Evidence of Bad Character in Criminal ... - Law Commission

untruthfulness; 8 or medical reasons for unreliability of evidence. 9 The list of
exceptions is not closed.
Judicial control
9.5 The court has the power to control cross-examination. Cross-examination is not
confined to issues raised in evidence in chief, but if the cross-examiner strays
outside the issues in the case (including the credit of the witness), then the court
should disallow questions which are irrelevant or vexatious, or which are
designed to prolong the case unnecessarily. 10 It is erroneous for a court to take
the view that cross-examination cannot be stopped because there is some tenuous
legal reason for it. 11 Where the defendant is unrepresented, the court still has the
power to control cross-examination conducted by the defendant. 12
9.6 The court does, moreover, have a discretion to excuse an answer to a question
when that answer would not, in the court’s opinion, affect the credibility of the
witness. 13 One could argue that, given the dictum of Lawton J in Sweet-Escott, 14
the court has a duty, not just a discretion, to excuse an answer in these
circumstances.
9.7 Questioning by an advocate is also subject to the professional Code of Conduct. 15
THE OPTION PUT FORWARD IN THE CONSULTATION PAPER
9.8 In the consultation paper 16 we thought that the time had come “to question how
far it is appropriate to allow a party free rein in attacking witnesses’ characters, on
the basis that the focus of cross-examination should be the probative credibility 17
of the witness … The onus should be on the party seeking to introduce the
incriminating evidence to show how it is directly relevant, or of significant
weight.” We referred to the Australian Evidence Act 1995 (Commonwealth),
8 Brown and Hedley (1867) LR 1 CCR 70.
9 Expert medical evidence is admissible to show that a witness suffers from some disease,
defect or abnormality of mind which affects the reliability of his or her evidence: Toohey v
Metropolitan Police Commissioner [1965] AC 595.
10 Kalia (1974) 60 Cr App R 200; Maynard (1979) 69 Cr App R 309.
11 Flynn [1972] Crim LR 428.
12 Brown (Milton) [1998] Cr App R 364.
13 Hobbs v Tinling [1929] 2 KB 1, 51, per Sankey LJ.
14 See para 9.3 above.
15 The Code of Conduct of the Bar of England & Wales, para 708(g), reads: “[Counsel] must
not make statements or ask questions which are merely scandalous or intended or
calculated only to vilify, insult or annoy either a witness or some other person”. This Code
does not, however, bind the courts: McFadden (1976) 62 Cr App R 187. The Law Society’s
Code for Advocacy replicates these provisions at para 7.1(e) and (f).
16 At para 12.92.
17 This is Zuckerman’s term. What he calls “probative credibility” we called “specific
credibility”. See A Zuckerman, The Principles of Criminal Evidence (1989) p 248.
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