iii. Prisoner not defended by counsel, but calling witnesses. Counsel for prosecution opens his case.

Counsel for prosecution examines his witnesses.

Prisoner gives his own evidence (if he wishes to do so) and examines his witnesses.

Prisoner addresses the jury.

Counsel for prosecution replies.

iv. Prisoner not defended by counsel, and not calling

witnesses.

Counsel for prosecution opens his case.

Counsel for prosecution examines his witnesses.

Prisoner gives his own evidence on oath (if he so desires) and addresses the jury.

The only other proceeding before the jury consider their verdict is the summing-up by the judge, or, at the sessions, by the chairman or recorder. The object of this is to explain the law as applicable to the case under trial, and to marshal the evidence so that it may be more readily understood and remembered by the jury. The Judge first states to them the substance of the charge against the prisoner; he then, if necessary, explains to them the law upon the subject; he next refers to the evidence which has been adduced in support of the charge, making occasionally such observations as may be necessary to connect the evidence, to apply it to the charge, and to render the whole plain and intelligible to the jury; he then states the defence, and the evidence given on the part of the defendant; and he usually concludes by telling the jury that, if upon considering the whole of the evidence they entertain a fair and reasonable doubt of the guilt of the prisoner, they should give the prisoner the benefit of that doubt and acquit him.

CHAPTER XI.

THE WITNESSES.

FORMERLY many classes of persons were excluded on various grounds as incompetent to give evidence, the principal objections being that the proposed witness had a personal interest in the result of the trial or was himself, by reason of his having been convicted of serious crime, unworthy of belief, or, as it was called, an "infamous " person. But these objections to the testimony of a witness now operate in another way. Instead of excluding it altogether, the objection may weaken the testimony and prevent the jury from placing ordinary credit in it; at the same time they have the opportunity of gathering therefrom as much truth as possible. Thus it has been provided by statute that no person offered as a witness shall be excluded, by reason of incapacity from crime or interest, from giving evidence (a). However, even now a person under sentence of death is incapable of giving evidence (b).

It is a general principle of English law (which must now, however, be taken with a considerable qualification) that no one is bound to criminate himself (nemo tenetur prodere seipsum). Upon this principle it was for a great many years and until very recently held that as a general rule an accused person and his or her wife or husband could not be examined as witnesses either for the prosecution or the defence. To this general rule a considerable number of exceptions were in recent years made by various statutes which it is now unnecessary to mention; but there were other exceptions (so

(a) 6 & 7 Vict. c. 85, s. 1.

(b) R. v. Webb, [1867] 11 Cox, 133.

far as regarded the husband or wife) which existed at common law, and to these we shall afterwards have to refer. Although the law on this subject was revolutionised by the Criminal Evidence Act, 1898 (c), which enabled an accused person and his consort to give evidence, they were nevertheless not placed entirely upon the footing of ordinary witnesses, there being many special provisions with regard to their evidence and the mode in which it is to be taken which require the closest attention.

In one important respect the Criminal Evidence Act, 1898, effected no alteration in the pre-existing law. It does not (with the one exception referred to below) enable the prosecution in any criminal case to call the accused person himself as a witness. If he chooses to avail himself of his right to give evidence on his own behalf, to which we shall presently refer, he may do so, and he thereby exposes himself to be cross-examined by counsel for the prosecution, but unless he voluntarily tenders himself as a witness for the defence he cannot be put upon his oath, nor can the prosecuting counsel or the Court ask him any question whatever beyond calling upon him to plead guilty or not guilty to the indictment. The Act, indeed, expressly provides that he shall not be called as a witness except upon his own application (d). To this rule there is but one exception, which arises under the Evidence Act, 1877 (e), a statute which is not affected in any way by the Criminal Evidence Act, 1898 (ƒ). The Evidence Act, 1877, provides that on the trial of any indictment or other proceeding for the non-repair of or nuisance to any public highway or bridge, or for a nuisance to a river, or of any indictment or proceeding instituted for the purpose of enforcing a civil right only, the defendant and the wife or husband of such defendant shall not only be admissible witnesses but shall be compellable to give evidence.

(c) 61 & 62 Vict. c. 36.

(d) Ibid. s. 1 (a).

(e) 40 & 41 Vict. c. 14.

(f) 61 & 62 Vict. c. 36, s. 6

The provisions of the Criminal Evidence Act, 1898, are as follows:

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 (g) at every stage of the proceedings (h), 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 (i):

(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 (k):

(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 (7):

(g) I.e., to give evidence on his own behalf or on behalf of a co-defendant tried jointly with him, R. v. Macdonald, 2 Cr. App. R. 322.

(h) Except before the grand jury, R. v. Rhodes, [1899] 1 Q. B. 77; 68 L. J. Q. B. 83; 79 L. T. 360; 47 W. R. 121; 62 J. P. 774.

(i) But the Judge may, in his discretion, comment upon such failure to give evidence, R. v. Rhodes, supra.

(k) I.e., upon the application of the person charged, being the husband or wife of the witness. One of two co-defendants cannot call the husband or wife of the other, except upon the other's application. Archbold, 452.

(1) It should be noticed that this and the following provision are to a great extent the reverse of the rule with regard to the cross-examination of an ordinary witness, who cannot be required to answer a question the answer to which would tend to criminate him, but may be asked whether he has been convicted of any other offence; v. p. 374.

(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 of 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 (m); 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 (n), 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 (o); or

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

(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 gave their evidence:

(h) Nothing in this Act shall affect the provisions of section eighteen of the Indictable Offences Act, 1848, or

(m) As to cases in which evidence of other offences is admissible to show guilt of the offence charged, see pp. 219, 236.

(n) See p. 392.

(0) Where the defence is that one or more of the witnesses for the prosecution committed the offence with which the prisoner is charged, and questions are asked to show this, the nature and conduct of the defence necessarily involves imputations on the character of the witnesses for the prosecution (R. v. Hudson, [1912] 2 K. B. 465; 81 L. J. K. B. 861). In other cases the test is whether the suggestions alleged to amount to an imputation involve an attack upon the prosecutor or his witnesses upon the ground that his conduct, outside and as distinct from the evidence given by him, makes him an unreliable witness (R. v. Preston, [1909] 1 K. B. 568; 78 L. J. K. B. 335). Thus it is not an imputation on the character of a witness for the prosecution to say that his evidence is a lie and to call him a liar with respect to the evidence given, but it is an imputation on his character to say that he is such a horrible liar that even his brother will not believe him (R. v. Rouse, [1904] 1 K. B. 184; 73 L. J. K. B. 60; R. v. Rappolt, 6 Cr. App. R., 156).

(p) As to co-defendants giving evidence against each other, see p. 368.