Maxwell v DPP

JurisdictionEngland & Wales
JudgeLord Chancellor,Lord Blanesburgh:,Lord Atkin,Lord Thankerton:,Lord Wright:
Judgment Date01 June 1934
Judgment citation (vLex)[1934] UKHL J0601-1
Date01 June 1934
CourtHouse of Lords
Director of Public Prosecutions (On Behalf of His Majesty).

[1934] UKHL J0601-1

Lord Chancellor.

Lord Blanesburgh.

Lord Atkin.

Lord Thankerton.

Lord Wright.

House of Lords

After hearing Counsel as well yesterday as this day, upon the Petition and Appeal of William Maxwell, praying that the matter of the Order, set forth in the First Schedule thereto, namely an Order of His Majesty's Court of Criminal Appeal, of the 23d of April, 1934, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Criminal Appeal, of the 23d day of April, 1934, complained of in the said Appeal, be, and the same is hereby, Reversed;

And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Criminal Appeal to do therein as shall be just and consistent with this Judgment.

Lord Chancellor .

My Lords,


The Appellant, William Maxwell, was convicted at Leeds Assizes of the manslaughter of a woman called May Holliday, and also of using on her an instrument with intent to procure miscarriage. In effect he was found guilty of causing the woman's death by performing on her an illegal operation. He was sentenced to 20 months imprisonment with hard labour. He appealed from that conviction to the Court of Criminal Appeal, who dismissed the Appeal. From their decision he has now appealed to your Lordships' House under a certificate given by the Attorney-General under the Criminal Appeal Act, 1907, on the ground that there is involved a point of exceptional public importance so that in his opinion it was desirable in the public interest that a further Appeal should be brought. The question is whether it was permissible in the particular facts of the case under the Criminal Evidence Act, 1898, section 1, proviso ( f), for the prosecution to ask the prisoner whether on a previous occasion he had been charged with a similar offence, the charge having been tried and having resulted in an acquittal.


Section 1, proviso ( f), of the Act is in these terms:—

"( 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 a bad character, unless—

(i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution, with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or

(iii) he has given evidence against any other person charged with the same offence."


The particular facts under which the question here arises are as follows. At the trial a detective Inspector in the Hull City Police Force gave evidence that upon the 17th November previously he went to 11, Sandringham Street, the address of the prisoner, and met him in the passage of his house, and that the prisoner said to him, "Now, Mr. Huxley, I am unlucky again." When Mr. Paley Scott proceeded to the cross-examination of this witness, he said to him, "There is one thing in your evidence that I think it is necessary to ask you something about. His words to you began, 'Now, Mr. Huxley.'" The cross-examination then continued as follows:—

"Q. I take it he knew you therefore?—A. Yes.

Q. 'I am unlucky again.' Is it a fact within your knowledge that a patient of his whom he was treating some seven years ago died during the treatment?—A. Yes.

Q. Not at his house, I think?—A. No.

Q. But at a time when the patient was undergoing treatment by him?—A. En route to his house from her home address.

Q. So far as you know, would that be what he was referring to when he said, 'I am unlucky again'?—A. I should imagine so.

Mr. WILLOUGHBY JARDINE: My Lord, I venture to submit that as my learned friend has asked about a patient who died some years ago and has left it at that, I am entitled to ask a further question on that topic.

Mr. JUSTICE DU PARCQ: Is there any doubt about that, Mr. Paley Scott? The Jury are entitled to know the whole story.

Mr. PALEY SCOTT: I can only say at the moment that I do not know what the question is going to be. I know what the facts are.

Mr. WILLOUGHBY JARDINE: What are the facts which followed the death?

Mr. JUSTICE DU PARCQ: I do not know about the facts which followed the death; I do not know anything about it.

Mr. WILLOUGHBY JARDINE: The question that I propose to ask is: What happened to William Maxwell consequent upon the death of his patient?

Mr. JUSTICE DU PARCQ: I do not think I could allow that question in that form.

Mr. WILLOUGHBY JARDINE: If your Lordship pleases.

Mr. PALEY SCOTT: Now that that has been asked there may be a misunderstanding. The jury may think that he was convicted of some offence as a result of that. As long as it is quite understood that that did not happen, I have no objection. That question would suggest to the minds of the jury that he had been convicted.

Mr. JUSTICE DU PARCQ: You found that a patient of his died during some treatment that she was receiving from him?—A. Consequent upon treatment, my Lord."


Subsequently the prisoner went into the box himself. He was asked by his learned Counsel, "Have you ever been convicted of any offence in your life?" and he replied, "No, I have lived a good, clean, moral life, Sir."


Thereupon, when the Counsel for the Crown proceeded to cross-examine the witness, he asked him the following questions:—

Q. This is the second time that sudden death has come to a woman patient of yours, is it not?—A. Yes.

Q. The first time was in 1927?—A. In 1927, yes.

Q. And you were tried for murder, were you not?—A. No.

Q. Were you committed to trial for murder?—A. No.

Q. And were you tried for manslaughter?—A. Something like that: I could not tell you exactly.

Q. And you were acquitted by the jury?—A. Yes.

Q. That woman was put by an adopted daughter of yours into a taxi and died before she got home?—A. No.

Q. Where did she die?—A. At home.

Q. How long after leaving your house?—A. I could not tell you because I had nothing whatever to do with it. She got nothing from me and I stopped the case a week before. They had only been twice or thrice at my place.

Q. That matter was enquired into at the Assizes at Leeds and you were acquitted by a jury?—A. Yes, and I have given the information to the detectives and police of Hull, and people came and told me the whole story of that girl and what the mother had done. The next day after her death young doctors from the Infirmary gave evidence that the uterus was m a very advanced state of decomposition, a thing we have never seen before. I never used anything and never had. That was nothing to do with me whatever. She had never got into my room; she was here at the door."


The learned Judge in summing up referred to the incident of the prisoner's acquittal on the previous charge in the following words:—

"Then there is one other matter which I must deal with. It came out in the course of the case that the prisoner had talked about another unfortunate business, or words to that effect; I am not giving the exact words. He had said something like, 'I'm unlucky again,' and naturally enough Mr. Paley Scott, representing him, wanted it to be clear to you that that did not mean that he had ever previously been convicted of any offence. Naturally enough also, Mr. Jardine, appearing tor the Prosecution, thought that you ought to know a little more about what happened, and it turns out that a patient of his died in circumstances which apparently gave rise to suspicion, as a result of which he was put on his trial for murder and acquitted. Now my advice to you is, and I am sure you will act upon it; put that out of your minds altogether. You and I know very little about it; I know no more than you do, and that is not much. All we know about it is that he was suspected, and suspicion in these Courts I hope counts for nothing; it counts for nothing with me and I am sure it will count for nothing with you. He was tried and he was acquitted and that means that he can say that he was not proved guilty, and if he was not proved guilty he ought to be assumed innocent on that charge. Therefore, you are left at the end of all that evidence very much where you were before, and I am sure you will be wise enough to say to yourselves: 'We will deal with this case and the evidence in this case and nothing 'else.'"


In the Court of Criminal Appeal the argument proceeded mainly upon the construction of the section above referred to and to its bearing on the facts which came out at the trial, and in dismissing the Appeal the learned Lord Chief Justice said:—

"Now, here it is manifest that the Appellant had personally and by his advocate asked questions with a view to establishing his good character and had given evidence of his good character and, therefore, the only question which we have to consider is whether that which was done here on the part of the prosecution was permitted under the words of paragraph ( f). It is obvious that that paragraph distinguishes three things: (1) has...

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