NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00558.x |
| Published date | 01 September 1959 |
| Date | 01 September 1959 |
NOTES
OF
CASES
IMPUTATIONS ON
TEE
PROSECUTION
TBE
Court
of
Criminal Appeal, consisting of Lord Parker
C.J.
and
four other members, has recently thrown further light
on
the trouble-
some question of the effect of imputations
on
the prosecutor or
witnesses for the prosecution.
In
R.
v.
Cook
the appellant had
been
convicted at Quarter Sessions of obtaining
a
motorear by false
pretences and
of
receiving stolen cheque forms. For the prosecution
a
constable swore that the accused made an oral and
a
written state-
ment, both
of
which included incriminating matter.
In
croon-
examination
of
the constable the accused, who conducted
hie
own
case, suggested that the statements had been procured by the
threat
that,
if
he did not speak, his wife would be charged. The witness
denied this suggestion, and
as
a
matter of interest
it
may
be
noted
that the wife was indicted but tried separately. The accused man
gave evidence in his
own
defence, and in cross-examination he
asserted that the statements were made in consequence
of
the
threat to charge his wife. Counsel for the prosecution stated to the
Chairman that he wished to put further questions; the Chairman
said that, while counsel was strictly entitled to do
so,
he would have
thought it unnecessary
;
but counsel then cross-examined the accused
as
to
his criminal record.
On
appeal it was contended that
this
cross-examination was inadmissible under the Criminal Evidence
Act,
1898,s.
1,
proviso
(fl,
which provides that-
‘‘
A
person charged and called
as
a
witness in pursuance
of
this Act shall not be asked, and
if
asked shall not be
requked
to
answer,
any question tending to show that he haa committed
or
been convicted of or been charged with any offence other
than
that wherewith he is then charged, or is
of
bad
character,
unless
.
. .
(ii)
he
bas
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
. .
.”
The argument for the appellant was
(intef
ah)
that the nature or
conduct of the defence did not involve imputations
on
the character
of
the prosecutor or the witnesses for the prosecution. The
Court
of
Criminal Appeal held that
it
did, but that the
Chairman
in
his
discretion should have refused
to
allow the
cross-examination
M
to
previous convictions. The appellate
court
further held that it
WM
not clear whether the Chairman had
exercised
his
discretion
to
permit
511
[l959]
9
W.L.R.
616: [l959]
2All
E.R.
97,
C.C.A.
512
THE
MODERN
LAW
REVIEW
Vor..
22
the cross-examination, and therefore that the appellate court might
exercise its own discretion; that the questions should not have been
put without warning the defence; but that there had been no
miscarriage of justice. The appeal was accordingly dismissed. This
decision thus raises three distinct points of major importance-the
first on what constitutes an imputation on the prosecution; the
second on the construction of the rest of the relevant provision;
and the third on the judicial discretion in criminal trials, with any
ancillary practice.
It
is not clear
that it was necessary to mention both the prosecutor and the
witnesses for the prosecution, for the latter will normally include an
actual prosecutor, and the Crown as prosecutor is not likely to suffer
imputations; or to refer to imputations and witnesses in the plural,
since a single imputation on a single witness is sufficient, presumably
by virtue
of
the Interpretation Act,
1889,
s.
1
(1)
(b),
to bring the
proviso into operation, and has done
so
in various cases (including
the present) without argument on plurality or singularity. The
courts have generally limited the meaning of
“
imputation
”
to favour
the accused; an emphatic denial of the offence, coupled with the
assertion that the prosecutor is
a
liar, was not an imputation
’;
and
the reports contain numerous subtleties on this point. But, as will be
seen below, the word “imputation” has now generally
to
be
given its ordinary meaning.
(2)
The main difficulty which has arisen
is
due
to
the words,
“the nature or conduct of the defence is such as to involve
imputations.” Most defences cannot be raised or developed without
an imputation on the prosecution, for even an unemphatic denial
of
the offence implies some form of error on the part of the prosecution,
if no more. Particularly in charges of rape, when the issue raised by
the defence is consent to sexual intercourse, the trial of the issue
must involve an imputation of immorality on the part of the
prosecutrix.
For
that reason, apparently, the courts have treated
this defence to rape as an exception to the rule laid down by the
statute, even in cases where the defence involves not merely an
allegation of unchastity but also an imputation of preliminary
immorality.J Even in other types of case attempts have been made
to modify the wording of the statute. Thus in
Stirland
V.
Director
of
Pztblic
Prosccutzons
in the House
of
Lords Viscount Simon
L.C.
purported to provide a code on this subject. His six propositions,
some of which have been the subject of well-justified criticism,
included the rule that
“
an accused is not to be regarded as depriving
himself of the protection of the section, because the proper conduct
of his defence necessitates the making
of
injurious reflections on the
prosecutor
or
his witnesses.” But this was a generalisation based
(1)
Proviso
(1)
(ii) is far from happily drafted.
2
R.
v.
Rousc
[1901]
1
K.R.
184,
C.C.R.
3
R.
v.
Turner
rl‘J411
K.R.
463.
C.C.A.
4
[1911]
A.C.
315,
at
327.
H.L.
SwT.
1959
NOTES
OF
CASES
513
on the case previously cited and a gloss upon the statute;
it
was
obiter;
and it was contrary to an earlier ruling of the Court of Criminal
AppeaLS That court soon afterwards explained away the Lord
Chancellor's dictum and reaffirmed its previous construction
;
and
has done
so
in more than one judgment since, including that now
under consideration.' The construction adopted by the Court of
Criminal Appeal recognises that the statute means what it says;
that it is not legitimate to qualify the provision by inserting
"
unnecessarily
"
or
"
unjustifiably
"
or
other words; and therefore
that, except in cases of rape which are to be treated as
sui
generis,
any recognised imputation on the prosecution justifies cross-
examination as to the criminal record of an accused person who gives
evidence.
(3)
But to qualify this literal construction of an ill-drafted
provision the courts have assumed a discretion to exclude such
cross-examination. This is but one illustration of the assumption of
a jurisdiction to exclude evidence in criminal trials which has
developed during the present century.8 As the writer has shown
el~ewhere,~ the discretion has been asserted in relation to at least five
situations-evidence of informal admissions by accused persons,
confessions, bad character
or
previous convictions, similar facts
and things wrongfully procured. In the majority of these cases the
discretion merely involves a modification of the common law. Yet in
the case of cross-examination as to the accused's record the discretion
is superimposed upon
a
statutory provision. Together with the
discretion there have grown up some auxiliary practices. The judge
may warn the defence that
it
is going too far
lo;
in any event it is
customary for prosecuting counsel to invite the court to give a ruling
on the admissibility of the proposed cross-examination
:
indeed,
over thirty years
ago
the Court
of
Criminal Appeal expressed the
opinion that
''
this kind of question is best prefaced, whenever
it
is
put, by an express application to the judge in order that the judge
may have an opportunity
of
preventing
it
if he thinks
it
desirable to
prevent
it."
l1
The present position, as shown by the reserved judgment
of
the
Court of Criminal Appeal delivered by Devlin
J.
in
R.
v.
Cook,la
seems to be this. Cross-examination as to the accused's record is
dependent on the statutory provision cited earlier
in
this note. That
5
R.
v.
Hudson
[1912] 2K.B.464,
C.C.A.
6
R.
v.
Jenkins
(1945) 31
Cr.App.R.
1,
at
13, 14,
C.C.A.
[1959] 2
W.L.R.
616,
at
621.
8
The
recognition
of
a
discretion in this type
of
case appears to be earlier
then
Mazwell
V.
D.P.P.
[1935]
A.C.
309,
at
321,
H.L.
(regarded in
R.
v.
Cook
[1959]
2
W.L.R.
616,
at
620
as the starting point). See
R.
v.
Watson
(1913)
8
Cr.App.R.
249.
9
"
The English
Jury
and the
Law
of
Evidence
"
(1956) 31
Tulane
Law
Reoiew
153,
at
162.
lo
R.
v.
Cook
r19.591 2
W.L.R.
616,
at
622,
C.C.A.
l1
R.
v.
McLenn
(1926) 19
Cr.App.R.
104,
at
108.
12
119591 2
W.L.R.
616.
C.C.A.
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