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

down guidelines for the exercise of discretion in this situation. They do not
directly take account of the need of the accused person to mount a defence to a
charge: rather, they address the practical meaning of the word “imputation”.
Essentially, the discretion should be exercised if there is “nothing more than a
denial, however emphatic or offensively made, of an act or even a short series of
acts amounting to one incident or in what was said to have been a short
interview”, as opposed to a “denial of evidence of a long period of detailed
observation extending over hours”. 177 Allowance should also be made for the
possibility of mistake, misunderstanding and confusion, and for the fact that the
defendant might be under strain, or led into making allegations during crossexamination.
178 Undue emphasis should not be placed upon the accused’s choice
of words. However, commentators have pointed out that “It cannot be pretended
that such guidelines offer very substantial protection.” 179
2.76 The Court of Appeal in Britzman 180 did not specifically discuss the issue of
“necessary attacks”. The House of Lords in Selvey v DPP 181 said there should be
no presumption against allowing cross-examination in such cases. The Court of
Appeal in St Louis has confirmed, however, that the discretion is available in this
situation, and has said that a line should be drawn between “accusations going
essentially to the credit of a police officer and suggestions made in crossexamination
that are essential to [the defendant’s] plea of ‘not guilty’”. 182 If the
defence necessarily involves imputations the defendant can avoid crossexamination
by declining to give evidence. 183
Section 1(f)(iii): attacking a co-defendant
2.77 Cross-examination where one defendant has given evidence against another is
justified on the grounds that, if evidence is adduced by D1 against a codefendant
(D2), 184 D2 may then show (by reference to D1’s previous
177 Britzman [1983] 1 WLR 350, 355D–E, per Lawton LJ.
178 This last point was reconsidered in Powell [1985] 1 WLR 1364, 1370A–C, where the
Court of Appeal approved the dictum of Devlin J in Cook [1959] 2 QB 340, 347. Devlin J
held that the judge should ask himself whether the defendant has made a deliberate attack
on a prosecution witness. If so, a judge “might well feel that he must withdraw the
protection which he would desire to extend as far as possible to an accused who was
endeavouring only to develop a line of defence.”
179 Cross and Tapper, p 441.
180 [1983] 1 WLR 350.
181 [1970] AC 304.
182 St Louis and Case (1984) 79 Cr App R 53, 60, per Purchas L J.
183 Butterwasser [1948] 1 KB 4.
184 We use this terminology throughout this section: D1 is the accused who attacks D2. Under
s 1(f)(iii), D2 may then cross-examine D1 on his criminal record. For convenience, D1 is
assumed to be male and D2 female.
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