The Times - Thursday, May 30, 1895

EVIDENCE OF ACCOMPLICES

TO THE EDITOR OP THE TIMES. Sir,--A reported ruling of Mr. Justice Wills in the case of "The Queen against Wilde" has given occasion for so much surprise and comment among lawyers that I would ask your permission to draw attention to it before it can take its place as a piece of unquestioned law.

The ruling was this:--Evidence had been given by a certain Shelley, and the learned Judge held him to be an accomplice of Wilde; held further that his evidence was not corroborated, and thereupon declined to allow the charge to which Shelley's evidence related to be considered by the jury.

Now it is gravely questioned whether the learned Judge had the right to withdraw this charge for such a reason. Certainly I believe this is the first time that such a course has been taken.

Hitherto it has been the custom for Judges to act in accordance with the rule as laid down by Chief Justice Jervis in "Reg. v. Stubbs" (L.J. 25, M.C., p. 16) in the following words:--

"It is not a rule of law that accomplices must be confirmed in order to render a conviction valid, and it is the duty of the Judge to tell the jury that they may act on the unconfirmed testimony of an accomplice; but it is usual in practice for the Judge to advise the jury not to convict on such testimony alone; and juries generally attend to the Judge's direction, and require confirmation. But it is only a rule of practice."

In this decision Baron Parke and Justices Wightman, Cresswell, and Willes entirely concurred; and so lately as June of last year the law was thus laid down by Justices Cave and Collins in the well-known case of Meunier (L.R., 2 Q.B.):--

"It is not the law that a prisoner must necessarily be acquitted in the absence of corroborative evidence, for the evidence must be laid before the jury in each case. No doubt it is the practice to warn the jury that they ought not to convict unless they think that the evidence of the accomplice is corroborated; but I know of no power to withdraw the case from the jury for want of corroborative evidence, and I know of no power to Bet aside a verdict cf guilty on that ground."

The gravity of the innovation which Mr. Justice Wills seems to have introduced at once appears if we consider how, after the case for the prosecution is closed, it is still possible for an accomplice, hitherto uncorroborated, to be fully confirmed by evidence called on behalf of the prisoner. He may even be corroborated by evidence given by the accused himself in those cases where the prisoner is admissible as a witness; and, indeed, this is very likely to occur in many cases, since the prisoner is not entitled to refuse to answer a question on the ground that it tends to convict him of the crime charged.

In such a case, if the charge be withdrawn from the jury at the close of the case for the prosecution--as happened in Wilde's case to the charge supported by Shelley's evidence--then, whatever corroboration may afterwards be obtained from the evidence of the prisoner or his witnesses, the accused must be acquitted. But this fiasco could not occur were Judges to continue to act on the rule laid down in the cases I have cited, and until now, I believe, invariably observed.

Your obedient servant,
CHARLES DARLING.
The Temple, May 28.