A.C. 305
LEACH APPELLANT; AND REX RESPONDENT.
[HOUSE OF LORDS.]
1912 Feb. 26.
EARL LOREBURN L.C., EARL OF HALSBURY., LORD MACNAGHTEN., LORD ATKINSON., LORD SHAW OF DUNFERMLINE. and LORD ROBSON.
Sir J. Simon, S.-G., and Rowlatt (with them Mordaunt Snagge), for the respondent. Three questions arise with regard to the wife’s testimony. The first is, Is her testimony admissible at all? That is expressed by saying, Is she competent? The second is, Is she a person who may refuse to give evidence although an admissible witness? If she is, that is expressed by saying she is competent but not compellable. The third is, Assuming that the wife’s evidence is admissible and the wife is not unwilling to give evidence, can she give evidence against the will of her husband? There is no word to express that. That is the question which is dealt with by s. 4 of the Criminal Evidence Act, 1898. Before that Act there were twenty-six statutes in which the wife was made a competent witness. Out of those Acts the Act of 1898 has selected four and has added two others. The Act has picked out certain offences which are catalogued by reference to the enactments creating them. Those offences are selected by way of contrast to the other cases in which the wife has been made a competent but not compellable witness because it was desired by reason of the nature of the scheduled offences that the wife should be compellable. But upon the appellant’s construction, although the Legislature selected some out of the many statutes and left the rest, they are all to stand on the same footing as before. It is said that the Married Women’s Property Act, 1884, was not included in the schedule, but the reason for that is that s. 4 of the Act of 1898 was dealing with offences, and the offences to which the Act of 1884 relates are contained in ss. 12 and 16 of the Married Women’s Property Act, 1882, which are included. It may be that the Act of 1898 adds nothing to the Act of 1884, but the one case in which the wife was already a compellable witness was included because, although it was not necessary, it was thought convenient that all the cases in which the wife was made compellable should be collected in one place. Saying that a witness “may be called” does not imply that the witness may refuse to give evidence. Those words relate to the power of the person calling the witness. If a person may be called the legal consequence is that he must submit to examination. There is no standing rule that a wife if competent is not compellable to give evidence. The Act of 1898 eschews the use of the word “compellable” and that controversy. The words of the earlier statutes are “competent but not compellable,” not “competent and compellable,” and where the word “competent” is used without more the inference is that the witness is compellable. Among the Acts comprised in the schedule to the Act of 1898 is the Prevention of Cruelty to Children Act, 1894. That Act was repealed by the Prevention of Cruelty to Children Act, 1904, and s. 12 of the latter Act provides that the wife of a person charged with any offence under that Act shall be competent but not compellable to give evidence. That provision was unnecessary except on the assumption that the Act of 1898 rendered the wife compellable. That again is altered by the Children Act, 1908, which makes the Criminal Evidence Act, 1898, applicable to Part II. of the Act (which deals with cruelty to children) as if it were substituted for the reference to the Prevention of Cruelty to Children Act, 1894.