The Passing of Empire

by H. Fielding

Now by Indian Law no confession to the police may be offered in evidence. The reason of this is that the police, in their keenness to secure a conviction, may extort a false confession by torture, and there have been in fact enough of such cases to cause doubt and to prevent the police being allowed to receive a confession. Therefore if the offender wishes to confess he is taken now to a magistrate, there his confession is recorded. Then he is sent back to police custody. He is visited by his relatives, a pleader is engaged for him. His folly in confessing is pointed out to him and he withdraws the confession, alleging that he had been tortured to confess. His confession is not only negatived, but a slur is cast on the police which is hard to remove. Their case and evidence appear tainted, and the accused often secures an acquittal though the Magistrate knows that the confession was true.

All this is very common both in Burma and India, and it is disastrous to allow and to encourage such things, as by our procedure we do encourage them. There should be a complete change.

When a man is arrested some such procedure should be adopted as this:

He should be told by the police that he is being taken direct to the magistrate who will try the case, who will hear anything accused has to say. He should be warned to say nothing to the police. Then he should be taken direct to the magistrate, who should explain to him fully what he is accused of and ask him what he has to say.

Whatever his statement be, the magistrate should tell him that he will himself at once investigate it and summon witnesses; meanwhile the accused should be remitted to custody, but not to police custody. That is where all the trouble comes in and all opportunities for making charges against the police. If there be no gaol there should be a lock-up in charge of Indian police who are under the magistrate and are not concerned in the guilt or otherwise of the accused. The investigating police should only have access to accused by permission of the magistrate. He should, however, be allowed to see his friends and a pleader if he wish. But I am sure of this, that the first offender would rather trust the magistrate, if he were a personality who he knew would help him, than any pleader.

Further, if a man confess truly, his punishment should be greatly reduced. I do not say this should be done because he gives less trouble, but because the frame of mind induced by a free and full confession is a sounder frame of mind on which to begin reformation than are defiance and negation, which are now inculcated by our system.

The trial need not wait till the case is complete. The magistrate could summon the police witnesses at once, and he should examine them himself, allowing only the police to suggest questions if they wish. Similarly, with the defence witnesses, they could be examined as they came in and should be examined by the magistrate himself. No one but the magistrate should be allowed to speak directly to any party to the case.

All cross-examination should be absolutely prohibited. If either side have matters they wish brought out of a witness, they should tell the magistrate and he would ask such questions as he thought fit. There is no such curse now to justice as cross-examination by a clever pleader or barrister. It is a sort of forensic show-off by the advocate at the cost of the witness, and frequently at the cost of justice. For, naturally, no one cares to be bullied by a licensed bully, and witnesses consequently will not come to Court if they can help it. When in Court they are bamboozled and made to contradict themselves where they have originally spoken the truth.

I have often been told that acute cross-examination by a clever barrister is the greatest safeguard justice can have from false evidence. I don't believe a word of it. A magistrate can by far fewer and simpler questions expose false evidence better than an advocate does, because the magistrate is intent only on his business—to find the truth; the advocate is advertising himself, and trying to destroy truth as well as falsehood.

But if the magistrate did all the questioning I don't believe there would be much false evidence. Witnesses will lie to the opposite side, but not to an understanding Court.