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

inconsistencies in the witnesses’ accounts to lend the suggestion weight, this did
not amount to an imputation. The Crown Prosecution Service argued that this
uncertainty comprised one of the reasons why reform was necessary. 110
4.69 It is also not clear whether a co-accused is entitled to cross-examine an accused
on his or her record if the accused has lost the shield under the second limb. It
was suggested in Lovett 111 that there were cases where cross-examination by a coaccused
under the second limb of section 1(f)(ii) might be appropriate. At that
time a co-defendant could not take advantage of section 1(f)(iii), which permits
cross-examination on a co-accused’s record in certain circumstances, unless
charged with the same offence, 112 and it was recognised that if cross-examination
were not appropriate then it might be prevented as a matter of discretion. Doubt
was cast on this latter proposition by Rowson, 113 which emphasised the general
principle that a defendant must always be free to elicit evidence which advances
his or her case; but this case was not directly concerned with section 1(f), and
arguably leaves the Lovett discretion untouched as an exception to that
principle. 114
Section 1(f)(iii): cross-examination of a co-accused
4.70 Under section 1(f)(iii) of the 1898 Act, a defendant is liable to cross-examination
on previous misconduct if “he has given evidence against any other person
charged in the same proceedings”. 115
110 It might seem surprising that this point can still be the subject of litigation, but there is
clearly room for argument. Eg, in Taylor and Goodman [1999] 2 Cr App R 163 the
appellants argued that their records should not have been admitted under the second limb
of section 1(f)(ii) because the cross-examination of the police and the accomplice were no
more than vigorous denials, the judge at trial having decided otherwise. The Court of
Appeal approved the trial judge’s decision in this regard.
111 [1973] 1 WLR 241.
112 The effect of the Criminal Evidence Act 1979 is that the co-defendant need only be
“charged in the same proceedings”.The amendment reversed the effect of the decision of
the House of Lords in Metropolitan Police Commissioner v Hills [1980] AC 26, in which it
was held that the words “same offence” meant the same in all material respects, so that
where two defendants were tried together but not for the same offence, the provision did
not apply. See also P Mirfield, “The Meaning of ‘the same offence’ under Section
1(f)(iii)” [1978] Crim LR 725.
113 [1986] QB 174.
114 See Blackstone, para F14.36. Cf Phipson on Evidence, (15th ed 2000, ed M N Howard,
P Crane, D A Hochberg, R Bagshaw, P Mirfield, K Grevling and C Hollander) para 18–48,
where it is argued that the effect of Rowson is to confer a general right of crossexamination
in such circumstances (excluding even the Selvey discretion to prevent crossexamination),
but that the discretion recognised in Lovett ought to be preserved.
115 In Murdoch v Taylor [1965] AC 574, 592D, Lord Donovan defined “evidence against” as
meaning “evidence which supports the prosecutor’s case in a material respect or which
undermines the defence of a co-accused”. Lord Bingham CJ cited this dictum with
approval in the Court of Appeal in Crawford (Charisse) [1997] 1 WLR 1329, 1333G,
adding that the essential question, put at its simplest, was whether the evidence given by
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