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

suspicion cannot be the subject of comprehensive cross-examination: the courts
use the doctrine of relevance to decide whether such questions may be put. 97
The relationship between section 1(e) and section 1(f)
2.48 At first glance, section 1(e) appears to permit cross-examination of a kind which
section 1(f) appears to prohibit. The House of Lords sought to resolve the
apparent conflict between these subsections in Jones v DPP, 98 where a majority
took the view that, in cases of conflict, the prohibition in section 1(f) defeats the
permission in section 1(e). However, the majority judgments are complicated
and not entirely consistent. Professor Sir John Smith proposes the simplest
solution to the problem. 99 He argues that the existence of section 1(f)(i) leads to
the conclusion that section 1(f) must prevail over section 1(e), since questions
which may be put to the defendant under section 1(f)(i) are inevitably questions
which “tend to criminate him as to the offence charged”, so that if section 1(e)
were dominant, section 1(f)(i) would be of no effect as there would be no shield
to pierce.
2.49 The matter was revisited in Anderson, 100 in which Lord Lane CJ (giving the
judgment of the Court of Appeal) appears to have considered a question
revealing an offence other than that charged as permissible if proof of the
commission of that other offence “tended to connect the appellant with the
offence charged”. We take the view that Blackstone 101 is right to say that the
correct interpretation of the majority decision in Jones v DPP is that such a
question is permissible only if it falls within the terms of section 1(f)(i).
Section 1(f)(i)
2.50 It is this exception to the general prohibition against the cross-examination of the
defendant on his or her bad character that permits cross-examination on similar
fact evidence and evidence of previous misconduct which is an integral part of
the offence. 102
2.51 Cross and Tapper 103 points out that the practical effect of the provision is greatly
reduced by the decision of the House of Lords in Jones v DPP. 104 In that case it
was held that, where evidence of a previous offence has been adduced in chief,
the accused may be cross-examined about it without reliance on the exception in
97 Maxwell v DPP [1935] AC 309, 321; affirmed in Stirland v DPP [1944] AC 315.
98
[1962] AC 635.
99 J C Smith, Criminal Evidence (1995) p 180.
100 [1988] QB 678.
101 At para F14.3.
102 Eg, evidence of a previous conviction for a road traffic offence, in later proceedings for
driving while disqualified.
103 At p 397.
104 [1962] AC 635.
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