Allen, Christopher John Wallace; (1994) Non-Benthamite influences on the English law of evidence: 1828-1898. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

The thesis investigates developments in English evidence law during this period and concludes that it is necessary to revise the traditional view, presented for example by Holdsworth, that nineteenth-century developments in evidence law were largely a response to Bentham's critique. This view exaggerated Bentham's role in the statutory reforms and ignored common law developments. An examination of contemporary debates in Parliament, as well as in pamphlets, journals and newspapers, shows that reformers had widely different concerns from those expressed in Bentham's published and unpublished writings. While Bentham had wanted to extend competency as part of a reform of adjective law aimed at abolishing the "technical system" of procedure which supported the "sinister interests" of Church and State, the statutory reforms were achieved for pragmatic reasons that had nothing to do with any radical programme. Success depended on convincing enough lawyers and politicians that increased social stability made it safe to change, and that proposed reforms involved no threat to the relatively new balance of power in criminal trials between judge, counsel and the accused. A case study of selected topics shows that common law developments in evidence took place on lines very different from those proposed by Bentham. Instead of a system of free proof, with guidelines rather than judge-made law, there developed a judge-made, rule-based system which excluded whole classes of evidence on the basis of supposed lack of weight. What emerges is a more complex story in which evidence law no longer appears free-standing, capable of being influenced by the work of a great jurisprudent but invulnerable to social pressures. Instead, we see the subject as itself a feature of society, shaped by social pressures throughout its development.

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