LETTERS TO THE EDITOR.
[Letters of the length of one of our leading paragraphs are often more read, and therefore more effective, than those which fill treble the space.]
THE BILLING CASE: PRIVILEGE OF A WITNESS. (To THE EDITOR OP THE " SPECIATOR."] SIR,—The smoke-screen of scandal whch enveloped R. a. Billing has concealed the one vulnerable point in the legal armour then in action. What calm people want to know is, can the la-sr do nothing to protect a third person—i.e., a non-party— from the sworn defamation (or even mistake) of a witness? there no limit to the licence of a witness? The answer is—as so often in our law—theoretically, Yee, there is a limit; practically, No, not much. But the matter has not escaped the lawyers. In fact, the point was discussed as early as 1591 a propos of a case in the Star Chamber, and is thus disposed of by Coke (about 1600) :--
" For any matter contained in the bill which was examinable in the court no action lay, though it were false, it being in a course of justice. But for the words which were not examinable in the court, the action lay, because that could not be in a course of justice,"
No one will gainsay the fundamental principle here implied—that at all costs the witness in a case must be free to speak what he knows about that case, without any fear whatever of consequences. Now let us see from the " leading " case how after three centuries and a quarter the great Sage's rule works out. I try to express myself in popular language.
Some time about 1876, in a disputed will case, an expert in writing swore that the signature to the will was a forgery, but he failed to convince the jury, who found that it was not. The judge made some " strong " remarks on his presumption. Soon after- wards, a man, charged with forgery, at a police court, called this expert as a witness. The other side naturally confronted him with his recent experience. He admitted it, and went on to say, without any further question being asked him : "1 believe that will to be a rank forgery, and I shall believe so to the day of my death." For this the supposed forger sued him, but after a trial and two appea]s, was unsuccessful—on the ground that this volunteered addition was relevant to the police court case, for while it was proper for the prosecution to attack his professional skill, it was equally proper for him to defend it. But—and this but is what matters for the moment—said the judges, there is a limit to this privilege:— " If a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause Sr matter of inquiry in order to assail the character of another, as if he were asked: 'Were you at York on a certain day?' and be were to answer : 'Yes, and A. B. picked my pocket there,' it cer- tainly might well be said in such a case that the statement was altogether outside the character of witness and not within the privilege." "Suppose while the witness is in the box a man were to some in at the door, and the witness were to exclaim, 'That man picked my pocket,' I can hardly think that would be 'privileged.' If he did voluntarily make a scandalous attack while giving evi- dence, he would be guilty of a gross contempt of court and might be committed to prison by the presiding judge, or if he were before an inferior tribunal and he persevered in his scandalous statements, he might be liable to an indictment for obstructing the course of justice."
re that, se usual, the law is armed with a panoply of prothibition and punishment; only, long atrophy—for no such penalty has ever been exacted—has disabled this arm. It is other-wise in some of the United States, which inherited the general rule, but have enforced the exception by allowing the victim to succeed in an action against the slanderer-witness.
Is there a remedy? Remember, even an innocent mistake by a person on oath about some one else may work serious damage— even if contradicted the next day.
The following seem to be the alternatives : (1) Let the aggrieved rerson bring his action. This takes time, and the essence of Ike remedy sought must be promptness. Moreover, he would have to prove that the peccant words were so utterly irrelevant to the speaker's testimony as to be obviously malicious—" a big order." In the instance quoted above this method entirely failed. In 1591 it succeeded. Tanfield said in that case that in 1560 it had been ruled
where the witness goeth beyond the point in issue or question and slandereth a third person, action lieth." (2) Prosecute for perjury. Impossible. This crime can only be committed when the state- ment is material to the issue, in which case we are all agreed that a witness should have unlimited licence of speech lest justice fail in the pending case. It is just because it is irrelevant that we infer that it is spitefully "dragged in." But if it is irrelevant it clearly cannot be perjury. (3) Let the judge in his discretion call the aggrieved person to speak on oath. The judge has the power (probably by law, at any rate in effect) of calling any one whom he wishes to hear. But for the present purpose such evidence without cross-examination would be useless, and with it a new case would be superimposed on the other—which is absurd. Defendant, bay, in the box, swears he saw John Nokes in Liver- pool in June, 1917; the judge gives J. N. leave to swear that he was not. Is it fair to the man on his trial to leave it there? And if not, where will you draw the line? (4) Adopt the suggestion of the judges in 1876, and (a) commit for contempt of Court or fine (11) with the more recent safeguard of an appeal to the Court of Criminal Appeal, for which a very short Act indeed would be required. In certain cases even justices of the peace decide on a party's "good faith" subject to his appeal. No judge would dream of exercising this power except "in a proper case"; i.e., where a witness persisted in poisonous irrelevances despite the efforts of his counsel (if any) or the caution of the judge. When a man is convicted his (mis)conduct of his case often exaggerates the penalty, and if the offender is a mere wit- mess the judge might dispose of the subsidiary charge summarily when the main trial was at an end. For such wanton sniping from legal entrenchments summary redress is demanded. Herein lies our only reproduction of a bad element in French procedure and it oughts to be stopped.—I am, Sir, tie., Temple. HERMAN COROT.
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