R v Bishop
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,AND |
| Judgment Date | 13 June 1974 |
| Judgment citation (vLex) | [1974] EWCA Crim J0613-5 |
| Docket Number | No. 711/A/74 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 June 1974 |
[1974] EWCA Crim J0613-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stephenson
Mr. Justice MacKenna
and
Mr. Justice O'Connor
No. 711/A/74
MR. D. BATE appeared as Counsel for the Appellant.
MR. WORSLEY appeared as Counsel for the Crown.
The Appellant was convicted at the Central Criminal Court on 11th February of burglary and sentenced to nine months' imprisonment. Against that conviction he appeals on the ground that the jury were wrongly allowed to hear evidence from the Appellant in cross-examination of his previous convictions.
He had been for twelve days the tenant of a Mr. Price's first floor back room in a house in North London on the introduction of a lady in a local public house where the Appellant worked as a barman. He was convicted of entering as a trespasser the ground floor flat which Mr. Price himself occupied in the same house and stealing therein two packets of aftershave lotion and other property, including clothing and 10 belonging to Mr. Price, on the 30th June, 1972. Mr. Price left him in the house when he went to work at 7.15 in the morning and on his return about 5.30 that evening he found that the lock on his bedroom door had been interfered with, the door forced open, property was missing from his bedroom, and the Appellant missing from the house. The Appellant had left, without notice or leaving any address but with his two keys, his key to the front door and his key to his room. His fingerprints were found on a portable medicine cabinet and an aftershave lotion container in Mr. Price's bedroom. A second aftershave lotion container, which had also been in his bedroom, was found in the Appellant's room.
When the Appellant was traced by the police to Blackpool in March 1973 he denied committing any offence. He said that he had been into Mr. Price's bedroom a number of times at his invitation and had also taken aspirins from his medicine cabinet, he had never seen an aftershave have lotion container and someone must have put in his room the one that was found there. When he gave evidence at his trial, he repeated his denial and explained the presence of his fingerprints by the fact that he had a homosexual relationship with Mr. Price and was in the habit of going into his bedroom at his invitation on many nights during his short stay in his house in order to have homosexual relations with him, of using his aftershave lotion and of taking aspirins from his medicine cabinet, where he said the aftershave lotion was also kept. He repeated his allegation that the aftershave container found in his own room must have been left there without his knowledge by somebody else. He had mentioned to Mr. Price that he would be leaving but admitted that he had not told him that he was to leave that day. He claimed that he had left his two keys on the bottom step opposite the door of his flat for Mr. Price to pick up, and he suggested two other men living in the house as possibly responsible for the burglary.
Mr. Price in his evidence emphatically denied that he had had homosexual relations with the Appellant. that the Appellant had only once come to his bedroom, on the evening before he left; on that occasion he had not gone further than four feet inside the bedroom and he had never touched anything in the bedroom; further the medicine cabinet was empty and there were no aspirins in it.
After the Appellant had given his evidence in chief Prosecuting Counsel asked leave in the absence of the Jury to ask him questions tending to show (in the words of Section 1(f) of the Criminal Evidence Act 1898) that ad been convicted of offences other than that wherewith he was there charged on the ground that, in the words of proviso (ii) to the sub-section, "the nature and conduct of the defence is such as to involve imputations on the character of" Mr. Price. Relying on the case of Selvey, 1970 Appeal Cases, 304, Counsel submitted that the Appellant had made a very serious allegation against Mr. Price's character that he was having homosexual relations with the Appellant, which made it right that the Jury should know what sort of person the Appellant was in order to decide fairly who was telling the truth.
The Appellant had seven previous convictions since 1966 involving twenty-five offences, ten for dishonesty. Evidence of them was therefore gravely prejudicial - so prejudicial as perhaps to excuse the Appellant's recorded comment on the Judge's ruling, after strenuous objection by his Counsel, that his convictions could be given in evidence:- "I have no chance now". No complaint is made of the Judge's direction that they did not mean that he must be disbelieved, far less that he must be guilty of the offence with Jury were concerned.
Defending Counsel's objection to the evidence before the trial Judge and before this Court was twofold. First, the of allegation/homosexual relations between Mr. Price and the Appellant was not an imputation on Mr. Price's character or at least not an imputation on his character in the sense in which character is used in Section 1(f) (ii). Second, if it was, the evidence of the Appellant's own character and convictions was so prejudicial that the Judge should have exercised his discretion in favour of the Appellant to exclude it. In our opinion, the Judge rightly rejected both submissions and this appeal fails.
Mr. bate submitted that in these progressive (or permissive) days it was no longer an imputation on a man's character to of him as a homosexual or that he practised homo-sexuality. Since 1967 when Section 1 of the Sexual Offences Act 1967 became law, it was no longer an offence to commit a homosexual act with another man of full age in private. No reasonable person would now think the worse of a man who comitted such acts; he might not wish to associate with him but he would not condemn him. We think that this argument goes too far and that the gap between what is declared by Parliament to be illegal and punishable and what the common man or woman still regards as immoral or wrong is not wide enough to support We respectfully agree with the opinion of Lord Reid. in Knuller's case, 1973 Appeal Cases, 435 at page 457, that "there is a material difference between merely exempting certain con-duct from criminal penalties and making it lawful in the full sense", and with him read the Act of 1967 as saying that even though homosexual acts between consenting adults in private may be corrupting, if people choose to corrupt themselves in this way, that is their affair and the law will not interfere. Price were to sue the Appellant in respect of his allegation if repeated outside a court of law,...
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