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

the prosecution” within section 1(f)(ii) means a “witness called in the case”.
However, Westfall is not cited in Miller.
2.65 On a literal construction, this provision might lead to accused persons being
liable to cross-examination on their criminal record whenever they assert their
innocence or contend that the prosecution’s evidence is false, because of the
implied suggestion that at least one of the prosecution witnesses is guilty of
perjury. This argument has had some judicial support. 140 However, it has been
argued that “unless [this limb] is given some restricted meaning, a prisoner’s bad
character, if he had one, would emerge almost as a matter of course”, 141 and that
such revelation is “always damaging and often fatal to a defence”. 142
2.66 Thus, the word “imputation” is given a limited meaning. It has been held that an
emphatic denial does not count as an imputation, even though it may take the
form of the accused stating in cross-examination that a prosecution witness’s
evidence is a lie and the witness therefore a liar, 143 or of defence counsel making a
clear suggestion of lies and drawing on inconsistencies in the witnesses’ accounts
to lend the suggestion weight. 144 If, however, the defendant’s denial goes beyond
what is necessary to challenge the veracity of the accuser it will amount to an
imputation. 145 The line between a mere denial and an accusation that a
prosecution witness is lying or fabricating the evidence is very difficult to draw,
and some of the authorities are difficult to reconcile. 146 This difficulty seems to
have motivated the court in Britzman 147 to lay down guidelines for the exercise of
the discretion to disallow cross-examination where the shield is technically lost. 148
2.67 Not every allegation of misconduct or impropriety will amount to an
imputation, 149 and what is considered to be an imputation may well vary from
one generation to the next. 150
140 Hudson [1912] 2 KB 464, 470.
141 Cook [1959] 2 QB 340, 345, per Devlin J.
142 Selvey v DPP [1970] AC 304, 353D, per Lord Pearce.
143 Rouse [1904] 1 KB 184. In Selvey v DPP [1970] AC 304, 339F, Viscount Dilhorne said
that a rule had developed whereby “If what is said amounts in reality to no more than a
denial of the charge, expressed, it may be, in emphatic language, it should not be regarded
as coming within the section”.
144 Desmond [1999] Crim L R 313.
145 Rappolt (1911) 6 Cr App R 156.
146 Compare, for example, Rouse [1904] 1 KB 184 with Rappolt (1911) 6 Cr App R 156; and
Tanner (1911) 6 Cr App R 117 with Nelson (1979) 68 Cr App R 12.
147 [1983] 1 WLR 350, 355.
148 See paras 2.71 – 2.76 below.
149 Eg, it is questionable whether an imputation necessarily entails an allegation of unlawful
or immoral conduct: see Bishop [1975] QB 274, 279.
150 Blackstone, para F14.24.
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