June 04, 2005


[N.B. See Part One for an explanation as to why I am blogging this]


Unlike her continental neighbours, England has rarely employed torture to obtain confessions. The peine forte et dure or ‘pressing to death’ was created in 1275 was practised in England and reached the pinnacle of its use during the reign of Henry IV but this was not to obtain evidence but rather a pre-trial method used to oblige the accused to participate in the first stage of his trial: the pleadings stage . This might be contrasted with the practices of the now infamous Star Chamber , which was neither a court of common law nor of equity but an offshoot of the King’s Council that first emerged in the 13th C though it was not until 1487, that an Act passed by Henry VII made the Chamber a separate judicial body with a panel consisting of the Chancellor, the Treasurer, the Keeper of the privy seal, a Lord temporal and a Lord spiritual and two other justices with a mandate to hear petitions of redress in instances of public disorder, disputes over property rights, public corruption, trade and government administration. The Romano-canonic procedures the chamber adopted were readily abused by the sanguine Tudor and Stuart dynasties who used it to ensure their opponents suffered cruel, ruthless and humiliating financial and corporeal sentences such as, respectively, ear-cropping and fines of thousands of pounds. By the time of Charles I the court had become a byword for abuse of power by the King and his circle who used it to examine cases of sedition – in practice, anyone who dared to oppose royal policies – this was undoubtedly a catalyst for the Civil War especially as the chamber was used as a substitute for Parliament, which the King refused to convoke between 1628 and 1640. The Chamber was abolished by an Act of Parliament of 1641. Though it is technically true, as modern authors such as Barnes and Elton have argued, that most incidences of torture being used to obtain confessions were in cases of treason, outside the Chamber’s jurisdiction but within that of the Privy Council, in practice the Privy Council, composed of Chancellor, the Treasurer, the Lord Privy seal…. was the same establishment . It would be perhaps unfair, though, to draw comparisons between a sinister dearth of inter-governmental department responsibility for statist acts of torture in unseperated juro-executive 17th C. with the recent dicta of Laws LJ, unfortunately siding with the majority of the court, in a Court of Appeal decision of 11th August 2004 who was ‘quite unable to see that any such principle (prohibiting courts from considering evidence obtained by torture in Britain) prohibits the (Home Secretary) from relying… on evidence coming into his hands which has been obtained through torture by agencies of other states… If he has neither procured the torture nor connived at it, he has not offended the constitutional principle.’ The appeal had been brought by lawyers representing ten foreign nationals interned indefinitely without charge or trial under the Anti-Terrorism Crime and Security Act 2001 in Belmarsh and other high-security prisons.


Having discussed institutions and practices having a bearing on proof, it would perhaps be helpful to deal directly with evidence henceforth. The number of rules governing the admission of evidence have steadily multiplied, particularly since the 16th C, though it has always been the case that evidence must be admitted separately and in respect of logic, being juxtapositioned together only thereafter, to determine the decision of the court. I shall approach this subject by dealing with oral and written evidence separately.

Oral evidence, historically decided on by juries, usually took the form of the testimonies of witnesses, though when the jury first emerged in the 11th and 12th Cs jurors were not permitted to hear the testimonies of witnesses. This was because at that time they were themselves witnesses, of character, whose subjectivity might be tainted by hearing other accounts of the accused and remained the case until the jury became a judge of fact. Though witnesses had minimal value in criminal cases since no one could be convicted on the sole grounds of a testimony the maxim testis unus testis nullus – i.e. at least two witnesses must testify – was not applied in England. The maxim was even overlooked with high treason until the case of Reniger v Fogossa (1551) in which it was held that the testimony of a sole person is insufficient in any law – i.e. including the divine law. In the 18th C. Montesquieu reproached laws that imposed the death penalty on the strength of a sole witness statement. But while Montesquieu distrusted witnesses and saw conflicts between the testimonies of witnesses and the defence submissions of the accused as a dilemma this incensed Blackstone who averred that the words of an accused are inferior to those of a witness. Such a conflict, between the words of the accused and that of a sole witness are exemplified by the case of Elizabeth Canning and Mary Squires, which was to become the subject of gossip and firewood for the tabloid press in 18th C London. On New Year’s Day 1753 Canning, an 18-year-old maidservant was abducted in the City by two ruffians. She was carried off in a carriage to a brothel in Enfield, eleven miles out of London. Here, `Mother Wells', the madam of the establishment, tried to force her to become a prostitute. Canning refused. A hideous gypsy staying in the house, Mary Squires, cut off the girl's stays, worth 10 shillings, and Elizabeth was imprisoned in an attic with only a few crusts of bread and a jug of water to live on. On January 29th, after almost a month in captivity, she escaped through a window and walked all the way back to her mother's house in the City. This was at least her story, and she kept to it. Mother Wells and the gypsy were arrested and hauled before an Enfield magistrate. In court the later to be novelist Henry Fielding, who was a then a Middlesex magistrate was asked to interrogate the unaptly named Virtue Hall, a girl from Wells' house who maintained she had never set eyes on Canning. Yet under Fielding's pressure she recanted and supported Elizabeth's story. Squires and Wells were tried at the Old Bailey in 1753. Wells was sentenced to be branded on the thumb for keeping a disorderly house – a punishment carried out forthwith amid a jeering, exultant crowd. Squires, the gypsy, was sentenced to be hanged for stealing Canning's stays. But Sir Crisp Gascoyne, who as Lord Mayor of London was ex officio chief magistrate and sat in on the trial, was apparently dissatisfied with the verdict on the grounds that Squires had an apparently watertight alibi – she was in Dorset at the time. Gascoyne appealed to George II, who granted, first a stay of execution, then a free pardon to the gypsy. Elizabeth Canning was indicted for perjury and imprisoned in Newgate-where Hogarth painted her portrait, and then sentenced to be transported to America for seven years . In 1754 the case was so well-known that it divided the nation . The two opposing factions were known as `Canaanites' (those who supported Canning) and `Egyptians' (the gypsy).

With regard to rules of exclusion, English law has long established that hearsay- the testimony of a third party who does not witness the event himself but hears a course of events narrated by a third person is inadmissible (by contrast it has historically been admissible on the Continent). Traditionally, there have nonetheless been exceptions. Hearsay was permitted in the exception of cases of murder where a statement had been made in articulo mortis and it was certain that the victim had no hope of survival and under the res gestae rule. This translates as "a transaction" and is used to describe a statement which relates to and is closely associated in time and place with a state of affairs or event so that it can be said that they form part of the same transaction. If a statement made by witness A, the victim of an attack, in the presence of witness B, made just after the attack, indicating the identity of the attacker. under the res gestae exception witness B may be able to give admissible evidence of what was said by witness A. The rationale is that there is thought to be less danger of concoction or fabrication of the evidence in circumstances where the events in question are likely to monopolise the thoughts of the witness . Another exclusion is that of legal parties testifying in sua causa – in their own case, established in civil law in 1589 in the Dymoke case, though it has been a principle taken for granted in criminal law since the 15th C. During the 19th C. advocacy as an artificial discipline flourished, and though barristers were precluded from asking leading questions that could be answered only by either a ‘yes’ or ‘no,’ sometimes they were the authors of masterful psychoanalytical strokes of cross examination. In one notable case Frederick Smith, QC, Earl of Birkenhead (1872–1930), cross examining the complainant, a boy who claimed to have been paralysed in his upper limbs by the acts of the defendant, successfully kindled a discussion about sport with the lad and asking whether he enjoyed cricket tricked him into demonstrating to the court how he bowled over arm . Sir Patrick Hastings a celebrated QC and Labour MP listed among the qualities vital to a good barrister a special talent to determine the profitability of a witness, his intelligence or stupidity and the mode of attack to take.

As with oral evidence, until its domaine was restricted to less than 1% of criminal cases and a negligible number of civil cases, it would principally be for the jury to appraise and determine the validity of written evidence. Originally only what the French would term as actes authentiques were admissible – i.e. those that constituted a complete proof of the text contained therein – which usually meant those bearing a seal. Since the coming into force of the Evidence Act 1938, S.1, any statement made by a person in a document establishing a given fact is, on production of the original document, admissible as evidence, provided that oral evidence of the fact would also be admissible and that the maker of the statement had personal knowledge of the proceedings. Some forms of written evidence, however, could not be proven or disproven by a jury and these include most notably those protected by the doctrine of estoppel, a phenomenon that Coke once remarked is ‘excellent and curious.’ Estoppel, an ancient doctrine akin yet different from presumption insofar as it only binds those who are a party to an action and is entirely irrebuttable, is a conclusive admission which cannot be denied by the party it affects, irrebutable written evidence that no other evidence can act as proof to the contrary. Indeed the parties would be rendered silent as though their mouths had been stopped to prevent them from speaking .

Some forms of evidence must be written, conspicuous examples of which include contracts for the sale of land and the will and testament. From the early 13th century until the Court of Probate Act 1857 and the establishment of a specialised civil court, the Principal Probate Registry, which started functioning on 10 July 1858, jurisdiction over wills and testamentary matters was held by the church . Due to illiteracy and the comparative gravity of illness in the absence of modern healthcare, which rendered people too ill to write it was unusual for testators to write their own wills. Tellingly pregnant women, especially if recently widowed, would be likely to ensure they had made a will. It is for these reasons that prior to 1837, when the law was amended, up to a third of wills were spoken (non-cupative) wills. As long as the dying testator had been resident at the place of death for at least 10 days and spoke his last wishes in the presence of three witnesses, the written account of his words were deemed to be legal even though the will was not signed by him. Any land or property disputes were usually conducted in Chancery . In diametric opposition to mandatory written evidence, in some cases the doctrine of judicial notice applies, that is to say that a statutory device will allow a judge to accept as true, and direct the jury to do likewise, certain fundamental facts not subject to serious dispute, so that the parties need not offer proof of these facts. Well known historical examples of judicial notice, which resulted from the copulation of strict rules of evidence and principles of reason include the existence of the Gregorian calendar, which until 1456 had not been proved by evidence as well as the location of the county of Hereford – no one had ever proven that it lies on the border with Wales.

Since the second half of the 19th C medical and forensic evidence have become increasingly more reliable and accurate, and expert witnesses, whether psychiatrists, dentists or ballistics experts now frequently take the stand. For example, in 1903 the Alphonse Bertillon method – a system which had for a long time been used for the identification of suspects by recording the dimensions of certain skeletal body parts was replaced by fingerprinting. DNA can, of course, now provide proof that is practically certain. Moreover, even though the expert may make a mistake and the science may only be a probability these forms of evidence are infinitely surer and safer than their irrational predecessors. In light of Jeremy Bentham’s treatese on judicial proofs, in which he postulated that the object of proof is to determine the truth we can not but ask the question: is the law keeping pace?

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