Criminal Procedure Act 1865

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The Criminal Procedure Act 1865[1]
Long title An Act for amending the Law of Evidence and Practice on Criminal Trials.
Citation 28 & 29 Vict c 18
Dates
Royal assent 9 May 1865
Text of statute as originally enacted
Revised text of statute as amended

The Criminal Procedure Act 1865 (28 & 29 Vict c 18), commonly known as Denman's Act,[2] is an Act of the Parliament of the United Kingdom.

This Act was retained for the Republic of Ireland by section 2(2)(a) of, and Part 4 of Schedule 1 to, the Statute Law Revision Act 2007.

In the Republic of Ireland, section 16 of the Criminal Justice Act 2006 is without prejudice to sections 3 to 6 of this Act.[3]

Preamble[edit]

The preamble was repealed by the Statute Law Revision Act 1893.

Section 1 - Provisions of sect. 2. of this Act to apply to trials commenced on or after July 1, 1865[edit]

In England and Wales and Northern Ireland, this section now reads:

The provisions of section two of this Act shall apply to every trial.. . ; and the provisions of sections from three to eight, inclusive, of this Act shall apply to all courts of judicature, as well criminal as all others, and to all persons having, by law or by consent of parties, authority to hear, receive, and examine evidence.

The words omitted were repealed for England and Wales by section 10(2) of, and Part III of Schedule 3 to, the Criminal Law Act 1967 and for Northern Ireland by Part II of Schedule 2 to the Criminal Law Act (Northern Ireland) 1967.

The words "for felony or misdemeanour" were repealed for the Republic of Ireland by section 16 of, and the Third Schedule to, the Criminal Law Act 1997.

Section 2 - Summing up of evidence in cases of felony and misdemeanor[edit]

In England and Wales and Northern Ireland, this section now reads:

If any prisoner or prisoners, defendant or defendants, shall be defended by counsel, but not otherwise, it shall be the duty of the presiding judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence; and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants; and upon every trial.. ., whether the prisoners or defendants, or any of them, shall be defended by counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respectively; and after the conclusion of such opening or of all such openings, if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded to sum up the evidence respectively; and the right of reply, and practice and course of proceedings, save as hereby altered, shall be as at present.

The words omitted were repealed for England and Wales by section 10(2) of, and Part III of Schedule 3 to, the Criminal Law Act 1967 and for Northern Ireland by Part II of Schedule 2 to the Criminal Law Act (Northern Ireland) 1967.

The words "for felony or misdemeanour" were repealed for the Republic of Ireland by section 16 of, and the Third Schedule to, the Criminal Law Act 1997.

This section is modified by section 3 of the Criminal Evidence Act 1898, section 42(1) of the Criminal Justice Act 1948 and section 1(1) of the Criminal Procedure (Right of Reply) Act 1964.

In the Republic of Ireland, this section is restricted by section 24(1) of the Criminal Justice Act 1984.

"Counsel"

This expression is defined by section 9.

Section 3 - How far witness may be discredited by the party producing[edit]

In England and Wales and Northern Ireland, this section reads:

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

"Adverse"

See Greenough v Eccles (1859) 5 CB (NS) 786, (1859) 33 LT (OS) 19, (1859) 5 Jur (NS) 766 (decided under section 22 of the Common Law Procedure Act 1854).

"Inconsistent"

See Jackson v Thomason (1861) 31 LJQB 11

Section 4 - As to proof of contradictory statements of adverse witness[edit]

In England and Wales and Northern Ireland, this section reads:

If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.[4]

Sections 4 and 5 re-enact sections 23 and 24 of the Common Law Procedure Act 1854.[2]

Section 5 - Cross-examinations as to previous statements in writing[edit]

In England and Wales and Northern Ireland, this section reads:

A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit.[5]

This section is exactly reproduced in the Evidence Ordinance (Laws of Hong Kong c 8)[6]

Section 7 - As to proof by attesting witnesses[edit]

This section reads:

It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite, and such instrument may be proved as if there had been no attesting witness thereto.[7]

Section 8 - As to comparison of disputed writing[edit]

This section reads:

Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

Section 9 - "Counsel"[edit]

This section reads:

The word "counsel" in this Act shall be construed to apply to attorneys in all cases where attorneys are allowed by law or by the practice of any court to appear as advocates.

References to attorneys

In England and Wales, these must be construed as references to solicitors of the Senior Courts.[8]

In Northern Ireland, these must be construed as references to solicitors of the Court of Judicature.[9]

Section 10 - Not to apply to Scotland[edit]

This section provides that the Act does not apply to Scotland.

See also[edit]

References[edit]

  1. ^ The citation of this Act by this short title was authorised by section 1 of, and the first schedule to, the Short Titles Act 1896.
  2. ^ a b Archbold Criminal Pleading, Evidence and Practice. 1999. Paragraph 8-124 at page 1035
  3. ^ The Criminal Justice Act 2006, section 16(6)
  4. ^ "Criminal Procedure Act 1865". legislation.gov.uk. Retrieved 2014-02-21. 
  5. ^ "Criminal Procedure Act 1865". legislation.gov.uk. Retrieved 2014-02-21. 
  6. ^ Lui Mei Lin v R [1989] 1 AC 288, [1989] 2 WLR 175, [1989] 1 All ER 359, 88 Cr App R 296, [1989] Crim LR 364, PC, per Lord Roskill
  7. ^ "Criminal Procedure Act 1865". legislation.gov.uk. Retrieved 2014-02-21. 
  8. ^ The Solicitors Act 1974, section 89(6) as read with section 87(1)
  9. ^ The Judicature (Northern Ireland) Act 1978, section 105(2)

External links[edit]