REPORTS OF COMMITTEES
| Date | 01 March 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01361.x |
| Published date | 01 March 1973 |
REPORTS
OF
COMMITTEEB
CRIMINAL
LAW
REVISION
COMMITTEE
ELEVENTH
REPORT
:
CHARACTER
EVIDENCE
(continued)
(2)
Cross-examination
I
The Committee proposes a new codification
of
the rules relating
to
the cross-examination of the accused to replace section
1
(f)
of
the Criminal Evidence Act
1898.
It
will be recalled that section
1
(1)
takes the form of an exclusionary enacting part, subject to three
exceptions, the second of which
is
itself sub-divided.
It
is con-
venient to consider separately the fate of each part of section
1
(f)
as re-cast in the draft Bill.
This is replaced by sub-
clause
6
(1)
of the draft Bill. The form of clause
6
is similar to
that
of
clause
8
in consisting of a principal exclusion in sub-
clause
1,
subject to exceptions in later sub-clauses. Here the
exclusionary part clarifies a number of points left obscure in
section
1
(1).
First,
it
makes it quite explicit that the clause relates only to
questions asked in cross-examination, and
so
eliminates any question
which might otherwise arise about its application to examination
in chief
or
re-examination.
Secondly, it replaces the reference to bad character in section
1
(1)
with
a
fuller reference to questions revealing bad disposition
or
reputation, either generally
or
in a particular respect.
Thirdly,
it
explicitly applies to questions about acquittals in
addition to those relating to offences committed by the accused,
for
which he had been convicted,
or
with which he had been
charged. This might create some difficulty. Since the terminology,
apart from the addition of the reference to acquittals, is substan-
tially the same as that of section
1
(f),
and since no special
definitions are proposed,
it
might be assumed that the words in
the sub-clause bear the same meanings
as
those they bear in
section
1
(1).
In particular,
it
might be assumed that
“
charged
”
refers only
to
charges in court, following the interpretation adopted
in
Stirland
v.
D.P.P.2
But the inclusion of the reference to
acquittals could cast some doubt upon this.
It
can be argued that
bhe reference to convictions and acquittals reduces the force
of
the
further reference to charges, if limited to charges in court, to the
(i)
The enacting part
of
section
1
(1).
Pares. 114-136
incl.
end
cll.
6 end
7.
*
[1944]
A.C.
316.
167
168
THE
MODERN
LAW
REVIEW
VOL.
36
vanishing point of connoting cross-examination about trials involv-
ing successful pleas in bar.
“
Charged
”
thus only makes a signifi-
cant contribution to the meaning if
it
brings in charges out of court.
The answer to this, it is tentatively submitted, is that the word
is not designed to add anything, but to prevent cunning evasion
of a prohibition solely on cross-examination about convictions and
acquittals, by reference only to charges
in
court, but not to their
outcome.
Fourthly, the new sub-clause refers to questions
‘‘
tending to
reveal to the court
or
jury
”
any of the excluded matters.
As
the
Committee makes plain,3 this change from the wording of section
1
(f)
is designed to confirm the majority view in
Jones
v.
D.P.P.*
that the exclusion applies only
to
information not already before
the court. This requires further examination. The Committee
expresses the view that it was held in
Jones
that the doctrine
applied whether the accused himself,
or
the prosecution,
adduced
evidence of the other conduct.
It
is not at all clear that there was
a majority in
Jones
for the emphasised part of this proposition.
The speeches of Viscount Simonds and Lord Morris“ in
Jones
depended upon the fact that the reference there did
not
show the
only thing which might have been relevant to the prosecution case,
namely, the details of the rape case. Thus Viscount Simonds
said,?
‘‘
Vagueness was matched by vagueness,’’ and Lord Morris
made it even plainer,”
“
If
the jury could have supposed that the appellant had been
involved in some
unspecified
prior charge
then
nothing new was
being disclosed to them.”
The reason
for
this insistence was that the reference by Jones which
was held to justify the cross-examination had, in fact, referred not to
i.he rape case at all, but to a further quite extraneous incident which
could certainly not have been proved as part of the prosecution’s
case.
It
was thus held in
Jones,
at least by the majority of the
majority, that the questions could be asked precisely because they
did not suggest anything which could have been proved in chief;
if they had, they would have been inadmissible as disclosing some-
thing new. Further difficulty is created by a change in the formula-
tion of the proposed rule in paragraph
117
under which it operates
Para.
117.
[1962]
A.C.
635.
Para.
116.
The third member
of
the majority, Lord Reid, is less easy to
follow.
In an
obitar
dictrm
on
p.
665
in
his rationalisation
of
the decisions
in
R.
v.
Chitson
[1909]
2
K.B.
645 and
R.
v.
Kennaway
[1917]
1
K.B.
25 he states that it is
enough that the first revelation comes
from
the prosecution, but
at
p.
664
as
part
of
his
ratio
decidandi
he says that he agrees with Lord Morris
on
this
aspect of the case. Lord Denning and Lord Devlin both explicitly reject Lord
Reid’s rationalisation.
At
p.
659.
At p. 689.
Emphasis supplied.
MAR.
1978
REPORTS
OF
COMMITTEES
169
if
the misconduct “has already been mentioned at the trial.”
“
Mentioned
’’
is clearly wider than
‘‘
given in evidence,” and
might be apt
to
include for example, a reference by counsel for
the prosecution in opening which he is subsequently unable to sub-
stantiate by adducing evidence. The discrepancy is not clarified
by reference to the notes on the sub-clause which refer to a fact
‘‘
already mentioned by the accused
”
but say nothing of evidence
adduced by either party,
or
mentioned by the prosecution.‘o
It
is highly unsatisfactory that everything should hinge on the
interpretation of the undefined word
‘‘
reveal,” and still less that
the three references to
it
in the Report should all suggest different
meanings.
It
is also a legitimate matter of complaint that the
Report makes no attempt
to
meet the powerful arguments against
the whole conception of revelation raised by Lord Denning and
Lord Devlin in
Jones.
It
consequently remains obscure exactly
what sort of reference about what and by whom will justify how
much questioning about what. The disagreement among the law
lords in
Jones
as
to the right answer to these questions suggests
that the courts need more guidance than the draft Bill
or
the
Report gives on these points.
This has caused difficulty
principally because the terms of the exception are more limited
than those of the prohibition in the enacting part, in making no
reference to proof of charges
or
of
bad character.“ Some
l2
also
think
it
difficult to reconcile this limited exception with the broad
rule laid down in section
1
(e),
and with Lord Simon’s second
proposition in
Stirland
v.
D.P.P.13
The Committee here adopts
the minority view in
Jones
according to which any question going
to
the issue can be asked in cross-examination whether
or
not
it
relates to otherwise excluded items. This is achieved by clause
6
(2)
of
the draft Bill. Accepting the Committee’s view of the existing
law, this represents
a
radical extension of the permissible degree of
cross-examination about the accused’s record, disposition and repu-
tation. The precise degree
of
the extension is hard to quantify
since it depends
in
part upon the interpretation which is given to
clause
8
of the draft Bill, and as indicated previously
it
is capable
of a dangerously wide interpretation; and in part upon the
impermeability
of
the distinction between questions going to the
liability of the accused, and those going to his credibility. One’s
(ii)
The
exception in section
1
(1)
(i).
10
p.
218.
See
R.
v.
Cokar
19601
2
Q.B.
207;
Jones
v.
D.P.P.
[1962]
A.C.
635;
and
Attwood
V.
R.
[l
SO] A.L.R.
321
where the drafting was held to be patently
defective
in
this respect.
l2
e.g.
Lord Denning in
Jones.
1s
119441
A.C.
315. “He may, however, be cross-examined as to any
of
the
evidence he has given in chief, including statements as to his good record, with
a
view to testing his veracity or accuracy,
or
to showing that he is not to be
believed on his oath.”
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