Report No. 69
VIII. The Accused
2.44. Judicial questioning of the accused in England.-
The history of judicial questioning of the accused in England is of interest. By statutes1 enacted in the middle of the sixteenth century (1554-1555), justices of the peace, before committing to goal or admitting to bail a person charged with a felony, were required to question him and to record their examination in writing. The Act passed in 1554 required the justice of the peace to conduct the examination only if the accused was applying for bail. Its purpose seems to have been to prevent collusion between criminals and justices, who were allegedly granting bail too easily and sometimes as the result of bribes.2
1. (1554) 1 & 2 Phil&M, C. 13, section 4; (1555) 2 & 3 Phil&M, C. 10, section 2.
2. (a) Plucknett A Concise History of the Common Law, (1956), p. 432;
(b) Stephen History of Criminal Law, Vol. 1, pp. 237, 238.
2.45. The Act passed in 1555 extended the requirement for a judicial examination to those persons who were committed to jail. It was apparently passed because the examination of the accused proved to be a useful proceeding for all cases.1 It has been stated in one study-2
"The office of Justice of the Peace goes back over six centuries-to the statute 1 Edw. 3, Stat. 2, C. 16, passed in the year 1327, which provided that 'for the better keeping and maintenance of the peace, the king will that in every country good men and lawful, which be in the country, shall be assigned to keep the peace'. At first the duties of a justice were, generally speaking, very much like those of a constable3-to arrest suspects and to see that they were held in custody or to bail until they could take their trial. Various important administrative functions, however, devolved upon him, and these necessitated regular meetings with his colleagues. These meetings took place in session's four times a year,-the origin, no doubt, of the courts of quarter session as we know them today".
1. Holdsworth History of the English Law, (3rd Edn., 1945), Vol. 4, p. 529.
2. J.P. Eddy Justices of the Peace, (1949) 65 LQR 51 (52).
3. Emphasis supplied.
2.46. Gradually, the justices were empowered to try minor offences-such as, drunkenness, swearing and vagrancy-'out of sessions'. Side by Side with this work they held preliminary examinations in relation to major offences. Their duty was to examine accused persons about their alleged offences in much the same way as is done in France and other countries by a juged'instruction.
They also examined the witnesses, but not in the presence of the accused, who were not permitted to know the case which was to be alleged against them on their trial. Such was the effect of a statute passed in 1555 in the reign of Philip and Mary-2 & 3 Ph.& M., c. 10 (an Act to take the examination of prisoners suspected of manslaughter or felony)."
These depositions were taken in private. Then, on August 14, 1848, was passed the Indictable Offences Act which, as the Lord Chief Justice of England, Lord Goddard, has, said 'effected a complete revolution in the position of justices of the peace in regard to indictable offences'.
2.47. The earlier statutes contemplated an inquisitorial examination of the accused rather than a judicial inquiry into the strength of the case of the prosecution against the accused1. This examination was conducted without putting the accused upon oath2. By these statutes the justices performed the functions of police, detective, prosecutor, and chief complaining witness at trial, as well as examining magistrate. Following the interrogation, the justice transmitted his record of the evidence to the trial judge, and the compulsory examination of the accused was read to the jury. Stephen noted3:
"I do not think any part of the old procedure operated more harshly upon prisoners than the summary and secret way in which justices of the peace, acting frequently the part of detective officers, took their examinations and committed them for trial."
This practice of questioning the accused, prior to trial fell into gradual disuse during the eighteenth century, and, by the beginning of the nineteenth, the practice had become limited to the recording of any voluntary statements that the accused wished to make. The accused was being advised that such statements would be used against him at the trial4. By statute enacted in 18485, to which we have already referred6 the change from inquisitorial examination to preliminary inquiry was completed; the accused could be asked no questions; he was invited to make a statement if he wished and was cautioned that it would be taken down and might be given in evidence against him; the witnesses were examined in the accused's presence and could be cross-examined by him or his counsel.
1. (a) Holdsworth History of English Law, (1945), Vol. 4, p. 529;
(b) History of Criminal Law, Vol. 1, p. 228.
2. Stephen History of Criminal Law, Vol. 1, p. 441.
3. For description of the justices' functions see Stephen History of Criminal Law, Vol. 1, pp. 221, 225, 228.
4. See R. v. Green, (1832) 172 ER 990, for a description of the appropriate caution.
5. Jorwis's Act, (1848) 11 & 12 Vict., C. 42.
6. See supra.
2.48. Case of Socrates.-
In his work on "Historical Trials",1 in the Chapter on Socrates, Sir John Mcdonnell, Quain Professor of comparative law, University College, London, has picturesquely described what would have been the fate of Socrates if he would have been in modern Europe. He points out that instead of secluded and uninterrupted colloquies with his philosophic friends until his painless end, Socrates would have been cut off from his disciples by the "Inquisition", and delivered over, shattered and crushed in body, to an excruciating death. According to Sir John Mcdonnell, "In Tudor or Stuart reigns he would have been browbeaten by the law-officers prosecuting, scolded by the presiding judge as a pestilent nuisance in the State, and his last words might have been cut short or drowned in the roll of drums beneath the scaffold."
1. See Book Review of McDonnell Historical Trials by Zecharich Chafee Jr. in (1927-1928) 41 Harvard Law Review 410 (412).