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
[1970] A.C. 304 Page 309
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
[1970] A.C. 304 Page 310
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
[1970] A.C. 304 Page 311
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.
[1970] A.C. 304 Page 312
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
[1970] A.C. 304 Page 313
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.
[1970] A.C. 304 Page 314
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.
[1970] A.C. 304 Page 315
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.
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.
[1970] A.C. 304 Page 316
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. 184, Rex v. Bridgwater [1905] 1 K.B. 131, Rex v. Preston [1909] 1 K.B. 568, O’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. 545; Harris v. Director of Public Prosecutions [1952] A.C. 694 and Reg v. Herron [1967] 1 Q.B. 107.]
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
[1970] A.C. 304 Page 317
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
[1970] A.C. 304 Page 318
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
[1970] A.C. 304 Page 319
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
[1970] A.C. 304 Page 320
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
[1970] A.C. 304 Page 321
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. 568; Baldwin, 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. 568, O’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?
[1970] A.C. 304 Page 322
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
[1970] A.C. 304 Page 323
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
[1970] A.C. 304 Page 324
(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. 107; Lawrie v. Muir, 1950 S.C.(J.) 19; H.M. Advocate v. Turnbull, 1951 S.C.(J.) 96.]
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
[1970] A.C. 304 Page 325
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.
[1970] A.C. 304 Page 326
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
[1970] A.C. 304 Page 327
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 Preston, Bridgwater 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. 131, Preston [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.
[1970] A.C. 304 Page 328
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. 945, Rex 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.
[1970] A.C. 304 Page 329
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. Harz; Reg. 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.”
[1970] A.C. 304 Page 330
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
[1970] A.C. 304 Page 331
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
[1970] A.C. 304 Page 332
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
[1970] A.C. 304 Page 333
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
[1970] A.C. 304 Page 334
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. 469, per 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
[1970] A.C. 304 Page 335
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.”
[1970] A.C. 304 Page 336
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
[1970] A.C. 304 Page 337
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.”
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.”
[1970] A.C. 304 Page 338
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
[1970] A.C. 304 Page 339
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 Hudson, Jenkins 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) The words of the statute must be given their ordinary natural meaning (Hudson[1912] 2 K.B. 464; Jenkins, 31 Cr.App.R. 1; Cook [1959] 2 Q.B. 340).
- (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 (Hudson; Jenkins; Cook).
- (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.
- (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. 184; Rex 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.”
[1970] A.C. 304 Page 340
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
[1970] A.C. 304 Page 341
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 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
[1970] A.C. 304 Page 342
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.”
“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.
J. A. G.
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; …”