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

not ask M about his record, for fear that the bad records of their clients would go
in. The Court of Appeal commented, “We acknowledge, and indeed emphasise,
that it was most unfortunate, for whatever reason, that the jury was not given the
full picture of [M]’s previous record. We think the jury should have had that
information.” 78
4.43 One respondent disagreed that there should be any exception for necessary
imputations. He argued that where a defendant “attacks” a prosecution witness,
the defendant assumes the status of a witness. In this capacity “it is only fair that
the witness who vilifies that other should have his own credibility tested, subject
always to the discretion of the judge”. The South Eastern Circuit took the same
view, arguing that it was necessary that the jury know of the defendant’s previous
misconduct in order to assess the credibility of the defendant’s story. We agree, to
the extent that the defendant’s previous misconduct is in fact relevant to his or
her credibility, but do not agree that all previous misconduct should therefore be
admissible.
(ii) Over-reliance on judicial discretion
4.44 The court has an overall discretion to disallow cross-examination even where
there has been a breach of section 1(f)(ii) if the prejudicial effect of the crossexamination
exceeds its probative value. 79 It is not permissible for the discretion
to be exercised in the defendant’s favour merely on the basis that the previous
convictions which would be revealed are of a similar nature to the offence
charged, 80 nor, as we point out above, on the basis that the defence could not be
put without making imputations. In practice, however, the discretion can be
exercised in the defendant’s favour where the suggestions made are essential to
the defendant’s plea of not guilty 81 or where 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”, 82
or where the evidence is overwhelming. 83
4.45 The width of this discretion has two main consequences. First, its effect is that
the statutory rule is comprehensively undermined by the discretion. This is an
unusual and unsatisfactory instance of the discretionary tail wagging the dog.
4.46 Second, it is not easy for defence advocates to predict what may or may not be
put to prosecution witnesses in cross-examination without running the risk that
78 [1999] 2 Cr App R 163, 173E, per Judge LJ.
79 Powell [1985] 1 WLR 1364. See also Murdoch v Taylor [1965] AC 574, 592G, per Lord
Donovan; Selvey v DPP [1970] AC 304; and Thompson [1966] 1 WLR 405.
80 McLeod [1994] 1 WLR 1500, 1512G.
81 St Louis (1984) 79 Cr App R 53.
82 Britzman [1983] 1 WLR 350, 355D, per Lawton LJ.
83 Britzman [1983] 1 WLR 350, 355G.
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