Algoritmo de flujo de carga

Bentham does not appear to have looked for any safeguard beyond a more careful interrogation. To guard against false confessions, every confession should be as particular as interrogation would allow. Thus in respect of all material facts, especially the act constituting the physical part of the offence, time and place ought to be specified so that any falsity might appear when the details of the confession were set beside other inconsis­ tent evidence.

The idea that a confession based on hope or fear should be rejected was thought by Bentham to be absurd.

Accused or suspected of a crime, guilty or innocent, - what but hope or fear should induce a man to speak? Guilty, in particular, what but hope or fear should induce a man to confess? Confession without hope or fear, is an action without a motive, an effect

without a cause.

principle amounted simply to the need for a judge exam­ ining an accused to be be on his guard against "the sinister inducements, to the action of which a man in

33 such a situation is exposed".

3. An Overview of the Attempts at Reform

The story of how accused persons became competent witnesses in their own defence may be divided into three periods. The first, from 1858 to 1878, saw unsuccessful attempts to achieve this reform by Lord Brougham and a few private members of the House of Commons, all of whom had connections with the law. These were Vincent Scully, Sir Fitzroy Kelly and Evelyn A s h l e y . T h e second period, from 1879 to 1883, saw government attempts to introduce this reform as part of a wider attempt at codification. It soon became clear that the size of the task was too great, and in the third period, from 1884 to 1898, indi­ vidual government measures were introduced. These were for some time unsuccessful. At first this was because of the opposition of Irish Nationalist members; later

failure resulted simply from the pressure of parliamen­ tary time.

(1) Private Members' Bills: 1858-78 (a) Lord Brougham

Neither the removal of interest as a bar to testi­ fying in civil cases, nor the extension of competency to

the parties in them, gave rise immediately to calls for parallel reforms in criminal procedure. The question of accused persons' competency was not raised in Parliament until 1858. In March of that year Lord Brougham referred

to the subject in a debate on the county courts. He observed that the great objection which had originally been made to the 1851 Act had been that it would lead to endless perjury. Brougham reminded the House that he had denied this at the time, and he claimed that subsequent experience had proved him right.

That Act was now confined to civil suits, but he was prepared to extend it to criminal suits. He did not lay this down as a proposition to which it was

impossible to make any objection, but still he con­ tended that the expediency of the extension was such as to overbalance all objections.

He proposed that the defendant in a criminal suit should have the right, if he chose, of being examined on oath, though if he did so he should be subject to cross-

examination by the prosecution.^^

In the same parliamentary session Brougham intro­ duced a bill to allow any person on trial for treason, felony or misdemeanour to give evidence on his own behalf. The spouse of the accused was also to be per­ mitted to give evidence for the defence if desirous of doing so. Evidence was to be given on oath, and the accused was to be subject to cross-examination in the same way as any other witness. Clause 5, which extended to civil cases, provided that no witness should be able

to refuse to answer a question "on the Ground that his Answer may degrade him, or may show or tend to show that he has been guilty of any Offence or Misconduct, or that he has done anything which may render him liable to any Penalty, Forfeiture, or Ecclesiastical Censure". The answer to such a question was not, however, to be admiss­ ible against the witness in any other proceedings, except in a prosecution for perjury brought in respect of that answer, and the Court's power to stop a question or answer on the ground of irrelevance was expressly stated.

In the event, the bill was postponed in deference to the opinion of Lord Campbell, Chief Justice of the Queen's Bench, that the subject ought to be fully dis­ cussed by the profession and the public during the

3 7

recess. Another bill to achieve this purpose was pre- 3 8

sented by Brougham in 1859. It was given a first 39 reading but proceeded no further for lack of time.

Some judges were thought to favour the adoption of Brougham's measure in a limited form which would have allowed the accused to give evidence in all cases of misdemeanour where the real prosecutor was called as a w i t n e s s . I n the following year Brougham introduced a bill which granted a right to testify in cases of mis­

ai demeanour only, but it failed for lack of time.