Some Proposals For Reform In The Law Of Evidence

AuthorRupert Cross
Publication Date01 Jan 1961
DOIhttp://doi.org/10.1111/j.1468-2230.1961.tb00652.x
SOME
PROPOSALS
FOR REFORM
IN
THE
LAW
OF
EVIDENCE
INTRODUCTION
VARIOUS
proposals for the reform of the law of evidence
will
be
considered under the heads of spouse witnesses, the Criminal
Evidence Act,
1898,
previous statements of witnesses,. the rule
against hearsay and exceptions to the hearsay rule. The article
concludes with brief references to other desirable reforms, a reform
which cannot be effected by legislation and the need for codifica-
tion. This is a formidable list, but it has nevertheless been
necessary
to
relegate to footnotes several further matters which
ought not to escape the reformer’s eye. The truth is that there
are
a
great many parts of the law of evidence which are in need
of
reform.
So
much is this the case that an academic lawyer may
perhaps be pardoned for wondering whether there
is
not, after all,
something to be said for the cynical view that the law of evidence
works as well as
it
does in practice because it is largely disregarded.
Be that as it may, it is only fair to the existing law for someone
who is to embark on an enumeration of its deficiencies to point out
that he will be mainly concerned with cases which are
a
little
outside the ordinary
run,
and that the present system has great
merits. After all,
it
is such current rules as that which generally
precludes any reference to the accused’s misspent past, the rule
against hearsay and the rules governing the examination of
witnesses which make an English criminal trial the satisfying
spectacle that
it
is when contrasted with some trials abroad. But
complacency is something to be avoided at all costs.
In
spite
of
the antiquity of some of its parts and its utterly haphazard growth,
our
law of evidence has many good points, but
it
is very far from
perfect and that is one reason why this article has been written.
SPOUSE WITNESSES
The court desires to say that the confusion in regard to the
matter is such that
it
is earnestly to be hoped that the legislature
will pass a short Act that would put the matter beyond all doubt
in the interest of those who have to administer justice.” These
words were spoken by Darling
J.
in the Court of Criminal Appeal
as long ago as
1912,
and the subject was the law relating to the
competence and compellability of the accused’s spouse. Since the
words were spoken, there has been no short Act of Parliament on
1
R.
v.
Acaster
(1912)
7
Cr.App.R.
188
at
p.
191.
82
JAS.
1961
REFORM
IN
THE
LAW
OF
EVIDENCE
33
the lines suggested, and the case law
on
the subject has been
further complicated by the decisions of the Court of Criminal
Appeal in
R.
v.
Lapworth
In the following account of the existing law, it will be con-
venient
to
speak simply of the position of the accused's wife when
criminal cases are considered, and
of
the defendant's
or
co-
respondent's wife when stating the law applicable to
a
civil case,
although the rules concerning the competence and compellability
of spouses are the same for husbands and wives.
So
far
as
civil cases are concerned, the effect
of
the Evidence
Amendment Act,
1853,
and the Evidence Further Amendment Act,
1869,
is generally assumed to be that the defendant's wife is
competent and compellable in all proceedings. The Act. of
1853
pro-
vides that, except as thereinafter excepted, the husbands and wives
of the parties to any proceedings shall be competent and
compellable. The exceptions relate to criminal proceedings and
proceedings instituted in consequence of adultery. Criminal
proceedings are now covered by the Criminal Evidence Act,
1898.
The second exception was repealed by the Act of
18G9,
but it goes
on to provide that the spouses of parties to proceedings instituted
in consequence of adultery shall be competent to give evidence in
those proceedings. There is not
a
word about compellability, and
it
is hardly surprising that doubts should have been entertained in
some quarters as to whether the co-respondent's wife is a compell-
able witness in a divorce
case.
Although these doubts
have
for
the
most part been dispelled by the decision of the Court of Appeal in
Tilly
v.
Tilly,'
there is no denying that the relevant statutory
provisions could be more clearly e~pressed.~ The obscurit,y of the
provisions relating to proceedings instituted in consequence
of
adultery
pale
into insignificance when contrasted with the diffi-
culty, shortly to
be
discussed, of justifying the commonly accepted
view that the defendant's divorced wife is competent and compell-
able in all civil cases.
In criminal cases, the accused's wife is a competent witness for
him and, with his consent,
for
his co-accused in all proceedings.
Without the consent
of
the accused, his wife is competent
for
his
co-accused as well as
for
the prosecution in the proceedings specified
in the schedule
to
the
Criminal Evidence Act,
1898,
to which
additions have been made from time to time. Competence does
and
R.
v.
~llgar.~
2
ri93ij
1
K.B.
117.
3
119543 1
Q.B.
279.
4
[19-19]
P.
240,
criticised in Cowen and Carter,
Essays
on
the
Law
of
Evidciicc,
p.
220,
et
seq.
Even
if
the learned authors' criticisms of the decision that the
respondent
in
divorce proceedings, and hence also the co-respondent
'8
wife, is
compellable are not accepted in full, there is great force in their subsequent
criticisms
of
the privilege against answering questions concerning marital
intercourse which exists in all proceedings under
8.
32 (2)
of
the Matrimonial
Causes Act,
1950.
The repeal of this subsection may therefore be numbered
among the desirable reforms in the law of evidence.
5
The relevant provisions are
now
s.
32 (3)
of the Matrimonial Causes Act,
1950,
and
s.
3
of the Evidence Further Amendment Act,
1869.
2
Tin-
9.4

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