R v Selvey
| Jurisdiction | England & Wales |
| Judge | MASTER OF THE ROLLS,MR. JUSTICE WIDGERY |
| Judgment Date | 10 November 1967 |
| Judgment citation (vLex) | [1967] EWCA Crim J1110-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 November 1967 |
| Docket Number | No. 1454/67 |
[1967] EWCA Crim J1110-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Master of the Rolls (Lord Denning)
Mr. Justice Widgery
and
Mr. Justice MacKenna
No. 1454/67
MR. R. A. D. PAYNE appeared as Counsel for the Appellant.
MR. J. J. DEAVE appeared as Counsel for the Crown.
The facts are distasteful. It happened in Lincoln last January. On a Thursday at about half-past three in the afternoon, a young man aged 21 came out of a lodging-house. He stopped a policeman on a bike. He told the policeman that a man in the lodging-house had forced him on to the bed and interfered sexually with him. Two police officers went with the young man to the lodging-house. They found a man of 50 in bed. It was Selvey. The young man said: "That's him" and went out of the room and waited outside. The police officers told Selvey of the complaint and cautioned him. According to the police officers, Selvey replied: "Well yo' got to prove it, 'you?" According to Selvey, he said: "I' know what you are talking about". The police officers asked him to come to the station. He got up and went with them. The young man was a little ahead of them, Selvey asked the police officers: "Is that the fellow who is making the complaint?" The police officer said "Yes". Selvey said: "I've never seen him before in my life", but almost at once he retracted saying: "Oh yes, I have, seen him once". At the police station Selvey refused to answer any questions. He said: "I'm not saying anything. I am not going to help you blokes. I am thinking about myself and that is all I am saying".
The police officers went back to Selvey's room. They found two photographs of naked men. They were under some books on a table near the bed. The police officers also arranged for the young man to be medically examined. A doctor examined him at twenty to seven that evening. He found clear indications that the young man had been sexually assaulted within a few hours previously. That was ample corroboration of the young man's story. So Selvey was charged. At the committal proceedings he learnt for the first time that the police had found the photographs and of the medical findings. He was sent to trial at Assizes.
Before the trial the police officers looked up this man's record. It was not, of course, admissible in evidence, but it told its own story. He had been convicted a number of times of theft and dishonesty and had served sentences of imprisonment. These were of no particular relevance. But he had other convictions which showed him to be a homosexual.
There were five convictions for indecency. In 1956 he had indecently assaulted two small boys of six and eight years of age in a cinema and was sentenced to twelve months. In 1960 he indecently assaulted another small boy of eight in a cinema and was sentenced to six months. A month or two later he indecently assaulted a boy of 11 in a cinema and was sentenced to six months. In the next year 1961 he enticed boys into a public lavatory, and was convicted of persistently soliciting for immoral purposes, and was sentenced to two years. In 1964 he offered two fifteen-year-old boys ten shillings to go for a walk with him. He was convicted of persistently importuning male persons, and was sentenced to six months. None of these convictions was, however, admissible in evidence unless he did something to let them in.
Before the trial, as we have said, Selvey refused to say anything. But at the trial he had to meet a formidable case against him. There was not only the evidence of the young man himself, but also the photographs and the medical evidence. He did it by turning the tables on the young man, alleging that he was the offending party. As to the photographs, Selvey said that he had never had the photographs in his room; leaving the Jury to infer that they had been "planted" in his room by someone else. His Counsel suggested to the young man in cross-examination that he had brought them: but the young man denied it. As to the medical evidence, Selvey said that the young man must have been sexually interfered with by someone else that afternoon, but not by him, Selvey. He said that the young man asked him for £1 and told Selvey that "he was prepared to go on the bed. He told me that he had already been with a person and that he had given him a pound", meaning that "he had earned a pound by going with a fellow and having sexual connections". Selvey said he rejected the offer, saying: "No, I am not interested".
After Selvey had given that evidence, the Judge turned to Selvey and said to him: "You are asking the Jury, are you not, to disbelieve this young man because, as you say, he told you he had been b….. that day and b….. by somebody else?
(A) That is correct. (Q) You are asking the Jury to disbelieve him because he is that sort of young man? (A) Yes".
Thereupon the Judge turned to Counsel for the Prosecution and said: "Mr. Deave, perhaps we might have a discussion in the absence of the Jury".
The Jury retired: and after discussion the Judge ruled that Selvey could be cross-examined on his previous convictions on sexual matters. Selvey was cross-examined on them. Each one of them was put to him, but he refused to admit or deny them. He merely said: "I know", or "I am not speaking". When the Judge came to sum up, he treated Selvey's attitude as tantamount to an admission. He said to the Jury: "You would have been in a perfectly hopeless position, if you had to try this case with the idea that that young man was a sort of male prostitute, carrying about filthy photographs on him, and the man in the dock was a man, so far as you knew, of unblemished character. It is obvious you would have had a perfectly false picture before you".
After a half-an-hour's retirement the Jury found him guilty and the Judge in passing sentence said: "While you are about you are a public menace to young people. You must go to prison for four years".
Now with the leave of the single Judge, Selvey appeals to this Court.
The principal point raised in the appeal is that the Judge ought to have shut out these previous convictions. Here he not only permitted the cross-examination. He himself suggested it. This, it is said, was wrong. In support of this argument, much reliance was placed on the case in 1961 of Regina v. Elynn, 1963 1 Queen's Bench page 729, when it was said at page 737 that when "the very nature of the defence necessarily involves an imputation against a prosecution witness or witnesses, the discretion should, in the opinion of this Court, be as a general rule exercised in favour of the accused, that is to say, evidence as to his bad character or criminal record should be excluded".
Now we quite agree that, if there be any "general rule" such as to control the exercise of the Judge's discretion, then it would apply in this case. It is plain that the nature of the defence necessarily involved imputations against the young man who was a witness for the prosecution. The defence of Selvey made out that the young man was a homosexual who carried indecent photographs about with him, a young man who had previously that afternoon allowed himself to be sexually interfered with for money, and was offering to allow Selvey also to interfere with him sexually, again for money. It was necessary for Selvey to make these imputations in order to make good his defence. It would be hopeless for him simply to deny the charge. No Jury would have accepted his blank denial unless he put forward something to account for the photographs and the medical evidence. He had to describe all that happened in the room that afternoon. It was all one occasion: and he, in his defence, was entitled to give his account of it.
But we are of opinion that there is no "general rule" such as to control the Judge's discretion. It would be an unwarranted gloss on the words of the Statute which gives the Judge a discretion to permit such cross-examination when "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", see Section 1 (f)(ii) of the Criminal Evidence Act, 1898. Soon after the Statute was passed, some of the Judges expressed the opinion that the accused was not to be cross-examined except when he gratuitously or unnecessarily attacked the character of the witness for the Prosecution, It was suggested that there was a "general rule" that cross-examination was not permissible when the defence necessarily involved imputations against the prosecution witnesses. But in 1912 in the leading case of Rex v. Hudson 1912 2 King's Bench page 464 the full Court consisting of Chief Justice. Lord Alverstono, Mr. Justice Bray, Mr. Justice A. T. Lawrence, Mr. Justice Pickford and Mr. Justice Avory, rejected the suggestion of any such "general rule". They said at page 470 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 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". It follows that the accused can be cross-examined as to his record, not only when the nature or conduct of the defence unnecessarily involves imputations on the character of the witnesses for the prosecution, but also when it necessarily involves them, as indeed it did in Hudson's case itself. A bank book had been stolen. It was found in Hudson's pocket. His defence was that the bank book had been stolen by two of the witnesses for the prosecution,...
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