Dáil Éireann debate -
Thursday, 19 Jun 1924

Vol. 7 No. 27

CRIMINAL JUSTICE (EVIDENCE) BILL, 1924.—SECOND STAGE.

Motion made and question proposed: "That this Bill be read a Second Time."

MINISTER for JUSTICE (Mr. O'Higgins)

The object of this Bill is to introduce a reform which was introduced in England in the year 1898. Previous to that time, a defendant was not a competent or a compellable witness at any stage of criminal proceedings, and that principle was extended to cover this: that the wife or husband of a defendant was not a competent or a compellable witness. In the year 1898 an Act, entitled the Criminal Evidence Act, was passed in England, enabling a defendant to give evidence in his own defence if he so choose. Previous to that Act, there had been some minor exceptions made in the Married Women's Property Act of 1882, and in the Evidence Act of 1877. But the first substantial exception applied to this country was in an Act of 1903—the Motor Car Act. In relation to prosecutions under that Act the principle was extended that the accused person could give evidence on his own behalf.

This reform has been for some time back demanded from all quarters of the legal profession, by barristers and by solicitors. I do not know of any other country in which the defendant is precluded from giving evidence on his own behalf. There were reasons why the Act was not extended to Ireland in 1898, and why the Parliamentary Party of the day opposed its extension to Ireland. At about that time political prosecutions were common, and the suggestion was that the administration of the law was unfair in its dealings with people charged with political offences. It was considered better that accused persons could not be subject to cross-examination, and should not be entitled even to go into the witness-box. Conditions have changed, and it is now rather a hardship that a person charged with an offence may not himself give his own version of things and his own account of his whereabouts and of the relevant circumstances in connection with the charge.

There are, as Deputies know, many cases in which the evidence was mainly circumstantial and Deputies who ever served on juries are familiar with the plea put up that the only person with a real knowledge of the facts is precluded by law from tendering evidence. This Bill removes that disability. It does not make the accused person a compellable witness, but it provides that at his own selection he may give evidence in connection with the criminal charge. Deputies will note in Section I, the conditions or provisos attached to the general principle that an accused person may give evidence:—

(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.

It is considered desirable now to apply here that principle which has existed in England since 1898, that an accused person may, if he so wishes, give his own version of the occurrences revelant to the charge. This is an appropriate time to make these reforms in the administration of the law. I think the principle embodied in the Bill will be one that will be generally approved by the public at large, as it is generally approved by the legal profession.

Mr. JOHNSON

Can the Minister tell us whether there is general satisfaction in these countries where this provision has been made? I imagine the objection that was originally put forward was that the failure of a prisoner to elect to give evidence on his own behalf would be likely taken by a jury as somewhat prejudicial to his plea of innocence. The very fact that a prisoner declined or omitted to apply for leave to give evidence on his own behalf might be taken by a jury as a tacit admission of guilt, or at least anything he might say might be taken as going to prove his guilt, and therefore he would decline to give evidence. I have no definite views on the matter, but I would like some assurance from the Minister that the provision in the Act of 1898 has been satisfactory, and that in general it has been approved in England since it was adopted.

Mr. O'HIGGINS

I cannot speak with any first-hand or definite knowledge on the subject. I do understand that there is no complaint of unfairness arising out of the principle that was recognised in English law in 1898, and that there is general satisfaction with regard to it. If any Deputy knows of any other country in which an accused person is, by law, debarred from tendering evidence I would be glad to hear of it. My information is that there is no country except Ireland in which that state of affairs still prevails —that a prisoner can offer no evidence on his own behalf. We have to ask ourselves what, after all, is the real object of a trial. It is not a battle of wits; it is to ascertain the true facts of the situation. Deputy Johnson suggests that the election of an accused person not to give evidence may be taken by the jury as an unfavourable circumstance. We have tried to meet that to this extent, that the counsel for the State will be precluded from commenting upon that fact. We cannot, of course, get into the minds of the jury men and prevent them from drawing conclusions unfavourable to the prisoner. It is simply a question of where the balance is: whether it is a wise and proper thing to continue here a system by which a prisoner was absolutely excluded, even if he strongly desired to do so, from offering evidence with regard to a serious charge under which he lay. We have come to the conclusion that it is an anachronism and an anomaly that ought to be removed in our system of criminal justice.

Captain REDMOND

I agree with the Minister for Justice that, in the interests of justice it is time that the law in this country was brought up to date in this respect. As to the unfavourability towards the prisoner, I also believe it would be impossible to strike a balance in the matter. The fact that a prisoner has not been allowed to give evidence in the past has been often dwelt upon by his counsel, and to that extent the prisoner may have benefited, but the object of the prosecution is, as the Minister has stated, to get at the true facts of the case and to administer justice accordingly. Therefore, I, for one, welcome this Bill. I would like to know if the Minister could inform the Dáil whether he believes that this Bill will be in operation as an Act before the next Commission, which is to take place shortly in Green Street, Courthouse, Dublin.

Mr. O'HIGGINS

I am afraid it will not be in operation for, say, anything from a fortnight to three weeks' time. It would then, of course, apply to any further cases that would come on.

Question—"That the Bill be now read a second time"—put and agreed to.

Committee Stage ordered for Tuesday, 24th June.