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The wilder permutations of section 1 (f) of the Criminal Evidence Act 1898

Published online by Cambridge University Press:  02 January 2018

Roderick Munday
Roderick Munday*
Affiliation:
Peterhouse, Cambridge
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Extract

As Sir Richard Eggleston has justly observed, ‘The whole subject of character evidence in criminal cases is complex and difficult and much has been written about it. Although this rings true for section l(f) of the Criminal Evidence Act 1898, the remoter areas of that provision still remain comparatively unexplored. This paper will concentrate upon the abnormal operation of sub-provisos (ii) and (iii).

Section 1 (f) provides that, if he elects to give evidence, an accused shall neither beasked nor required to answer ‘any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character.’ The effect of this general prohibition is, in Cardozo CJ’s words, that ‘in a very real sense a defendant starts his life afresh when he stands before a jury.

Type
Research Article
Information
Legal Studies , Volume 7 , Issue 2 , July 1987 , pp. 137 - 148
Copyright
Copyright © Society of Legal Scholars 1987

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References

1. Evidence, Proof and Probability (1983: London) 2nd edn, p 71.

2. People v Zackowitz, 254 NY 192, 197, 172 NE 466, 468 (1930).

3. Eg New Zealand, whose law will be discussed infra.

4. More accurately perhaps, cases, since sub-proviso (ii) can be divided into two distinct provisions.

5. [1935] AC 309, 318–9 per Viscount Sankey LC.

6. Inder (1978) 67 Cr App R 143 (s I(f)(ii)); Murdoch v Toylor [1965] AC 571, 584 per Lord Morris; Rowson [1985] 2 All ER 539, 543 per Robert Goff LJ (s 1(f)(iii)).

7. [1973] 1 WLR 241.

8. This wording gave rise to much difficulty. The high point was attained in MPC v Hills [1980] AC 26.

9. [1973] 1 WLR at p 245 per Edmund Davies LJ.

10. Rowson [1985] 2 All ER 539, 543 per Robert Goff LJ.

11. [1973] 1 WLR at p 247 per Edmund Davies LJ.

12. See Mirfield, ‘The Meaning of “the same offence” under Section 1(f)(iii)’ [1978] Crim LR 725.

13. See now, Criminal Evidence Act 1979, s 1(I).

14. [1983] 1 WLR 350, 355.

15. [1969] 1 QB 299, 311 per Edmund Davies LJ. CT Cross on Evidence (1985: London) 6th edn, pp 365–366.

16. Mischel, Personality and Assessment (1968: New York), p 26.

17. Hesse, Steppenwolf (1929: London) trans Creighton, p 89.

18. Winfield [1939] 4 All ER 164; Stirland v DPP [1944] AC 315, 324 per Viscount Simon LC.

19. (1974) 60 Cr App R 157. See also Townsend (1986) 23 January, unreported.

20. [1976] 1 All ER 570, 572.

21. [1973] 1 WLR at p 246 per Edmund Davies LJ.

22. Displaying those elusive qualities, conveniently summarised as ‘a sensitiveness to fair play and sportsmanship’: Douglass (ed), Ethical Considerations in Prosecution (1977: Houston), p 4. ‘Counsel for the prosecution … are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius - nor be betrayed by feelings of professional rivalry - to regard the question at issue as one of professional superiority, and a contest for skill and preeminence’: Ruddick (1815) 4 F & F 497, 499 per Crompton J.

23. This notion is pursued further in the text accompanying note 34, infra.

24. Richardton [1969] 1 QB 299.

25. Eg, Cross, op cit, p 372.

26. (1945) 31 Cr App R 1, 15.

27. [1973] 1 WLR 241.

28. See Britzman [1983] 1 WLR 350, 355 per Lawton LJ.

29. See text accompanying note 26, supra.

30. Preston [1909] 1 KB 568, 575.

31. Murdoch v Taylor [1965] AC: 574, 586 per Lord Morris.

32. Jubb and Rigby (1984) 13July, unreported (No371/B/83:182/C/83) per Stephen Brown LJ; Maxwell v DPP [1935] AC 309, 319 per Viscount Sankey LC.

33. Varley [1982] 2 All ER 519. 521–2 per Kilner Brown J.

34. [1972] VR 939, 947 per Winneke CJ.

35. Eg Darrington and McGauley [1980] VR 353, 385.

36. Eg Cross, op cit, pp 373–4.

37. (1911) 6Cr App R 106.

38. Lovett [1973] 1 WLR 241, 245 per Edmund Davies LJ.

39. Criminal Procedure Act 1865, s 3.

40. Munday, ‘Order in the Indictment’ (1981) 1 LS 146.

41. See, eg, Duncan et al (1944) 30 Cr App R 70, 77 per Viscount Caldecote LCJ.

42. This is not to say that English law never allows a court to exercise discretion where co-accused are involved. However, where such discretion does exist (eg, under s 8(2A) of the Magistrates' Courts Act 1980), the supreme consideration is bound to be a neutral one, namely the overall interests of justice (see R v Leeds Justices, exp sykes [1983] 1 All ER 460).

43. [1965] AC at p 593. As Widgery LJ pointed out in Russell [1971] 1 QB 151, 154, the House's views in Murdoch v Taylor are only obiter authority.

44. Fox [1973] 1 NZLR 458, 468 per Turner P.

45. Clark [1953] NZLR 823, 830 per Northcroft J; Leadbitter [1958] NZLR 336, 343 per Finlay J; McLeod [1964] NZLR 545, 551 per North P.

46. See, eg, Garrow & Caldwell, Criminal Law in New Zealand (1981: Wellington) 6th edn, s 367, p 344. Admittedly, the absence of case law might equally indicate the opposite; but this seems an unlikely hypothesis.

47. For a general survey of the relevant literature, see Mendez, California's New Law on Character Evidence, 31 UCLA L Rev 1003, 1047–49 (1984). The effect produced by such evidence is discussed in Hans & Vidmar, Judging the Jury (1986: New York), ch 8.

48. [1965] AC at p 593.

49. Prior to Powell [1985] I WLR 1364, one might have suggested that such a case would arise where the accused's previous record too closely resembled the offence charged (cf Watts (1983) 77 Cr App R 126), a view implicit in Lord Donovan's speech in Murdoch v Taylor [1965] AC at p 593 B. See generally Munday, ‘Beyond the Bounds of Credibility’ [1986] Crim LR511.

50. [1974] AC 85. Cf Turner [1975] QB 834.

51. It is to be noted that in Matusevitch (1977) 137 CLR 633 the High Court of Australia considered the not dissimilar provisions of s 399 of the Victorian Crimes Act 1958. Two dissentients (Stephen and Murphy JJ), it is often pointed out, concluded that the prosecution had no such entitlement as in here claimed. However, they did not consider whether broader considerations than a co-accused's right to retaliate might be at stake, and their judgments undeniably turn upon the significant difference in wording between the Victorian statute and the English Criminal Evidence Act (Ibid, at pp 640,644 and 647).

52. If the convictions, say, are trivial (Nye (1982) 75 Cr App R 247), spent (Practice Direction (Crime: Spent Convictions) [1975] I WLR 1065) or for some reason particularly liable to arouse prejudice (see eg, Haslam (1936), recounted in Robey, The Jester and the Court (1975; London), pp 128–9). See Wadey (1935) 25 Cr App R 104, 107.

53. Eg, Stannard [19651 2 QB 1, 9 per Winn J.

54. Lord Donovan's speech, in which Lords Evershed and Reid concurred, might conceivably be interpreted to contrary erect [1965] AC at p 593C).

55. (1977) 137 CLR at p 642.

56. (1911) 6Cr App R 106.

57. Hepworth 1928 AD 265, 277 per Curlewis JA.

58. Selvey v DPP [1970] AC 304, 353 per Lord Pearce. This motif has been emphasised recently by Ackner LJ in Burke (1985) 82 Cr App R 156 and by Lane LCJ in Powell [1985] 1 WLR 1364.

59. Meek (1966) 21 October, unreported (Winn LJ). See also Murdoch v Taylor [1965] AC at p 590 per Lord Donovan.

60. ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, 40 Am L Rev 729, 738 (1906).

61. This theme was introduced in ‘Reflections on the Criminal Evidence Act 1898’ [1985] CLJ 62, 74–83.