United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—I do not pretend to conjecture whether the decision at which I think that your Lordships will arrive is pro bono publico or not, because, on the one hand, it is very desirable in a certain class of cases justice should not be thwarted by the absence of the necessary evidence, but upon the other hand it is a fundamental and old principle to which the law has looked that you ought not to compel a wife to give evidence against her husband, especially in matters of a criminal kind. Fortunately it is not our duty to-day to consider these consequences at all. What we have to consider is, what is the meaning of the law which has been laid down in the Act of 1898? This appellant was indicted, and was convicted, for an offence under the Incest Act. In the course of the trial his wife was called and asked to give evidence for the prosecution; she objected, but was directed and compelled to do so. The question is whether this was lawful or not.

It is clear that this question must be governed by section 4 of the Criminal Evidence Act 1898, which runs as follows—“… [ quotes, v. sup.]…” Now if it had not been for that section the wife could not have been allowed to give evidence, and the result of that was that the wife could not have been compelled to do so, and was protected against compulsion. The difference between leave to give evidence and compulsion to give evidence is recognised in a series of Acts of Parliament. Then, does the 4th section which I have read deprive the wife of this protection? It is capable of being construed in different ways, and it may hereafter lead, for all I know, to various other difficulties; but the present question is, Does it deprive this woman of this protection? It says, in effect, that the wife can be allowed to give evidence even if her husband objects. It does not say that she must give evidence against her own will. It seems to me that we must have a definite change of the law in this respect, definitely stated in an Act of Parliament, before the right of this woman can be affected, and therefore I consider that this appeal ought to be allowed, with what consequences or how it may be conformable to what is the true interest of society or the public we are not concerned, and have no liberty to inquire.

Earl of Halsbury—I am entirely of the same opinion. I confess that I do not think that the matter was one upon which I should myself have entertained very much doubt in the first instance. One must consider, when one is dealing with Acts of Parliament, and considering what the effect of a supposed construction is, whether or not one is dealing with something which it is possible that the Legislature might either have passed by definite and specific enactment or have allowed to pass by some ambiguous inference.

In dealing with that question I should have thought that it is one of the things which would not only occur to a lawyer, but is one which almost everybody in English life would recognise, that a wife ought not to be compelled to be called against her husband. It is not necessary to enter into that question, but what I mean is that those who are under the responsibility of passing Acts of Parliament would recognise a matter of that supreme importance as one to be dealt with specifically and definitely, and not to be left to an inference. I think, for this reason also, that this observation is true, that when you are dealing with a question of this sort you cannot leave out of sight the different Acts of Parliament which have been passed, in one sense, upon this subject, with a sort of nomenclature of their own, and I must say for myself, speaking as an ordinary person, that I should have asked, when it was proposed to call the wife against the husband, “Will you show me an Act of Parliament which says definitely that you may do so, because since the foundations of the common law it has been recognised that it is contrary to the course of the law,” and if no statute was capable of being produced, I say, after the extremely able argument which we have had on behalf of the Crown, urged not a bit more earnestly than it was right that it should be—for it is most proper that those who represent the Crown should urge every argument which could be urged to show what is the true construction of the statute—that when that is

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