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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(4) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(4).html Cite as: [2001] EWLC 273(4) |
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PART IV DEFECTS OF THE PRESENT LAW
THE PRINCIPAL DEFECTS
Evidence adduced as part of the prosecution case in chief
"similar fact"
• There is still confusion about the law on "similar fact evidence". The test for the admissibility of this kind of evidence does not, in our view, give clear enough guidance on how it is to be applied.
background evidence
• If evidence is admitted as "background" evidence its value does not have to be assessed in the light of its prejudicial effect (as it would if it were "similar fact evidence") and yet it may be very prejudicial. Moreover, it is not clear what counts as "background" evidence.
Theft Act 1968, section 27(3)
• This provision is neither justified nor useful.
Evidence adduced in the course of cross-examination
• The statutory rules are supposed to have the effect that only bad character evidence which goes to credibility is admitted in cross-examination of a defendant who "loses the shield", but the courts can and do admit evidence which does not relate to credibility.
• The rule that bad character evidence on the "tit-for-tat" basis may only be adduced in cross-examination means that witnesses are inadequately protected from irrelevant cross-examination on their character.
• The fear of "losing the shield," which should deter a defendant from making gratuitous attacks, does not bite where that defendant does not testify, or has no criminal record to be revealed. This puts a premium on tactical decisions and distorts the process.
• Defendants may be inhibited from putting their true defence on the central set of facts for fear of their character going in.
• The statute does not preclude evidence of the defendant's bad character being admitted even where its prejudice outweighs its relevance to the defendant's credibility.
• There is no power to prevent the record of a defendant being admitted where that defendant has undermined the defence of a co-accused. Unfairness can result.
THE PROBLEMS IN DETAIL (I): EVIDENCE IN CHIEF
Lack of clarity in the "similar fact evidence" rules
4.2 It is hard for parties and courts to establish exactly what the law is in this area. When the CLRC looked at it in 1972, they said it was "far the most difficult of all the topics which we have discussed"[1] and, despite the decision in DPP v P, it is still very problematic. This area of the law is ripe for codification which would bring greater clarity, certainty and accessibility.
4.3 The test in the leading authority, DPP v P is too vague. The test was formulated as follows:
… 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.[2]
4.4 To state that the evidence is admissible when it is "just" to do so, does not settle the question of how the probative value ought to relate to the prejudicial effect in order for it to be admitted.[3] There are a number of possibilities. Some of them are quantitative, weighing the probative value against the prejudicial effect by reference to a quantitative benchmark such as on balance; or substantially[4] or clearly outweighing or that it would be "an affront to common sense"[5] to exclude the evidence. Another approach might be qualitative, that is to say placing a burden on one party or the other and/or by being more specific about the way in which the concept of doing justice feeds in to the decision. Thus there might be a presumption of inclusion or exclusion. The test might require the interests of justice to be served marginally or absolutely. For example it may be sufficient that it may be in the interests of justice for the evidence to be admitted, or it may be that the interests of justice must require the evidence to be admitted. In the absence of such clarification different judges may be adopting completely different approaches to the question whether it is just to admit the evidence having regard to probative value and prejudice.
4.5 In a matter requiring the exercise of judgment in an individual case, it is impossible for a test based on what is just to be so precise that there is no room for argument in individual cases, but we do think that there is scope for more guidance. For example, there is no indication of the factors that are relevant in assessing the probative value of similar fact evidence (such as dissimilarities in the evidence),[6] or in assessing its likely prejudicial effect.
4.6 Until recently, the common law did not adequately cover cases where identity is in dispute. It was arguable that Lord Mackay preserved the requirement of "striking similarity" for cases where identity is in dispute by his dicta in DPP v P. However, the recent decision of John W[7] has limited the scope of those dicta to cases where the only evidence to show identity is the similarity between the offence charged and another offence which the defendant can be proved to have committed.
Evidence of propensity admitted as similar fact evidence
4.7 In the consultation paper[8] we agreed with Blackstone that the demarcation between what is permitted and what is prohibited is a matter of degree: "the evidence must be shown to be of very specific significance to the issue before the court. Viewed in this way 'mere' evidence of propensity is simply another way of describing evidence which does not sufficiently specifically prove guilt." [9] Nevertheless, recent authority indicates that "propensity reasoning" continues to cause difficulties.
4.8 The Court of Appeal decision of B(RA)[10] illustrates the problem. The defendant was charged with the indecent assault of his two grandsons. His defence was to deny that there had ever been any sort of indecency. He appealed against his conviction on the ground that evidence of his possession of homosexual pornographic magazines ought not to have been admitted. The appeal was allowed. It was held that, given that the thrust of his defence was a general denial, the possession of the pornography was not probative of anything save propensity and that, following the decision in Wright,[11] this "is not a proper basis to render [it] admissible".[12] The Court of Appeal in Wright had attempted, in the spirit of Makin,[13] to determine the admissibility of evidence according to the legal category into which the evidence falls, irrespective of its probative value. It is an authority which, according to Lord Justice Rose in B(RA), "ought to be more widely known".[14]
4.9 We consider it both unfortunate and significant that counsel for the prosecution in B(RA) conceded without argument[15] that Wright did not require reconsideration in the light of the House of Lords decision in DPP v P. It may well be the case that, in the particular circumstances of B(RA), the evidence did lack sufficient probative value, but to suggest that, in the absence of a specific defence, propensity evidence can never be advanced, must surely be open to doubt.
4.10 In the consultation paper[16] we rejected the notion of a "forbidden chain of reasoning" and concluded that the admissibility of similar fact evidence should not depend on the purpose for which it is adduced. Only one respondent expressed reservations about this proposal. They said that "it [is] difficult to conceive of circumstances in which propensity alone could be sufficiently probative to warrant admission". Nevertheless, they did accept that "it could become sufficiently relevant if combined with other features of the case" and therefore their analysis is not markedly different from our own.
Background evidence
4.11 In a recent line of cases, evidence which is prejudicial, and which might be expected to be required to fall within the similar fact category before it is admitted, has been held to escape the test in DPP v P because it is "background evidence". Background evidence is admitted because it is "so closely entwined and involved with the evidence directly relating to the facts in issue that it would amount to distortion to attempt to edit it out".[17] This approach can, however, be used to smuggle in similar fact evidence which would otherwise be inadmissible.[18] The current law is not altogether clear on when evidence counts as background evidence, and when it does not. We have identified four "indicators" which may enable evidence to avoid the normal exclusionary rule.[19]
4.12 To add to the confusion, there is authority in which it is said that DPP v P applies to evidence which is admissible because it is part of the essential background, which conflates res gestae, background evidence, and evidence which would normally fall within the test in DPP v P into one.[20] On the other hand, in Butler,[21] (in which the case of Underwood was not cited) it was held that counsel should assist the judge by agreeing an account of the background events so as not to distract the jury from consideration of the central events, and failing such agreement there should be a full analysis of the situation in the absence of the jury.
Section 27(3) of the Theft Act 1968
The justification for section 27(3)
4.13 On a charge of handling stolen goods, section 27(3) of the Theft Act 1968 permits the prosecution to adduce in chief evidence of criminal disposition, in the form of evidence of prior possession of stolen goods (section 27(3)(a)) or previous convictions (section 27(3)(b)) in order to prove that the defendant knew or believed the goods to be stolen.[22] Guilty knowledge in handling cases is notoriously difficult to prove, and this is undoubtedly relied on as a justification for the subsection.[23] People do from time to time acquire or deal with stolen goods without knowing or believing them to be stolen, and this possibility can make it difficult for the fact-finders to know whether a defence of lack of knowledge or belief might be true in the case before them. Their doubts in such cases can be resolved if they learn that the accused had dealt with other stolen property in the past, or has previous convictions for handling or theft.
4.14 There can be no doubt that the risk of wrongful convictions is increased by virtue of this provision.[24] Clearly, however, this is a risk which the legislature has decided must be taken if habitual or professional receivers are to be prosecuted effectively. The extent of the risk taken by the legislature is shown by the fact that subsection 27(3) permits the prosecution to adduce evidence, under paragraph (a), of a crime with which the defendant has never been charged, let alone convicted.
4.15 We are not convinced that the difficulty of proving knowledge or belief justifies the existence of this statutory exception to the general rule prohibiting bad character evidence being adduced in chief. As we said in the consultation paper,[25] there are many other instances where the mental element of an offence may be difficult to prove and previous misconduct might be of assistance.
4.16 One of the principal reasons why section 27(3) was felt to be necessary was that, until recently, no inference could be drawn against a defendant who refused to answer questions put by the police or to give evidence. We believe that in two respects the Criminal Justice and Public Order Act 1994 renders this justification far less compelling. First, by virtue of the provisions concerning silence in interview a judge can, in certain circumstances, comment on the failure of a defendant when questioned by the police either to mention facts on which subsequent reliance is placed or to explain the presence of objects or belongings found.[26] Second, as we argued in the consultation paper,[27] the possibility of drawing adverse inferences from silence at trial[28] means that a defendant will be more likely to testify than was previously the case: this will give the prosecution the opportunity of cross-examining the defendant on whether or not he or she knew or believed the goods to be stolen.
The defects of section 27(3)
4.17 Aside from the question whether it is now justified, there are problems with the application of the subsection itself. Under paragraph (a) all that is admissible is the bare fact "that the defendant was on a previous occasion found to be in possession of stolen goods" – no conviction for handling or theft need be proved. According to Mustill LJ in Wood "the only relevance of the fact is that the previous occasion would have served as a warning to be more careful in future".[29] The fact-finders will not, therefore, hear any details of the earlier transaction, and will have no evidence as to whether the defendant's earlier possession was that of a guilty handler or an unfortunate person who had acted honestly.[30] There is, of course, an alternative argument which has been described in the following terms: "given [the defendant's] previous skirmishes with the courts, he will have been more careful and the reason that once again he has stolen goods in his possession is because he is genuinely more likely not to have known that they were dishonestly come by".[31]
4.18 Although paragraph (b) used to be similarly construed,[32] the House of Lords held in Hacker[33] that it necessitates evidence being given of what the indictment for the earlier offence reveals about the nature of the goods stolen or handled.[34] In that case the charge was of handling the bodyshell of a Ford Escort RS Turbo motor car, and the evidence of the previous handling conviction revealed that it had also related to a Ford RS Turbo. The prosecution was not restricted, as the defence had contended it should be, to the bare fact, time and place of the earlier conviction.
4.19 The courts have assumed a discretion to exclude such evidence if there is a danger of undue prejudice.[35] This discretion is exercised where there is a danger of the jury regarding the evidence as relevant on the issue of possession.[36] The judge should admit the evidence only if the demands of justice warrant its admission.[37] This means that the judge has a duty to exclude it if, in the circumstances of the case, it can be of only minimal assistance to the jury.[38]
4.20 The section has been widely criticised:[39] its width means that "in their perfectly proper concern for the liberty of the individual, the courts may have made something of a nonsense of the provision".[40] The courts have given an extremely restrictive interpretation to these provisions whilst, at the same time, developing a wide discretion to exclude their application. In addition to this, the subsection contains a number of other particular defects.
4.21 In the first place, the subsection relates not only to previous misconduct, but also to misconduct after the time of the alleged offence.[41] Second, paragraph (a) allows evidence to be given of any act of handling even though no charge has been brought. This is likely to lead to disputes as to whether the defendant was in possession of stolen goods on a previous occasion. Further, paragraph (a) applies only if the goods were stolen not more than 12 months before the alleged handling: it is irrelevant when the alleged handler dealt with those goods. This can lead to bizarre results.[42]
4.22 Finally, prosecutors have said to us that it is almost impossible for them to be confident that the court will permit them to adduce evidence under this subsection. The Court of Appeal has given a clear indication that prosecutors should be discouraged from seeking to introduce evidence just because it is technically admissible under the subsection.[43] In exercising their discretion the courts are mindful that "to let in evidence of circumstances from which the existence of guilty knowledge on the prior occasion could be inferred would be such a striking inroad into the general rule which excludes evidence of prior unconnected offences that one would need clear words in the statute to justify it, and section 27(3) is quite silent".[44] This, prosecutors say, makes it difficult for them to decide whether to institute a prosecution. Indeed, it appears to be uncommon for prosecutors to seek to invoke the subsection, possibly because they do not think they will be successful.
11.53 – 55 below.
THE PROBLEMS IN DETAIL (II): CROSS-EXAMINATION OF THE DEFENDANT
4.24 The admissibility of evidence of the accused's bad character in cross-examination is governed by section 1 of the 1898 Act.[45] Below, we attempt to catalogue and clarify the defects of the provisions.
Section 1(f)(i)
4.25 Section 1(f)(i) provides an exception to the general prohibition against the crossexamination of the defendant on his or her bad character. This exception allows the defendant to be asked about misconduct which has already been admitted in chief as part of the prosecution case.[46] The subsection is defective because it refers only to evidence of the commission of the crime or evidence of a conviction, not to charges or to misconduct falling short of crime. If it is accepted that there is a sound principled basis for this provision these omissions are unfortunate, since they may require the exclusion of highly probative evidence.[47]
The first limb of section 1(f)(ii): assertions of good character
(i) The doctrine that character is indivisible
4.27 A significant problem with the present law is the notion that a person's character is indivisible, so that an accused cannot assert one part of his or her character which happens to be good without risking the exposure of another part which may be bad.[48] The psychological research does not support this doctrine,[49] it is inconsistent with the civil law of defamation,[50] two Australian law reform bodies have recommended the abolition of this rule,[51] and the Evidence Act 1995 (Cth) has now implemented that recommendation.[52] With some exceptions, mock juries and magistrates have shown that they recognise that there is no necessary connection between different character traits.[53] We discuss respondents' comments on this doctrine at paragraphs 13.22 – 13.28 below.
(ii) The use that can be made of bad character evidence
4.28 Under the current law, evidence admitted under the first limb of section 1(f)(ii) cannot go directly to the issue of guilt but is to be used as relevant only to the defendant's general truthfulness.[54] This may, of course, be difficult for factfinders to do. If it is effectively impossible for the jury to treat the evidence as only relevant to credibility, then, as a matter of judicial discretion, the bad character should not be admitted at all.[55] Four respondents complained that it is illogical and unjust that if a defendant is of good character then the fact-finders will be told that character is relevant to propensity and to truthfulness, but if it is shown under this provision that the defendant is of bad character then the factfinders must be told that this is irrelevant to his or her propensity to commit the crime.
(iii) It is unclear what kinds of assertions will trigger the loss of the shield
4.30 A further problem is that at present it is unclear what kinds of claim made in what ways will trigger the loss of the shield.[56] For example, it is not clear from the case law whether the section encompasses "the mere repetition in court of words claiming a good character uttered upon arrest",[57] or a claim made in a letter "probably intended to be read only in mitigation of sentence".[58]
4.31 Nor is it clear whether a defendant asserts good character for the purposes of the subsection by claiming (truthfully) to be, for example, a solicitor or a church warden.[59] The CLRC was concerned about defendants giving evidence which indirectly gave the (false) impression that they were of good character. In the recent case of Carter,[60] Sedley J, giving the judgment of the Court of Appeal, was of the opinion that: When the appellant gave evidence on his own behalf he made sufficient assertions about his own experience (as a farmer, a qualified electrician and a car dealer, when the fact was that much of his life had been spent in prison for similar offences) to make it arguable that he had "put his character in" …
(iv) Previous convictions of other possible culprits
4.32 An anomaly may arise where the defendant seeks to suggest a favourable contrast with other possible culprits, such as by adducing evidence that they have previous convictions for offences similar to that charged.[61] Where those other people do not give evidence, there is no question of the defendant making "imputations" against "witnesses" and so the shield is not lost under the second limb of section 1(f)(ii), but if they did happen to be prosecution witnesses, the imputation would cost the defendant the shield. Cross and Tapper states that where these witnesses are not called, the question whether the defendant has lost the shield depends on "exactly how pointedly the contrast is made".[62] One view is that there is an implication that the other person is more likely than the defendant to have committed the offence. If the defendant also has such convictions, this implication could be misleading, but it will remain uncorrected. Another view is that no such implication is entailed, in which case the jury is not misled.[63] However, it is difficult to see what purpose an accused can have in adducing evidence of another's previous misconduct, other than to show that he or she is more likely to have committed the offence than the accused.
The second limb of section 1(f)(ii): imputations against prosecution witnesses and deceased victims
Summary
(i) No exception for necessary imputations
4.35 The Court of Criminal Appeal in Hudson held 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.[64] In Stirland[65] the House of Lords sought to provide guidance on whether the shield was only lost under the second limb of section 1(f)(ii) where the imputation was not necessary to the defendant's defence. Their Lordships interpreted the rule as meaning that "an accused is not to be regarded as depriving himself of the protection [of section 1(f)] because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses." [66] However, the House of Lords held in Selvey[67] that the court has a discretion to restrict the cross-examination permitted by section 1(f)(ii), but rejected the contention that this discretion ought to be exercised in favour of the accused where his or her defence necessarily involves the making of such imputations,[68] and the point must be regarded as settled.
4.36 The Court of Appeal in Britzman[69] laid down guidelines for the exercise of the discretion in this situation, but the guidelines do not directly take account of the need of an accused to mount a defence to the charge.
4.37 The lack of an exception for necessary imputations may deter the defendant from testifying,[70] and a defendant might not put forward his or her defence, however true, if it is likely that the shield will be lost. As the Magistrates' Association wrote, "The imputation might be necessary for the defence. The defence ought not to be inhibited from making the imputation just because D has a criminal record". If the witness' bad character is relevant, the defendant should not have to risk losing the shield by drawing the court's attention to it.[71]
Suppose that the imputations are in fact accurate, correct, true … However true the imputations, however good the defence, the record going before the jury will almost inevitably be damaging to the accused and prejudice his chances of acquittal … The defence are inhibited. The defence may feel unable to conduct the defence as vigorously as they would like for fear of the record going in. It may seem too dangerous for the defence to attack corrupt prosecution witnesses. So the jury are led to believe that those corrupt prosecution witnesses are honest and truthful and reliable.
4.39 As we said in the consultation paper,[72] a defendant who denies a confession attributed to him by the police faces three unattractive options:
(a) deny the confession from the witness-box, be cross-examined on his convictions and run the gauntlet of prejudice;
(b) testify but not contest the confession, and accept that a verdict of guilty will most probably follow; or
(c) get his or her counsel to deny the confession, refrain from testifying and thus rob the denial of any force.[73]
4.40 Section 35(3) of the Criminal Justice and Public Order Act 1994 now creates a pressure to give evidence by permitting the fact-finders to draw adverse inferences from a failure to do so.[74] It is expected that fact-finders will be able to draw adverse inferences in almost every case where the accused fails to testify.[75]
4.41 In Taylor[76] it was held that the defendant could not avoid the possibility of inferences being drawn under the section by arguing that the failure to testify was based on the fear that his previous convictions might be disclosed. It was observed that the defendant would already have been given the mandatory warning under section 35(2), in the presence of the jury, of the risk that he would be running by not testifying. If he then chose not to testify on the basis that evidence of past discreditable conduct would prejudice the jury, it would be difficult for the judge, when directing the jury that they should not draw inferences, to give reasons. He could not give reasons, lest he create the prejudice which the defendant set out to escape.[77]
4.42 The case of Taylor and Goodman serves as an example. A prosecution witness, M, had originally been a co-accused with the appellants to charges of conspiracy to rob and of having a firearm with intent to commit an indictable offence (robbery). He changed his plea to guilty and became a witness for the Crown. M had convictions including one offence of assault occasioning actual bodily harm, and, more significantly, two of conspiracy to rob. When M was called as a witness, the prosecution did not tell the jury of his record. Defence counsel did not ask M about his record, for fear that the bad records of their clients would go in. The Court of Appeal commented, "We acknowledge, and indeed emphasise, that it was most unfortunate, for whatever reason, that the jury was not given the full picture of [M]'s previous record. We think the jury should have had that information." [78]
(ii) Over-reliance on judicial discretion
4.44 The court has an overall discretion to disallow cross-examination even where there has been a breach of section 1(f)(ii) if the prejudicial effect of the crossexamination exceeds its probative value.[79] It is not permissible for the discretion to be exercised in the defendant's favour merely on the basis that the previous convictions which would be revealed are of a similar nature to the offence charged,[80] nor, as we point out above, on the basis that the defence could not be put without making imputations. In practice, however, the discretion can be exercised in the defendant's favour where the suggestions made are essential to the defendant's plea of not guilty[81] or where 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",[82] or where the evidence is overwhelming.[83]
4.46 Second, it is not easy for defence advocates to predict what may or may not be put to prosecution witnesses in cross-examination without running the risk that their clients' records would be revealed.[84] This is not so much a problem in the Crown Court because the advocate can ask the judge for a ruling without prejudicing the defendant's case, but this is not practicable in magistrates' courts[85] because simply asking for an indication from the Bench reveals to them that the defendant has a record which may be significant.
(iii) The foundations for the second limb of section 1(f)(ii) are unsound
(A) CREDIBILITY
4.48 It has been said that: "the jury is entitled to know the credit of the man on whose word the witness's character is being impugned." [86] The impact of this knowledge may be subject to doubt. The psychological research shows that previous misconduct evidence may not be very, or at all, relevant to the defendant's truthfulness.[87] In fact, of far more significance than a general tendency are the motivations in the individual case.[88]
4.50 A case where this occurred in a way which was unfair to the defendant was S.[89] Each of the Court of Appeal judges took the view that
it was not reliable to assume that because a man was a regular robber he was to be disbelieved when he said that he did not commit a sexual attack on a 14 year old girl. These two activities are so vastly different that one is reluctant to import the one into the other.[90]
The trial judge, however, must have reached a different view because he had allowed the defendant's record to be admitted on the ground that the defendant had made imputations against the complainant, thus losing the shield under the second limb of section 1(f)(ii). The conviction depended on the jury's view as to who was telling the truth. It was quashed. The doctrine of the indivisibility of character[91] must have played a part here: given this doctrine, once the shield was lost, it was open to the prosecution to adduce any evidence of bad character, subject to the judge's discretion to exclude it. The reason for admitting the evidence (for the light it would shed on the defendant's credibility) was lost sight of.
(B) FAIRNESS
4.51 Some would argue that if the defendant attacks the characters of prosecution witnesses then it is fair that the defendant should lose the special protection given by the shield against cross-examination on bad character.[92] It is difficult to see how it can be fair to promote a verdict which may be reached on the basis of evidence which is more prejudicial than probative. The CLRC wrote in 1972 that
if relevant evidence is excluded during the case for the prosecution because it may be too prejudicial to the accused, it does not become any less prejudicial because the accused attacks the witnesses for the prosecution.[93]
(C) DETERRING ATTACKS ON PROSECUTION WITNESSES
4.54 The reasons for seeking to protect witnesses were summarised by counsel in Bishop[94] before the Court of Appeal. They are as follows:
(a) there is a disincentive for witnesses to come forward and give evidence if they are aware that they themselves will be attacked;
(b) the jury may be prejudiced against the witness by what they hear, and be tempted to reach a verdict on a non-rational basis; and
(c) the defendant will be tempted to make untrue allegations about the prosecution witnesses.
There is also a public interest in protecting those who cannot be present to defend themselves from irrelevant or untrue attacks on their character.
unnecessarily long-winded, grilling witnesses on the most minute details which have no bearing on the reliability of the description of the main event, all in the hope of producing self-contradiction which can be pounced on. Others are too often hostile and designed to cause loss of composure … Fear of disclosure of criminal record will not deter invidious cross-examination. It is also wrong to use the threat of a fairly arbitrary kind of punishment against someone on trial. Either a criminal record is relevant or not. We should instead be looking closely at the ways to control unacceptable crossexamination.[95]
4.56 We also think the law is inadequate in this regard. We believe that our recommendations in Parts VIII and IX go a considerable way to improving it.[96] We do not think that the second limb of section 1(f)(ii) is the best way of securing protection from irrelevant and unfair cross-examination.
4.57 Although prosecution witnesses, amongst others, do need to be protected against irrelevant or untrue imputations, and the law, rightly in our view, should seek to discourage such imputations, the accused is in need from protection from wrongful conviction. A minority of the CLRC believed that the sanction of losing the shield is too severe: "the sanction should not be one which may well make it more likely that he will be convicted of the offence".[97]
4.59 Further, as the CLRC pointed out, The present rule also makes possible a particular abuse where there are two accused, A and B, and A has a bad record and B none. B makes the attack on the witnesses for the prosecution for the benefit of both A and himself, but A cannot be cross-examined on his record. We should have liked to find a way of preventing this abuse … .[98]
(iv) Non-testifying defendants
4.60 Under the current law, a defendant who attacks prosecution witnesses through his or her advocate, does not lose the shield under section 1(f)(ii) unless he or she testifies. This is the rule in Butterwasser.[99] The justification for this is that a non-testifying defendant does not put his or her credibility in issue.[100]
… the defendant's credibility cannot be in issue unless he chooses to become a witness in the trial! As Lord Goddard CJ made pellucidly clear in Butterwasser itself, when defence counsel cross-examines a prosecution witness to credit, it is the prosecution witness's credibility that is put in issue, not the defendant's.[101]
4.65 We do not agree that a defendant's credibility can only be in issue if he or she gives evidence in person. The traditional view seems to ignore the reality that a defendant may put his or her credibility in issue even without testifying: it depends on whether a particular version of events is being put forward as the case for the defence. Where this occurs, the fact-finders will inevitably assess the credibility of the prosecution witness in relation to the credibility of the defendant in deciding whose version of events to believe. We note that in Woodward and Dobson[102] the court held that the defendants were entitled not only to a propensity direction but also to a direction about the significance of their good characters on their credibility (following Vye)[103] because, although neither testified at trial, out-of-court answers in interviews had been admitted in evidence.
(v) A temptation to fabricate
4.66 The current law could be construed as presenting a temptation to investigating officers to break the rules in the knowledge that if the accused alleges in court that this has happened, his or her previous convictions are likely to be admitted, thus making a conviction more likely.[104] However likely or unlikely in practice, the fact that such a temptation can present itself must be viewed as a defect of the present law.
(vi) Inconsistent prosecution practice
4.67 Another matter to consider, although not strictly a defect of the statute, is inconsistent prosecution practice in relation to the introduction of evidence of bad character of prosecution witnesses. Our attention has been drawn[105] to a "growing practice" among prosecutors of voluntarily disclosing the bad character of any witnesses it proposes to rely on. The purpose of such disclosure is "apparently to reveal the prosecution in a better light than where the evidence is subsequently extracted by the defence by way of cross-examination". The result is that some defendants do not have to risk losing the shield because they will not have to raise the issue of the character of a prosecution witness. The problem is that the present practice is entirely voluntary, and can therefore lead to unfairness in that defendants are being treated differently. Further, it diminishes the protection to witnesses by assuming that certain issues will be raised when they might not have been.
(vii) Lack of clarity
4.68 It is unclear in general what sort of allegation will amount to an imputation,[106] and also how the allegation has to be made to count as an imputation. Where cross-examination is disallowed, it is not always clear whether this is a result of the exercise of the judge's discretion to exclude cross-examination where an imputation has been made, or whether it is because no imputation has in fact been made. This is particularly the case as regards "emphatic denials". In Britzman,[107] it was held that a denial which entails that a prosecution witness is lying is an imputation, not merely an emphatic denial,[108] while in Desmond[109] it was held that where defence counsel made a clear suggestion of lies and drew on inconsistencies in the witnesses' accounts to lend the suggestion weight, this did not amount to an imputation. The Crown Prosecution Service argued that this uncertainty comprised one of the reasons why reform was necessary.[110]
4.69 It is also not clear whether a co-accused is entitled to cross-examine an accused on his or her record if the accused has lost the shield under the second limb. It was suggested in Lovett[111] that there were cases where cross-examination by a coaccused under the second limb of section 1(f)(ii) might be appropriate. At that time a co-defendant could not take advantage of section 1(f)(iii), which permits cross-examination on a co-accused's record in certain circumstances, unless charged with the same offence,[112] and it was recognised that if cross-examination were not appropriate then it might be prevented as a matter of discretion. Doubt was cast on this latter proposition by Rowson,[113] which emphasised the general principle that a defendant must always be free to elicit evidence which advances his or her case; but this case was not directly concerned with section 1(f), and arguably leaves the Lovett discretion untouched as an exception to that principle.[114]
Section 1(f)(iii): cross-examination of a co-accused
4.70 Under section 1(f)(iii) of the 1898 Act, a defendant is liable to cross-examination on previous misconduct if "he has given evidence against any other person charged in the same proceedings".[115]
(i) Lack of judicial discretion
4.71 The principal criticism of section 1(f)(iii) is that the court has no discretion to prevent loss of the shield where D1 gives evidence against D2.[116] This might result in unfairness. Lord Pearce, in his dissenting speech in Murdoch v Taylor, gave two examples of situations calling for the exercise of a judicial discretion:
The first is where [D2's] counsel has deliberately led [D1] into the trap, or has, for the purpose of bringing in his bad record, put questions to him in cross-examination which will compel him, for the sake of his own innocence, to give answers that will clash with the story of the other defendant, or compel him to bring to the forefront implications which would otherwise have been unnoticed or immaterial. The second type of situation is where the clash between the two stories is both inevitable and trivial, and yet the damage by the introduction of a bad record (perhaps many years previous) will in the circumstances be unfairly prejudicial.[117]
4.72 Professor Ian Dennis has suggested[118] that there is another situation which calls for a discretion to be available, an example of which occurred in Varley.[119] D2 is the first to testify, and inculpates D1. D1 faces a dilemma. If he remains silent, he may appear to have no answer to the allegation, and the jury may be invited to draw appropriate inferences from his silence.[120] If he testifies, he will have to contradict D2's evidence, thus giving evidence against her and losing the shield.[121]
4.73 It has been said that: "It is difficult to shake off the impression that the House of Lords, by opting for an inflexible rule under section 1(f)(iii), has promoted fairness to the co-accused at the expense of fairness for the accused quite unnecessarily." [122] The reason for this inflexibility is that nothing should be done to impede a defendant in the conduct of his or her defence.[123] An alternative explanation is that judges must not be seen to pick and choose between coaccused, since the "fairness" shown to one may produce an appearance of unfairness to another.[124]
4.74 The traditional approach has given precedence to the interests of the defendant seeking to admit the bad character evidence over those of the defendant who would be prejudiced by it, and this is the effect of the ruling in Murdoch v Taylor.[125] An experienced practitioner argued that in the capacity of a prosecution witness, it is only fair that the attacking defendant loses the shield. He said: "In the practical world of the hard fights in contested criminal cases with, in so very many instances, much hard lying taking place, it is improvident to put a premium upon the invention of cunning false stories giving rise to immunity from credit being properly tested". This argument is also made by the CLRC,[126] but it entirely overlooks the prejudicial impact the revelation of a criminal record can have on a defendant's case.[127]
4.75 We see much force in the argument that one defendant should be entitled to adduce properly relevant evidence without regard to the adverse effect that it has on the case of another defendant. On the other hand we also see the force in the suggestion that all persons who give evidence should be free to do so without having irrelevant or marginal or barely relevant evidence of past misdeeds dragged into the public arena. Thus whilst it should not be a matter of balancing competing interests, it may be more satisfactorily approached by imposing generally a raised standard of relevance on bad character evidence which does not fall within the central facts of the case, and to require this standard to be satisfied before one party may adduce evidence of, or cross-examine about, the misconduct of another person on other occasions.[128]
(ii) Defendants may be inhibited in their defence or may be deterred from testifying
4.76 Although D2 may be inhibited in her defence if she is not permitted to adduce evidence of D1's bad character, D1 may be inhibited in his defence if he automatically loses the shield through undermining the other's defence.[129] Where D1's defence cannot be put forward without giving evidence "against" D2, it is at least arguable that it is inappropriate automatically to penalise him for what is unavoidable. Worse still, the fear of loss of the shield might inhibit defendants with bad character from testifying at all.
(iii) The court may be misled
4.78 A problem can arise where one defendant (D2) gives evidence, but this does not amount to "evidence against" D1, with the result that D2's record does not go in. D1 then gives evidence against D2, and D1's record is admitted. D2's record may be worse than D1's, and a jury or magistrates will be left with a misleading picture about the relative creditworthiness of the two accused. This may happen irrespective of the order in which the two defendants give evidence.[130] For example, the second defendant to give evidence may do so without implicating the one who has already given evidence (and been cross-examined on his character), thus retaining the shield.[131] In both situations the result is that the jury or magistrates only hear about one defendant's character although the other defendant's character is as bad or worse.
The hearsay exception for reputation
4.79 Evidence of reputation is hearsay evidence, admissible as an exception to the hearsay rule.[132] In the Hearsay Report we retained the common law exception for reputation on the ground that (like some other common law exceptions) "they fulfil useful functions and we are not aware that they cause any difficulties".[133] This general statement applies only weakly if at all to the common law exception of reputation and we doubt the exception is much relied on.
THE NEED FOR CHANGE
4.80 The law on "similar fact evidence" has merited criticism from the Royal Commission on Criminal Justice, which described it as "difficult to comprehend, embodied as it is in a series of judgments that are not always readily reconcilable".[134] The principal governing statute in this area of law, the 1898 Act, has been described by a former Lord Chief Justice as "a nightmare of construction".[135] In 1998 Schiemann LJ said that section 1 of the 1898 Act "has troubled the criminal courts ever since it was enacted at the end of the last century." [136]
4.82 As can be seen from all the problems identified in this Part, many are matters of substance, but some also arise from the fact that the law has to be disinterred from so many sources. Thus part of the solution is to bring together all the rules into one place. This Commission has long advocated the advantages of codification of criminal law and procedure, including the law of evidence.[137] The recent Government paper "Criminal Justice: the Way Ahead"[138] provides support for our position and proposes a "consolidated, modernised core criminal code to improve public confidence and make for shorter, simpler trials". One element of such a proposed code would be the rules of evidence.[139]
Note 1 CLRC, Evidence Report (1972) para 70. [Back] Note 2 DPP v P [1991] 2 AC 447, 460E–F. [Back] Note 3 As Professor Birch says: “…the truth is that we do not know what we are looking for”. See her commentary on Channing [1994] Crim LR 924, 926. [Back] Note 4 As in the Australian Evidence Act 1995 (Cth), s 101(2). [Back] Note 5 Boardman [1975] AC 421, 454A, per Lord Hailsham of St Marylebone, approving Lord Simon of Glaisdale’s use of that phrase in Kilbourne [1973] AC 729, 759D. [Back] Note 6 In Johnson [1995] Crim LR 53 the Court of Appeal allowed an appeal because the similarities between the present charge and the previous misconduct were taken into account but the clear dissimilarities were ignored. [Back] Note 7 [1998] 2 Cr App R 289. [Back] Note 9 Blackstone, para F12.8. [Back] Note 10 [1997] 2 Cr App R 88. [Back] Note 11 (1990) 90 Cr App R 325, which was not cited to the trial judge. Note that Wright predates DPP v P and one might therefore have expected the approach in Wright to have been subsumed within the general principle set out inDPP v P. In Wright the prosecution case was that W, a headmaster of a school, had for his last two years at the school engaged in homosexual activities with the pupils. The evidence in question was a booklet and a video, both of which tended to show a sexual interest in males, especially young males, on the part of whoever they belonged to. W denied that they were anything to do with him. [Back] Note 12 [1997] 2 Cr App R 88, 93C, per Rose LJ. [Back] Note 13 See para 2.15 above. [Back] Note 14 [1997] 2 Cr App R 88, 90D. This would be, according to Professor Birch in her commentary on the case, “a retrograde step”; see [1997] Crim LR 441. [Back] Note 15 [1997] 2 Cr App R 88, 92B. [Back] Note 16 At para 2.54, 10.14 and Part XVI, provisional proposal 14. [Back] Note 17 Cross and Tapper, p 343. [Back] Note 18 Cross and Tapper, p 343. See also para 10.2 below. [Back] Note 19 See para 10.1 below. The case law is discussed in some detail at paras 2.70 – 2.84 in the consultation paper. [Back] Note 20 In Underwood [1999] Crim LR 227 evidence of violence on a different occasion, evidence that the defendant prevailed upon the victim, his girlfriend, to have an abortion, and evidence about his knowledge of the effect of violence upon her given that she had had a stroke was all said to be part of the “essential background” to the relationship but also said to be admitted applyingDPP v P. [Back] Note 21 [1999] Crim LR 835. [Back] Note 22 See paras 2.27 – 2.30 above. [Back] Note 23 SeeCross and Tapper, p 378. [Back] Note 24 A point made by the authors of Andrews and Hirst on Criminal Evidence (3rd ed 1997) para 15–056. [Back] Note 26 See s 34 (accused’s failure to mention facts when charged or questioned) and s 36 (accused’s failure or refusal to account for objects in his or her possession etc). [Back] Note 29 [1987] 1 WLR 779, 784E. This rationale cannot be universally correct because the section permits the admission of evidence of any prior possession, including one later than the present alleged offence. [Back] Note 30 Wood [1987] 1 WLR 779. [Back] Note 31 See R Munday, “The Admissibility of Evidence of Criminal Propensity in Common Law Jurisdictions” (1989) 19 VUWLR 223, 231, n 35 (emphasis in original). [Back] Note 32 See Fowler (1988) 86 Cr App R 219. [Back] Note 33 [1994] 1 WLR 1659. [Back] Note 34 The reasoning was that paragraph (b) had to be read together with s 73(2) of PACE, which defines the phrase “certificate of conviction”, in the case of a conviction on indictment, as “a certificate … giving the substance and effect (omitting the formal parts) of the indictment and of the conviction”. A certificate of a summary conviction consists of “a copy of the conviction” signed by the clerk of the convicting court. The certificate must record the nature of the goods stolen or handled, and Hacker shows that “the whole certificate … is admissible”. [Back] Note 35 See Herron [1966] 2 All ER 26, 30B–C. For a recent example, see Irwin [1997] 1 CLY 1110. [Back] Note 36 Perry [1984] Crim LR 680. [Back] Note 37 Rasini, The Times March 20 1986. [Back] Note 38 Knott [1973] Crim LR 36. But in Canton 2 June1992, CA No 90/5242/X3 the Court of Appeal emphasised the importance of the judge’s ascertaining the circumstances of the conviction rendered admissible by paragraph (b) so that he or she may assess its relevance and probative value; E Griew, The Theft Acts (7th ed 1995) p 255 n 18a. [Back] Note 39 See, eg, R Munday, “Handling the Evidential Exception” [1988] Crim LR 345. The CLRC has recommended that the subsection be repealed: Evidence Report, para 101(vi). Interestingly, A T H Smith, Property Offences (1994) para 30-65, n 65, points out that similar provisions were not incorporated into the Victorian Crimes Act 1973 when the Theft Act 1968 was adopted, following a recommendation by the Chief Justice’s Law Reform Committee that they were unfair to defendants. [Back] Note 40 A T H Smith, Property Offences (1994) para 30-64. [Back] Note 41 The subsection states that the handling to be relied on must have occurred “not earlier” than twelve months before the offence charged; see Davies [1972] Crim LR 431. [Back] Note 42 See J Parry, Offences against Property (1989) para 4.67. [Back] Note 43 Rasini, The Times 20 March 1986. [Back] Note 44 Wood [1987] 1 WLR 779, 784E–F, per Mustill LJ. [Back] Note 45 We describe the present law briefly in Part II above where sections 1(e) and 1(f) are set out. [Back] Note 46 Eg, “similar fact evidence”, or evidence of a previous conviction for a road traffic offence in later proceedings for driving while disqualified. [Back] Note 47 Eg, in Cokar [1960] 2 QB 207 the defendant was charged with breaking and entering with intent to steal. His defence was that he had entered the house in question in order to have a rest. The prosecution alleged that C feigned being asleep to avoid conviction but he claimed not to know that such conduct would not be an offence. In order to rebut this claim, the prosecution was permitted to ask him about a previous occasion on which he had been acquitted of the same offence. It was held that these questions, though relevant, should not have been allowed. Lord Parker CJ held, at p 210, “ …it seems to this Court quite impossible, under exception (i), to question a man in regard to a charge in respect of which he was acquitted.” In Pommell 16 October 1998, CA No: 97/5655/W2 the Court of Appeal commented, obiter, that
The last sentence [of Lord Parker’s] seems to rule out any questions in crossexamination in any circumstances in respect of events leading to a charge of which a man has been acquitted. If that is the effect of the Act it may appear surprising.
Pommell is also reported at [1999] Crim LR 576 (but this quotation from the judgment does not appear there). [Back] Note 48 Winfield (1939) 27 Cr App R 139. See para 2.59 above. [Back] Note 49 See paras 6.23 – 6.34 of the consultation paper. [Back] Note 50 Plato Films v Speidel [1961] AC 1090, 1102, per Lord Devlin. [Back] Note 51 ALRC, Evidence (1987) Report No 38, paras 177–178; New South Wales Law Reform Commission, Working Paper on Evidence of Disposition (1978) p 122, Draft Bill clause 111(5)(e). [Back] Note 52 Section 110(3). The Evidence Act 1995 (New South Wales) was drafted in similar terms. [Back] Note 53 See n 87 below. [Back] Note 54 Maxwell v DPP [1935] AC 309, 321, per Lord Sankey LC; Richardson and Longman [1969] 1 QB 299, 310C and 311B–C, per Edmund Davies LJ. [Back] Note 55 Davison-Jenkins [1997] Crim LR 816. [Back] Note 56 SeeCross and Tapper, p 405. [Back] Note 57 Solomon (1909) 2 Cr App R 80. [Back] Note 58 Parker (1925) 18 Cr App R 14. [Back] Note 59 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 (Powell [1985] 1 WLR 1364), to be a regular churchgoer (Ferguson (1909) 2 Cr App R 250), or to have performed kind or honest deeds on a previous occasion (Samuel (1956) 40 Cr App R 8). [Back] Note 60 (1997) 161 JP 207, 208. [Back] Note 61 Ellis [1910] 2 KB 746. [Back] Note 62 Cross and Tapper, p 399. [Back] Note 63 Consider the facts of Lee [1976] 1 WLR 71. The accused was alleged to have taken some money and a ring from a person living in the same house. He denied taking them, part of his case being that at least two persons with convictions for dishonesty had also had access to the house. The Court of Appeal held that cross-examination of a prosecution witness to the effect that the two persons had such convictions did not result in the loss of the shield, for “it is not implicit in an accusation of dishonesty that the accuser himself is an honest man” (at p 73F, per Orr LJ). But it is difficult to see what purpose the accused might have had in adducing evidence of the others’ criminal records, if not to make it appear that they were more likely than the accused to have committed the crime. [Back] Note 64 [1912] 2 KB 464, 470–71, per Lord Alverston CJ. [Back] Note 65 Stirland v DPP [1944] AC 315. [Back] Note 66 Ibid, 327 (emphasis added). Following Miller [1997] Crim LR 217, the shield will be lost where an imputation is made against a person with material evidence to give, even if he or she is not called as a witness in the proceedings. It now seems that there is no difference between a prosecution witness who testifies, or a deceased victim, or a declarant whose evidence is read in accordance with s 13(3) of the Criminal Justice Act 1925, s 23 of the Criminal Justice Act 1988 or s 9 of the Criminal Justice Act 1967. The interpretation of the phrase “witnesses for the prosecution” may be questionable (see R Munday, (1997) 161 JP 379, 381 and the commentary of Professor Birch at [1997] Crim LR 217 at p 218), but at least one anomaly has been removed. [Back] Note 67 [1970] AC 304, with the proviso that there is a discretion regarding emphatic denials, and an exception for rape cases, so a defendant may allege consent to intercourse without exposing himself to cross-examination. [Back] Note 68 See also, eg, Jenkins (1946) 31 Cr App R 1, 13–14; and Cook (1959) 43 Cr App R 138. [Back] Note 69 [1983] 1 WLR 350. [Back] Note 70 This danger was appreciated during the Second Reading of the 1898 Bill in the House of Commons. Mr Atherley Jones MP said, if it happened by chance that, although I was innocent of the particular offence which was the subject of the charge which was brought against me, I was a man of indifferent character and I had been in previous years convicted of a similar offence, then nothing in the world would induce me, short of compulsion, to go into the witness box and submit to cross-examination. Hansard (HC) 25 April 1898, vol 56, col 1035. In the research conducted for the Royal Commission, 28% of defence counsel thought their clients’ defences had been inhibited by the statutory provision: M Zander and P Henderson, Crown Court Study (1993) Research Study No 19 for the Report of the Royal Commission, para 4.6.8. [Back] Note 71 The Court of Appeal has suggested that the onus should perhaps fall on the prosecution to put evidence of their witness’ character before the fact-finders and not leave it to the defence: Hickey and Robinson 30 July 1997, CA No 96/5131/S1/2/3/5. This avoids the situation in Taylor and Goodman [1999] 2 Cr App R 163 discussed below at para 4.42. But see also para 4.67 for the inconsistency of prosecution practice. [Back] Note 72 At para 12.41 (footnotes omitted). [Back] Note 73 This quandary is set out by A Zuckerman in The Principles of Criminal Evidence (1989) at p 265. In a recent case, counsel described the defendant as being “between a rock and a hard place” in deciding whether to give evidence himself in support of his defence, as his criminal record was highly prejudicial: Dempster [2001] EWCA Crim 571, para [40]. [Back] Note 74 Four respondents thought more defendants were testifying. In the Home Office Study on the right of silence, the researchers note that “Virtually all respondents … agreed that fewer defendants are declining to testify since the introduction of the provisions” but “There are no centrally collected statistics on the numbers and proportions of defendants testifying to support or refute these perceptions.” T Bucke, R Street, and D Brown, The Right of Silence: the Impact of the Criminal Justice and Public Order Act 1994 (2000) Home Office Research Study 199, pp 52–53. [Back] Note 75 In Cowan [1996] 1 Cr App R 1, the Court of Appeal held that there would need to be some evidential basis or some exceptional factors in a case to justify not drawing an adverse inference. The court did not accept that the fact that the accused had attacked prosecution witnesses and had a criminal record could constitute such a factor; otherwise a defendant with a criminal record would be in a better position than one without, which would be “a bizarre result” (at p 6B, per Lord Taylor CJ). [Back] Note 76 Taylor [1999] Crim LR 77. [Back] Note 77 T Bucke, R Street, and D Brown, The Right of Silence: the Impact of the Criminal Justice and Public Order Act 1994 (2000) Home Office Research Study 199, p 15. [Back] Note 78 [1999] 2 Cr App R 163, 173E, per Judge LJ. [Back] Note 79 Powell [1985] 1 WLR 1364. See also Murdoch v Taylor [1965] AC 574, 592G, per Lord Donovan; Selvey v DPP [1970] AC 304; and Thompson [1966] 1 WLR 405. [Back] Note 80 McLeod [1994] 1 WLR 1500, 1512G. [Back] Note 81 St Louis (1984) 79 Cr App R 53. [Back] Note 82 Britzman [1983] 1 WLR 350, 355D, per Lawton LJ. [Back] Note 83 Britzman [1983] 1 WLR 350, 355G. [Back] Note 84 It will be recalled that, in the Crown Court study conducted by the Royal Commission, 28% of defence counsel believed that their clients’ defences were inhibited by this provision; see n 70 above. [Back] Note 85 In 1999 (the latest year for which figures are available for magistrates’ courts and the Crown Court) 77,000 people appeared for trial at the Crown Court, while 1,884,000 people were proceeded against in magistrates’ courts. Ie, approximately 96% of people who face trial do so in a magistrates’ court. Criminal Statistics England and Wales (2000) Cm 5001. [Back] Note 86 Cook [1959] 2 QB 340, 348, per Devlin J. [Back] Note 87 This would seem to be the view taken by the participants in the research conducted by Dr Lloyd-Bostock. They were told that the defendant had a previous conviction for handling, or for an assault. The mock jurors did not say that they found him to be a less credible witness. Only if they were told that the defendant had a previous conviction for an indecent assault on a child were the mock jurors likely to say that they found him to be a less credible witness: see Appendix D to the consultation paper, paras D.37 – D.41. Conversely, the magistrates who took part in the subsequent study found a defendant with a previous conviction for a serious assault a less credible witness, whilst other convictions had a less significant impact on their assessment of credibility: see Appendix A below. [Back] Note 88 A cross-examining advocate will test a witness’s specific credibility in the case by pointing to: inconsistency with other evidence, inconsistency with a previous statement by that witness, bias, the possibility that the witness will profit from a conviction, or the possibility that the witness has been pressurised into giving particular testimony. [Back] Note 90 S 98/1296/X4 at p 6 of the transcript, per Schiemann LJ. [Back] Note 91 See para 4.27 above. [Back] Note 92 Eg, in Taylor and Goodman [1999] 2 Cr App R 163 (see para 4.42 above), Goodman made serious imputations against prosecution witnesses. His own record showed that he was a professional armed robber. The judge considered that “fairness required” that Goodman’s record should go in. The charges were conspiracy to rob and possession of a firearm with intent to commit robbery. [Back] Note 93 CLRC, Evidence Report, para 123(i). [Back] Note 94 [1975] QB 274, 279. [Back] Note 95 Jenny McEwan, “Law Commission Dodges the Nettles in Consultation Paper No. 141” [1997] Crim LR 93, 102. [Back] Note 96 See paras 8.32, 9.41 and 9.42. [Back] Note 97 CLRC, Evidence Report, para 123(i). [Back] Note 98 CLRC, Evidence Report, para 131. [Back] Note 100 Butterwasser [1948] 1 KB 4, 7, per Lord Goddard CJ. [Back] Note 101 Paul Roberts, “All the Usual Suspects: A Critical Appraisal of Law Commission Consultation Paper No 141” [1997] Crim LR 75, 89. See also Paul Roberts, “Evidence of Previous Misconduct” [1997] Crim LR 369. [Back] Note 102 [1996] Crim LR 207. [Back] Note 103 [1993] 1 WLR 471. [Back] Note 104 See para 12.13 of the consultation paper and see generally J D Heydon, “Can the Accused Attack the Prosecution?” (1974) 7 Syd LR 166, 167. This point is also made by Latham CJ in Curwood (1944) 69 CLR 561, 577. [Back] Note 105 See (1997) 161 JP 378. [Back] Note 106 See, eg, Courtney [1995] Crim LR 63, in which the Court of Appeal upheld the trial judge’s decision that an allegation that a Customs officer had asked the accused’s mother to have a quiet word with him and persuade him to admit the offence, constituted an imputation. [Back] Note 107 [1983] 1 WLR 350. [Back] Note 108 Cf the House of Lords in Selvey v DPP which seemed to assume that an emphatic denial would not be an imputation. [Back] Note 109 [1999] Crim L R 313. [Back] Note 110 It might seem surprising that this point can still be the subject of litigation, but there is clearly room for argument. Eg, in Taylor and Goodman [1999] 2 Cr App R 163 the appellants argued that their records should not have been admitted under the second limb of section 1(f)(ii) because the cross-examination of the police and the accomplice were no more than vigorous denials, the judge at trial having decided otherwise. The Court of Appeal approved the trial judge’s decision in this regard. [Back] Note 111 [1973] 1 WLR 241. [Back] Note 112 The effect of the Criminal Evidence Act 1979 is that the co-defendant need only be “charged in the same proceedings”.The amendment reversed the effect of the decision of the House of Lords in Metropolitan Police Commissioner v Hills [1980] AC 26, in which it was held that the words “same offence” meant the same in all material respects, so that where two defendants were tried together but not for the same offence, the provision did not apply. See also P Mirfield, “The Meaning of ‘the same offence’ under Section 1(f)(iii)” [1978] Crim LR 725. [Back] Note 113 [1986] QB 174. [Back] Note 114 SeeBlackstone, para F14.36. CfPhipson on Evidence, (15th ed 2000, ed M N Howard, P Crane, D A Hochberg, R Bagshaw, P Mirfield, K Grevling and C Hollander) para 18–48, where it is argued that the effect of Rowson is to confer a general right of crossexamination in such circumstances (excluding even the Selvey discretion to prevent crossexamination), but that the discretion recognised in Lovett ought to be preserved. [Back] Note 115 In Murdoch v Taylor [1965] AC 574, 592D, Lord Donovan defined “evidence against” as meaning “evidence which supports the prosecutor’s case in a material respect or which undermines the defence of a co-accused”. Lord Bingham CJ cited this dictum with approval in the Court of Appeal in Crawford (Charisse) [1997] 1 WLR 1329, 1333G, adding that the essential question, put at its simplest, was whether the evidence given by the defendant in the witness box, if accepted, damaged in a significant way the defence of the co-defendant. [Back] Note 116 Following the House of Lords’ decision in Murdoch v Taylor [1965] AC 574. The court does have a discretion where it is the prosecution that seeks to cross-examine an accused under s 1(f)(iii) on the grounds that he or she has given evidence against a co-accused: Seigley (1911) 6 Cr App R 106, per Hamilton J. The court also has a discretion to refuse to allow D3 to cross-examine D1 where D1 has given evidence against D2: Lovett [1973] 1 WLR 241. Cf Russell [1971] 1 QB 151. [Back] Note 117 [1965] AC 574, 587E–F. [Back] Note 118 I H Dennis, “Evidence Against a Co-Accused” (1983) 36 CLP 177, 183. [Back] Note 119 [1982] 2 All ER 519. [Back] Note 120 Criminal Justice and Public Order Act 1994, s 35(3). [Back] Note 121 The problem becomes more acute when D2 has few or trivial convictions compared with D1. In such a case, D2 “has everything to gain and very little to lose by incriminating [D1] up to the hilt and making the trap as tight as possible”; I H Dennis, “Evidence Against a Co-Accused” (1983) 36 CLP 177, 183. [Back] Note 122 R Pattenden, Judicial Discretion and Criminal Litigation (2nd ed 1990) p 259. [Back] Note 123 Lord Donovan explained this in Murdoch v Taylor [1965] AC 574, 593D–E:
[The accused] seeks to defend himself; to say to the jury that the man who is giving evidence against him is unworthy of belief; and to support that assertion by proof of bad character. The right to do this cannot, in my opinion, be fettered in any way.
[Back] Note 124 R Munday, “The Wilder Permutations of s 1(f) of the Criminal Evidence Act 1898” (1987) 7 LS 137, 144. [Back] Note 125 [1965] AC 574. [Back] Note 126 CLRC, Evidence Report, para 132. [Back] Note 127 See I H Dennis, “Evidence Against a Co-Accused” (1983) 36 CLP 177, 184. [Back] Note 128 See Part XIV below. [Back] Note 129 This point was referred to in the consultation paper: see paras 13.9 and 13.45. [Back] Note 130 .The order in which the two accused give evidence depends, in the Crown Court, on the order in which they are named in the indictment. Stone’s Justices’ Manual (2001) para 2-61 suggests that in the magistrates’ court, the practice on trial on indictment should be followed so that, in the absence of agreement, the defendants should proceed in the order in which they appear on the court register. [Back] Note 131 Consider also the situation postulated byCross and Tapper, p 415, in which two people charged in the same proceedings each give evidence against the other, but they both have criminal records and neither invokes s 1(f) (iii). [Back] Note 132 Rowton (1865) 10 Cox CC 25. Richard May, Criminal Evidence (4th ed 1999) paras 7-07-7-13 gives a succinct account of the current law, and the defects of it. [Back] Note 133 Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) Law Com No 245, para 8.132. [Back] Note 134 Report of the Royal Commission, ch 8, para 30. [Back] Note 135 Anderson [1988] QB 678, 686E, per Lord Lane CJ. [Back] Note 136 S 98/1296/X4, at p 3 of the transcript. [Back] Note 137 We have expressed these views more than once before: see our Twenty-Seventh Annual Report (1993) Law Com No 210, para 2.15; our Twenty-Eighth Annual Report (1994) Law Com No 223, para 2.27; and Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) Law Com No 245, para 1.6. Our views are supported by Professor Andrew Ashworth, Principles of Criminal Law (3rd ed 1999) p 6. [Back]
