Criminal Justice and Public Order Act 1994, S. 34: Silence in Reliance on Legal Advice
| Date | 01 February 2006 |
| Published date | 01 February 2006 |
| DOI | 10.1350/jcla.2006.70.1.16 |
| Subject Matter | Court of Appeal |
Section 101(1)(g) is supplemented by s. 106, which denotes the ways
in which such an attack may be carried out: the defendant may adduce
evidence attacking the character of the other person; he or she may ask
questions in cross-examination which are intended or likely to elicit
such evidence; or evidence may be given of an imputation about the
other person made by the defendant on being questioned under caution,
before charge, or on being charged or officially informed of the possibil-
ity of prosecution (s. 106(1)).
It is notable that s. 101(1)(g) countenances the adduction of evidence
of a defendant’s bad character irrespective of whether that defendant
testifies, thus moving away from the position in R v Butterwasser [1948]
1 KB 4 whereby a defendant could attack the character of another
person without his own character being put in evidence if he himself did
not testify. It will also be recalled that s. 1(3) of the Criminal Evidence
Act 1898 specifically covered cross-examination of a defendant on his
character.
The court in R v Hanson [2005] EWCA Crim 824, p. 6 above, sug-
gested (at [14]) that pre-2003 Act authorities will still be relevant when
determining whether there has been an attack on another person’s
character, to the extent that those authorities are compatible with the
Act itself. The 2003 Act states that an attack on another’s character is
evidence that the other person has committed an offence; or has be-
haved, or is disposed to behave, in a reprehensible way (s. 106(2)).
In D’s case, it was accepted that an attack on character had been
made. A question that was therefore not addressed was whether, in all
cases in which a defendant seeks to suggest that another person has
committed the offence charged, the s. 101(1)(g) gateway is necessarily
opened. In a similar vein, under the pre-2003 Act law, the position of the
defendant who cast an imputation on another as a necessary part of
their defence was something of a vexed issue. It remains to be seen how
these potentially troublesome issues unfold.
Ben Fitzpatrick
Criminal Justice and Public Order Act 1994, s. 34: Silence
in Reliance on Legal Advice
R v Allan [2004] EWCA Crim 2236
The appellant was convicted of conspiracy to rob (Count 1) and of the
murder of V (Count 2) by a majority of 10 to 2. He was sentenced to life
imprisonment on Count 2 and to 15 years’ imprisonment concurrent on
Count 1. The appellant had been interviewed by the police on several
occasions during the months of February, March, June and July 1995
and on each occasion he made no comment to all questions asked of
him, in reliance on legal advice given to him. The judge did not remind
The Journal of Criminal Law
16
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