R v Selvey
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Hodson,Lord Pearce,Lord Wilberforce,Lord Guest |
| Judgment Date | 09 May 1968 |
| Judgment citation (vLex) | [1968] UKHL J0509-2 |
| Date | 09 May 1968 |
| Court | House of Lords |
[1968] UKHL J0509-2
Viscount Dilhorne
Lord Hodson
Lord Guest
Lord Pearce
Lord Wilberforce
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Selvey against Director of Public Prosecutions (on Appeal from the Court of Appeal (Criminal Division)), that the Committee had heard Counsel, as well on Tuesday the 20th, Wednesday the 21st, Thursday the 22d, Monday the 26th, Tuesday the 27th, Wednesday the 28th, and Thursday the 29th, days of February last, as on Monday the 4th day of March last, upon the Petition and Appeal of Wilfred George Selvey, of 21 Nettleham Road, Lincoln, in the County of Lincolnshire, at present detained in Her Majesty's Prison at Greetwell Road, Lincoln, in the said County, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division), of the 10th of November 1967, might be reviewed before Her Majesty the Queen, in Her 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 Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 10th day of November 1967, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
The Appellant was convicted at Nottingham Assizes on the 26th March, 1967, of having committed buggery with a young man named McLaughlin on the 26th January, 1967. He was sentenced by Stable J. to four years' imprisonment.
At one time the Appellant and McLaughlin lived in the same lodgings. The Appellant moved to another lodging house, and during the afternoon of the 26th January, after they had met in the street, the Appellant and McLaughlin went to the Appellant's room and it was there that McLaughlin said the offence was committed.
In the course of his cross-examination by counsel for the Appellant, McLaughlin was asked the following questions and gave the following answers:
"Q. Did you then ask Mr. Selvey if he would give you a pound?
A. No, Sir, I did not ask for any money.
Q. Did you tell him that you had been with another man that afternoon and earned a pound?
A. No, Sir.
Q. Did you not then say to him 'If you give me a pound, you can get on the bed with me?'
A. No, Sir.
Q. Did you not tell him further that you wanted the pound to buy some clothes?
A. No, Sir."
McLaughlin was then asked if certain photographs of an indecent character which he had said had been shown to him by the Appellant were not in fact his. He said that they were not.
Later the following questions were put to him and he gave the following answers:
"Q. I suggest to you, Mr. McLaughlin, that nothing of the sort happened in Mr. Selvey's room at all.
A. Not true, Sir.
Q. And that an incident of this nature had taken place earlier that afternoon, with another man?
A. Not true.
Q. And that because Mr. Selvey would not give you a pound, you are blaming him for your condition.
A. Not true."
McLaughlin was examined by a doctor on the afternoon of the 26th January shortly after the offence was alleged to have been committed and in the doctor's opinion his condition showed that he had been recently the passive partner in an act of buggery.
The Appellant in the course of his evidence in chief swore that McLaughlin had asked him for the loan of a pound to buy some clothing, that McLaughlin had said that he was prepared to go on the bed and that he had already earned a pound "by going with a fellow and having sexual connections". The Appellant said that he had told McLaughlin that he was not interested and he denied that he had committed the offence.
At the end of the Appellant's cross-examination, Stable J. asked him the following questions:
"You are asking the jury, are you not, to disbelieve this young man, because, as you say, he told you that he had been buggered that day and buggered by somebody else? That is what you have told the jury?
A. That is correct.
Q. You are asking the jury to disbelieve him because he is that sort of young man?
A. Yes."
Stable J. then suggested to counsel for the prosecution that there should be a discussion in the absence of the jury. After the jury had retired, Stable J. expressed the view that the Appellant's defence had gone further than a denial that anything immoral had happened and had alleged that the incident was a blackmail operation and that it had involved an attack on McLaughlin's character. It was not until after the learned judge expressed this view that counsel for the prosecution applied for leave to put to the Appellant his previous convictions. Stable J. gave him leave to do so but intimated that he should confine his questions to sexual convictions.
It appears from the shorthand note that the Appellant was under the impression that the learned judge had stated that he was blackmailing. He denied that and asked for a retrial and intimated that he was not going to take any further part in the proceedings.
When the jury returned to the court, Stable J. told them that as it had been suggested that the evidence of McLaughlin should not be believed as he was a man of bad character, they were entitled to hear the record of the Appellant. He told them then that they would not decide the case "purely on matters of character" and that they would deal with the case upon the evidence that they had heard but at least they would not go into the jury room having heard what was put to McLaughlin "without knowing anything about the previous record of the man by whom those charges are now brought".
Counsel for the prosecution then put to the Appellant that he had been convicted of indecent assault on two boys of eight and six in 1956. The Appellant said that he did not know and, in reply to a question from the judge, that he was not willing to co-operate in view of what the judge had said to prosecuting counsel. He was presumably referring to the reference to blackmail.
Counsel for the prosecution then put to him that he had been convicted on the 1st March, 1960, of an indecent assault on a boy of eight and later of an indecent assault on a boy of eleven: that he was sentenced to two years' imprisonment on the 1st August, 1961, for persistently soliciting for an immoral purpose and on the 1st June, 1964, to six months' imprisonment for persistently importuning male persons. The Appellant's answer to these questions was that he was not speaking and had nothing to say.
None of the Appellant's previous convictions was in fact proved but in his Summing-up the learned judge proceeded as if they had been. In this Summing-up, there occurs the following passage:
"Before I pass from that, members of the jury, 'Do not give a man" a bad name and hang him', do you follow? 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. As I say 'Do not give a dog a bad name and hang him on that'. Deal simply and solely with the evidence relating to this particular charge."
and at the end of the Summing-up, he said:
"There it is, members of the jury: the young man says: 'Yes, it was done to me'. Selvey says: 'I really did not do anything indecent to that young man'. There was evidently some indecent attack which was initiated by the young man and, says Selvey, he went beyond that, 'He tried to blackmail me, or get a pound out of me'. The suggestion is that, because he failed to get the pound, in revenge, he has gone round to the police and put this false story up against Selvey."
The Appellant's appeal to the Court of Appeal (Criminal Division) was heard by Lord Denning M.R., Widgery and MacKenna L.JJ. and dismissed on the 12th November, 1967. Dealing with the point that the judge ought to have warned the jury that the Appellant's previous convictions had not been proved, Lord Denning pointed out that, when the Appellant's previous convictions were read out after conviction, the Appellant did not dispute them and said that the jury were quite entitled to treat the Appellant's attitude as tantamount to an admission, and that, even if the judge should have warned the jury, there was no miscarriage of justice and the Court would have applied the proviso. I agree with Lord Denning.
The main ground of the appeal before the Court of Appeal was, as it was before your Lordships, that the learned judge was wrong in allowing the Appellant to be cross-examined in relation to his previous convictions. It was contended that an accused person might, without losing the protection of the Criminal Evidence Act, 1898, ask a prosecution witness all questions that are necessitated by the proper conduct of his defence and that, so long as the nature or conduct of the defence is relevant to an issue upon the facts of the case, the accused does not lose the protection of the Act. The terms of the relevant provisions of the 1898 Act are as follows:
"S. 1. Every person charged with an offence, and the wife or husband, as the case may be, of the person charged, shall be a competent witness for the defence at every stage of...
To continue reading
Request your trial
-
Maycock et Al v Commissioner of Police
...evidential value. Harris v. Director of Public Prosecutions [1952] A.C. 694 p 707; Kuruma v. the Queen [1955] A.C. 197; Reg v. Selvey [1970] A.C. 304. 4. Very recently, at ‘a trial within a trial’ an accused gave evidence (accepted as true by the judge) that a confession upon which the Crow......
-
R v Steven Grant
...adduce in evidence a deposition even though it was highly probative of the offence charged...." 150 The House of Lords in Reg. v. Selvey [1970] A.C. 304 and Reg. v. Sang [1980] A.C. 402 also reiterated the principle that there is always the discretion of a judge in a criminal trial to excl......
-
R. v. Rose, [1998] 3 SCR 262
...Pouliot, [1993] 1 S.C.R. 456, rev’g (1992), 47 Q.A.C. 1; R. v. Osborn, [1969] 1 O.R. 152; Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497; Amato v. The Queen, [1982] 2 S.C.R. 418; R. v. Young (1984), 46 O.R. (2d) 520. By L’Heureux‑Dubé J. Referred to: R. v. Bain, [1992] 1 S......
-
R. v. Rose (J.), (1998) 232 N.R. 83 (SCC)
...(C.A.), refd to. [para. 61]. R. v. Osborn, [1969] 1 O.R. 152 (C.A.), refd to. [para. 63]. Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497 (H.L.), refd to. [para. R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 65]. R. v. Young (1984), 3 O.A.C. 254; 46 O.R.(2d......
-
Proving Consent in Sexual Cases: Legislative Change and Cultural Evolution
...Under s. 105(6) evidence is admissible under s. 101(1)(f)only if it goes no further than is necessary to correct the false impression.166 [1970] AC 304.167 In t hat case admitted under s. 1(f)(ii) of the Criminal Justice Act 1898.168 Criminal Justice Act 2003, s. 105(4).169 Reported sub nom......
-
Subject Index
...Crim 1722.......... 173R v Sang [1980] AC 402 ....................... 175, 266R v Seaboyer (1991) 66 CCC (3d) 321 ......... 80R v Selvey [1970] AC 304 ................................. 24R v S.H. [2003] EWCA Crim 1208 .............. 294R v Sherpa (1986) 17 WCB 461 (BC Co Ct)......................
-
Female Rape—An Ongoing Concern: Strategies for Improving Reporting and Conviction Levels
...do not want a SMD. The measures that can betaken include use of screens, and evidence-in-chief by live video link.94 See Selvey v DPP [1970] AC 304, HL.95 [2005] EWCA Crim 2826.96 [2005] EWCA Crim 1985.The Journal of Criminal Finally, under s. 34 of the YJCEA 1999 the accused is prevented f......
-
Misconduct That ‘Has to Do with the Alleged Facts of the Offence with Which the Defendant is Charged’ … More or Less
...judge willhave to make this determination, and deliver a reasoned ruling, before25 See notably the House of Lords decision in Selvey vDPP [1970] AC 304.26 Law Commission, above n. 2 at paras 4.34–4.46. The reason for concern is obvious.As suggested by recent American research into convicted......