereof to a penalty not exceeding ten pounds:

(2) A prosecution on indictment for an offence against this section shall not be commenced more than three years after the commission of the offence.

5. If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—

(a) in a statutory declaration, or

(b) in an abstract account, balance sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return, or other document which is authorised or required to make, attest, or verify, by (under or for the purposes of) any public general Act of Parliament for the time being in force, or

(c) in any oral declaration or oral answer which he is required to make by (under or in pursuance of) any public general Act of Parliament for the time being in force,

he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment with or without hard labour, for any term not exceeding two years, or to a fine or to both such imprisonment and fine.

6. If any person—

(a) procures or attempts to procure himself to be registered on any register or roll kept under or in pursuance of any public general Act of Parliament for the time being in force of persons qualified by law to practise any vocation or calling, or

(b) procures or attempts to procure a certificate of the registration of any person on any such register or roll as aforesaid,

by wilfully making or producing or causing to be made or produced either verbally or in writing, any declaration, certificate, or representation which he knows to be false or fraudulent, he shall be guilty of a misdemeanour and shall be liable on conviction thereof on indictment to imprisonment for any term not exceeding twelve months, or to a fine, or to both such imprisonment and fine.

7. (1) Every person who aids, abets, counsels, procures, or suborns another person to commit an offence against this Act shall be liable to be proceeded against, indicted, tried and punished as if he were a principal offender.

(2) Every person who incites or attempts to procure or suborn another person to commit an offence against this Act shall be guilty of a misdemeanour, and on conviction thereof on indictment shall be liable to imprisonment, or to a fine, or to both such imprisonment and fine.

8. Where an offence against this Act or any offence punishable as perjury under any other Act of Parliament is committed in any place either on sea or land outside the United Kingdom the offender may be proceeded against, indicted, tried, and punished in any county or place in England where he was apprehended or is in custody as if the offence had been committed in that county or place; and for all purposes incidental to or consequential on the trial or punishment of the offence, it shall be deemed to have been committed in that county or place.

9. (1) Where any of the following authorities, namely, a judge of or person presiding in a court of record, or a petty sessional court, or any justice of the peace sitting in special sessions, or any sheriff or his lawful deputy before whom a writ of inquiry or a writ of trial is executed is of opinion that any person has in the course of a proceeding before that authority been guilty of perjury, the authority may order the prosecution of that person for such perjury in case there shall appear to be reasonable cause for such prosecution and may commit him, or admit him to bail, to take his trial at the proper court, and may require any person to enter into a recognizance to prosecute or give evidence against the person whose prosecution is so ordered, and may give the person so bound to prosecute a certificate of the making of the order for the prosecution, for which certificate no charge shall be made.

(2) An order made or a certificate given under this section shall be given in evidence for the purpose or in the course of any trial or a prosecution resulting therefrom.

10. A court of quarter sessions shall not have jurisdiction to try an indictment for any offence against this Act, or for an offence which under any enactment for the time being in force is declared to be perjury or to be punishable as perjury, or as subornation of perjury.

11. The provisions of the Vexatious Indictments Act, 1859, and the Acts amending the same, shall apply in the case of any offence punishable under this Act, and in the case of any offence which under any other enactment for the time being in force, is declared to be perjury or subornation of perjury or is made punishable as perjury or as subordination of perjury, in like manner as if all the said offences were enumerated in section one of the said Vexatious Indictments Act, 1859: Provided that in that section a reference to this Act shall be substituted for the reference therein to the Criminal Procedure Act, 1851.

12. (1) In an indictment—

(a) for making any false statement or false representation punishable under this Act, or

(b) for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly taking, making, signing, or subscribing any oath, affirmation, solemn declaration, statutory declaration, affidavit, deposition, notice, certificate, or other writing,

it is sufficient to set forth the substance of the offence charged, and before which court or person (if any) the offence was committed without setting forth the proceedings or any part of the proceedings in the course of which the offence was committed, and without setting forth the authority of any court or person before whom the offence was committed.

(2) In an indictment for aiding, abetting, counselling, suborning, or procuring any other person to commit any offence hereinbefore in this section mentioned, or for conspiring with any other person, or with attempting to suborn or procure any other person, to commit any such offence, it is sufficient—

(a) where such an offence has been committed, to allege that offence, and then to allege that the defendant procured the commission of that offence, and

(b) where such offence has not been committed, to set forth the substance of the offence charged against the defendant without setting forth any matter or thing which it is unnecessary to aver in the case of an indictment for a false statement or false representation punishable under this Act.

13. A person shall not be liable to be convicted of any offence against this Act, or of any offence declared by any other Act to be perjury or subornation of perjury or to be punishable as perjury or subornation of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.

14. On a prosecution

(a) for perjury alleged to have been committed on the trial of an indictment for felony or misdemeanour, or

(b) for procuring or suborning the commission of perjury on any such trial,

the fact of the former trial shall be sufficiently proved by the production of a certificate containing the substance and effect (omitting the formal parts) of the indictment and trial purporting to be signed by the clerk of the court, or other person having the custody of the records of the court where the indictment was tried, or by the deputy of the clerk or other person, without proof of the signature or official character of the clerk or person appearing to have signed the certificate.

15. (1) For the purposes of this Act the forms and ceremonies used in administering an oath are immaterial, if the court or person before whom the oath is taken has power to administer an oath for the purpose of verifying the statement in question, and if the oath has been administered in a form and with ceremonies which the person taking the oath has accepted without objection, or has declared to be binding on him.

(2) In this Act—

The expression “oath” in the case of persons for the time being allowed by law to affirm or declare instead of swearing, includes “affirmation” and “declaration,” and the expression “swear” in the like case includes “affirm” and “declare”; and

The expression “statutory declaration” means a declaration made by virtue of the Statutory Declarations Act, 1835, or of any Act, Order in Council, rule or regulation applying or extending the provisions thereof; and

The expression “indictment” includes “criminal information.”

16. (1) Where the making of a false statement is not only an offence under this Act, but also by virtue of some other Act is a corrupt practice or subjects the offender to any forfeiture or disqualification or to any penalty other than penal servitude, or imprisonment, or fine, the liability of the offender under this Act shall be in addition to and not in substitution for his liability under such other Act.

(2) Nothing in this Act shall apply to a statement made without oath by a child under the provisions of the Prevention of Cruelty to Children Act, 1904, and the Children Act, 1908.

(3) Where the making of a false statement is by any other Act, whether passed before or after the commencement of this Act, made punishable on summary conviction proceedings may be taken either under such other Act or under this Act:

Provided that where such an offence is by any Act passed before the commencement of this Act, as originally enacted, made punishable only on summary conviction, it shall remain only so punishable.

17. The enactments specified in the schedule of this Act are hereby repealed, so far as they apply to England, to the extent specified in the third column of that schedule.

18. This Act shall not extend to Scotland or Ireland.

19. This Act may be cited as the Perjury Act, 1911, and shall come into operation on the first day of January, nineteen hundred and twelve.

The schedule attached to the new Bill—which comes to an end, so far as the provisions are concerned, with clause 19—repeals one hundred and thirty-two legislative measures, the first one to go, being 52 Hen. 8. c. 9.—“Agenst maintenance and embracery byeng of titles, etc.”

The Perjury Bill promises to crush out many anomalous conditions, not the least of which are those connected with the facility afforded at present to the supply of false data to registrars of births and deaths, more particularly in respect to births. Under existing conditions, by a passive method of suppressio veri, as opposed to expressio falsi, the most grossly inaccurate entries may be recorded in the registers. For a person who voluntarily sets himself to speak what is false, there is no limit to the length to which he may go, without let or hindrance. By the force of the new Bill, this state of affairs will come to an abrupt and timely end. It is high time, too, for the records of England are filled with the most unwarrantable entries.

Where two persons are cohabiting together as man and wife, and a child is born, the chances are the father, if he goes to record the birth, will merely be asked the maiden name of his wife. If he is a good-natured man, he may answer in all truth that her name was Joan Stuart, or whatever the name may be. He is not asked whether he is actually married in law, or when and where he was married, nor what evidence he has to show that any marriage ever took place. Admittedly, the lack of insistence on the part of the authorities is benign in one way, but it leaves loop-holes for all sorts of abuses. The Perjury Bill threatens to stop them up.

In sub-section (2), clause 5, of the Perjury Bill, there is the line, “after the expiration of months from the solemnization of the marriage.” What “the expiration of months” means, Heaven only knows! Either by accident or intention an anomaly will be created unless His Majesty’s Stationery Office, or the Printers to the King’s Most Excellent Majesty, will assume responsibility and correct the error. As the Bill stands, “the expiration of months” may mean any number of months, which is grotesque on the face of it.

III. The Criminal Evidence Act

The Criminal Evidence Act, 1898, comes out of chronological order here, but it is none the worse for that. It might have been placed first of all, instead of granting precedence to the Poor Prisoners’ Defence Act, 1903, though in the present arrangement of several short Acts of Parliament, various considerations have exercised the author. Then, too, for instance, the Perjury Bill, 1911, quite the newest thing in legislation, supplies a form of introduction to the Criminal Evidence Act, which has given great and uninterrupted scope to half a generation of liars. It is the constant complaint of judges that a criminal when giving evidence on his own behalf rarely tells the truth, or anything approaching the truth. Comment on the subject flows freely from the Bench, with every possible cause. If criminals were not allowed to “speak for themselves,” at least the occupants of the dock could tell no lies. Still, there are so many technical fictions permitted nowadays that one half expects a man to lie with sang froid, in an attempt to save his own skin. This is scarcely morality, but it is a practical and true way to look upon an evil which is akin to nature. On one of those rare occasions, when a murderer is caught red-handed, he will enter a plea of “Not Guilty,” as a matter of course. The plea is a fiction in itself, but an even greater one is to be found in the amendment or alteration of a plea of “Guilty” to “Not Guilty,” the most absurd anomaly sanctioned in the English courts, one due, it may be explained, to the tolerance of the judiciary.

Owing to the shortness of the Criminal Evidence Act, and owing also to its clearness of meaning, it may here be inserted intact, without misgiving. It is made up of only seven brief sections, the first of which begins,

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 for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows:—

(a) a person so charged shall not be called as a witness in pursuance of this Act except upon his own application.

(b) The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution.

(c) 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 except upon the application of the person so charged.

(d) Nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage.

(e) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged.

(f) A person charged and 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 he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is a 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) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or

(iii) he has given evidence against any other person charged with the same offence.

(g) Every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.

(h) Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, or any right of the person charged to make a statement without being sworn.

2. Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.

3. In cases where the right of reply depends upon the question whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

4. (1) The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged.

(2) Nothing in this Act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.

5. In Scotland, in a case where a list of witnesses is required, the husband or wife of a person charged shall not be called as a witness for the defence, unless notice be given in the terms prescribed by section thirty-six of the Criminal Procedure (Scotland) Act, 1887.

6. (1) This Act shall apply to all criminal proceedings, notwithstanding any enactment in force at the commencement of this Act, except that nothing in this Act shall affect the Evidence Act, 1877.

(2) But this Act shall not apply to proceedings in courts martial unless so applied—

(a) as to courts martial under the Naval Discipline Act, by general orders made in pursuance of section sixty-five of that Act, and

(b) as to courts martial under the Army Act by rules made in pursuance of section seventy of that Act.

7. (1) This Act shall not extend to Ireland.

(2) This Act shall come into operation on the expiration of two months from the passing thereof.

(3) This Act may be cited as the Criminal Evidence Act, 1898.

It seems a farce to put a criminal in the position of a witness, and unless he has his wits about him he may have good cause to regret taking advantage of the Act. The evidence of an accused person must, of necessity, be discounted in the mind of the judge, and very properly, too, when it is almost invariably false, or, at best, materially tainted with falsehood. The instinct of self-preservation is strong in every man, however lowly his sphere; accuse a public servant of drunkenness while on duty, and he will, with the aid of his associates, manufacture evidence of his invariable sobriety! It is the same thing with persons accused of crime. Accuse them, and they will fight to escape. That they are guilty is a detail. The Criminal Evidence Act merely gives them an additional crutch on which to lean, i.e., the license of personal explanation. That the Act is based on benevolence and a desire to do justice, and for such reasons is worthy of respect, one cannot doubt, but candour compels one to submit, also, that it affords a fertile opportunity for perjury on the part of a criminal, and for an unnecessary waste of time.

Since the trial, at the Central Criminal Court, of the murderer, “Stinie” Morrison, or Morris Stein, the Criminal Evidence Act has attracted a good deal of special comment. The bulk of this comment has been directed against that portion of subsection (b), section 1, which, where “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution,” authorises the prosecution to question the accused as to his past crimes, convictions, etc.

“Defending counsel may again, as in Rex v. Morrison,” says a legal writer in The Daily Mail, “feel it his duty to attack the characters of some of the witnesses for the Crown. At once the prisoner is rendered liable to have his whole dossier—generally a damaging one—laid before the jury. That is an immense step forward to the Continental system, where the judge’s interrogatories always begin with a catechism on the prisoner’s previous crimes.”

The same matter has brought some remarks from the law correspondent of The Pall Mall Gazette, “If there is to be legislation on the subject, one suggestion may be hazarded. It is that, whatever other amendments in the Criminal Evidence Act experience may demand, an exception from the stringent rule should be made in capital cases. When the penalty is death, admit nothing but ‘the facts’ and exclude bad character from them.”

Even The Law Times takes up much the same attitude as the lay journals. “It has always been our boast,” it states, “so far as the administration of our criminal law is concerned, that a prisoner must be deemed to be innocent until he is proved guilty and that the onus is upon the prosecution to prove his guilt. The effect of the Act of 1898 has been imperceptibly and gradually to change that position, and to a large extent nowadays the onus of proving his innocence in many cases in fact falls upon the accused.”