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[Evidence of Bad Character] AG v Yiu Ka Kin [1994] 1 HKC 1

  • Criminal Law and Procedure — Criminal record of defendant — Multiple-count indictment — Shield lost in relation to one count — Whether shield lost in relation to all counts — Criminal Procedure Ordinance (Cap 221) s 54(1)(f)
In R v Yiu Ka Yin [1993] 2 HKC 313 , the majority of the Court of Appeal held that the trial judge had wrongly exercised his discretion not to disallow certain cross-examination of the accused after he had lost his shield within s 54(1)(f) of the Criminal Procedure Ordinance (Cap 221). The Attorney General petitioned the Privy Council for special leave to appeal against this decision.

The Attorney General’s arguments were as follows:

  1. (1)The Court of Appeal of Hong Kong held that the trial judge had wrongly exercised his discretion not to disallow certain cross-examination of the accused after he had lost his shield within the terms of s 54(1)(f) of Criminal Procedure Ordinance. In reaching such conclusion, the Court of Appeal failed to apply Selvey v DPP [1970]AC 304 , in which it was held that the trial judge was best placed to have the feel of the case and that the appellate court should only interfere in exceptional circumstances, either if there had been error in principle or if there was no material on which the trial judge could properly have exercised his decision. The issue in this case was whether the trial judge had erred in principle.
  2. (2)Unless convictions were spent and unless they were trivial convictions, a judge ought normally to allow them to be placed before a jury as the trial judge did in the present case.
  3. (3)Normally, a jury would be entitled to know of the previous convictions of the defendant once his shield was lost on one count, albeit that there was another count on the indictment.
  4. (4)A new fetter had been placed upon the operation of the s 54(1)(f) in consequence of the majority judgement, which referred to the strength of the case and the complexity or simplicity of the issues. This must be wrong and the sub-section should be given its plain meaning.
  5. (5)There was a large element of conjecture in the way in which the majority judgment dealt with the matter.

Held, that the petition ought to be dismissed.

 

Notes

After the dismissal of the petition, at the retrial, the accused pleaded guilty and was sentenced to three years nine months’ imprisonment by Deputy Judge Daniell. At the original trial, he was found guilty and sentenced to eight years’ imprisonment. See [1993] 2 HKC 313 , 314F

Cases referred to

R v Curbishley [1963] Crim LR 778

Selvey v DPP [1970] AC 304

[1994] 1 HKC 1 at 2

Legislation referred to

(HK) Criminal Procedure Ordinance (Cap 221) ss 51(1)(f), 54(1)(f)

(UK) Criminal Evidence Act 1898 [UK] s 1(f)



Action

This was a petition by the Attorney General for special leave to appeal against the decision of the Court of Appeal in R v Yiu Ka Yin [1993] 2 HKC 313 . The facts appear sufficiently in the following submissions.

I Grenville Cross QC and Alison M Padfield (Macfarlanes) for the petitioner.

GJX McCoy and Dominic D’Souza (Edwin Coe) for the respondent.

Yes, Mr Cross. Mr Cross QC:

May it please Your Lordships, in this matter, I appear on behalf of the Attorney General of Hong Kong together with Miss Alison Padfield. My learned friends, Mr Gerard McCoy and Mr Dominic D’Souza, appear on behalf of the respondent. My Lords, this petition arises out of the majority judgment of the Court of Appeal of Hong Kong, which held that the learned trial judge had wrongly exercised his discretion not to disallow certain cross-examination of the accused, after he had lost his shield within the terms of s 54(1)(f) of the Criminal Procedure Ordinance (Cap 221), which has its mirror image in s 1(f) of the Criminal Evidence Act of England 1898. There was of course a dissenting judgment from Penlington JA who held that in effect that, following the judgment of Your Lordships’ House in Selvey v DPP [1970] AC 304 , the trial judge was best placed to have the feel of the case and that the appellate court should only interfere in exceptional circumstances, either if there has been error in principle or if there is no material on which the trial judge could properly have exercised his decision. My Lords, clearly there was admissible material and that wasn’t an issue below, so the only question really below, was whether the trial judge had erred in principle.

The majority gave a number of reasons which we have set out on p 6 of our petition for holding that the trial judge had erred. And, it is our respectful submission that those reasons really compromised the operation of the subsection and, already as a result of the decision of the majority, some prosecutors in Hong Kong are approaching the use of s 54(1)(f) with the greatest of reluctance. There is a feeling already abroad that it is perhaps best left alone, because it could well lead to a conviction being overturned on appeal because it falls foul of one or more of the reasons given by the majority in the Court of Appeal. It is our submission that before holding that a trial judge has erred in principle, the appellate court must first decide that no reasonable judge could have reached the conclusion that he did, and that the admission of the evidence would necessarily occasion unfairness.My Lords, of course, the authorities do show that, once the shield is lost, the jury is entitled to be told of the previous[1994] 1 HKC 1 at 3convictions, subject only to the overriding discretion to exclude them if the interests of a fair trial so require and this was demonstrated by the warning which Viscount Dilhorne, in Your Lordships’ House, said was desirable in the case of Selvey. And our submission is that the clear legislative intention is that where imputations are cast, the tribunal should be able to assess the likelihood of the allegations being true by reference to the fact whether the allegations come from a reliable or non-reliable source.

Lord Woolf:

Would it be fair to say the way you put your case is that Selvey is rightly decided and, if the Court of Appeal had applied Selvey, you wouldn’t have had to come here?

Mr Cross QC:

In large measure, but there are also aspects of the case which are not touched upon by Selvey.

Lord Woolf:

Speaking for myself, what I saw as the difficulty here was that there was no point of principle. It was perhaps an unfortunate decision by the Court of Appeal but it really should be regarded as an aberrant decision and really one which would not be worth coming here because of the impact.

Mr Cross QC:

My Lords, the matters which we say weren’t canvassed in Selvey were these. My Lords, the court attached significance to the fact that the convictions, the original convictions, the 1981 convictions, occurred when the defendant was only aged 15 and that they were of a similar nature and, it is our submission that unless convictions are spent and unless they are trivial convictions, then a judge ought normally to allow them to be placed before a jury. These were not spent convictions even though they occurred when the defendant was aged 15.

Lord Woolf:

Yes, but it must be a matter which a judge would be entitled to take into account in his discretion in deciding what justice requires.

Mr Cross QC:

My Lord, yes. But the judge obviously in this case decided that, despite the age and despite the similarity of the previous convictions, this was an appropriate case to exercise his discretion not to disallow.

Lord Woolf:

Yes, that’s how he exercised his discretion.

Mr Cross QC:

Yes. The other matter which was not touched upon in Selvey relates to the important issue of whether, in exercising the discretion on one count to lift the shield, the judge is required to have regard to the fact that there are one or more counts on the indictment. My learned friends and I have searched extensively for authority on this, there is very little authority either in this country or in England. There is one case, a 1963 case called R v Curbishley default [1963] Crim LR 778, which my learned friend Mr McCoy has located, which was concerned with a multi-count indictment. And we say that normally, a jury would be entitled to know of the previous convictions of the defendant once his shield is lost on one count, albeit that there is another count on the indictment, and this, perhaps, is the essence of the judgment of the Court of Appeal, saying that[1994] 1 HKC 1 at 4in effect, the jury should not have been told and the shield should not have been lost because there was another count. We say on that that a defendant cannot expect to cast his imputations in relation to one count with impunity and then turn around and say ‘the shield should not be lost because I am also facing another count to which the allegations do not relate’.

Lord Keith of Kinkel:

This is one of the factors to be taken into account.

Mr Cross QC:

It certainly is a factor to be taken into account, but it’s been erected by the majority in the Court of Appeal into a hard and fast rule and that will place the Court of Appeal in considerable difficulty.

Lord Woolf:

Did the majority of the Court of Appeal go so far as to say that that was a hard and fast rule? Weren’t they really saying it was their view that, this was a relevant consideration and the judge hadn’t taken it into account?

Mr Cross QC:

Well, yes.

Lord Woolf:

It must be a relevant consideration that there are other counts surely?

Mr Cross QC:

Well, of course our position is that it may be relevant, but this was the case whether the learned judge was fully aware of the other counts.

Lord Woolf:

That turns on the facts of the particular case rather than any point of principle.

Mr Cross QC:

My Lord, yes. There is surely a point of principle there in the sense that if it had been a multi-count indictment, then the situation might well have been different and we wouldn’t be before Your Lordships today. If it had been a multi-count indictment, then perhaps it would be appropriate not to lose the shield if the allegations related only to one of the counts but not to the other counts, particularly if the other counts were far more serious, but here, the learned judge was fully aware of the fact that the imputations related to the first count and he exercised his discretion accordingly. So, that is the second matter which we say was not covered in Selvey. The third matter is that an additional fetter has been placed upon the operation of the subsection in consequence of that which was said by Sears J in his judgment as part of the majority. He made reference to the strength of the case and the complexity or simplicity of the issues. And so, clearly, the lower courts in Hong Kong from now on will need to know whether in fact, when deciding whether to lift the shield or to allow the shield to be lifted and the cross-examination to continue, they should be looking to whether the Crown had a strong case and they should be looking to whether the issues are simple or complex. And that is a new fetter upon the operation of the sub-section which didn’t hitherto exist. And we say that it must be wrong and that the wording of the sub-section should be given its plain meaning. So we do, with respect, say that that part of the judgment of Sears J as well does set a precedent which will not bode well for the future interpretation of the section by the lower courts in Hong Kong.

[1994] 1 HKC 1 at 5Lord Browne-Wilkinson:

Could you help me with the Court of Appeal’s point (vi)? Your summary of the majority’s reasons for interfering with the judge’s discretion — ‘the allegation of planting was part and parcel of the defence’ — does this mean that in all drug cases and indeed in other cases where the accused is found in possession of the object in question and raises a planting, then his record is inevitably kept out?

Mr Cross QC:

My Lord, it doesn’t mean that this was one of the issues which was considered by Your Lordships’ House in Selvey.

If it is part and parcel of the defence, it is not open to the defence to turn round and say ‘because it is part and parcel of the defence, our shield should not be lost’. But, there was some suggestion to the contrary in the judgment of Bewley J at the bottom of pp 321–322 and, in so far as the learned judge did seem to be suggesting the opposite, it was quite clear that as My Lord, Lord Woolf says that it is in conflict with Selvey. My Lords, the final matter is perhaps, in our respectful submission, not so significant as the others but in the majority judgment of Bewley J, at pp 321–322, there is, with respect, a large element of conjecture in the way in which he goes about the matter. My Lords, he says on p 321D, in relation to the trial judge, ‘The judge does not appear to have distinguished between the two counts … Here the judge does not seem to have considered allowing the Crown to cross-examine only about the robbery convictions’. And then in relation to the matters which My Lord, Lord Browne-Wilkinson just raised at p 322A:

The allegation of planting was part and parcel of the defence. If the drugs were not planted by the police, they must have been in the possession of the applicant. That is not to say that an allegation of attempting to pervert the course of justice may be made with impunity. Clearly, on the authority of Selvey, that is not so, but it is something which a judge should take into account when weighing the issues. It is not apparent that that was done in this case.

Selveymakes it clear that for the purpose of cross-examination in these circumstances is to diminish the credit of the man who is making the imputations but simply because it is part of the defence is no reason for not allowing the shield to be lifted.

Lord Browne-Wilkinson:

No reason, not even a factor to be taken into account?

Mr Cross QC:

Well, it’s a factor, My Lord, Your Lordships’ House did make it quite clear that there is ultimately a residual discretion in the courts. And, the final matter on this point, if I may, was in the final paragraph, where at p 322F, the learned judge noted that ‘although Mr Nguyen raised most of these matters in opposing the application, I am unable to say, looking at the transcript, that the judge gave them proper consideration when making his ruling and I was therefore not satisfied that he exercised his discretion on a proper basis’. So, My Lords, in relation to those four matters the learned judge did not actually say that the trial judge[1994] 1 HKC 1 at 6erred in principle, he is just saying in effect that it seems as though he may not have taken these matters into account. And so, in consequence of that as well, it will now be unclear to Hong Kong judges and magistrates as to whether, when they make a decision under s 51(1)(f), they are required henceforth to give detailed reasons canvassing all these matters; because if they do not, then of course they will be exposed to the approach which is being adopted by Bewley J. And certainly as things stand, there is no rule of law or of practice or procedure that a trial judge or a magistrate does have to give reasons but it would seem, that in light of the approach of Bewley J and if this matter is now completely unclear, that henceforth, they will have to give detailed reasons as to why they exercise their discretion in a particular way. My Lords, those are our submissions, unless there is any other matter on which I can assist Your Lordships.

Lord Browne-Wilkinson:

I’m sorry to keep on on this point, but Sears J seems to have taken the view that there was no allegation of a plant on the defendant. Now that must be clear one way or the other.

Mr Cross QC:

I found that, with respect, very difficult to understand indeed.

Your Lordships will see that Mr Nguyen, who was counsel for the respondent at the trial, in an exchange with the trial judge, accepted that it amounted to a plant.

Lord Browne-Wilkinson:

That’s what I thought.

Mr Cross QC:

My Lord, yes.

Lord Browne-Wilkinson:

That’s a manifest misdirection.

Mr Cross QC:

That’s clearly wrong as well, My Lord, yes. My Lords, with the greatest respect, we do say that the two judgments of the majority taken together do have the potential of causing the courts of Hong Kong to be diverted into the wrong course and already, as I say, some prosecutors are approaching the question with the greatest reluctance because they fear that there will be appeals arising in consequence. My Lords, I am much obliged.

Lord Keith of Kinkel:

Thank you, Mr Cross. Their Lordships need not trouble you, Mr McCoy, and will humbly advise Her Majesty that this petition ought to be dismissed.

[The petitioner was ordered to pay the respondent’s costs.]

Raymond Tsui Wai Nam

[Evidence of Bad Character] R v Selvey [1970] AC 304

  • Crime – Evidence – Character – Nature of defence involving imputation against prosecutor – Discretion of judge to admit previous record – Whether discretion unfettered – Whether general rule limiting exercise against defence – Defendant’s refusal to admit or deny previous record – Whether tantamount to admission – No warning to jury that record not formally proved – Effect – Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 1 (f) (ii).
The appellant was charged with buggery, the complainant being a young man aged 21. He denied the charge and declined to answer questions. At the trial the evidence for the prosecution included medical evidence that the complainant had been sexually interfered with on the day in question and also indecent photographs found in the appellant’s room by the police. The appellant in his own evidence, while denying the charge, said that the complainant had told him in his room on the afternoon in question that he had already on the same day allowed an act of buggery on his person for £1 and would do the same again for money. He denied knowledge of the photographs and suggested that they had been planted on him. Thereupon the trial judge of his own motion asked whether the appellant was asking the jury to disbelieve the complainant because he was “that sort of young man.” The appellant replied: “Yes.” The judge sent the jury out, and in their absence ruled that in view of the attack on the complainant’s character the jury ought to know the appellant’s previous record of convictions which included a number of convictions for similar homosexual offences. The record was then put to the appellant in the presence of the jury. He stonewalled and did not make

[1970] A.C. 304 Page 305

any admissions. The record was not formally proved; but in summing up, the judge treated the appellant’s attitude as tantamount to an admission of the previous convictions. The jury found him guilty and he was sentenced to four years’ imprisonment.

On appeal, on the grounds, inter alia, that as the nature of his defence necessarily involved the imputation against the complainant, the judge in accordance with “the general rule” should have exercised his discretion under section 1 (f) (ii) of the Criminal Evidence Act, 1898,1 in his favour by excluding his previous record. and that the jury should have been warned that it had not been formally proved:-

Held, dismissing the appeal, (1) that a judge had an unfettered discretion under section 1 (f) (ii) of the Act of 1898 to admit or exclude the previous record or character of an accused and to allow cross-examination on it; and there was no general rule that the discretion should be exercised in favour of the accused, even where the nature of his defence necessarily involved his making imputations on a prosecution witness.

Per curiam: In rape cases the accused can allege consent without placing himself in peril of such cross-examination (post, pp. 339E, 344F, 355H).

(2) That as there was a real issue about the conduct of an important witness which the jury would have to settle in order to reach their verdict, the judge in this case had exercised his discretion correctly to enable them to know the previous record of the man on whose word the complainant’s character was being impugned.

(3) That the failure to prove the previous record formally or to warn the jury that it had not been proved was not a ground for allowing the appeal, for in the circumstances the jury were entitled to treat the appellant’s attitude as tantamount to an admission of the record.

Per Viscount Dilhorne. It is desirable that a warning should be given when it becomes apparent that the defence is taking a course which may expose the accused to cross-examination under the section (post, p. 342A).

Per Lord Pearce and Lord Wilberforce. A more detailed explanation to the jury would have been desirable to indicate in what light they should view the appellant’s convictions and how this should affect their minds. This is particularly desirable, when as here, it is the judge who is initiating the cross-examination of the accused as to his previous convictions (post, p. 361D-F).

Fourth proposition of Viscount Simon L.C. in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327; [1944] 2 All E.R. 13, H.L.(E.) considered.

Rex v. Hudson [1912] 2 K.B. 464, C.C.A. and Reg. v. Cook [1959] 2 Q.B. 340; [1959] 2 W.L.R. 616; [1959] 2 All E.R. 97, C.C.A. applied.

  • Footnote 1     Criminal Evidence Act, 1898, s. 1: “Every person charged with an offence … shall be a competent witness for the defence at every stage of the proceedings … Provided as follows:- … (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless … (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; …”

[1970] A.C. 304 Page 306

Reg. v. Flynn [1963] 1 Q.B. 729, 737; [1961] 3 W.L.R. 907; [1961] 3 All E.R. 58, C.C.A. not followed.

Decision of the Court of Appeal [1968] 1 Q.B. 706; [1967] 3 W.L.R. 1637; [1968] 2 All E.R. 94, C.A. affirmed.

The following cases are referred to in their Lordships’ opinions:

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401, H.L.(E.).

Fielding v. H.M. Advocate, 1959 S.C.(J.) 101.

Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044, H.L.(E.).

Jones v. Director of Public Prosecutions [1962] A.C. 635; [1962] 2 W.L.R. 575; [1962] 1 All E.R. 569, H.L.(E.).

Kuruma v. The Queen [1955] A.C. 197; [1955] 2 W.L.R. 223; [1955] 1 All E.R. 236, P.C.

Lawrie v. Muir, 1950 S.C.(J.) 19.

Malindi v. The Queen [1967] 1 A.C. 439; [1966] 3 W.L.R. 913; [1966] 3 All E.R. 285, P.C.

Maxwell v. Director of Public Prosecutions [1935] A.C. 309, H.L.(E.).

Noor Mohamed v. The King [1949] A.C. 182; [1949] 1 All E.R. 365, P.C.

O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90.

Reg. v. Brown (1960) 44 Cr.App.R. 181, C.C.A.

Reg. v. Clark [1955] 2 Q.B. 469; [1955] 3 W.L.R. 313; [1955] 3 All E.R. 29, C.C.A.

Reg. v. Cook [1959] 2 Q.B. 340; [1959] 2 W.L.R. 616; [1959] 2 All E.R. 97, C.C.A.

Reg. v. Flynn [1963] 1 Q.B. 729; [1961] 3 W.L.R. 907; [1961] 3 All E.R. 58, C.C.A.

Reg. v. Marshall (1899) 63 J.P. 36.

Reg. v. Murphy [1965] N.I. 138.

Reg. v. Rowton (1865) 10 Cox C.C. 25.

Rex v. Biggin [1920] 1 K.B. 213; 14 Cr.App.R. 82, C.C.A.

Rex v. Bridgwater [1905] 1 K.B. 131.

Rex v. Christie [1914] A.C. 545, H.L.(E.).

Rex v. Dunkley [1927] 1 K.B. 323, C.C.A.

Rex v. Fletcher (1913) 9 Cr.App.R. 53, C.C.A.

Rex v. Grout (1909) 3 Cr.App.R. 64, C.C.A.

Rex v. Hudson [1912] 2 K.B. 464, C.C.A.

Rex v. Jenkins (1945) 31 Cr.App.R. 1, C.C.A.

Rex v. Jones (1923) 17 Cr.App.R. 117, C.C.A.

Rex v. Preston [1909] 1 K.B. 568, C.C.A.

Rex v. Rappolt (1911) 6 Cr.App.R. 156, C.C.A.

Rex v. Roberts (otherwise Spalding) (1920) 15 Cr.App.R. 65, C.C.A.

Rex v. Rouse [1904] 1 K.B. 184.

Rex v. Sheean (1908) 21 Cox C.C. 561.

Rex v. Turner [1944] K.B. 463; [1944] 1 All E.R. 599, C.C.A.

Rex v. Watson (1913) 8 Cr.App.R. 249, C.C.A.

Rex v. Westfall (1912) 7 Cr.App.R. 176, C.C.A.

Rex v. Wright (1910) 5 Cr.App.R. 131, C.C.A.

Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13, H.L.(E.).

[1970] A.C. 304 Page 307

The following additional cases were cited in argument:

Callis v. Gunn [1964] 1 Q.B. 495; [1963] 3 W.L.R. 931; [1963] 3 All E.R. 677, D.C.

Curwood v. The King (1944) 69 C.L.R. 561 (Australia).

Dingle v. Associated Newspapers Ltd. [1961] 2 Q.B. 162; [1961] 2 W.L.R. 523; [1961] 1 All E.R. 897, C.A.

Director of Public Prosecutions v. Smith [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.(E.).

H.M. Advocate v. Turnbull, 1951 S.C.(J.) 96.

Makin v. Attorney-General for New South Wales [1894] A.C. 57, P.C.

Murdoch v. Taylor [1965] A.C. 574; [1965] 2 W.L.R. 425; [1965] 1 All E.R. 406, H.L.(E.).

Myers v. Director of Public Prosecutions [1965] A.C. 1001; [1964] 3 W.L.R. 145; [1964] 2 All E.R. 881, H.L.(E.).

Reg. v. Attwood [1960] A.L.R. 321 (Australia).

Reg v. Cunningham [1959] 1 Q.B. 288; [1959] 2 W.L.R. 63; [1958] 3 All E.R. 711, C.C.A.

Reg. v. Fisher, “The Times,” January 31, 1899.

Reg. v. HarzReg. v. Power [1967] 1 A.C. 760; [1967] 2 W.L.R. 297; [1967] 1 All E.R. 177, H.L.(E.).

Reg. v. Herron [1967] 1 Q.B. 107; [1966] 3 W.L.R. 374; [1966] 2 All E.R. 26, C.C.A.

Reg. v. Levy (1966) 50 Cr.App.R. 238, C.C.A.

Reg. v. List [1966] 1 W.L.R. 9; [1965] 3 All E.R. 710.

Reg. v. Manley (1962) 46 Cr.App.R. 235, C.C.A.

Reg. v. Matthews [1965] Qd.R. 306 (Australia).

Reg. v. Morris (1959) 43 Cr.App.R. 206, C.C.A.

Reg. v. Ondras [1962] Cr.L.R. 543, C.C.A.

Reg. v. Payne [1963] 1 W.L.R. 637; [1963] 1 All E.R. 848, C.C.A.

Reg. v. Sargvon (1967) 51 Cr.App.R. 394, C.C.A.

Reg. v. Shrimpton (1851) 2 Den. 319.

Reg. v. Thompson [1966] 1 W.L.R. 405; [1966] 1 All E.R. 505; 50 Cr. App.R. 91, C.C.A.

Reg. v. Toohey [1965] A.C. 595; [1965] 2 W.L.R 439; [1965] 1 All E.R. 506, H.L.(E.).

Rex v. Baldwin (1925) 18 Cr.App.R. 175, C.C.A.

Rex v. Bond [1906] 2 K.B. 389.

Rex v. Butterwasser [1948] 1 K.B. 4; [1947] 2 All E.R. 415, C.C.A.

Rex v. Cator (1802) 4 Esp. 117.

Rex v. Chitson [1909] 2 K.B. 945.

Rex v. Eidinow (1932) 23 Cr.App.R. 145, C.C.A

Rex v. Ellis [1910] 2 K.B. 746, C.C.A.

Rex v. Inhabitants of Eriswell (1790) 3 Durn. & E. 707.

Rex v. Jones (1909) 3 Cr.App.R. 67, C.C.A.

Rex v. Kennaway [1917] 1 K.B. 25.

Rex v. Kurasch [1915] 2 K.B. 749.

Rex v. Wright (1910) 5 Cr.App.R. 131, C.C.A.

Speidel v. Plato Films Ltd. [1961] A.C. 1090; [1961] 2 W.L.R. 470; [1961] 1 All E.R. 876, H.L.(E.).

The People v. Bond [1966] I.R. 214.

APPEAL from the Court of Appeal (Criminal Division).

The appellant, Wilfred George Selvey, was tried before Stable J. and a jury at Nottingham Assizes on an indictment that he on January 26, 1967,

[1970] A.C. 304 Page 308

in the City of Lincoln, committed buggery with the complainant, to which he pleaded not guilty. Witnesses for the prosecution included the complainant, a young man of 21, police officers, and a doctor who had examined the complainant shortly after the matter complained of on January 26 and gave evidence that the complainant had been buggered within the previous six hours or so. The police also produced two indecent photographs found in the appellant’s room.

The appellant in his evidence stated that he had been approached by the complainant in the street, and that the complainant had asked him if he could go along and see the appellant’s room as the complainant was looking for a room; that when they got to the room the complainant asked for a loan of £1 and said that he was “prepared to go on the bed” and that he had already been with a person who had given him £1: that the appellant refused, saying he was not interested; and that on that the conversation ended and the complainant left and the appellant went to bed. He denied that the photographs belonged to him and said he had not seen them before his appearance before committing justices. At the end of his cross-examination, and following on a question put to him by Stable J., the judge ruled that as a result of the appellant’s attack on the complainant, a witness for the prosecution, the jury were entitled to know the appellant’s character.

Counsel for the defence then submitted that in view of the medical evidence it was of the essence of the defence that the appellant should describe the conversation which he said had taken place between himself and the complainant; but the judge rejected the submission and permitted cross-examination on the previous record of convictions, which included a number of convictions for offences of indecency of a similar type to the present charge. The appellant declined to answer any questions relating to his previous convictions. The judge did not require them to be formally proved nor did he warn the jury that they had not been properly proved. In his summing-up, while telling the jury that they must deal simply and solely with the evidence relating to the particular charge, he said:

“You would have been in a perfectly hopeless position if you had to try this case with the idea that that young man [the complainant] was a sort of male prostitute, carrying about filthy photographs on him, and the man in the dock was a man, so far as you knew, of unblemished character. It is obvious you would have had a perfectly false picture before you.”

The jury found the appellant guilty of the charge, and the judge sentenced him to four years’ imprisonment.

The appellant appealed, pursuant to leave granted by Cusack J., against his conviction on the grounds, inter alia, that (1) the judge in allowing his previous criminal record to be put to him either did not exercise his discretion at all or exercised it wrongly; and (2) that the appellant not having admitted the previous convictions, the judge did not require them to be formally proved but went on to direct the jury as if they had been proved in evidence.

On November 10, 1967, the Court of Appeal (Lord Denning M.R., Widgery and MacKenna JJ.) dismissed the appeal.

The appellant was granted a certificate that points of law of general

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public importance were involved in the decision, namely, (i) if the making of the imputation was necessary for the proper development of the defence, was the cross-examination permitted by the Criminal Evidence Act, 1898, s. 1 (f)? (ii) Was there a general rule as to the exercise of the judge’s discretion as stated in Reg. v. Flynn [1963] 1 Q.B. 729? Leave to appeal was refused.

On November 30, 1967, the Appeal Committee of the House of Lords (Lord Guest, Lord Wilberforce and Lord Pearson) allowed a petition for leave to appeal.

Jeremy Hutchinson Q.C. and Richard du Cann for the appellant.

The certificate raises two questions for determination and the appellant desires to raise the following further questions: (i) Insofar as the appellant made imputations on the character of a witness he was trapped into so doing when questioned by the judge. (ii) The judge failed to explain to the jury the manner in which they should consider the evidence relating to the appellant’s previous convictions. The judge should have directed the jury (a), that first they must be satisfied that the convictions had been proved, and (b), that if so satisfied such evidence was only relevant to the appellant’s credibility and not to the probability of his having committed the offence charged.

It is to be observed that the words of the proviso in section 1 (f) (ii) of the Criminal Evidence Act, 1898, “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor” have not hitherto been the subject of an appeal to this House.

Reliance is placed on the following propositions: 1. An accused may without losing the protection of the proviso ask of a prosecution witness all questions that are necessitated by the proper conduct of his defence. 2. Insofar as it may be necessary to construe the word “character” as it is used in the proviso, it should be construed as meaning “general reputation.” 3. So long as the nature or conduct of the defence is relevant to an issue on the facts of the case the accused does not lose the protection of the proviso. 4. Insofar as the effects of section 1 have been limited by the exercise of the judge’s discretion it has led to considerable variations in practice and uncertainty in the courts. In the matter of a statutory provision of such wide application as the proviso it should not normally be dependent on the proper exercise of the discretion. 5. Where the discretion is exercised it should be exercised as laid down in Reg. v. Flynn [1963] 1 Q.B. 729.

This appeal raises a question of great importance for as the law stands if an accused person with a record alleges, for example, that a statement that he made was made as the result of an inducement, duress or an assault upon him he loses the protection of this section for the proviso applies with the consequence that his own character is put in issue. Further, on principle, if section 1 (f) (ii) be not construed in the above manner there is no means whereby it can validly be held that the defence to a charge of rape, that the woman consented, would not let in the application of the proviso.

The judgment of the Court of Appeal ([1968] 1 Q.B. 706) highlights the present submission of how unsatisfactory it is for the application of

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the proviso to depend upon the exercise of a discretion. This is important because magistrates who have to try both questions of law and fact have to apply the proviso.

Section 1 (e) of the Act of 1898 places the accused in precisely the same position as any other witness giving evidence. Section 1 (f) forbids the putting of certain questions to the accused, namely, those relating to other offences committed by him which would not normally be relevant to the issue and the charge. Sub-paragraphs (ii) and (iii) concern matters relating to credit – the general reputation of prosecution witnesses. The only sensible way to construe “good character” in sub-paragraph (ii) is as meaning “good reputation.”

The authorities

In Rex v. Rouse [1904] 1 K.B. 184 it was held that for the accused to allege that a prosecution witness’s evidence was not the truth did not let in the proviso. The early cases approach the present matter correctly on the question of relevance. They emphasise that raising a defence, even in forcible language, is not of necessity casting imputations on the character of the prosecutor or the prosecution witnesses: see Rex v. Bridgwater [1905] 1 K.B. 131 and Rex v. Preston [1909] 1 K.B. 568, at p. 575, the principle, stated by Channell J.: “If the defence is … that the jury ought not to believe the prosecutor or one of the witnesses for the prosecution upon the ground that his conduct – not his evidence in the case but his conduct outside the evidence given by him, makes him an unreliable witness, then the jury ought … to know the character of the prisoner …” Further, in Rex v. Grout (1909) 3 Cr.App.R. 64, it was held that questions in the nature of a trap were to be deprecated and did not let in the proviso. [Reference was made to Rex v. Jones (1909) 3 Cr.App.R. 67.]

Rex v. Wright (1910) 5 Cr.App.R. 131, departed from the principle of Preston [1909] 1 K.B. 568 in that it was held that the accused’s statement that he had been bribed to make a confession was an imputation on the character of the police inspector concerned and that therefore it was proper to have allowed cross-examination of the accused as to character even though the making of the imputation might be “the only way open to the [accused] of meeting the case against him.” Rex v. Preston was sought to be distinguished but on no rational principle. It follows that Rex v. Wrightwas wrongly decided.

Rex v. Ellis [1910] 2 K.B. 746, although concerned with good character, is relevant as showing that the courts should be slow to deprive an accused of the protection which the Act of 1898 has given him. Rex v. Rappolt (1911) 6 Cr.App.R. 156 was wrongly decided. It is out of line with the main current of the above authorities. The approach adopted in Rex v. Westfall (1912) 7 Cr.App.R. 176 as to the construction of section 1 (f) (ii) is correct. It follows Bridgwater [1905] 1 K.B. 131and Preston [1909] 1 K.B. 568.

The decision in Rex v. Hudson [1912] 2 K.B. 464, which was heard by a full court of five judges, has given rise to most of the subsequent difficulties relating to this question. There it was held that the words of the section must be given their ordinary and natural interpretation. Bridgwaterand Preston were distinguishable on the grounds: (i) that in those cases there

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was no imputation on the character of the prosecution witnesses; (ii) that they were not laying down a general rule applicable to all cases. It necessarily follows from Hudson that if the accused denies the offence and alleges that a prosecution witness committed it that the accused’s previous convictions are put in evidence and the purpose of the Act is thereby frustrated.

Subsequent eases have attempted to soften the effect of Hudson and in consequence difficulties have arisen. Thus in Rex v. Watson (1913) 8 Cr.App.R. 249 the proposition was first adumbrated that the trial judge has a discretion whether or not he will allow cross-examination as to character under section 1 (f) (ii).

In Rex v. Biggin [1920] 1 K.B. 213 the charge was murder. Imputations had been made on the character of the deceased and the proviso was held inapplicable, since the deceased was not the prosecutor. Rex v. Roberts (Otherwise Spalding) (1920) 15 Cr.App.R. 65 was wrongly decided. It falls within, not outside, the principle of Preston [1909] 1 K.B. 568 for to allege that a prosecution witness is motivated by revenge is exactly comparable to the allegation that he is telling lies. This, again, is a decision that renders nugatory the purpose of the Act which is to enable an accused to put forward his defence. [Reference was made to Rex v. Jones (1923) 17 Cr.App.R. 117.]

Rex v. Baldwin (1925) 18 Cr.App.R. 175 is another instance of where the asking of trap questions was deprecated: see also Rex v. Eidinow (1932) 23 Cr.App.R. 145 which illustrates the difficulties which arise every day in practice in relation to this branch of the law of evidence.

Rex v. Dunkley [1927] 1 K.B. 323 is the first reported decision after the Act of 1898 in which consideration is given to the meaning that the word “character” bears in that statute. Although it was stated that it was too late to contend that it bore the meaning “general reputation,” no alternative construction was given.

In Maxwell v. Director of Public Prosecutions [1935] A.C. 309 the issue was whether certain questions put to the accused by the prosecution were admissible under section 1 (f) (i). Strong reliance is placed on the observations of Viscount Sankey L.C., at p. 320, that “it is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined,” and on his statement, at p. 321, that “indeed the question whether a man has been convicted, charged or acquitted ought not to be admitted, even if it goes to credibility, if there is any risk of the jury being misled into thinking that it goes not to credibility but to the probability of his having eom mitted the offence of which he is charged,” albeit these statements are made with reference to the exercise of the discretion.

Rex v. Turner [1944] K.B. 463, which was heard by a full court, made the first inroad into the strict principle laid down by Hudson [1912] 2 K.B. 464. The only ground for making the exception is that of justice to the accused. It involves reading “unnecessarily” into section 1 (f) (ii) so that it reads: “… or the nature or conduct of the defence is such as unnecessarily to involve imputations. …” Reliance is placed on this decision.

In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327, Rex v. Turner [1944] K.B. 463 was cited for the proposition that “an

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section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses.” It is to be observed that this is a generalisation of the statement in Turner and is not confining it to the defence of consent on a charge of rape.

Rex v. Jenkins (1945) 31 Cr.App.R. 1 sees the beginning of the modern line of cases on this topic. It is the “turn of the tide” and goes back on the principles adumbrated in Maxwell [1935] A.C. 309and Turner [1944] K.B. 463. In Jenkins there was no consideration of the principle involved here, namely, were the questions put in relation to a relevant matter and for the purpose of disputing a statement by a prosecution witness? Here, the appellant was entitled to adduce his version of the facts. As it happened this involved the morality of the main prosecution witness but this was incidental. It might have been something else, for example, an allegation that the prosecution witness was in a state of mental confusion.

If the operation of the section is to depend on the exercise of a discretion it is vital that some basis for it should be indicated, namely, that it should only be exercised against the accused if the statements in question are not facts relevant to the offence charged and that in any case of doubt the section should be operated in favour of the accused or in accordance with the decision in Reg. v. Flynn [1963] 1 Q.B. 729. To operate the discretion on the basis of “fairness” is unsatisfactory for a court’s view of what is “fair” will vary from judge to judge, magistrate to magistrate.

In the Scottish case of O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90 the court adopted the correct approach by construing the word “character” in section 1 (f) (ii) in reference to a prosecution witness as meaning “general character.” Reliance is placed on the words of Lord Thomson at p. 98: “… it is one thing to attack the character of a witness generally and another to do so inferentially by asking questions which are relevant to the defence and, indeed, without which the true facts cannot be ascertained. Fielding v. H.M. Advocate, 1959 S.C.(J.) 101 affirmed the principle adopted in O’Hara.

It is to be observed that in Reg. v. Clark [1955] 2 Q.B. 469, O’Hara does not appear to have been cited. Reg. v. Clark extends the decision in Hudson [1912] 2 K.B. 464 to include pleas of provocation and self-defence. It is a further illustration of the practical difficulties that arise on decisions following Hudson for if the accused with a previous conviction alleges to his advisers that the statement he made to the police was induced by a promise of favour, or by an assault upon him or, indeed, that the statement produced was different from that which he made, the accused at his trial has to put such allegations in a different form to prevent the proviso from operating. The accused in such circumstances is not able to place the true facts and his true defence before the court.

In Reg. v. Cunningham [1959] 1 Q.B. 288 where the defence of provocation was unsuccessfully raised Lord Parker C.J. said obiter that an allegation of homosexual advances would let in the proviso. This is wrong. It is in the same category as the allegation of consent in rape cases. It is true that in Reg. v. Fisher, “The Times,” January 31, 1899, Day J. held that an allegation of consent let in the proviso but this ruling was

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discountenanced in Rex v. Sheean (1908) 21 Cox C.C. 561 which has been followed ever since.

In Reg. v. Cook [1959] 2 Q.B. 340, 348, which was heard by a full court, it was stated that “if there is a real issue about the conduct of an important witness which the jury will initially have to settle in order to arrive at their verdict, then … the jury is entitled to know the credit of the man on whose word the witness’s character is being impugned.” But this is not a proper criterion on which to base the application of the proviso. It illustrates how very difficult it is to base a discretion on the concept of fairness. Reg. v. Morris (1959) 43 Cr.App.R. 206 and Reg. v. Brown(1960) 44 Cr.App.R. 181 followed the decision in Cook. Reg. v. Brown shows the situation into which the courts are led if the words of section 1 (f) are to be construed literally. That case entirely ignores the principle of O’Hara, 1948 S.C.(J.) 90.

Reg. v. Flynn [1963] 1 Q.B. 729, which was heard by a full court, is of great importance on the question of discretion. There it was held that the recorder had wrongly exercised his discretion against the accused since the very nature of the defence necessarily involved an imputation against a prosecution witness. In principle there is no difference between the allegation of an accused that he did not steal a £1 but was offered a £1 by the prosecution witness, who had made sexual approaches to him, and the allegation in O’Hara where the accused stated that he acted in self-defence the police officer being drunk having struck the first blow. [Reference was made to Reg. v. Ondras [1962] Crim.L.R. 543.]

As to Jones v. Director of Public Prosecutions [1962] A.C. 635, where there was an extensive consideration of section 1 (e) and (f), reliance is placed on the approach adopted in Lord Devlin’s opinion (p. 690 et seq.). Approval is there expressed (at pp. 701, 702) of Rex v. Turner [1944] 1 K.B. 463 and of Viscount Simon’s fourth proposition in Stirland [1944] A.C. 315, 326.

In Reg. v. Manley (1962) 46 Cr.App.R. 235, 239, there was a return to the criterion of the necessity to put the questions complained of by the prosecution because they were inherent in the defence. This decision illustrates clearly the confusion that pertains at the present time for these considerations were rejected in Reg. v. Cook [1959] 2 Q.B. 340. But it seems difficult to draw a distinction for present purposes between an allegation that a woman was unchaste and that a man was a homosexual. [Reference was made to Murdoch v. Taylor [1965] A.C. 574.]

In Reg. v. Levy (1966) 50 Cr.App.R. 238 the accused suggested that his alleged statement drawn up by a police officer was a complete fabrication. The Court of Criminal Appeal held that such an allegation put the accused’s character in issue. A distinction was there made between cases where the accused alleged that he did not make the statement in question and where he alleged that such statement was a fabrication. This is a completely unreal distinction.

[Reference was made to Reg. v. Sargvon (1967) 51 Cr.App.R. 394.]

Malindi v. The Queen [1967] 1 A.C. 439, 450, 451, draws a distinction between evidence as to a general good reputation and evidence tending to show a disposition to commit acts outside the issues involved in the case.

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The latter type of evidence, as Lord Devlin observed in Jones v. Director of Public Prosecutions[1962] A.C. 635, 698, 699, has never been allowed.

Reliance is placed on the Australian case of Reg. v. Attwood [1960] A.L.R. 321 since the considerations which there led to the view that the questions by the prosecution were relevant apply equally to the questions asked by the accused here. The Australian case of Reg. v. Matthews[1965] Qd.R. 306 followed Reg. v. Flynn [1963] 1 Q.B. 729. It was held that the court had a discretion in respect of the proviso which should have been exercised in favour of the accused for the imputations did not go further than was necessary to promote the defence.

Finally, in this line of authorities, The People (Attorney-General) v. Bond [1966] I.R. 214, where a new trial was ordered on the grounds that the judge had failed to inform the jury that the questions in issue went to the accused’s credibility and were not directed at showing the probability of the accused having committed the offence with which he was charged.

Competency of an accused person in 1898

In 1898 there were 28 statutory provisions under which an accused could give evidence on his own behalf. See Best on Evidence, 12th ed. (1922), pp. 535, 536. Well-known examples are the Explosive Substances Act, 1883, s. 4, the Criminal Law Amendment Act, 1885, s. 20. The fact that the accused has a bad character is deemed to be irrelevant unless it is itself a fact in issue, or unless evidence has been given that he has a good character, in which case evidence that he has a bad character is admissible: see Reg. v. Shrimpton (1851) 2 Den. 319. By the Previous Convictions Act, 1836, if upon the trial of any person for any subsequent felony, not punishable with death, he shall give evidence of his good character, it shall be lawful, in answer thereto, to give evidence of his conviction for a previous felony. See also the Larceny Act, 1861, s. 116 and the Coinage Offences Act, 1861, s. 37, for instances where a previous conviction may be proved.

Section 3 of the Criminal Procedure Act, 1865, is relevant to the construction of section 1 (f) of the Act of 1898 for, if the accused is allowed to impeach the credit of a witness by producing a previous statement and thereby showing that perjury has been committed, a literal construction of section 1 of the Act of 1898 would disable the accused from invoking section 3 of the earlier Act. This is a strong argument for a construction of section 1 of the Act of 1898 that avoids such a result.

Sections 18 and 19 of the Prevention of Crime Act, 1871, provide for the proof of previous convictions.

In view of the provisions of the statutes referred to above, it is unlikely that the effect of the Act of 1898 was to put the accused in a worse position than he was before its enactment in that if he made an imputation on the ordinary character of a prosecution witness it would let in his previous convictions. It is much more probable that the previous provisions relating to an accused putting in his good character were not affected by the Act and that proof of an accused’s previous convictions would only be allowed if he attacks the good general reputation of a prosecution witness.

In 1898 the draftsman would have understood the word “character” to mean “good general reputation” in view of the decisions in Reg. v.

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Rowton (1865) 10 Cox C.C. 25 and Makin v. Attorney-General for New South Wales [1894] A.C. 57. This is also the opinion expressed in the current editions of the leading textbooks: Archbold’s Criminal Pleading Evidence and Practice, 21st ed. (1893), Russell on Crime, 6th ed. (1896), Best on Evidence, 8th ed. (1893), Stephen’s Digest on the Law of Evidence, 4th ed. (1881), art. 56, pp. 63, 64.

In Rex v. Butterwasser [1948] 1 K.B. 4, 6, Lord Goddard C.J. drew attention to the decision in Rowton, 10 Cox C.C. 25 and in Dingle v. Associated Newspapers Ltd[1961] 2 Q.B. 162, 181, 195, Holroyd Pearce L.J. and Devlin L.J. stated that “character” means general reputation and not disposition throughout the civil and criminal law. This view was confirmed by Lord Radcliffe in Plato Films Ltd. v. Speidel [1961] A.C. 1090.

Reg. v. Toohey [1965] A.C. 595, 606, 608, supports the contention that it would be an injustice if an accused could not call evidence of the partiality, mental instability or drunkenness of a prosecution witness without fear of losing the protection afforded by the Act of 1898.

Discretion

In 1898 a presiding judge had no discretion concerning the admission of lawful evidence but only in respect of forensic matters: Best on Evidence, 12th ed., p. 100, para. 116. In the textbooks up to that time there is nothing to suggest that a court could refuse to admit lawful evidence; the discretionary power was confined to such matters as commenting on the refusal of the accused to go into the witness box and the allowing of a statement to be put to a witness who has become hostile.

At the present time it would appear that in practice there is an exclusionary discretion. This was not so in 1898. It is true that the High Court has always had an inherent jurisdiction to control the proceedings before it but since 1910 this concept seems to have been extended to a discretion in relation to the exclusion of evidence: see the reference to discretion in counsel’s argument in Rex v. Fletcher (1913) 9 Cr.App.R. 53, 54.

As to the use of the word “involve” in section 1 (f) (ii), it is not a word which affects the construction of the section. Section 1 (f) (ii) and (iii) relate to general credit. Paragraph (ii) is concerned first with the situation where an accused is endeavouring to establish his own good character and secondly “with the nature and conduct of the defence” and the word “involve” is an apt word to contain the words following that phrase.

The expression “such as to involve imputations on the character …” has to be construed in relation to whether the question complained of was relevant to an issue in the case. If it was then it is not an attack on the witness’s general reputation and the shield afforded to the accused is not lifted.

The difficulty that is posed by the reported cases is that they are ad hoc decisions based on a subjective foundation of the seriousness of the imputation. If, however, the criterion of relevancy is adopted the difficulty is obviated.

It is emphasised that whilst the concept of a discretionary power has developed, based on fairness, this is too subjective and imprecise a factor to form the basis of the operation of a rule of evidence.

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A discretion, if it be held to exist, should be exercised on the principle laid down in Reg. v. Flynn[1963] 1 Q.B. 729: see also Maxwell v. Director of Public Prosecutions [1935] A.C. 309, 321, perViscount Sankey L.C.

In fine, on the main submission, the House is invited to adopt the observations of Humphreys J. delivering the judgment of the full court in Rex v. Turner [1944] K.B. 463, the fourth proposition of Viscount Simon L.C. in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327, which are supported by Rex v. Rouse [1904] 1 K.B. 184Rex v. Bridgwater [1905] 1 K.B. 131Rex v. Preston [1909] 1 K.B. 568O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90 and Viscount Sankey L.C.’s view in Maxwell [1935] A.C. 309, 318 that “proviso (f) … is dealing with matters outside, and not directly relevant to, the particular offence charged. …”

Rex v. Hudson [1912] 2 K.B. 464 cannot be justified on any clear principle. It is tantamount to establishing the proposition that an accused is not entitled to raise a doubt whether the prosecution has proved an essential element in its case without putting his character in issue. [Reference was also made to Cross on Evidence, 3rd ed. (1967), p. 354; Rex v. Christie [1914] A.C. 545Harris v. Director of Public Prosecutions [1952] A.C. 694 and Reg v. Herron [1967] 1 Q.B. 107.]

Du Cann following.

The appellant’s submission on the meaning of “character” is supported by Archbold, 20th ed. (1886), Taylor on Evidence, 1st ed. (1848) and 9th ed. (1895) and Russell on Crime, 6th ed. (1896). It is to be observed that in the Criminal Procedure Act, 1865, there are separate provisions relating to bad character (section 3) and proof of a previous conviction (section 6). The latter is plainly a step in the attack on a witness’s general reputation.

As to the meaning to be placed on the expression “forensic procedure” in Best on Evidence, 12th ed., p. 100, art. 116, it covers all matters of procedure such as the order of speeches, whether the judge will allow re-examination after cross-examination or a witness to be called, comment on failure of the accused to give evidence and whether the prosecution should be put to their election which of two charges should be tried first: see The Judges’ Rules 1837 (8 C. & P. 676).

A clear distinction is to be drawn in cross-examination between questions which go to general reputation and those that appear to do so. The former category are intended to induce the court to reject the witness’s evidence on the ground that he is a person unworthy of credence. The latter are designed with the object of inducing a court to doubt the reliability of a witness on the facts of the case. There follows from this the distinction that as the questions in the first category go to character they raise a collateral issue which cannot be rebutted whilst those in the second do not raise collateral matters and, therefore, the defence can call rebutting evidence. There is all the difference between the allegations “You are a drunkard” and “You were drunk on that night so that your eyesight, your steadiness and your discrimination were affected”: see O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90.

Accordingly, to say of a woman “you are a common prostitute” goes to character and is a collateral issue. But if in a case of rape it was the accused’s defence, “she was standing on the street corner and she

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approached me,” this would be pertinent and relevant to the issue as to what the man thought would be a possible connection with her.

If the imputation comes not from the accused himself but from another defence witness is it right that the accused’s previous convictions should go in? Suppose here that there was medical evidence that the assault on the complainant must have taken place before 12 noon on the date in question, on the authority of Rex v. Hudson [1912] 2 K.B. 464 the accused’s convictions would still be allowed in.

Sections 4 and 5 of the Criminal Procedure Act, 1865, relate to proof of contradictory statements of adverse witnesses and cross-examinations as to previous statements in writing respectively. As regards section 5 of that Act, a strict interpretation of section 1 of the Act of 1898 would lead to extraordinary consequences; for the more successful an accused was in demonstrating that a prosecution witness had committed perjury on the depositions the more it amounts to an imputation on the witness’s character and on the law as it stands the greater the danger to the accused of disclosure of his previous convictions. This supports the contention that a strict interpretation of section 1 of the Act of 1898 should not be adopted.

As to the manner in which it was sought here to prove the appellant’s previous convictions, this was most unfortunate since it would lead the jury to the conclusion of the probability of the appellant having committed the offence charged. Moreover, it invited the conclusion that the appellant was lying about his convictions and this would impugn his general credibility in that it would seem that he was being deliberately untruthful.

The jury must be satisfied that the accused is accepting the statement as to his previous convictions: see Rex v. Christie [1914] A.C. 545, 554. Previous convictions must be strictly proved: Rex v. Butterwasser [1948] 1 K.B. 4.

Bernard Caulfield Q.C. and John Deave for the respondent.

The historical background to the Criminal Evidence Act, 1898

At common law a defendant in criminal proceedings was neither a competent nor compellable witness at any stage of the proceedings against him and even at the committal stage before the magistrate he was never under any obligation to answer questions put to him. And the defendant’s wife could not be compelled, nor indeed was she permitted, to give evidence against her husband, except in some instances where she was also the prosecutrix: see Archbold, 21st ed., p. 320.

By section 1 of the Evidence Act, 1843 (6 & 7 Vict. c. 18), it was expressly provided that that Act should not render competent any party to any suit, action or proceeding individually named in the record, or the husband or wife of such person. It was an Act passed to make certain incompetent witnesses competent.

By the Evidence Act, 1851 (14 & 15 Vict. c. 99), s. 2, parties to suits, actions, or other proceedings in courts of justice, were made competent and compellable to give evidence for or against each other. But by section 3 a person was not competent or compellable to give evidence for or against himself or herself. This provision is the origin of the rule that a person cannot be compelled to answer a question which tends to incriminate him. Under this Act husband and wife are put in the same position. Section 3

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is silent concerning evidence given by a defendant against a co-defendant. It was therefore supposed that one defendant jointly indicted or tried with another or others was competent and compellable under the Act of 1851 to give evidence for or against the co-defendant. But Reg. v. Payne (1872) L.R.C.C.R. 349 held that this opinion was wrong and it deprecated the practice of indicting two persons for the mere purpose of preventing one of them from being called as a witness: see Archbold, 21st ed., p. 321.

Section 3 of the Act of 1865 explains the necessity for section 1 (e) of the Act of 1898 since by the latter Act the accused became competent to give evidence on his own behalf and thus he would have been placed in too favourable a position if he were able to claim the privilege against self-incrimination on the ground that his answer to a question might show that he had committed the crime charged.

By section 1 of the Evidence Amendment Act, 1883 (16 & 17 Vict. c. 83), husbands and wives of parties were made admissible witnesses and therefore by 1853 the parties and husbands and wives of parties in civil suits were competent and compellable witnesses. Section 3 of the Act of 1853, which provides for the exclusion of communications between parties during the subsistence of the marriage, explains the inclusion of a similar provision in section 1 (d) of the Act of 1898.

If the accused was represented by counsel the latter could examine and cross-examine witnesses and address the jury and the accused could make his statement after counsel had addressed them: see section 2 of the Criminal Procedure Act, 1865, and Archbold, 21st ed., p. 180. The intention of the Act of 1898 was to confer a benefit on the accused and to ensure that any advantages (save that of self-incrimination) should be retained: see, for example, section 2.

Tactics at trial

At common law the defendant could impugn the prosecution witnesses – the accused could not personally be impugned since he was neither a competent nor compellable witness. As to the manner in which this was done, it could take the form of an attack on the general reputation of the witnesses in which case it would appear that the Crown could in rebuttal call evidence of the general reputation of the Crown witnesses so impugned. But what if the attack on the credit of a Crown witness took the form of an allegation that he had committed a crime? Some judges held that a witness could not even be asked a question, which, if answered in the affirmative, would subject him to punishment. Other judges held that a witness could be so asked but could not be compelled to answer. Others again, held that he could be so asked but could not be required to answer such questions or, in addition, any question whereby he might have to concede his own infamy or turpitude although they would not subject him to punishment. For the view which prevailed: see Archbold, 21st ed., p. 328, where it is stated that a witness could not be compelled to answer such questions where the answers would have a tendency to expose him to a criminal charge, or to a penalty or forfeiture of any nature.

All other questions (not being questions the answers to which would have the aforementioned tendency) which were addressed for the purpose of impeaching a witness’s character could be put and had to be answered

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although the answers might degrade the witness’s character: Archbold, 21st ed., p. 329. If the witness denied the improper conduct such denial was conclusive and one could not afterwards call witnesses or offer other evidence to contradict him, that is, if the question was merely collateral to the point in issue. If, however, the degrading question was relevant to the point or facts in issue and was denied by the witness then evidence could be adduced to contradict the witness.

The reason for the enactment of section 6 of the Criminal Procedure Act, 1865, is plain. Reg. v. Rowton, 10 Cox C.C. 25 was decided in January 1865. The Act of 1865 received the royal assent on May 9, 1865; the Act therefore must have been passed with that decision in mind and section 6 enabled a witness to be questioned whether he had been convicted of any felony or misdemeanour and proof thereof to be given.

In summary, from the time of the enactment of the Criminal Procedure Act, 1865, convictions could be put to Crown witnesses whether the conviction was relevant to the issue or collateral thereto. In 1865 neither an accused nor the spouse thereof was a competent or compellable witness. The accused or his counsel could impugn the character of a Crown witness, however great the attack upon him, without detriment to the defence. This was fair because the law forbade the accused to be a witness on his own behalf.

Circumstances in which an accused’s previous convictions could be put in

evidence

In consequence of 7 & 8 Geo. 4, c. 28, s. 11, a previous conviction for felony was recited in a subsequent indictment for felony. The Previous Convictions Act, 1836 (6 & 7 Will. 4, c. 111) remedied the defect of a recital of the accused’s convictions being disclosed to the jury before trial.

At common law in criminal trials the bad character of the accused was deemed irrelevant. This was an example of a general rule of English law that nothing shall be given in evidence which does not tend to the proof or disproof of the matter in issue. There had been attempts from time to time to show that the accused had a disposition to commit the type of offence for which he was indicted but these attempts failed. There were two exceptions to the above, however, where the character of the accused was considered relevant: (i) in order to show guilty knowledge: see Makin v. Attorney-General for New South Wales [1894] A.C. 57, 65; (ii) where it might be necessary in order to prove malice or intention. Hence when by virtue of the Act of 1898 the accused was made a competent witness it became necessary to preserve the exceptions, a fortiori, when he was to be given the shield afforded by section 1 (f). Accordingly, sub-paragraph (i) was included which is a statutory statement of the then common law position. It was also a common law rule that if the accused gave evidence of good character, whether by cross-examination of Crown witnesses or by adducing evidence in respect thereof, the Crown could adduce evidence of bad character in rebuttal. It would appear that evidence of the bad character of the accused at common law had to be related to general reputation: Reg. v. Rowton, 10 Cox C.C. 25.

It is next necessary to consider relevant statutes passed between the

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enactment of the Criminal Procedure Act, 1865, and that of the Criminal Evidence Act, 1898.

By section 11 of the Conspiracy and Protection of Property Act, 1875, parties and husbands and wives of parties are deemed to be competent witnesses for the purposes of proceedings brought under sections 4, 5 and 6 of that Act. The question arises whether by virtue of section 6 of the Criminal Procedure Act, 1865, an accused’s previous convictions could be put to him. This would appear to be so as regards proceedings brought under the Explosive Substances Act, 1883: see section 4 (2) thereof.

By section 20 of the Criminal Law Amendment Act, 1885, a person charged with an offence under that Act and the husband or wife of such person were made competent but not compellable witnesses. Again, the question arises whether, in view of section 6 of the Act of 1865, an accused who was charged under the later Act and who had a previous conviction for a sexual offence could have such conviction put to him.

If the Criminal Evidence Act, 1898, is considered in the light of the above background it will be seen that it brought about a considerable measure of reform in that the accused was made a competent but not compellable witness for the defence in all criminal cases. Further, the accused’s spouse was made a competent but not compellable witness in like circumstances. Moreover there was preserved the protection that communications between the spouses were absolutely privileged. It is true that in theory the spouse of a person charged under certain statutes, in particular with certain sexual offences specified in the offences against the Person Act, 1861, could be called as a witness either for the prosecution or defence without the accused’s consent but in the main the accused was protected from that form of attack. Furthermore, the common law rights which the accused enjoyed when he did not put his character in issue were preserved for him.

It is in the light of the above privileges afforded to the accused that the expression in section 1 (f) (ii) “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution” must be considered.

In the Crown’s submission it was the intention of the Legislature by the Criminal Evidence Act, 1898, to afford the accused the protection outlined above provided he did not attack the prosecutor or the prosecution witnesses in a certain way, for if he did so the prosecution were entitled to attack him in like manner. In other words, if the accused made imputations then he was to lose the privileges granted to him by the Act and was to be treated like any other witness.

It is to be observed that if the appellant’s approach be the correct guide to the interpretation of section 1 (f) (ii) then an accused is placed in a superb position since, for example, an accused with a previous history of sexual offences could in a subsequent trial for a sexual offence impugn prosecution witnesses, who had unimpeachable characters, without fear of his own record being disclosed to the jury.

There is no canon of construction which enables this House to limit the literal and plain meaning of this section.

The situation envisaged by section 1 (f) (ii) is a question of mixed fact and law on which the presiding judge has to rule. The nature and extent

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of the imputations are not to be judged from the subjective viewpoint of the sensitive prude nor from that of the callous or wicked man, who respects not chastity, the oath or reputation, but the test is the objective view of the reasonable man, here, the trial judge. It would follow as a matter of procedure that the proviso would only be invoked after an application by the Crown or an intervention by the judge. It does not follow, therefore, ipso facto, that a simple traverse – “not guilty” – or the question whether a prosecution witness struck the first blow in a defence of self-defence in an assault case amount to an imputation within section 1 (f) (ii).

If the above test is applied to the authorities it follows that Rouse [1904] 1 K.B. 184 and Bridgwater [1905] 1 K.B. 131 were correct; Preston [1909] 1 K.B. 568 and Grout, 3 Cr.App.R. 64 were wrong; Jones, 3 Cr.App.R. 67, Wright, 5 Cr.App.R. 131 and Rappolt, 6 Cr.App.R. 156 were correct; Ellis [1910] 2 K.B. 746 is not relevant; Westfall, 7 Cr.App.R. 176 was wrong; Hudson[1912] 2 K.B. 464 and Watson, 8 Cr.App.R. 249 were correct; Biggin [1920] 1 K.B. 213 is not relevant; Jones, 17 Cr.App.R. 117 is justifiable without resort to Channel J.’s dictum in Preston[1909] 1 K.B. 568Baldwin, 18 Cr.App.R. 175 and Eidinow, 23 Cr.App.R. 145 are not relevant; Dunkley [1927] 1 K.B. 323 was correct but could have been decided the other way. Maxwell[1935] A.C. 309 is not relevant; Turner [1944] K.B. 463 was wrongly decided; Viscount Simon’s propositions in Stirland [1944] A.C. 315 are obiter; Jenkins, 31 Cr.App.R. 1 was correct; O’Hara, 1948 S.C.(J.) 90 was not necessarily wrongly decided – it depended very much on its own facts; Fielding, 1959 S.C.(J.) 101 was wrong; Clark [1955] 22 Q.B. 469 was correct; Cunningham[1959] 1 Q.B. 288 is not relevant save in so far as alleged homosexual advances were held to be an imputation; Cook [1959] 2 Q.B. 340 was correct; Morris, 43 Cr.App.R. 206 was correct; Brown, 44 Cr.App.R. 181 is a borderline decision but is probably correct; Ondras [1962] Crim.L.R. 543 was correct; Flynn [1963] 1 Q.B. 729 was correct; Jones [1962] A.C. 635 is not relevant; Manley, 46 Cr.App.R. 235 was correct; Murdoch v. Taylor [1965] A.C. 574 is not relevant; Levy, 50 Cr.App.R. 238 was correct; Sargvon, 51 Cr.App.R. 394 was correct; Malindi [1967] 1 A.C. 439 and Matthews [1965] Qd.R. 306 are not relevant; Bond [1966] I.R. 214 is not relevant; Butterwasser[1948] 1 K.B. 4 was correct.

The words “imputation” and “character” as used in section 1 (f) of the Act of 1898 need no further definition. They call “for no synonym”: see per Lord Morris of Borth-y-Gest in Murdoch v. Taylor[1965] A.C. 574, 583, 584 whose approach to the construction of this provision is adopted. To begin to use different words for these expressions is merely to create difficulties for the future.

Since the decision in Stirland [1944] A.C. 315 the courts have more and more adopted the practice of expressing a discretion in relation to the application of this provision in any particular case. But this has led to very great difficulties. If the simple interpretation of the language of the Act is not adopted it follows that some other principle will have to be propounded. Those which have been enunciated hitherto, viz., Preston [1909] 1 K.B. 568O’Hara, 1948 S.C.(J.) 90 and Turner [1944] K.B. 463, are unappealing on an intellectual consideration of them. Further, which of the three is to he followed?

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As to Turner [1944] 1 K.B. 463, 468, it was there stated that “some limitation must be put on the words of the section, since to decide otherwise would be to do grave injustice never intended by Parliament.” But it is to be remembered that the defence of consent in certain cases is a very serious allegation. Further, it is to be observed that the accused in Turner had a previous conviction for the offence of attempted rape. Fairness in a criminal trial means fairness to the public as well as to the accused. If it had been the intention of Parliament to exclude rape cases from the ambit of section 1 (f) (ii) it would have been the simplest matter to have added a saving clause in respect of that offence.

As to Preston [1909] 1 K.B. 568, 575, the ordinary meaning of the enactment is to be preferred to the principle there laid down which necessitates an addition to the language of section 1 (f) (ii).

The respondent does not dispute that in criminal libel the accused is afforded a special plea of justification (see Archbold, 36th ed., para. 3645) which is plainly an imputation on the prosecutor’s conduct and that before 1898 the accused could put forward this plea without putting his own character in issue.

As to O’Hara, 1948 S.C.(J.) 90, there are two submissions: (1) (a) “character” has a different meaning in reference to the prosecution witnesses than it has in reference to the accused, because before 1898, whilst it is true that in Rowton’s case, 10 Cox C.C. 25, it was held that evidence of the accused’s good character related to general reputation, it was there taken for granted in argument that an attack on a prosecution witness could refer to specific instances, that is, it was not limited to general character. Moreover, by virtue of section 6 of the Criminal Procedure Act, 1865, any conviction for a felony or misdemeanour could be put to a witness and therefore when the Act of 1898 refers to the “character of the prosecutor or the witness for the prosecution” Parliament could not have intended to restrict the imputation to general reputation. Accordingly, it may well be that the reference to the good character of the accused in section 1 (f) (ii) means general reputation but that when “character” is used in that provision in relation to the prosecutor and the prosecution witnesses the term is not so restricted. (b) If Parliament had intended to assign to the word “character” in reference to prosecution witnesses the restricted meaning of “general reputation” it would have been extremely easy so to do by substituting that expression for the word “character” and it could then have been simply interpreted in view of Reg. v. Rowton, 10 Cox C.C. 25. Alternatively, the word “general” could have been inserted before the word “character.” (c) The Act itself contemplates, and the subsequent practice thereto has shown, that the prisoner himself can give evidence of his good character which at common law, if Rowtonbe rightly decided, he is precluded from doing because on that decision no man is competent to give evidence of his own general reputation. (2) The Lord Justice-Clerk (Lord Thompson) stated (1948 S.C.(J.) 90, 98) that, in respect of the expression “nature or conduct of the defence” in his view “‘nature’ is to be read, not as meaning something which is inherent in the defence, but as referable to the mechanism of the defence; nature being the strategy of the defence and conduct the tactics.” But this is not a principle easy to apply. It is submitted that “nature” in the context of this Act means “the makeup

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of the defence” and is not akin to the strategy of the defence as above stated.

[Reference was made to Curwood v. The King (1944) 69 C.L.R. 561.]

Discretion

It is conceded at the outset that the whole of the Bar and the judiciary proceed on the basis that there is a discretion vested in the trial judge. The respondent proposes to approach the matter by endeavouring to answer the following questions: (a) Is there a discretion conferred by statute? (b) If there is not, is there a common law discretion which is not affected by the terms of the Act? (c) If there is a discretion, what is it and how should it be exercised?

As to (a), the answer is in the negative. The only way in which it would be possible to answer this question in the affirmative would be by slightly altering the plain language of the Act. A discretion could easily have been conferred by adding, where appropriate, such words as “if the court thinks fit.”

As to (b), it would appear that the concept of a discretion only arose after the decision in Hudson[1912] 2 K.B. 464, the first case in which it is mentioned being Watson, 8 Cr.App.R. 249, 254. It was not raised in argument and Pickford J. refers to no authority in support of it. Fletcher, 9 Cr.App.R. 53, 56, exemplifies the proposition that there is no rule which enables the trial judge to refuse to admit relevant and admissible evidence. Christie [1914] A.C. 545 was not a decision on the Act of 1898 but of the admissibility of an incriminating statement made in the presence and hearing of the accused. The House was invited by counsel for the respondent to give guidance on the question of discretion in relation to admitting such statements in evidence (10 Cr.App.R. 141, 151).

Maxwell [1935] A.C. 309 was a decision on relevance and any observations concerning discretion are purely obiter. Stirland [1944] A.C. 315 was a decision on relevance only. Discretion was not referred to in argument. Jenkins, 31 Cr.App.R. 1, was decided on the basis of Hudson [1912] 2 K.B. 464. The court assumed that there was a discretion. In Noor Mohamed [1949] A.C. 182 the observations on discretion were obiter. The same applies to Harris [1952] A.C. 694, 707, and Kuruma [1955] A.C. 197, 204.

As to Clark [1955] 2 Q.B. 469, 478 and Cook [1959] 2 Q.B. 340, 346, 348 the references to discretion cannot be substantiated, for it does not arise from the language of the Act nor is there a discretion given by the common law. Flynn [1963] 1 Q.B. 729 shows the dangers of allowing a discretion under this Act.

As to Jones [1962] A.C. 635, 671, 714, it is conceded that Lord Denning and Lord Devlin both affirmed the existence of a discretion but the observations are purely obiter. [Reference was made to Myers v. Director of Public Prosecutions [1965] A.C. 1001, 1024.]

In Murdoch v. Taylor [1965] A.C. 574, 579, 582, it was conceded in argument by both parties that there was a discretion under section 1 (f) (ii) and the issue there was whether there existed a discretion under section 1 (f) (iii). The House proceeded on the basis that there was a discretion under proviso (f) (ii) but held that there was no discretion under proviso

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(f) (iii) on its true construction. The respondent would adopt the statement of Lord Pearce, at p. 587A, that “there is nothing in the words of the Act which justifies any discrimination between the two subsections on the point in issue” albeit the respondent’s argument is the converse of that propounded by Lord Pearce. Further, reliance is placed on the observations, admittedly on a different issue, of Lord Hodson in Connelly [1964] A.C. 1254, 1337: “different judges will … have different views as to what is unfair, and I should find the discretion, if there is one, immensely difficult to exercise at all, nor should I know how to exercise it judicially”: see also per Grose J. in Rex v. Inhabitants of Eriswell (1790) 3 Durn. & E. 707, 711, 712.

Reg. v. Payne [1963] 1 W.L.R. 637 and Callis v. Gunn [1964] 1 Q.B. 495 cannot be supported. They are both decisions where it was held that there was a discretion in relation to the exclusion of admissible and relevant evidence.

As to (c), the foundation must be fairness on the grounds propounded by Lord MacDermott in Reg. v. Murphy [1965] N.I. 138, 149. Despite the decision in Flynn [1963] 1 Q.B. 729 there is no justification for any suggestion that the discretion should always be exercised in favour of the accused. The only source for such a proposition is Viscount Simon L.C.’s fourth proposition in Stirland [1944] A.C. 315, 327. The ambit of that proposition was accurately assessed by Dixon J. in Curwood v. The King, 69 C.L.R. 561. Viscount Simon had nothing more in mind than the approval of the decision in Turner [1944] K.B. 463.

The departure from the rule laid down in Flynn [1963] 1 Q.B. 729 by Diplock L.J. in Sargvon, 51 Cr.App.R. 394, 397 and by Lord Denning M.R. in the present case is the best comment on the fact that that rule is not accurate.

On the facts here the defence plainly made an attack on a prosecution witness albeit collaterally. It was suggested that the complainant had in his possession the indecent photographs, that he had committed buggery that afternoon with some other person and that he had earned a £1 fee for that act. Such a suggestion points to the complainant being a male prostitute. This is plainly collateral and plainly an imputation as to character.

As to any suggestion that the appellant was trapped into making the allegation and therefore letting in the proviso, the circumstances here were far removed from any trap. There cannot be any question of a trap where defence counsel himself introduces the imputation.

Finally, the Criminal Evidence Act, 1898, makes no reference to the proof of previous convictions and therefore the prosecution was entitled to ask the questions that it did relating thereto. Further, the trial judge having ordered the record to go in the appellant was required to answer the questions arising therefrom. [Reference was also made to Rex v. Cator (1802) 4 Esp. 117, 144; Reg. v. List [1966] 1 W.L.R. 9; Reg. v. Herron [1967] 1 Q.B. 107Lawrie v. Muir, 1950 S.C.(J.) 19; H.M. Advocate v. Turnbull, 1951 S.C.(J.) 96.]

Deave following.

If the House is against the respondent on the above submissions, it is contended that it would be right to apply here the proviso to section 4 of

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the Criminal Appeals Act, 1907, as amended by the Criminal Appeal Act, 1966.

It is true that in Archbold, 36th ed., para. 939, it is stated that where character evidence has wrongly been admitted the proviso should not be applied. But in the present case if the jury accepted the complainant’s evidence the offence had been committed and the character would have no relevance. A reasonable jury would have come inevitably to the same conclusion even if the character had not gone in; and therefore it is a case for applying the proviso.

Hutchinson Q.C. in reply. There are two fundamental principles at issue in the present appeal, namely, (1) whereas good character is relevant bad character is in general irrelevant save for a few statutory exceptions. (2) An accused has the right to put forward any defence open to him on the indictment.

Any valid construction of section 1 (f) (ii) of the Act of 1898 should be consonant with these two principles. The House should seek for a construction that entails the application of principles familiar in the criminal law and that avoids the overruling of many previous decisions but that leaves open the accused’s defence and limits the attack on prosecution witnesses.

The question might well be asked: why has the present problem been considered by a full court of five judges on no less than five occasions? The answer is because in practice the application of the literal construction of these words has led to constant injustice.

The “principle” which the Crown put forward is no principle at all; it takes the issue no further than fairness under the cloak of a discretion. Such a “principle” is of no utility if the wide class of persons, judges to lay magistrates, who have to administer justice, is taken into consideration. Further, there is very little room for the application of the concept of the reasonable man in the criminal law: see the unhappy result in Director of Public Prosecutions v. Smith [1961] A.C. 290.

The words in issue should be construed according to their context in proviso (f) (ii) and in relation to the language of section 1 of the Act of 1898 as a whole and to that in comparable statutes.

If there is more than one valid construction one leading to an unjust, and the other to a just, result, the latter construction should be adopted.

Section 1 (f) was first considered by this House in Maxwell [1935] A.C. 309 where Viscount Sankey L.C. makes it plain that it concerns what are understood as collateral matters coming before the jury. This approach shows that it concerns good character, bad character and “character” in the sense of general reputation. Bad character is linked with the proof of previous convictions: see also the Previous Convictions Act, 1836, the Evidence Act, 1851, and the Prevention of Crimes Act, 1871. The contemporary textbooks all understood the expression “good character” to mean “general reputation.” This view is reinforced by the decisions of this House in Dingle v. Associated Newspapers Ltd. [1964] A.C. 371 and Speidel v. Plato Films Ltd. [1961] A.C. 1090. In the Act of 1898 the draftsman is using the word “character” in its generally accepted legal sense.

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As to the Crown’s argument based on section 6 of the Criminal Procedure Act, 1865, it is to be observed that in no reported case between 1865 and 1898 is there to be found one where previous convictions were put in, the reason being, that the common law rule prevailed. From researches carried out by those appearing for the appellant it would seem that in none of the 58 trials for sexual offences that were heard at the Central Criminal Court in the 12 months after the enactment of the Act of 1865 were previous convictions put in.

It was said that in respect of the character of prosecution witnesses the relevant words in section 1 (f) (ii) of the Act of 1898 are “involve imputations on the character of … prosecution witnesses” and that this provision is not confined to general reputation. But it is plain why the word good is omitted there for the character of a prosecution witness might be good or bad.

In 1898 there were two types of question that could be asked in cross-examination, namely, questions which tended (i) to test the witness’s accuracy, veracity, or credibility; or (ii) to shake his credit, by injuring his character: see Stephen’s Digest of the Law of Evidence, 4th ed. (1881), p. 132, art. 129, and also Russell on Crime, 6th ed. (1896), vol. 3, p. 618 which has a similar passage. It is this with which section 1 (f) (ii) is concerned, namely, collateral matters. This was the view of Viscount Sankey L.C. in Maxwell [1935] A.C. 309 and of Lord Devlin in Jones [1962] A.C. 635.

In Stephen’s Digest on Evidence, 5th ed. (1899), art. 56 the word “character” means “reputation” and not “disposition.” This was the view of a well-known textbook published a year after the enactment of the Act of 1898: see now the 12th ed. (1936), arts. 57, 58, 59. If this were not so and evidence could be given that a person was prone to do certain discreditable acts it would mean that by the Act of 1898 Parliament had deprived the accused of a defence in a large number of instances.

It was said that the effect of section 1 (f) was that if the accused made imputations he was to lose the privileges granted to him by the Act and was to be treated like any ordinary witness. But it is to be remembered that in 1898 no person could be made to incriminate himself at common law this position having been preserved by section 3 of the Evidence Act, 1851. Further, although by the Act of 1898 the spouse of the person charged was made a competent witness for the defence he or she was not compellable save in certain specific cases preserved by that Act. Moreover marital communications were protected from disclosure as they were under section 3 of the Evidence Amendment Act, 1853.

There is no substance in any suggestion that the accused was placed in a privileged position by the Act of 1898 because if he gave evidence he could not be questioned as to previous convictions since at common law previous convictions were and always had been irrelevant save for a few statutory exceptions or where the accused had tendered evidence as to his good character. On the other hand at common law the accused could ask questions of a prosecution witness even if they were of an incriminatory nature.

It can be seen that the Act of 1898 preserved the accused’s own position as it was at that time and that the accused had a complete immunity until

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he passing of that Act in respect of attacks on any of the prosecution witnesses. Accordingly, it does not advance the argument to contend that the Act gave the accused privileges or made his position nigh impregnable.

To discredit the accused on his previous convictions is to discredit him on the issue of innocence or guilt but in the case of a prosecution witness it merely has the consequence of making his testimony worthless. It is to be observed that the accused by virtue of the charge starts off with an imputation against his character.

The Crown can impugn all the witnesses for the defence save the accused himself. But on the Crown’s argument the accused cannot impugn any of the witnesses for the prosecution without putting his character in evidence.

What is the purpose of the prosecution asking the accused questions “tending to show that he has committed or been convicted of or been charged with any offences other than that wherewith he is charged, or is of bad character”? The purpose is to attack the accused’s general reputation. The only justification for the accused asking questions derogatory of a prosecution witness is to show that that witness, for example, committed the offence alleged. The accused cannot attack a witness’s general reputation. That is the mischief at which section 1 (f) (ii) is aimed.

It was said that this section was a shield for the accused. In one sense, however, it is a shield for the prosecution witnesses.

It is not without importance to discover what contemporary opinion, both judicial and that of legal commentators, considered was the purpose of the Act. It is to be observed that in Preston [1909] 1 K.B. 568, 574 Channell J. adopted the reasoning and the principle laid down in Bridgwater[1905] 1 K.B. 131, 134. This accords basically with the approach in Stephen’s Digest on the Law of Evidence, 5th ed. and in the appellant’s submission it is the proper approach. See also the observations of Kennedy J. in Rex v. Bond [1906] 2 K.B. 389, 398. If the Crown’s contentions in the present case be right it is unlikely that PrestonBridgwater and Bond would have contained the observations alluded to above. Lord Devlin’s approach to the construction of the Act in Jones [1962] A.C. 635, 699 et seq., is the only valid and sensible approach to its construction.

The true test to be applied here is: is the nature and conduct of the defence such as to involve imputations on the general reputation or general character of the prosecutor or a prosecution witness thus raising collateral issues and going beyond anything that is relevant to the issues on the facts of the case? If the answer is in the affirmative then proviso (f) (ii) is applicable. Such a test is intelligible and is in accord with the common sense position taken up in O’Hara, 1948 S.C.(J.) 90. The test is based on relevance. Further, it is supported by Bridgwater [1905] 1 K.B. 131Preston [1909] 1 K.B 568, Viscount Sankey L.C. in Maxwell [1935] A.C. 309, Humphreys J. in Turner [1944] K.B. 463, Viscount Simon L.C.s fourth proposition in Stirland [1944] A.C. 315, by Lord Denning and Lord Devlin in Jones [1962] A.C. 635, by O’Hara, 1948 S.C.(J.) 90, by Dixon J. in [1960] A.L.R. 321, and by the full court in Flynn [1963] 1 Q.B. 729 save that in that case it was attached to the discretion.

The only decisions that are contrary to the above view are Dunkley [1927] 1 K.B. 323 and Hudson[1912] 2 K.B. 464. In Dunkley [1927] 1 K.B. 323, 329 it was stated that it was “too late in the day” even to

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consider the argument put forward here by the appellant. But Dunkley entirely fails to construe the relevant provision. It is of no authority but is confined to the particular facts of the case.

As to Hudson [1912] 2 K.B. 464, it is based on the decision in Reg. v. Marshall as reported in (1899) 63 J.P. 36, in which Darling J. ruled that in a case of murder, where the prisoner giving evidence alleged that the deceased had been killed by her husband, who had been called as a witness for the prosecution, she could be cross-examined as to previous convictions. But if the proceedings of that case are examined in the session papers it will be seen that in fact a number of allegations were made against this witness which amounted to an attack on his general reputation.

In Hudson [1912] 2 K.B. 464, 467 no objection was taken to the questions asked of the accused. Further, there was no evidence to support the allegations there made. It makes all the difference for counsel to make an allegation “out of the blue” such as “You killed this woman” than to allege “Were you not in the room at 10 p.m.? Did you not have a knife in your hand? Did you not speak to the woman? Did you not then plunge the knife into her body?”, and then to call evidence to that effect.

Hudson is of no guidance for it states that the words of section 1 of the Act of 1898 are to be read literally. But that is all that the appellant contends for here. Hudson affords no help on how the words of the section are to be read literally.

The following difficulties arise on the Crown’s construction of the section: (1) The prosecution could not ask an accused person any question which tended to show that the accused had a bad disposition or did discreditable acts. This would make cross-examination very difficult. (2) The three decisions of Rex v. Chitson [1909] 2 K.B. 945Rex v. Kurasch [1915] 2 K.B. 749 and Rex v. Kennaway [1917] 1 K.B. 25 would have to be overruled since they are directly opposed to the Crown’s view. (3) If an accused person called evidence to refute the case for the prosecution or to support his own case and that evidence involved an imputation upon the character of a prosecution witness then the accused would be liable to be asked questions on his previous convictions. (4) In conducting an accused person’s defence on instructions it is only after counsel has put the question to a witness and received an answer that it is known whether or not the instructions were correct. (5) It would mean that in many cases an accused could not put forward an honest defence, for example, allegations of lies involve perjury, the defence of consent in sexual cases involves imputations of unchastity whilst in other cases of violence to the person where the accused was relying on the defence of self-defence or provocation often it would prevent the imputation being made at all, for example, where a man found his wife in flagrante delicto with her lover.

Generally, it is difficult to see why it should be contended that a deliberate attack on a prosecution witness should let in an accused’s previous convictions.

Finally, on this branch of the argument, it was also contended that the construction put forward by the appellant would, in effect, turn the section into a criminal’s charter. But it is to be remembered that it is not unknown for a police officer to “plant” incriminating material on an accused person.

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Discretion

If the appellant’s contentions on section 1 (f) be rejected then it is submitted that the trial judge has a discretion to exclude relevant and admissible evidence. This discretion comes from the common law and does not arise under the Act. It began as a power over the prosecutor’s conduct of the case against the accused and it springs from a judge’s inherent jurisdiction to ensure that the court’s process should be used fairly. The discretion is a marginal discretion but it is not one on which to base the workings of the Act.

In Kuruma [1965] A.C. 197 it was recognised that the judge always has a discretion to disallow evidence in a criminal case if the strict rules of admissibility might operate unfairly against the prisoner.

As to Flynn [1963] 1 Q.B. 729 and whether the exercise of the discretion should be limited in any way, if there be a discretion then there must be laid down some principle on how it is to be exercised and that of relevancy avoids the difficulties that have been expressed in relation to this particular discretionary power. A discretion based on fairness is too subjective and too imprecise and is not subject to appeal except in certain circumstances.

As to the trial judge’s intervention his questions to the accused were in the circumstances in the nature of a trap. Reliance is placed on Baldwin, 18 Cr. App. R. 175.

As to the proviso, it would be wrong to apply it in this case. The judge in his summing up gave no indication to the jury on how they were to consider these convictions. Further, the jury had to be satisfied that these convictions had been properly proved. On the proviso: see per Lord Morris of Borth-y-Gest in Reg. v. HarzReg. v. Power [1967] 1 A.C. 760, 824B. [Reference was also made to Archbold, 36th ed., para. 2885; Reg. v. Thompson [1966] 1 W.L.R. 405.]

Their Lordships took time for consideration.

May 9, 1968. VISCOUNT DILHORNE. My lords, the appellant was convicted at Nottingham Assizes on March 26, 1967, of having committed buggery with a young man named McLaughlin on January 26, 1967. He was sentenced by Stable J. to four years’ imprisonment.

At one time the appellant and McLaughlin lived in the same lodgings. The appellant moved to another lodging house, and during the afternoon of January 26, after they had met in the street, the appellant and McLaughlin went to the appellant’s room and it was there that McLaughlin said the offence was committed.

In the course of his cross-examination by counsel for the appellant, McLaughlin was asked the following questions and gave the following answers:

“Q. Did you then ask Mr. Selvey if he would give you a pound? A. No, Sir, I did not ask for any money. Q. Did you tell him that you had been with another man that afternoon and earned a pound? A. No, Sir. Q. Did you not then say to him ‘If you give me a pound, you can get on the bed with me’? A. No, Sir. Q. Did you not tell him further that you wanted the pound to buy some clothes? A. No, Sir.”

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McLaughlin was then asked if certain photographs of an indecent character which he had said had been shown to him by the appellant were not in fact his. He said that they were not.

Later the following questions were put to him and he gave the following answers:

“Q. I suggest to you, Mr. McLaughlin, that nothing of the sort happened in Mr. Selvey’s room at all. A. Not true, Sir. Q. And that an incident of this nature had taken place earlier that afternoon, with another man? A. Not true. Q. And that because Mr. Selvey would not give you a pound, you are blaming him for your condition. A. Not true.”

McLaughlin was examined by a doctor on the afternoon of January 26, shortly after the offence was alleged to have been committed and in the doctor’s opinion his condition showed that he had been recently the passive partner in an act of buggery.

The appellant in the course of his evidence in chief swore that McLaughlin had asked him for the loan of a pound to buy some clothing, that McLaughlin had said that he was prepared to go on the bed and that he had already earned a pound “by going with a fellow and having sexual connections.” The appellant said that he had told McLaughlin that he was not interested and he denied that he had committed the offence.

At the end of the appellant’s cross-examination, Stable J. asked him the following questions:

“You are asking the jury, are you not, to disbelieve this young man, because, as you say, he told you that he had been buggered that day and buggered by somebody else? That is what you have told the jury? A. That is correct. Q. You are asking the jury to disbelieve him because he is that sort of young man? A. Yes.”

Stable J. then suggested to counsel for the prosecution that there should be a discussion in the absence of the jury. After the jury had retired, Stable J. expressed the view that the appellant’s defence had gone further than a denial that anything immoral had happened and had alleged that the incident was a blackmail operation and that it had involved an attack on McLaughlin’s character. It was not until after the learned judge expressed this view that counsel for the prosecution applied for leave to put to the appellant his previous convictions. Stable J. gave him leave to do so but intimated that he should confine his questions to sexual convictions.

It appears from the shorthand note that the appellant was under the impression that the learned judge had stated that he was blackmailing. He denied that and asked for a retrial and intimated that he was not going to take any further part in the proceedings.

When the jury returned to the court, Stable J. told them that as it had been suggested that the evidence of McLaughlin should not be believed as he was a man of bad character, they were entitled to hear the record of the appellant. He told them then that they would not decide the case “purely on matters of character” and that they would deal with the case upon the evidence that they had heard but at least they would not go into the jury room having heard what was put to McLaughlin “without knowing anything

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about the previous record of the man by whom those charges are now brought.”

Counsel for the prosecution then put to the appellant that he had been convicted of indecent assault on two boys of eight and six in 1956. The appellant said that he did not know and, in reply to a question from the judge, that he was not willing to co-operate in view of what the judge had said to prosecuting counsel. He was presumably referring to the reference to blackmail.

Counsel for the prosecution then put to him that he had been convicted on March 1, 1960, of an indecent assault on a boy of eight and later of an indecent assault on a boy of eleven: that he was sentenced to two years’ imprisonment on August 1, 1961, for persistently soliciting for an immoral purpose and on June 1, 1964, to six months’ imprisonment for persistently importuning male persons. The appellant’s answer to these questions was that he was not speaking and had nothing to say.

None of the appellant’s previous convictions was in fact proved but in his summing-up the learned judge proceeded as if they had been. In this summing-up, there occurs the following passage:

“Before I pass from that, members of the jury, ‘Do not give a dog a bad name and hang him,’ do you follow? You would have been in a perfectly hopeless position, if you had to try this case with the idea that that young man was a sort of male prostitute, carrying about filthy photographs on him, and the man in the dock was a man, so far as you knew, of unblemished character. It is obvious you would have had a perfectly false picture before you. As I say ‘Do not give a dog a bad name and hang him on that.’ Deal simply and solely with the evidence relating to this particular charge.”

and at the end of the summing-up, he said:

“There it is, members of the jury: the young man says: ‘Yes, it was done to me.’ Selvey says: ‘I really did not do anything indecent to that young man.’ There was evidently some indecent attack which was initiated by the young man and, says Selvey, he went beyond that, ‘He tried to blackmail me, or get a pound out of me.’ The suggestion is that, because he failed to get the pound, in revenge, he has gone round to the police and put this false story up against Selvey.”

The appellant’s appeal to the Court of Appeal (Criminal Division) [1968] 1 Q.B. 706 was heard by Lord Denning M.R., Widgery and MacKinaw JJ. and dismissed on November 12, 1967. Dealing with the point that the judge ought to have warned the jury that the appellant’s previous convictions had not been proved, Lord Denning pointed out, at p. 717 that, when the appellant’s previous convictions were read out after conviction, the appellant did not dispute them and said that the jury were quite entitled to treat the appellant’s attitude as tantamount to an admission, and that, even if the judge should have warned the jury, there was no miscarriage of justice and the court would have applied the proviso. I agree with Lord Denning.

The main ground of the appeal before the Court of Appeal was, as it was before your lordships, that the learned judge was wrong in allowing

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the appellant to be cross-examined in relation to his previous convictions. It was contended that an accused person might, without losing the protection of the Criminal Evidence Act, 1898, ask a prosecution witness all questions that are necessitated by the proper conduct of his defence and that, so long as the nature or conduct of the defence is relevant to an issue upon the facts of the case, the accused does not lose the protection of the Act. The terms of the relevant provisions of the Act of 1898 are as follows:

“Section 1. Every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings. … Provided as follows:- … (e) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged: (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged with the same offence. …”

Mr. Jeremy Hutchinson for the appellant contended that the word “character” in paragraph (f) meant general reputation, and he based his argument on Reg. v. Refine (1865) 10 Cox C.C. 25. In that case it was held that where evidence of good character had been given on behalf of the accused, evidence of his bad character might be given in reply; that the evidence whether for the defence or for the prosecution must be confined to evidence of general reputation; and that the individual opinion of a witness founded upon his own experience and observation was inadmissible. This argument was first advanced in 1927 in Rex v. Dankly [1927] 1 K.B. 323. In the course of his judgment in that case Lord Hewart C.J., said, at p. 329:

“… it is not difficult to suppose that a formidable argument might have been raised on the phrasing of this statute, that the character which is spoken of is the character which is so well known in the vocabulary of the criminal law – namely, the general reputation of the person referred to; in other words, that ‘character’ in that context … bears the meaning which the term ‘character’ was held to bear, for example, in the case of R. v. Rowton, 10 Cox 25 … Nevertheless, when one looks at the long line of cases beginning very shortly after the passing of the Criminal Evidence Act, 1898, it does not appear that that argument has ever been so much as formulated. It was formulated yesterday. One can only say that it is now much too late in the day

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even to consider that argument, because that argument could not now prevail without the revision, and indeed to a great extent the overthrow, of a very long series of decisions.”

In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 324 Viscount Simon L.C., posed the question whether character referred to the good reputation which a man may bear in his own circle, or to a man’s real disposition as distinct from what his friends and neighbours think of him. He said, at p. 325 that he was “disposed to think that in paragraph (f) (where the word ‘character’ occurs four times) both conceptions are combined.”

This passage from his speech in this case was cited by Lord Morris of Borth-y-Gest in Malindi v. The Queen [1967] 1 A.C. 439, 451 and was clearly accepted by their lordships as correct.

What has to be considered in this case is not what evidence can or cannot be given to establish a man’s character, but whether the nature or conduct of the defence involved imputations on the character of the witness McLaughlin. In my opinion, the questions put to him and the evidence given by the appellant clearly involved imputations on his character, and, if it were right to interpret “character” in the statute as meaning general reputation, also imputations on his general reputation.

Mr. Hutchinson further contended that the accused appellant had been trapped by the learned judge into making imputations by the questions put by the judge at the end of his cross-examination. I do not think that this was the case. The imputations were first made in the cross-examination of the witness McLaughlin and then repeated by the appellant in his evidence in chief. The questions put by the learned judge at the end of his cross-examination did no more than remove all possible doubt as to whether the appellant was seeking to discredit McLaughlin on the ground that he was “that sort of young man.”

I propose now to turn to Mr. Hutchinson’s main contention, that the section did not permit of cross-examination of the accused as to character if it was a necessary part of his answer to the charge. He contended that it was unsatisfactory that the liability of the accused to be subjected to such cross-examination should depend on the exercise by the trial judge of discretion, on his estimation of what was fair and what was not. Mr. Caulfield for the respondent contended that, despite the observations in a number of cases, a judge had no discretion to refuse to permit cross-examination of the accused as to character if the conditions prescribed by the section were satisfied.

I propose to consider first the construction and interpretation to be given to the section and then to consider Mr. Caulfield’s argument as to discretion.

This case is the latest – one dare not say the last – of a large number of cases that have come before the courts on the interpretation of the section. Most of them were cited by Mr. Hutchinson. I do not propose to refer to all of them but it is, I think, necessary to refer to a good number.

The first case cited was Rex v. Rouse [1904] 1 K.B. 184. In that case Lord Alverstone C.J. refused to regard the accused’s answer in cross-examination to a question whether a prosecution witness’s evidence was

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invented, that it was a lie and the witness a liar, as anything more than a denial of the charge, and Darling J. said, (1923) 39 T.L.R. 457:

“Merely to deny a fact alleged by the prosecution is not necessarily to make an attack on the character of the prosecutor or his witnesses. Such a denial is necessary and inevitable in every case where a prisoner goes into the witness box, and it is nothing more than a traverse of the truth of an allegation made against him; to add in cross-examination that the prosecutor is a liar is merely an emphatic mode of denial, and does not affect its essential quality.”

Accordingly, when a man in the accused’s station of life uses such terms as “he is lying” and “it is a lie,” or even stronger expressions, all that is generally meant is a denial of the truth of the case for the prosecution and not a real reflection upon the character of a witness. So the first question that has to be considered is whether what has been said amounts in reality to more than an emphatic denial of the charge (see also Rex v. Jones (1923) 17 Cr.App.R. 117 per Lord Hewart C.J.; Reg. v. Clark [1955] 2 Q.B. 469per Lord Goddard C.J.).

If it does and in fact involves an imputation on the character of the prosecutor or a witness for the prosecution, does the section permit such cross-examination of the accused, even when the imputation is a necessary part of the presentation of the defence?

There are a number of judicial observations to the effect that it does not. In Rex v. Bridgwater[1905] 1 K.B. 131, 134, Lord Alverstone said that:

“… raising a defence, even in forcible language, is not of necessity casting imputations on the character of the prosecutor or the witnesses. No doubt imputations may be cast on their character quite independently of the defence raised, either by direct evidence or by questions put to them in cross-examination.”

In Rex v. Sheean (1908) 21 Chocks C.C. 561, 562, a rape case, Jelf J. said:

“Where a prisoner in order to clear himself upon a charge to which consent is a good defence in law, alleges that the prosecutrix did so consent, it would, in my view, be a total subversion of the Act to say such allegation exposes him to cross-examination as to previous charges made against him. To so hold would be to put an impediment in the way of a prisoner denying upon his oath, that what he did was done with the consent of the prosecutrix, when, if the jury believed she did so consent, he would be entitled to an acquittal. Of course, if the prisoner goes out of his way to make an attack on the prosecutrix, based on matters outside the substance of the charge upon which he is being tried, it is otherwise.”

Support was also given for this view in the important case of Rex v. Preston [1909] 1 K.B. 568. There the accused had alleged impropriety in the conduct of an identification parade by a police officer and so had made imputations on his character. It was held, nevertheless, that cross-examination of the accused as to his previous convictions was not permissible as what had happened at the identity parade was relevant to his defence. Channell J., delivering the judgment of the Court of Criminal Appeal, said, at p. 575, in relation to the words in the section “the nature or conduct

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of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution”:

“It appears to us to mean this: that if the defence is so conducted, or the nature of the defence is such, as to involve the proposition that the jury ought not to believe the prosecutor or one of the witnesses for the prosecution upon the ground that his conduct – not his evidence in the case, but his conduct outside the evidence given by him – makes him an unreliable witness, then the jury ought also to know the character of the prisoner who either gives that evidence or makes that charge, and it then becomes admissible to cross-examine the prisoner as to his antecedents and character with a view of showing that he has such a bad character that the jury ought not to rely upon his evidence. That is the general nature of the enactment and the general principle underlying it.”

In Rex v. Wright (1910) 5 Cr.App.R. 131, 134, it was, however, held that the accused’s statement that he had been bribed to make a confession was an imputation on the character of the police officer involved and cross-examination of the accused as to character was permitted even though the making of the imputation might be “the only way open to the [accused] of meeting the case against him.”

On the other hand in Rex v. Westfall (1912) 7 Cr.App.R. 176, 179, Hamilton J., delivering the judgment of the Court of Criminal Appeal, held that an accusation by the accused that the constable who had arrested him had acted in an improper manner was not such as to entitle the prosecution to cross-examine him as to character.

“Such questions,” he said, “often have to be asked if the evidence is to be properly tested. Instead of being an attack on the character of a witness with the view of showing that he is unreliable, they are an endeavour to elicit the facts in connection with the very matter with which the prisoner is charged. It was not such an attack as comes within the meaning of the section.”

I do not see that it is possible to reconcile these two decisions. If Westfall was rightly decided, then Wright cannot have been, and vice versa.

Two months later the whole problem was reviewed in Rex v. Hudson [1912] 2 K.B. 464 by the Court of Criminal Appeal which, in view of the importance of the case, consisted of five judges presided over by Lord Alverstone C.J. It was then said that the decisions in Bridgwater [1905] 1 K.B. 131, Preston [1909] 1 K.B. 568 and Westfall, 7 Cr.App.R. 176 might well be supported on grounds which did not touch the question raised in that case but that they could not be treated as laying down a general rule. Lord Alverstone said, at pp. 470, 471:

“We think that the words of the section, ‘unless the nature or conduct of the defence is such as to involve imputations,’ etc., must receive their ordinary and natural interpretation, and that it is not legitimate to qualify them by adding or inserting the words ‘unnecessarily,’ or ‘unjustifiably,’ or ‘for purposes other than that of developing the defence,’ or other similar words.”

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This case was followed by Rex v. Watson (1913) 8 Cr.App.R. 249 when Pickford J. said, at p. 254:

“It has been held that to say that a witness for the prosecution was telling lies is not an imputation within the meaning of the section. There have also been observations in some cases that seem to imply that where the cross-examination is only a necessary part of the defence it is not within the section. Those cases were considered by this court in Hudson [1912] 2 K.B. 464 … the remarks to which I have referred were certainly held not to be of general application.”

After quoting the passage from the judgment of Lord Alverstone in Hudson [1912] 2 K.B. 464, 470, 471, set out above, he said, 8 Cr.App.R. 249, 254: “That is a considered judgment and that is the principle we have to apply.”

If at that time it was thought, as Pickford J. appears to have thought, that the decision in Hudsonhad finally settled the controversy as to the meaning of the section, that belief was destroyed by the judgment in Rex v. Biggin [1920] 1 K.B. 213 where, despite what was said in Hudson, the Earl of Reading L.C.J. appears to have treated the passage of Channell J.’s judgment [1909] 1 K.B. 568, 575, set out above as still good law and of general application. Also in Rex v. Roberts (1920) 15 Cr.App.R. 65 Darling J. cited the same passage of Channell J.’s judgment and, following that, drew a distinction between the conduct and the evidence of a witness.

In 1944 in Rex v. Turner [1944] K.B. 463 the question again arose whether the allegation that a woman had consented to the intercourse which was the subject of a charge of rape rendered the accused liable to cross-examination as to his previous convictions. Humphreys J. delivering the judgment of a court of five judges said, at pp. 468, 469:

“… it must be conceded that to allege of a woman that she permitted a man other than her husband to have intercourse with her would be regarded by most persons as an imputation on her character. In the same way, in former times, one of the deadliest insults which could be offered to a gentleman was to call him a liar … but if an accused person refers to a witness for the prosecution as a liar it does not follow that he is making an imputation on his character so as to render himself liable to cross-examination to character: see Rex v. Rouse [1904] 1 K.B. 184. … On a charge of rape the Crown has to prove two things:- (1) intercourse, and (2) the non-consent of the woman. For centuries the law has jealously guarded the right of an accused person to put forward at his trial any defence open to him on the indictment without running the risk of his character, if a bad one, being disclosed to the jury. It would be strange, indeed, if the Act of Parliament which allowed him, in most cases for the first time, to give evidence on oath had virtually deprived him of that right in the case of one serious felony, by enacting that he could only do so at the risk of having his character exposed. What is commonly referred to as the defence of consent in rape is, in truth, nothing more than a denial by the accused that the prosecution has established one of the two essential ingredients of the charge. It is, and must be, the prosecution which introduces the question of consent or non-consent. Can the legislature have intended to penalize the accused who avails himself of the right to give evidence

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conferred by statute by enacting that he may be cross-examined as to previous convictions if he denies one, though not if he only denies the other, of the two ingredients of the crime. In our opinion, this is one of the cases where the court is justified in holding that some limitation must be put on the words of the section, since to decide otherwise would be to do grave injustice never intended by Parliament.”

Mr. Caulfield argued that this case was wrongly decided. He contended that their ordinary meaning should be given to the words of the section and that Parliament had intended to provide that, if the accused attacked a prosecution witness in a certain manner, the protection given by the statute would be lifted and the accused would be attacked in the same manner.

In my opinion Rex v. Turner [1944] K.B. 463 and Rex v. Sheean, 21 Cox C.C. 561 were both rightly decided. Humphreys J. did not define the limitation he thought must be put on the terms of the statute in precise terms but I think it is apparent from what he said that the limitation was as to the meaning to be attached to the words “the nature or conduct of the defence” by treating the traversing of an issue raised by the prosecution, the mere denial of an allegation made by the prosecution, even if that denial necessarily involved, as did the allegation of consent in a rape case, an imputation on character as not coming within those words.

Applying this test to the facts of this case it cannot, in my opinion, be said that the questions put to McLaughlin and the appellant’s evidence were just a traverse or denial of an issue raised by the prosecution. However necessary it may have been to make those imputations if the appellant was to have any hope of acquittal, they were additional to a denial that the conduct alleged had taken place in the appellant’s bedroom.

In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327, Viscount Simon L.C. in formulating certain principles in relation to the section said:

“4. An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses.”

and he cited Rex v. Turner [1944] K.B. 463 for this proposition.

In Rex v. Jenkins (1945) 31 Cr.App.R. 1, Singleton J. delivering the judgment of the Court of Appeal, pointed out that the decision in Hudson [1912] 2 K.B. 464 had not been criticised and in this case that decision was followed. In relation to the above statement of Viscount Simon in Stirland [1944] A.C. 315, 327, he said (31 Cr.App.R. 1, 14, 15):

“It does not appear to us that the Lord Chancellor in using those words had in mind any idea of upsetting or weakening that which had been said in this court in Hudson [1912] 2 K.B. 464. If that had been the desire of the House of Lords, it would have been so stated. It is not. The House of Lords in that case had not to consider the words of the subsection which have been discussed before us at all, and Hudson’s case, in consequence, was not referred to …

“We cannot think that it was intended in any sense in the House of Lords in Stirland’s case[1944] A.C. 315 to overrule the decision of this court in Hudson’s case.”

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The problem then came before the Scottish Courts. In O’Hara v. H.M. Advocate 1948 S.C.(J.) 90 the Lord Justice-Clerk (Lord Thomson), after reviewing the authorities came to the conclusion, at p. 97, that the net result was that the Court of Criminal Appeal “adheres to Hudson with certain modifications in cases of rape and subject to the discretionary power of the presiding judge.” He said, at p. 98, that in his judgment the statute warranted a distinction being drawn between two sets of cases, however difficult it might be to say on which side of the line any particular case fell.

“Broadly,” he said at p. 99, “the two classes are (1) where the cross-examination is necessary to enable the accused fairly to establish his defence to the indictment albeit it involves an invitation to the jury to disbelieve the witnesses so cross-examined in so far as they testify in support of the indictment, and (2) where the cross-examination attacks the general character of the witness.”

This distinction was followed in Fielding v. H.M. Advocate, 1959 S.C.(J.) 101, 105, where cross-examination of the accused as to character was permitted on the ground that the allegations were “no part of the essence of the defence.”

The Lord Justice-Clerk’s conclusion in O’Hara, 1948 S.C.(J.) 90, 99, that under the section, cross-examination as to the accused’s character was not permitted if the cross-examination involving imputations on the character of the prosecutor or his witnesses was necessary to enable the accused fairly to establish his defence seems to me to be a restatement of what was said by Channell J., in Preston [1909] 1 K.B. 568, 575, and by Viscount Simon in Stirland [1944] A.C. 315, 327. If the statement of Lord Alverstone in Hudson [1912] 2 K.B. 464 that it is not legitimate to qualify the words of the statute by adding or inserting the words “for purposes other than that of developing the defence” be accepted, as it was in Jenkins, 31 Cr.App.R. 1, it does not seem to me that the Lord Justice-Clerk’s classification can be right.

In Reg. v. Clark [1955] 2 Q.B. 469 it was held that the accused’s allegation that a statement he had signed had been dictated by a police officer was not a mere denial that he had made the statement but involved an imputation on the character of a prosecution witness. Lord Goddard C.J., delivering the judgment of the court, cited, at p. 477, the passage of Channell J.’s judgment in Preston [1909] 1 K.B. 568, 575 set out above, and said ([1955] 2 Q.B. 469, 478): “This was an attack by the appellant, not on the evidence of the police inspector, but on his conduct outside that evidence,” and it was held that the cross-examination of the accused as to character was permissible. Jenkins, 31 Cr.App.R. 1 does not appear to have been cited.

In Reg. v. Cook [1959] 2 Q.B. 340 the question was reviewed again by the Court of Criminal Appeal and again it was held following Hudson [1912] 2 K.B. 464 and Jenkins, 31 Cr.App.R. 1 that the words of the statute should be given their ordinary and natural meaning. It was also said that nothing was to be gained by seeking to strain the words of the section in favour of the defence.

This completes my review of the cases to which it is necessary in my opinion, to refer on the question of the interpretation to be given to the

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section. It is apparent that over the years controversy has raged on whether the section permits cross-examination of the accused as to character when the making of the imputations was necessary to enable the accused to establish his defence.

I agree with what was said in HudsonJenkins and Cook, that the words of the section must be given their natural and ordinary meaning. Can this be reconciled with the decision in the rape cases, Sheean 21 Cox C.C. 561 and Turner [1944] K.B. 463, that an accused person charged with that offence can without risking cross-examination as to his character allege that the woman consented to the intercourse although that necessarily involves an imputation on her character? It may be possible to do so on the basis stated by Humphreys J. [1944] K.B. 463, 469, namely, that the issue of non-consent is one raised by the prosecution and so that contesting that is not something introduced by the defence. This appears to involve a limitation on the meaning given to the words “nature or conduct of the defence.”

I do not think that in the light of what I am going to say later it is necessary to come to a final conclusion on this.

The cases to which I have referred, some of which it is not possible to reconcile, in my opinion finally establish the following propositions:

  1.  (1)     The words of the statute must be given their ordinary natural meaning (Hudson[1912] 2 K.B. 464Jenkins, 31 Cr.App.R. 1; Cook [1959] 2 Q.B. 340).
  1.  (2)     The section permits cross-examination of the accused as to character both when imputations on the character of the prosecutor and his witness are cast to show their unreliability as witnesses independently of the evidence given by them and also when the casting of such imputations is necessary to enable the accused to establish his defence (HudsonJenkinsCook).
  1.  (3)     In rape cases the accused can allege consent without placing himself in peril of such cross-examination (Sheean, 21 Cox C.C. 561; Turner [1944] K.B. 463). This may be because such cases are sui generis (per Devlin J. in Rex v. Cook [1959] 2 Q.B. 340, 347), or on the ground that the issue is one raised by the prosecution.
  1.  (4)     If what is said amounts in reality to no more than a denial of the charge, expressed, it may be, in emphatic language, it should not be regarded as coming within the section (Rouse [1904] 1 K.B. 184Rex v. Grout (1909) 3 Cr.App.R. 64; Rex v. Jones, 17 Cr.App.R. 117; Clark [1955] 2 Q.B. 469).
Applying these propositions to this case, it is in my opinion clear beyond all doubt that the cross-examination of the accused was permissible under the statute.

I now turn to the question whether a judge has discretion to refuse to permit such cross-examination of the accused even when it is permissible under the section. Mr. Caulfield submitted that there was no such discretion and contended that a judge at a criminal trial had no power to exclude evidence which was admissible. He submitted that the position was correctly stated by Bankes J. in Rex v. Fletcher (1913) 9 Cr.App.R. 53, 56, when he said:

“Where the judge entertains a doubt as to the admissibility of evidence, he may suggest to the prosecution that they should not press it, but he cannot exclude evidence which he holds to be admissible.”

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Since that case it has been said in many cases that a judge has such a discretion. In Rex v. Christie [1914] A.C. 545 where the question was as to the admissibility of a statement made in the presence and hearing of the accused, Lord Moulton said, at p. 559:

“Now, in a civil action evidence may always be given of any statement or communication made to the opposite party, provided it is relevant to the issues. The same is true of any act or behavior of the party. The sole limitation is that the matter thus given in evidence must be relevant. I am of opinion that, as a strict matter of law, there is no difference in this respect between the rules of evidence in our civil and in our criminal procedure. But there is a great difference in the practice. The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature, under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable. Under the influence of this practice, which is based on an anxiety to secure for everyone a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure.”

In Watson, 8 Cr.App.R. 249, 254, the first case when the exercise of discretion in relation to cases coming within the section was mentioned, Pickford J. said:

“It has been pointed out that to apply the rule” [in Hudson [1912] 2 K.B. 464] “strictly is to put a hardship on a prisoner with a bad character. That may be so, but it does not follow that a judge necessarily allows the prisoner to be cross-examined to character; he has a discretion not to allow it, and the prisoner has that protection.”

In Maxwell [1935] A.C. 309 and in Stirland [1944] A.C. 315 it was said in this House that a judge has that discretion. In Jenkins, 31 Cr.App.R. 1, 15, Singleton J. said:

“If and when such a situation arises” (the question whether the accused should be cross-examined as to character) “it is open to counsel to apply to the presiding judge that he may be allowed to take the course indicated. … Such an application will not always be granted, for the judge has a discretion in the matter. He may feel that even though the position is established in law, still the putting of such questions as to the character of the accused person may be fraught with results which immeasurably outweigh the result of questions put by the defence and which make a fair trial of the accused person almost impossible. On the other hand, in the ordinary and normal case he may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material

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on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person’s character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section. The essential thing is a fair trial and that the legislature sought to ensure by section 1, subsection (f).”

Similar views were expressed in Noor Mohamed v. The King [1949] A.C. 182 by Lord du Parcq, in Harris v. Director of Public Prosecutions [1952] A.C. 694, in Cook [1959] 2 Q.B. 340, in Jones v. Director of Public Prosecutions [1962] A.C. 635, and in other cases.

In the light of what was said in all these cases by judges of great eminence, one is tempted to say, as Lord Hewart said in Dunkley [1927] 1 K.B. 323 that it is far too late in the day even to consider the argument that a judge has no such discretion. Let it suffice for me to say that in my opinion the existence of such a discretion is now clearly established.

Mr. Caulfield posed the question, on what principles should such a discretion be exercised. In Reg. v. Flynn [1963] 1 Q.B. 729, 737 the court said:

“… where … the very nature of the defence necessarily involves an imputation, against a prosecution witness or witnesses, the discretion should, in the opinion of this court, be as a general rule exercised in favour of the accused, that is to say, evidence as to his bad character or criminal record should be excluded. If it were otherwise, it comes to this, that the Act of 1898, the very Act which gave the charter, so to speak, to an accused person to give evidence on oath in the witness box, would be a mere trap because he would be unable to put forward any defence, no matter how true, which involved an imputation on the character of the prosecutor or any of his witnesses, without running the risk, if he had the misfortune to have a record, of his previous convictions being brought up in court while being tried on a wholly different matter.”

No authority is given for this supposed general rule. In my opinion, the court was wrong in thinking that there was any such rule. If there was any such general rule, it would amount under the guise of the exercise of discretion, to the insertion of a proviso to the statute of the very kind that was said in Hudson [1912] 2 K.B. 464 not to be legitimate.

I do not think it possible to improve upon the guidance given by Singleton J. in the passage quoted above from Jenkins, 31 Cr.App.R. 1, 15, by Lord du Parcq in Noor Mohamed [1949] A.C. 182 or by Devlin J., in Cook [1959] 2 Q.B. 340 as to the matters which should be borne in mind in relation to the exercise of the discretion. It is now so well established that on a charge of rape the allegation that the woman consented, although involving an imputation on her character, should not expose an accused to cross-examination as to character, that it is possible to say, if the refusal to allow it is a matter of discretion, that there is a general rule that the discretion should be so exercised. Apart from this, there is not, I think, any general rule as to the exercise of discretion. It must depend on the

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circumstances of each case and the overriding duty of the judge to ensure that a trial is fair.

It is desirable that a warning should be given when it becomes apparent that the defence is taking a course which may expose the accused to such cross-examination. That was not given in this case but the failure to give such a warning would not, in my opinion, justify in this case the allowing of the appeal.

In my opinion the cross-examination of the accused was permissible under the section and it cannot be said the judge exercised his discretion wrongly in allowing it to take place. As Pickford J. said in Watson, 8 Cr.App.R. 249, 254, 255:

“… in order to see if the conviction should be quashed it is not enough that the court should think it would have exercised its discretion differently. It is necessary to show that in law the cross-examination of the prisoner was inadmissible.”

And as Devlin J. said in Cook [1959] 2 Q.B. 340, 348:

“It is well settled that this court will not interfere with the exercise of a discretion by the judge below unless he has erred in principle or there is no material on which he could properly have arrived at his decision.”

In my opinion the appeal should be dismissed.



LORD HODSON. My Lords, the points of law certified by the Court of Appeal as being of general public importance are:

  1.  (1)     If the making of the imputation is necessary for the proper development of the defence, is the cross-examination permitted by the Criminal Evidence Act, 1898, section 1 (f) (ii)?
  1.  (2)     Is there a general rule as to the exercise of the judge’s discretion as stated in Reg. v. Flynn [1963] 1 Q.B. 729?
Section 1 (f) of the Act reads as follows:

“A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii) he has given evidence against any other person charged with the same offence.”

The prohibition in the first part of the section, though absolute in its terms, does not prevent questions concerning his record being put to the accused in chief on the rare occasions when he wishes to volunteer evidence on the subject (see Jones v. Director of Public Prosecutions [1962] A.C. 635, 663, per Lord Reid).

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The words which have caused difficulty in section 1 (f) (ii) as taking away the shield provided by the prohibition are these, “unless … the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.”

The word “character” is used no less than four times in the section and one would naturally expect it to bear the same meaning throughout. At common law a witness could only be asked about the reputation of the accused and not about specific acts tending to show the real disposition of the accused. This was finally settled in 1865 by the Court of Crown Cases Reserved in Reg. v. Rowton, 10 Cox C.C. 25.

The decisions given under the Act of 1898 about imputation on character cannot, however, be easily fitted in to the common law conception of character as limited to general reputation. As Lord Hewart C.J. pointed out in Rex v. Dankly [1927] 1 K.B. 323, 329, a case concerned with imputations on the character of a prosecution witness:

“it is not difficult to suppose that a formidable argument might have been raised on the phrasing of this statute, that the character which is spoken of is the character which is so well known in the vocabulary of the criminal law – namely, the general reputation of the person referred to; in other words, that ‘character’ in that context and in every part of it, in the last part no less than in the first, in the third part no less than in the second, bears the meaning which the term ‘character’ was held to bear, for example, in the case of Reg. v. Rowton, 10 Cox C.C. 25.”

He concluded, however, that it was much too late to consider such an argument in the light of the long series of decisions.

In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 324 Viscount Simon L.C., speaking of the first part of section 1 (f) (ii), said:

“There is perhaps some vagueness in the use of the term ‘good character’ in this connection. Does it refer to the good reputation which a man may bear in his own circle, or does it refer to the man’s real disposition as distinct from what his friends and neighbours may think of him?”

Lord Simon was inclined to think that both conceptions were combined in section 1 (f).

In Jones v. Director of Public Prosecutions [1962] A.C. 635, 671 Lord Denning adopted Lord Hewart’s view but Lord Devlin expressed the view, at p. 699, that the meaning intended by the draftsman was “reputation” and nothing else.

Coupled with the word “imputation,” a word which generally has an evil implication, it seems that to give the word “character” the limited meaning of general reputation would rob the section of any sensible meaning, for it would then be possible to argue that someone who swore that a policeman had extracted a confession from him by violence was not casting imputations on the character of a witness for the prosecution (see Professor Cross’s Evidence, 3rd ed. 1967, p. 348).

The great difficulty lies in construing the word “imputation” in its context, and this has led to great conflict of judicial authority for the cases

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are not reconcilable on any recognisable principle. It has been accepted, and I do not quarrel with the acceptation, that to call the prosecutor a liar is not sufficient to deprive the accused of his statutory protection (Rex v. Rouse [1904] 1 K.B. 184). This decision did not, however, prevent the Court of Criminal Appeal reaching the conclusion that an assertion that the prosecutor was such a horrible liar that his brother would not speak to him deprived the accused of protection (Rex v. Rappolt (1911) 6 Cr.App.R. 156). In another case Lord Hewart C.J., after saying that a clear line is drawn between words which are an emphatic denial of the Crown’s evidence and words which attack the character or conduct of the witness, added:

“It was one thing for the appellant to deny that he had made the confession; but it is another thing to say that the whole thing was a deliberate and elaborate concoction on the part of the inspector” (Rex v. Jones, 17 Cr.App.R. 117, 120).

The line is a narrow one and the same judge in another case said that it is not possible to lay down, even if it were desirable, as the authorities stand, a series of formulae or regulations on this matter (Rex v. Dankly [1927] 1 K.B. 323, 330).

It was at one time considered that the accused only exposes himself to cross-examination on his record when the nature or conduct of the defence is such as to involve “unnecessary” or “unjustifiable” imputations on the character of the prosecutor or witnesses for the prosecution. The full Court of Criminal Appeal, however, disposed of this consideration in the case of Rex v. Hudson [1912] 2 K.B. 464. The judgment of the court delivered by Lord Alverstone C.J. contains this passage (at pp. 470, 471) which should, I think, be accepted as correct. It reads:

“We think that the words of the section, ‘unless the nature or conduct of the defence is such as to involve imputations,’ etc., must receive their ordinary and natural interpretation, and that it is not legitimate to qualify them by adding or inserting the words ‘unnecessarily,’ or ‘unjustifiably,’ or ‘for purposes other than that of developing the defence,’ or other similar words.”

Notwithstanding this clear statement that there is an apparent anomaly in the rape cases where it has long been consistently held that allegations by someone accused of rape to the effect that the prosecutrix had been guilty of gross indecency did not deprive him of his shield. This has not been doubted since the decision of the Court of Criminal Appeal in Rex v. Turner [1944] K.B. 463 in a judgment delivered by Humphreys J. affirmed by this House in Stirland v. Director of Public Prosecutions [1944] A.C. 315. Viscount Simon L.C., at p. 327, there enumerated a proposition which he purported to found on Rex v. Turner [1944] K.B. 463 that an accused is not to be regarded as depriving himself on the protection of the statute because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses. This would appear, on the face of it, to conflict with the injunction against adding words to the statute which the decision in Rex v. Hudson [1912] 2 K.B. 464 rightly condemns and it may be that the rape cases may best be justified by the

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following extract from the judgment of Humphreys J. in Turner’s case [1944] K.B. 463, 469. He said:

“… the defence of consent in rape is, in truth, nothing more than a denial by the accused that the prosecution has established one of the two essential ingredients of the charge. It is, and must be, the prosecution which introduces the question of consent or non-consent.”

It is, I think, right to say that the full width of Viscount Simon’s proposition has not been followed in the Court of Criminal Appeal in the sense of detracting from the validity of what was said in Hudson’s case [1912] 2 K.B. 464 (see Rex v. Jenkins, 31 Cr.App.R. 1, 13 where Singleton J. giving the judgment of the court expressed the opinion that the Lord Chancellor in using those words had not in mind any idea of upsetting or weakening what had been said in Hudson’s case).

It is unnecessary, in my opinion, to refer to all the cases in which the Court of Criminal Appeal have considered the meaning of the word “imputation” in the section, but mention should be made of Reg. v. Cook [1959] 2 Q.B. 340, 344, 345 where the judgment of a full court was delivered by Devlin J. who pointed out that the subsection as a whole makes it clear that it does not intend that the introduction of a person’s previous convictions should be other than exceptional. He proceeded, at p. 345:

“The difficulty about its phraseology is that unless it is given some restricted meaning, a prisoner’s bad character, if he had one, would emerge almost as a matter of course. Counsel for the defence could not submit that a witness for the prosecution was untruthful without making an imputation upon his character; a prisoner charged with assault could not assert that the prosecutor struck first without imputing to him a similar crime. The authorities show that this court has endeavoured to surmount this difficulty in two ways. First, it has in a number of cases construed the words of the subsection as benevolently as possible in favour of the accused. Secondly, it has laid it down that, in cases which fall within the subsection, the trial judge must not allow as a matter of course questions designed to show bad character; he must weigh the prejudicial effect of such questions against the damage done by the attack on the prosecution’s witnesses, and must generally exercise his discretion so as to secure a trial that is fair both to the prosecution and to the defence.”

I would emphasise that what was said in this case on the subject of the benevolent interpretation which has been given to the subsection relates to the early authorities decided before attention was directed to the exercise of the judge’s discretion to secure a fair trial.

I now turn to the matter of discretion and shall have to refer to Cook’s case [1959] 2 Q.B. 340again in this connection.

It was argued on behalf of the appellant that there was a discretion in the court under the section but that the conception of fairness in the exercise of that discretion was too imprecise and he relied upon the decision of the Court of Criminal Appeal in Reg. v. Flynn [1963] 1 Q.B. 729, 737, where it was said that where

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“the very nature of the defence necessarily involves an imputation, against a prosecution witness or witnesses, the discretion should, in the opinion of this court, be as a general rule exercised in favour of the accused, that is to say, evidence as to his bad character or criminal record should he excluded.”

It was argued that to limit the effect of the subsection to the exercise of the judge’s unfettered discretion had worked in practice in an unsatisfactory manner leading to great variations in practice. The operation of the proviso should not, therefore, normally depend on the discretion of the trial judge.

The accused, it was submitted, did not in this case throw away his shield by his imputation against the prosecution witness that the witness carried indecent photographs about with him, being a homosexual who had previously that day allowed himself to be buggered for money and was offering to submit to the accused for the same purpose also for money.

I agree with the Court of Appeal that to import the general rule referred to in Flynn’s case would be to place an unwarranted gloss on the words of the statute and to run counter to the decision in Rex. v. Hudson [1912] 2 K.B. 464, where such a general rule was rejected, and rightly so. If there is a discretion to admit or exclude questions where imputations are made it cannot be right to fetter that discretion by laying down rules and regulations for its exercise. “Fair,” as a word, may be imprecise, but I find it impossible to define it or even to attempt an enumeration of all the factors which have to be taken into account in any given case.

The respondent, on the other hand, has contended before your Lordships that the trial judge has no discretion whether to admit or exclude evidence. The words of the section are plain and define the circumstances in which the accused throws away his shield. His protection having ceased, the statute clearly provides that his record may be put to the accused. Where then, he asks, is there room for discretion to be exercised to prevent this being done? The answer is twofold. First, there is a long line of authority to support the opinion that there is such a discretion to be exercised under this subsection. In the second place, what is I think more significant, there is abundant authority that in criminal cases there is a discretion to exclude evidence, admissible in law, of which the prejudicial effect against the accused outweighs its probative value in the opinion of the trial judge.

It is true that the exercise of this discretion is not to be found until comparatively recent times. Under the subsection the matter was uncertain in the year 1913 when two conflicting decisions were given in the Court of Criminal Appeal. In April of that year it was held that a trial judge has a discretion, with which the court will be slow to interfere, whether he will allow cross-examination as to character under section 1 (f) (ii) of the Act (see Rex v. Watson, 8 Cr.App.R. 249, 254). Pickford J. pointed out that the hardship on a prisoner with a bad character can be avoided, for it does not follow that a judge necessarily allows the prisoner to be cross-examined as to character; he has a discretion not to allow it and the prisoner has that protection. In June of the same year a court differently constituted came to the opposite conclusion (see Rex v. Fletcher, 9 Cr.App.R. 53, 56). Buncos J. thought that a judge could go no further than suggest to the prosecution that they should not press it but he cannot exclude evidence

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which he held to be admissible. In your Lordships’ House in the next year in the case of Rex v. Christie [1914] A.C. 545, 559, Lord Moulton, on the general question of a discretion to exclude admissible evidence, stated the position thus:

“The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature, under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable. Under the influence of this practice, which is based on an anxiety to secure for everyone a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure.”

From this time onwards the position has been accepted that there is a discretion to exclude admissible evidence in all criminal cases not-withstanding the guarded approach made by Bankes J., 9 Cr.App.R. 53, 56 and Lord Moulton [1914] A.C. 545, 559, respectively.

In 1934 Viscount Sankey L.C. in Maxwell v. The Director of Public Prosecutions [1935] A.C. 309, 321, stated baldly in connection with this section that the judge had a discretion under proviso (f). In 1944 Viscount Simon L.C. in Stirland v. The Director of Public Prosecutions [1944] A.C. 315, 324, stated in general terms, though with reference to a statement as to the accused’s past record, that all was subject to the judge’s discretion to disallow any questions which in the circumstances he thinks unfair.

In 1949 in Noor Mohamed v. The King [1949] A.C. 182, 192, Lord du Parcq, giving the judgment of the Board, used words of general application in dealing with circumstances in which a prosecution might be entitled to give evidence of guilty intent. He said:

“It is right to add, however, that in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.”

In Harris v. The Director of Public Prosecutions [1952] A.C. 694 the question was whether or not on an indictment of larceny evidence of previous larcenies of a similar kind (on which the accused was acquitted)

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should have been excluded from the consideration of the jury. Viscount Simon L.C. read the passage I have cited from Noor Mohamed’s case [1949] A.C. 182, 192 and prefaced his reading of it by saying [1952] A.C. 694, 707:

“It is not a rule of law governing the admissibility of evidence, but a rule of judicial practice followed by a judge who is trying a charge of crime when he thinks that the application of the practice is called for.”

The last two cases were followed by the Judicial Committee of the Privy Council in Kuruma v. The Queen [1955] A.C. 197 where an illegal search of the accused disclosed unlawful possession of ammunition. Lord Goddard C.J., in giving the reasons for the dismissal of the appeal, said, at p. 204:

“No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.”

In the same year in the Court of Criminal Appeal Lord Goddard C.J. affirmed the duty to exercise discretion with regard to section 1 (f) (Rex v. Clark [1955] 2 Q.B. 469, 478).

This line of authority has been followed consistently to the present time in cases which have been cited to your Lordships. As recently as 1962 in Jones v. The Director of Public Prosecutions [1962] A.C. 635, 671 the existence of the general judicial discretion as vested in the judge, not in the prosecution, was affirmed in these words by Lord Denning:

“The judge was entitled in his discretion to exclude them [viz., questions] if he thought they were so prejudicial as to outweigh their probative value.”

The discretionary principle of fairness to the accused has been adopted in Scotland (see Lawrie v. Muir, 1950 S.C.(J.) 19) and in Northern Ireland (see Reg. v. Murphy [1965] N.I. 138).

I now refer again to Reg. v. Cook [1939] 2 Q.B. 340, 347 in which the judgment, delivered by Devlin J., pointed out that the attempt to give a limited construction to the words of the subsection has led to decisions which are difficult to reconcile with one another and now that it is clearly established that the trial judge has a discretion and that he must exercise it so as to secure that the defence is not unfairly prejudiced, there is nothing to be gained by seeking to strain the words of the subsection in favour of the defence.

If the word “imputation” is benevolently construed in favour of the defence so as to exclude imputations of little weight or of relatively minor significance in proportion to the character of the accused as revealed by his record, the trial judge can in the exercise of his discretion protect the accused from too severe an application of the section. I do not myself think it profitable to endeavour to give clear directions as to what should be done in particular cases. This has been done in rape cases which may be explained, as Humphreys J. did in Turner’s case [1944] K.B. 463or simply treated as sui generis as Devlin J. suggested in Cook’s case [1959] 2 Q.B. 340, 347. As Professor Cross points out in his book Evidence, 3rd

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ed., (1967), p. 354, the conception of a discretion which must generally be exercised in a particular way may be juridically odd but it has the merit of providing a practical solution to the problem. Perhaps this is the best justification for the practice which is sanctified by authority in the rape cases. I would not wish, however, to extend the list of categories. Discretion ought not to be confined save by the limits of fairness. Sense of fairness is, after all (in the authorities), always treated as the equivalent of discretion.

In this case I agree with the Court of Appeal that once one escapes from the idea of a general rule introduced by Flynn’s case [1963] 1 Q.B. 729 there is no ground for saying that the learned judge was wrong in the exercise of his discretion. Imputations of a serious nature were made and the cross-examination was rightly admitted. The failure to prove the convictions was not important having regard to the way the appellant answered the questions put to him in cross-examination. Further, I do not think that there is any substance in the suggestion that the appellant was in any sense trapped by the learned judge into making the imputations which he did. I do not think further that there was any material defect in the directions given to the jury on the question of the relevance of the admissions and the absence of strict proof of the convictions.

I would dismiss this appeal.

LORD GUEST. My Lords, there can be few branches of the criminal law which have given rise to so many appeals as those concerning the application of section 1 of the Criminal Evidence Act, 1898. The reason is not far to seek. Most defences at a criminal trial involve questions as to the credibility or character of the prosecution witnesses; a great many accused persons have previous convictions, so a clash becomes inevitable. Under what circumstances, in regard to section 1 (f) (ii) of the Act, is the accused to be cross-examined as to his previous convictions, the ordinary rule being that evidence of his bad character is not admissible?

A very great number of authorities were referred to. Some are in consistent and not easy to reconcile. I only propose to isolate a few. The first reported case after the 1898 Act was Rex v. Rouse [1904] 1 K.B. 184. For the accused to call a prosecution witness “a liar” was held not to involve an imputation on his character. This was merely an emphatic denial of the truth of the allegation against him.

In Rex v. Preston [1909] 1 K.B. 568, a rather special case, there was a challenge of the police inspector’s conduct of identification parade proceedings, but which did not form part of the defence. This was held in the circumstances not to involve an imputation on the character of the inspector. After quoting section 1 (f) Channell J. said, at p. 575:

“It appears to us to mean this: that if the defence is so conducted, or the nature of the defence is such, as to involve the proposition that the jury ought not to believe the prosecutor or one of the witnesses for the prosecution upon the ground that his conduct – not his evidence in the case, but his conduct outside the evidence given by him – makes him an unreliable witness, then the jury ought also to know the character of the prisoner who either gives that evidence or makes that charge, and it then becomes admissible to cross-examine the prisoner

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as to his antecedents and character with the view of showing that he had such a bad character that the jury ought not to rely upon his evidence.”

Thereafter the decisions were confusing and a full court was assembled in Rex v. Hudson [1912] 2 K.B. 464. On a charge of theft the defence was that the Crown witnesses had stolen the goods and that they had planted them on the accused and the witnesses were asked questions to show that they had committed the theft. It was held that the words of section 1 (f) (ii) must receive their ordinary and natural interpretation and must not be qualified by adding or importing the words “unjustifiably” or “for purposes other than that of developing the defence” or other similar words. In that case the nature and conduct of the defence was held to be such as to involve imputations on the character of the prosecution witnesses. In my view, this was the proper corrective for the confusion which the law had reached and the principle in this case should have formed the future guidance for the interpretation of the section.

No sooner, however, had this decision been given than we find expressions of opinion that the trial judge had a discretion in certain cases to mitigate the harsh or strict application of section 1 (f) (ii). The first mention of this occurred in Rex v. Watson, 8 Cr.App.R. 249, 254, where Pickford L.J. said that to apply the rule in Hudson [1912] 2 K.B. 464 strictly would be to put a hardship on a prisoner with a bad character:

“That may be so, but it does not follow that a judge necessarily allows the prisoner to be cross-examined to character; he has a discretion not to allow it, and the prisoner has that protection.”

In Rex v. Jones, 17 Cr.App.R. 117, 119, 120 it was held that to suggest that a prosecution witness had fabricated evidence was an imputation on his character. The Lord Chief Justice, Lord Hewart, said there was a clear line between an emphatic denial of the evidence and an attack on the conduct or character of a witness which fabrication involved.

The case of Rex v. Turner [1944] K.B. 463, another full court case, has created difficulties. It was held that the defence of consent to a charge of rape was not an imputation on the character of the prosecutrix. The basis of the decision was that as lack of consent was an element in the offence of rape which had to be proved by the prosecution, it was so closely connected with a denial of the charge as to form part of the defence and that some words of limitation must be put on section 1 (f) (ii) to prevent an injustice. It was said that this was in agreement with the uniform practice for the last 35 years. In Stirland v. The Director of Public Prosecutions [1944] A.C. 315, a case not concerned with section 1 (f) (ii), Viscount Simon L.C., in the course of enumerating certain propositions, said, at p. 327:

“4. An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses: Rex v. Turner [1944] K.B. 463.”

This observation was obiter.

The next landmark is Reg. v. Cook [1959] 2 Q.B. 340 where a full

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court was assembled. Devlin J., giving the judgment of the court, after reviewing the authorities, said, at p. 347:

“In our opinion the difficulties created by this subsection are as a general rule best dealt with in accordance with the principle in Rex v. Hudson [1912] 2 K.B. 464 as applied in Rex v. Jenkins, 31 Cr.App.R. 1. The attempt to give the words a limited construction has led to decisions which it is difficult to reconcile; now that it is clearly established that the trial judge has a discretion and that he must exercise it so as to secure that the defence is not unfairly prejudiced, there is nothing to be gained by seeking to strain the words of the subsection in favour of the defence. We think, therefore, that the words should be given their natural and ordinary meaning and that the trial judge should, in his discretion, do what is necessary in the circumstances to protect the prisoner from an application of the subsection that would be too severe.”

This decision might have been thought to lay at rest any confusion which had previously existed, but further confusion was occasioned by Reg. v. Flynn [1963] 1 Q.B. 729, another full court case. This is the case which has given rise to great difficulty in view of Slade J.’s statement that where the very nature of the defence necessarily involved imputations on the character of the prosecution witness, the trial judge should as a general rule exercise his discretion in favour of the accused. He based this judgment on Reg. v. Cook [1959] 2 Q.B. 340.

The case of Jones v. Director of Public Prosecutions [1962] A.C. 635 is long and complicated and it is unnecessary to do more than say that there is approval by Lord Devlin (at pp. 701, 708) of Rex v. Turner [1944] K.B. 463 and Viscount Simon’s fourth proposition in Stirland [1944] A.C. 315.

And so we reach the present decision where the Court of Appeal (Criminal Division) followed Hudson [1912] 2 K.B. 464 and declined to say that Flynn [1963] 1 Q.B. 729 had laid down any general rule as to the exercise of the judge’s discretion under section 1 (f) (ii).

If I had thought that there was no discretion in English law for a judge to disallow admissible evidence, as counsel for the Crown argued, I should have striven hard and long to give a benevolent construction to section 1 (f) (ii), which would exclude such cases as Rouse [1904] 1 K.B. 184, “liar,” Rex v. Rappolt, 6 Cr.App.R. 156, “horrible liar,” Rex v. Jones, 17 Cr. App.R. 117, “fabricated evidence,” Rex v. Turner [1944] K.B. 463, rape and other sexual offences, Reg. v. Brown (1960) 44 Cr.App.R. 181, “self defence.” I cannot believe that Parliament can have intended that in such cases an accused could only put forward such a defence at peril of having his character put before the jury. This would be to defeat the benevolent purposes of the 1898 Act which was for the first time to allow the accused to give evidence on his own behalf in all criminal cases. This would deprive the accused of the advantage of the Act. But I am not persuaded by the Crown’s argument and I am satisfied upon a review of all the authorities that in English law such a discretion does exist. It was exercised for the first time in relation to this section in Watson, 8 Cr.App.R. 249. Discretion as such has the general blessing of Lord Moulton in Rex v. Christie[1914] A.C. 545 and thereafter it has been the uniform practice of judges

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to exercise it in this class of case. Discretion was recognised in this House in Maxwell v. Director of Public Prosecutions [1935] A.C. 309; Stirland [1944] A.C. 315Harris v. Director of Public Prosecutions [1952] A.C. 694; and Jones v. Director of Public Prosecutions [1962] A.C. 635. And in the Privy Council in Noor Mohamed v. The King [1949] A.C. 182 and Kurumah [1955] A.C. 197. In face of this long established practice it is, in my opinion, now too late to say that the judge has no discretion. While I leave to others more versed than I am in English criminal law and practice to discuss the origin of this discretion, I would assume that it springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused.

I only wish to say this about the Scottish cases which were referred to in argument. The actual decision in O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90, 98, followed as it was by Fielding v. H.M. Advocate, 1959 S.C.(J.) 100, would appear to be correct and I respectfully adopt the reasoning of the Lord Justice-Clerk in O’Hara, 1948 S.C.(J.) 90, 98. Whether the discretion in Scotland is exercised in relation to the admissibility of evidence or in relation to the disallowance of evidence is a matter of emphasis and may be open to doubt in view of Lawrie v. Muir, 1950 S.C.(J.) 19.

I find it unnecessary to say much more on the principles upon which discretion should be exercised. The guiding star should be fairness to the accused. This idea is best expressed by Devlin J. in Reg. v. Cook [1959] 2 Q.B. 340. In following this star the fact that the imputation was a necessary part of the accused’s defence is a consideration which will no doubt be taken into account by the trial judge. If, however, the accused or his counsel goes beyond developing his defence in order to blacken the character of a prosecution witness, this no doubt will be another factor to be taken into account. If it is suggested that the exercise of this discretion may be whimsical and depend on the individual idiosyncrasies of the judge, this is inevitable where it is a question of discretion; but I am satisfied that this is a lesser risk than attempting to shackle the judge’s power within a straitjacket.

On the facts of this case I have no doubt that the nature and conduct of the defence was such as to involve imputations on the character of the prosecution witness. It was suggested to him that he had been to bed with another man that afternoon and earned a £1 and that he asked the accused for a £1 to go to bed with him and further that he had brought indecent photographs with him to the accused’s room where they were found by the police. These suggestions were denied by McLaughlin. These were clearly imputations on the character of the prosecution witness and would entitle the prosecution to cross-examine the accused as to his previous convictions. It should be added that the evidence of the doctor was to the effect that the condition of McLaughlin was such as to be consistent with his having had sexual intercourse with someone on that day. So that it was relevant for the defence to establish that another man might have been responsible for McLaughlin’s condition. However this may be there were, apart from this, the strongest imputations against McLaughlin’s character.

I would dismiss the appeal.

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LORD PEARCE. My Lords, ever since the Criminal Evidence Act, 1898, came into force there has been difficulty and argument about the application of the words in section 1 (f) (ii) “the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution.”

Two main views have been put forward. One view adopts the literal meaning of the words. The prosecutor is cross-examined to show that he has fabricated the charge for improper reasons. That involves imputations on his character. Therefore, it lets in the previous convictions of the accused. The practical justification, for this view is the “tit for tat” argument. If the accused is seeking to cast discredit on the prosecution, then the prosecution should be allowed to do likewise. If the accused is seeking to persuade the jury that the prosecutor behaved like a knave, then the jury should know the character of the man who makes these accusations, so that it may judge fairly between them instead of being in the dark as to one of them.

The other view would limit the literal meaning of the words. For it cannot, it is said, have been intended by Parliament to make a man liable to have his previous convictions revealed whenever the essence of his defence necessitates imputations on the character of the prosecutor. This revelation is always damaging and often fatal to a defence. The high-water mark of this argument is the ordinary case of rape. In this the vital issue (as a rule) is whether the woman consented. Consent (as a rule) involves imputations on her character. Therefore, in the ordinary case of rape, the accused cannot defend himself without letting in his previous convictions. The same argument extends in varying lesser degrees to many cases.

The argument in favour of a construction more liberal to the accused is supported in two ways.

First, it is said that character is used in the sense in which it was used in Reg. v. Rowton, 10 Cox C.C. 25, where the full court ruled that evidence of good character must be limited solely to general reputation and not to a man’s actual disposition; and no imputation on the prosecutor’s general reputation is involved by allegations that he acted as a knave in matters relevant to the offence charged. So far as the meaning of “character” is concerned, there is much force in this argument. It would accord with the word “character” as used three times previously in the same subsection. See the judgment delivered by Lord Hewart C.J. in Rex v. Dankly [1927] 1 K.B. 323, 329, where the argument was described as formidable but was rejected:

“Nevertheless, when one looks at the long line of cases beginning very shortly after the passing of the Criminal Evidence Act, 1898, it does not appear that that argument has ever been so much as formulated. It was formulated yesterday. One can only say that it is now much too late in the day even to consider that argument, because that argument could not now prevail without the revision, and indeed to a great extent the overthrow, of a very long series of decisions.”

A similar view was expressed by Lord Denning in Jones v. Director of Public Prosecutions [1962] A.C. 635, 671 (see also Lord Devlin, at p. 709), a case which dealt with a kindred problem under section 1 (f) (i). Viscount

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Simon, however, in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 325, after discussing the two conceptions, that is reputation and real disposition, said “I am disposed to think that in para. (f) (where the word ‘character’ occurs four times) both conceptions are combined.”

Late as it may be, it might be justifiable to consider whether “character” means in the context solely general reputation, if a reassessment could lead to any clarification of the problem. But in my opinion it leads nowhere. For I cannot accept the proposition that to accuse a person of a particular knavery does not involve imputations on his general reputation. The words “involve” and “imputations” are wide. It would be playing with words to say that the allegation of really discreditable matters does not involve imputations on his general reputation, if only as showing how erroneous that reputation must be. The argument is, however, a valuable reminder that the Act is intending serious and not trivial imputations.

The second part of the argument in favour of a construction more liberal to the accused is concerned with the words “the conduct or nature of the defence.” One should, it can be argued, read conduct or nature as something superimposed on the essence of the defence itself. In O’Hara v. H.M. Advocate 1948 S.C.(J.) 90, 98, the learned Lord Justice-Clerk (Lord Thomson), after a careful review of the English cases, construed “conduct” as meaning the actual handling of the case by the accused or his advocate. He found difficulty with “nature” but said:

“But the more general considerations which I have mentioned persuade me to the view that ‘nature’ is to be read, not as meaning something which is inherent in the defence, but as referable to the mechanism of the defence; nature being the strategy of the defence and conduct the tactics.”

This argument has obvious force, particularly in a case of rape, where the allegation of consent is in truth no more than a mere traverse of the essential ingredient which the Crown have to prove, namely, want of consent. But the argument does not, and I think cannot, fairly stop short of contending that all matters which are relevant to the crime, that is, of which rebutting evidence could be proved, are excluded from the words “conduct or nature of the defence.”

To take the present case as an example, the evidence having established physical signs on the victim of the alleged offence, his admission that he had previously committed it with somebody else was relevant. So, too, was his admission that he had been paid £1 for it, since, when the conversation was relevant, it could not be right to bowdlerise it. And, therefore, it is said, the putting of the allegation in cross-examination and the evidence given by the accused was an essentially relevant part of the defence and therefore was not within the words “the nature or conduct of the defence.” If Mr. Jeremy Hutchison’s forceful argument on the proper construction of the subsection is right, the story told by the accused did not let in the convictions.

So large a gloss upon the words is not easy to justify, even if one were convinced that it necessarily produced a fair and proper result which Parliament intended. But there are two sides to the matter. So liberal a shield for an accused is in many cases unfair to a prosecution. Provided

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it is all linked up to the defence put forward by an accused there would be no limit to the amount of mud which could be thrown against an unshielded prosecutor while the accused could still crouch behind his own shield.

Mr. Hutchison relies on an alternative argument that, even if the stricter construction is correct, yet Reg. v. Flynn [1963] 1 Q.B. 729 has established something akin to a rule by which the judge, except in rare circumstances, should always exercise his discretion in a way which would produce an effect similar to the more liberal construction.

Such being the problems set by the Act, the general course of the cases was as follows. The first reported case was Reg. v. Marshall (1899) 63 J.P. 36 where the stricter view was taken. It was also taken by implication in Rex v. Rouse [1904] 1 K.B. 184. In Rex v. Bridgwater [1905] 1 K.B. 131 however, in Rex v. Preston [1909] 1 K.B. 568 and finally in Rex v. Westfall 7 Cr.App.R. 176, 179, there were certain expressions which supported the less strict construction. These were considered by a full court in Rex v. Hudson [1912] 2 K.B. 464, 470, 471, which took the stricter view:

“We think that the words of the section ‘unless the nature or conduct of the defence is such as to involve imputations,’ etc., must receive their ordinary and natural interpretation, and that it is not legitimate to qualify them by adding or inserting the words ‘unnecessarily,’ or ‘unjustifiably,’ or ‘for purposes other than developing the defence,’ or other similar words.”

That view was followed by Rex v. Watson, 8 Cr.App.R. 249 in which Pickford J., giving the judgment of the court (of which Avory J. was a member), quoted the above passage from Hudson, and said, at pp. 254, 255:

“It has been pointed out that to apply the rule strictly is to put a hardship on a prisoner with a bad character. That may be so, but It does not follow that a judge necessarily allows the prisoner to be cross-examined to character; he has a discretion not to allow it, and the prisoner has that protection. But in order to see if the conviction should be quashed it is not enough that that Court should think it would have exercised its discretion differently. It is necessary to show that in law the cross-examination of the prisoner was inadmissible. The judge at the trial is in a better position to judge whether the cross-examination should be allowed.”

That case has never been criticised or disapproved. With one exception, that is the pattern of present practice. The courts adopt the strict interpretation but, where it would be unfair, it is modified by the discretion of the judge at the trial. Later in 1913, in the case of Rex v. Fletcher 9 Cr.App. 53, 56, Bankes J. said,

“Where the judge entertains a doubt as to the admissibility of evidence, he may suggest to the prosecution that they should not press it, but he cannot exclude evidence which he holds to be admissible.”

But this was not said in relation to section 1 (f) and, as will be seen, that view has not since prevailed.

The exception is the case of rape. This had for long been treated on a different footing. Rex v. Turner [1944] K.B. 463 decided that evidence

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of consent by the woman and indecencies by her which accompanied or constituted it, did not let in the previous convictions of the accused. Without embarking on other aspects of the subsection or other crimes Humphries J., giving the judgment of the court, said, at p. 469:

“For centuries the law has jealously guarded the right of an accused person to put forward at his trial any defence open to him on the indictment without running the risk of his character, if a bad one, being disclosed to the jury. It would be strange, indeed, if the Act of Parliament which allowed him, in most cases for the first time, to give evidence on oath had virtually deprived him of that right in the case of one serious felony, by enacting that he could only do so at the risk of having his character exposed. What is commonly referred to as the defence of consent in rape is, in truth, nothing more than a denial by the accused that the prosecution had established one of the two essential ingredients of the trial. It is, and must be, the prosecution which introduces the question of consent or non-consent. Can the legislature have intended to penalise the accused who avails himself of the right to give evidence conferred by statute by enacting that he may be cross-examined as to previous convictions if he denies one, though not if he only denies the other, of the two ingredients of the crime. In our opinion, this is one of the cases where the court is justified in holding that some limitation must be put on the words of the section, since to decide otherwise would be to do grave injustice never intended by Parliament.”

He then goes on to mention a ruling to the like effect by Jelf J. in Rex v. Sheean, 21 Cox C.C. 561 and adds [1944] K.B. 463, at p. 470:

“In so holding we are satisfied that we are following the uniform practice of the last 35 years.”

The argument in the case had ranged over such cases as Rex v. Preston [1909] 1 K.B. 568 and Rex v. Hudson [1912] 2 K.B. 464 but the court deliberately confined itself to the crime of rape in respect of which there had been a uniform practice for 35 years and the court felt that there could only be one answer; and it was refraining from critising Rex v. Hudson or giving guidance as to the more general aspects of the subsection. Rape is regarded as a matter on its own so far as the subsection is concerned. Viscount Simon’s fourth proposition in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327 which gives Rex v. Turner [1944] K.B. 463 as authority, should in my opinion be taken as relating only to rape.

Maxwell v. Director of Public Prosecutions [1935] A.C. 309, 321, was a case on a somewhat different point, where Viscount Sankey L.C. remarked:

“in general no question whether a prisoner has been convicted or charged or acquitted should be asked or, if asked, allowed by the judge, who has a discretion under proviso (f), unless …”

and he went on to deal with matters which do not help the particular problem. He also pointed out (at p. 318) the negative form in which proviso (f) is couched:

“The Act does not in terms say that in any case a prisoner may be

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asked or required to answer questions falling within proviso (f), or impose any such affirmative or absolute burden upon him.”

In Stirland v. Director of Public Prosecutions [1944] A.C. 315, 324 on a somewhat different point under section 1 (f), Viscount Simon L.C. said that the questions

“should not have been put, and, if put, should have been disallowed. It must not be forgotten that the judge presiding at a criminal trial has a discretion (as Lord Sankey said in Maxwell’s case [1935] A.C. 309, 321) to disallow questions addressed to the accused in cross-examination if he considers that such questions, having regard to the issues before the jury and to the risk of the jury being misled as to what those issues really are, would be unfair, and the judge’s disallowance cannot be challenged on appeal.”

There is a useful summary of the situation, as it has been uniformly recognised in practice for many years, to be found in Rex v. Jenkins, 31 Cr.App.R. 1, 14, 15, where Singleton J. (with Oliver and Birkett JJ.) said:

“There is one further matter which we think it right to mention. The subsection was intended to be a protection to an accused person. A case ought to be tried on its own facts and it has always been recognised that it is better that the jury should know nothing about an accused person’s past history if that is to his discredit. Just as it was recognised by the Legislature that this was fair and proper, so it was recognised that if the nature or conduct of the defence was such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, it was equally fair and proper that counsel for the prosecution should have the right to ask questions tending to show that the accused person has committed or been convicted of an offence other than that which is under investigation. If and when such a situation arises, it is open to counsel to apply to the presiding judge that he may be allowed to take the course indicated, as was done in this case. Such an application will not always be granted, for the judge has a discretion in the matter. He may feel that even though the position is established in law, still the putting of such questions as to the character of the accused person may be fraught with results which immeasurably outweigh the result of questions put by the defence and which make a fair trial of the accused person almost impossible. On the other hand, in the ordinary and normal case he may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked. It is obviously unfair that the jury should be left in the dark about an accused person’s character if the conduct of his defence has attacked the character of the prosecutor or the witnesses for the prosecution within the meaning of the section. The essential thing is a fair trial and that the Legislature sought to ensure by section 1, subsection (f).”

In Noor Mohamed v. The King [1949] A.C. 182 Lord du Parcq, giving

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the judgment of the Board on a somewhat different point, referred to the judge’s general power to exclude evidence which would be unfair. This was quoted with approval by Viscount Simon in Harris v. Director of Public Prosecutions [1952] A.C. 694, 707:

“There is a second proposition which ought to be added under this head. It is not a rule of law governing the admissibility of evidence, but a rule of judicial practice followed by a judge who is trying a charge of crime when he thinks that the application of the practice is called for. Lord du Parcq referred to it in Noor Mohamed v. The King [1949] A.C. 182, 192, immediately after the passage above quoted, when he said that ‘in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.’ This second proposition flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused. If such a case arose, the judge may intimate to the prosecution that evidence of ‘similar facts’ affecting the accused, though admissible, should not be pressed because its probable effect ‘would be out of proportion to its true evidential value’ (per Lord Moulton in Director of Public Prosecutions v. Christie (1914) 24 Cox C.C. 249, 257). Such an intimation rests entirely within the discretion of the judge.”

It is not to be thought that Lord Moulton or Viscount Simon were intending that this “discretion” of the judge was then to be at the discretion of the prosecutor who might accept or reject it. It is a sensible and valuable discretion left in the hands of the judge to see that a criminal is fairly tried. He can see better than counsel for the prosecution or defence where fairness lies. It is argued that fairness is too loose a concept to afford guidance. I do not agree. It has been a guiding light in criminal trials for many generations. One generation may take a different view of its application from another. But that is an advantage rather than otherwise.

In Kuruma v. The Queen [1955] A.C. 197, 204, Lord Goddard C.J., giving the judgment of the Board on a different matter, pointed out that

“in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused.”

And in Reg. v. Clark [1955] 2 Q.B. 469, 478, he said with regard to section 1 (f):

“it should be remembered that it is always in the discretion of the

[1970] A.C. 304 Page 359

judge to rule out a cross-examination and to tell counsel for the prosecution that he is not going to allow a cross-examination as to previous convictions.”

Many cases from the Court of Criminal Appeal were cited falling on one side of the line or the other. The matter was well summed up in a judgment of the full court under Lord Parker C.J., given by Devlin J. in Reg. v. Cook [1959] 2 Q.B. 340, 347:

“In our opinion the difficulties created by this subsection are as a general rule best dealt with in accordance with the principle in Rex v. Hudson [1912] 2 K.B. 464 as applied in Rex v. Jenkins, 31 Cr.App.R. 1. The attempt to give the words a limited construction has led to decisions which it is difficult to reconcile; now that it is clearly established that the trial judge has a discretion and that he must exercise it so as to secure that the defence is not unfairly prejudiced, there is nothing to be gained by seeking to strain the words of the subsection in favour of the defence. We think, therefore, that the words should be given their natural and ordinary meaning and that the trial judge should, in his discretion, do what is necessary in the circumstances to protect the prisoner from an application of the subsection that would be too severe. It may be that, as indicated in O’Hara v. H.M. Advocate, 1948 S.C.(J.) 90 cases of rape should be regarded as sui generis; certainly the peculiar questions to which they give rise have been settled by Rex v. Turner [1944] K.B. 463 and that case has determined how the discretion should be exercised. No equally clear guidance can be given in cases where the subject-matter is not so specialised. In particular no firm rule has been, or can be, laid down to govern the sort of circumstances we have to consider here where the defence involves a suggestion of impropriety against a police officer. The cases on the subject-matter – in particular Rex v. Preston [1909] 1 K.B. 568Rex v. Jones, 17 Cr.App.R. 117 and Reg. v. Clark [1955] 2 Q.B. 469 – indicate the factors to be borne in mind and the sort of question that a judge should ask himself. Is a deliberate attack being made upon the conduct of the police officer calculated to discredit him wholly as a witness? If there is, a judge might well feel that he must withdraw the protection which he would desire to extend as far as possible to an accused who was endeavoring only to develop a line of defence. If there is a real issue about the conduct of an important witness which the jury will inevitably have to settle in order to arrive at their verdict, then, as Singleton J. put it in Rex v. Jenkins, 31 Cr.App.R. I and Lord Goddard C.J. repeated in Reg. v. Clark [1955] 2 Q.B. 469, 479, the jury is entitled to know the credit of the man on whose word the witness’s character is being impugned.”

Finally, in Reg. v. Flynn [1963] 1 Q.B. 729, 736, 737, the court, in a judgment of Slade J. allowing an appeal, said:

“I have already emphasised that section 1 (f) (ii) refers to both the nature and conduct of the defence. Of course, the exercise of a discretion must depend entirely on the facts of the particular case in which it falls to be exercised, but where, as in this present case, the

[1970] A.C. 304 Page 360

very nature of the defence necessarily involves an imputation, against a prosecution witness or witnesses, the discretion should, in the opinion of this court, be as a general rule exercised in favour of the accused, that is to say, evidence as to his bad character or criminal record should be excluded. If it were otherwise, it comes to this, that the Act of 1898, the very Act which gave the charter, so to speak, to an accused person to give evidence on oath in the witness box, would be a mere trap because he would be unable to put forward any defence, no matter how true, which involved an imputation on the character of the prosecutor or any of his witnesses, without running the risk, if he had the misfortune to have a record, of his previous convictions being brought up in court while being tried on a wholly different matter.”

It is argued that in view of those remarks the learned judge in the present ease ought to have exercised his discretion in favour of this portlier accused, since Reg. v. Flynn [1963] 1 Q.B. 729, set up something in the nature of a rule as to the exercise of the discretion. But if and in so far as Reg. v. Flynn was purporting to do this, I do not accept it. The considerations which Reg. v. Flynnsets out are, indeed, valid factors to be weighed in the exercise of discretion. At the end of it all, however, the judge must make up his own mind.

In the result, I cannot accept the appellant’s proposition that Rex v. Hudson [1912] 2 K.B. 464and the many cases which have followed it were wrong in their strict instruction of section 1 (f). Nor can I accept his contention that Reg. v. Flynn [1963] 1 Q.B. 729 laid down a rule by which, except in rare cases, the judge’s discretion should be used to produce the more liberal construction.

On the other hand, I cannot accede to the contention of Mr. Caulfield for the prosecution that the judge has no desertion and must always apply the strict rule in Rex v. Hudson [1912] 2 K.B. 464in its full rigour. There is an overwhelming mass of distinguished authority that the discretion exists. It is not necessary to consider here whether that discretion has been evolved in relation to section 1 (f) from the ease of Rex v. Watson, 8 Cr.App.R. 249 onwards, or whether it comes, as in my opinion it does, from the inherent power of the courts to secure a fair trial for the accused, or, to use the words of Viscount Simon [1952] A.C. 694, 707 “the duty of a judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused.”

Moreover, it is good sense. Naturally each side seeks to establish a rule rather than a desertion, provided always that the rule is in his own favour. There is always an attraction in rules, since they are so much easier to apply. It would, for instance, be easier for a judge if he did not have a desertion as to costs in civil suits. Moreover, “the demon of formalism,” in the words of Cardozo J., “tempts the intellect with the lure of scientific order,” especially in eases like section 1 (f), where decisions in portlier eases are so difficult. But the courts have been right in thinking that the question is whether this attack on the prosecution ought to let in these convictions on the particular facts of the case, and on such a point rules are no substitute for a desertion in producing a fair trial. I

[1970] A.C. 304 Page 361

appreciate that in the result an accused cannot be certain exactly how far he can go without letting in his convictions. But the many cases in the Court of Criminal Appeal have given some reasonably consistent guidance. And unless there is established a rule that an accused can go to the limits of attack without letting in his convictions, there is no possibility of drawing any clearer line for every case.

On the particular facts of this case, I do not think that the judge exercised his discretion wrongly. The attack on the chief witness for the prosecution was very thorough and serious. There was even added to the attack contained in the alleged admissions of the prosecution witness a suggestion that he was inventing the whole charge because the accused would not give him a pound.

Granted, therefore, that this was a case where the convictions should be let in, the judge’s questions at the end of the accused’s cross-examination did not affect the situation or lead the accused to say anything more than had already been put on his behalf.

I am, however, perturbed by the impression which may have been given to the jury when the accused got at odds with the judge. I think that a more detailed explanation to the jury would have been desirable to indicate in what light they should view his convictions and how this should affect their minds. This is particularly desirable when, as here, it is the judge who is initiating the cross-examination of the accused as to his previous convictions. After some doubt in the matter, however, I do not find sufficient cause of complaint on this point to allow the appeal.

The failure to prove the convictions can have had no adverse effect on the accused and the jury may well have taken his answers as tantamount to admissions.

I would therefore dismiss the appeal.

LORD WILBERFORCE. My Lords, I have had the benefit of reading in advance the opinion of my noble and learned friend, Lord Pearce. I agree with this, both as regards the legal principles to be applied in relation to section 1 (f) (ii) of the Criminal Evidence Act, 1898, and also as to the actual conduct of the trial. I would dismiss the appeal.

Solicitors: Kingsley Napley & Co.; Director of Public Prosecutions.

J. A. G.

Sentencing – TOC

General Sentencing Principles

  • overview of sentencing approaches – R v Sargeant (1974) 60 Cr. App. R. 74 [useful quote: “被告人已經被關押…,已受過牢獄之苦,監獄鐵鎖鋃鐺之聲將永遠在被告耳邊縈繞,提醒他以後要生性做人,不再犯事” – “…It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.”]
  • wherever possible, avoid imposing deterrent sentence upon a first offender – Chan Chi Ming [2003] 3 HKLRD 654; HCMA 115/2003 (15 July 2003) [should have asked for CSO reports before giving sentence, citing Bokhary JA’s quote in AG v Ng Sai Man [1994] 1 HKC 151; CAAR 11/1993 (25 January 1994), at [15] – “if is not necessary to send a man to prison for very long it may well not necessary to send him to prison at all” – for the quote only, a deterrent sentence was actually justified in this case] – CAVEAT: Good character/first-time offending is no bar to a deterrent sentence should the circumstances demand it – Chan Mo Kong [1998] 1 HKLRD 678; HCMA 194/1998 (17 April 1998) – In R v Ng Tat Shing & Anor [1977-1979] HKC 71 it was noted that although the general rule may be that an accused person of clear record would not normally be given a deterrent sentence, there were exceptions in certain cases. The exceptions include trafficking in drugs, kidnapping and cases where there was an element of corruption.
  • deterrence in personam or in rem? Hiroyuki Takeda [1998] 1 HKLRD 931 [“9. Where deterrence is the paramount consideration because of the particular facts or circumstances of the case, then a robust approach to sentencing is appropriate [per Li V-P in AG. v. TANG King-ming [1986] HKLR 211]. A deterrent sentence may be in personam or in rem. Normally if the circumstances that pertain to an offender are such that the court is of the opinion that it must be brought home to him that he is not to commit such offences again, for example, a repeat offender, a deterrent sentence in personam is proper. When an offence is, inter alia, so prevalent or is so serious within its class, and the court is of the opinion that those of like minds are to be strongly discouraged from committing the same or similar offences, then a deterrent sentence in rem is called for.”] – Law Haw Moon HCMA 1132/2001 (27 December 2001) [“6. … However, as a general rule, although it is not wrong in principle to pass a deterrent sentence in personam on a first offender, a deterrent sentence in rem on a first offender is generally wrong in principle, (see the case of HKSAR v. Hiroyuki Takeda [1998] HKCFI 152; [1998] 1 HKLRD 931). That case of course was dealing with quite a different offence, an offence of publishing obscene article but the principle remains the same.”]
  • deterrence needed for persistent re-offending as a protection of the public – Chan Pui Chi [1999] 2 HKLRD 830
  • deterrence – reoffenders – proportionality of the deterrent sentence – increase from the last sentence a factor of consideration – 黃華慰 [2018] HKCFI 2794, para. 15.
  • mental illness – Chiu Peng Richard [2002] 1 HKLRD 185; [2002] 1 HKC 401; CACC 287/2001 (29 January 2002)
  • deprivation of children’s care by reason of sentences – Chan Kin Chung & Anor [2002] HKCA 121; [2002] 4 HKC 314; CACC 299/2001 (5 September 2002) – survey of authorities – its basis on the balanced approach of sentencing; not residual merciful discretion
  • prevalence – Bondzie [2016] Crim LR 591 – applications in Khalid [2017] EWCA Crim 592 (12 April 2017) or Ajayi & Anor [2017] EWCA Crim 1011 (13 July 2017) – in the local context, see also s. 27 of OSCO
  • determining prevalence and the role of magistrates – 黃華慰 [2018] HKCFI 2794 [“13. 「濫收車資」是十分嚴重的問題 … 作為主任裁判官,羅裁判官必定瞭解區內的罪案趨勢。他當然有權判斷,哪些罪行需要打擊和嚴懲。”]
  • protecting HK’s reputation – refer to research notes
  • Sentencing Guidelines and the use of precedents – Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004) [“14. It must be remembered that sentencing guidelines are the exception, not the rule. Where guidelines are laid down and principles established, this should be done by the collective wisdom of three judges in the Court of Appeal and announced as such. Further, the Court of Appeal emphasized in R v. Lou Wah Theam [1997] HKCA 118; [1997] 1 HKC 412, at page 415C, that: “Where this court intends to provide sentencing tariffs for any specific offence it makes it clear that the case is a guideline case.” 15. Most appellate judgments on sentencing, both of the Court of First Instance and the Court of Appeal, do no more than uphold, reduce, or increase a particular sentence. They are no more than examples of how a particular court has dealt with a particular offender in relation to the particular circumstances of his offence. They are not intended to provide guidance for the future. They are certainly not authorities, let alone binding precedents, and they should not be cited in argument. Although the Court of Appeal has repeatedly deprecated the citation of comparable decisions which do not purport to establish any principle, or provide any guidelines, practitioners continue to pray them in aid, as was the case in this appeal.”]

Guilty Plea

Binding Over

  • legal certainty over “good behaviour” – Lau Wai Wo [2004] 1 HKLRD 372; (2003) 6 HKCFAR 624; FACC 5/2003 (19 December 2003), following Steel v UK [1998] ECHR 95
  • 無刑事紀錄,更無暴力行為前科,不應單憑一次的事件(尤其是經審訊後他裁定被告人罪名不成立的案件),在無證據、無前科顯示被告人將會對他人或財產施以暴力、或威脅施以暴力、或將會作出行為令他人有理由恐怕此等暴力將會出現的情況下,要被告人簽保 – 許智峯 [2018] 1 HKLRD 145; [2017] 4 HKC 318; HCMA 693/2015 (9 January 2017)

Community Service Order

  • R v Brown (Mark Andrew) (1981) 3 Cr. App. R. (S.) 294 – adopted into Hong Kong in Chow Chak Man [1999] 3 HKLRD 37 [although result of that case has been criticised in e.g. Wong Yiu-kuen [2002] 1 HKLRD 712; Po Yan Chuen [2002] 2 HKC 712 at 714]
  • Whether the court in R v Brown was laying down a conjunctive list of criteria?  – Sek Siu Fun [2002] 4 HKC 369; HCMA 1126/2001 (16 July 2002) – R v Brown itself is not a “guideline case” in the true sense – Wan Ka Kit [2006] 3 HKLRD 9 [“28. The court [in R v Brown], in other words, was not restricting the factors to be taken into account for the purposes of making a community serviceorder to the six which they had mentioned. Nor was it insisting that all six factors should necessarily be present, although wewould think that in the vast majority of cases where such an order was appropriate most, if not all, of these factors would be present”]
  • Even if a community service order was appropriate for a defendant, a magistrate was not bound to impose that order – SJ v Lin Min Ying & Another [2001] HKCA 15; [2002] 3 HKC 415; CAAR 7/2001 (16 October 2001) – unless the defendant was made have reasonable expectation of a non-custodial sentence – R v Gillam [1980] 2 Cr. App. R (S.) 267
  • genuine remorse, civil disobedience – 律政司司長 訴 黃之鋒及另二人 [2017] 5 HKC 116; CAAR 4/2016 (17 August 2017); 律政司司長 對 梁曉暘及另十二人 [2018] 1 HKLRD 702; [2017] 6 HKC 114; CAAR 3/2016 (11 September 2017)

Suspended Sentence

  • Activation of suspended sentences – s. 109C of the Criminal Procedure Ordinance, Cap. 221 [in R v Li Kim Wai [1980] HKLR 833, at 834, Huggins JA said of the approach to be taken by the courts to section 109C: “We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”]
  • To run consecutively or concurrently? – R v Ithell (1969) 53 Cr App R 210, where Edmund Davies LJ said at p 212: “The proper approach, where a fresh offence has been committed during the period of suspension of an earlier sentence and the wrongdoer is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence…unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence.” [recent application in SfJ v  Chan Ka Wah [2008] HKCA 135; [2008] 4 HKC 532; CAAR 5/2007 (16 April 2008)]
  • Not activated due to Case Nature and Proximity to Expiry – Fung Shun Kwai 馮順貴 [1995-2000] HKCLRT 517 (Chinese Original); 521 (English Translation); HCMA 532/2000 (27 June 2000) [c.f. R v Li Kim Wai [1980] HKLR 833, where Huggins JA said “…mere dissimilarity between offences does not make it unjust” – recent application in Keita Ali CACC 419/2015 (21 March 2017)]

Training Centre

  • Wong Chun Cheong v HKSAR [2000] 3 HKLRD 840; (2001) 4 HKCFAR 12; [2001] 1 HKC 1; FACC 9/2000 (8 January 2001) [whether appropriate to impose TCO where the minimum period of detention equals to or exceeds the maximum period of imprisonment for the offence – jurisprudential aspect of the issue – JS Mill, Hart cited – resolved by statutory interpretation of s. 4(1) of the Training Centre Ordinance, Cap. 280 – meaning of “in the interest of  community”/”the circumstances of the offence”/”in lieu of any other sentence” – principles re: TCO summarised at para. 41]

Forfeiture Order

  • Nature & General Principles – Wong Hon Sun (黃瀚笙) (2009) 12 HKCFAR 877; [2010] 1 HKC 18; FACC 1/2009 (24 July 2009)
  • Chan Chi Wai, Jimmy [2011] 4 HKLRD 302; [2011] 5 HKC 144; HCCC 300/2010 (2 August 2011)
  • under Drug Trafficking (Recovery of Proceeds) Ordinance – NGOMA Juma Shabani  [2015] 5 HKLRD 57; [2015] 5 HKC 447; CACC 214/2014 (2 September 2015)
  • CA’s discussion on procedure, with McWalters JA’s dissent – Shoki Fatuma Ramadhani [2015] 2 HKLRD 696; [2015] 4 HKC 55; CACC 187/2014 (30 March 2015)

Common Assault & AOABH

  • involving domestic helpers as victims – refer to previous research
  • throwing stuff at politicians – 陳德章 HCMA 741/2014 (29 April 2015)

Fraud, involving breach of trust – refer to previous research

Money laundering – refer to quantum table

Unlawful intercourse with underage girls (ss. 123 / 124) – refer to quantum table

Armed robbery – Mo Kwong-sang [1981] HKLR 610, affirmed in Secretary for Justice v Ma Ping Wah [2000] 2 HKC 566

  • monetary loss of the victim not the primary concern in sentencing because “it’s not the gravamen of the offence” – 林俊南 [2008] 2 HKCLRT 133
  • the victim’s perception of whether the defendant was armed vs whether the defendant was actually armed? Is the distinction artificial? Yu Tai Wing [1995] HKCA 318; [1995] 1 HKC 837; CACC 454/1994 (28 February 1995) [Macdougall VP – “14. For policy reasons we take the view that in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used. Obviously the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm. But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked. The risk of innocent bystanders being killed or injured is always present in circumstances where decisions have to be made in split seconds]; On Ling [2005] HKCA 673; [2005] 1 HKC 227; CACC 386/2004 (4 January 2005) [Yu Tai Wing distinguished on the ground that the case should not be regarded as an armed robbery]; revisited in TAM Tak-cheung (譚德祥) CACC 209/2017 [On Ling approach questioned – discussed whether the victim “could see”/”would have believed”/”would be reasonable to believe” – but did not resolved the issue because emphasis was on the seriousness of the offence – 23. I have to say, respectfully, that I have difficulty with the reasoning in HKSAR v On Ling, where the Court held that the purported carrying of a weapon, which was in fact a roll of newspapers, took the case outside the Mo Kwong Sang v R guidelines. It is no consolation to the terrified victim of a robbery that, contrary to the defendant’s claim, there was in fact no weapon when he said, and the victim believed, that there was. Nevertheless, the facts in HKSAR v On Ling were somewhat different. There, the victim was able to see that what was pointed at him was in fact a roll of newspapers, before he immediately collapsed on the ground out of fright.”]

Theft by pickpocketing – tariff – Ngo Van Huy [2005] 2 HKLRD 1 – should not be regarded as immutable or ceiling – categories of aggravating features not closed [Macrae J’s (as he then was) in Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206] – 可因加刑因素偏離準則,但法庭須顧及案情 (但並非加刑因素),包括失物的價值、受害人年紀及犯案手法等等。法庭須避免在採納12至15 個月在何處著墨時,考慮了「加刑」因素,因而引致「雙重計算」- Chiu Suet Yee Angel (趙雪儀) (unrep., CACC 105/2010, Barnes J, 27 October 2010)

Theft by shoplifting – 在香港特別行政區訴楊艷雲 [[2014] 1 HKLRD 546] HCMA 54/2013 (未經彙編,2013年4月30 日),胡國興法官指出:- “17. … 法庭對於積犯或慣犯的判刑沒例外地判處監禁或提升刑期。如果涉案的物品很小、像日常一般飲品食物,而價值也不高,法庭對初犯者多會判以罰款,但是對於重犯者,而所涉物品價值超過$100以上,最低的量刑基準為3個月監禁,同類前科越多則量刑基準提升越高。”

Possession of forged identity card – Li Chang Li (李長利) [2005] 1 HKLRD 864 [“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes. 41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”] – overruled V Bokhary J’s “guidelines” in Chan Man Mo [2001] 1 HKLRD 121 – previous inconsistencies between Chan Man Mo and Shamin Nawaz [1994] HKCLR 195 (Barnett J); see discussion in e.g. Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004)

Management vice establishment – 高等法院暫委法官杜溎峰 (當時官階) 在香港特別行政區 訴林詩琪及另一人 [2005] 3 HKLRD 273,第279頁表示: 「 15. 從HKSAR v Lee Tang Yau HCMA 602/2011與香港特別行政區 訴 張招財及另一人 HCMA 531/2003兩件案可見,法庭普遍認同管理賣淫場所的量刑起點為十二個月監禁。本席認為在釐定量刑起點時,裁判官應考慮有關賣淫場所的規模、運作模式、所提供的賣淫活動、場所的面積、僱員的人數、妓女的人數、顧客的數目、所收取的費用、營業利潤與營業額等。一般的賣淫場所僱用不超過五名僱員及不超過十名妓女,管理模式較為簡單。本席認為管理這類賣淫場所的恰當量刑起點是十二個月監禁。裁判官可視乎該賣淫場所的規模與運作模式釐定恰當量刑起點。此外,裁判官亦可考慮其他嚴重情況而提高量刑起點:如所僱用妓女的年紀、 她們是否非法居民、她們可否在香港受僱傭等。協助管理這類賣淫場所的恰當量刑起點可以比管理者為低, 但這視乎他所協助的性質與程度。」

Road Traffic Offences

  • Drunk driving – see quantum table
  • “Failing to report an accident which involved damage”, contrary to section 56(2A) and (6) – Wei, Edmund Chih Chan (unrep., HCMA237/2016, Deputy High Court Judge CP Pang, 14 March 2017)
  • Disqualification order – 高院原訟庭暫委法官陳嘉信 (當時官階) 在香港特別行政區訴何炳崇 HCMA 603/2015 一案第11段指出,停牌令的長短必須在公眾利益和上訴人的個人情況之間取得平衡。而且,停牌多久才算合適,並無量刑指引,一切須以個別案件情況而定 – 高院原訟法庭暫委法官張慧玲 (當時官階) 在香港特別行政區訴蔡林飛 HCMA 539/2006 一案第17段表示,當犯案者是職業司機時,法庭一方面需要考慮「停牌」對他構成的經濟困境,尤其是會否將犯案者「逼上梁山」(即令他無法維生而為非作歹) 。另一方面,法庭亦須考慮犯案者若以其不正確的駕駛態度長時間在道路上駕駛,對公眾構成危害的風險。故法官/裁判官行使酎情權時,需考慮如何在兩者之間取得平衡。

[RHC O16] The Normar

  • Practice – Third-party procedure – Counterclaim by third party, a defendant in the action – Third-party notice served by second defendants on third defendants claiming indemnity or contribution – Third-party notice treated as statement of claim – Defence and counterclaim by third defendants – Whether court had jurisdiction to entertain counterclaim – Counterclaim including claim for payment and set-off of alleged indebtedness for work done in relation to matters, some of which were not the subject of the plaintiffs’ action – Exercise of court’s discretion to strike out counterclaim or to direct separate trials – RSC, Ord 15, r 2, r 5(2), Ord 16, r 1(3), r 8(3).
In an action against dock owners for damages caused to the plaintiffs’ ship by the collapse of a crane at the docks, the dock owners denied negligence and alleged negligence on the part of the manufacturers of the crane or of the manufacturers’ sub-contractors who erected the crane. The plaintiffs then added the manufacturers and the crane erectors as second and third defendants respectively. The manufacturers served a third party notice on the crane erectors claiming indemnity under a clause in the sub-contract for contribution under the Law Reform (Married Women and Tortfeasors) Act, 1935, s 6. The crane erectors counterclaimed against the manufacturers (a) (by para 5 of their counterclaim) for indemnity or contribution, and (b) (by para 4 and para 6 of their counterclaim) for a sum of £4,444 11s 5d on account of work done under the sub-contract and for set-off in respect of this sum. The sum of £4,444 11s 5d was in respect of the erection of sixteen cranes and not merely of the erection of the one crane that collapsed. On appeal by the manufacturers from refusal of their application to strike out the crane erectors’ counterclaim, for which relief they had applied on the ground that a third party could not counterclaim, and from refusal of an order for separate trials of the issues (a) and (b) above if the counterclaim were not struck out,

Held – (i) there was jurisdiction to entertain a counterclaim made by a third party, that jurisdiction deriving from RSC, Ord 16, r 1(3)a and, in particular, from the word “defence” therein (see p 757, lettersg and h, post).

  • Footnote a     RSC, Ord 16, r 1(3), is set out at p 757, letter b, post.

(ii) by virtue of the present RSC, Ord 15, r 2b there was jurisdiction for a defendant claiming against a third party to counterclaim against the counterclaim made by the third party; accordingly the manufacturers could counterclaim in answer to the crane erectors’ counterclaim (see p 759, letter i, to p 760, letter a, post).

  • Footnote b     RSC, Ord 15, r 2, so far as material, is set out at p 759, letter g, post.

(iii) there was discretion under RSC, Ord 15, r 5(2)c to strike out the counterclaim or to order separate trials (see p 758, letter b, post), but, as the manufacturers would be entitled, in accordance with (ii) above, to counterclaim against the crane erectors’ counterclaim and thereby the area of the dispute might be enlarged (since the crane erectors’ money payment claim related to sixteen cranes), such a counterclaim by the manufacturers might lead to delay in the trial of the plaintiffs’ action; in the circumstances, as the plaintiffs were clearly entitled to damages from one or more of the defendants, and as there would be no advantage in directing separate trials, para 4 and para 6 of the crane erectors’ counterclaim to the third party

  • Footnote c     RSC, Ord 15, r 5(2), is set out at p 757, letter i, post.

    [1968] 1 All ER 753 at 754

notice would be struck out (see p 760, lettersb and i, and p 762, letter b, post).

Dictum of Scrutton LJ in Barclay’s Bank v Tom ([1922] All ER Rep at pp 279, 280) applied.

Appeal allowed.

Cases referred to in judgment

Barclay’s Bank v Tom [1922] All ER Rep 279[1923] 1 KB 221, 92 LJKB 346, 128 LT 558, 50 Digest (Repl) 511, 1839.

Eden v Weardale Iron and Coal Co (1884), 28 ChD 333, 54 LJCh 384, 51 LT 726, 50 Digest (Repl) 521, 1915.

James v Page (1888), 85 LTJo 157, 40 Digest (Repl) 454, 391.

McCheane v Gyles [1902] 1 Ch 287, 71 LJCh 183, 86 LT 1, subsequent proceedings[1902] 1 Ch 911, 50 Digest (Repl) 511, 1842.

Renton, Gibbs & Co v Neville & Co [1900] 2 QB 181, 69 LJQB 514, 82 LT 446, 40 Digest (Repl) 454, 392.

Toke v Andrews (1882), 8 QBD 428, 51 LJQB 281, 40 Digest (Repl) 453, 390.

Appeal.

This was an appeal by the second defendants, Morris & Butters against a decision of the Admiralty registrar refusing to strike out parts of a third party defence and counterclaim by the third defendants, Cozens & Sutcliffe, Ltd

The plaintiffs were the owners of the motor vessel Normar which suffered damage on 25 February 1966, when a crane collapsed on to the ship at Alexandra Dock, Hull. They sued the first defendants, British Transport Docks Board, as owners and occupiers of the dock for damages for negligence. The first defendants by their defence denied negligence and claimed that the fall of the crane was due to the negligence of the manufacturers of the crane or of the sub-contractors who had erected the crane under sub-contract with the manufacturers, or of both the manufacturers and the sub-contractors. The plaintiffs thereupon amended their writ and statement of claim to add the manufacturers as second defendants and the crane erectors as third defendants, alleging negligence against each of them. The second defendants by their defence admitted that they had manufactured the crane under contract with the first defendants and had sub-contracted the erection of it to the third defendants, but they denied negligence and alleged that the fall of the crane was due to the negligence of the first defendants (the dock owners) or of the third defendants (the erectors of the crane). The third defendants admitted by their defence that they had erected the crane in pursuance of such a sub-contract, but they denied negligence and alleged that the fall was due to the negligence of the first defendants (the dock owners) or of the second defendants (the manufacturers). After discovery in the action, the second defendants (the manufacturers) served a third party notice on the third defendants (the crane erectors) claiming indemnity under an indemnity clause in the sub-contract, alternatively, contribution under the Law Reform (Married Women and Tortfeasors) Act, 1935. An order for directions was made, ordering that the third party notice should be treated as the second defendants’ (manufacturers’) statement of claim, and providing for the third defendants’ (crane erectors’) defence thereto, for discovery and for trial of the third party claim at or immediately after the trial of the action. The third defendants’ defence to the second defendants’ claim against them admitted the sub-contract but denied the right to indemnity or contribution. By para 4 of their defence the third defendants

[1968] 1 All ER 753 at 755

(crane erectors) claimed to set-off the sum counterclaimed in para 6. By para 5, they counterclaimed indemnity or contribution under the Act of 1935. By para 6, they counterclaimed £4,444 11s 5d, alleged to be due for work done under the sub-contract. The second defendants (the manufacturers) applied to the Admiralty registrar to strike out para 4, para 5 and para 6 of the third defendants’ (the crane erectors’) defence and counterclaim. The registrar made no order on the application save as to costs. The second defendants (the manufacturers) appealed and asked that either all three paragraphs be struck out or else that the issues raised by para 5 and para 6 be tried separately from the other issues. The appeal was heard in chambers but judgment was given in open court.



J C Tylor for the plaintiffs.

R E Hopkins for the first defendants, the dock owners.

A P Clarke for the second defendants, the manufacturers.

J P M Phillips for the third defendants, the crane erectors.

21 December 1967. The following judgment was delivered.

read the following judgment. This is an appeal from a decision of the Admiralty registrar refusing to strike out parts of a third party defence and counterclaim. [His Lordships stated the facts, and continued:] The second defendants first contend that, as a matter of law, a defendant on whom a third party notice is served by another defendant cannot counterclaim. There is no authority directly in point, but there are two decisions of the Court of Appeal dealing with the right of an ordinary third party, nor a defendant in the action, to counterclaim. The first of these cases is Eden v Weardale Iron and Coal Co, where it was decided that a third party could not counterclaim against a plaintiff; but Bowen LJ expressed uncertainty ((1884), 28 ChD at p 338.) whether a third party could counterclaim against the defendant who had brought him in. The second case is Barclays Bank v Tom. In that case it was decided that a counterclaim would lie by the third party against the defendant who had brought him in, and I shall read a passage from the judgment of Scrutton LJ where he said ([1922] All ER Rep at pp 279, 280; [1923] 1 KB at pp 223–225.):

“The question whether a third party can counterclaim against the defendant requires careful consideration, because BOWEN, L.J., when deciding, in Eden v. Weardale Iron and Coal Co., that a third party could not counterclaim against the original plaintiff, said ((1884), 28 ChD at p 338.): ‘If the application had been for leave to the third party to counterclaim against the defendant, I should have desired to consider the question. It appears to me an open question whether the court could have given leave.’ It is important to keep clearly in mind what the third-party procedure is. A plaintiff has a claim against a defendant. The defendant thinks that if he is liable, he has a claim over against a third party. With that matter between the defendant and the third party the plaintiff has clearly nothing to do, not being concerned with the question whether the defendant has a remedy against somebody else. His remedy is against the defendant. But the defendant is much interested in getting the third party bound by the result of the trial between the plaintiff and himself, for otherwise he might be at a great disadvantage if, having fought the case against the plaintiff and lost, he had then to fight the case against the third party possibly on different materials, with the risk that a different result might be arrived at. The object of the third-party procedure is therefore, in the first place, to get the third party bound by the decision given between the plaintiff and the defendant. In the next place, it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff

[1968] 1 All ER 753 at 756

and the defendant, so that the defendant may not be in a position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And, thirdly, it is directed to saving the extra expense which would be involved by two independent actions. With these objects in view the third-party order usually provides that the third party may appear at the trial between the plaintiff and the defendant. When the third party has so appeared, as party to the proceedings, various questions arise as to what he can do. Can he counterclaim against the plaintiff? The answer is ‘No’, for such a counterclaim would have nothing to do with the issue in the action to which he is admitted as a party—Eden v. Weardale Iron and Coal Co.. Can he interrogate the plaintiff? The answer is ‘Yes’, if the object of the interrogatories is to show that the plaintiff’s claim against the defendant cannot be supported—Eden v. Weardale Iron and Coal Co.. I remember in one case in which I was counsel the third party was, on the same principle, allowed to raise a defence on behalf of the defendant which the defendant would not raise on his own behalf. When it has been ascertained that the defendant is liable to the plaintiff the next step is to try, in such manner as the judge may direct, the question between the defendant and third party. The defendant says, ‘You owe me so much by way of contribution or indemnity’. How may the third party defend himself? Of course he may deny that he is under any such liability at all. But he may admit his liability and say that he has a cross-claim against the defendant which prevents any effective judgment being given against him. He may say, ‘Your right to contribution will result in £100 being due from me to you, but I have a set-off in another matter in respect of which £100 will be due from you to me’. Or, again, he may, while admitting his liability to contribution, say that he has a claim against the defendant which cannot be made the subject of a set-off but will result in the defendant having to pay him so many pounds. It seems to me that the proper view to take on this part of the third-party procedure is that taken by COZENS-HARDY, L.J., in McCheane v. Gyles([1902] 1 Ch 287 at p 301.)—namely, that ‘The Act, therefore, treats the third party procedure

The other member of the court was Eve J. He gave a short judgment, saying ([1922] All ER Rep at pp 280, 281; [1923] 1 KB at pp 225, 226.):

“I agree. I respectfully agree with the view expressed in McCheane v. Gyles that the Judicature Act, by which the third-party procedure was created, treats that procedure ‘as analogous to a cause instituted by the defendant as plaintiff against the third party’. It is clear that the service of the third-party notice does not make the person on whom it is served a defendant to the action, but it seems to me that it does make him a defendant quoad the person serving the notice. That seems to be the reasonable view to take, because the main object of the procedure was to obviate the need for two actions. In the main action the rights of the plaintiff and the defendant are determined without reference to the defendant’s claims over against the third party, but when those rights have been ascertained it is then open to the person brought in by the third-party notice to have all relevant disputes determined between him and the person serving the notice. I think that a

[1968] 1 All ER 753 at 757

third party being in the position of a defendant in relation to the person who served the notice, is entitled to counterclaim against him.”

On behalf of the second defendants it was contended that this ruling has no application where the third-party is already a defendant. No reason was suggested why the law should so distinguish. It is said to follow from the wording of RSC, Ord 16, r (3), as contrasted with r 1(3) of the same order. Rule 1(3) is the rule which provides for the service of a third-party notice on a person who is not already a party to the action, and provides:

“Where a third party notice is served on the person against whom it is issued, he shall as from the time of service be a party to the action (in this order referred to as a third party) with the same rights in respect of his defence against any claim made against him in the notice and otherwise as if he had been duly sued in the ordinary way by the defendant by whom the notice is issued.”

Rule 8 is the rule which enables a similar notice to be served on a person who is already a party to the proceedings, and r 8(3) provides as follows, and I shall omit the references to “appearances” which form part of the sub-rule. The relevant part is this:

”… the same procedure shall be adopted for the determination between the defendant by whom, and the person on whom, such a notice is served of the claim, question or issue stated in the notice as would be appropriate under this order if the person served with the notice were a third party … “

What is pointed out on behalf of the second defendants is that, whereas under r 1(3) there are conferred on the third party the same rights “in respect of his defence … and otherwise” as if he had been sued in the ordinary way, all that is provided by r 8(3) is the procedure for determination of “the question or issue stated in the notice”—and it is suggested that the latter sub-rule does not give the person on whom the third-party notice is served all the rights which an ordinary defendant would have, including the right of counterclaim, but gives strictly only rights of defence in respect of the particular claim made on him. It is argued that the right to counterclaim in the case of the ordinary third party is derived from the words “and otherwise” in the sub-rule relating to him. I cannot believe that it was intended by the use of those words “and otherwise” to make a wholly meaningless difference between the two kinds of third party. In my view, the right to counterclaim does not arise under the word “otherwise” in r 1(3), but under the word “defence“. It will be clear from the passage that I read from the judgment of Scrutton LJ in the Barclays Bank case ([1922] All ER Rep at pp 279, 280; [1923] 1 KB at pp 223–225.) that he based his decision on the view that the counterclaim was a manner of defending the claim made against the third party.

For these reasons, I hold that there is jurisdiction to entertain the counterclaim.

Counsel for the second defendants goes on to say that, in the event of my holding that there is jurisdiction in the court to entertain a counterclaim, nevertheless there is clearly jurisdiction to strike out the counterclaim if it would be convenient to do so, and reliance is placed here on RSC, Ord 15, r 5(2), which provides that

“If it appears on the application of any party against whom a counterclaim is made that the subject-matter of the counterclaim ought for any reason to be disposed of by a separate action, the court may order the counterclaim to be struck out or may order it to be tried separately or make such other order as may be expedient.”

Counsel for the second defendants invites me to say that, under that rule, there is a discretion to strike out the counterclaim, or to order separate trials, and I ought to exercise my discretion in one or other of those ways in relation to para 4

[1968] 1 All ER 753 at 758

and para 6, but not para 5, of the counterclaim. Counsel for the second defendants concedes that, once it is held that there is jurisdiction for the third defendants to counterclaim against the second defendants, it is convenient that the issue raised by their para 5 should be tried along with the other issues in this case. But in relation to the claim for the £4,444 odd, it is contended that it would be inconvenient and unjust that that should be allowed to stand and be tried along with or immediately after the main action. I am satisfied there is a discretion in the court in the matter under the rule that I have just read, and, therefore, the question is, how should my discretion be exercised?

The £4,444 odd is the balance of account not merely for one crane which was involved in this accident, but for sixteen cranes which were erected by the third defendants under their contract with the second defendants. There is, on the face of it, no connexion between this claim and the issues raised in the action or by the third-party notice, and, consequently, it is not, to use Eve J’s language ([1922] All ER Rep at p 281; [1923] 1 KB at p 225.), a “relevant” counterclaim. The third defendants say, however, that the only possible answer that they know of for recovering this money is by way of a cross-claim for defective workmanship and that this forms a link with the action. This raises the question whether, if the third defendants’ counterclaim is allowed to stand, the second defendants can counterclaim against them for damages. If not, it would clearly be inequitable that the present counterclaim should be allowed to stand. It is clear that, when a defendant counterclaims against a plaintiff, there is a right for the plaintiff to counterclaim against the defendant’s counterclaim. In this connexion, it is convenient to look first at a case which was decided under the old Rules of the Supreme Court, namely, Renton Gibbs & Co Ltd v Neville & Co. In that case, a counterclaim against a counterclaim was allowed. The leading judgment was given by Collins LJ who said ([1900] 2 QB at pp 185–187.):

“It has been argued that a counterclaim cannot be set up by a plaintiff in his reply, and that the rule do not contemplate such a case. In support of that view reference is made to James v. Page, a case only noticed in the Law Times. An incidental observation on that case is that what was there set up was a counter-claim properly so called—a counterclaim used not as a shield but as a sword. It is contended on behalf of the defendants that the plaintiffs must submit to have their counterclaim struck out, and that their proper course is to introduce the subject-matter of their counterclaim into the statement of claim as an alternative original cause of action. It is clear that it would be inequitable to allow the defendants to have the benefit of their counterclaim free altogether from the matters raised in the reply. The question is whether the rules are so framed as to necessitate the putting of the parties to the unnecessary expense of beginning the pleadings de novo. What would be the result if they had to do this? The plaintiffs do not want to rely on the contract upon which the defendants base their counterclaim, and indeed they deny that it is binding on them. If they are bound to deal with the contract in their statement of claim, they would be embarrassed by having to set up a cause of action, whose existence they deny, inconsistent with and hampering their real cause of action. In that state of circumstances it would be an obvious injustice to the plaintiffs to oblige them to introduce this question under the contract into the statement of claim by an amendment. The natural place for it is in the reply in which it is now found. In this way the plaintiffs, in dealing with the counterclaim under the contract, can deny their liability on the ground that the contract is not binding on them, and can add that, if they are liable, then and only then do they claim to shield themselves from the result of that liability by claiming unliquidated damages from the defendants arising out of an alleged breach of the contract by them. I do not think that we are prevented from allowing the plaintiffs so

[1968] 1 All ER 753 at 759

to shape their case. Toke v. Andrews establishes a principle which abundantly justifies us in affirming the decision of the learned judge. In that case the action was brought for rent in arrear. Before delivery of a statement of defence the tenancy was determined, and thereupon a claim arose to the defendant as outgoing tenant, and another quarter’s rent became due to the plaintiff. In answer to the claim in the action the defendant set up a counterclaim on an outgoing valuation to a larger amount than the rent claimed. To that counterclaim the plaintiff in his reply set up a counterclaim for the further quarter’s rent accrued since the action commenced. There was no machinery in that case any more than there is in this for effecting that under the rules; but FIELD, J., and HUDDLESTON, B., held that it would be an injustice to the plaintiff if he were obliged to submit to the counterclaim overtopping the amount claimed in his statement of claim. It was held that, looking at the wide language of sub-s. (3), s. 24, of the Judicature Act, 1873, and sub-s. (7) of the same section, it was impossible to say that a matter upon which, if well founded, the plaintiff was clearly entitled to relief as against the defendant’s counterclaim was not within the words and the spirit of the enactment, or to hold that such a matter was not properly brought forward at the only stage and in the only manner in which it could be raised. That is practically the state of affairs in the case before us, because it would be unjust to the plaintiffs to make them set up as a claim that which they only want as a defence and a shield to the counterclaim. In my opinion the order of PHILLIMORE, J., was right, and the appeal must be dismissed;”

and Romer LJ ([1900] 2 QB at p 187.) gave judgment to the same effect. So at that time it is clear that a counterclaim against a counterclaim could be allowed, but, on the basis as indicated by Collins LJ that it was permissible as a shield rather than as a sword, that is to say, that it could be used only to such extent as might be necessary to defeat the counterclaim of the defendant, but not by way of claiming something against the defendant over and above the amount for which he was counterclaiming.

It would, however, appear that this limitation has now disappeared in relation, at any rate, to a counterclaim and cross-counterclaim as between plaintiff and defendant. This emerges from RSC, Ord 15, r 2, which provides:

”(1) Subject to r. 5(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counterclaim in respect of that matter; and where he does so he must add the counterclaim to his defence.

”(2) Rule 1 shall apply in relation to a counterclaim as if the counterclaim were a separate action and as if the person making the counterclaim were the plaintiff and the person against whom it is made a defendant.”

So the effect of that is clearly to give an express right to a plaintiff to counterclaim against a counterclaim, and a note in The Supreme Court Practice 1967, p 145, with the side note “15/2/5”, interprets the rule in that way, because it reads:

“Counterclaim to a counterclaim. Paragraph (2), supra, adopts and probably extends the previous law, and enables the plaintiff to raise a counterclaim to the counterclaim raised by the defendant against him, even though the plaintiff’s counterclaim may be more than a mere protection against the defendant’s counterclaim … “

and then it mentions a separate point. Does this apply to third party proceedings of the type with which I am concerned? I think that it does. In my view, the effect of RSC, Ord 16, r 8(3), which I have already read, is to throw one back to look at r 1(3) of the same order, and that, in turn, throws one back to RSC, Ord 15, r 2, and, therefore, in my view, the second defendants would be

[1968] 1 All ER 753 at 760

entitled to counterclaim against the third defendants’ counterclaim and to counterclaim not merely so much as was necessary to defeat the third defendants’ counterclaim, but to counterclaim the whole of their damages. That is a view about which, I may say, I have had some doubt. I was very much inclined at one stage to the contrary opinion, but, in the end, I have reached the conclusion that that is the true view of the law.

I must, therefore, envisage that, if the present counterclaim is allowed to stand, there will be a counterclaim against it by the second defendants which has some connexion with the original action. However, the area of dispute between the second and third defendants would be greatly enlarged, expensive discovery ranging over the whole of the business between those two parties relating to all the sixteen cranes would be needed, and inevitably there would be delay, and it may well be substantial delay, in bringing the action to trial. This particularly affects the plaintiffs, who support this appeal. They point out that it is nearly two years since the accident in which their ship was damaged. They issued their writ promptly, they have proceeded with their steps in the action with reasonable expedition, discovery is nearly complete, and they will shortly be asking for a date for the action to be tried. They are clearly entitled to damages against somebody, and why should they suffer delay while matters which have no connexion with that claim are investigated? I think that this is an important objection to allowing the counterclaim to stand. Other inconveniences were suggested which made less impression on me. One was that the length of the hearing would be much increased if the counterclaim were allowed to stand. This could, perhaps, be avoided if the third party issues were tried immediately after the trial of the action instead of along with it, a course which would be in accordance with the existing order for directions. Another point made is that the second defendants’ solicitors are instructed by insurers under a policy which covers their liability to the plaintiffs, but not any liability to the third defendants. I do not attach much importance to this. It is a situation which arises whenever a defendant is insured in respect of a plaintiff’s claim but has a counterclaim in which the insurers are not interested. A point made by counsel on behalf of the first defendants was that there are other claims, or possible claims, between these various parties. If the third defendants are allowed to counterclaim against the second defendants for the balance of their account, and if the second defendants can then counterclaim against the third defendants for damages for negligent performance of the whole contract, what of the first defendants’ claim for their damaged crane against the second and third defendants? Then, the crane driver was injured and may sue the first defendants as his employers. Ought they to be allowed to make a claim over in these proceedings against the second and third defendants? Further enlargement of the scope of the proceedings in these various ways is clearly undesirable.

However, I think that the present issue should be decided without speculating as to what course other defendants might take hereafter. It does seem to me, for the reasons which I have indicated, that the prospect of delay, with its inconvenience to the plaintiffs, and the prospect of making these proceedings very complicated, are good reasons for removing para 4 and para 6 of this defence and counterclaim unless there is some really good reason why they should be allowed to stand. I cannot see that there would be any injustice or inconvenience to the third defendants in removing this part of their present counterclaim. Their claim can perfectly well be tried in a separate action, and I look at what was said by Scrutton LJ in the Barclays Bank case ([1922] All ER Rep at pp 279, 280; [1923] 1 KB at pp 223–225.) about the objects of third party procedure, which seem to me to be equally applicable to the case of a counterclaim arising in third party proceedings, and he mentioned three objects. The first of them was to get the third party bound by the decision between the plaintiff and the defendant. That does not arise here. All these defendants are already

[1968] 1 All ER 753 at 761

parties to the plaintiffs’ suit, and, on the basis of the existing pleadings, including the third-party notice and para 5 of the third defendants’ counterclaim, the issues will be decided in a way which will be binding on all those concerned. The next object referred to by Scruttion LJ was to get the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant so that the defendant may not be in a position of having to wait a considerable time before he establishes his right to indemnity. That is a point which arises only when it is a question of indemnity or, of course, of contribution, and that is already covered by the third party notice itself and the counterclaim in para 5. Thirdly, says Scrutton LJ there is the question of saving extra expense which would be involved by two independent actions. It seems to me highly improbable that any great expense would be caused by separate actions here. There will be the trivial expense of issuing a fresh writ, but I should have thought that, if anything, expense will be saved by having a comparatively simple form of action running alongside, or subsequent to, the existing action rather than complicating the existing action with the addition of this part of the counterclaim. The only conceivable injustice which I can see that could arise in relation to the third defendants would be if judgment were given against them in favour of the second defendants for contribution and if that judgment were enforced before the third defendants had had an opportunity of having tried their claim for balance of account. That matter can easily be dealt with by means of a stay of execution if it does happen that the second defendants get judgment against them for some contribution, and I have no doubt that any court would grant such a stay if informed that the action on the balance of account was pending.

The third defendants contend that a good reason for allowing the counterclaim to stand is that there is one main question in these proceedings, namely, whose fault was it that certain defects in the crane which caused the accident were there and were allowed to continue to be there? They say that, once this question is determined, there will be no real dispute about anything else except the quantum of damages. That may or may not be so. I do not yet know whether the second defendants accept the third defendants’ claim for balance of account, subject to the counterclaim, and I do not know whether, if it is once established who was responsible for the defects in this particular crane, this will determine whether the third defendants were guilty of defective workmanship in regard to the other cranes. Counsel for the third defendants says: “Let the counterclaim stand. Let the second defendants plead to it and then at that stage, or after discovery, let somebody apply under RSC, Ord 15, r 5(2), if necessary for a separate trial.” I do not accede to this proposal for several reasons. First, if I am wrong in my view that the second defendants can counterclaim their damages in full against the third defendants, then it would follow that it would be wrong for the third defendants’ counterclaim to stand. It would be most unfortunate if I allowed it to stand and at a later stage some other court were to hold the second defendants’ right to counterclaim was limited to using it as a shield against the third defendants’ claim for balance of account.

Next, if the question enunciated by counsel for the third defendants is really the only question of substance in this litigation, it will be determined as between the second and third defendants on the existing pleadings; it will then be res judicata and there will be no danger of two courts coming to different conclusions on the same issue. Next, I cannot see any practical disadvantage to the third defendants in proceeding by separate action. They can issue their writ tomorrow with their claim specially endorsed on it, and, if they serve it at once, the second defendants’ time for defence will expire almost as soon as if I gave them twenty-one days from today. I cannot accept that proceedings by way of counterclaim would produce any acceleration of the hearing of the issue raised by them; and delay in bringing on the plaintiffs’ action for trial would probably be caused if it was left uncertain today whether the wider issues were to be

[1968] 1 All ER 753 at 762

tried along with or immediately after it, or were at some later stage to be given a separate trial or struck out. Finally, again because of the doubt which remains in my mind about the scope of a counterclaim on a counterclaim, and because I see little or no advantage in directing separate trials over striking out the paragraphs in question, I think that the better course is to strike them out.

I, therefore, allow the appeal and direct that para 4 and para 6 of the third defendants’ counterclaim to the second defendants’ third party notice be struck out.

Solicitors: Bentleys, Stokes & Lowless (for the plaintiffs); John Rigby, British Transport Docks Board (for the first defendants); Clyde & Co (for the second defendants); Beddington, Hughes & Hobart (for the third defendants).

N P Metcalfe Esq Barrister.

[Inherent Jurisdiction of the Court] Bremer Vuklan Schiffbau und Maschinenfabrik v South India Shipping Corp

  • Arbitration – Arbitrator – Jurisdiction – Inordinate and inexcusable delay in prosecution of claim – Whether jurisdiction in arbitrator to dismiss claim for want of prosecution – Whether jurisdiction in court to restrain claimant from proceeding in arbitration – Parties’ obligation to prevent inordinate delay – Duty to apply to arbitrator
  • Injunction – Jurisdiction to grant – Arbitration proceedings – Inordinate and inexcusable delay in prosecution of claim – Whether claimant under duty not to so delay – Court’s jurisdiction to restrain party continuing with arbitration for repudiatory breach of arbitration agreement
The plaintiffs were respondents to an arbitration commenced by the defendants, in which they claimed to have been seriously prejudiced by the inordinate and inexcusable delay of the defendants in prosecuting the arbitration. The plaintiffs issued a writ seeking injunctions restraining the defendants from continuing with the arbitration and a declaration that the arbitrator had power to strike out the defendants’ claims for want of prosecution. The judge found that delay in prosecuting the arbitrations by the defendants was such that had their claim been the subject matter of litigation the court would have dismissed them for want of prosecution, and he granted the injunction sought on the ground that such conduct constituted a repudiatory breach of the agreement to submit the dispute to arbitration. The judge further held that, unless the parties to an arbitration agreed to curtail the arbitrator’s jurisdiction, an arbitrator had the same power as the court to dismiss a claim for want of prosecution.

The Court of Appeal, dismissing the defendants’ appeal, held that the claimants in an arbitration were under a duty not to delay the presentation of their claim so as to frustrate the purpose of the arbitration, that the plaintiffs were entitled to treat the defendants’ conduct as a repudiation of the arbitration agreement and, as they had elected to rescind it, the court should grant the injunction.

On appeal: –

[1981] A.C. 909 Page 910

Held, allowing the appeal, that the High Court had no inherent jurisdiction to supervise the conduct of arbitrators analogous to its power to control inferior tribunals, and its power to grant injunctions arose from the existence of a right to be enforced or protected, so that when there was a repudiatory breach of an arbitration agreement the innocent party, having elected to treat the contract as at an end, could obtain an injunction to restrain the party in default from proceeding with the arbitration; but (Lord Fraser of Tullybelton and Lord Scarman dissenting), since the parties were equally under an obligation to keep the procedure moving, both were under an obligation to apply to the arbitrator to prevent inordinate delay and, since the plaintiffs had made no such application, they were not entitled to rely on the defendants’ breach as giving them the right to treat the agreement as at an end (post, pp. 978E-H, 979D-F, 980G – 981B, 982C-E, 986B-D, 987G – 988A, A-B, 992F-G, 993B-C, H, 997B-C, F-G, G – 998A, 999F-H).

Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229, C.A. explained.

Decision of the Court of Appeal (post, p. 933E-F); [1980] 2 W.L.R. 905; [1980] 1 All E.R. 420 reversed.

The following cases are referred to in their Lordships’ opinions in the House of Lords:

Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229; [1968] 2 W.L.R. 366; [1968] 1 All E.R. 543, C.A.

Beddow v. Beddow (1878) 9 Ch.D. 89.

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, C.A. and H.L.(E.).

Congimex S.A.R.L. v. Continental Grain Export Corporation [1979] 2 Lloyd’s Rep. 346, Donaldson J. and C.A.

Crawford v. A. E. A. Prowting Ltd[1973] Q.B. 1; [1972] 2 W.L.R. 749; [1972] 1 All E.R. 1199.

Czarnikow v. Roth, Schmidt and Co[1922] 2 K.B. 478, C.A.

Glasgow and South-Western Railway Co. v. Boyd & Forrest, 1918 S.C. (H.L.) 14, H.L.(Sc.).

Heyman v. Darwins Ltd[1942] A.C. 356; [1942] 1 All E.R. 337, H.L.(E.).

Japan Line Ltd. v. Aggeliki Charis Compania Maritima S.A. (The Angelic Grace) [1980] 1 Lloyd’s Rep. 288, Parker J. and C.A.

Kent v. Elstob (1802) 3 East. 18.

Kitts v. Moore [1895] 1 Q.B. 253, C.A.

Malmesbury Railway Co. v. Budd (1876) 2 Ch.D. 113.

Moorcock, The (1889) 14 P.D. 64, C.A.

North London Railway Co. v. Great Northern Railway Co(1883) 11 Q.B.D. 30, C.A.

Photo Production Ltd. v. Securicor Transport Ltd[1980] A.C. 827; [1980] 2 W.L.R. 283; [1980] 1 All E.R. 556, H.L.(E.).

Pickering v. Cape Town Railway Co(1865) L.R. 1 Eq. 84(1869) L.R. 7 Eq. 224.

Reg. v. National Joint Council for the Craft of Dental Technicians (Disputes Committee)Ex parte Neate [1953] 1 Q.B. 704; [1953] 2 W.L.R. 342; [1953] 1 All E.R. 327, D.C.

Rex v. Northumberland and Compensation Appeal TribunalEx parte Shaw [1952] 1 K.B. 338; [1952] 1 All E.R. 122, C.A.

Scott v. Avery (1856) 5 H.L.Cas. 811, H.L.(E.).

[1981] A.C. 909 Page 911

Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210; [1977] 3 W.L.R. 818; [1977] 3 All E.R. 803, H.L.(E.).

Unione Stearinerie Lanza and Wiener, In re [1917] 2 K.B. 558. D.C.

The following additional cases were cited in argument in tile House Lords:

Andre et Compagnie S.A. v. Marine Transocean Ltd. (The Splendid Sun) [1981] 3 W.L.R. 43, C.A.

Ben & Co. Ltd. v. Pakistan Edible Oils Corporation Ltd., The Times, July 13, 1978, C.A.

Bloemen (F. J.) Pty. Ltd. v. City of Gold Coast Council [1973] A.C. 115; [1972] 3 W.L.R. 43; [1972] 3 All E.R. 357, P.C.

Bremer Oeltransport G.m.b.H. v. Drewry [1933] 1 K.B. 753, C.A.

Chandris v. Isbrandtsen-Moller Co. Inc[1951] 1 K.B. 240; [1950] 1 All E.R. 768.

Crighton and Law Car and General Insurance Corporation Ltd., In re [1910] 2 K.B. 738, D.C.

Exormisis Shipping S.A. v. Oonsoo [1975] 1 Lloyd’s Rep. 432.

Gulf Shipping Lines Ltd. v. Jadranska (unreported), [1981] 1 Lloyd’s Rep. 31.

Hongkong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd[1962] 2 Q.B. 26, [1962] 2 W.L.R. 474; [1962] 1 All E.R. 474, C.A.

Jamshed Khodaram Irani v. Burjorji Dhunjibhai (1915) 32 T.L.R. 156, P.C.

Lep Air Services Ltd. v. Rolloswin Investments Ltd[1973] A.C. 331: [1972] 2 W.L.R. 1175; [1972] 2 All E.R. 393, H.L.(E.).

Liverpool City Council v. Irwin [1977] A.C. 239; [1976] 2 W.L.R. 562: [1976] 2 All E.R. 39, H.L.(E.).

London and Blackwall Railway Co. v. Cross (1886) 31 Ch.D. 354, C.A.

Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. [1975] 2 Lloyd’s Rep. 509, C.A.

Miliangos v. George Frank (Textiles) Ltd[1976] A.C. 443; [1975] 3 W.L.R. 758; [1975] 3 All E.R. 801, H.L.(E.).

Mylne v. Dickinson (1815) Coop.G. 195.

Powell v. Main Colliery Co. Ltd[1900] A.C. 366, H.L.(E.).

Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Government of the Republic of Indonesia intervening) (Pertamina) [1978] Q.B. 644; [1977] 3 W.L.R. 518; [1977] 3 All E.R. 324, C.A.

Rickards (Charles) Ltd. v. Oppenhaim [1950] 1 K.B. 616; [1950] 1 All E.R. 420, C.A.

Shell U.K. Ltd. v. Lostock Garage Ltd. [1976] 1 W.L.R. 1187; [1977] 1 All E.R. 481, C.A.

Star International Hong Kong (U.K.) Ltd. v. Bergbau-Handel G.m.b.H. [1966] 2 Lloyd’s Rep. 16.

Stickney v. Keeble [1915] A.C. 386, H.L.(E.).

Succula Ltd. v. Harland and Wolff Ltd. [1980] 2 Lloyd’s Rep. 381.

Universal Cargo Carriers Corporation v. Citati [1957] 2 Q.B. 401; [1957] 2 W.L.R. 713; [1957] 2 All E.R. 70.

The following cases are referred to in the judgment of Donaldson J.:

Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229; [1968] 2 W.L.R. 366; [1968] 1 All E.R. 543, C.A.

[1981] A.C. 909 Page 912

Beddow v. Beddow (1878) 9 Ch.D. 89.

Ben & Co. Ltd. v. Pakistan Edible Oils Corporation Ltd., The Times, July 13, 1978, C.A.

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, C.A. and H.L.(E.).

Chandris v. Isbrandtsen-Moller Co. Inc[1951] 1 K.B. 240; [1950] 1 All E.R. 768.

Compagnie Francaise de Télévision v. Thorn Consumer Electronics Ltd. [1978] R.P.C. 735, C.A.

County & District Properties Ltd. v. Lyell, July 12, 1977; Court of Appeal (Civil Division) Transcript No. 314 of 1977, C.A.

Crawford v. A. E. A. Prowting Ltd[1973] Q.B. 1; [1972] 2 W.L.R. 749; [1972] 1 All E.R. 1199.

Den of Airlie S.S. Co. Ltd. v. Mitsui & Co. Ltd. (1912) 17 Com.Cas. 116, C.A.

Exormisis Shipping S.A. v. Oonsoo [1975] 1 Lloyd’s Rep. 432; [1975] 2 Lloyd’s Rep. 402.

Gouriet v. Union of Post Office Workers [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.(E.).

Government of Gibraltar v. Kenney [1956] 2 Q.B. 410; [1956] 3 W.L.R. 466; [1956] 3 All E.R. 22.

Kitts v. Moore [1895] 1 Q.B. 253, C.A.

London and Blackwall Railway Co. v. Cross (1886) 31 Ch.D. 354, C.A.

Malmesbury Railway Co. v. Budd (1876) 2 Ch.D. 113.

Miliangos v. George Frank (Textiles) Ltd[1975] Q.B. 487; [1975] 2 W.L.R. 555; [1975] 1 All E.R. 1076, C.A.; [1976] A.C. 443; [1975] 3 W.L.R. 758; [1975] 3 All E.R. 801, H.L.(E.).

Montgomery v. Montgomery [1965] P. 46; [1964] 2 W.L.R. 1036; [1964] 2 All E.R. 22.

North London Railway Co. v. Great Northern Railway Co(1883) 11 Q.B.D. 30, C.A.

President of India v. John Shaw & Sons (Salford) Ltd., The Times, October 28, 1977, C.A.

Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Government of the Republic of Indonesia intervening) (Pertamina) [1978] Q.B. 644; [1977] 3 W.L.R. 518; [1977] 3 All E.R. 324, C.A.

Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210; [1977] 3 W.L.R. 818; [1977] 3 All E.R. 803, H.L.(E.).

Sociedade Portuguesa de Navios Tanques Limitada v. Hvalfangerselskapet Polaris A/S [1952] 1 Lloyd’s Rep. 407, C.A.

The following additional cases were cited in argument before Donaldson J.:

Biss v. Lambeth, Southwark and Lewisham Area Health Authority (Teaching) [1978] 1 W.L.R. 382; [1978] 2 All E.R. 125, C.A.

Mehta v. Adams, May 26, 1978; Court of Appeal (Civil Division) Transcript No. 348 of 1978, C.A.

Sayers v. Collyer (1884) 28 Ch.D. 103, C.A.

Thorne v. British Broadcasting Corporation [1967] 1 W.L.R. 1104; [1967] 2 All E.R. 1225, C.A.

[1981] A.C. 909 Page 913

The following cases are referred to in the judgments in the Court of Appeal:

Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229; [1968] 2 W.L.R. 366; [1968] 1 All E.R. 543, C.A.

Andre et Compagnie S.A. v. Marine Transocean Ltd. (The Splendid Sun) [1980] 1 Lloyd’s Rep. 333.

Associated Bulk Carriers Ltd. v. Koch Shipping Inc. [1978] 1 Lloyd’s Rep. 24, C.A.

Beddow v. Beddow (1878) 9 Ch.D. 89.

Birkett v. James [1978] A.C. 297; [1977] 3 W.L.R. 38; [1977] 2 All E.R. 801, H.L.(E.).

Bristol Corporation v. John Aird & Co[1913] A.C. 241, H.L.(E.).

Chandris v. Isbrandtsen-Moller Co. Inc[1951] 1 K.B. 240; [1950] 1 All E.R. 768.

County & District Properties Ltd. v. Lyell (unreported), July 12, 1977; Court of Appeal (Civil Division) Transcript No. 314 of 1977, C.A.

Crawford v. A. E. A. Prowting Ltd[1973] Q.B. 1; [1972] 2 W.L.R. 749; [1972] 1 All E.R. 1199.

Crighton and Law Car and General Insurance Corporation Ltd., In re [1910] 2 K.B. 738, D.C.

Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [1978] 2 Lloyd’s Rep. 223, Kerr J. and C.A.

Danforth Travel Centre Ltd. v. British Overseas Airways Corporation (1972) 29 D.L.R. (3d) 141.

Den of Airlie S.S. Co. Ltd. v. Mitsui & Co. Ltd. (1912) 17 Com.Cas. 116, C.A.

Frota Nacional de Petroleirus v. Skibsaktieselskabet Thorsholm [1957] 1 Lloyd’s Rep. 1, C.A.

Heyman v. Darwins Ltd[1942] A.C. 356; [1942] 1 All E.R. 337, H.L.(E.).

Jackson v. Barry Railway Co[1893] 1 Ch. 238, C.A.

Japan Line Ltd. v. Aggeliki Charis Compania Maritima S.A. (The Angelic Grace) [1980] 1 Lloyd’s Rep. 288, Parker J. and C.A.

Kitts v. Moore [1895] 1 Q.B. 253, C.A.

Lister v. Romford Ice and Cold Storage Co. Ltd[1957] A.C. 555; [1957] 2 W.L.R. 158; [1957] 1 All E.R. 125, H.L.(E.).

Liverpool City Council v. Irwin [1976] Q.B. 319; [1975] 3 W.L.R. 663; [1975] 3 All E.R. 658, C.A.; [1977] A.C. 239; [1976] 2 W.L.R. 562; [1976] 2 All E.R. 39, H.L.(E.).

Maunsell v. Midland Great Western (Ireland) Railway Co. (1863) 1 H. & M. 130.

Murrayfield Real Estate Co. Ltd. v. C. Bryant & Son Ltd. (unreported), July 20, 1978; Court of Appeal (Civil Division) Transcript No. 473 of 1978, C.A.

North London Railway Co. v. Great Northern Railway Co(1883) 11 Q.B.D. 30, C.A.

Pickering v. Cape Town Railway Co(1865) L.R. 1 Eq. 84.

Shell U.K. Ltd. v. Lostock Garage Ltd. [1976] 1 W.L.R. 1187; [1977] 1 All E.R. 481, C.A.

Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210; [1977] 3 W.L.R. 818; [1977] 3 All E.R. 803, H.L.(E.).

Smith & Service and Nelson & Sons, In re (1890) 25 Q.B.D. 545, C.A.

Sneddon v. Kyle (1902) 2 S.R.(N.S.W.)Eq. 112.

[1981] A.C. 909 Page 914

Unione Stearinerie Lanza and Wiener, In re [1917] 2 K.B. 558, D.C.

Unitramp v. Garnac Grain Co. Inc. [1979] 1 Lloyd’s Rep. 212, C.A.

Universal Cargo Carriers Corporation v. Citati [1957] 2 Q.B. 401; [1957] 2 W.L.R. 713; [1957] 2 All E.R. 70.

Whitworth Street Estates (Manchester) Ltd. v. James Miller Partners Ltd[1970] A.C. 583; [1970] 2 W.L.R. 728; [1970] 1 All E.R. 796, H.L.(E.)

Wilson, Sons & Co. v. Conde d’Eu Railway Co. (1887) 51 J.P. 230, D.C.

The following additional cases were cited in argument in the Court ot Appeal in Gregg v. Raytheon Ltd.:

Carron Iron Co. v. Maclaren (1855) 5 H.L.Cas. 416, H.L.(E.).

Connolly Bros. Ltd., In re [1911] 1 Ch. 731, C.A.

Curtis v. Potts (1814) 3 M. & S. 145.

Doleman & Sons v. Ossett Corporation [1912] 3 K.B. 257, C.A.

Exormisis Shipping S.A. v. Oonsoo [1975] 1 Lloyd’s Rep. 432.

Farrar v. Cooper (1890) 44 Ch.D. 323.

Gibraltar (Government of) v. Kenney [1956] 2 Q.B. 410; [1956] 3 W.L.R 466; [1956] 3 All E.R. 22.

Giddings v. Giddings (1847) 10 Beav. 29.

Hodgkinson v. Fernie (1857) 3 C.B.N.S. 189.

London and Blackwall Railway Co. v. Cross (1886) 31 Ch.D. 354, C.A.

London Export Corporation Ltd. v. Jubilee Coffee Roasting Co. Ltd. [1958] 1 W.L.R. 271; [1958] 1 All E.R. 494.

Malmesbury Railway Co. v. Budd (1876) 2 Ch.D. 113.

Mylne v. Dickinson (1815) Coop.G. 195.

Myron, The [1970] 1 Q.B. 527; [1969] 3 W.L.R. 292; [1969] 2 All E.R. 1263.

Reg. v. Leyland Justices, Ex parte Hawthorn [1979] Q.B. 283; [1979] 2 W.L.R. 28; [1979] 1 All E.R. 209, D.C.

Reg. v. National Joint Council for the Craft of Dental Technicians (Disputes Committee), Ex parte Neate [1953] 1 Q.B. 704; [1953] 2 W.L.R. 342; [1953] 1 All E.R. 327, D.C.

Rex v. Wandsworth Justices, Ex parte Read [1942] 1 K.B. 281; [1942] 1 All E.R. 56, D.C.

Wood v. Leake (1806) 12 Ves.Jun. 412.

The following additional cases were cited in argument in the Court of Appeal in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation:

Giddings v. Giddings (1847) 10 Beav. 29.

Gouriet v. Union of Post Office Workers [1978] A.C. 435, [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.(E.).

Halfdan Grieg & Co. A/S v. Sterling Coal & Navigation Corporation [1973] Q.B. 843; [1973] 2 W.L.R. 904; [1973] 2 All E.R. 1073, C.A.

Rasu Maritima S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Government of the Republic of Indonesia intervening) (Pertamina) [1978] Q.B. 644; [1977] 3 W.L.R. 518; [1977] 3 All E.R. 324. C.A.

Actions

By a writ dated April 25, 1977, the plaintiffs in the first action, Bremer Vulkan Schiffbau und Maschinenfabrik (a body corporate), sought an

[1981] A.C. 909 Page 915

injunction restraining the defendants, South India Shipping Corporation Ltd., by themselves or their agents from proceeding with, pursuing or taking any further step in a reference to arbitration, wherein the defendants were claimants and the plaintiffs were respondents, commenced pursuant to an arbitration clause in a contract between the parties dated August 6, 1964. Alternatively, they sought a declaration that the arbitrator had power to make and issue a final award in the reference dismissing the claim on the grounds only that the defendants had failed to prosecute their claims in the reference with diligence and had been guilty of gross and inexcusable delay causing serious prejudice to the plaintiffs and/or that the dispute could not fairly be tried at the likely time of hearing.

In the second action, by a writ dated December 1, 1978, the plaintiffs, Newton Gregg, Lucile Gregg and Malcolm Kelly, sought an injunction against the continuance of an arbitration commenced by the defendants, Raytheon Ltd., against the plaintiffs and which concerned disputes arising out of a contract between the plaintiffs and the defendants dated June 2, 1970, by reason of the defendants’ inordinate and inexcusable delay in prosecuting the arbitration, and for a declaration that the arbitrators in the arbitration had power to strike out the defendants’ claim therein for want of prosecution.

The facts are stated in the judgment.



Kenneth Rokison Q.C. and David Grace for the plaintiffs in the first action.

Solicitors: Norton Rose, Botterell & Roche; Richards, Butler & Co.; Herbert Smith & Co.; Leslie Wainstead.

[Reported by MRS. CLARE BARSBY, Barrister-at-Law]

The defendants appealed to the Court of Appeal.

The second appeal was heard first.

Mark Saville Q.C., V. V. Veeder and Brian McClure for Raytheon Ltd.

ROSKILL L.J. These two appeals from decisions of Donaldson J. dated April 10, 1979, raise, as the judge said at the outset of his judgment,

[1981] A.C. 909 Page 942

ante, p. 915E-F, questions of great importance relating to the conduct of arbitrations in this country and especially in relation to the conduct of those arbitrations to which section 5 of the Arbitration Act 1979 will not apply. Before us the appeal in Gregg v. Raytheon Ltd. was argued before the appeal in Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd., though before the judge the cases were apparently heard in the reverse order. I shall call the first appeal “the Raytheon appeal” and the second “the Bremer appeal.” In each action the judge has held that the appellants, who were the defendants in the two actions and the respective claimants in the two arbitrations had been guilty of inordinate and inexcusable delay which had caused such prejudice to the plaintiffs in each of the two actions, who were the respective respondents in the two arbitrations and of course in these appeals, that had the appellants commenced these proceedings in the High Court by way of action instead of by arbitration in accordance with the arbitration clauses in the respective agreements under which the disputes concerned arose, such proceedings would have been dismissed by the High Court for want of prosecution in accordance with the principles laid down in Birkett v. James [1978] A.C. 297 and Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229. The judge summarised those principles in six succinct paragraphs, ante, pp. 916 – 918. Subject to what I say in the next sentences on the question of acquiescence – see paragraph 5 of the judge’s summary – I accept as correct and gratefully adopt the judge’s summary without repetition. Mr. Butler argued that acquiescence was an absolute bar and that once there was acquiescence in delay, the existence of that delay ceased to be relevant. Only further delay is relevant. Since I take the view, as did the judge, that there was no acquiescence in the Bremer case, this point does not arise for decision. But, as at present advised, I think Mr. Butler’s argument is inconsistent with what Salmon L.J. said in Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229, 232.

The question for decision before him was, and in this court is, whether those principles have any application to the conduct of arbitrations in this country. Until the present cases no court has held that they have. But the judge has held, first, that an arbitrator (I include an umpire in that word) has power to dismiss for want of prosecution and to make an award to that effect: ante, p. 921D-F. He has further held, at pp. 482-483, that in such a case the courts have power to intervene and prevent a dilatory claimant in an arbitration from further proceeding with his claim by granting an injunction restraining him from so doing. The judge based this conclusion upon the view that unjustified delay by a claimant struck at the root of an agreement to arbitrate which a respondent might treat as repudiatory conduct and accept as such, thus bringing to an end the agreement to arbitrate, and enabling him to obtain an injunction and also, where appropriate, damages, e.g. for wasted expenditure.

The judge’s first conclusion that an arbitrator had power to dismiss for want of prosecution was contrary to an earlier decision of Bridge J. in Crawford v. A. E. A. Prowting Ltd[1973] Q.B. 1, where he held that

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there was no such jurisdiction vested in an arbitrator. The argument that the court had power in effect to achieve the same result by an injunction was not and indeed could not have been advanced in that case since the matter came before Bridge J. by way of case stated by an arbitrator who had been invited to dismiss the claimant’s claim in that arbitration for want of prosecution.

Before us Mr. Saville, for the appellants in the Raytheon appeal, argued as almost his last submission that the judge had reached the wrong conclusion upon the facts of that case. Mr. Butler, for the appellants in the Bremer appeal, devoted virtually the whole of his argument to a like submission and was content for the rest to adopt (with one exception) Mr. Saville’s submissions on the other issues so far as relevant to the Bremer appeal. In neither appeal did this court find it necessary to call upon counsel for the respondents to support the judge’s conclusions upon the facts of the case for, notwithstanding the arguments of counsel for each of the appellants, I think the judge’s conclusions upon the facts in each case are quite unassailable. For my part, I would in each case have unhesitatingly reached the same conclusion as did Donaldson J. But even if I had felt any doubt as to the correctness of either or both of his conclusions, which I do not, I would not have been willing to interfere with his exercise of his discretion on a matter of this kind, assuming, of course, he was right in applying to arbitrations the same principle as is now clearly established to apply to actions in the High Court.

It follows that for the first time this court is asked to decide, first, whether arbitrators have power to dismiss for want of prosecution in such circumstances and make an award to that effect, and, secondly, whether or not they have such power, whether the court has power to interfere in such circumstances by injunction. It is convenient to mention at this juncture that since the instant decisions, Lloyd J. in The Splendid Sun [1980] 1 Lloyd’s Rep. 333, granted an injunction restraining claimants in an arbitration from proceeding with their claim. The question whether arbitrators had power to strike out did not arise for decision. The delays in that case were even worse than in the instant cases since the arbitration in question had been begun in 1969 and no steps had been taken thereafter for over eight years. Lloyd J. stated that, as is the fact, until the instant cases no court had granted an injunction such as Donaldson J. granted.

But following Donaldson J.’s decisions Lloyd J. granted such an injunction, resting his decision upon the submission that the delay in question was such as would frustrate the agreement to arbitrate, a submission apparently not advanced before or considered by Donaldson J. As will later emerge, I think Lloyd J. was right to rest his decision upon this foundation rather than upon that enunciated on this branch of the case by Donaldson J. if, which still remains to be considered, the court has any power to interfere by injunction in the circumstances under consideration.

It should be mentioned that neither Mr. Waller nor Mr. Rokison, for the respective respondents, who as the plaintiffs obtained injunctions from

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Donaldson J., found it easy to support that part of the judge’s judgment which held that arbitrators had power to dismiss for want of prosecution and to make an award to that effect. Mr. Waller dealt with this question only towards the end of many submissions, while Mr. Rokison, whose help we had invited in order to make sure that no point favourable to the judge’s view had inadvertently been overlooked, recognised his difficulty in supporting this part of the judgment.

It is strange that if arbitrators have this power it has never been invoked, at any rate in such a way as to obtain a decision of the court upon its existence. The inadequacy of the powers of arbitrators to deal with delays – often deliberate delays – has long been a matter of complaint. Many of the proposals of the powerful committee over which MacKinnon J. presided in 1927 were directed towards strengthening the Arbitration Act 1889 so as to avoid delays which by 1927 were already notorious. Those of the proposals which were ultimately adopted found their place upon the statute book in the Arbitration Act 1934. As recently as 1978 the Commercial Court Committee, over which Donaldson J. himself presided, in a Report on Arbitration (1978) (Cmnd. 7284) bewailed the constant delay and discussed the “favourite ploy” by those seeking delay. Paragraph 57, which bears the rubric “Sanctions in case of delay or failure to comply with the arbitrator’s directions” merits quotation in full:

“A favourite ploy by those who seek delay is to ignore the time table fixed by the arbitrator or to fail to comply with directions for the delivery of a defence or for discovery. Parties to an action in the Commercial Court who adopted similar tactics would receive short shrift, since the Court would strike out the claim or counterclaim or debar the defendant from defending. In cases which fall within section 12 (6) of the 1950 Act, it is possible for parties to obtain an order from the High Court and for that court to apply sanctions in the event of default. However this is not widely known, does not cover all forms of foot-dragging and involves at least two attendances on the High Court – first to obtain an order and further attendances to invoke sanctions. What is required is a power for the High Court to apply sanctions for disobedience of orders made by the arbitrator. This too is a suitable subject for the attention of an Arbitration Rules Committee.”

That report was in part responsible for the passing of the Arbitration Act 1979, including section 5. But in neither the report of MacKinnon J.’s committee nor in this report of the Commercial Court Committee does one find any hint or suggestion that arbitrators have so readily to hand this lethal weapon which the judge in his judicial capacity has held to exist.

On the other hand, it must be said that before Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229 and the other related cases it had not readily occurred to practitioners that this weapon of striking out was available to dispose of personal injury and other actions of seemingly indefinite duration, and perhaps it is not surprising that the possibility of

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using this weapon had not occurred to those engaged in arbitrations rather than litigation. Nonetheless complaints of delays in arbitration have been of as long – or longer – standing as complaints of the law’s delays, and it has at long last in 1979 been thought necessary to deal with this problem by legislation.

In my view, it is necessary to consider the correctness of the judge’s view both as a matter of history and of principle. Until well into the last century the courts looked askance at arbitrations. The procedure was suspect as tending to oust the jurisdiction of the courts, and indeed one finds traces of this attitude in decided cases well into this century notwithstanding the passing, first, of the Common Law Procedure Act 1854 and, secondly, of the Arbitration Act 1889.

As Lord Moulton pointed out in Bristol Corporation v. John Aird & Co[1913] A.C. 241, 256, it was not until the Common Law Procedure Act 1854 that Parliament gave to the courts the limited power of stay which section 11 of that statute accorded in cases where the parties had agreed that existing or future differences should be referred to arbitration provided, of course, the other conditions in that section were also satisfied. Until then if one of the parties to a submission refused to proceed to arbitration the other was left to a useless remedy in an action for damages: see also in this connection the judgment of this court in In re Smith & Service and Nelson & Sons(1890) 25 Q.B.D. 545, where it was held that the only remedy for unilateral revocation of a submission to arbitration before section 1 of the Arbitration Act 1889 was enacted lay in an action for damages for breach of contract. But the Act of 1854 is singularly silent as to the powers as distinct from the duties of arbitrators – for example, section 15 provided that an arbitrator should, save in circumstances for which the section made provision, make his award within three months of his appointment. Those and other sections of the Act of 1854 dealing with arbitrations were repealed by Schedule 2 to the Arbitration Act 1889. That statute in section 4 re-enacted in a somewhat different form section 11 of the Act of 1854. By section 2 of and Schedule 1 to the Act of 1889 nine provisions respectively lettered a to i were ordered to be implied into submissions to arbitration unless the parties had otherwise provided. The former section 15 found new and extended life in paragraphs c, d and e of that schedule, provisions which were castigated by the MacKinnon Committee as of no practical value: see paragraph 5 of that report. It is to be observed that paragraph f created an implied obligation on parties to give evidence and also discovery, but notwithstanding that provision no sanctions were provided for any failure so to do. Curiously enough, Schedule 1 contained no express power to order pleadings or indeed to allow amendments to pleadings, nor was any power given to arbitrators to order a claimant to give security for costs in cases where in an action a court would order such security to be given.

It is difficult to think that if between 1889 and 1934, when some of the recommendations of the MacKinnon Committee took effect in the Arbitration Act 1934, anyone had been bold enough to assert that an arbitrator had power to dismiss an arbitration for want of prosecution and to make an award to that effect without more ado, such a submission

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would have been favourably received in any court of law. That that is so is supported, I think, by two decisions in this period, especially the second, to neither of which was the judge referred when this matter was before him. In In re Crighton and Law Car and General Insurance Corporation Ltd[1910] 2 K.B. 738 a Divisional Court which included Scrutton J. held that an arbitrator had both inherent power and also power under paragraph f of Schedule 1 to the Act of 1889 to order pleadings and to allow or to refuse amendments to them. No doubt it was this decision which made it unnecessary for the MacKinnon Committee to recommend that this apparent gap in Schedule 1 be filled by legislation. More important, in In re Unione Stearinerie Lanza and Weiner [1917] 2 K.B. 558, the Divisional Court held that an arbitrator had no power to order security for costs. That court declined to extend Scrutton J.’s reasoning in In re Crighton[1910] 2 K.B. 738 to the length necessary to enable security for costs to be ordered by an arbitrator. Viscount Reading C.J. said, at p. 561:

“I do not think that Scrutton J. meant by those words to imply that an arbitrator under a submission by agreement was in the same position as and had all the powers of a judge. I think he meant that he had power to ascertain the facts, and, under clause (f), power to order points of claim to be delivered, and, that that being so, he must have the power also, sitting as the person to decide the questions, to allow an amendment. I do not think he meant anything more than that.”

This decision led to the recommendation of the MacKinnon Committee that the court, not be it noted arbitrators, should be given power, inter alia, to order security for costs, a provision subsequently enacted in the Act of 1934 and now finding its place in section 12 (6) (a) of the Arbitration Act 1950.

It was faintly suggested that we should overrule the Unione case [1917] 2 K.B. 558. It would be completely wrong for us to do so even if I had any doubts (which I have not) as to its correctness. When a decision has been accepted for over 60 years and its consequences remedied by statute, though not so as to give arbitrators power to order security for costs, it would indeed be strange for the Court of Appeal to hold at this late stage that this latter power had always existed.

I cannot but think that, if the judge had been referred to this decision and in particular to the passage I have just quoted from the judgment of Viscount Reading C.J., he would not have reached the conclusion that he did, namely that parties by their agreement to arbitrate impliedly clothed the arbitration tribunal with jurisdiction to give effect to their rights and remedies to the same extent and in the same manner as a court, subject only to certain well recognised exceptions: see ante, p. 921E-F

The judge relied on the decision of this court in Chandris v. Isbrandtsen-Moller Co. Inc[1951] 1 K.B. 240 as supporting his view. With great respect, I do not think that that decision goes so far as the judge thought. An arbitrator may award interest on damages in a proper case for the

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reasons given by this court in the Chandris case. But that is not to say, as the judge sought to say, that an arbitrator has in all the circumstances all the powers of the court, subject only to the exceptions which he mentioned. I venture to think that the members of this court who decided the Chandris case would have been surprised to learn that they had impliedly held that an arbitrator had power to dismiss for want of prosecution and had also impliedly reversed the decision in the Unione case [1917] 2 K.B. 558.

So far I have dealt with the question only by considering the history of the relationship between the courts and arbitrators and what I conceive to be the principle which has to be applied in these cases. But we were referred to an ill-reported case: Wilson, Sons & Co. v. Conde d’Eu Railway Co. (1887) 51 J.P. 230. That was a decision of the Divisional Court (Day and Wills JJ.) in which it appears to have been held that an arbitrator, seemingly vested with all the powers of a nisi prius judge, nonetheless had no power to strike out the claims that were before him, but that he must adjudicate upon them: see the brief report of the successful argument of the then Attorney-General and also of the judgment of the court. That decision was before the Act of 1889, but for what it is worth supports the conclusion at which I have independently arrived.

One reason which Bridge J. gave in the Crawford case [1973] Q.B. 1 for holding that there was no power in an arbitrator to dismiss for want of prosecution was what he suggested was the different position of a respondent in an arbitration from that of a defendant in an action. He described the position of a defendant in an action as “relatively privileged,” because such a defendant could sit back, do nothing and then apply to dismiss the action against him for want of prosecution. In the case of an arbitration the judge thought there was an obligation on both parties to enable the matter to be prepared for trial: see Donaldson J. ante, pp. 918 – 920 disagreed with this view, suggesting that save in what he called “look sniff” arbitrations, arbitrations and actions were indistinguishable in principle in their adversarial characteristics.

Mr. Saville submitted that on this issue Donaldson J. was wrong and Bridge J. was right and that arbitrations were inquisitorial rather than adversarial in their character. He relied upon what he claimed to be the duty of an arbitrator to make his award promptly and referred to the penalties for which provision is made in section 13 of the Arbitration Act 1950 for the removal of an arbitrator from office and deprivation of remuneration. I think, with respect, this submission is without foundation. The section is dealing with an arbitrator who will not go forward when everyone wishes him to do so. But an arbitrator who insisted on proceeding against the wishes of the parties and attempted to make an award when they were not ready to proceed might at least in some cases find himself accused of misconduct.

With great respect to any view of Bridge J., I find it difficult to distinguish between litigation and arbitrations on the grounds which he suggested. Both, to my mind, are essentially adversarial. Even in a case where each party has appointed an arbitrator and the arbitrators meet and agree upon their award before appointing an umpire I think the

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proceedings can properly be characterised as adversarial. If the commercial judge tries an action in the Commercial Court, it is by concession an adversarial process. If he is invited and agrees to hear precisely the same dispute as an arbitrator or umpire under section 4 of the Administration of Justice Act 1970, I find it difficult to see how or why the whole character and quality of the proceedings suddenly changes. Indeed an arbitrator or umpire, who in the absence of express agreement that he should do so, attempting to conduct an arbitration along inquisitorial lines might expose himself to criticism and possible removal.

On this point, therefore, I respectfully prefer the reasoning of Donaldson J. to that of Bridge J. I take the view that almost all arbitration proceedings and certainly the instant arbitration proceedings are essentially adversarial in their character. As will appear later in this judgment, I do not think that a respondent in an arbitration is in an in any way different position from a defendant in an action. Neither is under any obligation to stir his adversary into action. The dictum which Donaldson J. quoted, at p. 476, about sleeping dogs seems to me to apply equally to sleeping claimants in an arbitration as to sleeping plaintiffs in an action.

If Donaldson J.’s view that arbitrators do, with certain exceptions, possess all the powers of a court, were right, one wonders why the express powers listed in section 12 (6) of the Act of 1950 were necessary, since an arbitrator would already have possessed the greater number of these powers pursuant to some inherent powers vested in him.

In support of the Raytheon appeal Mr. Saville advanced two further arguments, neither of which, he frankly admitted, had been advanced by counsel appearing for the claimants in that case before the judge.

The first was that even if the criticism of the first part of the judge’s judgment were well-founded, his conclusion could be supported on the ground that the position was different in the case of what Mr. Saville called an “institutional” arbitration, by which phrase I understood him to mean an arbitration conducted in accordance with the rules of and under the supervision of some organisation of arbitration such as, in the Raytheon appeal, the International Chamber of Commerce (“I.C.C.”), or perhaps the Institute of Arbitrators in this country. The second was that even if the three arbitrators appointed by the parties under the I.C.C. rules had no jurisdiction to dismiss for want of prosecution, nonetheless under those rules the respondents’ remedy was to apply to the I.C.C. Court of Arbitration, a body for which their rules make provision, for an appropriate order which Mr. Saville claimed that court could make under the rules. He relied in this connection on an affidavit by Dr. Eisemann, a former Secretary-General of the Court of Arbitration of the I.C.C. To this affidavit the respondents replied with an affidavit from Dr. Mann, whose experience in the field of international arbitration requires no endorsement from this court. We admitted these affidavits notwithstanding formal objection from Mr. Waller.

The arbitration clause in the contract concerned in the Raytheon appeal, which was dated June 2, 1970, is found in clause 11 of that contract and reads:

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“In the event that any dispute or controversy shall arise between the parties hereto, the same shall be resolved by arbitration in Geneva, Switzerland, under the rules then prevailing of the International Chamber of Commerce. The laws of England and the laws of the State of Delaware shall be deemed equally applicable to this agreement and in the event of conflict between the two bodies of law the arbitrator shall be free to apply whichever of the said laws will in his opinion most equitably secure the results contemplated herein. The decision of the arbitrator(s) shall be final and binding upon both parties and judgment thereon may be entered in any court of competent jurisdiction.”

Thus the originally intended place of arbitration was Geneva. But this was later changed to London by agreement between the parties and with the consent of the I.C.C. It was argued that this change cannot have been intended to import into the agreement to arbitrate all the striking out procedure applicable to English High Court actions. Since I take the view that by English law an arbitrator has no such power, the interesting discussion we had on the extent of the applicability of the lex fori to arbitrations which is elaborated in Dr. Mann’s affidavit and also in an article he wrote “Lex Facit Arbitrum” in a presentation book of essays, Liber Amicorum, requires no further consideration.

But I find it difficult to accept Mr. Saville’s suggested distinction between institutional and non-institutional arbitration, for which he claimed some support in a textbook entitled Handbook of Institutional Arbitration in International Trade (1977). No doubt institutions concerned with furthering arbitration as a means of disposal of disputes seek emancipation from control of the courts of the countries where such arbitrations take place, perhaps in the belief that such freedom facilitates expedition of decision. Dr. Mann’s affidavit shows the limited success of such attempts and this court recently had to consider similar problems in relation to I.C.C. arbitrations in Dalmia Dairy Industries Ltd. v. National Bank of Pakistan [1978] 2 Lloyd’s Rep. 223, to which frequent reference was made during the arguments. For my part, I am unable to accept that there can be any logical distinction between arbitrations of one kind and the other according to whether some label such as “institutional” can be attached. In each case the relevant question is – on what terms and conditions have the parties agreed to go to arbitration? That question must be answered without regard to any attachment of suggested labels.

Ultimately Mr. Saville did not argue that the three named arbitrators had power to dismiss for want of prosecution. But he contended that the respondents had pursued the wrong remedy and that to achieve their objective they should have applied not to the arbitrators nor to the courts of this country, but to the I.C.C. Court of Arbitration. To some extent this submission overlaps with the question whether or not the court has power to grant and, if it has power, should grant an injunction, for clearly if an alternative remedy existed an English court would be less willing to grant a discretionary remedy such as an injunction.

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I therefore turn to the I.C.C. rules. We are concerned with the 1955 edition, which were those in force at the date of the relevant contract. I think it is clear that for the purpose of the present proceedings we must interpret those rules in accordance with English principles of construction. There is no evidence that the law of Delaware is any different from our own. Section B (1) of those rules deals with the Court of Arbitration and arbitrators and articles 6 and 7 set out the method of appointment of and the functions of the Court of Arbitration. Article 13 gives further powers to the Court of Arbitration. Article 26 reads:

“Before completing the award, the arbitrator shall submit the same to the Court of Arbitration. The court may lay down modifications as to its form and, if need be, draw the arbitrator’s attention even to points connected with the merits of the case, but with due regard to the arbitrator’s liberty of decision. No award shall under any circumstances be issued until approved as to its form by the Court of Arbitration.”

Article 31, much relied upon by Mr. Saville, reads:

“In any circumstances not specifically provided for above, the Court of Arbitration and the arbitrator shall act on the basis of these rules and make their best efforts for the award to be enforceable at law.”

In addition I should refer to articles 1, 2, 3 and 4 of the statutes of the Court of Arbitration.

In paragraph 40 of his affidavit Dr. Eisemann claims that I.C.C. arbitrations are more expeditious than others. I do not stop to consider whether this assertion would be universally accepted. Paragraph 37 of his affidavit states:

“If the claimant was merely stalling for time, no extension would be granted; and the claimant would be warned by the I.C.C. Secretariat or the arbitrators on behalf of the Court of Arbitration that unless he remedied his dilatory conduct within a specified time the Court of Arbitration would treat his request for arbitration as withdrawn, settle the fees of the arbitrators and reimburse the deposit paid by the respondents.”

It is true that Dr. Mann does not contradict this statement. Accepting therefore for present purposes that this is what does or may happen in practice, but construing the rules as a matter of English law, I feel bound to say that I see nothing in those rules which justifies such a course of action as a matter of contract. I derive some comfort for this conclusion from an article in the Handbook of Institutional Arbitration in International Trade, to which I have already referred. In a passage dealing with I.C.C. arbitration under the most recent rules (we were told that article 13 of the most recent rules is virtually identical with article 19 of the rules with which we are concerned), the writer says, at p. 24:

“The first of the ‘anti-frustrating’ measures provided by the rules are those which enable the preliminaries to the proceedings to go

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ahead, once certain time limits have been reached. The second is that provided in article 13 where a party fails to cooperate in the definition of the precise limits of the dispute, and of the points on which the arbitrators are to rule. This, obviously, does not mean that there is any default procedure, since no party can ever be deprived of its rights to defend its interest.”

This passage hardly supports Mr. Saville’s submissions or suggests that Dr. Eisemann’s paragraph 37 is justified by the rules, whatever may happen in practice. Moreover, to my mind paragraph 37 suggests something more akin to action of an administrative nature than to action with any contractual force or effect behind it. I am of the clear view, therefore, that the respondents could not have found any satisfactory remedy by application to the Court of Arbitration.

Thus far I have reached these conclusions:

  1.  (1)     There is no power in an arbitrator to dismiss an arbitration for want of prosecution. In this I respectfully disagree with Donaldson J. and agree with Bridge J., though for reasons which I fear differ from his.
  1.  (2)     Mr. Saville’s submissions regarding the possible distinction between “institutional” and other arbitrations and especially his submission on the I.C.C. rules regarding an application to the Court of Arbitration fail.
  1.  (3)     It must follow that unless the court can interfere by injunction, as the judge has held, an aggrieved respondent in an arbitration is without remedy save himself to press the proceedings forward, which as a defendant in an action he would be under no obligation to do and which in an arbitration might well not be in his interest.
Underlying the view of the judge that the court had power to interfere by injunction was the undoubted fact that the relationship between the parties to an arbitration agreement was a contractual one. An agreement to arbitrate might, like any other contract, be broken or become incapable of performance. If the particular breach in question took the form of repudiatory conduct, then there was no difference in principle between conduct evincing an intention not to perform an agreement to arbitrate and such conduct evincing an intention not to perform any other type of contract. Such conduct could be accepted by the innocent party as a repudiation and a claim to rescind would follow coupled with a claim for damages and an injunction where either or both of these were the appropriate remedies. Such an injunction could then be granted in support of the innocent party’s contractual right to cancel.

The judge further took the view that terms could be implied into an agreement to arbitrate as into any other contract. In addition to the implication, which I have for the reasons already given felt unable to accept, that parties to an arbitration impliedly clothe the arbitrators with jurisdiction to give effect to their rights and remedies to the same extent and in the same manner as a court (ante, p. 921), the judge also held, at p. 924, that it was “implicit” in – by which he meant an implied term of – an agreement to arbitrate that each party would use his reasonable endeavours to bring the matter to a speedy conclusion. In the light of the judge’s findings of fact, he held that the claimants in each case had

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been guilty of repudiatory conduct by failing to proceed with reasonable despatch, repudiatory conduct which each of the respondents was entitled to accept as bringing the agreement to arbitrate to an end.

Mr. Saville was quick to attack the implied term theory both in principle and in its application to the facts of these cases. In principle, he said, there was no need to imply any such term as being both reasonable and necessary in order to make the agreement to arbitrate work. The Arbitration Act 1950, like its predecessors, in the absence of any contrary agreement, imported by statute certain implied terms into a submission to arbitration, for example, section 12 (1). There was, therefore, no need in order to make the agreement to arbitrate work to imply any other terms and no justification for so doing. Moreover, whereas in the Raytheon appeal the complaint was of delay in giving discovery, the respondents had ready to hand a statutory remedy by application to the High Court under section 12 (6) (b), a submission much relied upon by Mr. Saville in his argument on the facts that the respondents were responsible for much, if not all, of the delay by failing to pursue their statutory rights under that paragraph, as indeed they had indicated in correspondence at one time that they intended to do.

Mr. Saville also contended that the judge’s implied term imposed an equal obligation on both parties to proceed with due diligence. Whatever might be said against the claimants in this connection, the respondents had equally done nothing and therefore were equally in breach of their obligation vis-à-vis the claimants, as the claimants were to the respondents, if the judge’s implied term were correctly imported into the agreement to arbitrate. Mr. Saville further argued that if a respondent in an arbitration did nothing it was for the arbitration tribunal itself to get the arbitration moving and that if a respondent did nothing to galvanise that tribunal into action, the respondent was without more ado acquiescing in the delay.

Mr. Butler, however, did not adopt this part of Mr. Saville’s argument, contenting himself with the submission that there was no duty on either party or on the arbitration tribunal to move an arbitration forward. In addition Mr. Saville argued that the respondents’ submission and the judge’s view that an agreement to arbitrate could be repudiated for breach of the implied term which the judge held to exist involved that the innocent party was purporting to revoke his submission to arbitration which, Mr. Saville argued, he was not entitled to do without the leave of the court in view of the provisions of section I of the Arbitration Act 1950. This further argument had not been advanced before the judge and we therefore do not know whether, had he thought this submission well founded, he would have granted the necessary leave under that section. Both respondents before us sought and obtained leave to amend their writs to seek such leave if it should prove necessary. For my part, in the light of the judge’s reasoning I feel little doubt that he would, if he had thought it necessary so to do, have granted leave to revoke.

The submission that a term such as that which the judge held must be implied into this agreement to arbitrate was in the court below based

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upon what in lawyers’ shorthand is known as the “Moorcock principles.” Those principles were recently restated by the majority of this court in Liverpool City Council v. Irwin [1976] Q.B. 319, in terms later unanimously approved by the House of Lords [1977] A.C. 239. Mr. Saville devoted the greater part of his attack upon the implication made by the judge to showing that it was neither reasonable nor necessary to imply such a term so as to make this agreement to arbitrate work. This is, however, not the only basis upon which a court will imply a term into a contract. As their Lordships held in Liverpool City Council v. Irwin, there are certain classes of contract to which a court will, in the absence of agreement to the contrary, attach an implied term as a matter of law. Thus in that case their Lordships held that the particular implied term there in question attached to the contract concerned, which was a contract for the letting of a flat, as a legal incident of that contract: see per Lord Wilberforce at pp. 254-255 and per Lord Edmund-Davies at pp. 266-267. There are plenty of other examples of the operation of this principle in the law of contract. For example, sections 13 and 14 of the Sale of Goods Act 1893, and section 39 of the Marine Insurance Act 1906 attach certain implied conditions to contracts of the particular class with which those two statutes are respectively concerned, and each of those statutory provisions merely reproduces the relevant antecedent common law.

Sale of goods law, landlord and tenant law and marine insurance law are all part of our general law of contract. To each as to other types of contract the law will or may attach certain particular implied terms as legal incidents of the relevant contract. I see no reason in principle why contracts to refer disputes to arbitration should not also be treated as part of our general law of contract, be governed by the same legal principles and have attached to them where appropriate one or more implied terms as incidents of those particular contracts, those implied terms if necessary being in addition to those other implied terms for which the relevant legislation makes statutory provision.

Mr. Saville’s attack upon the implication into the agreement to arbitrate which the judge held to be correct has, to my mind, considerable force. Mr. Waller found difficulty in supporting the judge’s implied term. Adroitly he rested this part of his submission on a different basis. Founding himself on the decision in Universal Cargo Carriers Corporation v. Citati [1957] 2 Q.B. 401, he argued that following the reasoning of the House of Lords in Liverpool City Council v. Irwin [1977] A.C. 239there attached to this agreement to arbitrate and to other similar agreements as a legal incident of such agreements a duty not to be guilty of such delay as would frustrate the whole purpose of the arbitration in question. In the Citati case the delay which was ultimately held to be frustrating delay of a repudiatory character was the charterer’s failure to load the ship within such time as did not wholly destroy the commercial purpose of the adventure so that the shipowner thereupon became entitled to throw up the charterparty by reason of the charterer’s repudiatory conduct.

[1981] A.C. 909 Page 954

By parity of reasoning Mr. Waller argued that a claimant in an arbitration who, like a plaintiff in an action, has the conduct of the case and who is guilty of prejudicial delay of such a kind as would in an action lead to that action being struck out by the court was equally guilty of frustrating delay of a repudiatory character, thus enabling the innocent party, the respondents in the Raytheonappeal, to rescind the agreement to arbitrate.

This is indeed a formidable submission. As I have already said, agreements to arbitrate are but part of the general law of contract. The Citati doctrine [1975] 2 Q.B. 401 is of general application. It is not limited to contracts of particular types. This court recently applied that same principle in Unitramp v. Garnac Grain Co. Inc. [1979] 1 Lloyd’s Rep. 212, a decision against which I understand their Lordships’ House has recently refused leave to appeal.

Mr. Saville sought to meet this argument by submitting that the Arbitration Act 1950 was a complete code and that, therefore, there was no justification for attaching by implication to any agreement to arbitrate any further legal obligations beyond those for which the statute provided, such an agreement to arbitrate was not inefficacious or futile without making the implication, especially as the aggrieved party could always invoke his statutory remedies and in particular in the Raytheon appeal a remedy under section 12 (6) from the court.

The short answer to this submission seems to me to lie in the fact that it presupposes, contrary to my view, that a respondent in an arbitration is under some obligation to galvanise a dilatory claimant into action, e.g. by an appropriate application to the High Court under section 12 (6) of the Act of 1950. In my view, for the reasons already given, a respondent is under no such obligation. He can sit back and wait. If this conclusion be right, I see little or no difficulty in attaching to an agreement to arbitrate as a legal incident of such a contract an implied obligation in point of law upon the claimant who, like a plaintiff in the action, has the conduct of the case not to be guilty of such dilatory conduct in the prosecution of his claim as will defeat the whole purpose of the agreement to arbitrate by making a fair hearing before the arbitration tribunal impossible because of the lapse of time involved. This is merely another way of saying that a claimant must in such circumstances not be guilty of frustrating delay of a repudiatory character and it is difficult to think of a better example of frustrating delay of a repudiatory character than delay of such kind as would in an action cause the High Court to strike out the action in its entirety for want of prosecution.

Thus far I accept the judge’s view that a term can properly be implied into the agreement to arbitrate which reflects what I regard as the obligation of a claimant not to delay the prosecution of his claim. But I venture to think that the correct basis for implying such a term is that which I have just stated rather than that which the judge adopted and that the correct implication is also that just stated rather than that suggested by the judge.

[1981] A.C. 909 Page 955

In this connection it should be mentioned, as Mr. Rokison told us, that the suggestion of implying a term originally emanated from the judge during the hearing of the Bremer action and not from counsel arguing that case. Mr. Rokison frankly admitted to us that he displayed little enthusiasm for the suggestion when the judge first made it and that the judge thereupon appeared to drop the suggestion – we have been shown the relevant extract from the transcript which contains the interchange between the judge and Mr. Rokison on this topic. But during the subsequent hearing of the Raytheon case, the judge seemingly revived the idea and ultimately it has formed the basis of this part of his judgment.

Mr. Saville also argued that before the innocent party can treat delay of a repudiatory character as giving him the right to rescind the contract, he must give the guilty party notice making time of the essence. No doubt in certain classes of contract, for example where an innocent party has allowed a guilty party to think that a specific obligation as to timeous performance will not be insisted upon, such a notice making time of the essence would be required and a failure to comply with that notice established before rescission could successfully be sought for non-compliance. But, in my judgment, the present is not such a case. The whole basis of the reasoning in the Citati case [1957] 2 Q.B 401 is inconsistent with this submission. The guilty party remains under a continuing obligation to prosecute his claim and there will come a time, not always very easy to determine in point of fact, when the innocent party can say to the guilty party “enough and no more” and rescind without giving the guilty party any further locus penitentiae. In my view, therefore, this further submission fails.

As to the submission on section I of the Arbitration Act 1950, the short answer is that the rescission with which we are concerned is of the agreement to arbitrate, and not of the appointment of the arbitrators. It is, however, clear that logically the latter appointments must disappear as an inevitable consequence of the rescission of the agreement to arbitrate. Section 1 is only concerned with revocation of the appointment of an arbitrator and not with an agreement to arbitrate. I do not think the dictum of Denning L.J. in Frota Nacional de Petroleiros v. Skibsaktieselskapet Thorsholm [1957] 1 Lloyd’s Rep. 1, 5 is any authority for the contrary view. That was a case where the arbitration in question was continuing. There was no suggestion in that case of a repudiation of the agreement to arbitrate. But, even if I be wrong in the views I have just expressed and leave is required under section 1, I would unhesitatingly give such leave, as I feel reasonably certain that the judge would have done had this issue been raised before him. Finally, on this branch of the case, Mr. Saville argued that there was no clear acceptance of the repudiation by the respondents for he contended that the writ treated the arbitrators as still having power to strike out and that therefore the declaration sought in the writ affirmed the agreement to arbitrate. I do not think this submission is sound – at best it is certainly highly technical. The writ claims an injunction on the footing that the agreement to arbitrate was not subsisting. The claim for a declaration was really no

[1981] A.C. 909 Page 956

more than a claim for an alternative remedy, namely, striking out by the arbitrators consequently upon the rescission of the agreement to arbitrate.

I now turn to the question whether the court has power to grant an injunction restraining the claimants from proceeding with the arbitrations. I approach this question on the basis that the respondents have established a right to rescind owing to frustrating delay which the respondents have exercised. Mr. Saville argued that before section 5 of the Arbitration Act 1979 was enacted the court had no such power.

It is true that such a power, if it exists, has never, at least in recent times, been exercised to restrain the prosecution of an arbitration in support of a claim that the arbitration agreement has been rescinded by repudiatory conduct of one of the parties to that agreement. But if Mr. Saville’s main submission be right and I am right in disagreeing with the judge’s views that the arbitration tribunal itself has no power to strike out, it follows that there is no power anywhere to prevent a dilatory claimant guilty of frustrating delay from ultimately proceeding with his claim notwithstanding the impossibility of the issues between him and the respondent being fairly tried. This of course gives the claimant a grossly unfair advantage.

Mr. Saville argued that the cases where injunctions had been granted in connection with the prosecution of arbitrations fell into two classes, first, misconduct of the arbitrators and, secondly, where there was a dispute whether a particular party was or was not a party to the agreement to arbitrate. He claimed that the respondents by their submissions were trying to add a third class to these two.

In support of the first part of his suggested dichotomy he relied on a recent unreported decision of this court – Japan Line Ltd. v. Aggeliki Charis Compania Maritima S.A. (The Angelic Grace) [1980] 1 Lloyd’s Rep. 288, 292 where it was stated by Lord Denning M.R. that the High Court had jurisdiction to supervise the conduct of arbitrators in order to make sure that they were not guilty of “real misconduct.” In support of the second part of Mr. Saville’s suggested dichotomy he relied upon the decision in Kitts v. Moore [1895] 1 Q.B. 253, where this court granted an injunction to a plaintiff who sought to impeach an alleged agreement to arbitrate by alleging that he was not bound by it: see per Lindley L.J. at pp. 259-260 and per A. L. Smith L.J. at p. 262.

In the present case it was urged there was no “impeaching” of the agreement to arbitrate since it was admitted that initially each of the respondents had been bound by it. There was no suggestion that either agreement to arbitrate was void or voidable on the ground of fraud or mistake. Mr. Saville relied upon Den of Airlie S.S. Co. Ltd. v. Mitsui & Co. Ltd. (1912) 17 Com.Cas. 116 as illustrating a case where a court would not grant an injunction to restrain a defendant from proceeding with an arbitration, saying that there was in such a case no initial impeaching of the agreement to arbitrate.

In answer to these submissions Mr. Waller demonstrated, as he submitted, the development of the relevant equitable jurisdiction before the passing of the Judicature Act 1873 by taking us through many 19th

[1981] A.C. 909 Page 957

century authorities, not all of which were referred to before the judge. I do not propose to examine all these cases, in some of which injunctions were granted and in others injunctions were refused. I think references to three of the cases only will suffice. First and foremost is Pickering v. Cape Town Railway Co., L.R. 1 Eq. 84, a decision of Page Wood V.-C. later varied by Lord Cranworth L.C. The Pickering case has had a curious history and we are indebted to Mr. Waller and his junior for having traced its history . It was treated in the 7th ed. of Russell on Arbitration as authority for the proposition, at p. 204, that:

“Parties, however, sometimes conduct themselves in such a manner as to induce the Court of Chancery to restrain them from proceeding in a reference.”

The passage and the relevant reference to the Pickering case was however later dropped in subsequent editions of Russell and the case is not mentioned in the current or indeed any recent edition of that work. It is, however, cited in Halsbury’s Laws of England, 4th ed., vol. 24 (1979), para. 1038, as authority for the proposition:

“The court has jurisdiction to interfere in arbitration proceedings on equitable grounds where the parties have by their conduct excluded themselves from the benefit of their contract to arbitrate.”

In Pickering’s case, L.R. 1 Eq. 84 there was a contract between the plaintiff and the defendants for the building of a railway in the former Cape Colony. That contract contained an arbitration clause and a certain Mr. Hawkshaw was appointed what was called “standing referee.” Disputes arose and the defendants then resorted to the Supreme Court of the Cape Colony to eject the plaintiff from the site. Later the defendants sought to insist upon their right to go to arbitration in respect of matters arising from the plaintiff’s ejection from the site. The plaintiff sought and obtained from Page Wood V.-C. an injunction restraining the arbitrator from proceeding to make an award. Page Wood V.-C. stated the position thus, at pp. 87-88:

“We have nothing in this court in the nature of a writ of prohibition authorising the court to proceed against an arbitrator, and the only jurisdiction that exists to stop the proceedings before arbitration is founded upon the conduct of the parties. If, for example, defendants are seeking to enforce certain rights which they conceive they are entitled to exercise under a deed for submission to a reference, and the court should be of opinion that they have debarred themselves from exercising those rights by the course of conduct which they have adopted, there arises an equity, which prevents them from prosecuting proceedings, however they might otherwise be entitled to do so under the particular jurisdiction which is beyond the control of this court.”

Lord Cranworth L.C. subsequently discharged this injunction: L.R. 1 Eq. 89. As I read the very brief report of his judgment, he discharged the injunction because it had, in his opinion, been premature to grant it

[1981] A.C. 909 Page 958

before the relevant facts had been fully ascertained. It is important to note that Lord Cranworth L.C. is reported as having said, at pp. 89-90:

“The Vice-Chancellor might have come to a correct conclusion as to the parties having by their conduct excluded themselves from the benefit of their contract to arbitrate, but his Lordship could not see his way to that conclusion until the cause was heard.”

I do not read this passage as disagreeing with Page Wood V.-C.’s statement of basic principle upon which the Court of Chancery would proceed in granting relief to a plaintiff seeking to restrain a defendant from proceeding with an arbitration under an arbitration clause.

Mr. Saville strongly argued that the Pickering case was no authority for the proposition that the court could or would interfere with an arbitration because owing to delay a fair trial was no longer possible: Pickering was, he said, a case where the agreement to arbitrate had been impeached. He reinforced this submission that Pickering was no authority for the wider proposition by urging that nothing could be more unfair than an arbitrator whose award could be shown to have proceeded on a wrong view either of the facts or the law or both. Yet there was ample authority in such cases that the court would not interfere. If, therefore, before 1979 the case did not come within section 12 (6) of the Act of 1950, no one had power to interfere.

I shall return to this submission later, but it will be convenient next to consider the two other principal cases. In Beddow v. Beddow, 9 Ch.D. 89 Sir George Jessel M.R. enjoined an arbitrator from acting because of his own unfitness. That case on its facts, of course, falls comfortably within Mr. Saville’s first category. But Sir George Jessel M.R. said, at p. 93:

“… it appears to me that the only limit to my power of granting an injunction is whether I can properly do so. For that is what it amounts to. In my opinion, having regard to these two Acts of Parliament, I have unlimited power to grant an injunction in any case where it would be right or just to do so: and what is right or just must be decided, not by the caprice of the judge, but according to sufficient legal reasons or on settled legal principles.”

In the third and last of these cases, North London Railway Co. v. Great Northern Railway Co., 11 Q.B.D. 30, this court refused to grant an injunction where the plaintiff asserted that the arbitrator had no jurisdiction to hear the dispute. The court, after considering the judgment of Sir George Jessel M.R. in Beddow v. Beddow, 9 Ch.D. 89, held that it had no jurisdiction to grant the injunction sought because if there were no jurisdiction in the arbitrator to hear and determine the arbitration there would be no legal injury and no legal right in the plaintiff which he was entitled to protect by injunction: see per Brett L.J. pp. 35 and 36 and Cotton L.J. at pp. 40 and 41. Cotton L.J. pointed out that Beddow v. Beddow proceeded upon the basis that the plaintiff had a legal and equitable right to protect by injunction.

[1981] A.C. 909 Page 959

At the present day the problem to which the North London Railway case, 11 Q.B.D. 30 gave rise could and no doubt would be swiftly solved by an action for a declaration that the arbitrator had no jurisdiction. The North London Railway case clearly troubled the judge: see [1979] 3 W.L.R. 471, 480. I do not think the North London Railway case decides more than, as is indeed clear law, the court will not grant an injunction save in support of some legal or equitable right: see the recent restatement of this principle by Lord Diplock in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210, 256. Lord Diplock in that passage appears to treat this as the ratio decidendi of the North London Railway case. Curiously enough it does not seem to have been argued in that case that the plaintiffs had a legal or equitable right to be protected by injunction against wasted costs in an arbitration in which such costs would be irrecoverable if the arbitrator had no power to determine the dispute. He would indeed be a brave lawyer who, where a problem of this kind arises, advises his clients that they can safely stay away from such an arbitration and risk the arbitrator deciding the issue of jurisdiction against them merely in order to save costs which might prove to he irrecoverable.

There is always a tendency where courts, whether of equity or common law, possess some power whether equitable, at common law or by statute and over a long period of time can be shown to have exercised or refused to exercise that power in widely differing cases to seek to group those cases and to categorise them and then, having drawn up those categories, to limit the exercise of those powers to such cases and to contend that there is no wider power which may be exercised in other cases which do not fall within those categories. With respect, I think this is the basic fallacy which underlies Mr. Saville’s suggested dichotomy. No doubt many of the cases I have referred to and others to which we were referred in argument and which were also referred to by Donaldson J. in his judgment, can be grouped or categorised as Mr. Saville suggests. But to accept that grouping or categorisation is not to say that every future case must fall within such a group or category before such an injunction can be granted. Equity has never proceeded along tramlines. In the instant case, as already stated, the respondents have, in my view, a legal right to rescind the arbitration agreement. They also have a right, whether it be called an equitable right does not matter, to a fair hearing before the arbitration tribunal. The claimants’ conduct has led to their having acquired this legal right to rescind. Their right to a fair hearing cannot now be fulfilled because of the claimants’ conduct.

Why then, when there is no other remedy available, should the court not interfere and protect both those rights by injunction? Without an injunction the claimants can go on with the hearing which ex hypothesi cannot be fair to the respondents.

I think, therefore, the judge was entirely right to grant the injunctions in both these cases. It would, in my judgment, be a lamentable gap in our jurisprudence were claimants in arbitration to be preferred to plaintiffs in litigation, as would be the case if the judge were wrong in

[1981] A.C. 909 Page 960

that they can drag out arbitrations indefinitely, being arbitrations to which the Act of 1979 does not apply, without any penalty being imposed upon them.

That leaves the question of damages. This only arises in the Raytheon appeal. The respondents claim as damages their wasted expenditure and the judge ordered the quantum of such damage to be assessed by a taxing master. Mr. Saville argued that the respondents were not entitled to damages unless they could show that they would have, or at least had stood a good chance of winning the arbitration. I do not think this submission is well founded. Some cases, for example, an action for negligence against solicitors, may require proof of the prospects of success as an essential prerequisite of a successful claim for damages for what would have been gained in the action which the solicitors have negligently failed to bring is the measure of the plaintiff’s loss in his action for negligence. But the question in the Raytheon appeal is: what loss or damage flows naturally and directly from the claimants’ repudiatory conduct? My answer is that the damage which flows naturally and directly from their breach is the wasted expenditure which has been incurred by the respondents to no useful purpose because of the determination of the arbitration by rescission of the agreement to arbitrate and by the injunction. In reaching this conclusion I have not lost sight of the dictum of Lord Macmillan in Heyman v. Darwins Ltd[1942] A.C. 356, 371 that the remedy for breach of an agreement to arbitrate is enforcement and not damages. That statement, however, must be read in its context and not divorced from it. Lord Macmillan was not intending to override the earlier decisions to which I have already referred which emphasise the contractual character of an agreement to arbitrate, a breach of which can in certain circumstances give rise to a claim for damages. In my judgment, therefore, the respondents in the Raytheon appeal are entitled to damages on the basis determined by the judge.

It remains to mention two other matters for the sake of completeness The first is a submission which Mr. Saville sought to raise for the first time in this court. There were, he correctly pointed out, only three respondents in the Raytheon appeal who were the three plaintiffs in the original action. But when one looks at clause 9 of the agreement between the claimants and the respondents one finds that the indemnity upon which the claimants sought to rely in the arbitration was jointly and severally given by four persons, the fourth being a Mr. Teasdale. Mr. Teasdale was not a plaintiff in the proceedings presently before the court and is not a respondent to this appeal. Therefore, argued Mr. Saville, the respondents’ cause of action was incomplete without Mr. Teasdale being joined either as a plaintiff or as a defendant. This became known as the “Teasdale point.” Mr. Teasdale unfortunately is an undischarged bankrupt. Naturally his trustee in bankruptcy is interested as to any terms upon which leave to join Mr. Teasdale might be granted. Since this was a new point taken for the first time in this court, Mr. Saville could only take it with our leave and we were only prepared to grant such leave on terms which Mr. Saville declined to accept. The Teasdale point, therefore, disappears.

[1981] A.C. 909 Page 961

The second matter was raised by Mr. Butler. He sought to introduce for the first time in this court controversial evidence as to German law on the implication of terms into contracts of which German law is the proper law. Since it seemed to us that it would be impossible to resolve this issue even if it be relevant, as to which I express no opinion, without hearing the expert witnesses cross-examined, we declined to allow the matter to be raised for the first time before us. Clearly, if this were intended to be raised as an issue in these proceedings, the matter ought to have been investigated before Donaldson J. so that he might make his findings of fact upon the disputed questions of German law which would be available for us. We, therefore, declined to allow this matter to be raised.

In the result, for the reasons which I have given, I would dismiss both appeals. I would venture to add this. In the addendum to his judgment Lord Denning M.R. has referred to the position of a respondent who was guilty of inordinate and frustrating delay as were the plaintiffs in the present two cases. I prefer to express no view as to the position which might arise in that event which does not now arise for decision and was not presented in argument before us.

CUMMING-BRUCE L.J. I agree that both appeals should be dismissed on the grounds stated by Lord Denning M.R. and Roskill L.J. I take the same view as Roskill L.J. of North London Railway Co. v. Great Northern Railway Co., 11 Q.B.D. 30. The power to intervene by injunction only falls to be exercised in support of a legal or equitable right as stated by Lord Diplock in the Siskina case[1979] A.C. 210, 256, and the respondents in each case have established a legal right to accept the repudiation of the arbitration agreements arising from the repudiatory conduct of the claimants. The decision of Page Wood V.-C. in Pickering v. Cape Town Railway Co., 1 Eq. 84 is correctly stated in Halsbury’s Laws of England 4th ed., vol. 24 (1979), para. 1038 as authority for the proposition quoted in the judgments which have just been delivered. The fact that the courts have not been asked before to intervene by injunction in a case of repudiatory delay is explained by the history of the procedural remedy of striking out an action at law for want of prosecution. A new chapter began with Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229. The principles which were therein explained and applied are as relevant to proceedings taken pursuant to an agreement to arbitrate as to proceedings at law.

Solicitors: Lovell, White & King (instructed only on the appeal); Herbert Smith & Co.

Richards, Butler & Co.; Norton Rose, Botterell & Roche.

C. N.

South India Shipping Corporation Ltd. appealed to the House of Lords.

Anthony Evans Q.C. and P. G. Caldin for the appellants. The broad issue is whether a claim for damages arising under a shipbuilding contract, referred to arbitration in 1971, should now be effectively dismissed, not on the merits, but because of delay by the claimants (the present appellants) in delivering their points of claim. During the period between 1972 and 1976 there came to light further defects in the ships constructed under the contract and there was express agreement that they should be included in the arbitration. During that time the respondents never applied to the arbitrator for directions as to the conduct of the arbitration or for his finding whether there had been adverse or prejudicial delay. The House of Lords is concerned with issues of fact and law. The question also arises whether the arbitrator can dismiss a claim on the ground of delay without regard to the merits.

  1.  (2)     Does the court have the same power in relation to arbitrations as it would in the case of High Court actions? The court itself cannot make an award.
  1.  (3)     Should an injunction be ordered on the ground that the agreement to arbitrate was wrongfully repudiated by the claimant and the repudiation was accepted by the other party thus excusing him from performance of the contract of arbitration? In relation to this issue the respondents rely on breach of an implied term of the contract. There cannot be a repudiation without a breach. There cannot be a breach without a term to be broken. The respondents say that the suggested implied term is a necessary legal incident of every contract of arbitration. If so, the implied term has not been noticed for 300 years. It would be a startling development of the law producing a most unjust result.
  1.  (4)     In any event, would an injustice be produced in the present case? See Crawford v. A. E. A. Prowting Ltd[1973] Q.B. 1.
  1.  (5)     Has an arbitrator a like power to that of a High Court judge? On this issue the Court of Appeal was in favour of the appellants. The respondents suggest that the power to dismiss is inherent in the arbitrator’s power to determine the matter, but they are seeking to have the claim dismissed, not on the merits, but as a punishment for delay.
  1.  (6)     Further factual issues arise in relation to the suggested breach of an implied term. If there was an implied term was there a breach of it?
  1.  (2)     There is a mutual obligation to take steps to bring the matter to a conclusion, i.e. an award. It is the implied term expressed by Donaldson J. below, ante, p. 924H.
  1.  (3)     There is an equitable obligation to take such a step. Where notice must be given to make time of the essence there is a duty to apply to the arbitrator. If ultimately what is sought is the equitable relief of an injunction one must look at the overall position including the attitude of the respondent who may refrain from waking a sleeping dog in case it bites him severely.

“… in one sense he is the antithesis of a court. A person goes to arbitration because he does not want to go to the court. Therefore

he sets up his own private judge to decide the case, but the arbitrator is not deciding it as a judge, he is deciding it as an arbitrator, and procedural rights and all matters relating to procedure are to be found in the Arbitration Act 1950.” (Now the Arbitration Acts 1950 and 1979).

“parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection. submit to be

examined by the arbitrator or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrator or umpire all documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrator or umpire may require.”

LORD EDMUND-DAVIES. My Lords, I have had the advantage of reading in draft the seminal speech of my noble and learned friend, Lord Diplock. For the reasons he gives I am for allowing this appeal. I desire to add that I have found it irksome that the appeal has been conducted on the basis that, were we here concerned not with arbitration proceedings but with a civil action, it is beyond doubt that the court would have been justified in dismissing the action on the ground that the plaintiff’s inordinate and inexcusable delay had rendered a fair trial impossible. The nonchalant behaviour of the respondent shipbuilders over the years, despite intimations from the shipowner of fresh complaints (their quiescence obviously deriving from complete reliance on what they regarded as an irrefragable time-bar) creates a substantial doubt in my mind that it would follow as night does the day that an order dismissing the claim for want of prosecution would be the defendants’ for the mere asking. The notion that a defendant may always safely indulge in “letting sleeping dogs lie” is not wholly without its dangers, not the least being that prolonged and complete inactivity may cast doubt upon the acceptability of his assertion of prejudice occasioned by the plaintiff’s delay. But we are enjoined to have no regard to any such considerations in the present case, and, having given expression to my doubts, I have naturally (albeit reluctantly) proceeded on the basis of the prescribed assumption in arriving at my conclusion that the appeal should be allowed.

LORD FRASER OF TULLYBELTON. My Lords, this appeal is concerned with the question whether the court has jurisdiction to restrain a claimant, by injunction, from pursuing a claim in an arbitration after he has been guilty of such inordinate and inexcusable delay that a fair hearing is no longer possible. The facts are summarised by my noble and learned friends, Lord Diplock and Lord Scarman, and I need not repeat them.

In April 1977 the respondents served the writ in the present proceedings alleging that they had been prejudiced by the appellants’ delay in lodging their claim and claiming an injunction restraining the appellants from proceeding with the arbitration, or alternatively, a declaration that the arbitrator had power to make a final award dismissing the claim on the ground that the appellants had been guilty of gross and inexcusable delay causing serious prejudice to the respondents. Donaldson J., in the Commercial Court, concluded, ante, p. 927H, that “the delay in delivering the points of claim was both inordinate and inexcusable and, further, that no significant part of the delay was induced by the conduct of the plaintiffs” (respondents in the appeal.) He went on to find that the plaintiffs had thereby suffered serious prejudice in two ways and he granted the injunction claimed. He also held that an arbitrator had the power referred to in the alternative claim. The Court of Appeal (Lord Denning M.R. and Roskill and Cumming-Bruce L.JJ.), ante, p. 961,

[1981] A.C. 909 Page 989

dismissed an appeal from Donaldson J.’s grant of an injunction but they held that arbitrators did not have the power referred to in the alternative claim. We must, I think, accept the concurring findings of the Commercial Court and the Court of Appeal that the delay was such as to prevent a fair hearing, and that if the claim had been made in an action it would have been dismissed for want of prosecution. That, of course, leaves open the question of whether the court has jurisdiction to grant an injunction, and if so, whether it ought to grant one in the circumstances.

It is convenient to consider first whether an arbitrator himself has power to dismiss a claim for want of prosecution and to make an award to that effect. Before the proceedings in the action now under appeal, that question appears to have been decided in only one reported case – Crawford v. A. E. A. Prowting Ltd. [1973] 1 Q.B. 1, where Bridge J. held that an arbitrator had no power to dismiss on this ground. When the present case was before Donaldson J. he took the opposite view and held that the arbitrator did have such power, but the Court of Appeal held that his view was erroneous. In the Court of Appeal, some reliance was placed on the decision of the Divisional Court in In re Unione Stearinerie Lanza and Wiener [1917] 2 K.B. 558, to the effect that an arbitrator had no power to order security for costs. In that case, which had not been cited to Donaldson J., Lord Reading C.J. said at p. 561 that the provisions of the Arbitration Act 1889 obliging parties to a reference to “do all other things which during the proceedings on the reference the arbitrators or umpire may require” did not invest arbitrators with the powers of a judge, such as power to commit for contempt and to issue a writ of attachment for default in compliance with an order made by him. Roskill L.J. examined the history of arbitrations in England and I gratefully adopt his reasoning and agree with the conclusion of all the members of the Court of Appeal that arbitrators do not have power to dismiss for want of prosecution.

I do not think it can make any difference whether an arbitrator purports to dismiss a claim for want of prosecution in so many words, or leaches the same result indirectly, by making a peremptory order for the plaintiff to lodge his claim by a certain day, and then, if the claimant fails to obey the order, refusing to hear him. There seems to be no authority as to the arbitrator’s power in these circumstances. Subsection (1) of section 12 of the Arbitration Act 1950 imposes an obligation on the parties to a reference to obey the arbitrator’s orders, in terms virtually identical with those of the Act of 1889 mentioned above, but it does not expressly confer any power upon the arbitrator to apply sanctions for disobedience, and, having regard to the decision in Unione Stearinerie, I do not think they can be implied. Moreover subsection (6) of section 12 of the Act of 1950 provides that the High Court shall have power for the purpose of a reference to make orders in respect of inter alia discovery of documents, and it seems to me that notwithstanding the proviso to subsection (6), the reason for conferring the power on the High Court must be that it is not already vested in the arbitrator. An even stronger implication to the same effect emerges from section 5 of the Arbitration Act 1979, although that Act does not apply to the arbitration in the

[1981] A.C. 909 Page 990

present case which began in 1972. I consider therefore than an arbitrator does not have power to refuse to hear a party who has failed to obey a peremptory order for lodging a claim.

In fact no peremptory order was sought or made in this case, and part of the argument for the appellants was that it would have been essential for such an order to have been made by the arbitrator and disobeyed by the claimant, before the claim could be dismissed by the court. If that is right, it would mean that the respondent in an arbitration, who believes that the claimant’s delay had been such as to prevent the possibility of a fair trial, would have to ask the arbitrator to make an order upon the claimant for lodging his claim by a specified date, while hoping that the order would be disobeyed so as to leave the way open for sanctions to be imposed. Why should the respondent be obliged to seek an order for something which would be directly contrary to his interests? It seems unreasonable. The argument in favour of requiring some such procedure depends, as I understand it, upon the view that a reference to arbitration, because it is contractual, differs fundamentally from litigation, particularly in respect that both parties to an arbitration have an obligation to avoid unreasonable delay. The result is said to be that, if the respondent in an arbitration remains inactive while the claimant delays to make his formal claim, he, the respondent, is not entitled to found on the delay as a reason for asking for dismissal of the claim. I recognise that an argument on these lines is acceptable to the majority of my noble and learned friends who heard this appeal, but I regret that I cannot agree with it. The contractual element in an arbitration such as the present, which depends upon an agreement made before any dispute had arisen, consists, in my opinion, of the choice of the tribunal which is to come in place of the court that would otherwise have had jurisdiction, in this case presumably a German court. The choice of an English arbitration as the tribunal would probably imply that the rules of the English Arbitration Act 1950 would apply to the procedure, but in this case the matter is put beyond doubt by a provision to that effect in the arbitration clause. Once the tribunal has been chosen, I agree with Donaldson J. and with Roskill L.J. that proceedings in the arbitration, like those in litigation, are in most cases, and certainly in the present case, adversarial in character. It is therefore for each party to act in what he conceives to be his own interest, subject of course to any agreement on procedure that may have been made between them, and to the relevant statutory provisions including the obligation to obey orders made by the arbitrator. But if no order is made, the respondent in an arbitration, like the defendant in an action, is in my opinion entitled to sit back and await a formal claim. In the words used by Donaldson J. he is entitled to let sleeping dogs lie. If the sleep lasts long enough and he is prejudiced thereby, he may seek a remedy for the delay.

The fact that, but for the arbitration clause, the court which would have had jurisdiction in this case would have been a foreign court, seems to me immaterial. If, by English law, an injunction may be granted by the English court against proceeding with an English arbitration in which there has been inordinate and inexcusable delay in presenting the claim resulting in serious prejudice to the respondent, then it must be for the

[1981] A.C. 909 Page 991

English court to decide in any particular case whether that sort of delay and that result has occurred. In reaching its decision, the court will naturally have regard to its own practice as a guide, when the arbitration is analogous to a litigation, but I agree with my noble and learned friend, Lord Scarman, that the analogy must not be taken too far. The decision will ultimately depend upon whether the party who is not responsible for the delay has suffered, or is likely to suffer, such serious prejudice that a fair trial is not possible. The same principle will apply to all types of arbitration. In the present case both parties were represented in the arbitration proceedings by solicitors and counsel, and both assumed that a formal statement of claim and answers analogous to pleadings in court would be required. The analogy of proceedings in court was therefore appropriate. But in a simple case, which might be dealt with by the arbitrator’s inspecting goods without any formal hearing, the analogy would not be appropriate and a much shorter delay might prevent the possibility of a fair trial (for instance if perishable goods were involved).

If the arbitrator does not have power to dismiss for want of prosecution then, unless the court has power to restrain the arbitration by injunction, there is no means of preventing its proceeding even if the delay has been such as to preclude the possibility of a fair trial. If that were indeed the position I would agree with Roskill L.J. that it would reveal a lamentable gap in English jurisprudence. But I do not think that such a gap exists. It is well established, and is not disputed by the appellants, that the court has jurisdiction to grant injunctions against proceeding with arbitrations in two cases. One is where the arbitrator has been guilty of misconduct, or has become unqualified – see Beddow v. Beddow, 9 Ch.D. 89. The other is where the validity or the application of the contract of arbitration is denied or “impeached” by one party – see Kitts v. Moore[1895] 1 Q.B. 253. The real question is whether these two types of case are unique in being the only types in which an injunction can be pronounced, or, as I think, are examples of the application of a more general principle. The principle which underlay the decision in Beddow was explained in North London Railway Co. v. Great Northern Railway Co., 11 Q.B.D. 30 by Cotton L.J. who said at p. 40:

“In Beddow v. Beddow [Jessel M.R.] granted an injunction to restrain an arbitrator from going on, and he uses there this language: ‘In my opinion, having regard to those two Acts of Parliament, I have unlimited power to grant an injunction in any case where it would be right or just to do so; and what is right or just must be decided, not by the caprice of the judge, but according to sufficient legal reasons or on settled legal principles.’ He means that if there is either a legal or an equitable right which is being interfered with, or which the court is called upon to protect, and the circumstances do not render it inconvenient or unadvisable to interfere, but render it convenient and advisable to interfere, the court may protect that right by giving the remedy which previously would not have been given, namely, an injunction, and in that case what he did was to interfere where an arbitrator was acting corruptly in the exercise of his jurisdiction under the reference.”

[1981] A.C. 909 Page 992

That shows that Cotton L.J. regarded the injunction granted against an arbitration proceeding in Beddow not as something unique or very special, but as an ordinary exercise of the court’s power and duty to protect legal rights. Cotton L.J. did not define the right which was being interfered with, but he must have had in mind the right to a fair trial, which includes the right to have the reference determined by an impartial arbitrator; or more accurately, the right not to be harassed by an arbitration before a tribunal that was not impartial. I regard the latter formulation of the right as more accurate, and more relevant, because it is only a right so formulated that would be directly protected by an injunction.

In the North London Railway case itself, 11 Q.B.D. 30, an injunction was refused because the Court of Appeal (Brett and Cotton L.JJ.) held that no legal right of the plaintiff would be interfered with if the defendant went on with an arbitration before an arbitrator who had no jurisdiction in the matter, so that any award would be futile. Whether that view of the facts be right or wrong, and I am bound to say that I doubt whether it would be accepted in similar circumstances today, the principle is clear and is still applicable to the power of the court under the Judicature Act 1925. The North London Railway case has been recently referred to with approval in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210, 256, by my noble and learned friend, Lord Diplock, who said that

“the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment.”

I fully accept that principle as applying in the present case and I will return to it.

Before doing so I wish to mention a decision which, if it is good law in England, demonstrates that misconduct and impeachment are not the only grounds for an injunction. It is a decision of this House in Glasgow and South-Western Railway Co. v. Boyd & Forrest, 1918 S.C. (H.L.) 14, where the House upheld the grant of an interdict against proceeding with an arbitration on matters which, as they held, were res judicata. The appeal came from Scotland, and there was no argument on the question of jurisdiction to grant an interdict, but it seems unlikely that the English Law Lords who were present, Lord Finlay L.C., Lord Parmoor and Lord Atkinson, would not have raised a question if they had entertained a ny doubt about the jurisdiction of the English court in similar circumstances. I think therefore that the case may be regarded as giving some support to the view that the English courts have jurisdiction to grant injunctions to protect the right of a party not to be harassed by an arbitration that would in the end be futile. Before parting with the case I observe that the House discriminated between those issues which were res judicata and those which were not; interdict was pronounced only in respect of the former. That would dispose of the suggestion made in argument before us that an injunction must relate to the whole reference.

It follows that the decision in the instant appeal depends upon whether, if the arbitration were now allowed to proceed, it would infringe a legal or equitable right of the respondents. In my opinion it would. It would

[1981] A.C. 909 Page 993

infringe their right to a fair trial, just as an arbitration before an arbitrator who was not impartial would do; more accurately, it would infringe their right not to be harassed by arbitration proceedings which cannot lead to a fair trial. The source of this right may be contractual, arising from the contract to refer, or it may be imposed by law as a rule of natural justice. The former view was taken by Donaldson J. and it was also, I think, the preferred view of Roskill L.J. But Lord Denning M.R. regarded the right as correlative to a duty which was imposed by law, and not by any application of The Moorcock (1889) 14 P.D. 64 principle of implied terms, and Roskill L.J. thought that there was “also” such a right in addition to the contractual right. Cumming-Bruce L.J. agreed with both Lord Denning M.R. and Roskill L.J. so he cannot have regarded the difference between them as important. For my part, I would rest my opinion in favour of the respondents in this appeal on the principle that they have an equitable right not to be harassed by arbitration proceedings which cannot result in a fair trial. I do not think it is necessary to rely on any implied term in the arbitration contract.

In my opinion the court, in granting an injunction to restrain an arbitrator from proceeding, is not exercising a supervisory jurisdiction of the same sort as it exercises over inferior tribunals by the issue of prerogative writs. The contrast between the prerogative writs and an injunction was referred to in Pickering v. Cape Town Railway Co(1865) L.R. 1 Eq. 84 by Page Wood V.-C. when he said at p. 87:

“We have nothing in this court in the nature of a writ of prohibition authorising the court to proceed against an arbitrator, and the only jurisdiction that exists to stop the proceedings before arbitration is founded upon the conduct of the parties.”

The same contrast was drawn by Lord Goddard C.J. in the course of argument in Reg. v. National Joint Council for the Craft of Dental Technicians (Disputes Committee), Ex parte Neate [1953] 1 Q.B. 704, 706 when he said:

“It would be revolutionary if this court were to grant an application for these writs [certiorari and prohibition] to issue to a private arbitrator. These writs issue from a superior court to an inferior court. These gentlemen are not entrusted by law with any functions at all. They have simply been given certain rights by the parties to the indenture. The proper course to take would be to move for an injunction.”

My Lords, for these reasons as well as for the reasons explained by my noble and learned friend, Lord Scarman, with which I agree, I would dismiss this appeal.

LORD RUSSELL OF KILLOWEN. My Lords, this appeal has been very fully discussed in the speech of my noble and learned friend, Lord Diplock. I find it convincing, and I also would allow this appeal.

LORD SCARMAN. My Lords, the specific question raised by the appeal is whether the High Court may properly grant an injunction to restrain

[1981] A.C. 909 Page 994

a party from proceeding with an arbitration, notwithstanding that there has been a valid agreement to refer and no misconduct, unfitness, or other disqualification of the arbitrator. The ground upon which the respondents seek relief by injunction is excessive and prejudicial delay in the conduct of the proceedings by the appellants, who are the claimants in the arbitration. The delay, it is said, has denied the respondents their right to a fair arbitration – a right which it is accepted that the law recognises. The trial judge granted the injunction, and the Court of Appeal upheld his decision. The appeal to the House is by leave of the Court of Appeal.

There is no earlier case like this in the books. There are cases, but not many, in which the court has by injunction restrained arbitration proceedings. They were cases in which either the agreement to refer was, or could in the circumstances be treated as, invalid or there was misconduct, unfitness, or incompetence displayed by the arbitrator. The present case falls to be decided under the law as it was before the coming into force of the Arbitration Act 1979: but your Lordships’ decision is not thereby rendered of merely academic interest.

The Act does not, save perhaps incidentally by excluding some rights which previously existed, limit the injunctive power of the High Court, though its provisions, of which section 5 is of particular relevance, are bound to have a marked effect on the exercise of the court’s discretion. For, if an arbitrator has power, or may be given power by the court, to remedy or prevent injustice occurring in the arbitration proceedings, it will be less likely that the grant of an injunction by a court would be a just or convenient course.

There is also a cross-appeal, whereby the respondents seek to restore the ruling of the trial judge, Donaldson J., that an arbitrator has power to dismiss a claim for want of prosecution.

Their basic case, of course, is to resist the appeal, submitting that, whether or not an arbitrator had (under the pre-1979 law) this power, the High Court certainly had power to restrain an arbitration on the ground of excessive and prejudicial delay. It is obvious that, if an arbitrator did have the power to dismiss, the occasions for the exercise of the court’s power to restrain would be few. The respondents, if need be, are, however, prepared to contend that, in the present case where neither party went near the arbitrator after his appointment and where (as they submit) responsibility for delay was upon the claimants, the court may, and should, intervene to restrain the arbitration without prior recourse to the arbitrator, if the delay be excessive and destructive of the possibility of a fair arbitration. It will be convenient, therefore, to consider the powers of an arbitrator in the course of dealing with the appeal.

It will be convenient to consider first the jurisdiction of the High Court to grant an injunction. There is no distinction to be drawn, so far as jurisdiction is concerned, between an interlocutory and a final injunction. A recent re-statement of principle is to be found in the speech of my noble and learned friend, Lord Diplock, in Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A[1979] A.C. 210, 256 where he said that:

[1981] A.C. 909 Page 995

“the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment.”

This formulation was based on the decision of the Court of Appeal in North London Railway Co. v. Great Northern Railway Co., 11 Q.B.D. 30, which, on this point, is now to be treated as having been approved by the House.

The North London Railway case was one in which an order of the Queen’s Bench granting an injunction to restrain a party from proceeding with an arbitration was discharged by the Court of Appeal. There was a valid arbitration agreement between the parties but the party seeking the injunction contended that the subject matter of the dispute was not within it. If he were right, the continuance of the arbitration would have been futile and vexatious. But the Court of Appeal considered that, as Brett L.J. put it at p. 36, “the fact of the appellants going on with that futile arbitration is no legal injury.”

Like my noble and learned friend, Lord Fraser of Tullybelton, and the Master of the Rolls, I do not believe that the proposition that no legal injury can arise from the futility and vexation of the arbitration process would be accepted to-day and I do not accept it. But the ratio decidendi of the case is certainly accepted law. The case resolved a doubt, which had arisen in the years following the Judicature Act 1873, as to the extent of the power conferred on the High Court by section 25 (8) of that Act, now re-enacted in section 45 of the Judicature Act 1925. In short, the Court of Appeal decided that the section was to be construed as procedural in its purpose and effect. The section does not extend the power of the court to cases where there is no legal or equitable right to be protected. It enables the court, where there is a legal right, to “grant an injunction where it is just or convenient to do so for the purpose of protecting or asserting the legal rights of the parties”: Cotton L.J. at p. 39.

It is necessary, therefore, to discover whether, if the arbitration proceedings in the present case continue, the respondents will suffer a legal injury, and then to determine whether the judge erred in exercising his discretion to grant an injunction protecting them from such injury.

First, the facts. The appellants are shipowners. The respondents are shipbuilders, and in August 1964 agreed to build five bulk carriers for the appellants. The contract was governed by German law but disputes were to be referred to arbitration in London. The contract included a guarantee clause whereby the respondents agreed to rectify defects appearing within 12 months of delivery. The last of the five ships was delivered on December 3, 1966. The last guarantee period, therefore, expired on December 3, 1967.

The appellants claim that very serious defects have appeared in the ships. The claim is resisted on the facts and in law, the principal legal defence being the contention that under German law the claim became time barred six months after the end of the guarantee period, i.e. on May 3, 1967.

I now take up the story in the words of the trial judge (ante, p. 925F-G):

[1981] A.C. 909 Page 996

“The arbitration proceedings in fact began in January 1972, over five years after the last vessel was delivered. Points of claim were served in April 1976, over 9 years after that delivery. These proceedings, which were begun a year later in April 1977 have only been heard in March 1979, over 12 years from the delivery of the last vessel and nearly 15 years from the time when the contract was concluded. Clearly some explanation is called for, not only from the parties, but also from the court.”

After a full investigation of the facts which included the correspondence between the parties’ solicitors he concluded (ante, p. 927G) “that the delay [by the appellants] in delivering the points of claim was both inordinate and inexcusable and, further, that no significant part of the delay was induced by the conduct of the [respondents].” He further found that the delay had caused the respondents serious prejudice in two ways: first, in the loss of witnesses by reason of death, retirement, or having left the respondents’ employment: and secondly, in the effect of the delay upon the ability of the respondents to collect the necessary evidence to ensure that justice is done. The learned judge concluded (ante, p. 928F-G): “I am satisfied that if the proceedings had been pursued by action, I should have dismissed them for want of prosecution.” The Court of Appeal concurred in his findings of fact and also accepted as relevant the analogy of litigation. The analogy is, of course, open to challenge in this House. But I do not think that the findings of fact can properly be challenged. Even if I were disposed to differ, which I am not, I would not disturb them. I accept, therefore, that the appellants have been guilty of delay which has made it impossible for the respondents to collect the evidence necessary to ensure that justice can be done at the hearing of the arbitration. I also accept that the respondents were not guilty of any acts which contributed to the delay: but I treat as open to decision by your Lordships’ House the question whether the respondents could and should, by seeking the directions of the arbitrator, have ended the delay before it became excessive and prejudicial.

The appellants’ case can be summarised in two sentences. No relevant comparison is to be made between litigation and arbitration. And, where parties agree to refer their dispute (or disputes) to arbitration, they mutually bind themselves by contract ta use the arbitration process to prevent the mischief of delay. Clearly the submission assumes the existence of effective powers in the arbitrator to overcome or prevent delay. It also raises a question as to the scope of the principle, which has been slowly gaining strength in English law ever since the enactment of the Common Law Procedure Act 1854 and has been dramatically extended by the Act of 1979, that, where the parties have agreed upon arbitration, they take it with all its faults.

My Lords, I will deal at once with the scope of this principle. Though it has been extended in the modern law, it is not of universal application. It has not yet achieved such supremacy as totally to oust the power of the High Court to remedy or prevent injustice in the arbitration process.

The principle yielded in the past to a measure of judicial control and review of the arbitration process: and this remains true of most arbitrations

[1981] A.C. 909 Page 997

even after the coming into force of the Act of 1979. This power of the court has been exercised in many ways: for example, review of awards (limited, changed, regulated, but not discarded by the new Act), removal of arbitrators where their impartiality, fitness, or competence is impugned, the grant of injunctions to restrain arbitration proceedings where the arbitrator has been shown to be unfit or incompetent. Such landmarks in the law as the Act of 1854, Scott v. Avery (1856) 5 H.L.Cas. 811, Beddow v. Beddow, 9 Ch.D. 89, where an injunction to restrain an arbitration was granted, Czarnikow v. Roth, Schmidt & Co[1922] 2 K.B. 478, and the Act of 1979 itself bear witness to the importance attached in the various branches of our arbitration law to a measure of judicial control and review. Though the jurisdiction of the courts may now be ousted in those international arbitrations where the new Act allows an exclusion agreement, it remains a vital, if no longer universal, principle of the law that the courts will act to prevent injustice arising in arbitration proceedings where it is necessary so to do.

I therefore agree with my noble and learned friend, Lord Fraser of Tullybelton, and with Lord Denning M.R. that the courts retain such a power save where excluded by statute and that parties to arbitration have a right to a fair arbitration. If the right can be protected within the arbitral process, as in most cases under the Act of 1979 it will be, the courts will not intervene; for neither justice nor convenience will require so drastic a step. If the right be excluded by statute, as well it may be under an exclusion agreement rendered lawful by the new Act, there will be no legal right for the court to protect.

What then is the nature of the right? In practice, I do not think it matters whether it be treated as one of natural justice which the courts in the exercise of a supervisory power will enforce, if need be, or as arising from an implied term of the arbitration contract. Whether the agreed process be a “look-sniff” commodity arbitration, or an award upon documents submitted without a hearing, or an award reached after a full-dress hearing with pleadings, discovery, and evidence, the right is fundamental. But since the question has arisen and differing answers have been given, I will state my view. The right does not depend upon contract, and cannot be excluded by contract, save where statute allows its exclusion, as it may be that the Act of 1979 does in certain cases (though I reserve my opinion on the point). The right arises from the judicial element inherent in the arbitration process which is a process for reaching a decision where parties have not themselves resolved their difference. Nevertheless in most cases, and this is such a case, the right is implicit in the contract, and, if infringed, may be enforced as a right given by the contract. And, with respect, I do not see the case of Reg. v. National Joint Council for the Craft of Dental Technicians (Disputes Committee) Ex parte Neate [1953] 1 Q.B. 704 as an authority inconsistent with such a supervisory power. In that case the Divisional Court, though holding that the prerogative writs (or orders) would not go to a private arbitrator, did not rule out the possibility of injunction (see Lord Goddard’s intervention at p. 206). Since, however, I accept the analysis which enabled the judges below to deal with this case as one of

[1981] A.C. 909 Page 998

contractual rights and duties, I say no more as to the general power of the High Court to prevent injustice in this field, save to express agreement with Lord Denning M.R. and my noble and learned friend, Lord Fraser of Tullybelton. The existence of such a power, associated as it is with the requirements of natural justice in any adversarial process, remains, subject to the statutory law regulating arbitrations, a powerful weapon for justice in the armoury of the law, even though the occasions for its use will be few and far between.

I turn now to consider the contractual position. Where parties agree to refer present or future differences to arbitration, they enter into a contract, an implied term of which is that each has a right to a fair arbitration. The implication arises necessarily from the nature and purpose of their agreement, which is to submit their dispute (or disputes) to the arbitrament of an independent and impartial arbitrator of their choice. I do not understand the appellants to challenge the existence of the term. Such a contract is often to be found as an arbitration clause in a commercial, industrial, or other type of contract. Where so found it is, in strict analysis, a separate contract, ancillary to the main contract: see Heyman v. Darwins Ltd[1942] A.C. 356. It follows that obstruction of the right will be a breach of contract and may be a repudiatory breach; and that frustration of the right, i.e. conduct of a party making the fair arbitration of a dispute impossible, will be a repudiatory breach at least of the agreement to refer that dispute to arbitration.

These general propositions were, as I understand their judgments, accepted by the judge and the Court of Appeal, notwithstanding that in the refinement of their reasons by way of response to the detailed arguments addressed to them by counsel they expressed themselves in different ways. After all, they were considering a specific case in which it was alleged that the claimant’s delay had made a fair arbitration impossible. It was natural therefore to formulate the term by reference to delay. But it matters not whether in the context of delay it be formulated as an obligation implicitly accepted by a party, if he finds himself the claimant in the proceedings, to use his best endeavours to move the arbitration along, which was the view of Donaldson J.: or whether it be formulated as a term imposing a duty upon parties not to be guilty of frustrating delay, as Roskill L.J. accepted: or whether there are mutual obligations, as Lord Denning M.R. thought, namely a duty upon the claimant to proceed with reasonable despatch and a duty upon the respondent not to baulk the claimant by devious manoeuvres. Cumming-Bruce L.J. found it possible to agree with the formulations of both Lord Denning M.R. and Roskill L.J. I think he was right to perceive and accept their basic consistency. In a contract of arbitration I accept that there are mutual obligations to be implied into the parties’ agreement not to obstruct or frustrate the purpose of the agreement, i.e. a fair arbitration to be conducted in accordance with the terms of their agreement.

Unless, therefore, the breach is by the terms of the parties’ contract itself to be referred to arbitration, a remedy for its breach may be sought in the courts. In the case of a non-repudiatory breach this will depend upon the true construction of the arbitration clause. But if, as is alleged

[1981] A.C. 909 Page 999

in the present case, the breach consists of a frustrating delay, it discharges the aggrieved party from further performance of his agreement to refer. If he chooses then to sue in the courts, he will be able to show the infringement of a legal right entitling him to damages: and, if he can show that the defendant is persisting in a course of action, i.e. proceeding with the arbitration, which is a continuing infringement of the right, the court may grant him an injunction restraining the claimant from pursuing this course of conduct, if it thinks it just and convenient so to do. The injunction will be issued to avert legal injury and to protect a legal right.

My Lords, I believe these propositions constitute the basis of principle upon which the present case is to be decided. As I understand it, this was the view of the very experienced judges below. And I would add that, on their findings, justice and convenience would appear to require that the respondents, their contractual right having been infringed, be granted the injunction if they are to be protected from the harassment of a vexatious, expensive, time-consuming, and futile arbitration.

But, before reaching a conclusion, the formidable submissions of the appellants have to be considered. The first is that no relevant comparison is to be made between litigation and arbitration. It was argued, and, as I understand it, a majority of your Lordships accept, that the analogy is misleading. Litigation, it is submitted, is a compulsory process available as of right to anyone who issues a writ: it is not to be compared with the process of arbitration, which arises from consent and is conducted according to terms agreed, expressly or impliedly by the parties. Arbitration is, of course, subject to a measure of statutory control: but this control in no way detracts from the essentially contractual nature of arbitration. My Lords, all this is true. But arbitration, while consensual, is also an adversarial process. There is a dispute, the parties having failed to settle their difference by negotiation. Though they choose a tribunal, agree its procedure and agree to accept its award as final, the process is adversarial. Embedded in the adversarial process is a right that each party shall have a fair hearing, that each should have a fair opportunity of presenting and developing his case. In this respect, there is a comparability between litigation and arbitration. In each delay can mean justice denied. And the analogy is not falsified because of the wide variation of types of arbitration. Whether the arbitration be “look-sniff” or a full-scale hearing with counsel and solicitors, the right to a fair arbitration remains. An unfair arbitral process makes no sense either in law or in fact. It is a contradiction which it is inconceivable that the law would tolerate or the parties select.

But the analogy must not be taken too far. It does not follow that, because a court may protect a party from abuse of its own process in a lawsuit, it has the same power in connection with arbitration proceedings. I do not understand the judges below to have fallen into this trap. They used the analogy not to introduce the decision of Allen v. Sir Alfred McAlpine & Sons Ltd[1968] 2 Q.B. 229 into the law of arbitration but as a strong indication that arbitrators or the court (or, as Donaldson J. was disposed to hold, both) have a power to prevent injustice arising from a party’s delays in the proceedings. Though

[1981] A.C. 909 Page 1000

arbitration is consensual and litigation compulsory in so far as the respondent (or defendant) is concerned, both are judicial processes of an adversarial character. The analogy, taken thus far, is therefore helpful: and I reject the submission that the judges erred in making use of it for the purpose of showing the need for such a power to reside either in the arbitrator or the court.

I pass now to the most powerful submission made by the appellants – that the respondents should have sought to prevent delay by applying to the arbitrator for directions. The judges below considered very carefully the pre-1979 powers of an arbitrator to deal with delay, and concluded that, though he could exercise influence, he had no sanction other than to make a final award on the merits of the dispute. I respectfully adopt the analysis of the law on this point to be found in the judgment of Roskill L.J. Like him, I attach importance to paragraph 57 of the Report of the Commercial Court Committee on Arbitration (1978) (Cmnd. 7284) as correct description of the mischief which section 5 of the Act of 1979 was enacted to remove. I think, therefore, that the judge and the Court of Appeal were justified in their conclusion that, the arbitrator having in the circumstances no effective power to protect the respondents from the legal injury of an unfair arbitration, the mere fact of his appointment did not exclude the power of the court.

But the point remains that the respondents, pursuant to section 12 (1) of the Arbitration Act 1950, could have applied to the arbitrator for directions, and that an order by him for the delivery of points of claim within a time limit, though backed by no sanction, might have galvanised the appellants into action before their dilatoriness had caused the respondents serious prejudice. This is, I think, the most formidable argument available to the appellants. I reject it because of the adversarial nature of the arbitration process. I accept that parties to an agreement to refer may expressly agree that each, whether he be claimant or respondent, will use his best endeavours, by application to the arbitrator or otherwise, to move the arbitration along. But in the absence of express agreement to do so it can hardly be said that a party who finds himself a respondent in an adversarial process has implicitly agreed to move along the claim being made against him. Certainly a term might well be implied – as suggested by Lord Denning M.R. – that, if a party to the agreement finds himself respondent to a claim, he will not by devious manoeuvres seek to baulk the claim: but no more.

I reject, therefore, the appellants’ submissions. The respondents have been denied by the appellants’s delay be viewed as a denial of natural justice can be done. Whether the denial be viewed as a denial of natural justice or a fundamental breach of contract, it constitutes a legal injury from which the court may grant relief by injunction to restrain the appellants from proceeding with the arbitration. I would, therefore, dismiss the appeal. In doing so, I wish at the same time to express my concurrence with the speech delivered by my noble and learned friend, Lord Fraser of Tullybelton.

As I understand that the majority of your Lordships take a different view, it is incumbent upon me to express an opinion on the respondents’

[1981] A.C. 909 Page 1001

cross-appeal. Under the law as it was before the Act of 1979 I can find no justification for the view that an arbitrator had power to dismiss an arbitration for want of prosecution. His power was limited to making an award upon the merits. The nearest he could get to a dismissal on grounds of delay would have been to fix a day for hearing and make an award upon the merits based upon whatever evidential material was then available to him. I agree with Roskill L.J. on this point and do not think it necessary to elaborate further my reasons. I would dismiss the cross-appeal.

Solicitors: Richards, Butler & Co.; Norton Rose Botterell & Roche.

F. C.

[Damages – Loss of Opportunity – Remoteness] Chaplin v Hicks

Where by contract a man has a right to belong to a limited class of competitors for a prize, a breach of that contract by reason of which he is prevented from continuing a member of the class and is thereby deprived of all chance of obtaining the prize is a breach in respect of which he may be entitled to recover substantial, and not merely nominal, damages.

The existence of a contingency which is dependent on the volition of a third person does not necessarily render the damages for a breach of contract incapable of assessment.

Richardson v. Mellish, (1824) 2 Bing. 229, and Watson v. Ambergate, &c., Railway, (1850) 15 Jur. 448, discussed.

APPLICATION of the defendant for judgment or a new trial in an action tried by Pickford J. and a common jury.

On November 5, 1908, a letter from the defendant, a well-known actor and theatrical manager, was published in a London daily newspaper, in which he said that, with a view of dealing at once with the numerous applications continually being made to him by young ladies desirous of obtaining engagements as actresses, he was willing that the readers of that newspaper should by their votes select twelve ladies, to whom he would give engagements. On the four following days the offer was published in detail in the newspaper. Ladies were invited to

[1911] 2 K.B. 786 Page 787

send their photographs to the newspaper by November 24, 1908, together with an application form, in which they were to insert name, address, and general personal description. The defendant, with the assistance of a committee, would then select twenty-four photographs to be published in the newspaper, and the readers of the newspaper would out of those select the twelve winners, to the first four of whom the defendant would give an engagement for three years at 5l. a week, to the second four an engagement for three years at 4l. a week, and to the third four an engagement for three years at 3l. a week. On November 10 the plaintiff sent in a signed application together with her photograph. The response to the defendant’s offer was so great that in the issue of December 9 an alteration of the conditions of the competition was announced. It was stated that about six thousand photographs had been sent in, and that from these the defendant or his committee had selected about three hundred, which would be published in the newspaper in the following way: the United Kingdom would be divided into ten districts, and the photographs of the selected candidates in each district would be submitted to the readers of the newspaper in that district, who were to select by their votes those whom they considered the most beautiful. After the voting was completed the defendant would make an appointment to see the five ladies in each district whose photographs so published obtained the greatest number of votes, and from these fifty the defendant would himself select the twelve who would receive the promised engagements. The plaintiff assented to the alteration in the terms of the competition. The fifty photographs were then published with numbers appended to them in the newspaper, together with a ballot paper on which the reader of the newspaper registered his vote for the particular number which he preferred, and added his signature and address. On January 2, 1909, the poll closed; the plaintiff’s name appeared as first in her particular section, and she became one of the fifty eligible for selection by the defendant. On January 4 the defendant’s secretary wrote a letter to the plaintiff asking her to call at the Aldwych Theatre at 4 o’clock on Wednesday afternoon [January 6] to see the defendant. This letter was addressed to

[1911] 2 K.B. 786 Page 788

the plaintiff’s London address, which was the only address given by the plaintiff in her application, and was delivered there by the first post on January 5. The plaintiff was at that time fulfilling an engagement at Dundee; the letter was at once re-addressed to Dundee, where it reached the plaintiff on January 6, much too late for her to keep an appointment in London on that afternoon. The other forty-nine ladies kept their appointments, and on January 6 the defendant made his final selection of the twelve, of whom the plaintiff was not one. The plaintiff made attempts, but unsuccessfully, to obtain another appointment with the defendant, and eventually brought the present action to recover damages on the ground that by reason of the defendant’s breach of contract she had lost the chance of selection for an engagement. The jury found, in answer to a question put to them by the learned judge, that the defendant did not take reasonable means to give the plaintiff an opportunity of presenting herself for selection, and assessed the damages at 100l., for which sum Pickford J., after argument, directed judgment to be entered. The defendant appealed.



McCardie (A. R. Churchill with him), for the defendant. Assuming a breach of contract, the plaintiff is not entitled to substantial damages, but to nominal damages only. Either the damages do not flow directly from the breach and are too remote, or they are so contingent as to be incapable of assessment. The question has been discussed in actions against carriers for damages for loss or delay in the carriage of goods. In Watson v. Ambergate, &c., Railway (1), which was decided at a time when the rule as to notice of the purpose for which the goods were required affecting the damages for their loss had not been authoritatively formulated, the question arose of the damages recoverable for the loss of a plan and model of a machine for loading colliers from barges, the plan and model being intended to be used in a competition for prizes; the Court seems to have decided that the measure of damages for loss of the plan and model was the value of the plan and model, and that the loss of the chance of obtaining the prize was not

FLETCHER MOULTON L.J. I have come to the same conclusion. The contract was made when the plaintiff, in answer to the defendant’s announcement, sent up her photograph as one to be submitted to the committee by whom the selection was to be made. About six thousand photographs in all were sent in, and three hundred, of which the plaintiff’s was one, were selected; these appear to have been voted upon by the readers of the newspaper, and the plaintiff was the first of the group or district to which, for the purposes of the competition, she belonged; by the conditions of the offer fifty altogether were in the end to come before the defendant, and twelve appointments were to be given to twelve members of that body of fifty. The jury have found that the defendant did not keep his engagement with the plaintiff; she was afforded no reasonable opportunity of submitting herself to the judgment of the tribunal that awarded the prizes, but was excluded from the limited competition for which by the terms of the contract she had become eligible and had therefore no chance of winning a prize.

Mr. McCardie does not deny that there is a contract, nor that its terms are as the plaintiff alleges them to be, nor that it is enforceable, but he contends that the plaintiff can only recover nominal damages, say one shilling. To start with, he puts it thus: where the expectation of the plaintiff depends on a

[1911] 2 K.B. 786 Page 794

contingency, only nominal damages are recoverable. Upon examination, this principle is obviously much too wide; everything that can happen in the future depends on a contingency, and such a principle would deprive a plaintiff of anything beyond nominal damages for a breach of contract where the damages could not be assessed with mathematical accuracy. The learned counsel admitted that it was very difficult to formulate his proposition, but he ultimately said that where the volition of another comes between the competitor and what he hopes to get under the contract, no damages can, as matter of law, be given. I can find no authority for that proposition; in fact, the decision in Richardson v. Mellish (1) is obviously in the teeth of it. I do not rely, however, on that or on any other authority; I would rather consider what is the right of a plaintiff as regards damages for breach of a contract, and regarding it as a matter of broad general principle, I do not think that any such distinction as that suggested by Mr. McCardie can be drawn. The Common Law Courts never enforced contracts specifically, as was done in equity; if a contract was broken, the common law held that an adequate solatium was to be found in a pecuniary sum, that is, in the damages assessed by a jury. But there is no other universal principle as to the amount of damages than that it is the aim of the law to ensure that a person whose contract has been broken shall be placed as near as possible in the same position as if it had not. The assessment is sometimes a matter of great difficulty. It is impossible in many cases to regard the damage that has followed the breach as that for which the plaintiff is to be compensated, for the injury to the plaintiff may depend on matters which have nothing to do with the defendant. For example, an innkeeper furnishes a chaise to a son to drive to see his dying father; the chaise breaks down; the son arrives too late to see his father, who has cut him out of his will in his disappointment at his not coming to see him; in such a case it is obvious that the actual damage to the plaintiff has nothing to do with the contract to supply the chaise. Therefore at an early stage the limitation was imposed that damages for breach of a contract must be such as might naturally

  • Footnote (1)     2 Bing. 229.
[1911] 2 K.B. 786 Page 795

be supposed to be in the contemplation of the parties at the time the contract was entered into; damages, in order to be recoverable, must be such as arise out of the contract and are not extraneous to it. This limitation has been appealed to here. It has been contended in the present case that the damages are too remote; that they are not the natural consequences of a breach with regard to which the parties intended to contract. To my mind the contention that they are too remote is unsustainable. The very object and scope of the contract were to give the plaintiff the chance of being selected as a prize-winner, and the refusal of that chance is the breach of contract complained of and in respect of which damages are claimed as compensation for the exclusion of the plaintiff from the limited class of competitors. In my judgment nothing more directly flowing from the contract and the intentions of the parties can well be found.

Then the learned counsel takes up a more hopeful position. He says that the damages are difficult to assess, because it is impossible to say that the plaintiff would have obtained any prize. This is the only point of importance left for our consideration. Is expulsion from a limited class of competitors an injury? To my mind there can be only one answer to that question; it is an injury and may be a very substantial one. Therefore the plaintiff starts with an unchallengeable case of injury, and the damages given in respect of it should be equivalent to the loss. But it is said that the damages cannot be arrived at because it is impossible to estimate the quantum of the reasonable probability of the plaintiff’s being a prize-winner. I think that, where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case. There are no doubt well-settled rules as to the measure of damages in certain cases, but such accepted rules are only applicable where the breach is one that frequently occurs. In such cases the Court weighs the pros and cons and gives advice, and I may almost say directions, to the jury as regards the measure of damages. This is especially the case in actions relating to the sale of goods of a class for which there is an active

[1911] 2 K.B. 786 Page 796

and ready market. But in most cases it may be said that there is no recognized measure of damages, and that the jury must give what they think to be an adequate solatium under all the circumstances of the case. Is there any such rule as that, where the result of a contract depends on the volition of an independent party, the law shuts its eyes to the wrong and says that there are no damages? Such a rule, if it existed, would work great wrong. Let us take the case of a man under a contract of service to serve as a second-class clerk for five years at a salary of 200l. a year, which expressly provides that, at the end of that period, out of every five second-class clerks two first-class clerks will be chosen at a salary of 500l. a year. If such a clause is embodied in the contract, it is clear that a person thinking of applying for the position would reckon that he would have the advantage of being one of five persons from whom the two first-class clerks must be chosen, and that that might be a very substantial portion of the consideration for his appointment. If, after he has taken the post and worked under the contract of service, the employers repudiate the obligation, is he to have no remedy? He has sustained a very real loss, and there can be no possible reason why the law should not leave it to the jury to estimate the value of that of which he has been deprived. Where by contract a man has a right to belong to a limited class of competitors, he is possessed of something of value, and it is the duty of the jury to estimate the pecuniary value of that advantage if it is taken from him. The present case is a typical one. From a body of six thousand, who sent in their photographs, a smaller body of fifty was formed, of which the plaintiff was one, and among that smaller body twelve prizes were allotted for distribution; by reason of the defendant’s breach of contract she has lost all the advantage of being in the limited competition, and she is entitled to have her loss estimated. I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury. They must of course give effect to the consideration that the plaintiff’s chance is only one out of four and that they cannot tell whether she would have ultimately proved to be the winner. But having considered all this they may well think that

[1911] 2 K.B. 786 Page 797

it is of considerable pecuniary value to have got into so small a class, and they must assess the damages accordingly.

This consideration decides the case, but I wish to refer to the decision of Jelf J. in Sapwell v. Bass. (1) That decision was, in my opinion, right on the facts of the particular case. The plaintiff had acquired by contract a right to send a mare during the following year to a renowned stallion belonging to the defendant, and the defendant broke his contract. The right to send the mare was coupled with the payment of a fee of 300 guineas. Jelf J. held that for the breach of contract the plaintiff was only entitled to nominal damages. The ground of the decision was that there was no evidence to shew that the right was worth more to the plaintiff than the 300 guineas which he would have had to pay for the services of the stallion, and that there was therefore no evidence that the damages were more than nominal. If, however, the learned judge meant to hold that there were no damages for breach of an undertaking to serve the mare, there is, in my opinion, no justification for such a view. The contract gave the plaintiff a right of considerable value, one for which many people would give money; therefore to hold that the plaintiff was entitled to no damages for being deprived of such a right because the final result depended on a contingency or chance would have been a misdirection. This appeal must be dismissed.

FARWELL L.J. I agree. The fallacy of Mr. McCardie’s argument consists, in my opinion, in his failing to distinguish between the remoteness of the damage claimed and its assessment; the question of remoteness is for the judge; the assessment of damages is for the jury. I agree in thinking that the contention that the damages in the present case are too remote is unarguable; the case could not have been withdrawn from the jury, for damage might result not only from the loss of the opportunity of winning a prize but also from the slur upon the plaintiff in her professional capacity, which might result in a diminution of the value of her services as an actress when she applied for an engagement. In Maw v. Jones (2), which raised

[1911] 2 K.B. 786 Page 798

the question of the measure of damages in an action for the wrongful dismissal of an apprentice, Lord Coleridge C.J. said: “The plaintiff was entitled to recover for all the damage flowing naturally from the breach, and in considering what that would include the jury might take into account the difficulty that the plaintiff as a discharged apprentice would have in obtaining employment elsewhere.” The jury may well have considered the difficulty which the plaintiff, after being passed over in this fashion by the defendant, would have in obtaining as good an appointment as before. I think, therefore, that the question of remoteness of damage does not arise here.

Then comes the question as to the ascertainment of the amount. In actions for unliquidated damages this is ordinarily for the jury, and to my mind it is not correct to say that the present is an exceptional case. It is contended that the amount of the plaintiff’s loss is so entirely a matter of pure chance as to be incapable of assessment. I cannot for this purpose draw any distinction between a chance and a probability. In the Oxford English Dictionary one of the definitions of “chance” is “a possibility or probability of anything happening, as distinct from a certainty,” and a citation is given from Reid’s Intellectual Powers, “The doctrine of chances is a branch of mathematics little more than an hundred years old.” The two words “chance” and “probability” may be treated as being practically interchangeable, though it may be that the one is somewhat less definite than the other. The necessary ingredients of such an action are all present; the defendant has committed a breach of his contract, the damages claimed are a reasonable and probable consequence of that breach, and loss has accrued to the plaintiff at the time of action. It is obvious, of course, that the chance or probability may in a given case be so slender that a jury could not properly give more than nominal damages, say one shilling; if they had done so in the present case, it would have been entirely a question for them, and this Court could not have interfered. But in the present competition we find chance upon chance, two of which the plaintiff had succeeded in passing; from being one of six thousand she had become a member of a class of fifty, and, as I understand it, was first in her particular division by the votes

[1911] 2 K.B. 786 Page 799

of readers of the paper; out of those fifty there were to be selected twelve prize-winners; it is obvious that her chances were then far greater and more easily assessable than when she was only one of the original six thousand. If the plaintiff had never been selected at all, the case would have been very different; but that was not the case. In my opinion the existence of a contingency, which is dependent on the volition of a third person, is not enough to justify us in saying that the damages are incapable of assessment. The case of Richardson v. Mellish (1) affords a very good illustration on this point. There the question was raised whether in an action for breach of contract the jury could give damages for the loss of two voyages as captain of an East Indiaman, though the second had not been accomplished at the time of action, and in his judgment Best C.J. said (2): “It is clear that the plaintiff could only be appointed for one voyage, for the appointment of master is renewed every voyage. But though that is the case, may not parties look to that which is the practice of the East India Company, that though they renew the appointment, they renew it in the same person? If that practice be legal, may I not say, if you had appointed me for the first voyage, I should have continued for the second? You have deprived me of the profits I should have made not only on the first voyage, but on the second also. It requires no legal head to decide this: common sense says, you are not to be paid for consequences which might not turn up in your favour; but the plaintiff is entitled to have a compensation for being deprived of that which almost to a certainty happens in these cases.” Now, the expression “almost to a certainty” means that the contemplated event is very probable, and the fact that it is very probable only increases the amount of damages which a jury would give. It is obvious that if the East India Company were in the habit of appointing the same man master for the next voyage, the chance of appointment of the plaintiff in that case was a very good one, and the jury assessed the damages accordingly. It is clear upon the authorities that damage resulting from the loss of a chance of winning in a competition is assessable. In

  • Footnote (1)     2 Bing. 229.
  • Footnote (2)     2 Bing. at p. 239.
[1911] 2 K.B. 786 Page 800

Ex parte Waters, In re Hoyle (1), Mellish L.J. said: “It is difficult to imagine any kind of contract (I speak of business contracts) in respect of which, if broken before, or put an end to by, the bankruptcy, a jury could not point out a fair way of estimating the damages under the direction of the judge.” I agree with Mr. McCardie that the principles on which the Bankruptcy Court acts are wider and more extensive than those applicable to cases of mere breach of contract, for the effect of bankruptcy proceedings is to make a clean sweep of contractual relations; but it makes no difference whether the proceedings are taken for closing a bankrupt’s estate or for payment of compensation to a plaintiff who has been injured by breach of a contract. I see no difficulty in the assessment of damage in the present case. It was a question for the jury, and, that being so, this Court is not entitled to interfere with their finding. The case of Watson v. Ambergate, &c., Railway(2) affords us no assistance at all. That decision is discussed by the learned author of Sedgwick on Damages (3), who says: “The question of damages was not necessarily involved in this decision. In a similar case in Pennsylvania, the opinion expressed in it was disapproved, the Court holding that the value of the opportunity to compete for the premium furnished the measure of the plaintiff’s damages. If the company were informed of the object of the transmission, the loss of the privilege of the competition was in view of both parties when they entered into the contract; and if not, the loss was still the result of the carrier’s negligent breach. But it appearing from the evidence of one of the committee by whom the prizes were awarded, that the plaintiff must at any rate have failed to obtain the prize, he was held entitled to nominal damages only: Adams Express Co. v. Egbert. (4)” To a great extent that expresses my own view; where a railway company has no notice of the special purpose for which goods are to be carried, it is not possible to hold them liable for the special damages resulting from their loss. I need only refer shortly to Sapwell v. Bass. (5) In that case there was no jury, and Jelf J., exercising the

  • Footnote (1)     (1873) L. R. 8 Ch. 562, at p. 567.
  • Footnote (2)     15 Jur. 448.
  • Footnote (3)     7th ed., i. 128.
  • Footnote (4)     (1860) 36 Pa. 360.
  • Footnote (5)     [1910] 2 K. B. 486.
[1911] 2 K.B. 786 Page 801

functions of a jury, did not see his way towards assessing the damages at a larger sum than one shilling; if there had been a jury, and the learned judge had withdrawn the case from them on the question of the amount of damages, I think he would have been wrong. And in the present case, if the jury had given only a shilling, we could not have interfered. I agree that the appeal must be dismissed.

Solicitors for plaintiff: Chas. Anderson & Co.

Solicitors for defendant: J. D. Langton & Passmore.

W. J. B.

R. v Brown (Mark Andrew) [Sentencing – CSO]

*294 R. v Mark Andrew Brown

Court of Appeal

22 October 1981

(1981) 3 Cr. App. R. (S.) 294

The Lord Chief Justice, Mr. Justice Mustill and Mr. Justice McCullough

October 22, 1981

Burglary—Burglary of Factory by Young Man of Previous Good Character—Whether Community Service Order Appropriate.

References: community service orders, Principles of Sentencing , p. 237.

Commentary: [1982] Crim. L.R. 126.

Borstal training varied to allow the immediate release of an appellant aged 19 who was concerned in a burglary at the premises of his employers. Observations on the suitability of community service orders in such cases.

The appellant, aged 19 and with no previous convictions, pleaded guilty to burglary. He had taken part in a burglary at the premises of his employer, allowing his keys to be used to unlock padlocks securing the door of the stock room. Goods worth a total of about £2,850 were stolen. His co-defendant, an older man with a substantial record, was sentenced to 12 months’ imprisonment. The appellant was sentenced to Borstal training. Held but for the availability of community service orders, a custodial sentence would have been entirely appropriate, having regard to the breach of trust, but the case was tailor made for community service. The appellant was a first offender (although the position would have been the same if he had had a “light” criminal record), he came from a stable home background, with a wife and young child, had a good work record and had a job available. There was apparently genuine remorse and the risk of re-offending was slight. If the court were to sentence the appellant de now , it would make a community service order, but as he had been in custody for three months the sentence would be varied to imprisonment for one day.

C. Jervis for the appellant.

McCullough J.:

On July 30, 1981 at the Crown Court at Bristol, the appellant pleaded guilty to one offence of burglary and was ordered to undergo Borstal training.

He appeals against sentence with the leave of the single judge.

He is 19, without any other convictions. He is a married man who was at the time living with his wife and their young child. At the time of this offence he was only 18, and he was working for Wonderfire Ltd. of Bristol. They make gas fires. In that capacity he was entrusted with the keys of the padlocks of the main stock room.

On the date in question he and his brother-in-law, a man called Blake, then aged 21, with a dreadful criminal record, burgled the premises together, the appellant’s keys being used to unlock the padlocks and the padlocks then being thrown away, so that it would not appear that they had not been broken. Nineteen gas fires were taken, worth very nearly £150 each.

It was intended to sell them. He and Blake together visited a man called Briggs to *295 whom a number of fires were delivered. Although the appellant was present at that time, it appears that he did not take part in the arrangements made for the selling. Three fires were later recovered from Briggs and a further six or seven from Blake. The remaining fires are missing.

The appellant was arrested two or three weeks after the burglary. He admitted his part. He said that he had hoped to settle certain debts out of his share of the proceeds from the sale of these fires.

The other two also pleaded guilty. Blake was by then 22. He had 13 previous court appearances, the last for theft having been as recently as three months before this offence. He had been to Borstal, he had served one term of imprisonment, he was in breach of a suspended sentence and of a community service order. He was sent to prison for 12 months. Briggs was 27. He had 12 previous court appearances, including one resulting in a term of imprisonment, his last appearance being only five days before this particular offence when a community service order had been made following a conviction for theft.

In the starkest contrast was the appellant. He was 19, younger than the others, and without any previous conviction at all. He was married and, as I have said, living with his wife and young child. He was in employment with Wonderfire until the occasion of his arrest for this offence. It is impossible, reading the papers, to resist the conclusion that he would never have offended but for the influence of Blake.

Mr. Jervis, who has appeared for him today, as he did in the court below, accepts that the order of Borstal training was appropriate in the light of the information then available to the Crown Court, particularly having regard to the fact that this was a case of a serious breach of the trust that his employers had placed in him. However he draws our attention to a letter from the employers, written after this young man had arrived in Borstal. It says amongst other things, “… we were more than surprised to learn that you were involved in the robbery …. We all thought of you as the best worker in the factory, apart from your manager …. Should your appeal be successful, then we would seriously consider any application that you might make to take on your old job for this Winter.” The letter ends with the words “I do hope that your appeal is successful.”

In the light of that letter, which of course was not available at the Crown Court, we have looked at all these mitigating factors again. We have come to the conclusion that, but for the availability nowadays of orders for community service, a custodial sentence is entirely appropriate, having regard to the breach of trust. But this case is tailor-made for a community service order. We have here a first offender—indeed the position would have been the same if he had had what I might call a “light” criminal record; he came from a stable home background with a wife and a young child; he had a good work record; and it now appears that a job is available to him. There is apparently genuine remorse and the risk of re-offending appears slight.

Taking all those factors together, were we sentencing this man de novo, we would make a community service order. But the appellant has been in Borstal for the past three months. We think that that is enough. We are not therefore going to make a community service order. We have to pass a sentence of some sort. We cannot very well pass a sentence of such a term of imprisonment as will enable his immediate release, because that would offend against the provision which prohibits the imprisonment of offenders of his age if some other method of dealing with them is appropriate. Accordingly we propose, having quashed the order for Borstal training, to substitute the nominal order that he be imprisoned for one day. To that extent the appeal is allowed.

R v Sargeant [Sentencing]

R. v James Henry Sargeant

Court of Appeal

17 October 1974

(1974) 60 Cr. App. R. 74

Lord Justice Lawton, Lord Justice Scarman and Mr. Justice Dunn

October 10 and 17, 1974

Sentence—General Aspects of Punishment—How Far Applicable at Present Time.

Evidence—Antecedents of Defendant—Appropriate Manner of Giving—Matters Disputed by Defence.

Observations on the general aspects of punishment—retribution, deterrence, prevention and re-habilitation and how far they are relevant to the present day.

Great care should be taken in giving to the trial judge the antecedents of a convicted person, and the practice laid down in Van Pelz (1942) 29 Cr. App. R. 10 should be followed. Defending counsel should read the police report of the antecedents beforehand and, if there is anything in it which *75 is disputed by the defendant, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel must then decide whether to call admissible evidence to prove the disputed facts or prevent the police officer from giving evidence about the disputed matters.

Van Pelz (1942) 29 Cr. App. R. 10 and Robinson (1969) 53 Cr. App. R. 314 followed.

Appeal against sentence.

The appellant pleaded guilty at the Central Criminal Court on May 20, 1974, to affray and was sentenced by His Honour Judge Argyle Q.C. to two years’ imprisonment.

H. M. Boyd for the appellant. No counsel appeared for the Crown.

Lawton L.J.:

On May 20, 1974, at the Central Criminal Court, the appellant pleaded guilty to a charge of affray at the end of the prosecution’s case. On May 24, 1974, he was sentenced by His Honour Judge Argyle to two years’ imprisonment. He now appeals against that sentence by leave of the single judge, who asked for an up-to-date Social Enquiry report to be prepared. He also asked the prison authorities to report how this appellant had reacted to his sentence.

During the evening of October 26, 1973, the appellant was on duty at a discotheque at Crown Hill at Croydon, together with three other doormen. Their job in colloquial language was to act as “bouncers.” The appellant had no criminal record. The other bouncers had. One of them had a bad criminal record. There was another man on the staff of this discotheque who was taking part in what the prosecution alleged was the affray. He too had a bad criminal record.

The duties of the bouncers were to see that people did not get into the discotheque without paying and to maintain order inside. They must have had a difficult job. When this offence was committed, which was about midnight on October 26, 1973, there were no less than 700 people there. The discotheque was licensed and there was more than one bar. These bars were open up to the ordinary licensing hours. But by taking advantage of certain provisions in the Licensing Acts, the proprietors of that discotheque were able to go on serving liquor after the end of ordinary licensing hours by having a so called “waitress service.” The result of that way of running the discotheque was to make it a magnet for young men in the Croydon area, who had been drinking in public houses and who wished to go on drinking after the public houses closed.

A party of young men had been drinking in a public house in the Carshalton area. They were respectable young men as far as is known. By the time when this public house closed, a few of them had had more to drink than they should have done. They decided, as young men are wont to do, to continue their drinking at this discotheque in Croydon. They went there, some in a mini-bus which had been laid on for the purpose, and others in their own motor vehicles.

When they got to the discotheque, they went up to one of the bars. By this time there was waitress service in the bar. This inevitably meant that there was some delay in people getting served with drinks. Some of the young men there became impatient. One of the young men who had come in the party from Carshalton started behaving badly. Perfectly properly one of the bouncers told him to stop it, otherwise he would be put out. He did stop.

The appellant had been nearby whilst this young man had been making a nuisance of himself. The appellant seemed to think that the situation called for some physical intervention on his part. He went up to this young man, *76 caught him round the neck, and then butted him two or three times. There was no need for this intervention, still less for the violence. The inevitable happened. The group of young men from Carshalton, seeing their friend being treated in this way, intervened. Thereupon the other bouncers joined in. There followed a scene of extreme violence. Very serious injuries indeed were inflicted on some of these young men, and it is clear that somebody, but not this appellant, used weapons upon the young men. Fortunately perhaps for this appellant, he was quickly put out of action by somebody’s foot coming into contact with his testicles. The evidence would indicate that the injury which he sustained, if not serious, was painful.

As a result of this affray, the police arrived on the scene. At first they did not appreciate that the bouncers had been involved to the extent to which they had been. The young men were taken to hospital to be treated for their injuries. In due course the police decided that the bouncers had to be interviewed. They were taken to the police station. It is to this appellant’s credit that, almost as soon as he arrived there, he made a frank and accurate statement to the police as to what his part had been. By this time he was clearly sorry for what he had done. He told the police that he appreciated that he had over-reacted to the situation, and had used more force than was necessary. Very properly the bouncers were charged with affray and sent for trial.

At the trial this appellant and another bouncer, whose name was Trestain, pleaded guilty. The other bouncers were acquitted. We have been informed this morning by counsel that yet another employee, who was involved but who was not arrested at the time, has since been arrested and committed for trial. The man Trestain was sentenced by Judge Argyle to three years’ imprisonment. He has not appealed, and it is not for us to make any comment of any kind about the sentence which was passed on him. We are concerned solely with the sentenced passed on this appellant.

As I said at the beginning of this judgment, this appellant has had no previous convictions. He is 26 years of age, and a skilled green-keeper in the golfing world. He started acting as an assistant green-keeper in his adolescence. He has acquired a good deal of expertise. He has had jobs as green-keeper with a number of distinguished and well-known golf clubs. The tragedy of his case is that the very day on which he appeared at the Central Criminal Court he should have been starting work as head green-keeper with one of the best known golf clubs in the south of England. His conviction has inevitably meant that that job is no longer available to him, and it also means that there is a strong possibility that no golf club will ever employ him again. By his stupidity on this occasion, he has deprived himself of a career in the golfing world, and all because he lost his temper when trouble started. The very fact that he has lost his career is of course a severe penalty for him.

The problem for this Court is whether the sentence was wrong in principle. It is necessary for this Court to analyse the facts of this case. We have come to the conclusion that, if the trial judge did analyse them, he analysed them incorrectly. What really was the case against this appellant? His job was to help to keep order. He was inexperienced in that job. It is clear from his record that he is inclined to be headstrong. I say that, because despite his skill as a green-keeper, he has had some difficulty in keeping jobs, because he cannot always see eye to eye with golf clubs’ secretaries. He had had something to drink whilst he was on duty that night, though there was nothing to suggest that he had had too much to drink. If he had followed the instructions of his employers, he would not have had anything to drink. He was faced with a situation in which a young man had been misbehaving. He took the view, wrongly with hindsight, that the best way of dealing with the potential difficulties which *77 that young man might cause, if he resumed misbehaving, was to use some force on him. He used no weapon. What he did do was to butt the young man, which can be very painful for the victim. If he had thought for a moment, he would have appreciated the nature and extent of the chain of events which he was starting. It is almost certain that he did not think. Young men who act in this kind of physical way seldom do think of what the consequences are going to be. The evidence establishes that very soon after he did what he did he was put out of action and took no further part in the appalling violence which followed.

What ought the proper penalty to be? We have thought it necessary not only to analyse the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.

I will start with retribution. The Old Testament concept of an eye for an eye and tooth for tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the criminal scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for doing so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences.

But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.

I turn now to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not learn that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of the courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, robbers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case.

We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor *78 rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence.

Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.

In the light of that analysis of the classical principles to be applied in sentencing, what is the result on the facts of this case? The answer is that this sentence is much too long. It was submitted that a suspended sentence should have been passed. For the reasons I have already given, we do not agree. But we are satisfied, having regard to the facts of this case and the social inquiry and prison reports which the Court has been given that we can deal with this case by substituting for the sentence which was passed such a sentence as will enable him to be discharged today. To that extent the appeal is allowed.

The case was adjourned for re-hearing on October 17, 1974.

The appellant was not represented. Leonard Gerber for the Crown.

Lawton L.J.: When the appeal of James Henry Sargeant was before the Court last week our attention was drawn to the fact that Detective Inspector Ingram, as he then was (he has since retired from the Metropolitan Police) at the trial had given evidence about Sargeant in these terms: “Q. And do you understand that apart from employment at Scamps, his last employment was as a head greenkeeper? A. Yes, Sir. Q. Which terminated on August 31 of last year, he being dismissed for drunkenness? A. Yes, Sir.”

Counsel defending Sargeant had instructions that that was not true. As a result he cross-examined the Inspector as follows: “Q. My instructions also are that he left his last greenkeeping job having given in his notice, and not for the reason given in your report, but I believe your source of information is the Club Secretary? A. The Club Secretary, Sir.” The inference which the Court draws from the form of defending counsel’s question is that before the Inspector gave the evidence to which I have referred there had been some discussion either between counsel and the Inspector or between defending counsel and prosecuting counsel about the circumstances in which the accused had come to leave his last employment. The Court also draws the inference that defending counsel had made it clear to somebody on the prosecution’s side that it was disputed that the accused had been dismissed for drunkenness. What then should have followed? If the prosecution took the view, as they could have done, that it would have helped the learned judge to know whether the accused had been dismissed for drunkenness, on finding that this allegation was disputed admissible evidence should have been called. The information which the Inspector gave to the Court was hearsay.

When the appeal came to this Court it was reported to the Court by the probation officer that the Club Secretary had denied that he had ever said anything of the kind alleged. He told the probation officer that the accused had left the employment on notice. The Court thought that this conflict of recollections was most unsatisfactory and as a result requested the Commissioner of Police for the Metropolis to have some inquiries made and, as we expected would happen, most thorough inquiries have been made and the results reported to the Court. In fairness to the ex-Inspector this should be said. He has given a circumstantial *79 account of how he got this information. Those from whom he says he got it have denied that they gave it to him. What is obvious, however, is that such information as was given by the Club Secretary to the Inspector was given over the telephone and we all know that messages given over the telephone can be misunderstood.

The Court has no intention of trying to resolve the conflict of recollection which exists in this case, but what it does propose to do is to call attention once again to, and to underline, the need for great care in the giving of evidence of antecedents. As I reminded counsel in the course of discussion, before 1941 it was a common practice for police officers giving evidence of antecedents to make general observations about an accused person such as “He is known to resort with prostitutes and thieves.” In 1941 the Court of Criminal Appeal in the case of Van Pelz, 29 Cr. App. R. 10, disapproved strongly of that kind of evidence. Perhaps I might call attention to what was said by the police officer in that case. The accused was a woman and it was said of her: “She is very well known indeed as a prostitute who frequents the West End of London with a view to contacting men with money, and her activities in this direction have exercised the mind of the police for a considerable time past.” I am not going to read from the judgment, I will read part of the headnote: “A police officer called after conviction to give evidence of the character and antecedents of the prisoner should in general confine his evidence to the previous convictions (if any) and antecedents of the prisoner, including evidence of the prisoner’s home and upbringing if his age makes this information material. He should also inform the Court of any matters (whether the subject of charges which are to be taken into consideration or not) which he believes are not disputed,” and I would wish to underline the word “disputed,” “by the prisoner and ought to be known to the Court. He should, further, inform the Court of anything known in the prisoner’s favour, such as periods of employment or good conduct.” Following that case it became the practice at the Bar for prosecuting counsel to give defending counsel an opportunity of making representations about any matter in the antecedent report which was disputed. The Court was pleased to hear from Mr. Gerber today that that practice still continues.

Defending counsel should read the antecedent report and, if there is anything in it which is disputed by his client, he should bring that matter at once to the attention of prosecuting counsel. Prosecuting counsel will then have to make up his mind whether to call admissible evidence to prove the disputed facts or to omit them from the evidence. That means, of course, that he must stop the police officer giving evidence about the disputed matters.

We have not had the benefit today of hearing prosecuting counsel in this case, through no fault of his, so we do not know exactly what happened. The most we can do is to infer that it is probable that defending counsel indicated in some way that there was a dispute about this matter of the dismissal. Whether defending counsel pointed to the disputed facts clearly enough, again we do not know, and we make no criticism of counsel on either side. What we do wish to do is to underline the importance of the principle in Van Pelz (supra) being followed.

It was found necessary in 1969 in Robinson, 53 Cr. App. R. 314, to draw attention to the need for care in this matter. Once again we call attention to the need for great care in this matter. Nothing gives a bigger sense of injustice to a convicted man than false statements being made about him after the verdict. We hope that it will not be necessary for some time now to remind anybody of the importance of this matter.

Representation

  • Solicitor: The Solicitor, Metropolitan Police, for the Crown.

Sentence reduced.

R v Self [Arrest]

R v Self

COURT OF APPEAL, CRIMINAL DIVISION

WATKINS LJ, SWINTON THOMAS AND GARLAND JJ

25 FEBRUARY 1992

Arrest – Arrest without warrant – Power to arrest without warrant where arrestable offence has been committed – Resisting arrest – Arrestable offence – Subsequent acquittal of defendant of offence for which arrested – Whether defendant can be convicted of assault with intent to resist lawful apprehension if he is acquitted of offence for which arrested – Offences against the Person Act 1861, s 38 – Police and Criminal Evidence Act 1984, s 24(5).

The appellant was seen by a store detective to put a bar of chocolate in his pocket and leave the store without paying for it. The store detective and a shop assistant followed the appellant and tried to arrest him, aided by a member of the public who stated he was making a citizen’s arrest. The appellant resisted, assaulting both the shop assistant and the member of the public before he was finally apprehended. He was charged with theft and two counts of assault with intent to resist or prevent his lawful apprehension or detainer contrary to s 38a of the Offences against the Person Act 1861. At his trial the appellant was acquitted of theft but convicted on the two assault charges. He appealed against his conviction on the ground that where an arrestable offence had been committed a citizen’s arrest could only be effected under s 24(5)b of the Police and Criminal Evidence Act 1984 of a person who was guilty of the offence or who was suspected on reasonable grounds to be guilty of the offence and since he had been acquitted of the theft neither the shop assistant nor the member of the public was entitled to make a citizen’s arrest under s 24 and therefore he could not be convicted of the offences under s 38 of the 1861 Act.


a     Section 38, so far as material, provides: ‘Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of [an offence] …’
b     Section 24(5) is set out at p 479 a b, post

Held – On the true construction of s 24(5) of the 1984 Act the power of arrest without warrant where an arrestable offence had been committed required as a condition precedent that an offence had actually been committed. If the person arrested was subsequently acquitted of the alleged offence for which he had been arrested no offence had been committed and there was no power to effect a citizen’s arrest under s 24 of the 1984 Act. Since the appellant had been acquitted of the theft charge he had not committed an arrestable offence at the time he was arrested and was entitled to resist his apprehension, with the result that he had not committed the offences under s 38 of the 1861 Act. Accordingly, the appeal would be allowed and his convictions on the two counts under s 38 of the 1861 Act would be quashed (see p 480 c d g h, post).

Walters v W H Smith & Son Ltd [1911–13] All ER Rep 170 considered.

Notes

For the powers of arrest without warrant, see 11(1) Halsburys Laws (4th edn reissue) paras 703–709, and for cases on the subject, see 14(1) Digest (Reissue) 194–210, 1392–1526.

[1992] 3 All ER 476 at 477

For the Offences against the Person Act 1861, s 38, see 12 Halsburys Statutes (4th edn) (1989 reissue) 102.

For the Police and Criminal Evidence Act 1984, s 24, see ibid 867.

Cases referred to in the judgment

Walters v W H Smith & Son Ltd [1914] 1 KB 595[1911–13] All ER Rep 170.

Appeal against Conviction

Graham Self appealed against his conviction on 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley and a jury of two counts of assault with intent to resist or prevent lawful apprehension or detainer contrary to s 38 of the Offences against the Person Act 1861 on the ground that, having been acquitted of the alleged theft which had led to his arrest the arrest had been unlawful. The facts are set out in the judgment of the court.

Nicholas Price (assigned by the Registrar of Criminal Appeals) for the appellant.

Stuart Sleeman (instructed by the Crown Prosecution Service) for the Crown.

25 February 1992. The following judgment was delivered.

GARLAND J

delivered the following judgment of the court. On 10 July 1991 in the Crown Court at Kingston-upon-Thames before Judge Wakley this appellant was tried on an indictment which contained three counts. Count 1 alleged that he stole a bar of chocolate (value 79p) belonging to F W Woolworth plc. Count 2 alleged that, contrary to s 38 of the Offences against the Person Act 1861, he assaulted Stuart Michael Frost with intent to resist or prevent the lawful apprehension or detainer of himself. Count 3 alleged a similar offence against Jonathan George Mole.

All the offences were said to have been committed on 29 October 1990 and formed part of a continuous chain of events. The appellant was acquitted on count 1, the theft, but convicted on count 2 by a majority of 10 to 2 and on count 3 by a majority of 11 to 1. He was conditionally discharged and modest compensation was made.

The facts quite briefly stated were as follows. The appellant was a serving police officer, a detective constable. He had been in the police force for some 17 years. On the afternoon in question in October 1990 a Mrs Stanton, who is a store detective in Woolworths in Kingston, saw the appellant pick up a bar of chocolate. He then moved on and apparently picked up some Christmas cards using both hands. The chocolate had disappeared; in fact, he had put it in his trouser pocket. He then left the store without paying. Mrs Stanton asked Mr Frost, a young sales assistant, to help her. They followed the appellant out into the street and along Church Street. Mrs Stanton saw him put his hand in his pocket, take out the chocolate and throw it under a car. She actually retrieved it and said to him: ‘I do not want to call the police for a bar of chocolate. Come here and come back to the store.’ Mr Frost approached the appellant and said: ‘You have been seen shoplifting.’ The appellant became agitated, tried to leave, grabbed Mr Frost’s arm and scratched it, punched him on the cheek, kicked him on the shin and then ran off with Mr Frost in pursuit.

Mr Mole came into the picture because he was in his car and saw what had happened between the appellant and Mr Frost. He got out of his car and asked Mrs Stanton if she needed any help. She said ‘Yes’, so Mr Mole also ran after the appellant. During the chase the appellant jumped down a steep drop, some ten feet or more, from a churchyard to the street below. When Mr Mole caught up with him he took hold of his wrist and there was a minor struggle. He told the appellant that he was making a citizen’s arrest because he believed he had been shoplifting.

[1992] 3 All ER 476 at 478

The appellant struggled and apparently kicked Mr Mole just above his knee and tried to run away again. Mr Mole and Mr Frost caught up with him, there was a further struggle but in the end the appellant quietened down and there was some conversation between the persons involved. Mr Frost did say the appellant was in a very distressed condition, both physically and mentally.

When the appellant came to give his account of these matters before the jury he said that he recalled picking up the bar of chocolate in Woolworths but had no recollection of what had happened afterwards, save that he remembered looking at the Christmas cards. The chocolate was undoubtedly in his pocket when he left the store. He had forgotten about it. He had no intention of stealing it and had set off towards a bookshop. But on the way he put his hand in his pocket and realised that he had not paid for the chocolate that he found there. He then heard people running behind him and saw Mrs Stanton and Mr Frost coming and shouting and then everything closed in on him. He panicked and thought the situation looked very grave indeed. He threw the chocolate away and ran. Then Mr Frost intervened and the two scuffles with Mr Frost and Mr Mole followed.

He could not explain his actions. He felt sorry for Mr Frost and Mr Mole, who he thought had acted very properly. It should be mentioned in passing that a doctor confirmed that the appellant was at the time suffering from some degree of stress.

This matter comes before the court by leave of the single judge on a point of law. There is one point central to the appeal. It is this. Since the appellant was acquitted of theft neither Mr Frost nor Mr Mole were entitled by virtue of s 24 of the Police and Criminal Evidence Act 1984 to effect a citizen’s arrest. If they were not entitled to do that then this appellant could not be convicted of an assault with intent to resist or prevent the lawful apprehension or detainer of himself, that is to say his arrest.

In order to examine this proposition it is necessary of course to look closely at s 24 of the Act. But first some mention should be made of the extent to which the learned judge dealt with the matter. Counsel for both the defence and the prosecution have frankly informed us that they did not address their minds to s 24 and the question of whether or not the two complainants in fact were entitled to arrest the appellant. As a result of that, the learned judge never dealt with the issue, so far as the jury were concerned, by in any way seeking to link count 1, the theft, to counts 2 and 3 should the jury have been minded to acquit the appellant of count 1 before turning to the other counts. All he said was this:

‘He [that is one of the two young men] is perfectly entitled to make a citizen’s arrest and it is a publicly spirited thing to do whether right or wrong, provided there is reasonable cause to suspect.’

It is necessary, as has been said, to turn to the Act. Section 24 deals with powers of arrest without warrant. Subsection (1) sets out to define arrestable offences in respect of which powers of summary arrest can be exercised. Subsections (2) and (3) deal with the other qualifying offences. Subsection (4) begins to set out powers of arrest in the following terms:

‘Any person [and of course ‘any person’ means both a citizen and a constable] may arrest without a warrant—(a) anyone who is in the act of committing an arrestable offence; (b)anyone whom he has reasonable grounds for suspecting to be committing such an offence.’

It is immediately apparent that that subsection is dealing with the present continuous, that is somebody in the act of committing the offence or someone

[1992] 3 All ER 476 at 479

that the arrester has reasonable grounds for suspecting to be committing such an offence.

Subsection (5) moves on to the past, indeed the perfect, tense:

‘Where an arrestable offence has been committed, any person [both citizen and constable] may arrest without a warrant—(a) anyone who is guilty of the offence; (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.’

One asks: guilty of what? The answer is: guilty of the arrestable offence which has been committed.

Then by contrast sub-s (6) deals with a constable’s powers of arrest, which are very much wider than those of the citizen. It provides:

‘Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence.’

Thus there are double reasonable grounds for suspecting, both as to the commission of the offence and the person who has committed it.

Subsection (7) again deals with constable’s powers and this is in anticipation of an offence. It provides:

‘A constable may arrest without a warrant—(a) anyone who is about to commit an arrestable offence; (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.’

Then s 25 goes on to deal with general arrest conditions otherwise than for arrestable offences.

Although it appears to this court that the resolution of this particular matter is to be achieved by construing the plain words of the statute, we were referred to authority and in particular to Walters v W H Smith & Son Ltd [1914] 1 KB 595[1911–13] All ER Rep 170, which arose out of a civil action for false imprisonment and malicious prosecution, but dealt with the circumstances in which the private citizen can make an arrest. The headnote reads as follows ([1914] 1 KB 595):

‘A private person is justified in arresting another on suspicion of having committed a felony if, and only if, he can show that the particular felony for which he arrested the other was in fact committed, and that he had reasonable and probable cause for suspecting the other of having committed it.’

In the course of the judgment by Isaacs CJ, reference was made ([1914] 1 KB 595 at 603[1911–13] All ER Rep 170 at 173) to the common law historical origin of the law in Hales Pleas of the Crown, where it was stated as follows (2 Hale PC (1800 edn) 77):

‘The third case is, there is a felony committed, but whether committed by B. or not, non constat, and therefore we will suppose that in truth it were not committed by B. but by some person else, yet A. hath probable causes to suspect B. to be the felon, and accordingly doth arrest him; this arrest is lawful and justifiable, and the reason is because if a person should be punished by an action of trespass or false imprisonment for an arrest of a man for felony under these circumstances, malefactors would escape to the common detriment of the people.’

But it is important to note that this passage follows:

[1992] 3 All ER 476 at 480

‘But to make good such a justification of imprisonment, 1. there must be in fact a felony committed by some person, for were there no felony, there can be [no] ground of suspicion.’

A footnote to the word ‘no’ in brackets refers back to the first edition of Hale in 1736, correcting a printer’s error to precisely the same effect.

Mention is made of the common law ancestry of the contents of the statute simply to deal with the arguments in misericordiam and ad absurdum advanced on behalf of the Crown pointing out the potential difficulties in which citizens may find themselves having every reason to believe that an offence is being committed when it has not or in circumstances where a jury subsequently acquits the person thought to have committed the offence.

However, in the judgment of this court, the words of s 24 do not admit of argument. Subsection (5) makes it abundantly clear that the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed. If subsequently there is an acquittal of the alleged offence no offence has been committed. The power to arrest is confined to the person guilty of the offence or anyone who the person making the arrest has reasonable grounds for suspecting to be guilty of it. But of course if he is not guilty there can be no valid suspicion, as was pointed out in the passage in Hale to which reference has been made.

If it is necessary to go further, one contrasts the words of sub-s (5) with sub-s (6), the very much wider powers given to a constable who has reasonable grounds for suspecting that an arrestable offence has been committed. However, it is said on behalf of the Crown that the court should not be assiduous to restrict the citizen’s powers of arrest and that, by going back to sub-s (4) and looking at the words there, ‘anyone who is in the act of committing an arrestable offence’, perhaps those words can be used to cover the sort of situation that arose in this case where somebody is apparently making good his escape. Having committed the offence of theft, can it be said, asks Mr Sleeman, that the thief is not in substance still committing the offence while running away?

He asks, rhetorically, should the court have to inquire into the exact moment when the ingredients of theft come together—dishonesty, appropriation, intention permanently to deprive—when to analyse the offence carefully may produce absurd results so that in one set of circumstances the offence may be complete and the situation fall within sub-s (5) and in another be still being committed and fall within sub-s (4).

The view of this court is that little profit can be had from taking examples and trying to reduce them to absurdity. The words of the statute are clear and applying those words to this case there was no arrestable offence committed. It necessarily follows that the two offences under s 38 of the Offences against the Person Act could not be committed because there was no power to apprehend or detain the appellant.

It follows also that that being the law, as this court sees it, that the convictions on counts 2 and 3 must be quashed and this appeal allowed.

Appeal allowed. Convictions quashed.

Kate O’Hanlon Barriste

Wong Kam-ming

  • Crime – Evidence – Confession – Admissibility – Voir dire – Defendant cross-examined as to truth of statement and admitting participation in offence – Whether cross-examination proper – Statement ruled inadmissible – Crown adducing evidence of and cross-examining on defendant’s admissions in voir dire – Whether permissible
A group of men attacked the manager of a massage parlour. They killed him and wounded two others. The defendant was one of six charged with murder and malicious wounding. The only evidence connecting him with the attack was his own signed statement given to the police to the effect that he had been present at the scene and had there “chopped” someone with a knife. At the start of the trial the defence challenged the admissibility of the statement on the ground that it had not been made voluntarily. The judge dealt with that issue in the absence of the jury by a voir dire. The defendant gave evidence on the voir dire and testified that he had made the statement but had not been cautioned, that the police had offered inducements to him to make it and that he had been forced to copy out and sign it. Cross-examined by the Crown the defendant admitted that he had been present at the scene and involved in the attack. The judge ruled the statement inadmissible. The trial of the general issue continued and in order to establish that the defendant had been at the scene counsel for the Crown called the two shorthand writers who had recorded the voir dire to testify that in that proceeding the defendant had admitted being

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present. The defence objected. The judge ruled that the shorthand writers’ testimony was admissible and rejected a submission that there was no case for the defendant to answer. The defendant gave evidence and was cross-examined as to discrepancies between his evidence and what he had said at the voir dire. The defendant was convicted of murder and malicious wounding. The Court of Appeal dismissed his appeal against conviction.
On the defendant’s appeal to the Judicial Committee: –

Held, allowing the appeal, (1) (Lord Hailsham of St. Marylebone dissenting) that on a voir dire as to the admissibility of a defendant’s challenged statement the prosecution should not ask questions in cross-examination of the defendant with the object of establishing the truth of the statement and that accordingly the Crown’s cross-examination on the voir dire was improper (post, pp. 256A-C, 257B-C).

Rex v. Hammond [1941] 3 All E.R. 318, C.C.A. wrongly decided.

Reg. v. Hnedish (1958) 26 W.W.R. 685 approved.

(2) That, where on a voir dire a defendant’s statement had been ruled inadmissible, the prosecution was not entitled at the trial of the general issue to adduce evidence as to what the defendant said during the voir dire or to cross-examine him on the basis of what he said; that, accordingly, the calling of the shorthand writers and the Crown’s cross-examination were substantial irregularities which resulted in evidence being wrongly placed before the jury without which they could not have convicted and that, therefore, the defendant’s convictions on all counts should be quashed (post, pp. 258D-E, 259E-F, 260C-F, 261B-G).

Rex v. Treacy [1944] 2 All E.R. 229, C.C.A. applied.
Per curiam. Where an impugned confession is ruled admissible and the defendant elects to give evidence on the general issue testifying as to the reliability of the confession (as opposed to its voluntariness) and in so doing gives answers markedly different from his testimony on the voir dire there is no justification in legal principle or any other ground which renders cross-examination on the basis of the discrepancies impermissible (post, pp. 259F – 260A).
Decision of the Court of Appeal of Hong Kong reversed.

The following cases are referred to in the judgments:

Chan Wei Keung v. The Queen [1967] 2 A.C. 160; [1967] 2 W.L.R. 552; [1967] 1 All E.R. 948, P.C.

Chitambala v. The Queen [1961] R. & N. 166.

DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530.

Director of Public Prosecutions v. Ping Lin [1976] A.C. 574; [1975] 3 W.L.R. 419; [1975] 3 All E.R. 175, C.A. and H.L.(E.).

Ibrahim v. The King [1914] A.C. 599, P.C.

Li Kim-hung v. The Queen [1969] H.K.L.R. 84.

Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319.

Reg. v. Hnedish (1958) 26 W.W.R. 685.

Reg. v. Wright [1969] S.A.S.R. 256.

Rex v. Hammond [1941] 3 All E.R. 318; 28 Cr.App.R. 84, C.C.A.

Rex v. Treacy [1944] 2 All E.R. 229; (1944) 30 Cr.App.R. 93, C.C.A.

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The following additional cases were cited in argument:

Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044, H.L.(E.).

Jeffrey v. Black [1978] Q.B. 490; [1977] 3 W.L.R. 895; [1978] 1 All E.R. 555, D.C.

Reg. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899, C.C.A.

Reg. v. Erdheim [1896] 2 Q.B. 260.

Reg. v. Garside (1967) 52 Cr.App.R. 85, C.A.

Reg. v. Gauthier (1975) 27 C.C.C. (2d) 14.

Reg. v. HarzReg. v. Power [1967] 1 A.C. 760; [1967] 2 W.L.R. 297; [1967] 1 All E.R. 177, H.L.(E.).

Reg. v. McGregor [1968] 1 Q.B. 371; [1967] 3 W.L.R. 274; [1967] 2 All E.R. 267, C.A.

Reg. v. Murphy [1965] N.I. 138. Ct.-M.A.C.

Reg. v. Rice [1963] 1 Q.B. 857; [1963] 2 W.L.R. 585; [1963] 1 All E.R. 832, C.C.A.

Reg. v. Roberts (1953) 37 Cr.App.R. 86.

Reg. v. Van Dongen (1975) 26 C.C.C. (2d) 22.

Reg. v. Wray (1970) 4 C.C.C. 1.

Rex v. Power [1919] 1 K.B. 572, C.C.A.

Wan v. United States (1924) 266 U.S. 1.

APPEAL (No. 21 of 1978) by Wong Kam-ming, the defendant, from a judgment (July 12, 1977) of the Court of Appeal of Hong Kong (Briggs C.J. and Huggins J.A.; McMullin J. dissenting) dismissing his appeal against his conviction on October 1, 1976, before Commissioner Garcia and a jury of the murder of Lam Shing alias Lam Chung and malicious wounding on December 28, 1975.
The facts are stated in the judgment of the majority of their Lordships.
Charles Fletcher-Cooke Q.C.William Glossop and George Warr for the defendant. The issues on this appeal are (1) whether on the voir dire a defendant may be asked in cross-examination whether the contents of the confession statement are true; (2) whether, if such a question may be asked, the trial judge has a discretion to exclude it and what are the limits of that discretion; (3) whether the Crown may lead evidence of what was said in answer to questions on the voir dire at the trial of the general issue; (4) whether, if such evidence may be led, the judge has a discretion to exclude it; and (5) whether, if such evidence may not be led, the defendant may be cross-examined on it and at the trial of the general issue.
On the voir dire it is wrong for the Crown to put the question “Is the statement true?” to the defendant. The defendant would be bound to answer the question notwithstanding that his answer might incriminate him, and to allow such a question infringes a fundamental principle of the common law. Even if in principle the question may be put the judge has a discretion to exclude it. There are practical difficulties if the question is permitted: the probative value of the answer is outweighed by the prejudice to the defendant. Public policy must also be taken into account in that the public would be outraged if there were a confession on

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the voir dire followed by an acquittal on the trial of the general issue. As to whether a confession is voluntary, see Wan v. United States (1924) 266 U.S. 1, 14.
Rex v. Hammond [1941] 3 All E.R. 318 was wrongly decided. See Rex v. Hnedish (1958) 26 W.W.R. 685, 687, 688 for the beginnings of doubt about the correctness of the decision in Hammond’s case. See also Chitambala v. The Queen [1961] R. & N. 166, 168-171; Li Kim-hung v. The Queen [1969] H.K.L.R. 84; Reg. v. Wright [1969] S.A.S.R. 256, 259, 265, 279 and Reg. v. Van Dongen (1975) 26 C.C.C. (2d) 22. In DeClercq v. The Queen (1968) 70 D.L.R. (2d) 530 the Supreme Court of Canada followed Rex v. Hammond [1941] 3 All E.R. 318 but see the dissenting judgments of Hall, Spence and Pigeon JJ. at pp. 548, 551, 553. Notwithstanding that Ng Chun-kwan v. The Queen [1974] H.K.L.R. 319 is authority for the proposition that although the Crown may not lead the answers given by the defendant on the voir dire it may put them to the defendant in cross-examination, that case is in direct opposition to Rex v. Treacy [1944] 2 All E.R. 229 which was not referred to. If evidence given on the voir dire is excluded in the sense that the Crown cannot lead it then it ought not to be used at all. In Reg. v. Gauthier (1975) 27 C.C.C. (2d.) 14 evidence given on the voir dire was not available to either party. Where at the trial at the close of the case for the prosecution a defence submission of no case to answer is wrongly rejected by the judge and the defendant then gives evidence on oath and by that evidence himself produces a case to answer, the principle in Reg. v. Abbott [1955] 2 Q.B. 497 applies.
If the defendant’s submissions on issues (1) and (2) are not accepted, nevertheless the Crown is not permitted to lead evidence on the trial of the general issue of what was said on the voir dire because what was said was not voluntary and is subject to the same objections as extra-judicial confessions. For the position arising in the parallel situation before 1898, see Greenleaf, A treatise on the Law of Evidence, 16th ed. (1899), vol. 1, paras 224, 225.
Even if the Crown may lead evidence at the trial of the general issue of what was said on the voir dire the trial judge has a discretion not to admit it and in the instant case it should have been excluded because the answers were inextricably entwined with the making of the confession: see per Bray C.J. in Reg. v. Wright [1969] S.A.S.R. 256, 263. Either all the questions and answers can be put in evidence or none at all and therefore if some of them are clearly inadmissible then none can be used.
On the trial of the general issue the defendant may not be cross-examined on his answers given on the voir dire. The defendant relies on Rex v. Treacy [1944] 2 All E.R. 229: if a statement is inadmissible then no more should be heard of it. The answers given on the voir dire amount to confessions and are either admissible when led by the Crown or not at all.
John Marriage Q.C. and Daniel Marash (Crown Counsel, Hong Kong) for the defendant. The issues which arise are those outlined by the defendant. The Crown does not challenge the relevant authorities. It has become the practice on the voir dire to ask the defendant the question “Is the statement true?”.

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As to issue (1), the Crown may only put the question “Is it true?” if the question is designed to obtain evidence which is relevant to the issue before the tribunal. Usually it is relevant to the issue of admissibility of a confession statement to know if the statement is true. The reason that the court considers whether a statement has been induced is that an induced statement is likely to be an untrue one.
[LORD DIPLOCK. That is contrary to authority: see Ibrahim v. The King [1914] A.C. 599 and Chan Wei Keung v. The Queen [1967] 2 A.C. 160.]
It must assist the trial judge to know whether a statement is true or false although it is conceded that it may not be relevant in every case and may not be so on the general issue. On the voir dire the court is enquiring how the statement came to be made and its truth is usually relevant to that. The possibility of asking the question “Is it true?” should not be excluded as a matter of principle. It was rightly put in Rex v. Hammond [1941] 3 All E.R. 318. Even if that case was wrongly decided it was right to put the question in the instant case because a major part of the attack on admissibility was concoction to which the answer was relevant. It is conceded that a general practice of putting the question “Is it true?” is not justified: regard must always be paid to relevance. Guilt is not always relevant but sometimes it may be. Counsel must be satisfied of relevance and prepared to justify the question if challenged. On the voir dire the judge’s decision on inducement is final but once a confession statement is admitted the question of concoction is strictly one for the jury.
[LORD HAILSHAM OF ST. MARYLEBONE. Once the judge is satisfied on the voir dire that the statement was voluntary it must go to the jury. If he decides it was not voluntary he decides that there was no statement at all, i.e. that the statement was not the defendant’s act.]
There is a practical difficulty where the defendant alleges part inducement and part concoction. It may be that a court must draw a distinction between “verbals” and a confession statement. A confession statement is a piece of evidence to be put before the jury if admissible. “Verbals” do not exist until the police officers give evidence before the jury. On the voir dire if a judge was not satisfied that a defendant had made the statement at all, in practice he would exclude it to be safe. He would not rule it admissible and put himself in the position of having to go on and direct the jury that it must be satisfied that the defendant had made the statement in the first place. [Reference was made to Reg. v. Roberts (1953) 37 Cr.App. R. 86.]
As to issue (2), it is always open to the trial judge to require counsel to satisfy him that a question as to the truth of a confession statement is relevant but there is no general discretion to exclude such cross-examination. A question may always be excluded according to the principle in Harris v. Director of Public Prosecutions [1952] A.C. 694 that the answer would have a higher prejudicial than probative value.
[LORD EDMUND-DAVIES. On the voir dire no question of prejudice arises; the judge rules on relevance and admissibility and there is no place for discretion.]
The trial judge may have no discretion as such to allow or disallow

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putting of irrelevant questions. In the instant case the question as to truth was relevant to the issues of inducement and concoction. The truth of a statement is always relevant to concoction and may be to inducement if the concoction throws light on the inducement.
As to issue (5), cross-examination of the defendant on the trial of the general issue before the jury on the basis of evidence given by him on the voir dire is unobjectionable in law, subject to the overriding discretion of the trial judge. It is conceded that it is not the practice for the prosecution to use the evidence given on the voir dire to create a case for the Crown. It is right that if a confession is ruled inadmissible it cannot be inserted by a back door: see Rex v. Treacy [1944] 2 All E.R. 229. But a finding that a statement is inadmissible does not affect the admissibility of evidence of what has gone on oath at the voir dire. The evidence given there is not necessarily contaminated by the inadmissible statement and prosecution witnesses can give evidence about it and the defendant can be cross-examined. It is not repugnant that witnesses who have given evidence to prevent admission of a statement should be cross-examined as to what they have said.
As to issue (3), the prosecution should not introduce by way of cross-examination matters which are capable of proof and which could have been proved as part of the prosecution case: see Reg. v. Rice [1963] 1 Q.B. 857. But whether that is a rule of law or of practice the effectiveness of a cross-examination must depend on the ability of the prosecution to prove the matter put. What happens at the voir dire can be used by the prosecution in cross-examination on the trial of the general issue and then on ordinary principles evidence may then be called to substantiate the prosecution case. There is no rule of law that what has happened on the voir dire is sacrosanct and cannot be so used. If the prosecution has evidence of a confession it must call it in chief. Even where a statement has been obtained by torture and the question “Is it true?” is put on the voir dire and answered “Yes,” the prosecution can lead evidence of that confession subject to the discretion of the trial judge and subject to the rule in Rex v. Treacy [1944] 2 All E.R. 229. Whether under section 13 of the Hong Kong Evidence Ordinance (Cap. 8) or under Lord Denman’s Act, the prosecution is entitled to call to give evidence a person who heard a previous statement in order to show that the second statement is untrue. It is permissible at a retrial to bring evidence of what was said at the previous trial: see Reg. v. McGregor [1968] 1 Q.B. 371. There is no distinction between that situation and a defendant’s being cross-examined as to what he said on the voir dire: in neither situation can the defendant’s statements be said to have been involuntary: see Reg. v. Erdheim [1896] 2 Q.B. 260 and Reg. v. HartzReg. v. Power [1967] 1 A.C. 760, although it is conceded that in both those cases there was specific statutory provision.
As to issue (4), there is a line of Commonwealth authority which shows that the discretion of the trial judge is limited: see Reg. v. Wray (1970) 4 C.C.C. 1. “Unfairness” is the touchstone for the approach of the Judicial Committee to the exercise by the trial judge of his discretion: see Reg. v. Murphy [1965] N.I. 138 and Jeffrey v. Black [1978] Q.B. 490.

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Committee should on appeal give general guidance as to its proper exercise, The judge should take into account the probative value of the evidence, the interests of justice, the conduct of the police and the gravity of the offence. A balance must be struck between the interests of the prosecution and those of the defendant. On wrongful refusal by the trial judge to uphold a submission of no case to answer: see Rex v. Power [1919] 1 K.B. 572Reg. v. Abbott [1955] 2 Q.B. 497 and Reg. v. Garside (1967) 52 Cr.App.R. 85.
Fletcher-Cooke Q.C. in reply. Any difficulties or unfairness which might result if the prosecution cannot put the question “Is it true?” on the voir dire are outweighed by considerations of public policy. If the question may be asked defendants will be deterred from giving evidence on the voir dire. It is important that they should not be inhibited because otherwise statements obtained by torture or threats might not be excluded as they should. It is an important principle of justice that the safety of a potential defendant should not be endangered in the hands of the police. It is a rule of law and not a matter for the discretion of the court that the question should not be put. It would be sufficient for the present defendant were the principle to be that unless a defendant volunteers on the voir dire that the statement is false the question should not be put. But it is submitted that the principle is wider. The truth of a statement is irrelevant to its voluntariness and it follows that the question should not be put in any circumstances on the voir dire.



LORD HAILSHAM OF ST. MARYLEBONE delivered the following dissenting judgment.
I regret that for the reasons which follow there is a substantial portion of the advice of the majority in this case from which I must respectfully record my dissent.
I wish to begin, however, by making it plain that I entirely endorse the result proposed. This is because I entirely agree with the proposed answer to the third of the questions posed by counsel for the defendant and referred to in the advice of the majority, and this is sufficient to dispose of the whole appeal. I also agree with both parts of the proposed answer to the fifth question. Once a statement has been excluded I consider that, to adapt the words of Humphreys J. in Rex v. Treacy

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[1944] 2 All E.R. 229, nothing more should be heard of the voir dire unless it gives rise to a prosecution for perjury.
I have stated elsewhere (Director of Public Prosecutions v. Ping Lin [1976] A.C. 574) that the rule, common to the law of Hong Kong and that of England, relating to the admissibility of extra-judicial confessions is in many ways unsatisfactory, but any civilised system of criminal juris-prudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement. If, as happened in the instant appeal, the prosecution were to be permitted to introduce into the trial the evidence of the defendant given in the course of the voir dire when the statement to which it relates has been excluded whether in order to supplement the evidence otherwise available as part of the prosecution case, or by way of cross-examination of the defendant, the important principles of public policy to which I have referred would certainly become eroded, possibly even to vanishing point.
I also agree with the opinion of the majority that when and if the statement has been admitted as voluntary and the prosecution attempt to cross-examine a defendant on discrepancies between his sworn testimony on the voir dire and his evidence on the general issue at the trial, rather different considerations apply. By the time that evidence is given the statement will have been admitted on the ground that the prosecution has succeeded in establishing to the satisfaction of the judge beyond reasonable doubt that it was properly obtained, and the whole evidence relating to the statement will have to be rehearsed once more, this time in front of the jury (where there is one) in order that they may form a conclusion not as to its admissibility but as to the reliability of the admissions made. It seems to me that in those circumstances the statements on oath by the defendant on the voir dire as material for cross-examination do not, from the point of view of public policy, stand in any other situation than any other statements made by him, including the statement which has been admitted. For this purpose the true analogy is the position of his sworn testimony in a previous trial where the jury have disagreed. No doubt the trial judge has a discretion to see that the right of the prosecution to cross-examine or rebut is not used in a manner unfair or oppressive to the defendant, and no doubt the judge is under a strict obligation to see that any statutory provisions (for instance those in the Criminal Evidence Act 1898 or its Hong Kong equivalent) are rigorously complied with. But, in my view, once the substantive

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statement is admitted on the voir dire, the fewer the artificial rules limiting the admissibility of evidence which may be logically probative the better. I therefore agree with both parts of the advice tendered by the majority to the fifth of the questions propounded by counsel in argument.
The reservations I feel about the opinion of the majority in this case are therefore confined to the views they express in relation to questions (1) and (2). In order to avoid prejudice to the defendant the voir dire normally takes place in the absence of a jury. It is therefore a trial on an issue of fact before a judge alone. It is open to the defendant (presumably under the provisions of the Criminal Evidence Act 1898 or its Hong Kong equivalent) to give evidence and there are limits imposed by that Act or the equivalent Ordinance on what may be asked him in cross-examination. Subject to these limitations, and to any other general rules of evidence (such as those relating to hearsay) it seems to me that the only general limitations on what may be asked or tendered ought to be relevance to the issue to be tried, as in any other case in which an issue of fact is to be tried by a judge alone, and as to this, subject to appeal, the judge is himself the arbiter on the same principles as in any other case in which he is the judge of fact. It appears to be the opinion of the majority that it is possible to say a priori that in no circumstances is the truth or falsity of the alleged confession relevant to the question at issue on the voir dire or admissible as to credibility of either the prosecution or defence witnesses. I disagree. It is common ground that the question at issue on the voir dire is the voluntary character of the statement. This is the factum probandum, and, since the burden is on the prosecution, the prosecution evidence is taken before that of the defence. The voir dire may take place, as in the instant appeal, at the beginning of the trial, when all that is known of the facts must be derived from the depositions, or from counsel’s opening. More frequently, however, the voir dire takes place at a later stage in the trial when the prosecution tenders the evidence, usually of the police, in support of the voluntary character of the statement. By that time many facts are known and much of the evidence has been heard. I can conceive of many cases in which it is of the essence of the defence case on the voir dire that the confession, whose voluntary character is in issue, is in whole or part untrue, and, it may be, contrary to admitted fact. If the defence can succeed in establishing this or even raising a serious question about it either as the result of cross-examining the prosecution witnesses, or by evidence led by the defence itself, serious doubt can be raised as to the voluntary nature of the confession. How can it be said, counsel for the defence might wish to argue, that the defendant can have provided so much inaccurate information to his own detriment, unless he was forced to do so by some improper means? If the defence can be allowed to make the point, which seems to me to be a valid one, it must be open to the prosecution to cross-examine upon it when it is the turn of the defence witnesses to be scrutinised. It must be remembered that it is frequently the case that the alleged confession is not always, as in the instant appeal, a written statement copied out in the writing of the defendant. though the point can arise even in such a case. Often, perhaps more often, the statement in question may have been oral,

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and the case on the voir dire for the defence may be that it was obtained only after a long period in custody, perhaps without rest, food, or drink, as the result of a long and harassing interrogation at which either no caution was administered or improper pressures were brought to bear. In such circumstances it seems to me inevitable that the truth or otherwise of what is alleged to have been said, and what was actually said in response to what questions or the accuracy of what is alleged to have been copied down in the police notebooks (and the questions though logically separate are often difficult to separate in practice) must be investigated in order to establish, or cast doubt upon, the voluntary character of the confession. I am the first to deprecate what counsel for the Crown, who has a wide experience of current practice at the Central Criminal Court and elsewhere, admitted without justifying, to be a growing habit of counsel for the prosecution, namely to begin his cross-examination on the voir dire in every case with a question directed to the truth or otherwise of the confession. Though I tend to regard the use made in the advice of the majority of the passage in Heydon, Cases and Materials on Evidence (1975), p. 181, as an example of the fallacy known as ignorantia elenchi, I agree with them that it is no answer when the admissibility of an alleged confession has been challenged on the ground that it was improperly obtained, that it was a confession of the truth and not the reverse. But the counsel for the prosecution may be entitled to know the exact limits of the case he has to meet. Has he to answer the suggestion that the confession is more likely to be involuntary because it was so contrary to fact? Can he himself rely on the argument that it is inconceivable that a detailed albeit admittedly truthful confession of a really serious crime, as for instance murder, was elicited as the result of a relatively trivial inducement such for instance as being allowed to see a close relative for a short time? I am wholly unable to see that these are not questions and arguments which can in particular cases have a bearing on the voluntary or involuntary character of statements tendered in evidence by the prosecution and therefore, in suitable cases, investigated at the voir dire. Disputes not infrequently occur on the voir dire not merely as to the facta probanda but as to what was said and at what stage (e.g. before or after a caution) and though a voir dire is not required at all when the defence case is that no statement of any sort was made, the more usual situation at the voir dire is that what is in dispute between the parties is not merely whether what was said was voluntary (the factum probandum) on the voir dire or whether anything was said (a question for the jury, and not the judge) but exactly what was said and in what circumstances and at what point of time, and as the result of what inducement if any (facta probantia or reprobantia. but not probanda). For these questions, which must be investigated before a judge admits a statement on the voir dire, it seems to me impossible to say a priori that every question of truth or falsity of the statements must be excluded, and although I agree that in the ultimate resort the questions will be for the jury if the statement is admitted, the judge may often be in a position when he is compelled to form an opinion as to the relative reliability of rival versions of what took place in order to form an opinion as to whether what was said was said voluntarily or as the consequence of inducement.

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An example of another kind is where the prosecution case is that a statement was originally volunteered orally and subsequently signed voluntarily by the accused, and the case for the accused is that the statement was concocted by the police, written down by the police and then signed by the accused under improper pressures. In this case the prosecution may wish to say that details in the alleged concoction could only have come from the accused and were accurate facts not otherwise known at the time, and the accused may wish to point to inaccuracies in the statement as pointing to concoctions. In each case, although not directly affecting the allegation of signature under pressure, the accuracy or otherwise of the contents of the confession must be open to some inquiry on the voir dire. Obviously the judge must be allowed a discretion in the matter. He must not permit counsel to pursue the matter of the truth or falsity of items in a confession for an ulterior reason or in an oppressive manner, or at undue length, but I am not able to say a priori that all must necessarily be irrelevant. I am somewhat fortified in this view by the reflection that if the voir dire is decided in favour of the prosecution, almost all of the evidence given is repeated at the trial of the general issue, where the factum probandum is guilt or innocence and not the voluntary or involuntary character of the statement admitted. Contrary, I believe, to what is suggested at one point in the majority opinion, the jury are absolutely free to form their own view of the circumstances in which the statement was obtained irrespective of the opinion of the judge (as to which in theory at least they are wholly ignorant) in order to form their own opinion as to the facts relied on by the prosecution or the defence on the general issue. Though the judge has found the confession to be voluntary, and therefore admissible, the jury is perfectly entitled to act on the contrary belief and therefore to disregard it as unreliable. It is of course not logically necessary that the converse of this position is also true, namely, that the judge can be assisted by his view of the truth or otherwise of the material contained in an alleged statement in order to determine whether the statement is wholly voluntary or not. In many cases no doubt (Rex v. Hammond [1941] 3 All E.R. 318 was one), the judge will be wholly uninfluenced in his decision by whether the confession contained accurate or inaccurate material and in such a case either the question is improper, or the answer irrelevant. But I am not prepared to say a priori that in all cases it must always be so. In my opinion questions of relevance or otherwise can only seldom be decided a priori, as in my view the opinion of the majority purports to do, but are far better left to the logical faculties of the trial judge in the context of the concrete case which he has to try. For these reasons I would give different answers to questions (1) and (2) to those proposed by the majority. I agree with their answers to questions (3) and (4) and to both aspects of (5) and that the appeal must in consequence be allowed.

Solicitors: Hatchett, Jones & Kidgell; Charles Russell & Co.

T. J. M