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

forward by a co-defendant may be considered as evidence “against” him or her –
it depends on how fundamental the conflict is. 202
When section 1(f)(iii) is invoked
2.85 Unlike section 1(f)(ii), the judge has no discretion to prohibit D2’s right to crossexamine
D1 under section 1(f)(iii), provided such cross-examination is
relevant. 203 The court has a discretion at common law to order separate trials to
prevent the prejudice that might otherwise result from the absence of a discretion
to prevent cross-examination by a co-accused on the accused’s previous
misconduct. 204
2.86 The court has discretion to prevent cross-examination if the prosecution seeks to
cross-examine an accused under section 1(f)(iii) on the grounds that he or she
has given evidence against a co-accused. 205 In exercising the discretion the court
has a duty to secure a fair trial, and, to this end, the prejudicial effect of evidence
establishing the accused’s bad character should not outweigh the probative value
of such evidence as tending to show that he or she is guilty of the crime alleged. 206
The court also has a discretion to refuse to allow D2 to cross-examine D1 where
D1 has given evidence against D3. 207
2.87 It is incumbent upon the judge to warn the jury that previous convictions
revealed in cross-examination of a defendant are relevant only to his or her
credibility, and are not indicative of guilt; 208 but distinguishing between the
various purposes of cross-examination in the case of a defendant is extremely
difficult.
SEVERANCE OF DEFENDANTS
2.88 Both the Crown Court and magistrates’ courts have a discretion to order
separate trials. 209 The courts will not readily sever defendants properly joined.
This is illustrated by the case of Thompson, Sinclair and Maver. 210 One of the
evidence presents the fact-finders with a choice – either both accused committed the crime
or one of them did – but not where D1’s evidence merely raises the possibility that D2 was
solely responsible.
202 Davis (1974) 60 Cr App R 157. In Kirkpatrick [1998] Crim LR 63, the defendant’s
evidence was inconsistent with the co-accused’s version of events, but it did not amount to
undermining the co-accused’s defence.
203 Murdoch v Taylor [1965] AC 574, applied by the Court of Appeal in Varley [1982] 2 All ER
519.
204 Varley [1982] 2 All ER 519, 522g-j, per Kilner Brown J.
205 Seigley (1911) 6 Cr App R 106, per Hamilton J.
206 Murdoch v Taylor [1965] AC 574, 593D, obiter, per Lord Donovan.
207 Lovett [1973] 1 WLR 241. Cf Russell [1971] 1 QB 151.
208 Hoggins [1967] 1 WLR 1223.
209 Indictments Act 1915, s 5(3). See, eg, Grondowski and Malinowski [1946] KB 369.
210 [1995] 2 Cr App R 589.
35