Report No. 69

Chapter 33

Comparison of Signature by the Court

Section 73

I. Introductory

33.1. Introductory.-

So far, we have been concerned with provisions dealing with the proof of documents through the medium of witnesses. Under certain provisions of law, however, the satisfaction of the court is established more directly, and material for the satisfaction of the court originates not in evidence given before the court, but in some other manner. Section 73 furnishes an example of such provision. It reads-

"73. In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger impressions."

II. Theoretical Aspects

33.2. Theoretical aspects of section 73.-

This section is not only of practical importance, but also has considerable theoretical appeal. In the first place, it may be stated that, in the absence of such a provision as is contained in the second paragraph of the section, a question could have been raised whether the court has power (without a specific statutory provision) to compel a person to give a specimen of his writing. Of course, the word "compel" is not used in the section, which employs the expression "direct". However, direction from the Court amounts to compulsion, obviously in this context. If a person refuses to give a specimen of his finger prints, the question may arise whether the forcible taking of his finger-prints is justifiabl.- a question which still remains to be decided1 at common law.

1. See Note in (1933) 176 Law Times 25.

33.3. Hence, without clear statutory authority, an order for finger prints, even if it does not result in a person's furnishing evidence "against himself", creates difficulties, because its enforcement would constitute an infringement of personal liberty.1-2

1. Cross on Evidence, (1974), p. 46.

2. S. v. McC, 1972 AC 24 (43) (per Lord Reid), (see infra).

33.4. Lord Reid stated in S. v. McC, 1972 AC 24 (43).-

"I must now examine the present legal position with regard to blood tests. There is no doubt that a person of full age and capacity cannot be ordered to undergo a blood test against his will. In my view, the reason is not that he ought not to be required to furnish evidence which may tell against him. By discovery of documents and in other ways the law often does this. The real reason is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups detat but by gradual erosion; and often it is the first step that counts. So it would be unwise to make even minor concessions."

33.5. Common law right.-

Such a question could arise even apart from the constitutional prohibition in Article 20(3) of the constitution (privilege against self-incrimination). That prohibition is relevant only for the accused and only for criminal cases. Freedom from interference with the person is a common law right, available to every person. It may be noted that the case-law relating to Article 20(3) of the Constitution, in the context of provisions for giving finger prints,1 while holding that Article 20 does not apply, relies mainly on the fact that the person concerned is not "a witness against himself," because he is not conveying or communicating any information or material. Those cases assume that the accused under section 73 is being "compelled", but there is no compulsion to be a witness against himself. This aspect is brought out more expressly in the decisions of some of the High Courts relating to section 73 or cognate provisions.

1. State of Bombay v. Kathi Kalu, AIR 1961 SC 1808 (1817): (1962) 3 SCR 10.

33.6. Another aspect of theoretical interest in this section is, as already stated1 the machinery which it creates for the direct satisfaction of the court. Yet another aspect of juristic interest is the clarification made in the first paragraph to the effect that the signature, writing or seal which is used for comparison need not have been produced or proved for any other purpose. To state what is implicit in the scheme of the first paragraph, that document need not be relevant to the facts of the case.

1. Introduction, supra.

33.7. The usefulness of finger prints to the police authorities might be granted; but such usefulness does not, of itself, render it legal. If the general welfare of the community rendered a serious limitation of the personal rights of the citizen necessary, this limitation should be effected by clear and considered legislation. The second paragraph, insofar as it .applies to finger prints, avoids such controversies, to the extent to which the action taken falls within the paragraph.

33.8. Scottish decision.-

A decision of the Justiciary Appeal Court at Edinburgh upon finger print law possesses considerable importance for those concerned with the administration of justice.1 The majority of the Scottish Judges in that case held, as a matter of Scot common law, that an accused person could be compelled to give his finger prints by force by the police. In that case, the finger prints of a man charged with house-breaking had been taken without his consent and without a warrant having been obtained for the purpose.

When these finger-prints were sought to be put in evidence against that man before the Sheriff's Court, an objection was raised that since the finger prints had not been lawfully obtained, they were not competent evidence. The objection was upheld by the Court of the Sheriff, but, on an appeal by the Procurator Fiscal, the Justiciary Appeal Court, by a majority judgment, allowed the appeal.

1. Article in Justice of the Peace, reproduced in (1933) 34 Cr LJ 71.

33.9. In the majority of four judges, again, the reasons differed. Lord Clyde, Lord Justice General, attached weight to the letter of the Secretary of state for Scotland in 1904, recommending the taking of finger impressions by the police "in the case of untried prisoners detained at police stations and lock-ups." Three of the other Judges in the majority thought that the forcible process was justified in the public interest and did not constitute a violation of the common law rights of the subject, out of these three, again, one thought that the requirement of the warrant prior to force being used was not for protecting the prisoner, but to confer enabling power on the police as regards prison authority.

33.10. Dissenting from the majority judgment, Lord Hunter said that the practice in question was not countenanced in England,1 and that it was unfortunate that the law of Scotland should be declared different from that of England upon such a matter. He regarded the practice of having finger prints by force as an assault upon the person of a prisoner, fundamentally objectionable and contrary to the common law doctrine of personal liberty. It was, he said, for the legislature to curtail such right of personal liberty and not for the court. The forcible taking of finger prints does not appear to have been the subject of reported English judicial decisions.

1. Emphasis supplied.

33.11. Blood tests.-

The principle that physical compulsion of the nature in question is illegal may be illustrated with reference to blood tests. Evidence of blood tests can be of the greatest value on issues concerning the paternity of a child, and, in a number of cases1 in which the adults consented to the tests, such evidence was acted on. In England, this aspect of blood test evidence is now controlled by the Family Law Reform Act, 1969. In the absence of such statutory authority, compulsory taking of blood tests would be illegal.

1. H. v. H., (H by his guardian intervening), (1966) 1 All ER 356; B. v. A.G., (B intervening), (1966) 2 All ER 145.

33.12. Evidentiary value of finger prints.-

It is not proposed here to discuss the evidentiary value of finger print evidence. It is generally accepted in the courts today as satisfactory and, indeed, as very strong evidence1unless, of course, there are allegations against genuineness. It may, however, be said in passing, that it appears to be accepted mainly on expert opinion. This expert opinion, involving extensive and often intricate calculations, is rather beyond the ability of the average man to test.

1. See (a) Rex v. Castleton, (1909) 3 Cr App R 74. (b) Rex v. Bacon, (1915) 11 Cr App R 90.

III. Object of Comparison

33.13. Analysis of the section.-

In the opening words of section 73, the object of the comparison in question is stated. The object is to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made. With this object, the section provides that any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved. The section makes it clear that this procedure may be resorted to, even though the signature, writing or seal has not been produced or proved for any other purpose. The last mentioned portion appears to be needed to make it clear that the fact that the other writing contained in the signature, writing or seal contains matter otherwise irrelevant, will not come in the way of the procedure.

33.14. There may be cases where no such writing (that is to say, a writing admitted or proved to the satisfaction of the Court to have been written by the person concerned) is available, and the second paragraph of the section deals with this situation, by providing that the Court may direct any person present in Court to write words or figures for the purpose of enabling the Court to compare the words or figures so written with the words or figures alleged to have been written by such person. The third paragraph is explanatory. We shall now deal with the points arising under each paragraph.