ABSTRACT
Leeds Assize of the manslaughter of a woman called May Holliday, also of using on her an instrument with intent to procure miscarriage. In effect he was found guilty of causing a woman’s death by performing on her an illegal operation. He was sentenced to twenty months’ imprisonment with hard labour. He appealed from conviction to the Court of Criminal Appeal, who dismissed the appeal. From their decision he has now appealed to your Lordships’ House ... The question is whether it was permissible in the particular facts of the case, under the Criminal Evidence Act 1898 s 1 proviso (f) for the prosecution to ask the prisoner whether on a previous occasion he had been charged with a similar offence, the charge having been tried and having resulted in an acquittal ... It must first of all be stated that it has been admitted throughout that the prisoner, in saying that he had lived a good, clean, moral life, had put his character in issue, and had in the words of the proviso (f)(ii) ‘given evidence of his good character.’ The first question here is, What consequences follow from that? When Parliament by the Act of 1898 effected a change in the general law and made the prisoner in every case a competent witness, it was in an evident difficulty, and it pursued the familiar English system of compromise. It was clear
that if you allowed a prisoner to go into the witness-box, it was impossible to allow him to be treated as an ordinary witness. Had that been permitted, a prisoner who went into the box to give evidence on oath could have been asked about any previous conviction, with the result that an old offender would seldom, if ever, have been acquitted ... Some middle way, therefore, had to be discovered, and the result was that a certain amount of protection was accorded to a prisoner who gave evidence on his own behalf. As it has been expressed, he was presented with a shield, and it was provided that he was not to be asked, and that, if he was asked, he should not be required to answer, any question tending to show that he had committed, or been convicted of, or been charged with, any offence other than that wherewith he was then charged, or was a bad character. Apart, however, from this protection, he was placed in the position of an ordinary witness in an ordinary civil case. The laws of evidence were not otherwise altered by the Criminal Evidence Act 1898 and the prisoner who was a witness in his own case could not be asked questions which were irrelevant or had nothing to do with the issue which the court was endeavouring to decide. As has already been pointed out, the prisoner in the present case threw away his shield and, therefore, the learned counsel for the prosecution was entitled to ask him, and he could be required to answer, any question tending to show that he had committed or been convicted of or been charged with an offence, but subject to the consideration that the question asked him must be one which was relevant and admissible in the case of an ordinary witness. The Act does not in terms say that in any case a prisoner may be asked or required to answer questions falling within proviso (f), or impose any such affirmative or absolute burden upon him. I think this conclusion is confirmed by a study of the words of the statute. In s 1 proviso (e), it has been enacted that a witness may be cross-examined in respect of the offence charged, and cannot refuse to answer questions directly relevant to the offence on the grounds that they tend to incriminate him: thus if he denies the offence, he may be cross-examined to refute the denial. These are matters directly relevant to the charge on which he is being tried. Proviso (f), however, is dealing with matters outside, and not directly relevant to, the particular offence charged; such matters, to be admissible at all, must in general fall under two main classes: one is the class of evidence which goes to show not that the prisoner did the acts charged, but that, if he did these acts, he did them as part of a system or intentionally, so as to refute a defence that if he did them he did them innocently or inadvertently, as for instance in Makin v Attorney General for New South Wales (1894), where the charge was one of murder; another illustration of such cases is Rex v Bond (1906). This rule applies to cases where guilty knowledge or design or intention is of the essence of the offence. The other main class is where it is sought to show that the prisoner is not a person to be believed on his oath, which is generally attempted by what is called cross-examination to credit. Closely allied with this latter type of question is the rule that, if the prisoner by himself or his witnesses seeks to give evidence of his own good character, for the purpose of showing that it is unlikely that he committed the offence charged, he raises by way of defence an issue as to his good character, so that he may fairly be cross-examined on that issue, just as any witness called by him to prove his good character may be cross-examined to show the contrary. All these matters are dealt with in proviso (f). The substantive part of that proviso is negative in form and as such is universal and is absolute unless the exceptions come into play. Then come the three exceptions: but it does not follow that when the absolute prohibition is superseded by a permission, that the permission is as absolute as the prohibition. When it is sought to justify a
question it must not only be brought within the terms of the permission, but also must be capable of justification according to the general rules of evidence and in particular must satisfy the test of relevance. Exception (i) deals with the former of the two main classes of evidence referred to above, that is, evidence falling within the rule that where issues of intention or design are involved in the charge or defence, the prisoner may be asked questions relevant to these matters, even though he has himself raised no question of his good character. Exceptions (ii) and (iii) come into play where the prisoner by himself or his witnesses has put his character in issue, or has attacked the character of others. Dealing with exceptions (i) and (ii), it is clear that the test of relevance is wider in (ii) than in (i); in the latter, proof that the prisoner has committed or been convicted of some other offence can only be admitted if it goes to show that he was guilty of the offence charged. In the former (exception (ii)), the questions permissible must be relevant to the issue of his own good character and if not so relevant cannot be admissible. But it seems clear that the mere fact of a charge cannot in general be evidence of bad character or be regarded otherwise than as a misfortune. It seems to be contended on behalf of the respondent that a charge was per se such evidence that the man charged, even though acquitted, must thereafter remain under a cloud, however innocent. I find it impossible to accept any such view. The mere fact that a man has been charged with an offence is no proof that he committed the offence. Such a fact is, therefore, irrelevant; it neither goes to show that the prisoner did the acts for which he is actually being tried nor does it go to his credibility as a witness. Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue – namely, whether the prisoner in fact committed the offence on which he is actually standing his trial. It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined. It does not result from this conclusion that the word ‘charged’ in proviso (f) is otiose: it is clearly not so as regards the prohibition; and when the exceptions come into play there may still be cases in which a prisoner may be asked about a charge as a step in cross-examination leading to a question whether he was convicted on the charge, or in order to elicit some evidence as to statements made or evidence given by the prisoner in the course of the trial on a charge which failed, which tend to throw doubt on the evidence which he is actually giving, though cases of this last class must be rare and the cross-examination permissible only with great safeguards. Again, a man charged with an offence against the person may perhaps be asked whether he had uttered threats against the person attacked because he was angry with him for bringing a charge which turned out to be unfounded. Other probabilities may be imagined ... But these instances all involve the crucial test of relevance. And in general no question whether a prisoner has been convicted or charged or acquitted should be asked or, if asked, allowed by the judge, who has a discretion under proviso (f), unless it helps to elucidate the particular issue which the jury is investigating, or goes to credibility; that is, tends to show that he is not to be believed on his oath; indeed the question whether a man has been convicted, charged or acquitted ought not to be admitted, even if it goes to credibility, if there is any
risk of the jury being misled into thinking that it goes not to credibility but to the probability of his having committed the offence of which he is charged ...7
