COUNSEL: Crispin and Figg for the appellant.

Sir Donald Somervell A.-G. and Scott Henderson for the respondent.

 

SOLICITORS: For appellant: J. H. Milner & Son.

For Crown: Director of Public Prosecutions.

 

JUDGES: Viscount Simon L.C.,

Lord Thankerton, Lord Russell Of Killowen, Lord Wright and Lord Porter.

 

DATE: 1943 Dec. 20.

1944 June 21.

 

 

Appeal from the Court of Criminal Appeal.

 

[*320] The House took time for consideration.

 

June 21, 1944. VISCOUNT SIMON L.C. My Lords, the point of law immediately involved is as to the admissibility of certain questions put in cross-examination of the appellant at the trial after he had put his character in issue, but at the end of the argument the House intimated that, whether the point of law raised on the appellant’s behalf was well founded or not, no substantial miscarriage of justice could be regarded as having actually occurred, and, consequently, that the conviction should stand.

 

Apart altogether from the impeached questions (which the

 

(1) [1935] A. C. 309, 321.

 

(2) Ibid. 319.

 

(3) [1935] A. C. 309. [*321]

 

Common Serjeant in his summing-up advised the jury entirely to disregard), there was an overwhelming case proved against the appellant. When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice, and this is the proper test to determine whether the proviso to s. 4, sub-s. 1, of the Criminal Appeal Act, 1907, should be applied. The passage in Woolmington v. Director of Public Prosecutions (1) where Viscount Sankey L.C. observed that in that case, if the jury had been properly directed it could not be affirmed that they would have “inevitably” come to the same conclusion should be understood as applying this test. A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict. That assumption, as the Court of Criminal Appeal intimated, may be safely made in the present case. The Court of Criminal Appeal has recently in R. v. Haddy (2) correctly interpreted s. 4, sub-s. 1 of the Criminal Appeal Act and the observation above quoted from Woolmington’s case(1) in exactly this sense.

 

It remains to decide the point of law on account of which the appeal has been brought to this House. The appellant clearly put his character in issue in the course of the trial, and that more than once. It will be observed that the questions by counsel for the prosecution were not put in order to suggest a previous conviction or even a previous charge (if by “charge” is meant a criminal proceeding), but they insinuated that the appellant had left his previous employment under suspicion, whether well- or ill-founded, of dishonesty. The prosecutor, of course, put such questions relying on material in his brief – indeed, after conviction, a chief inspector of police, when asked about the appellant’s history, gave information regarding the circumstances in which the appellant left the Westminster Bank which corresponded to the questions put, but this provides no answer to the problem whether such questions were legitimate at the stage when the issue of the appellant’s

 

(1) [1935] A. C. 462, 482, 483.

 

(2) [1944] K. B. 422. [*322]

 

guilt or innocence of the crime charged was still before the jury. Before your Lordships it was contended that this cross-examination was wholly inadmissible as tending to suggest that the appellant had been guilty of a crime other than that with which he was charged and as being irrelevant to the question of his guilt in respect of the crime for which he was being tried.

 

The right of a prisoner to give evidence on his own behalf was not conferred until 1898 and is governed by the Criminal Evidence Act of that year. The relevant portion of s. 1 runs thus: “Every person charged with an offence … shall be a competent witness for the defence at every stage of the proceedings … Provided as follows:- … (e) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged: (f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – (i.) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii.) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or (iii.) he has given evidence against any other person charged with the same offence.” This House has laid it down in Maxwell v. Director of Public Prosecutions (1) that, while para. (f) of this section absolutely prohibits any question of the kind there indicated being put to the accused in the witness box unless one or other of the conditions (i.), (ii.) or (iii.) is satisfied, it does not follow that such questions are in all circumstances justified whenever one or other of the conditions is fulfilled. Viscount Sankey L.C., in delivering the judgment of the House defined the matter to be decided in Maxwell’s case as being whether it was permissible in the particular facts of that case for the prosecution to ask the

 

(1) [1935] A. C. 309, 312. [*323]

 

prisoner (who had put his character in issue) whether on a previous occasion he had been charged with a similar offence, the charge having been tried and having resulted in an acquittal. The House decided that in the circumstances the question was not admissible, for the previous acquittal proved nothing against the accused – “the mere fact of a charge cannot in general be evidence of bad character or be regarded otherwise than a misfortune”(1) – and moreover the accused had not said that he had never previously been charged so that the question could not be justified as a challenge to the accused’s veracity and as seeking to show that he was a person not to be believed on his oath. The question, in the opinion of the House, was, therefore, irrelevant, and at the same time was “likely to lead the minds of the jury astray into false issues”(2), inasmuch as it might suggest to the jury that the accused had committed a similar offence before and, therefore, was likely to have been guilty of the crime now charged against him.

 

Atkinson J. in delivering the judgment of the Court of Criminal Appeal in the present case(3), thought that there was nothing in the trial which conflicted with the decision in Maxwell’s case (4) largely because the appellant swore that he had never in his life “been charged with any offence whatever.” Therefore, argued Atkinson J., cross-examination about the allegedly suspicious circumstances in which the appellant left the bank was relevant and admissible to disprove his denial that he had ever been “charged.” I should agree with the learned judge that, if an accused person, in the witness box makes a statement of fact which the prosecution does not accept, he is liable to be cross-examined on the statement with a view to showing that it is not true, and this applies to a statement as to the accused’s past record where he puts his character in issue just as much as to a statement on any other matter. But this is all subject, as explained below, to the judge’s discretion to disallow any question which in the circumstances he thinks to be unfair. It is necessary, however, to guard against a possible confusion in the use of the word “charged.” In para. (f) of s. 1 of the Act of 1898 the word appears five times and it is plain that its meaning in the section is “accused before a court” and not merely “suspected or accused without prosecution.” When the appellant

 

(1) [1935] A. C. 319.

 

(2) Ibid. 320.

 

(3) (1943) 29 Cr. App. R. 154, 157, 158.

 

(4) [1935] A. C. 309. [*324]

 

denied that he had ever been “charged,” he may fairly be understood to use the word in the sense it bears in the statute and to mean that he had never previously been brought before a criminal court. Questions whether his former employer had suspected him of forgery were not, therefore, any challenge to the veracity of what he had said. Neither were they relevant as going to disprove good character. The most virtuous may be suspected, and an unproved accusation proves nothing against the accused, but the questions, while irrelevant both to the charge which was being tried and to the issue of good character, were calculated to injure the appellants in the eyes of the jury by suggesting that he had been in trouble before, and were, therefore, not fair to him. They should not have been put, and, if put, should have been disallowed. It must not be forgotten that the judge presiding at a criminal trial has a discretion (as Lord Sankey said in Maxwell’s case (1)) to disallow questions addressed to the accused in cross-examination if he considers that such questions, having regard to the issues before the jury and to the risk of the jury being misled as to what those issues really are, would be unfair, and the judge’s disallowance cannot be challenged on appeal. A question whether the accused, who has put his character in issue, was not suspected of a previous crime of which he was never charged in court, or, if charged, was acquitted, is an example of a case where the judge should intervene. It is true that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent, but when Maxwell’s case (2) decided that where the prosecution had enough evidence to indict a man for a crime, but not enough to convict, no questions can be asked about that incident in a later trial at which he puts his character in issue, how can mere suspicion alleged to have been entertained by his previous employer on an earlier occasion be a legitimate topic for cross-examination to credit?

 

There is perhaps some vagueness in the use of the term “good character” in this connexion. Does it refer to the good reputation which a man may bear in his own circle, or does it refer to the man’s real disposition as distinct from what his friends and neighbours may think of him? In Reg. v. Rowton (3), on a re-hearing before the full court, it was held by the majority that evidence for or against a prisoner’s good

 

(1) [1935] A. C. 321.

 

(2) Ibid. 309.

 

(3) (1865) 10 Cox C. C. 25. [*325]

 

character must be confined to the prisoner’s general reputation, but Erle C.J. and Willes J. thought that the meaning of the phrase extended to include actual moral disposition as known to an individual witness, though no evidence could be given of concrete examples of conduct. In the later case of Rex v. Dunkley (1), the question was further discussed in the light of the language of the section, but not explicitly decided. I am disposed to think that in para. (f) (where the word “character” occurs four times) both conceptions are combined.

 

The historical development of the English rule that the prosecution, in seeking to prove the crime charged, may not, generally speaking, introduce evidence of the previous bad character of the accused, but that the accused may call evidence in support of his previous good reputation, is difficult to trace. Sir James Stephen in his History of the Criminal Law of England, vol. I, p. 449, has some interesting observations on the subject. See also Kenny’s Outline of Criminal Law, 15th ed., pp. 464-467. Stephen points out that before the Norman conquest “the character of the accused decided the question whether he was to be allowed to make his purgation by compurgators or was to be sent to the ordeal. In later times the character of the accused must have weighed with the jury who acted as witnesses. Under the Stuarts …. evidence was freely given of particular crimes or misconduct unconnected with the matter in issue, committed by the prisoner.” The earliest instance which Stephen records of evidence being admitted of the prisoner’s good character is at the trial of Colonel Turner for burglary in 1664(2). In an early edition of Russell on Crimes (2nd ed.) published in 1828 (vol. II, p. 703), there is a note stating that “formerly evidence of the prisoner’s good character was admitted in capital cases only, in favorem vitae.” The rule, however, was later extended to cover any prosecution for positive crime. “The true line of distinction …” said Eyre C.B. in Att.-Gen. v. Bowman (3) “is this; that in a direct prosecution for a crime, such evidence is admissible, but where the prosecution is not directly for the crime but for the penalty, as in this information” (it was an information for keeping false weights), “it is not.” By the end of the eighteenth century evidence of good character was constantly admitted. A remarkable instance is provided by the trial of Arthur O’Connor for high

 

(1) [1927] 1 K. B. 323.

 

(2) (1664) 6 Howell’s St. Tr. 565, 613.

 

(3) (1791) 2 B & P. 532, n. [*326]

 

treason in 1798(1) where Mr. Erskine was one of a large number of distinguished persons who testified to the prisoner’s character for loyalty. Erskine, indeed, in the course of his evidence(2), stated that, with the choice before him of defending Mr. O’Connor or of giving evidence as to his good character, he chose the latter, and the Attorney-General, Sir John Scott, told the jury(3) that “in all doubtful cases, character ought to have very considerable weight indeed.” Cockburn C.J. in Reg. v. Rowton (4) observes that “although, logically speaking, it is quite clear that an antecedent bad character would form quite as reasonable a ground for the presumption and probability of guilt as previous good character lays the foundation of innocence, yet you cannot, on the part of the prosecution, go into evidence as to bad character. This allowing of evidence of good character in favour of the prisoner to be given, has grown up from a desire to administer this part of our law with mercy as far as possible. It has sprung up from the time when the law was according to the common estimation of mankind severer than it should have been.”

 

It is most undesirable that the rules which should govern cross-examination to credit of an accused person in the witness box should be complicated by refined distinctions involving a close study and comparison of decided cases, when, in fact, these rules are few and can be simply stated. The following propositions seem to cover the ground. (I am omitting the rule which admits evidence tending to prove other offences where this evidence is relevant to the issue being tried as helping to negative accident or to establish system, intent or the like.) 1. The accused in the witness box may not be asked any question “tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless” one or other of the three conditions set out in para. (f) of s. 1 of the Act of 1898 is fulfilled. 2. He may, however, be cross-examined as to any of the evidence he has given in-chief, including statements concerning his good record, with a view to testing his veracity or accuracy or to showing that he is not to be believed on his oath. 3. An accused who “puts his character in issue” must be regarded as putting the

 

(1) (1798) 26 Howell’s St. Tr. 1191; 27 St. Tr. 1.

 

(2) 27 Howell’s St. Tr. 40.

 

(3) Ibid. 113.

 

(4) 10 Cox C. C. 25, 29, 30. [*327]

 

whole of his past record in issue. He cannot assert his good conduct in certain respects without exposing himself to inquiry about the rest of his record so far as this tends to disprove a claim for good character. 4. An accused is not to be regarded as depriving himself of the protection of the section, because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses: Rex v. Turner (1). 5. It is no disproof of good character that a man has been suspected or accused of a previous crime. Such questions as “Were you suspected?” or: “Were you accused?” are inadmissible because they are irrelevant to the issue of character, and can only be asked if the accused has sworn expressly to the contrary: see r. 2 above. 6. The fact that a question put to the accused is irrelevant is in itself no reason for quashing his conviction, though it should have been disallowed by the judge. If the question is not only irrelevant, but is unfair to the accused as being likely to distract the jury from considering the real issues and so lead to “a miscarriage of justice” (Criminal Appeal Act, 1907, s. 4, sub-s. 1), it should be disallowed, and, if not disallowed, is a ground on which an appeal against conviction may be based.

 

A further question was raised in the present appeal which can be briefly disposed of. Atkinson J., in delivering the judgment of the Court of Criminal Appeal(2), called attention to the decision of that court in Rex v. Wattam (3), where the present Lord Chief Justice quoted the observation of Lord Hewart C.J. in Rex v. Firth (4), and treated that observation as amounting to a ruling that a conviction cannot be quashed on the ground of the improper admission of evidence prejudicial to the prisoner unless an application is made at the time by counsel for the prisoner for the trial to be begun again before another jury. No such application was made in the present case. I doubt whether Lord Hewart’s words require so strict a construction, but, in any case, it seems to me that there cannot be a universal rule to this effect. It has been said more than once that a judge when trying a case should not wait for objection to be taken to the admissibility of the evidence, but should stop such questions himself: see Rex v. Ellis (5). If that be the judge’s duty, it can hardly be fatal to an appeal founded on the admission of an improper question that counsel

 

(1) [1944] K. B. 463.

 

(2) 29 Cr. App. R. 154, 158.

 

(3) (1941) 28 Cr. App. R. 80, 83.

 

(4) (1938) 26 Cr. App. R. 148, 153.

 

(5) [1910] 2 K. B. 746, 764. [*328]

 

failed at the time to raise the matter. No doubt, as was said(1) in the same case, the court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner’s counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal, but where, as here, the reception or rejection of a question involves a principle of exceptional public importance, it would be unfortunate if the failure of counsel to object at the trial should lead to a possible miscarriage of justice. There is nothing in the Act of 1898 to suggest that such an objection is necessarily invalid unless taken at the time, and in other branches of the law the right to object on appeal that evidence was inadmissible is not necessarily forfeited by the failure to object when the evidence was given. The object of British law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive.

 

My Lords, my noble and learned friend LORD RUSSELL OF KILLOWEN ,who is not able to be here, has authorized me to say that he concurs in this opinion.

 

LORD THANKERTON .My Lords, I have had an opportunity of considering the opinion which has just been delivered by my noble and learned friend on the woolsack, and I find myself in complete agreement with it.

 

LORD WRIGHT . My Lords, I also agree.

 

LORD PORTER . My Lords, I agree.

 

Appeal dismissed.

 

(1) [1910] 2 K. B. 763.