Inception of Cases will depend on the
nature of the case.
Food and Drugs Acts. The purchase is usually made
by an Inspector or some one acting on his behalf. He
divides the sample into three parts, and forwards one
portion to the public analyst, gives the second to the
vendor, and reserves the third portion for further
analysis by the Government authorities if necessary.
The public analyst's report is submitted to the local
sanitary authority, usually the sanitary committee of
the local council. If the report is unfavourable, the
sanitary authority may decide to prosecute. If so, the
materials of the case are handed to the solicitor.
Note. In many cases the Inspector himself conducts
the prosecution. Then the subsequent considerations
for solicitor and counsel also apply to him.
More important criminal matters usually come under
the cognisance of the police, and through them to the
prosecuting solicitor.
Civil matters. The person aggrieved by what he
considers a wrong inflicted on him by some other
person will communicate the facts of same to his
solicitor.
The person against whom the attack is made in any of
the above instances will, in matters of any importance,
also consult a solicitor.
In one or other of these ways all such matters
ultimately reach the solicitor.
Proceedings under Food and Drugs Acts.
In consequence of their special nature, it will be well
to deal with these separately. Thus, for example, in
such proceedings analysts' certificates are themselves
received and admitted as evidence.
Division of Samples. There have been a number
of High Court decisions on this subject. The following
are some of the more important :
Each article purchased must be divided into
three parts. In Mason v. Cowdary, 1900, 2, Q.B., 419,
an inspector bought six small bottles of camphorated
oil, and divided them into three lots of two bottles
each. On appeal it was Held that " Where a purchase
is made of several articles of food or drugs at the
same time for the purpose of analyis, each article
purchased must be divided into three parts, and other-
wise dealt with as required by S. 14 of the Sale of
Food and Drugs Act, 1875. Where a purchase is
made of six bottles of the same article of food or
drug, each bottle is, for the purposes of the Act, a
separate article, and it is not therefore a sufficient
compliance with the requirements of S. 14 for the
purchaser to divide them into three lots of two bottles
each without opening any of the bottles, and to hand
one lot to the analyst, one to the seller, and to retain
one for himself."
The contents of small packages may be mixed
before division. Thus in Smith v. Savage, 1905, 2,
K.B., 88, a grocer was asked if he sold cream of tartar,
and in reply produced a box containing penny packets
labelled " cream of tartar." The purchaser was sup-
plied with four packets from the box, all of which
were similar in size, outward appearance, and label,
and paid fourpence for them ; he then emptied the
contents of the four packets into one heap, and
divided the whole quantity into three parts, sealed
them up, and dealt with them in the usual manner.
It was Held that each packet was not a separate
article for the purposes of the Act, and that the mode
in which the contents of the packets were dealt with
by the purchaser was a sufficient compliance with the
requirements of S. 14 of the Act.
In the course of his judgment ALVERSTONE, C.J., said
"Here the appellant asked for cream of tartar,
which, as he saw, was put up in penny packets for
the purpose of measurement ; he said that he would
take four penny packets, and I cannot say that,
because four packets of the same article similarly
labelled were bought at the same time as cream of
tartar, and then mixed together and divided for the
purposes of analysis, the mixing of them together was
a good objection to the proceedings subsequently
taken upon the analyst's certificate. The case of
Mason v. Cowdary was cited to us as an authority in
favour of the respondent, but that decision is clearly
distinguishable, as the facts were by no means the
same as those in the present case."
The three portions must be sufficiently
large to admit of a proper analysis being" made.
In Lowery v. Hallard, 1905, 1 K.B., 398, it was Held
that where an article of food is purchased for the
purpose of analysis under S. 14 of the Sale of Food
and Drugs Act, 1875, each of the three portions into
which the article is required by that section to be
divided, must be sufficient to admit of a proper
analysis being made of that part. The facts of the
case are made sufficiently clear by the following
excerpts from the judgment of ALVERSTONE, C. J. " In
this case half a pint of brandy was purchased from
the appellant by the respondent, who divided it into
three parts; five ounces were sent to the public
analyst ; three ounces were retained for comparison ;
and about two, but less than two and half ounces
were given to the seller It is contended for
the respondent that it is not a condition precedent
that the other two parts shall be of equal value for
the purpose of analysis as the part which is submitted
to the public analyst. In my opinion the provisions
of S. 14 are conclusive against that contention. . . .
Then S. 21 says that at the hearing the part retained
by the purchaser shall be produced ; and S. 22, as
amended by S. 21 of the Act of 1899, provides that
the justices before whom the complaint is made shall
at the request of either party, or without such request
if they think fit cause the article that is, the portion
retained by the purchaser, and produced in court
to be sent for analysis to the Commissioners of Inland
Revenue. Either party, therefore, has an absolute
right to have that analysis I have, therefore,
come to the conclusion, not that the three parts into
which the article is divided must be mathematically
equal or identical in every respect, but that each part
must at least be sufficient for the subsequent purposes
contemplated by the statute, that is, for analysis by a
Government analyst or by an analyst on behalf of the
seller. It is really not disputed in this case that two
of the parts did not fulfil that purpose ; the part
given to the seller, and the- part retained for com-
parison were not sufficient for the purpose of analysis.
I entertain no doubt that in order to found a pro-
secution, the person purchasing an article with a view
to analysis must so divide the article that each of the
three parts may be sufficient for analysis."
Decisions as to the reserved portion of the
sample. By the Act of 1899 the justices are bound
at the request of either party to cause the reserved
portion of the sample to be sent to the Government
authorities for analysis. But in order that there may
be a conviction, it is not necessary that this reserved
portion of the article is intact, or in a fit state for
analysis, when sent to Somerset House for that pur-
pose. But if this third portion be altogether lost and
not in existence, when its analysis is requested at the
time of the trial, so that it cannot be sent to Somerset
House at all, there can be no conviction.
Suckling v. Parker, 1906, 1, K.B., 527, was a case in
which, after the division of a sample of milk into three
parts, the respective bottles were corked, but the corks
were not secured by string or other ligature. The pro-
duction of the third sample was required in Court,
when it was found that part of the contents of the
bottle had escaped. The solicitor for the defence
requested that the bottle be sent to the Commissioners
of Inland Kevenue for analysis. The Commissioners
wrote stating that portions of fat and dried milk were
adhering to the outside of the bottle and the paper
wrapper, and that a satisfactory examination of the
milk was not possible. The magistrate convicted and
the defendant appealed. In the course of his judgment
on the appeal, EIDLEY, J., said, " The main point taken
on behalf of the appellant is that it was a condition
precedent to a conviction that the part of the article
retained by the purchaser must be produced at the
hearing in a condition capable of analysis, and that that
part should in fact have been analysed at Somerset
House, and that, those conditions not having been
fulfilled, the conviction is bad. In support of that
contention reliance is placed on the case of Hutchison
v. Stevenson (4, F., J.C., 69). In the case quoted it
appeared that a bottle containing the third portion of
the article purchased had burst some days before the
hearing In that case the LORD JUSTICE CLERK
said, ' The statute further enacts that if the accused so
desires it he is entitled to have this third sample sent to
Somerset House for analysis by the Government
analyst there, so that his analysis may be produced in
evidence at the trial. That in this case became im-
possible, because the third sample, which was retained
by the purchaser, had ceased to exist before the trial.'
True ; but in the present case the third sample had not
ceased to exist I cannot find that the Act
anywhere says that an analysis of the third sample by
the Somerset House authorities is a condition precedent
to a conviction Lower y v. Hollar d does not, in
my opinion, touch the point with which we are dealing
here. In that case .... all that was decided was
that .... each sample must be of a size sufficient for
analysis." It was therefore Held that it was not a con-
dition precedent to a conviction that the retained
sample should have been analysed.
It is difficult to reconcile this case with those of
Hutchison v. Stevenson and Lowery v. Hollar d. In
dealing with the former case the learned judge dis-
tinguished the two by pointing out that in Hutchison
v. Stevenson the third sample had ceased to exist before
the trial, but that in the present case it had not ceased
to exist. It is very respectfully submitted, that when
some of the contents of the bottle had escaped, it could
not be said that the sample was still in existence. At
most, a portion only still existed, and a portion of a
sample is not the sample, especially when the Somerset
House authorities write that a satisfactory examination
of the milk from that portion is not possible. In
Lowenj v. Hallard, ALVERSTONE, C.J., regarded it as a
condition precedent that the other two parts should be
of equal value for the purpose of analysis as the part
which is submitted to the public analyst. He further
says that " either party, therefore, has an absolute right
to have the analysis" of the third part by the com-
missioners of Inland Revenue. These conditions had
not been fulfilled in the case of Suckling v. Parker.
Assistance in Making Analysis. Having received
his portion of the article, the public analyst proceeds to
make his analysis. For this purpose he may avail
himself of the aid of assistants, but should be able to
speak from personal knowledge of the material opera-
tions of the analysis. In Bakewell v. Davis, 1, Q.B.D.,
296 (1894), at the hearing of the case, the public
analyst stated that the analysis was carried out under
his supervision; that he was not present during the
progress of some of the processes, but that the weighing
of the parts and other material operations had been
done by him or in his presence. One of the questions
submitted in the case to the High Court was " Was
the analysis properly and legally made by the public
analyst within the meaning of the Sale of Food and
Drugs Act, 1875 ? " The judges did not require this
point to be argued before them, and answered it, in
effect, in the affirmative.
Form of Certificate. The following are the pro-
visions relating thereto in the Sale of Food and Drugs
Act, 1875 :
18. The certificate of the analysis shall be in the
form set forth in the schedule hereto, or to the like
effect.
FORM OF CERTIFICATE.
I, the undersigned, public analyst for the
do hereby certify that I received on the day of
18 , fromf , a sample
of for analysis (which then weighed J ),
and have analysed the same, and declare the result
of my analysis to be as follows :
I am of opinion that the same is a sample of
genuine
or,
I am of opinion that the said sample contained
the parts as under, or the per-centages of foreign
ingredients as under.
Observations
As witness my hand this day of
A.B.,
at
When the article cannot be conveniently weighed, this passage
may be erased, or the blank may be left unfilled.
Here the analyst may insert at his discretion his opinion as to
whether the mixture (if any) was for the purpose of rendering the
article portable or palatable, or of preserving it, or of improving the
appearance, or was unavoidable, and may state whether in excess of
what is ordinary, or otherwise, and whether the ingredients or
materials mixed are or are not injurious to hqalth.
In the case of a certificate regarding milk, butter, or any article
liable to decomposition, the analyst shall specially report whether
any change had taken place in the constitution of the article that
would interfere with the analysis.
Certificate as Evidence. According to the Act of
1875 :
S. 21. At the hearing of the information in such
proceeding the production of the certificate of the
analyst shall be sufficient evidence of the facts therein
stated, unless the defendant shall require that the
analyst shall be called as a witness, and the parts of
the articles retained by the person who purchased
the article shall be produced, and the defendant may,
if he think fit, tender himself and his wife to be
examined on his behalf, and he or she shall, if he
so desire, be examined accordingly.
The law has been modified by the Act of 1899 :
S. 19. s.s. (2). In any prosecution under the Sale
of Food and Drugs Acts the summons shall state
particulars of the offence or offences alleged, and
also the name of the prosecutor, and shall not be
made returnable in less time than fourteen days
from the day on which it is served, and there must
be served therewith a copy of any analyst's certificate
obtained on behalf of the prosecutor.
S. 22. (1). At the hearing of the information in
any proceeding under the Sale of Food and Drugs
Acts, the production by the defendant of a certificate
of analysis by a public analyst in the form pre-
scribed in section eighteen of the Sale of Food and
Drugs Act, 1875, shall be sufficient evidence of the
facts therein stated, unless the prosecutor requires
that the analyst be called as a witness.
(2). A copy of every such certificate shall be sent
to the prosecutor at least three clear days before the
return day, and if it be not so sent the court may,
it it thinks fit, adjourn the hearing on such terms
as may seem proper.
Particulars necessary in Certificate. Very strong
opinions have been expressed by analysts as to what
data shall be furnished in the certificate. Thus Hehner
on certificates, Analyst, XVIII., 291. "He had for some
time past made it a rule to omit in every case giving
in his certificates any semblance of an analytical
figure The analytical figures were simply
the means to satisfy himself, and to assist him in
forming his opinion. It seemed preposterous that a
bench of persons not scientifically educated should be
allowed to judge of analytical figures at all.
If he were asked to give his reasons in court, then he
would be bound to give them, and also his figures,
and he would be glad enough to do so, because he
would know more about the figures than anybody
who might be in court could know."
The following are some of the more important legal
decisions on the form of certificate and the data
required to be given. The figures in brackets (1) refer
to notes at the end of each case.
Newby v. Sims. 1894, 1, Q.B.D., 478. In the case of
a sale of rum, the sample was sent for analysis ; the
analyst's certificate ran :
"The Sale of Food and Drugs Act, 1875 I
find that the sample contained an excess of water over
and above what is allowed by Act of Parliament. I
estimate the excess of water at 13 per cent, of the
entire sample. I am of the opinion that the sample is
not a sample of genuine rum." The justices were of
opinion that the certificate in the above form whereby
the public analyst purported to "estimate" the excess of
water at 13 per cent, of the entire sample, although in
other parts of the same certificate he used the words
"I find" and "I am of opinion," was not sufficient
evidence of the offence charged to justify them in
convicting the respondent, and accordingly dismissed
the information.
In the course of his judgment on hearing the appeal,
DAY, J., said " In the present case the statute allows
the certificate to be used as evidence. If the respondent
had availed himself of his right to require the analyst
to be called as a witness, possibly the defect in the
evidence would have been supplied ; but as he did not
require the analyst to be called, the certificate is the
only evidence in the case. (1). I am of opinion that on
the face of the certificate no offence is proved. The
certificate is entitled ' The Sale of Food and Drugs
Act, 1875,' and contains no reference to the Act of
1879, and there is no evidence that the analyst ever
knew of this latter Act, or that he acted under it or
had it before him. (2). ... I am of opinion that this
certificate is defective, but not upon the ground that
the analyst states in it that he estimates the quantity
of water, for that, in my opinion, is an appropriate word
to express the result of his calculation. He states that
he 'finds,' that he 'estimates,' and that he 'is of
opinion,' and I can see no objection to any one of those
expressions. (3). ... To enable us to act on the
certificate we must know what the analyst finds in fact
The statement as to an excess of 13 per cent, is quite
insufficient, for there is no statement above what
amount in fact the excess is. The analyst ought to
determine as a matter of fact how much water
there is in the pint of rum, (4), and, as he has not
done so, the certificate is not in such a form as to
amount to evidence on which the magistrates could
act."
LAWRANCE, J. " The certificate should contain evi-
dence, and not only the conclusion at which the analyst
arrived " (5).
Held, The Justices rightly dismissed the case.
(1) This illustrates the principle that it is not always
well for the defendant to call the public analyst for
purposes of cross-examination. By so doing he may
be enabling the prosecution to remedy an otherwise
fatal defect in their case.
(2) This particular certificate had as a heading the
words "The Sale of Food and Drugs Act, 1875."
The previously given "Form of Certificate" does not
prescribe any such heading, and it may therefore be
regarded as unnecessary. But if any heading is
adopted, it should read " The Sale of Food and Drugs
Acts, 1875-1899," or whatever may be the dates of the
earliest and latest Acts.
(3) The use of the word "estimate" here receives
sanction. Although in popular phraseology " estimate "
is a more indefinite term than " find," the chemist now
usually applies the words " estimation " or " determina-
tion " equally and indifferently to his exact finding by
operations of analysis.
(4) Here there is a very strong insistence on the rule
that analytic data must be furnished. As a fact, the
analyst should have stated how much proof -spirit, and
how much water there were present.
(5). LAWRANCE, J., insists on the same point, he wants
the evidence, and not merely the opinion which the
analyst has formed. On this ground of insufficiency
of evidence, the Court held that the dismissal of the
case was right.
Fortune v. Hanson, 1896, 1, Q.B., 202. A certificate
of analysis of a sample of milk declared the result of
analysis to be as follows : " I am of opinion that the
said sample contained the percentage of foreign in-
gredients as under : 5 per cent, of added water to the
prejudice of the purchaser." On hearing the case,
the magistrates dismissed the information.
From their decision there was an appeal, and
in the course of his judgment, HAWKINS, J., said,
' I am of opinion that the certificate was insufficient
for the purpose for which it was given. Admittedly
there must be a certain percentage of water in all
milk, because water is one of the constituents of milk.
I think that the Legislature meant that the certificate
must state such facts as would enable the magistrates
themselves to come to a conclusion, whether the
article of food in question had, or had not, been
adulterated. (1). If the analyst found in the milk
some material substance which could not or ought not
to be found in milk at all, it would be sufficient for
the certificate to state that the sample of milk sub-
mitted to him contained so much percentage of foreign
ingredients ; but when the magistrates have to decide
whether the sample contained 5 per cent, of added
water, the question becomes much more difficult,
because water is to be found in milk in its most pure
state I think the magistrates are entitled
to inquire, and the Legislature intended they should
have a statement, in such a case as this, of the parts
of which the sample was composed. (2). To say
merely that a sample of milk contained 5 per cent, of
added water is only to state the analyst's own opinion
that water has been added. The magistrates have to
exercise their own judgment on the question. They
may adopt one standard, the analyst another. (3).
They ought to be informed by the certificate what
was the total percentage of water found in the sample.
It is not enough for the analyst to say, " I say that 5
per cent, of water has been added."
KENNEDY, J., " I think that the certificate to be a
good certificate, must give data upon which the
magistrate can act without further evidence. ....
It is not sufficient to say, as the analyst here has said
in effect, " I come to the conclusion that the sample of
milk submitted to me is not genuine because it
contains so much added water." (4). The Legislature
intended that the certificate should go much further
than that, and give the magistrates information which
enables them to come to a conclusion themselves, (5).
and enables the person charged to understand and,
if possible, negative the charge. (6).
Judgment for respondent (original defendant).
Keferring back to note (1) on the preceeding case,
the point also arose during the present one.
Macmorran in presenting the case for the appellant
submitted that no hardship could be done to the
defendant by admitting the certificate, because he
was entitled if he desired to question it, to require
that the analyst should be called as a witness, and to
have his conclusion tested by cross-examination.
Obviously, if the certificate were on the face of it
bad, it would, as a matter of policy on the part of the
defence, be extremely foolish for them to afford the
prosecution an opportunity of remedying the certificate
by putting the analyst in the box.
(1). The facts are to be given by the analyst, but
the magistrates themselves must come to a conclusion
as to whether or not there had been adulteration.
(2). The judge draws a distinction between the
presence of some foreign body, and an adulterant
which is also present in some amount as a normal
constituent. In the case of a foreign ingredient, it is
sufficient to give the percentage. But when the added
substance, as water in this case, is common both to
the natural article and the adulterant, the actual
composition by analysis (parts of which composed),
must be given.
(3). Five per cent, of added water is only an
opinion, based on the analyst's standard for pure milk.
The magistrates may see fit to adopt another standard.
(4). KENNEDY, J., also emphasises the point that it
is not sufficient for the analyst to give his conclusions.
(5). The magistrates must have information by
which they themselves can arrive at a conclusion.
(6). This is one of the most important reasons why
full data should be given in the certificate. The
person charged should have such information as will
enable him to negative such charge if he has a good
defence.
As to what are sufficient particulars, see
Bridge v. Howard, 1897, 1, Q.B., 80. The certificate
of analysis stated that the milk "contains the parts
as under:
Milk, 94 per cent.
Added water, 6 per cent.
This opinion is based on the fact that the sample con-
tained 7'97 per cent, of solids not fat, whereas genuine
milk contains not less than 8*5 per cent, solids not fat/'
The following are extracts from the judgments:
GRANTHAM, J. " In this case the analyst has come to
the conclusion that water has been added to the milk,
and he goes on to state how he arrived at that con-
clusion. He says that the milk contains a less proportion
of solids, other than fat, than genuine milk ought to do,
and therefore he is of opinion that water has been
added to the milk."
KENNEDY, J. "Although I still think that the fairest
course would be for the analyst to state in his certificate
the parts contained in the sample (1), he is no doubt
permitted by the form of the certificate given in the
schedule to the Act to set out the percentages of foreign
ingredients contained in the sample. What he has
done here has been not only to state the percentage of
" added water," but also to give the scientific basis on
which his conclusion rests. ... I am of opinion that
there has been a sufficient compliance with the Act."
(1) KENNEDY, J., thinks it the fairest course to state
the parts contained in the sample. Of this there can
be no doubt. No word is mentioned in the certificate
as to the percentage of fat in the sample. A milk with
8 - 5 per cent, of solids not fat and 3*0 per cent, of fat
would be passed as pure. But if, for example, the
milkman take a milk containing 8*5 per cent, of solids
not fat and 4*30 per cent, of fat, and dilutes it to 94 per
cent, of milk and 6 per cent, of water, the composition
will then be 7'97 per cent, of solids not fat and 4'04
per cent, of fat. Undoubtedly such tampering with
milk is an adulteration ; but still the fact remains that
the adulterated milk with 7*97 per cent, of solids not fat
might have contained, on the above assumption, 4'04
per cent, of fat, and would in that case be intrinsically
worth to the consumer a third as much again as is the
" pure " milk with S'5 and 3*0 per cent, of non-fatty and
fatty solids respectively. The "fairest course" would
be, whether it told for or against the vendor, to let this
be perfectly clear in the certificate of analysis.
It was decided in the case of Banks v. Wooler (page
31), already referred to, that even though there has
been an addition of water, if after such addition the
milk is still exceptionally good, the justices are entitled
to consider whether or not the offence is too trifling to
convict. In view of this decision it becomes of great
importance that the certificate of analysis should fully
state the parts contained in the sample.
Although decided earlier than Bridge v. Howard, the
following case may be appropriately considered here.
In Bakewell v. Davis, 1894, 1 Q.B. 296, which in point
of time just preceded Newby v. Sims, the offence alleged
was that of abstraction of fat from milk. The judgment,
of which the following is an extract, sufficiently states
the facts. CHARLES, J., says "The certificate . . .
states the result of the analysis in these words :
* twenty-two per cent, of fat less than natural ; ' then
under the heading 'observations' comes a statement
that the abstraction of fat is a fraud, and may possibly
be injurious to health. Upon carefully considering the
form of certificate given in the schedule, I notice that
the ' observations ' are only to be made when the case is
one of adulteration, and that they are not to be made
in such a case as the present, where adulteration is not
suggested (1). ... I come now to the other point
whether this certificate is in accordance with the form
in the schedule. I think that it is. The second alter-
native that is, percentages of foreign ingredients is
clearly applicable only to cases of adulteration. . . .
In my judgment it would be to apply the first alter-
native in the certificate that is, the words ' parts as
under' to a wrong subject-matter, if we are to suppose
that the analyst must set out the parts of the sample
analysed where the case is not one of adulteration, but
falls short of it, ... the present certificate seems to be
good. It reports accurately the result of the analysis.
... It is not intended that the Court should consider
how the result is arrived at: the result itself is the
important factor (2).
The certificate was upheld.
(1) In cases of abstraction, where the addition of
foreign matter is not alleged, in the judge's opinion
" observations " are not to be made. The objectionable
observation is that the " abstraction of fat is a fraud."
Whether an act alleged is a fraud is for the Court to
decide and not for a witness.
(2) There is no radical difference in the chemical
principles involved in saying that there is "twenty-
two per cent, of fat less than natural " and in saying
as in Fortune v. Hanson, " 5 per cent, of added water "
is present. Both statements are based on comparing
actual results with a standard adopted by the analyst.
In the present case the judge was of opinion that the
Court was not concerned in how the results were
arrived at, but only with the result itself. The later
exposition of the law in both Newby v. Sims and
Fortune v. Hanson is, however, very decidedly in
favour of a full disclosure of the results of the analysis.
From the legal decisions, it is quite clear that there
must be no policy of concealment, but that all neces-
sary figures must be given.
Articles liable to Decomposition. In these cases
the analyst is required to specially report in his
certificate whether or not any change has taken place
in the article that would interfere with the analysis.
The case of Hudson v. Bridge, Analyst, XXVIII., 165,
was a prosecution for the sale of vinegar of squills of
insufficient strength. In the course of his judgment
on the Appeal, the L.C.J. said
"In the case of a certificate regarding milk, butter,
or any article liable to decomposition, the analyst
shall specially report whether any change has taken
place in the composition of the article which would
interfere with the analysis. This certificate said
nothing about the article being liable to decomposition,
and contained no statement that a change had taken
place which would interfere with the analysis." In
all such cases the analyst ought to comply with the
directions of the Act.
WILLS, J., was very strong on the same point. " The
certificate of the analyst was made a condition
precedent to any prosecution, and it ought to be
properly certified."
Meaning 1 of "prima facie" evidence. By the
1899 Act a copy of the certificate must be served on
the defendant with the summons. The side note to
S. 21, 1875, reads " Certificate of analysis prima facie
evidence for the prosecution." "Prima facie" and
" sufficient " evidence do not mean conclusive evidence.
Where there is no rebutting evidence for the defence,
the certificate is sufficient evidence on which to
convict. (Harrison v. Richards, 45, J.P. 44.)
Hewitt v. Taylor, 1, Q.B., 287. The facts of this
case are sufficiently set out in the judgment by
LINDLEY, L.J. "The respondent was summoned by
the appellant for selling milk which was alleged to be
adulterated, and in support of the charge a certificate
from the public analyst was produced which was to
the effect that upwards of six parts of water had been
added to every hundred parts of the poorest milk.
The respondent appeared, and although he did not
require that the analyst should be called as a witness,
he gave evidence himself on his own behalf, which
was to the effect that no water had been added
to the milk. The justices were satisfied with his
evidence, and refused to convict him. It is now
contended that they were bound to do so, and it is
said that if the analyst is not called as a witness, and
if proceedings are not taken under S. 22 for a further
analysis of the food or drugs in question, the certificate
of the analyst is conclusive, and no evidence given by
the respondent can save him from conviction. The
section, no doubt, says that the certificate of the
analyst shall be " sufficient " evidence, and, conse-
quently, if no evidence were adduced by the defendant,
the justices would be right in convicting upon it
without requiring anything further. But that the
certificate is not conclusive is clear from the rest of
the section The ambiguity in the word " suffi-
cient" is thus removed. It is sufficient only when
there is no evidence to the contrary. If, however,
there is evidence to the contrary, the justices must
weigh that evidence and decide on the whole. In the
present case, the analyst could only say, as a fact, that
there was an undue proportion of water in the milk.
That it had been added to the milk could only be a
matter of opinion, and it seems to me that the
respondent had a right to contradict it."
Notification of Evidence for Defence to Prose-
cution. S. 21 of the 1875 Act reads, "Unless the
defendant shall require that the analyst shall be called
as a witness." The defendant is entitled to have the
analyst as a witness if he requires it. It may be that
the defendant believes that he can break down the
evidence of the certificate by cross-examination, and, if
so, he must be furnished with the opportunity of so
doing.
A well-known rule in trials of actions is that the
defence must, in cross-examination of the prosecutor's
witnesses, foreshadow the case which he himself intends
to set up. Does this rule entail that, on a defendant
calling evidence to contradict the certificate, it is his
duty to so notify the prosecution, and cross-examine
the analyst on his, the defendant's, evidence ?
Magistrates at times seem rather disposed by their
action to answer such a question in the affirmative. In
the South Wales Yeast Case, referred to on page 76,
the defendant did not require the analyst to be called
as a witness, but called a chemist as witness for the
defence, who deposed that the added starch was
required for the preparation of the yeast as an article of
commerce, in a fit state for carriage; and was not
fraudulently added to increase the weight, displacing as
it did about three-fifths of its own equivalent of water.
The magistrate several times interrupted to say that if
this evidence were to be given the other side should
have been warned, so that they might have called the
analyst, to whom these matters should have been put
in cross-examination. The defendant's solicitor argued
that it was no part of the duty of the defence to assist
the prosecution in getting up their case, that it was the
privilege of the defendant in a criminal action to
reserve his defence until the trial, and that to have
notified the prosecution of an intention to cross-examine
the analyst would to that extent have disclosed the
defence. It is submitted that this latter view is correct,
and that no obligation lies on the defendant to require
the analyst to be called, unless it is believed that his
cross-examination will be of benefit to the defence.
This contention is supported by the judgment of
LINDLEY, L.J., in Hewitt and Taylor, just quoted. The
defendant did not require the analyst to be called as a
witness, but gave directly contradictory evidence him-
self, and the justices believed him. There was no
suggestion throughout the whole hearing that the
defendant ought to have required the presence of the
analyst as a witness for purposes of cross-examination
as a condition precedent to adducing contradictory
evidence for the defence.
The Defendant may put in Certificate. S. 22,
1899, puts the defendant in the same position as the
prosecution in so far as he may put in a certificate of
analysis from a public analyst as " sufficient evidence."
A copy of the certificate must be sent to the prosecutor
at least three clear days before the hearing. This is
subject to the same general conditions as that for the
prosecution.
Note, the certificate must be that of a public analyst.
No other chemist of however high standing can give
evidence this way, but must be called as a witness.
Precautions by Analyst. Before dispatch, the
public analyst should see that his certificate is
perfectly regular. By the form in the schedule (page
211), the certificate must state that the " sample
contained the parts as under, or the percentages of
foreign ingredients as under." He must also bear
in mind the directions as to " observations," and also
as to " any article liable to decomposition." The fore-
going cases serve to illustrate the meaning attached
to these requirements by the Courts.
Precautions by Solicitors. The solicitor for the
prosecution should on receipt of the certificate from the
analyst see that it is perfectly regular in form. If in
any way technically faulty, it should be altered by
the analyst, and the fault thus remedied. For
example, in the case of a milk alleged to contain added
water, without any statement of the percentage of
solids not fat ; it should be returned for these latter
to be inserted by the analyst. It should also be
considered whether or not the analyst should be called
as a witness, or at least whether he should be in
attendance at the hearing for that purpose if thought
desirable. This should not be necessarily governed
by notice from the defence, but must also depend
somewhat on the importance of the case.
If any certificate is received from the defence,
this should be submitted to the public analyst for
the prosecution, by whom it must be considered,
and who should prepare rebutting evidence if
necessary.
The solicitor for the defence has to decide whether
the question is to be fought on its merits. If so, he
should submit the prosecution's certificate to some
chemist, either a public analyst or some other person.
It is sometimes thought an advantage to obtain the
services of another public analyst, since his certificate
in itself can be put in as evidence. It is very rarely,
however, that a contested case will be satisfactorily
decided on certificates only. It may, therefore, be
taken for granted that the personal presence of the
chemist as a witness will be necessary, and so the
advantage of his also being a public analyst is some-
what illusory. It is well to remember that most of a
public analyst's work is done for the prosecution, and,
therefore, if he appears for the defence it is more than
likely that he may be considerably hampered, and his
evidence seriously weakened by views he has pre-
viously expressed on the same or allied subjects. If
on the other hand a public analyst feels very strongly
in a particular case that the position of the prosecution
is a mistaken one, then the fact of the chemist being
a public analyst will in all probability add to the
weight of his evidence. In any event, the chemist
selected should be one whose authority will carry
weight in the special matter in dispute. It should
be considered whether the accuracy of the pro-
secution analysis can be successfully impugned.
Even if the analysis is correct, has the alleged offence
been committed? e.g., Is a mixed colour injurious to
health ? Is some matter present in the article required
for its production or preparation ? Evidence must be
prepared on these or similar points, and the defence
must be ready at the hearing with the necessary
witnesses.
Reference to Somerset House. This was dis-
cretionary under the 1875 Act:
" S. 22. The justices before whom any complaint
may be made, or the court before whom any appeal
may be heard, under this Act may, upon the request
of either party, in their discretion cause any article of
food or drug to be sent to the Commissioners of Inland
Kevenue, who shall thereupon direct the chemical
officers of their department at Somerset House to
make the analysis, and give a certificate to such
justices of the result of the analysis ; and the expense
of such analysis shall be paid by the complainant or
the defendant as the justices may by order direct."
It was, however, made obligatory by the Act of
1899 :
" S. 21. The justices or court referred to in section
twenty-two of the Sale of Food and Drugs Act, 1875,
shall on the request of either party under that
section cause an article of food or drug to be sent to
the Commissioners of Inland Ee venue for analysis,
and may, if they think fit, do so without any such
request."
The justices are now compelled to send the article to
Somerset House for analysis, at the request of either
party, and are empowered to do so on their own
initiative.
The Somerset House attitude has always been most
impartial and judicial as to the functions exercised by
them ; they are, so far as chemical facts are concerned,
in the position of a referee or court of appeal. In the
interests of justice nothing could be more strongly
deplored than that there should ever be any reason to
suppose that " they would do all in their power to
uphold the analyst's certificate."
The Somerset House certificate is not conclusive on
the justices. But it is difficult for the party demanding
a reference to Somerset House to contest its decision,
which is almost certain to determine the judgment of
the justices. Even the party not demanding such
reference will find an adverse decision in most cases
fatal. In particular, there is very little likelihood in
any case of the prosecution succeeding against such
adverse decision. The defence has rather a better
chance. They may call rebutting evidence of a
number of chemists of the highest authority, and thus
influence the justices. This is usually more easily
done on matters of opinion, e.g., injurious to health,
than on the accuracy of the analysis. Authentic
samples will probably at this time have been used up.
Care should be taken by the analysts on both sides to
preserve the remainders of their samples for furtber
analysis if necessary.
Defence of Warranty. By section 25 of the Act
of 1875, it is provided that :
"If the defendant in any prosecution under this
Act prove to the satisfaction of the justices or
court that he had purchased the article in question
as the same in nature, substance, and quality as
that demanded of him by the prosecutor, and with
a written warranty to that effect, that he had no
reason to believe at the time when he sold it that
the article was otherwise, and that he sold it in the
same state as when he purchased it he shall be
discharged from the prosecution, but shall be liable
to pay costs incurred by the prosecutor, unless he
shall have given due notice to him that he will rely
on the above defence."
In most cases where a warranty is pleaded as a
defence, points of chemical interest do not arise ; but
Hennen v. Long, 1904, 68, J.P., 237, is of importance in
this direction. The respondent was summoned for
selling milk which was alleged to be adulterated.
The respondent relied on a warranty under which he
bought the milk, but admitted that he had added one
ounce of milk preservative to each ten gallons of milk.
It was Held that the respondent could not rely on the
warranty as a defence, as he had not sold the milk
" in the same state as when purchased."
Presumably, any other addition, such as the addition
of even the tenth of an ounce of colouring matter,
would also serve to take the milk out of the protection
of the warranty. The question is not whether the
thing added or substracted has done any harm or not,
but that which is sold must be exactly what was
purchased.
Appeals. If the case is lost on questions of fact,
the appeal should be to Quarter Sessions. Both
appellant and respondent should consider all questions
of chemical evidence in the light of the cases for the
prosecution and defence as presented before the
justices. Any additional evidence necessary to
strengthen the weak points should be prepared, and
each side must be ready with all the materials
requisite for a new hearing of the whole case.
If the case is lost on questions of law, an application
is made for a case to be stated for the Divisional
Court. Examples of such appeals when chemical
matters are in issue, are contained in foregoing cases.
MORE GENERAL CRIMINAL CASES.
Prosecuting" Solicitor. All preliminary threads
will be in the hands of the prosecuting solicitor. He
will take steps to ascertain what chemist or chemists
are experts in the particular branch of chemistry
concerned. In some instances he may have to deal
with the official analyst of the Home Office or others
holding recognised appointments. He will arrange
for formal proof of the handing over to the chemist
selected of all articles required to be analysed. It
is important that he should see that all chemico-legal
problems are fully put to the chemist, e.g., in
the case of administration of a noxious thing, was
the actual quantity noxious or innoxious ? The report
from the chemist will be followed by a consultation
at which the question should be discussed as to
whether there is sufficient chemical evidence for a
prima facie case.
Defending Solicitor. Meanwhile the suspected
person may very possibly have been arrested. If
possible, he will have taken legal advice. The
defendant's solicitor, knowing the nature of the
charge, must consider the possible lines of defence
on chemical matters. There is no use in applying for
the presence of a chemist, as representing the de-
fendant, at the analysis by the prosecution chemist, as
this is now invariably refused. The defendant may
possibly be able to dispute the facts as to poison or he
may allege innocent administration. Unless the case
for the defence is exceptionally strong, it is probably
better to reserve the defence before the magistrates.
This is justified by the fact that much chemical work
may be involved in preparing it. The case for the
prosecution is now known to the defendant through
the hearing and depositions. It must be considered
again, what chemical evidence is necessary, and
especially whether there is any requiring analytic or
other work to be done between then and the trial.
Advice on Evidence. It is one of the special
functions of counsel to advise on evidence. Where
any chemical questions of difficulty are likely to arise,,
counsel should be instructed to so advise at an early
stage, and ample opportunities of consultation with
chemists should be arranged.
Though the issues are not so vital as in criminal
matters, yet the problems arising are frequently more
complicated.
Solicitors. The solicitors for the plaintiff will
in such cases (assuming the matter to be of sufficient
importance), have taken both chemist's and counsel's
opinion before the issue of the writ. It is
all to have these acting together even at this early
stage. On service of the writ the defendant's
solicitors will take corresponding steps for the de-
fendant. In all probability the defendant will be
quite familiar with the points in issue.
The Pleadings will show the exact nature of the
case for both parties.
Advice on Evidence- This should follow as speedily
as possible. Counsel will indicate the chemical
evidence necessary to prove his case. The chemist in
return should clearly state whether or not the
chemical evidence will be strong enough to prove the
case wished to be made out. When necessary, at this
stage, counsel and chemist should together review the
whole position. On weak points, further chemical
investigation should be made, the chemist must satisfy
himself that he has exhausted all means of proving
the case submitted to him. Experiments should be
continued until this point is reached. Counsel will
then determine whether sufficient proof is available,
and will take care that his case is put no higher than
can be borne out by the evidence. It must be borne
in mind that technical cases are often lost or won
before the trial of the action. Time is of the utmost
importance. Chemical evidence cannot be prepared
in a hurry. Therefore, its preparation must be started
at the earliest possible moment. For its adequate
preparation chemist and counsel should act conjointly,
and therefore be instructed accordingly.
Case for opposite side. It is necessary to consider
all possible forms of attack, and provide evidence to
deal with any such contingencies as may arise.
Patent Cases. The results of search as to anti-
cipations, state of the art, alleged infringements, etc.,
should all be laid before the chemist ; their bearing
must be carefully considered by him. These mixed
questions of law and fact should be conjointly
examined, and the course of action decided on at as
early a stage as possible, so as to allow time for
chemical research.
"Proof" of Chemical Witness. He should first
state his qualifications. He must take care to show
that these include expert knowledge, and working
experience of the matter in question. Limitations.
These are not so frequently stated, yet they are of the
utmost importance, e.g., a young chemist may say,
" I made certain analyses, to do this I am perfectly
competent ; but I do not lay claim to be able to speak
with authority on the theories involved in the point
at issue." Even a distinguished specialist may similarly
disclaim special knowledge outside his own particular
department of work. Such disclaimer is a guide to
counsel, who will then not take the witness over
subjects on which he is unable to speak with authority.
The judge and jury are not chemists. Therefore all
evidence must be set out in as non-technical language
as possible. Where technical terms are necessary,
clear explanations of them must be given. As far as
possible all statements should be arranged in chrono-
logical order. Step by step, all evidence necessary
for direct proof of the point requiring to be proved
must be furnished. No link in the chain must be
missing. Special care must be taken that there is
legal proof, of every step, e.g.. Book proof must not be
relied on. For instance, having proved by analysis
that a certain substance is sodium sulphate, the
chemist must not rely on the authority of any book,
however eminent its author may be, for a statement
of the substance's properties. These must be of one's
own knowledge, and the witness must if necessary
ascertain and test the point for hearing. Still, the
witnesses' general knowledge is admissible, even though
derived from book study; but on a point of any
importance, special knowledge, the result of actual
experiments ad hoc, is infinitely more valuable.
In addition to direct evidence there must be set
out such matters as may be necessary to deal with
the objections, arguments, and case generally of the
other side, so far as they can be anticipated.
It is well to point out where the chemical evidence
is weak, and especially where there is anything that
may adversely affect the witnesses' own evidence.
Thus he may have publicly expressed some opinion
apparently contrary to that advanced in his present
evidence. If so, the fact should be stated, together with
its explanation, such as that the circumstances of the
two cases are different, or further researches have
caused the witness to change his opinion. The nature
of these latter should be indicated.
Before Trial of Action. The witness should ex-
haustively go over the "proof" of his evidence, and should
assure himself that he thoroughly and accurately
remembers the data and facts by which each statement
is established. By a careful study of the evidence
which he thinks likely to be advanced on the other
side, the chemist should endeavour to anticipate the
kind of questions likely to be put to him in cross-
examination. He should then decide what is the
correct answer to be given to such questions. He may
have employed analytical processes, which necessarily
have some margin of inaccuracy. Beforehand it should
be decided what is the true and proper margin ; if the
witness decides in his own mind that it is, say, 3 per
cent., he should not be cajoled into afterwards admitting
that it may be 4 or even 5 per cent., and so on
indefinitely. These suggestions are based on the fact
that the primary function of the witness in the box is
that of giving evidence of previously ascertained facts,
and conclusions based thereon. It is not a place for
making analytical estimations or working out hypo-
thetical problems.
At Trial of Action. The chemical witnesses will
be present. They must bring all exhibits, &c., care-
fully and plainly labelled, and in the most convenient
form for inspection by the judge, jury, and others.
Witnesses are entitled to refresh their memory by
consulting memoranda, made at the time of the occur-
rence, while in the witness-box. These include
laboratory note-looks ; which, therefore, should be
brought. But if such note-books be used, the counsel
on the opposite side is entitled to see them and use
them for purposes of cross-examination. In the case
of a number of complicated analyses, by consent of
both sides, prints may be put in. A sufficient number
of copies should be provided for use of all persons
concerned.
Examination in Chief. Evidence in direct proof
will be given as simply and clearly as possible. At
times, by permission of the Court, a witness makes
chemical experiments or demonstrations in the box.
Unless of a very simple character, it may be doubted
whether much advantage is thereby gained. It is
impossible to take such precautions in the witness-
box, as one almost unconsciously takes in the laboratory
the result is such experiments have too frequently a
knack of going wrong. For this reason it is far better
to depend on a clear description of the nature and
result of an experiment, than to court the disaster of a
failure in attempting to repeat it before the Court.
Cross Examination. The following piece of advice
to counsel was given by one of the highest technical
authorities at the Bar: "Consider carefully what
admissions you desire to get from the witness, direct
your questions to them, and, having succeeded in
getting what you wish, stop."
Among things for the witness to bear in mind is
that, on questions being directed to matters on which
he must make an admission, it is by far the best
course to at once make the admission frankly. He is,
however, entitled to qualify such admission by any
necessary explanation.
A favourite form of cross-examining question is
that in which some proposition is laid before the wit-
ness, with the request that he shall answer " Yes or
No ? " The judge will frequently support such a
request, and ask the witness to so reply. Obviously,
when such an answer is obtainable, the evidence is
much simplified. But, if the question does not admit
of such an answer, the witness should steadfastly
refuse to give it, explaining the reason why.
The witness should regard with caution any quest-
ions by which he is asked to form and give an expert
opinion in the box itself. He may have stated in his
evidence in chief that of two things one is the better.
Cross-examining counsel may show him two other
similar things, and ask which is the better. Or he
may have explained a somewhat abstruse piece of
theory, and be asked to solve some other problem of a
like nature. When such questions are put, the
avowed object is usually to test the knowledge or
competence of the witness. But it should always be
remembered, not only by others, but by the witness
himself, that the majority of persons, whether
chemists or skilled workmen, may be quite able to
solve correctly a puzzling problem when it presents
itself in the ordinary course of their work in the
laboratory or workshop, and yet be totally unable to
do the same in the witness-box. If such an examina-
tion of samples is necessary before an opinion is given,
that it cannot be well made in the box, the witness
should decline to hazard an opinion until after an
opportunity of making a proper examination. If a
problem is put to him which requires to be coolly and
accurately thought out, no answer should be given
until the question has been thought all round ; and
even then, if the witness feels unable to answer it in
the box, it is well to say so, and request time for the
answer.
Finally, a good witness will succeed in indicating
during cross-examination those points on which he
should be re-examined.
Defendant's Casein Cross-examination. So much
of the case for the defendant as concerns, and is
opposed to the evidence of, any particular witness
must be put in cross-examination to that witness. To
a chemical witness, the chemical case for the defence
must be put. If no questions are asked as to it, the
defendant will be taken to accept the plaintiff's account
in its entirety.
Chemists should therefore carefully watch to see
whether anything of importance thus foreshadowed
comes as a matter of surprise. If so, if possible, they
should proceed at once with rebutting experiments,
and try to get these in before the conclusion of their
own case. This may be done by another chemical
witness; or, by permission of the judge, the same
witness may be recalled to give further evidence arising
out of his cross-examination.
Re-examination. If the modes of analysis have
been attacked, evidence as to their accuracy may be
adduced. So far as the opponent's case is foreshadowed
in cross-examination, any evidence prepared in answer
thereto may now be given. New matter may not be
introduced in re-examination, except that occasionally
permission may be given by the judge who will,
however, then as a rule permit further cross-examination
on this new matter. But evidence may be advanced in
contradiction of the questions put in cross-examination,
and this is not as a rule subject to further cross-
examination.
Construction of Documents. This is a matter for
the judge, and may not be put to a witness. In Brooks
v. Steele & Currie (14, K.P.C., 73), EUSSELL, C.J., said
that " it was wrong to ask a witness what was the
substance or meaning of the invention." An expert
witness may not therefore be asked to construe the
claim of a specification. But in so far as such speci-
fications contain technical terms, chemical or other-
wise, expert evidence is admissible to explain such
terms. Thus, on Sir J. Dewar starting to say what a
claim in a specification meant, KEKEWICH, J., inter-
posed "That is for me, Sir James." The witness
then said " Speaking as a chemist, the following
words in the claim mean to me ." This form of
answer was admitted by the learned judge.
Use of Books by Witnesses. In criminal cases,
where the rules of evidence are construed very strictly,
but little use of scientific books in Court is permitted.
In civil actions there is somewhat more latitude. The
following remarks are made by Taylor in his work on
Evidence, S. 1423, p. 1027. On proof of foreign law,
law being a science, " a witness may refresh and confirm
his recollection of the law, or assist his own knowledge,
by referring to text-books And if he describes
these works as truly stating the law, they may be read,
not as evidence per se, but as part and parcel of his
testimony."
The following are references to cases : Sussex Peerage
Case (C. & F., 114). LORD BROUGHAM, " the witness
may refresh his recollection by referring to authorities
on the matter of law to which his evidence is addressed."
Collier v. Simpson (5, C. & P., 74, 1831). Sir H.
Halford, medical witness said, "he considered the
medicine proper, and that it was sanctioned by books
of authority."
Counsel objected.
TINDAL, C. J. " I do not think the books themselves
can be read ; but I do not see any objection to your
asking Sir H. Halford his judgment, and the grounds of
it, which may be in some degree founded on books as
a part of his general knowledge."
These cases do not go quite so far as Taylor, judges
will now usually forbid books being read. Whether
read or referred to, they are certainly not evidence to
make them so, the author must be called. All the
witness can say is, " I know this subject, and from my
general knowledge I say that such and such a paragraph
in the book is a correct statement of fact." In any case
a book per se, being the work of a living author, is not
evidence, and any reference to standard works for
justifying one's personal knowledge may be regarded as
a confession of weakness, and lessen the value of the
evidence accordingly. If asked "how do you know
that ? " The answer, " Because it is in such and such a
book," will not do it does not make the fact evidence.
The answer, " I know it as a part of my general know-
ledge," is sufficient, although the general knowledge is
culled in part from the very book in question. The one
gives an absent person as authority ; the other is a part
of the general knowledge which one has assimilated and
made one's own, and for which the witness in the box
makes himself responsible.
Examining counsel may not read a passage from a
book, and ask "Do you agree with that? because it
would be leading the witness, but
Cross-examining counsel frequently does so. Thus
in R. v. Palmer, Times report, the following occurs :
Witness being cross-examined by Sergeant Shee, " Do
you agree with this opinion of Dr. Copeland expressed
in his Dictionary of Practical Medicine, under the head
General Convulsions. The abnormal contraction, etc.?"
Answer, " I would rather speak from my own
observation. I have not observed anything of the kind."
Note. No objection was taken to the question either
by counsel or by the Court.
The matter is frequently put in the following
manner :
Counsel. Do you know this book ? (Produced.)
Witness, Yes. (If " no," the matter usually drops).
Counsel. Is M. the author, a high authority ?
Witness, Yes. (Unless the witness feels he may deny
his authority in general, or on that subject in particular).
Counsel. I will read you a passage. (Beads). Do
you agree with that ?
Witness (probably). No.
If the matter stops here, the cross-examining
counsel has got it before the jury, even though the
witness does not agree with it, that M., a high
authority, has expressed a decided opinion in favour
of his contention, though M. is not present, and very
possibly if he were he would have said that the
particular passage did not apply to the case then
being decided.
If the witness thinks this, he may qualify his
answer by saying as much, i.e., " No, nor do I think
that would be his view in this particular case."
Witness may very reasonably ask to see the book
so as to examine the context. If this is refused, re-
examining counsel has the remedy in his hands.
Very recently (November, 1907), ENGLISH HARRISON,
as Commissioner at the Winchester Assizes, had the
point raised before him in a murder case. The pro-
secution alleged that the prisoner had strangled a
woman by compressing her throat with his fingers.
The defence was that the injuries were self-inflicted.
A medical witness for the prosecution had stated in
his evidence in chief that self -strangulation in this
way was impossible.
Cross-examining counsel wished to put a paragraph
from a medical work of high authority. (Burghardt's
Principles of Surgery.)
The COMMISSIONER refused to allow counsel to 'tell
the witness the name of the author of the book.
Counsel then read the passage and asked witness
whether he agreed with the opinion therein expressed.
The witness replied in the negative.
The Case being over, and the parties out of Court,
the witness was shown the book, and remarked that
had he known the author was Burghardt, he would
not have committed himself to such a definite answer
as he had given.
Objections to such use of Books. In justifica-
tion of the Commissioner's decision it may be urged
that it is not right to overweight the witness and jury
by a book statement, brought in in cross-examination,
with all the implied authority of a very eminent man,
who might not himself regard the quotation in
question as bearing on the case being tried; and
whose statement could not be tested in any way by
cross-examination.
Example of Ruling" in Civil Action. Since the
above was written the following occurred during the
hearing of the case of The Flour Oxidising Coy., Ltd.,
v. J. & R. Hutchinson before WARRINGTON, J., on the
26th March, 1909, in one of the Courts of Chancery.
Dr. E. F. Ladd, a chemical witness, was being cross-
examined by Astbury :
Asfbury. Now I want to ask you this. You have
perhaps heard of Dr. Tunnicliffe in this country 1
Witness. Yes.
Astbury. He is a very great authority on these
digestive matters ?
Witness. He is so considered.
Astbury. Now I want to read you a passage in
some evidence given by Dr. Tunnicliffe in a Com-
mission in this country.
Oripps. (Counsel on the other side.) Do you call
Dr. Tunnicliffe ?
Astbury. No.
Gripps. Then you cannot put this in as Dr.
Tunnieliffe's opinion unless you call him.
WARRINGTON, J. No, but I suppose you can ask a
scientific witness if he agrees with it.
Cripps. Yes, but that is a different matter. My
friend introduces this by mentioning a gentleman
whose name is a great authority, but he cannot put
in his evidence.
WARRINGTON, J. No, but he can test the credit of
this witness by asking him whether he agreed.
Cripps. Yes he can read something, and ask him
whether he agrees, for what it is worth.
Astbury. I do not ask whether it is Dr. Tunnicliffe's
evidence.
Cripps. But you should not mention his name.
Astbury. I beg your pardon, I can say Is not this
a well-known author, and is not this stated in the book ?
Cripps. It has been held over and over again that
as regards evidence before a Commission you cannot
mention a name. The only object of mentioning a
name is to produce it as an authority to state the name.
You cannot do that without calling the evidence,
[witness].
WARRINGTON, J. I cannot accept any reference to
Dr. Tunnicliffe as to his opinion as an authoritative
opinion.
(The passage was read, and put to the witness as
though it were Counsel's own question).
In this instance, although a civil action, the rule as
to exclusion was applied even more strictly than in the
murder case before cited.
Argument in favour of the use of Books. On the
other hand there is much to be said for the view that
some familiarity with an authoritative text-book is a
part of a professional man's training. If a passage from
such a work, together with the author's name, is put to
a witness in cross-examination, he will know quite well
what is the reputation and standing of the book. As
in all probability the opinion therein expressed is at
variance with that advanced by the witness, he is not
likely to be unduly influenced by the author's views.
If they do not bear on the case in question, and for any
reason ought not to be considered to apply, the witness
will be well able to point this out. This is one good
reason for permitting books to be put in cross-
examination, and not in examination in chief. One
great advantage of book evidence is that, in the case of
a man of reputation and authority, it will be a carefully
considered and absolutely impartial statement of facts
and opinions. Whereas, if that same person be called
as a witness, he will prepare and give evidence ad hoc,
addressed to the proof of one particular view or
hypothesis. He is thus almost insensibly biassed, and
his actual evidence in the box is not likely to be so
judicially impartial as his written statements on the
same subject.
Use of Books by Counsel. Counsel, as well as
witnesses, are prohibited from using scientific books as
authorities for the arguments they advance. The
criminal law decisions on this point are very emphatic.
Thus in E. v. Crouch, [1843], 1, Cox C.C., 94, the
prisoner was indicted for the wilful murder of his wife.
Clarkson for the defence attempted to quote from a work
entitled "Cooper's Surgery," the author's opinions on
the subject.
ALDERSON, B., thought he was not justified in doing so.
Clarkson. I quote it, my lord, as embodying the
sentiments of one who has studied the subject, and
submit that it is admissible in the same way as opinions
of scientific men on matters appertaining to foreign law
may be given in evidence.
ALDERSON, B. I should not allow you to read a work
on foreign law. Any person who was properly con-
versant with it might be examined, but then he adds
his own personal knowledge and experience to the
information he may have derived from books. We
must have the evidence of individuals, not their written
opinions. We should be inundated with books if we
were to hold otherwise.
Clarkson. I shall prove the book to be one of high
authority.
ALDERSON, B. But can that mend the matter ? You
surely cannot contend that you may give the book in
evidence, and if not, what right have you to quote from
it in your address, and do that indirectly which you
would not be permitted to do in the ordinary course ?
Held, Counsel has no right in his address to the jury
to quote the opinion of a high authority as given in his
published work.
R. v. Robert Taylor. [1874], 13, Cox, C.C., 77. The
decision in R. v. Crouch was confirmed in R. v. Taylor.
Counsel for the defence in addressing the jury proposed
to read a case from Taylor's " Medical Jurisprudence."
BRETT, J. " That is no evidence in a court of justice.
It is a mere statement by a medical man of hearsay
facts of cases at which he was in all probability not
present. I cannot allow it to be read."
The same ruling is generally given in civil cases,
though occasionally counsel is permitted to read a
passage from a book not by way of authority, but as
"part of his argument."
Conclusion. The task set himself by the author
has now arrived at its close; he trusts that in the
foregoing pages he may have succeeded in making
clear to the chemist some of the lawyer's requirements
in the matter of chemical evidence. He hopes also
that the explanations of the underlying scientific
principles of such evidence may prove of service to
lawyers who have to handle the same. If this be so,
even in some slight degree, the object for which the
book was written will have attained fulfilment.
