§ 5.


as to pre

certain Courts, makes provision as to the list of witnesses and list of productions in ss. 24, 27, 35, 36, 53, and 69. These sections will be found in the Appendix, post, pp. 88 et seqq.

6.—(1.) This Act shall apply to all criminal vious Acts. proceedings, notwithstanding any enactment in force at the commencement of this Act,1 except that nothing in this Act shall affect the Evidence Act, 1877.2

40 & 41 Vict. c. 14.

29 & 30
c. 109,
8. 65.

44 & 45

Vict. c. 58, 8. 70.

(2.) But this Act shall not apply to proceedings in courts martial unless so applied(a.) as to courts martial under the Naval Discipline Act, by general orders made in pursuance of section sixty-five of that Act; and


(b.) as to courts martial under the Army Act by rules made in pursuance of section seventy of that Act.*

1 Extent of application of Act.—With the exceptions hereinafter mentioned, and subject to sub-s. (2), on and after the 12th October, 1898 (see s. 7 (2), post, p. 54), this Act shall apply to all criminal proceedings, including those pending when the Act comes into operation (see s. 7 (2) and note thereto, post, p. 54) in England and Scotland, but not in Ireland (see s. 7 (1), post, p. 54); and all prior enactments enabling a defendant and the wife or husband of a defendant in certain criminal proceedings to give evidence, must now be treated as overridden by the provisions of this Act. A list of such enactments-some twentyone in number-will be found in 2 Tay. Evid. p. 885, note 6; cf. Arch. 321; Rosc. 120.

Penal proceedings in Ecclesiastical Courts.-Not- § 6. withstanding the declaration that "this Act shall apply to all criminal proceedings," there seems to be some doubt whether it will apply to penal proceedings in the Ecclesiastical Courts. It was held in a criminal suit in the Court of Arches, brought against a clergyman under the Church Discipline Act3 & 4 Vict. c. 86—that by virtue of ss. 2 and 3 of the Evidence Act, 1851-14 & 15 Vict. c. 99-the defendant was competent and compellable to give evidence: Bishop of Norwich v. Pearse (1868), L. R. 2 A. & E.281; 37 L. J. Ecc. 90, Sir Robert Phillimore, overruling the decision of Dr. Lushington in Burder v. O'Neill (1863), 9 Jur. N. S. 1109; 2 New R. 551; 9 L. T. 232, which had been questioned in the P. C. in Berney v. Bishop of Norwich (1867), 36 L. J. Ecc. 10. (See ss. 2, 3, and 4 of the latter Act in Appendix, post, pp. 69-70; cf. Arch. 320.) But one of the grounds of Sir R. Phillimore's decision was that the words in s. 3 of the Evidence Act, 1851, "in any criminal proceeding' refer to proceedings in which the Crown, as guardian of the public weal, is prosecutor; and not to suits which the common law denominates 'criminal,' and in which the prosecutor is the Ordinary, or the promoter of his office, especially having regard to the words of the 4th section:" L. R. 2 A. & E. at 285. If the present Act should be held to apply to criminal proceedings in the Ecclesiastical Courts, the defendant in such proceedings will cease to be a compellable witness, and will no longer be forced in case of his guilt to choose between the alternatives of incriminating himself, or what is tantamount to itdeclining to answer, or committing perjury.

Smuggling cases in Courts of Revenue.-Doubts having arisen whether in cases of smuggling where proceedings at law were taken on the revenue side of the Court of Exchequer to recover penalties, the defendant was or was not a competent witness, three Acts were passed with the view of removing such doubts, but without success: see 2 Tay. Evid. p. 884.

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§ 6. A fourth Act-the Crown Suits Act, 1865-after enacting that ss. 2 and 3 of the Evidence Act, 1851, and the Evidence Amendment Act, 1853, should apply to such proceedings, provides that: "any proceeding at law on the revenue side of the Court shall not for the purposes of this Act be deemed a criminal proceeding within the meaning of the said sections and Act, as extended and applied by the present section:" 28 & 29 Vict. c. 104, s. 34; 3 Chitty's Stat., "Crown,' p. 51. A fifth Act-the Customs Consolidation Act, 1876-enacts that where any such proceedings are had, "the defendant shall be competent and compellable to give evidence:" 39 & 40 Vict. c. 36, s. 259. Whether the latter section has now been by implication repealed by s. 6 (1) of the present Act, which is made to "apply to all criminal proceedings,' seems to depend on whether such proceedings against smuggling are or are not "criminal proceedings within the meaning of the present Act. In other words, the present section seems to raise once more doubts precisely similar to those which the five successive Acts referred to were passed to remove. The jurisdiction of the old Court of Exchequer as a court of revenue as well as a common law court is now exercised by the Queen's Bench Division of the High Court: see the Judicature Act, 1873, ss. 16, 32, and Order of Council of 16th December, 1880, which came into force on 26th February, 1881.

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2 The Evidence Act, 1877.-This Act, which remains unaffected by the present Act, consists of a single section, which is as follows:

"On the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any

such defendant, shall be admissible witnesses § 6. and compellable to give evidence."

3 Courts Martial in Navy.-By the Naval Discipline Act, s. 65, power is given to the Admiralty to frame General Orders for regulating the procedure and practice of Courts Martial under that Act, subject to the approval of the Queen in Council.

After the wreck or capture of a ship, where all, or all the surviving, officers and crew are tried together before one Court Martial, it is made lawful by s. 92 of the same Act "to call upon all or any of them when upon their trial to give evidence on oath or affirmation before the Court touching any of the matters then under inquiry, but no officer or seaman or other person shall be obliged to give any evidence which may tend to criminate himself."

That section will remain in full force unless and until General Orders are made under s. 65 applying the Criminal Evidence Act, 1898, to Courts Martial under the Naval Discipline Act; if and when such General Orders are made, the above provisions of s. 92 will be superseded by the provisions of this Act. Up to the present time (8th October, 1898) no such General Orders have been made applying this Act to Naval Courts Martial.

4 Courts Martial in Army.-By the Army Act, s. 70, power is given to the Queen to make Rules of procedure, to be signified under the hand of a Principal Secretary of State, which are to be judicially noticed.

Section 156 (1) of the same Act makes it an offence to buy, exchange, take in pawn, detain, or receive from a soldier, or to solicit or entice a soldier to sell, exchange, pawn, or give away, or to assist or act for a soldier in selling, exchanging, pawning or making away with, arms, ammunition, equipments, or regimental necessaries, clothing or provisions; and s. 156 (3) enacts that: "A person charged with an

§ 6.




ment, and short title.

offence against this section, and the wife or husband of such person, may, if he or she think fit, be sworn and examined as an ordinary witness in the case.'

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That section will remain in full force unless and until Rules are made under s. 70 applying the Criminal Evidence Act, 1898, to Courts Martial under the Army Act; if and when such Rules are made, the above provision of s. 156 (3) will be superseded by the provisions of this Act.

Up to the present time (8th October, 1898) no such Rules have been made applying this Act to Military Courts Martial.

7.-(1.) This Act shall not extend to Ireland.

(2.) This Act shall come into operation on the expiration of two months from the passing thereof.1

(3.) This Act may be cited as the Criminal Evidence Act, 1898.

1 Commencement of Act.-This Act, passed on the 12th August, will therefore come into operation on the 12th October, 1898.

It is supposed by some persons that under the above provision this Act will not come into operation until the 13th October. But in accordance with the maxim that the law takes no notice of the fractions of a day, an Act of Parliament is deemed to have passed on the first moment of the day on which the Royal Assent is given: Tomlinson v. Bullock (1879), 4 Q. B. D. 230; 48 L. J. M. C. 95; 40 L. T. 459; cf. Migotti v. Colvill (1879), 4 C. P. D. 233; 48 L. J. Č. P. 695; 40 L. T. 747; 14 Cox, C. C. 305. Accordingly, in the case of this Act, the two months (ie., calendar months: Interpretation Act, 1889— 52 & 53 Vict. c. 63-s. 3) expire on the last moment of the 11th October, and the Act comes into opera

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