REFORM OF THE CRIMINAL LAW

WHEN we look back on the early days of the nineteenth century we can smile, perhaps, a t some of the quaint things in the legal system of the times-deodand, the formalities of pleading and the assumption that the defendant could not be trusted to speak the truth in his own case.Let us consider, however, some aspects of the criminal law in 1951 to see whether it has now become : '. . . the embodiment Of everything that's excellent ' or whether lawyers in 2050 will find as much a t which to smile in the system of 1951 as we do in that of 1820.Considering first the law as to the giving of evidence for the prosecution in criminal cases by spouses against one another, we see a t once some anomalies.A wife may testify against her husband if he is charged with smacking some strange child aged sixteen years and eleven months, but not if he is accused of murdering their own son aged seventeen exactly (Children and Young Persons Act, 1988, s. 15).Again, she may give evidence against him if he has wilfully delayed a National Insurance Inspector inquiring into the payment of contributions or if he has failed to pay his contributions (National Insurance Act, 1940, s. 53), but she must not testify against him if he has half-killed a police officer or swindled the Government or her own father of thousands of pounds.Even if her husband is jointly charged with others and her evidence relates only to one of the other defendants, she is still incompetent (R. v. Mount and Metcalfe (1984) 24 Cr.App.R. 185) and (if called for the Crown) must stand mutenot of malice, not by visitation of God, but by virtue of the wisdom of our legislature.It is submitted that spouses should be competent witnesses against one another either in all or in no criniinal proceedings, so that order may be given to this branch of the law of evidence.(Of course, no change is suggested in the law as to their compellability in cases of violence to one another or larceny of each other's goods.)It may also appear strange what a difference in punishment there can be if certain offences are committed at 8.59 p.m. or a t 9.1 p.m.For example, breaking into a dwelling-house after 9 p.m. with intent to commit a felony is punishable with life imprisonment, but if a feloniously minded clock-watcher does it before 9 p.m. he may escape with seven years.Again, entering a dwelling-house (without breaking) in the'night can bring a punishment of seven years in gaol if done with intent to commit a felony (Larceny Act, 1916,