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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(2).html Cite as: [2001] EWLC 273(2) |
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PART II THE PRESENT LAW
2.2 The prosecution may not, in general, adduce evidence of the defendant's bad character (other than that relating to the offence charged) nor of the defendant's propensity to act in a particular way even if relevant. This is a derogation from the general rule that all relevant evidence is admissible, and has been described as "one of the most deeply rooted and jealously guarded principles of our criminal law".[1] There are two bases for this exclusion of evidence of bad character: it is often irrelevant in showing guilt; insofar as it is relevant, its prejudicial effect outweighs its probative value.
EXCEPTIONS TO THE RULE OF EXCLUSION
(I): Adducing evidence of a defendant's bad character in chief
"Similar fact" evidence
2.4 The main exception to the exclusionary rule is known (somewhat misleadingly) as "the similar fact rule". The term "similar fact" evidence[2] covers evidence of misconduct by the defendant, whether arising before or after the offence charged, which is said to be evidence of his or her propensity or disposition to misconduct himself or herself either in general or in specific ways. It extends to evidence of bad character or conduct which is not criminal.[3] For the history of the evolution of this rule, see paragraphs 2.14 – 2.34 of the consultation paper.
2.5 The leading authority is DPP v P in which Lord Mackay LC held,
… the essential feature of evidence which is to be admitted is that its probative force … is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.[4]
2.6 Before DPP v P the leading authority was the decision of the House of Lords in Boardman v DPP.[5] In that case there was a shift in emphasis in the criterion for admitting similar fact evidence from the purpose of the evidence to the amount of relevance it bore to the matter in issue.[6] The notion that the similar fact evidence should have "striking similarity" to be admissible was developed in their Lordships' speeches in Boardman v DPP,[7] and it came to be understood that such evidence must have that quality to be admissible.
2.7 In DPP v P, the "striking similarity" test used in Boardman was stated to be only one of the ways in which the enhanced relevance required of similar fact evidence may be found. It was said that to regard "striking similarity" as an essential qualification for the admissibility of similar fact evidence is "to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it".[8] The circumstances in which there may be sufficient probative force are not restricted to cases involving "striking similarities" but can be derived from some other sources, such as a relationship in time or circumstance.[9] The most significant development of the case law since the consultation paper has been in relation to cases where identification is in issue, and the previous misconduct is being tendered to prove the identity of the perpetrator. That is set out in paragraphs 2.23 – 2.26 below.
2.8 The following sections address some specific points of difficulty in the current law.
RES GESTAE AND BACKGROUND EVIDENCE
2.9 The similar fact rule does not apply to res gestae nor to evidence which forms part of the background to the offence charged. The parameters of these two categories are not clear. Background evidence is admitted because of the close connection between it and the facts in issue, but, as Cross and Tapper points out,[10] this approach is potentially dangerous because it can be used to smuggle in similar fact evidence which would otherwise be inadmissible. Evidence has been admitted without application of the rule in DPP v P where it was part of the res gestae, showed a pre-existing relationship between the victim and the accused, revealed a motive for the offence charged, or where, without that evidence, "the totality of … the account would be incomplete or incomprehensible".[11]
CAN EVIDENCE OF PROPENSITY BE ADMITTED AS SIMILAR FACT EVIDENCE?
2.10 The traditional view is that evidence of mere propensity to commit crimes of a certain type is inadmissible.[12] Lord Hailsham, in Boardman,[13] spoke of "the forbidden chain of reasoning", which was any chain of reasoning leading directly from propensity to guilt.
2.11 This view has been criticised[14] on the grounds that evidence of disposition may occasionally have sufficient probative value to merit admission.[15] In the consultation paper[16] we provisionally concluded that the admissibility of bad character evidence in chief should depend upon the probative value of the evidence, and not on the purpose for which it is proposed to adduce it; and that the evidence should not, therefore, be inadmissible merely because it is relevant only to propensity. Support for this view can be found in the dicta of Lord Mackay LC in DPP v P.[17]
2.12 It is by no means clear, however, that this view has been universally adopted by the courts. It seems that there remains a reluctance to accept the proposition that propensity reasoning is not necessarily "forbidden" in all cases. We discuss this issue when we consider the defects in the current law. [18]
HOW CAN SIMILAR FACT EVIDENCE BE USED TO REBUT A DEFENCE?
2.13 Where similar fact evidence is sought to be admitted to rebut a defence, its purpose is to put a different complexion on what occurred – perhaps by demonstrating a criminal purpose[19] or knowledge,[20] or by showing that a death is attributable not to natural causes but to the actions of the accused.[21] The evidence is admissible if it is clear that the link between the events cannot be put down to coincidence.
2.14 Similar fact evidence must be directed to an issue in the case.[22] Clear identification of the issue to which it is said to be relevant is important, because evidence may bear on one issue, but not on another. There are various cases in which it has been suggested that similar fact evidence would necessarily be inadmissible if the defence was a general denial of the prosecution's case. One such case is Lewis[23] where evidence of paedophile tendencies was held admissible in relation to counts where the defendant said that the touching was innocent or accidental, but inadmissible in relation to an incident which he denied had ever taken place.[24] More recently, a similar approach was taken in Wright.[25]
2.15 At one time it was thought that when Lord Herschell said that evidence may be sufficiently relevant to be admissible "if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused",[26] he was proposing a closed list of defences in which it might be possible to adduce similar fact evidence in rebuttal.[27] The House of Lords has repeatedly made it clear that no such closed list exists.[28] We believe the law to be, consistent with the principle set out by Lord Mackay in DPP v P,[29] that although in cases where the defence is a general denial it may often be the case that the similar fact evidence will not be sufficiently probative to outweigh its prejudicial effect, there should be no absolute bar to its admission. It should be noted, however, that in B(RA)[30] – a decision post-dating DPP v P – Lewis and Wright were approved on this point. We discuss the difficulties of B(RA) in further detail below. [31]
DOES THE PROSECUTION HAVE TO WAIT AND SEE WHAT DEFENCE IS TO BE RELIED UPON BEFORE ADDUCING SIMILAR FACT EVIDENCE?
2.16 Similar fact evidence can be adduced only if it goes to one of the issues in the case, not if it merely goes to "strengthen the evidence of a fact … which was not denied and, perhaps, could not be the subject of rational dispute".[32] In most cases where a defence statement is provided,[33] the defence disclosure will make the prosecution aware of the matters with which the defence intends to take issue. If the defence is not known, then the test for deciding whether the similar fact evidence is relevant to the prosecution's case is whether the defence in question "may fairly be said to be open to the accused on the facts as they appear from the evidence available to the prosecution".[34] We believe this to be a fair principle because it is always open to the accused to say that a particular defence will not be taken, or that a particular fact is not in issue, thus obviating the need for similar fact evidence to be called.[35]
2.17 While the case law suggests that evidence in rebuttal of a defence fairly open to the accused should be given as part of the prosecution's case, the courts have also, exceptionally, permitted what has been called the "short-circuiting" of this process, allowing the prosecution to put questions in rebuttal of the accused's defence in cross-examination without having led the evidence as part of its own case.[36] This is a course which should be avoided wherever possible.[37] It is preferable that the similar fact evidence should be adduced in chief rather than in the course of cross-examination with all its attendant prejudice to the witness.[38] This can be achieved by permitting the prosecution to re-open its case.
IS THERE A SPECIAL RULE FOR SEXUAL OFFENCES AGAINST PERSONS OF THE SAME SEX, OR CHILDREN?
2.18 The present position is as stated by the Court of Appeal in Clarke:[39] there is no specific category of offences against children for the purpose of similar fact evidence, because to assert that such offences are so rare as to justify admissibility is to ignore the regrettable fact that they are not uncommon. The more recent case of Musquera[40] confirmed that where the only significant similarity between two groups of offences was that they were sexual in nature, this was not sufficient to allow the evidence of one group to be admitted in respect of the other group pursuant to the rule in DPP v P. [41] In Musquera, having refused severance, the judge should have directed the jury to treat the charges separately.
Is there a discretion to exclude similar fact evidence?
2.19 The courts have traditionally had a discretion to exclude similar fact evidence even if it passes the test of admissibility. This discretion "flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused".[42] In the consultation paper[43] we suggested that the principle stated by the House of Lords in DPP v P[44] has the character of a rule of law – at least in cases where the prosecution seeks to rely on the evidence as proof of the defendant's disposition, or where there is a risk that the jury will regard it as such – and we questioned the existence of a residual discretion. There is no room for any discretion which entails the weighing of probative value against prejudicial effect, because that is itself the test of admissibility.[45]
SUPERVENING DISCRETIONS: SECTION 78, AND THE COMMON LAW
2.20 Section 78(1) of PACE reads:
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
2.21 The scope of section 78 is not limited merely to the balance of relevance and prejudice. Extrinsic considerations of fairness come into play, such as the way in which the evidence was obtained. It is therefore possible that the defence would seek to exclude some item of bad character evidence on these grounds.[46]
2.22 Section 82(3) of the same Act preserves the common law discretion to exclude evidence, which is founded on the duty of the judge to ensure that every accused person has a fair trial.[47] As with section 78, this discretion is not limited to excluding evidence which is more prejudicial than probative, but extends to excluding evidence which might be unfair to the accused for some other reason.[48] However, in nearly all cases the role formerly played by the common law discretion has been subsumed within the new statutory regime.
IDENTITY CASES
Striking similarity
2.23 It was said in DPP v P that where the identity of the perpetrator was in issue, "something in the nature of what has been called … 'a signature' or other special feature would be necessary".[49] This proposition has been further considered in the recent decision of W[50] where it was held that this dictum should be interpreted as applying only to cases "where the only evidence of any substance against a defendant on a count was 'a signature' or other very striking similarity."[51] Thus, in the majority of cases where identification is in issue, there is no longer any special rule.
How the evidence is to be approached
2.24 The traditional approach to identity cases can be called the "sequential approach": where crimes A and B are strikingly similar, such that they are likely to have been committed by the same person, and the prosecution can prove that D committed crime B, the prosecution can use this evidence to prove that D also committed crime A, as in Straffen.[52]
2.25 This type of reasoning is frequently employed where D has already been convicted in respect of crime B.[53] However, there is no reason why the same reasoning should not also be employed where D's guilt of crime B is also in issue in the proceedings. It seems to have been employed, for example, in Ruiz[54] where D was alleged to have followed the same modus operandi in respect of separate incidents concerning two victims, to each of whom a stupefying drug was administered to enable D to rob them. One victim died. The identity of the killer was in issue, and the purpose of adducing evidence of the robbery by D of the surviving victim was to suggest that a pattern could be deduced which showed that D was also the murderer.
2.26 A relatively recent line of cases has emerged which adopts a different approach to similar fact evidence where identification is in issue. It can be conveniently labelled the "cumulative approach".[55] Unlike the "sequential approach" there is no need to establish independently[56] that D was responsible for crime B in order for the evidence concerning that offence to be used to support the evidence relating to crime A. Rather, the two crimes are "welded together"[57] and all the available evidence is used cumulatively in order to establish the identity of the perpetrator. The legitimacy of this approach was confirmed in Brown[58] and in W,[59] but it was said in the latter case that where the only evidence on count A is the striking similarity with count B, it would be necessary to adopt the sequential approach.[60]
Special cases where bad character evidence is admissible in chief
SECTION 27(3) OF THE THEFT ACT 1968
2.27 Section 27(3) of the Theft Act 1968 provides:
Where a person is being proceeded against for handling stolen goods (but not for any offence other than handling stolen goods), then at any stage of the proceedings, if evidence has been given of his handling or arranging to have in his possession the goods the subject of the charge, or of his undertaking or assisting in, or arranging to undertake to assist in, their retention, removal, disposal or realisation, the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods:
(a) evidence that he has had in his possession, or has undertaken or assisted in the retention, removal, disposal or realisation of, stolen goods, from any theft taking place not earlier than twelve months before the offence charged; and
(b) (provided seven days' notice in writing has been given to him of the intention to prove the conviction) evidence that he has within the five years preceding the date of the offence charged been convicted of theft or of handling stolen goods.
The application of section 27(3)
2.29 Section 27(3) applies to all forms of handling[61] but its application is restricted by its terms to cases where handling is the only type of offence charged in the proceedings. The prosecution can only rely on the subsection in order to prove guilty knowledge or belief;[62] it cannot be used to prove possession of the goods in question. Moreover, the prosecution must adduce evidence of the actus reus of the offence before the provision can be relied upon to show guilty knowledge.[63]
2.30 Since the subsection allows the prosecution to prove facts that would not ordinarily be relevant at common law and would not therefore be admissible, the courts have held that the terms of the subsection must be strictly adhered to.[64] The Court of Appeal in Bradley[65] said that the section ought to be construed "with strict regard to its terms". This attitude has led to an extremely restrictive attitude towards the subsection. We discuss the provision in detail at paragraphs 4.13–4.23 below.
SECTION 1(2) OF THE OFFICIAL SECRETS ACT 1911
On a prosecution under this section,[66] it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State …
2.32 In the consultation paper we noted that this section constitutes an exception to the general exclusionary rule at common law that evidence of a defendant's bad character may not be adduced as part of the prosecution case.[67] Therefore, the provision runs contrary to the usual principles of justice. Whether or not it represents a defect in the present law depends very much on whether it is viewed as a defensible special case. We discuss this provision at paragraphs 11.56 – 11.61 below.
Special cases where bad character evidence is inadmissible in chief
SPENT CONVICTIONS
2.33 The philosophy of the Rehabilitation of Offenders Act 1974[68] is that, once a conviction is "spent", the rehabilitated person should be treated in law as a person who has not been convicted of or charged with the offence. The Act does not apply to the use of convictions in criminal proceedings.[69] Nevertheless, a Practice Direction has been issued[70] under which "it is recommended that both court and counsel should give effect to the general intention of Parliament by never referring to a spent conviction [of a defendant or a witness] when such reference can be reasonably avoided".[71] To achieve this aim, no party may refer in open court to a spent conviction without the authority of the judge or magistrates, "which authority should not be given unless the interests of justice so require".[72]
2.34 The Practice Direction achieves much the same result as if criminal proceedings had not been expressly excluded from the scope of the Act. This has created what is perhaps better described as a "constitutionally difficult area",[73] rather than as a defect in the present law.
2.35 One gap in the present law on spent convictions is that neither the Act nor the Practice Direction refer to formal cautions.[74] Since there is no concept of a caution becoming "spent", at least in theory (in practice they are kept on record for five years), it is still open to parties to refer to stale cautions with impunity in a situation where they could not refer to stale convictions.[75] A caution is not a conviction although it shares many of its features. It is not a decision of the court and may therefore be challenged.[76] Evidence of a formal caution can be excluded under section 78(1) of PACE.[77]
2.36 Where a conviction is spent and it is immaterial to the particular case, there is authority that a person who has no other convictions should be treated as of good character and entitled to receive a full good character direction.[78] It would seem likely that by way of analogy a "spent" caution for an offence which was immaterial should similarly not prejudice the defendant's good character.
2.37 Two views have been identified about the effect of a caution on character. On the one hand, the admission of the offence, which is a prerequisite to a caution, shows that the accused has not kept on the right side of the law, which one might have thought a necessary attribute of a person of good character. On the other hand, a person should not be said to lose his or her good character in the eyes of the law unless there has been a conviction by a court, and a caution should not be regarded as of equivalent effect.[79]
2.38 According to Professor Birch,[80] commenting on the case of Martin,[81] the state of the law is that a caution may prevent the full good character direction being given (the Vye[82] direction) but the more normal outcome will be that the direction is given in a modified form rather than withheld altogether. According to Lord Steyn in Aziz[83] the position prima facie is that both limbs of a good character direction should be given, but that ultimately a trial judge has a
residual discretion to decline to give any character directions in the case of the defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye.
(II): Evidence adduced by the defendant
2.39 The defendant can adduce evidence of his or her own previous misconduct without restriction.
Evidence adduced against a co-accused
2.40 A defendant can adduce evidence of a co-defendant's bad character if it is relevant to the former's defence. If the evidence is relevant, the court has no discretion to exclude it, notwithstanding its prejudicial effect. The rationale is that a defendant should not be inhibited in the presentation of his or her defence. The test of relevance is strictly applied so that if the evidence is propensity evidence it must support the accused's defence.[84]
IS THERE A DISCRETION TO EXCLUDE DEFENCE EVIDENCE?
2.41 The existence of a discretion to exclude defence evidence is in some doubt. There are authorities which state that there is no such discretion, but some recent dicta raise the possibility that the issue has not been finally decided.[85]
2.42 The possibility of a discretion to exclude evidence which is prejudicial to a codefendant was canvassed by Evans LJ in Thompson, Sinclair and Maver.[86] He noted that the only discretionary safeguard for a defendant who risks having prejudicial evidence adduced by the co-defendant is the "cumbersome device of separate trials".[87] He went on "This seems undesirable, and it might be preferable to allow a discretion where the prejudice is substantial and the evidence is of only limited benefit to the co-defendant".[88] He argued that under the current authorities, the protection for the co-accused lay in the strict application of relevance, as illustrated by Bracewell [89] and Neale,[90] and that the Court of Appeal in the former might have been referring to a discretion by saying that "There are obvious objections to putting a co-accused in the position of having to fight two quite different battles at the same time".[91] Evans LJ continued: "We should not like it to be thought that we have concluded that such a discretion can never exist, although the authorities make it difficult to hold that it does".[92]
(III): Adducing bad character evidence in cross-examination
2.43 Section 1 of the Criminal Evidence Act 1898, as amended, provides:
Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person. 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 criminate 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 the deceased victim of the alleged crime; or
(iii) he has given evidence against any other person charged in the same proceedings.
2.44 In short, the defendant has a "shield" against cross-examination on his or her character (other than directly connected with the allegation for which he or she is on trial) (section 1(f)), but risks losing this shield in the circumstances provided for by section 1(f)(i), (ii) and (iii).[93]
The meaning of section 1(f)
2.46 It has been recently confirmed that the prohibition is not limited to crossexamination which shows a defendant to have a criminal record but also covers cross-examination designed to show that a defendant is of bad character, in the sense of reputation and disposition.[94] The prohibition relates to all convictions, whether they occurred before or after the offence charged.[95]
2.47 The House of Lords has held that the word "charged" means "charged in court", not merely suspected or accused without subsequent prosecution, as "The most virtuous may be suspected, and an unproven accusation proves nothing".[96] This does not mean that questions about incidents giving rise to a suspicion cannot be the subject of comprehensive cross-examination: the courts use the doctrine of relevance to decide whether such questions may be put.[97]
The relationship between section 1(e) and section 1(f)
2.48 At first glance, section 1(e) appears to permit cross-examination of a kind which section 1(f) appears to prohibit. The House of Lords sought to resolve the apparent conflict between these subsections in Jones v DPP,[98] where a majority took the view that, in cases of conflict, the prohibition in section 1(f) defeats the permission in section 1(e). However, the majority judgments are complicated and not entirely consistent. Professor Sir John Smith proposes the simplest solution to the problem.[99] He argues that the existence of section 1(f)(i) leads to the conclusion that section 1(f) must prevail over section 1(e), since questions which may be put to the defendant under section 1(f)(i) are inevitably questions which "tend to criminate him as to the offence charged", so that if section 1(e) were dominant, section 1(f)(i) would be of no effect as there would be no shield to pierce.
2.49 The matter was revisited in Anderson,[100] in which Lord Lane CJ (giving the judgment of the Court of Appeal) appears to have considered a question revealing an offence other than that charged as permissible if proof of the commission of that other offence "tended to connect the appellant with the offence charged". We take the view that Blackstone[101] is right to say that the correct interpretation of the majority decision in Jones v DPP is that such a question is permissible only if it falls within the terms of section 1(f)(i).
Section 1(f)(i)
2.50 It is this exception to the general prohibition against the cross-examination of the defendant on his or her bad character that permits cross-examination on similar fact evidence and evidence of previous misconduct which is an integral part of the offence.[102]
2.51 Cross and Tapper[103] points out that the practical effect of the provision is greatly reduced by the decision of the House of Lords in Jones v DPP.[104] In that case it was held that, where evidence of a previous offence has been adduced in chief, the accused may be cross-examined about it without reliance on the exception in section 1(f)(i). This was because the words "tending to show" meant "make known to the jury", and therefore the prohibition in section 1(f) did not apply. The paragraph remains of importance where no revelation has been made in chief; although the House of Lords in Jones v DPP held that the prosecution should adduce some evidence of such a matter in chief, so as to allow the defendant to challenge any supposed points of similarity between the two offences or to cross-examine the witnesses for the prosecution.[105] The decision in Anderson[106] "seems to erode the natural meaning of the words of the prohibition still further".[107] In this case, it was held that the prohibition did not apply where, although the prohibited matter had not itself been revealed in chief, the defence themselves revealed the commission of (another) crime, the justification being that no further prejudice would be caused to the defendant by the crossexamination.
2.52 Section 1(f)(i) refers only to evidence of commission or conviction of a crime, and not to charges or to misconduct falling short of crime. These omissions are unfortunate, since they may require the exclusion of highly probative evidence.[108]
The first limb of section 1(f)(ii): asserting good character
2.53 Where a defendant is of good character, the jury will be directed that this is relevant both to the likelihood of the defendant's guilt and, where applicable, to his or her credibility.[109]
2.54 The rationale of the exception in the first limb of section 1(f)(ii) is that
if the prisoner by himself or his witnesses seeks to give evidence of his own good character, for the purpose of showing that it is unlikely that he committed the offence charged, he raises by way of defence an issue as to his good character so that he may fairly be cross-examined to show the contrary.[110]
WHAT IS AN ASSERTION OF GOOD CHARACTER?
2.55 The prosecution cannot invoke the first limb of section 1(f)(ii) merely because the defendant gives evidence which is relevant to the charge, and incidentally casts him or her in a good light.[111]
2.56 The shield is also not lost where the assertion of good character is elicited by the prosecution's cross-examination of a defence witness,[112] or is volunteered by such a witness,[113] or is made in opening the defence case but not in evidence.[114]
2.57 The courts have held that a defendant has given evidence of good character where he or she claims to have been earning an honest living for a considerable time,[115] to be a regular churchgoer[116] or to have performed kind or honest deeds (such as returning lost property to its owner) on a previous occasion.[117]
2.58 Difficulties arise where the accused seeks to suggest a favourable contrast between his or her character and the bad character of others who could have committed the offence.[118] Cross and Tapper states that where those others are not called, the question whether the defendant has lost the shield depends on "exactly how pointedly the contrast is made".[119] This principle poses difficulties in its application. In Lee[120] the accused was charged with theft from the house in which he was lodging, and did not lose the shield by pointing out that others with criminal records had access to the house. In Bracewell,[121] however, the defendant to a charge of murder in the course of burglary lost the shield by contrasting his own cool, non-violent professionalism with the inexperience of his companion.[122]
CHARACTER IS INDIVISIBLE
2.59 The character of the accused is regarded as indivisible:
there is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.[123]
Similarly, the accused cannot confine the inquiry to a particular period of time when his or her character was good.[124]
2.60 When the defence chooses to reveal some part of the accused's character which is not in any sense good character, the prosecution or a co-accused is, in general, not then entitled to add further evidence of bad character.[125] There are, however, two qualifications to this rule. First, there may be cases where a certain aspect of bad character is asserted for the purpose of suggesting a lack of disposition to commit the offence. The accused may, for example, seek to deny a charge of raping a woman by claiming to be homosexual,[126] or claim to be a highly professional burglar who would not be likely to commit the clumsy murder with which he is charged.[127] Such claims appear to put the defendant's character in issue. Second, an accused may not pretend to have made a clean breast of previous misconduct when he or she has not in fact done so.[128]
THE DISCRETION TO EXCLUDE
2.61 This issue more usually arises in relation to the second limb of section 1(f)(ii), but the existence of a discretion under this limb was recognised by the Court of Appeal in Thompson,[129] and Marsh,[130] although in neither case was the discretion exercised in the defendant's favour. More recently,[131] the Court of Appeal has held that the trial judge should have exercised his discretion to exclude previous convictions for offences similar to those charged. They were so overwhelmingly prejudicial as to outweigh any possible marginal relevance to the issue of credibility, and only the defendant's previous convictions for dissimilar dishonesty offences should have been admitted, since these would have been sufficient to deal with the issue of credibility.
COMMON LAW RULES
2.62 If an accused falsely asserts good character, the prosecution can respond by eliciting extrinsic evidence of bad character or previous convictions in rebuttal, although there is obviously no need to do so if the defendant admits these matters in cross-examination.[132] This is consistent with the modern rule which allows a prosecutor to adduce evidence in rebuttal where he or she could not reasonably have foreseen that the matter would arise.[133]
The second limb of section 1(f)(ii): casting imputations against prosecution witnesses
THE PRE-CONDITIONS
2.64 As Cross and Tapper points out,[134] it is not possible to set out an exact definition of what amounts to an imputation, as much depends upon the detailed facts of each case. To trigger this limb of the subsection, the imputation must be related to the "character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime".[135] It would seem from this wording that an attack upon the conduct of a living person not called as a witness does not endanger the shield.[136] However, it was held in the case of Miller[137] that a witness is a person with material evidence to give, and that such evidence could be given in a variety of ways. A witness is nonetheless a witness if dead, or beyond the seas or unfit to attend. Attacks on a witness who has made depositions which are read[138] would trigger the section. This must overrule Westfall[139] which holds that a "witness for the prosecution" within section 1(f)(ii) means a "witness called in the case". However, Westfall is not cited in Miller.
2.65 On a literal construction, this provision might lead to accused persons being liable to cross-examination on their criminal record whenever they assert their innocence or contend that the prosecution's evidence is false, because of the implied suggestion that at least one of the prosecution witnesses is guilty of perjury. This argument has had some judicial support.[140] However, it has been argued that "unless [this limb] is given some restricted meaning, a prisoner's bad character, if he had one, would emerge almost as a matter of course",[141] and that such revelation is "always damaging and often fatal to a defence".[142]
2.66 Thus, the word "imputation" is given a limited meaning. It has been held that an emphatic denial does not count as an imputation, even though it may take the form of the accused stating in cross-examination that a prosecution witness's evidence is a lie and the witness therefore a liar,[143] or of defence counsel making a clear suggestion of lies and drawing on inconsistencies in the witnesses' accounts to lend the suggestion weight.[144] If, however, the defendant's denial goes beyond what is necessary to challenge the veracity of the accuser it will amount to an imputation.[145] The line between a mere denial and an accusation that a prosecution witness is lying or fabricating the evidence is very difficult to draw, and some of the authorities are difficult to reconcile.[146] This difficulty seems to have motivated the court in Britzman[147] to lay down guidelines for the exercise of the discretion to disallow cross-examination where the shield is technically lost.[148]
2.67 Not every allegation of misconduct or impropriety will amount to an imputation,[149] and what is considered to be an imputation may well vary from one generation to the next.[150]
SEXUAL CASES
2.68 In cases of rape, a defendant who alleges consent on the part of the victim does not, for the purpose of this limb, make "imputations on the character of the prosecution or witnesses for the prosecution".[151] It is not clear whether this is because rape is sui generis, justifying special rules[152] or because it would be unjust to put the defendant at risk of losing the shield by doing no more than deny one of the elements of the offence which the prosecution must prove.[153] The latter reasoning would apply equally to other offences. It is also possible to explain the cases on the basis that although an imputation is made, the discretion to prevent cross-examination is always exercised.[154]
2.69 A defendant's ability to make imputations about the complainant's sexual behaviour has been limited by the Youth Justice and Criminal Evidence Act 1999, sections 41–43.[155] These provisions are stricter than their earlier counterparts:[156] evidence may only be admitted with leave of the court, which may be given only where the exclusion of the evidence may lead to an unsafe conviction.[157] Evidence relating to the issue of consent cannot be adduced unless it is contemporaneous, or the behaviour is so similar to contemporaneous behaviour or behaviour described by the accused that it could be a pattern of sexual behaviour.[158] No question may be asked which has as its main purpose impugning the credibility of the complainant as a witness.[159] However, this protection does not extend to evidence relating to the issue of the defendant's belief in consent.
2.70 The limitations on the questions that may be asked of a complainant in sections 41–43 must, however, be read subject to the House of Lords case of A (No 2).[160] Their Lordships held that a prior consensual sexual relationship between a complainant and the defendant might, in the circumstances of an individual case, be relevant to the issue of consent; that, although in giving effect to the defendant's rights under Article 6 account might also be taken of the interests of the complainant and of society in general, his right under Article 6(1) to a fair trial, assessed by reference to the overall fairness of the proceedings, was absolute and fundamental and would be infringed if he were denied the admission of relevant evidence where its absence led to his unsafe conviction.[161]
THE DISCRETION TO EXCLUDE
2.71 The trial judge or magistrate has a discretion under the second limb of section 1(f)(ii) to disallow cross-examination if the prejudicial value of the crossexamination exceeds its probative value. This may be used to disallow crossexamination altogether, or to disallow cross-examination on particular instances of previous misconduct.[162] The court will have to decide how to exercise its discretion on the particular facts of each case, and precedents are therefore of limited value, but there are factors which must be taken into account.[163] The principles are summarised by Ackner LJ in Burke.[164] They are essentially concerned with ensuring that the trial is fair to all concerned.
2.72 Before looking at the way in which the courts have exercised the discretion, it must be emphasised that the purpose of the cross-examination is to attack the defendant's credit as a witness, not to show that he or she has a disposition to commit the offence[165] – although in some cases it may incidentally have this effect. This is consistent with earlier judicial reasoning.[166]
Similarity of offences
2.73 It is now established that the mere fact that the accused's previous convictions are of a similar nature to the offence charged does not mean that the judge ought to exercise the discretion to exclude cross-examination on the defendant's record in the defendant's favour.[167] It was recently said that "there is no reason … to distinguish between previous convictions of a like nature and previous convictions which are not of a like nature" for the purpose of the second limb.[168] The purpose of the cross-examination is to attack the defendant's creditworthiness as a witness and not to show disposition to commit an offence.[169] By way of contrast the Court of Appeal held in the more recent case of Davison-Jenkins[170] that the discretion ought to have been exercised in the defendant's favour to exclude previous convictions of a similar nature to those which were the subject of the current charge. This illustrates that judicial attitudes may differ on the exercise of the discretion to exclude crossexamination.
Where the convictions do not reveal dishonesty
2.74 There is some authority for the view that the discretion should be exercised so as to exclude a criminal record which does not involve dishonesty,[171] but it now seems clear that it may be right for the jury to know, in general terms, the character of a person making an imputation.[172]
Defence necessarily involving imputations
2.75 Difficulties occur where the defence necessarily involves making imputations. In Selvey v DPP[173] the House of Lords rejected the contention that the discretion ought to be exercised in favour of the accused where his or her defence necessarily involves the making of such imputations,[174] approving instead the approach of Devlin J in Cook.[175] The Court of Appeal in Britzman[176] sought to lay down guidelines for the exercise of discretion in this situation. They do not directly take account of the need of the accused person to mount a defence to a charge: rather, they address the practical meaning of the word "imputation". Essentially, the discretion should be exercised if there is "nothing more than a denial, however emphatic or offensively made, of an act or even a short series of acts amounting to one incident or in what was said to have been a short interview", as opposed to a "denial of evidence of a long period of detailed observation extending over hours".[177] Allowance should also be made for the possibility of mistake, misunderstanding and confusion, and for the fact that the defendant might be under strain, or led into making allegations during crossexamination.[178] Undue emphasis should not be placed upon the accused's choice of words. However, commentators have pointed out that "It cannot be pretended that such guidelines offer very substantial protection." [179]
2.76 The Court of Appeal in Britzman[180] did not specifically discuss the issue of "necessary attacks". The House of Lords in Selvey v DPP[181] said there should be no presumption against allowing cross-examination in such cases. The Court of Appeal in St Louis has confirmed, however, that the discretion is available in this situation, and has said that a line should be drawn between "accusations going essentially to the credit of a police officer and suggestions made in crossexamination that are essential to [the defendant's] plea of 'not guilty'".[182] If the defence necessarily involves imputations the defendant can avoid crossexamination by declining to give evidence.[183]
Section 1(f)(iii): attacking a co-defendant
2.77 Cross-examination where one defendant has given evidence against another is justified on the grounds that, if evidence is adduced by D1 against a codefendant (D2),[184] D2 may then show (by reference to D1's previous convictions) that his evidence should not be relied upon.[185] This may arise where the defendants put forward so-called "cut-throat" defences. For example, two parents are charged with the murder of their child. One or both of them must have been responsible for the death. Each denies guilt and maintains in evidence that the other was solely responsible. Both lose the shield at the behest of the other.
"HAS GIVEN EVIDENCE"
2.78 On a literal reading, section 1(f)(iii) applies only if the evidence against D2 is given by D1 in person. It seems to be implicit in some of the authorities on the first limb of section 1(f)(ii)[186] that the words "has given evidence" include calling a witness to give the evidence. It seems reasonable to assume that the words have the same meaning in section 1(f)(iii).[187]
2.79 Where, however, D1's advocate cross-examines D2 (or a prosecution witness) with a view to showing D2's guilt of the offence charged, it seems that this will not render D1 liable to cross-examination – although there is some suggestion to the contrary.[188]
"AGAINST ANY OTHER PERSON CHARGED IN THE SAME PROCEEDINGS"
2.80 As a result of the decision of the House of Lords in Murdoch v Taylor,[189] it is now established that evidence "against" a co-defendant means evidence "which supports the prosecution's case in a material respect or which undermines the defence of the co-accused".[190] It is irrelevant whether the evidence is given with a hostile intent.[191]
2.81 The courts have laid down a number of factors to be considered in deciding whether evidence is evidence "against" a co-defendant.[192] In Varley[193] the House of Lords laid down guidelines for determining this issue. The evidence should be judged objectively and particular care should be taken where the co-defendant's defence may have been undermined: inconvenience or inconsistency is not sufficient, but direct contradiction may bring section 1(f)(iii) into play.[194] It has been held by the House of Lords that
If, while ignoring anything trivial or casual, the positive evidence given by the witness would rationally have to be included in any survey or summary of the evidence in the case which, if accepted, would warrant the conviction of the [co-defendant] then the witness would have given evidence against such other person.[195]
2.82 It is immaterial whether D2 gives evidence. It is sufficient that D1 gives evidence which supports the prosecution case against D2 or undermines D2's defence. D2's defence may emerge either from evidence given or called by D2 or from statements made to the police.[196]
2.83 Where D1's evidence undermines both the prosecution's case against D2, and D2's defence, the shield will be lost if D2's defence is undermined more than the prosecution's case.[197] Thus in Bruce,[198] a defendant gave evidence which contradicted the evidence of one of his co-defendants, but which provided him with a better defence, thereby undermining the case for the prosecution. The Court of Appeal decided that the evidence was, on balance, in the co-defendant's favour, and held that the cross-examination of the defendant on his previous convictions should not have been permitted.[199]
2.84 Where two defendants are charged with an offence, and it is alleged that the commission of the offence was a joint venture, one defendant's denial of participation is to be considered as evidence against the other defendant only if the denial necessarily leads to the conclusion that the co-defendant committed the offence.[200] This conclusion need not follow, and more recent authority states that a co-defendant [D1] may lose the shield if his or her testimony leads to the conclusion that, "if [D1] did not participate, it may have been the other who did."[201] Similarly, a view of a joint venture which directly contradicts a view put forward by a co-defendant may be considered as evidence "against" him or her – it depends on how fundamental the conflict is.[202]
When section 1(f)(iii) is invoked
2.85 Unlike section 1(f)(ii), the judge has no discretion to prohibit D2's right to crossexamine D1 under section 1(f)(iii), provided such cross-examination is relevant.[203] The court has a discretion at common law to order separate trials to prevent the prejudice that might otherwise result from the absence of a discretion to prevent cross-examination by a co-accused on the accused's previous misconduct.[204]
2.86 The court has discretion to prevent cross-examination if the prosecution seeks to cross-examine an accused under section 1(f)(iii) on the grounds that he or she has given evidence against a co-accused.[205] In exercising the discretion the court has a duty to secure a fair trial, and, to this end, the prejudicial effect of evidence establishing the accused's bad character should not outweigh the probative value of such evidence as tending to show that he or she is guilty of the crime alleged.[206] The court also has a discretion to refuse to allow D2 to cross-examine D1 where D1 has given evidence against D3.[207]
2.87 It is incumbent upon the judge to warn the jury that previous convictions revealed in cross-examination of a defendant are relevant only to his or her credibility, and are not indicative of guilt;[208] but distinguishing between the various purposes of cross-examination in the case of a defendant is extremely difficult.
SEVERANCE OF DEFENDANTS
2.88 Both the Crown Court and magistrates' courts have a discretion to order separate trials.[209] The courts will not readily sever defendants properly joined. This is illustrated by the case of Thompson, Sinclair and Maver.[210] One of the evidence presents the fact-finders with a choice – either both accused committed the crime or one of them did – but not where D1's evidence merely raises the possibility that D2 was solely responsible defendants, S, was permitted to adduce evidence of incriminating admissions allegedly made by the other two defendants, T and M. This was not admissible as evidence against T and M, and was prejudicial to them, but it was relevant and admissible on S's defence. The Court of Appeal held that the trial judge had been correct not to sever. Evans LJ said: "Severance could only be justified if there was undue prejudice to the appellants from the admission of evidence relevant to Sinclair's defence but not to theirs". He went on to conclude that the prejudice was not sufficient to justify separate trials.
Section 1(f)(iii) and separate trials
2.89 As stated above, the court has a discretion to order separate trials where the exercise of a defendant's rights under section 1(f)(iii) would lead to injustice. The courts have, however, shown a marked reluctance to order severance. In Hoggins[211] two defendants accused each other of the murder for which they were on trial. They appealed against conviction on the basis that the judge should have ordered separate trials. Lawton LJ held that this was only one factor to take into account:
The factor of the public interest in the proper administration of justice is a very powerful factor indeed, and in the majority of cases where men are charged jointly, it is clearly in the interests of justice and the ascertainment of truth that all the men so charged should be tried together.[212]
2.90 In a similar vein, the Court of Appeal has said:
The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other's throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.[213]
SEVERANCE OF COUNTS/INFORMATIONS
2.91 The present law is contained in statute, secondary legislation and case law. [214] In brief, under the current law, counts may be properly joined on an indictment if the counts are "founded on the same facts, or form or are part of a series of offences of the same or a similar character",[215] but a judge has a discretion to order that properly-joined counts be tried separately.[216] The House of Lords 214 215 216 recently confirmed in Christou[217] that, once counts have been properly joined, it is a matter for the discretion of the judge whether they should be severed.
2.92 The preceding case law was not consistent.[218] At one stage it was thought that there might be a separate rule where the counts on the indictment were of sexual offences, namely that in such cases there was a rule that unless the evidence satisfied the similar fact test and was admissible on each count then the indictment should be severed. It is now clear that there is no such special rule but that the matter is always one for the trial judge's discretion, having regard to fairness both from the point of view of the defendant and of the prosecution, and to all relevant factors, including those set out in the judgment of Lord Taylor CJ in Christou.
2.93 The case law applicable to summary trials achieves a similar result to that in the Crown Court: informations may be tried together if a joint trial would not risk injustice to the defendant and the facts are sufficiently closely connected. The court should ask both parties whether either has an objection to all the informations being heard together. If all parties consent to a joint trial then the magistrates should accede to their wishes. Lack of consent by either party is not a bar if, in the justices' view, a joint trial would not risk injustice to the defendant, and the facts are sufficiently closely connected.[219]
2.94 The case of Chief Constable of Norfolk v Clayton[220] made it clear that the decision should be made by the magistrates concerning whether informations should be tried separately. Lord Roskill reviewed the development of practice in magistrates' courts and stated[221] that he saw no reason why the practice in magistrates' court should not be analogous to that in the Crown Court. The House stated:[222]
… if justices ask themselves, before finally ruling, the single question – what is the fairest thing to do in all the circumstances in the interests of everyone concerned? – they are unlikely to err in their conclusion, for the aim of the judicial process is to secure a fair trial.
2.95 This approach was confirmed in R v Camberwell Green Stipendiary Magistrates, ex parte Martin:[223] the test is no stricter in the magistrates' court than on indictment.
Note 1 Maxwell v DPP [1935] AC 309, 317, per Viscount Sankey LC. [Back] Note 2 This term is still causing confusion: in Beedles the defence submitted that the “similar fact evidence” should be excluded, partly because it did not disclose a similar incident: 31 July 1996, CA No 96/1855/W4, 8. [Back] Note 3 Ball [1911] AC 47. [Back] Note 4 [1991] 2 AC 447, 460E–F. This authority is considered in detail at paragraphs 2.35 – 2.83 of the consultation paper. [Back] Note 5 [1975] AC 421, 462, per Lord Salmon: It has never … been doubted that if the crime charged is committed in a uniquely or strikingly similar manner to other crimes committed by the accused the manner in which the other crimes were committed may be evidence upon which a jury could reasonably conclude that the accused was guilty of the crime charged. The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence. [Back] Note 6 See D W Elliott, “The Young Person’s Guide to Similar Fact Evidence – I” [1983] Crim LR 284, 285. [Back] Note 7 See [1975] AC 421, 462 per Lord Salmon (n 5 above), 441D per Lord Morris of Borth-y- Gest, 444D per Lord Wilberforce, 455D per Lord Hailsham and 460E per Lord Cross of Chelsea. [Back] Note 8 DPP v P [1991] 2 AC 447, 460G, per Lord Mackay LC. [Back] Note 9 DPP v P [1991] 2 AC 447, 460 [Back] Note 10 Cross and Tapper, p 343. [Back] Note 11 Per Purchas LJ in the unreported case ofPettman, 2 May 1985, CA No 5048/C/82. See further paras 4.11 – 4.12 below. [Back] Note 12 See, eg, A-G of Hong Kong v Siu Yuk-Shing [1989] 1 WLR 236, 239F, per Lord Griffiths; and Lord Herschell LC’s dictum in Makin [1894] AC 57, 65: evidence should not be adduced which tends to show that the accused has committed other criminal acts, for the purpose of leading to the conclusion that the accused is likely from such conduct or character to have committed the offence for which he is being tried. [Back] Note 13 Boardman [1975] AC 421, 453E–G. [Back] Note 14 Boardman [1975] AC 421, 456–457, per Lord Cross of Chelsea. [Back] Note 15 An example is Straffen [1952] 2 QB 911, where the charge was of murdering a young girl by strangling in unusual circumstances: no attempt had been made to assault her sexually or to conceal her body. The defendant came under immediate suspicion because he had previously strangled two other girls, with each murder having the same peculiar feature. He had also been in the neighbourhood at the time, having just escaped from Broadmoor, and he admitted having seen the murdered girl. In those circumstances, very little other evidence was required to convict him of the third murder. An attempt is currently being made to have this case referred to the Court of Appeal by the Criminal Cases Review Commission. [Back] Note 16 At paras 2.54, 10.14 and Part XVI, provisional proposal 14. [Back] Note 17 DPP v P [1991] 2 AC 447, 460. [Back] Note 18 See paras 4.7 – 4.10 below. [Back] Note 19 Eg, in Bond [1906] 2 KB 389 the prosecution case was that a doctor had operated upon a woman who was pregnant with his child, with intent to procure her miscarriage. To rebut the defence that he was carrying out a lawful medical examination of the woman, the prosecution was allowed to rely on the evidence of another woman who claimed that nine months previously the defendant had operated on her when she had become pregnant by him, with the intention of terminating her pregnancy, and that he had told her that he had “put dozens of girls right”. [Back] Note 20 Eg, in Peters [1995] 2 Cr App R 77 the defendant was charged with importing amphetamine sulphate. He denied any involvement with drugs and claimed that the drugs must have been concealed in his car without his knowledge. Evidence was admitted that small quantities of cannabis had been found at his address. The Court of Appeal held that the evidence was relevant and admissible because the jury were entitled to consider the coincidence that an accused who denied knowledge of the drugs in his car also had drugs at his home. [Back] Note 21 Thus in Smith (1915) 11 Cr App R 229 the defendant, charged with the murder of his wife, claimed that she had drowned in the bath through natural causes. To rebut this defence, the prosecution was permitted to adduce evidence that two other women whom the defendant had induced to marry him had met with the same fate, and that, in each case, the defendant had insured the woman’s life, with the result that he benefited from their deaths. [Back] Note 22 Thus in Lunt (1987) 85 Cr App R 241, 245, it was said that in order to decide whether evidence is positively probative in relation to the crime charged, it is first necessary to identify the issue to which it relates. In our provisional proposal 16 we suggested that the specific fact in issue be identified when a court considered whether bad character evidence should be admissible. [Back] Note 23 (1983) 76 Cr App R 33. [Back] Note 24 See also Flack [1969] 1 WLR 937, 943B–C, per Salmon LJ, in which the defendant was charged with incest with three of his sisters. His defence was a blank denial. It was held that the evidence on each count was inadmissible to prove the other two since “No question of identity, intent, system, guilty knowledge, or of rebutting a defence of innocent association ever arose.” [Back] Note 25 (1990) 90 Cr App R 325. [Back] Note 26 Makin v A-G for New South Wales [1894] AC 57, 65. [Back] Note 27 See, eg, Flack [1969] 1 WLR 937 and Chandor [1959] 1 QB 545, where evidence was excluded on the basis that the defence did not fall within the specific list, due to a misunderstanding of the decision inMakin. [Back] Note 28 See, eg, Harris v DPP [1952] AC 694, 705–706, per Lord Simon LC. [Back] Note 29 See para 2.5 above. [Back] Note 30 [1997] 2 Cr App R 88. [Back] Note 31 See paras 4.8 – 4.9 below. [Back] Note 32 Noor Mohamed [1949] AC 182, 191, per Lord Du Parcq. [Back] Note 33 Defence statements are compulsory in Crown Court cases, but voluntary before summary trial: Criminal Procedure and Investigations Act 1996 ss 5, 7. A defence statement summarises the defendant’s case including those matters within the prosecution case with which the defendant takes issue. [Back] Note 34 Blackstone, para F12.11. This is borne out by the comments of Lord Sumner in Thompson [1918] AC 221, 232, that “The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset”, subsequently explained by Lord Du Parcq in Noor Mohamed [1949] AC 182, 191–2. [Back] Note 35 See, eg, A-G of Hong Kong v Siu Yuk-Shing [1989] 1 WLR 236, 240H, per Lord Griffiths: “The defence … had the opportunity if they so desired to admit knowledge of the Triad significance of the articles. If the defence had made this admission knowledge would no longer have been in issue and no proper purpose would have been served by proof of the previous conviction.” [Back] Note 36 See Anderson (1988) 87 Cr App R 349, 358, per Lord Lane CJ. [Back] Note 37 Jones v DPP [1962] AC 635, 685, per Lord Morris. [Back] Note 38 Such as the ability to ask leading questions and the proof of previous inconsistent statements. [Back] Note 39 (1978) 67 Cr App R 398. [Back] Note 40 [1999] Crim LR 857. [Back] Note 41 [1991] 2 AC 447. [Back] Note 42 Harris v DPP [1952] AC 694, 707, per Viscount Simon. [Back] Note 44 DPP v P [1991] 2 AC 447. [Back] Note 45 As Peter Mirfield has said: “The judge is likely to invite counsel to explain to him how evidence which, for the purposes of the similar fact rule, has more probative value than prejudicial effect, can possibly be more prejudicial than probative as a matter of discretion.” Mirfield, “Proof and Prejudice in the House of Lords” (1996) 112 LQR 1, 7- 8. [Back] Note 46 In H [1995] 2 AC 596 both Lord Mackay LC at p 612H and Lord Nicholls at p 627E made the point that, even where evidence is admissible under the similar fact rules, the trial judge can always use the s 78 discretion to exclude the evidence where appropriate. [Back] Note 47 See Sang [1980] AC 402, 452, per Lord Scarman; 447, per Lord Fraser; 445, per Lord Salmon. [Back] Note 48 Such as confessions and other evidence obtained after the alleged commission of the offence by improper or unfair means. [Back] Note 49 [1991] 2 AC 447, 462, per Lord Mackay LC. [Back] Note 50 John W [1998] 2 Cr App R 289. [Back] Note 51 Per Hooper J, affirming the approach adopted in Ruiz [1995] Crim LR 151. The case of Straffen [1952] 2 QB 911 was cited as an example of such an approach. See n 15 above. [Back] Note 52 [1952] 2 QB 911. See n 15 above. [Back] Note 53 See, eg, Black [1995] Crim LR 640, where D’s previous conviction in respect of the “Stow incident” in Scotland in 1990 was used to identify him as the perpetrator of three strikingly similar murders and a kidnapping in England. [Back] Note 54 [1995] Crim LR 151. [Back] Note 55 Following the wording in John W [1998] 2 Cr App R 289, reported as Wharton [1998] Crim LR 668. The validity of this type of reasoning was first acknowledged by the Court of Appeal in Downey [1995] 1 Cr App R 547. The phrase “pooling” approach is also used: see R Pattenden, “Similar Fact Evidence and Proof of Identity” (1996) 112 LQR 446. [Back] Note 56 In other words, in isolation from the evidence pertaining to the other counts. Under the cumulative approach the evidence in relation to each count is, ex hypothesi, inconclusive to prove the identity of the perpetrator of that particular count – if it were otherwise the sequential approach would be employed. [Back] Note 57 An expression first used by counsel for the Crown in Downey [1995] 1 Cr App R 547 and adopted by the Court of Appeal in the course of its judgment. [Back] Note 58 [1997] Crim LR 502. This case concerned the identification of a gang of offenders. In his commentary to this case, Ormerod points out that the cumulative approach may be dangerous in group identification cases, since the personnel involved may alter between offences. He notes that the dangers are particularly acute where the similar fact evidence is not specific to the particular defendant, but to the group as a whole: [1997] Crim LR 502, 504. [Back] Note 59 [1998] 2 Cr App R 289, reported as Wharton [1998] Crim LR 668. [Back] Note 60 The Court of Appeal has warned that it is dangerous to elevate what is essentially a matter of relevance and common sense to a proposition of law; and that the process by which it is ascertained whether the defendant committed the offences may well contain aspects of both the cumulative and sequential approaches: Gourde 31 July 1997, CA 96/5746/X5, per Evans LJ. His Honour also said: “it would be wrong to lose sight of the reasons why similar fact evidence is sometimes admitted and sometimes excluded”. [Back] Note 61 Ball [1983] 1 WLR 801. [Back] Note 62 It cannot be used to assist the prosecution in proving dishonesty: Duffas (1994) 158 JP 224. [Back] Note 63 The fact that the defendant denies that possession does not, of itself, prevent the prosecution relying on the section. However, where there are several counts, in some of which possession is denied and others in which the issue is guilty knowledge there must be a careful direction that the evidence adduced under s 27(3) is admitted only for the purpose of proving guilty knowledge, and not to prove the act of handling: see Wilkins (1974) 60 Cr App R 300. [Back] Note 64 See, in particular, Davies [1953] 1 QB 489, 493, per Lord Goddard CJ. [Back] Note 65 (1980) 70 Cr App R 200, 203, per Snow LJ. [Back] Note 66 Section 1(1) of the Act, as amended by the Official Secrets Act 1920, ss 10, 11(2), Schedules 1 and 2, provides: If any person for any purpose prejudicial to the safety or interests of the State
(a) approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place … ; or
(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or
(c) obtains, collects, records, or publishes, or communicates to any other person any secret official code word or pass word, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; he shall be guilty of [an offence].
[Back] Note 67 See para 3.5 and n 3 of the consultation paper. [Back] Note 68 The 1974 Act was the result of the report Living it Down (1972) published by a committee set up by JUSTICE, the Howard League and the National Association for the Care and Resettlement of Offenders. [Back] Note 69 Rehabilitation of Offenders Act 1974, s 7(2)(a). [Back] Note 70 Practice Direction (Crime: Spent Convictions) [1975] 1 WLR 1065. See Appendix A of the consultation paper for the text of the Direction. [Back] Note 71 Practice Direction (Crime: Spent Convictions) [1975] 1 WLR 1065, para 4. [Back] Note 72 Practice Direction (Crime: Spent Convictions) [1975] 1 WLR 1065, para 6. A failure to obtain leave in respect of a defence witness may, but does not necessarily, lead to the conviction being set aside. See Smallman [1982] Crim LR 175, where the Court of Appeal stated that a breach of para 6 of the Practice Direction could not be a ground for upsetting a conviction which was otherwise perfectly proper. This is difficult to square with the Court of Appeal’s further assertion that the Practice Direction made it necessary to seek leave to refer to spent convictions. It may be significant that in Smallman the trial judge strongly directed the jury to disregard any prejudice resulting from disclosure of the spent convictions. [Back] Note 73 Evans (1992) 156 JP 539, 541F, per Lane LCJ; [1992] Crim LR 125. [Back] Note 74 Where the decision is taken not to prosecute a suspect for an offence, the police have a discretion to issue a formal caution. Although records are kept of the administering of cautions, they do not rank as convictions. The Home Secretary has power to direct for what period of time cautions are to be kept. Should a cautioned person subsequently be convicted of an offence, the caution may be cited at the sentencing stage: see Home Office Circulars of 1990 and 1994 (1990/59 and 1994/18). [Back] Note 75 See Anthony Edwards, “Cautions – Further Problems” [1997] Crim LR 534. [Back] Note 76 Abraham v Commissioner of the Police for the Metropolis (2001) 98(5) LSG 37. The defendant contended that the acceptance of a formal caution should not prevent her from bringing a civil claim which denied the admission of guilt made in accepting the caution. The court allowed the appeal and held that the fundamental distinction between a formal caution and a criminal conviction was that the former was not brought about by any decision of a court and was not open to public view and scrutiny. The only challenge to a formal caution was by way of judicial review, which, in the circumstances, could not supply an adequate remedy. The caution was not the decision of a court and so was not res judicata. [Back] Note 77 Hayter v L [1998] 1 WLR 854, which involved a private prosecution for the same offence. [Back] Note 78 Heath (1994)The Times, 10 February 1994. [Back] Note 79 Anthony Edwards, “Cautions – Further Problems” [1997] Crim LR 534. [Back] Note 80 [2000] Crim LR 615. [Back] Note 81 [2000] 2 Cr App R 42. [Back] Note 82 (1993) 97 Cr App R 134. [Back] Note 83 (1995) 2 Cr App R 478, 488–489. [Back] Note 84 Neale (1977) 65 Cr App R 304. [Back] Note 85 See, eg, Myers [1997] 3 WLR 552, 571, where Lord Hope of Craighead expressed the view that “worthless” defence evidence could be excluded, although in that case, which concerned hearsay evidence, the House of Lords decided that there was no such discretion. [Back] Note 86 [1995] 2 Cr App 589. [Back] Note 87 [1995] 2 Cr App R 589, 597. [Back] Note 89 (1979) 68 Cr App R 44. [Back] Note 90 (1977) 65 Cr App R 304. [Back] Note 91 (1979) 68 Cr App R 44, 51, per Ormrod LJ. [Back] Note 92 [1995] 2 Cr App R 589, 597. [Back] Note 93 The paragraphs of s 1 of the 1898 Act are to be renumbered under para 1(7) of Sched 4 to the Youth Justice and Criminal Evidence Act 1999 which is not yet in force. Paras (a), (e), (f), and (g) will respectively be numbered as subsections (1), (2), (3) and (4) of s 1. Schedule 4 also amends the wording of s 1, updating the language of the section but not altering its substantive meaning. [Back] Note 94 Carter (1997) 161 JP 207. [Back] Note 95 Wood [1920] 2 KB 179. The date of the convictions might be a factor affecting the exercise of the judge’s discretion to prevent cross-examination: Coltress (1978) 68 Cr App R 193. [Back] Note 96 Stirland v DPP [1944] AC 315, 324, per Viscount Simon LC. [Back] Note 97 Maxwell v DPP [1935] AC 309, 321; affirmed in Stirland v DPP [1944] AC 315. [Back] Note 99 J C Smith, Criminal Evidence (1995) p 180. [Back] Note 100 [1988] QB 678. [Back] Note 101 At para F14.3. [Back] Note 102 Eg, evidence of a previous conviction for a road traffic offence, in later proceedings for driving while disqualified. [Back] Note 104 [1962] AC 635. [Back] Note 105 It may be that the prosecution is unwilling or unable to offer such evidence in chief, as in Jones itself. [Back] Note 106 [1988] QB 678. [Back] Note 107 Cross and Tapper, p 394. [Back] Note 108 See, eg, Cokar [1960] 2 QB 207. The prosecution were not permitted to cross-examine the defendant in order to show that he had formerly been acquitted of the same type of offence as in the present charge. They wished to show that, since he had used the same defence previously, he was lying when he said that he did not know such a defence existed. This was affirmed in Pommell [1999] Crim LR 578, where the defendant’s appeal was successful on the grounds that cross-examination about his previous acquittal for possession of a prohibited weapon was wrongly permitted by the judge. [Back] Note 109 Vye [1993] 1 WLR 471. [Back] Note 110 Maxwell v DPP [1935] AC 309, 319, per Viscount Sankey LC. [Back] Note 111 Ellis [1910] 2 KB 746. [Back] Note 112 Stronach [1988] Crim LR 48. [Back] Note 113 Redd [1923] 1 KB 104. [Back] Note 114 Ellis [1910] 2 KB 746. [Back] Note 115 Powell [1985] 1 WLR 1364. [Back] Note 116 Ferguson (1909) 2 Cr App R 250. But not merely by waving a Bible around while testifying: Robinson [2001] EWCA Crim 214. [Back] Note 117 Samuel (1956) 40 Cr App R 8. [Back] Note 118 Ellis [1910] 2 KB 746. Note that if those others are called as witnesses for the prosecution, the matter is governed by the second limb of s 1(f)(ii). See para 2.43 above. [Back] Note 120 [1976] 1 WLR 71. [Back] Note 121 (1979) 68 Cr App R 44. [Back] Note 122 Initially, evidence of B’s violent disposition was held not to be relevant, but it became so when he made claims about not tending to be violent. This case could, alternatively, be explained as coming within s 1(f)(iii). [Back] Note 123 Winfield (1940) 27 Cr App R 139, 141, per Humphreys J. [Back] Note 124 Shrimpton (1851) 2 Den 319; 169 ER 521. [Back] Note 125 Thompson [1966] 1 WLR 405. [Back] Note 126 Cf Redgrave (1982) 74 Cr App R 10, where the accused sought to put in evidence of his heterosexual disposition (he was accused of importuning in a public lavatory). That evidence was rejected by the Court of Appeal as irrelevant. [Back] Note 127 Bracewell (1979) 68 Cr App R 44; n 121 above. [Back] Note 128 Wattam (1953) 36 Cr App R 72, 78, obiter, per Oliver J. In that case, the defendant to a charge of murder had given evidence that he was a thief and had spent time in Borstal. The Court of Criminal Appeal held that this was not equivalent to a defendant saying that he or she had been convicted of a crime once when in fact he or she has been convicted on several occasions. [Back] Note 129 [1966] 1 WLR 405. [Back] Note 130 [1994] Crim LR 52. [Back] Note 131 Davison-Jenkins [1997] Crim LR 816. [Back] Note 132 See, eg, Lowery [1974] AC 85. [Back] Note 133 Scott (1984) 79 Cr App R 49. [Back] Note 135 The reference to the deceased victim was inserted by s 31 of the Criminal Justice and Public Order Act 1994, as a result of an amendment proposed by Lord Ackner. It is not limited to cases of homicide, and would, on the face of it, apply to any case in which the victim has died: see R May, Criminal Evidence (4th ed 1999) p 141. [Back] Note 136 Westfall (1912) 7 Cr App R 176. [Back] Note 137 [1997] 2 Cr App R 178. [Back] Note 138 In accordance with s 13(3) of the Criminal Justice Act 1925 or s 23 of the Criminal Justice Act 1988 (and presumably Sched 2 to the Criminal Investigations and Procedure Act 1996). [Back] Note 139 (1912) 7 Cr App R 176. [Back] Note 140 Hudson [1912] 2 KB 464, 470. [Back] Note 141 Cook [1959] 2 QB 340, 345, per Devlin J. [Back] Note 142 Selvey v DPP [1970] AC 304, 353D, per Lord Pearce. [Back] Note 143 Rouse [1904] 1 KB 184. In Selvey v DPP [1970] AC 304, 339F, Viscount Dilhorne said that a rule had developed whereby “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”. [Back] Note 144 Desmond [1999] Crim L R 313. [Back] Note 145 Rappolt (1911) 6 Cr App R 156. [Back] Note 146 Compare, for example, Rouse [1904] 1 KB 184 with Rappolt (1911) 6 Cr App R 156; and Tanner (1911) 6 Cr App R 117 with Nelson (1979) 68 Cr App R 12. [Back] Note 147 [1983] 1 WLR 350, 355. [Back] Note 148 See paras 2.71 – 2.76 below. [Back] Note 149 Eg, it is questionable whether an imputation necessarily entails an allegation of unlawful or immoral conduct: see Bishop [1975] QB 274, 279. [Back] Note 150 Blackstone, para F14.24. [Back] Note 151 See especially Selvey v DPP [1970] AC 304; Sheean (1908) 21 Cox CC 561; Turner [1944] KB 463. [Back] Note 152 Cook [1959] 2 QB 340, 347, per Devlin J.Blackstone, at para F14.26, submits that rape should not be treated as an offence sui generis. Professor J Temkin also argues that there is no reason that it should: “Rape and Criminal Justice at the Millennium” in Feminist Perspectives on Criminal Law (eds D Nicolson and L Bibbings) (2000) p 199. [Back] Note 153 Turner [1944] KB 463, 469, per Humphreys J. See Goodwin, The Times 26 November 1993, where it was held that the mere denial of the existence of an incriminating fact does not amount to an imputation. [Back] Note 154 Following Cook [1959] 2 QB 340, 347, per Devlin J. [Back] Note 155 Which came into force on 4 December 2000: Youth Justice and Criminal Evidence Act 1999 (Commencement No 5) Order 2000 (SI 2000 No 3075). [Back] Note 156 Sexual Offences (Amendment) Act 1976 s 2. [Back] Note 157 The application should be made in advance of the trial and include much detail. The application procedure is set out in Crown Court Rules, r 23D, inserted by Crown Court (Amendment) (No 2) Rules 2000 SI 2000 No 2987. See Criminal Law Week (2000) 42/17 for a discussion on the application of the rules and whether the rules take the provision far further than the statute envisaged. [Back] Note 158 Section 41(3). [Back] Note 159 Section 41(4). [Back] Note 160 [2001] UKHL 25. [Back] Note 161 A (No 2) [2001] UKHL 25, para [46], per Lord Steyn. His Lordship put the question in these terms:
…the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded.
[Back] Note 162 Selvey v DPP [1970] AC 304. [Back] Note 163 Where irrelevant factors are taken into account, it may be held that the trial judge exercised his or her discretion incorrectly and the conviction quashed: Showers [1996] Crim LR 739. [Back] Note 164 (1986) 82 Cr App R 156, 161, referring to Selvey v DPP [1970] AC 304, Jenkins (1945) 31 Cr App R 1, 15 and Cook [1959] 2 QB 340, 347–8. [Back] Note 165 McLeod [1994] 1 WLR 1500, 1511H, per Gage J (reading a judgment prepared by Stuart- Smith LJ). This passage was cited with approval in Fearon v DPP (1995) 159 JP 649, 653E–G, per Leggatt LJ. [Back] Note 166 Eg Watts (1983) 77 Cr App R 126. [Back] Note 167 McLeod [1994] 1 WLR 1500, 1512G. [Back] Note 168 Fearon v DPP (1995) 159 JP 649, 654B, per Leggatt LJ, with whom Buxton J agreed. [Back] Note 169 McLeod [1994] 1 WLR 1500, 1511H. [Back] Note 170 [1997] Crim LR 816. [Back] Note 171 Watts (1983) 77 Cr App R 126. This fact was given as one reason for excluding the criminal record of the defendant, but this was a very unusual case. [Back] Note 172 In Fearon v DPP (1995) 159 JP 649, 654C–D, Leggatt LJ, with whom Buxton J agreed, said that “The mere fact that the appellant had no previous convictions for dishonesty was no more than a factor for the justices to consider, as they did. But it did not constitute any bar to their permitting the cross-examination that they did permit.” In Powell [1985] 1 WLR 1364, 1370D, the Court of Appeal criticised the decision in Watts for “paying too much attention … to the question whether the previous offences did or did not involve dishonesty”. Subsequently, Powell was approved on this point in Owen (1986) 83 Cr App R 100. [Back] Note 173 [1970] AC 304. [Back] Note 174 Cf Flynn [1963] 1 QB 729, 737, per Slade J, where the Court of Criminal Appeal held that “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” (emphasis added). [Back] Note 175 [1959] 2 QB 340, 347–8. [Back] Note 176 [1983] 1 WLR 350. [Back] Note 177 Britzman [1983] 1 WLR 350, 355D–E, per Lawton LJ. [Back] Note 178 This last point was reconsidered in Powell [1985] 1 WLR 1364, 1370A–C, where the Court of Appeal approved the dictum of Devlin J in Cook [1959] 2 QB 340, 347. Devlin J held that the judge should ask himself whether the defendant has made a deliberate attack on a prosecution witness. If so, a judge “might well feel that he must withdraw the protection which he would desire to extend as far as possible to an accused who was endeavouring only to develop a line of defence.” [Back] Note 179 Cross and Tapper, p 441. [Back] Note 180 [1983] 1 WLR 350. [Back] Note 181 [1970] AC 304. [Back] Note 182 St Louis and Case (1984) 79 Cr App R 53, 60, per Purchas L J. [Back] Note 183 Butterwasser [1948] 1 KB 4. [Back] Note 184 We use this terminology throughout this section: D1 is the accused who attacks D2. Under s 1(f)(iii), D2 may then cross-examine D1 on his criminal record. For convenience, D1 is assumed to be male and D2 female. [Back] Note 185 Murdoch v Taylor [1965] AC 574, 584E–F, per Lord Morris of Borth-y-Gest, and 590F, per Lord Donovan. The rule extends to the spent convictions of the co-defendant: Corelli unreported, 11 April 2001, CA. [Back] Note 186 Redd [1923] 1 KB 104; Winfield (1939) 27 Cr App R 139. [Back] Note 187 In Mason, Lidgard and Herrington [1996] Crim LR 325, the court seemed to assume that a witness could be cross-examined by counsel for one accused about the previous convictions of the other defendants (although the discretion was exercised against the cross-examination in this case). This was permissible regardless of the position under s 1(f)(iii). [Back] Note 188 In Bircham [1972] Crim LR 430 it was suggested that in such a case D1 would be liable to cross-examination on his record. Blackstone disagrees: para F14.37. [Back] Note 189 [1965] AC 574. [Back] Note 190 Ibid, 592D, per Lord Donovan. [Back] Note 191 Ibid, 591A, per Lord Donovan. [Back] Note 192 See R May, Criminal Evidence (4th ed 1999) paras 7-72 – 7-77. [Back] Note 193 [1982] 2 All ER 519, 522c-f, per Kilner Brown J. [Back] Note 194 These guidelines should not be treated as equivalent to a statutory provision: see Crawford [1997] 1 WLR 1329, 1335C, per Lord Bingham CJ, where the Court of Appeal held, “The words used in the statute are simple and readily intelligible. There is, in our judgment, a danger in over-complicating what we feel sure was intended to be an easily applicable test.” [Back] Note 195 Murdoch v Taylor [1965] AC 574, 584B–C, per Lord Morris of Borth-y-Gest. [Back] Note 196 Adair [1990] Crim LR 571. [Back] Note 197 Hatton (1977) 64 Cr App R 88. [Back] Note 198 [1975] 1 WLR 1252. [Back] Note 199 It is doubtful whether the co-defendant was in fact provided with a better defence, since the fact that his story was contradicted would be bound to show him in a bad light. [Back] Note 200 Davis (1974) 60 Cr App R 157. [Back] Note 201 Rigot [2000] 7 Archbold News 2. The commentary in Criminal Law Week (CLW/00 32/4) states that further refinement can be expected so that the shield is only lost where D1’s [Back] Note 202 Davis (1974) 60 Cr App R 157. In Kirkpatrick [1998] Crim LR 63, the defendant’s evidence was inconsistent with the co-accused’s version of events, but it did not amount to undermining the co-accused’s defence. [Back] Note 203 Murdoch v Taylor [1965] AC 574, applied by the Court of Appeal in Varley [1982] 2 All ER 519. [Back] Note 204 Varley [1982] 2 All ER 519, 522g-j, per Kilner Brown J. [Back] Note 205 Seigley (1911) 6 Cr App R 106, per Hamilton J. [Back] Note 206 Murdoch v Taylor [1965] AC 574, 593D, obiter, per Lord Donovan. [Back] Note 207 Lovett [1973] 1 WLR 241. Cf Russell [1971] 1 QB 151. [Back] Note 208 Hoggins [1967] 1 WLR 1223. [Back] Note 209 Indictments Act 1915, s 5(3). See, eg, Grondowski and Malinowski [1946] KB 369. [Back] Note 210 [1995] 2 Cr App R 589. [Back] Note 211 [1967] 1 WLR 1223. [Back] Note 212 [1967] 1 WLR 1223, 1226C–D. [Back] Note 213 Varley [1982] 2 All ER 519, 522h–j, per Kilner Brown J. [Back] Note 214 It is described in more detail at paras 2.92 – 2.103 of the consultation paper. [Back] Note 215 Indictment Rules 1971, r 9. [Back] Note 216 Indictments Act 1915, s 5(3). [Back] Note 217 [1997] AC 117, 129C–F, in which Lord Taylor CJ confirmed the scope of judicial discretion and gave a non-exhaustive list of factors a judge ought to consider in the correct exercise of his or her discretion. [Back] Note 218 Contrast Brooks (1991) 92 Cr App R 36, and Cannan (1990) 92 Cr App R 16. [Back] Note 219 See Stone’s Justices’ Manual (2000) para 1–428. [Back] Note 220 [1983] 2 AC 473. [Back]
