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

the defendant’s favour. 167 It was recently said that “there is no reason … to
distinguish between previous convictions of a like nature and previous
convictions which are not of a like nature” for the purpose of the second limb. 168
The purpose of the cross-examination is to attack the defendant’s
creditworthiness as a witness and not to show disposition to commit an
offence. 169 By way of contrast the Court of Appeal held in the more recent case of
Davison-Jenkins 170 that the discretion ought to have been exercised in the
defendant’s favour to exclude previous convictions of a similar nature to those
which were the subject of the current charge. This illustrates that judicial
attitudes may differ on the exercise of the discretion to exclude crossexamination.
Where the convictions do not reveal dishonesty
2.74 There is some authority for the view that the discretion should be exercised so as
to exclude a criminal record which does not involve dishonesty, 171 but it now
seems clear that it may be right for the jury to know, in general terms, the
character of a person making an imputation. 172
Defence necessarily involving imputations
2.75 Difficulties occur where the defence necessarily involves making imputations. In
Selvey v DPP 173 the House of Lords rejected the contention that the discretion
ought to be exercised in favour of the accused where his or her defence
necessarily involves the making of such imputations, 174 approving instead the
approach of Devlin J in Cook. 175 The Court of Appeal in Britzman 176 sought to lay
167 McLeod [1994] 1 WLR 1500, 1512G.
168 Fearon v DPP (1995) 159 JP 649, 654B, per Leggatt LJ, with whom Buxton J agreed.
169 McLeod [1994] 1 WLR 1500, 1511H.
170 [1997] Crim LR 816.
171 Watts (1983) 77 Cr App R 126. This fact was given as one reason for excluding the
criminal record of the defendant, but this was a very unusual case.
172 In Fearon v DPP (1995) 159 JP 649, 654C–D, Leggatt LJ, with whom Buxton J agreed,
said that “The mere fact that the appellant had no previous convictions for dishonesty was
no more than a factor for the justices to consider, as they did. But it did not constitute any
bar to their permitting the cross-examination that they did permit.” In Powell [1985] 1
WLR 1364, 1370D, the Court of Appeal criticised the decision in Watts for “paying too
much attention … to the question whether the previous offences did or did not involve
dishonesty”. Subsequently, Powell was approved on this point in Owen (1986) 83 Cr App R
100.
173 [1970] AC 304.
174 Cf Flynn [1963] 1 QB 729, 737, per Slade J, where the Court of Criminal Appeal held
that “where … the very nature of the defence necessarily involves an imputation, against a
prosecution witness or witnesses, the discretion should, in the opinion of this court, be as a
general rule exercised in favour of the accused, that is to say, evidence as to his bad character
or criminal record should be excluded” (emphasis added).
175 [1959] 2 QB 340, 347–8.
176 [1983] 1 WLR 350.
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