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Published online by Cambridge University Press: 16 January 2009
1 It is not the only difficulty. The critical literature, which is voluminous, includes Cross on Evidence (7th ed. 1990), pp. 404–411Google Scholar, Zuckerman, , The Principles of Criminal Evidence (1989), pp. 264–279Google Scholar, O'Donoghue (1966) 29 M.L.R. 492, Cross (1969) 6 Syd.L.Rev. 173, at pp. 178–183, Heydon (1974) 7 Syd.L.Rev. 166, Wolchover [1981] Crim.L.R. 312, Cohen [1981] Crim.L.R. 523, Munday [1985] C.L.J. 62, Munday [1986] Crim.L.R. 511, and Seabrooke [1987] Crim.L.R. 231. N.B., also, the influential article by Stone (1942) 58 L.Q.R. 369, at pp. 373–380.
2 [1959] 2 Q.B. 340 at 345.
3 [1970] A.C. 340.
4 The O.E.D. (2nd ed., 1989) describes a “stymie” as the occurrence of “[a]n opponent's ball [lying] on the putting green in a line between the ball of the player and the hole he is playing for“: see vol. XVI, p. 1013.Google Scholar
5 [1944] A.C. 315 at 326.
6 [1962] A.C. 635 at 664–665.
7 Such evidence will have been adduced, initially, as part of the prosecution's case unless there was some good reason why the laying of a foundation by the prosecution for its cross-examination was not possible: see Jones [1962] A.C. 635 at 668 (per Lord Denning), at 685 (per Lord Morris) and at 697 (per Lord Devlin).Google Scholar
8 See [1962] AC. 635 at 675 (per Lord Morris).Google Scholar
9 The Court of Criminal Appeal considered that the question asked of Jones must have created the impression that he had either committed or been charged with an offence: see [1962] A.C. 635 at 643. In the House of Lords, one member of the majority. Viscount Simonds, does not seem to have expressed an opinion on the point. Of the other two, Lord Reid was of the opinion that the questions suggested “at least that [he] had previously been charged with an offence”: see, ibid., p. 663: while Lord Morris thought that they suggested that Jones was “of bad character in that he had been concerned in some incident … which though not specified was discreditable”: see, ibid., p. 686.
10 This point is unaffected by the fact that the prosecution, in Jones, might have sought to adduce evidence of the details of Jones's previous conviction for rape under the similar facts rule. The prosecution chose not so to seek and, in consequence, denied itself the opportunity of using this material as logically relevant to the issue of guilt.
11 For which see text accompanying note 5.
12 [1962] A.C. 635 at 707.
13 (1939) 27 Cr.App.R. 139; [1939] 4 All E.R. 164.
14 At least, this is one view of what Winfield decided. The two reports fail to make it clear whether it was Winfield's witness (the person who had given the evidence about his character in respect of sexual morality), or Winfield himself, who had been cross-examined about his convictions. Which view is correct does not matter for present purposes, since the case is merely used as an illustration.
15 [1920] 2 K.B. 179; [1920] All E.R.Rep. 137.
16 [1920]2 K.B. 179 at 182.
17 See, in particular, Burke (1985) 82 Cr.App.R. 156Google Scholar, Powell [1985] 1 W.L.R. 1364Google Scholar and Owen (1985) 83 Cr.App.R. 100Google Scholar. This orthodoxy is convincingly criticised by Munday [1986] Crim.L.R. 511. See also Munday [1985] C.L.J. 62.
18 [1944] A.C. 315 at 323.
19 This was preserved by the Criminal Evidence Act 1898, s. l(h), but abolished by the Criminal Justice Act 1982, s. 72.
20 [1962] A.C. 635 at 708.
21 Perjury Act 1911, s. 1(1).
22 [1962] A.C. 635.
23 Ibid., p. 663.
24 Strangely, in Anderson [y] OB. 678, at 688, the Court of Appeal seems to have thought that Lord Reid had considered that section l(e) comprehended evidence which, though it did not itself directly indicate guilt, did show the accused's evidence to be untruthful. This cannot have been what Lord Reid intended. For cogent criticism of other aspects of Anderson, see Tapper (1988) 51 M.L.R. 785.Google Scholar
25 [1962] A.C. 635 at 682.
26 Ibid., pp. 658-659.
27 For a discussion of these difficulties see, in particular, Tapper's essay in Crime, Proof and Punishment, ed. Tapper, (1981), at 296 ff.Google Scholar
28 See, e.g., Cokar [1960] 2 Q.B. 207Google Scholar at 210 (per Lord Parker C.J.), Cross (1960) 76 L.Q.R. 537, at 538, and Heydon, Evidence Cases and Materials (2nd ed. 1984), p. 287.Google Scholar
29 The best known example is Theft Act 1968, s. 27(3). See also Official Secrets Act 1911, s. 1(2).
30 See [1962] A.C. 635 at 643.
31 A point made by Lord Morris in Jones [1962] A.C. 635 at 687.Google Scholar
32 Ibid., pp. 664-665.
33 Ibid., p. 683 and p. 659, respectively.
34 Cross on Evidence (7th ed. 1990) p. 398.Google Scholar
35 A false statement on oath does not constitute perjury unless material: see Perjury Act 1911, s. 1(1). Smith, and Hogan, , Criminal Law (6th ed. 1988) deal with the materiality requirement at pp. 743–746. The courts have, in modern times at least, taken an expansive view of materiality, such that Jones's lies undoubtedly satisfied the requirement.Google Scholar
36 See [1962] A.C. 635 at 688–689.
37 [1988] Q.B. 678.
38 [1960] 2 O.B. 207.
39 See note 35.
40 The most recent edition of Cross on Evidence supports the result in Anderson [1988] Q.B. 678, but adds that it “could have been better achieved … without undue distortion of the wording of the section, by the simple application of s. l(f)(i)'s permission of questions relating to the commission of a crime as showing the accused's guilt”: see 7th ed. 1990, p. 393, together with accompanying footnote. See also Zuckerman, , op.cit. note 1 supra, p. 256.Google Scholar
41 [1962] A.C. 635 at 708.
42 For a cogent discussion of the cases decided before Selvey [1970] A.C. 304, see O'Donoghue (1966) 29 M.L.R. 492.Google Scholar
43 [1905] 1 K.B. 131.
44 Ibid., p. 135. It is noteworthy that, as Sir Richard Webster A-G, Lord Alverstone C.J. had piloted the 1898 Act through the House of Commons.
45 See, e.g., Preston [1909] 1 K.B. 568Google Scholar, Wright (1910) 5 Cr.App.R. 131Google Scholar and Westfall (1912) 7 Cr.App.R. 176.Google Scholar
46 [1912] 2 K.B. 464.
47 See ibid., pp. 470-471.
48 [1959] 2 Q.B. 340. As to the anomalous exception for rape cases, see Turner [1944] K.B. 463Google Scholar, approved in Selvey [1970] A.C. 304 at 339.Google Scholar
49 See text at note 2 supra.
50 [1959] 2 Q.B. 340 at 347.
51 [1970] A.C. 304.
52 See St. Louis and Case (1984) 79 Cr.App.R. 53 at 60.Google Scholar
53 [1944] K.B. 463 at 469, per Humphreys J.
54 Supporting the earlier remarks of Singleton J. in Jenkins (1945) 31 Cr.App.R. 1 and Lord Goddard C.J.Google Scholarin Clark [1955] 2 O.B. 469.Google Scholar
55 [1970] A.C. 304.
56 A good example of this is to be found in Tanner (1977) 66 Cr. App.R. 56.Google Scholar
57 Viscount Dilhorne and Lord Hodson specifically rejected the argument that Selvey had been trapped: see [1970] A.C. 304 at 333 and 349, respectively. But, cfMcKenna, J. in the Court of Appeal: see [1968] 1 O.B. 706 at 710.Google Scholar
58 See, e.g., Cross (1969) 6 Syd.L.Rev. 173, at pp. 178–183, Heydon, (1974) 7 Syd.L.Rev. 166, Cross on Evidence, op. at. note 1 supra, pp. 408–411Google Scholar and Zuckerman, , op. cit., note 1 supra, pp. 266–271.Google Scholar
59 See, generally, Pattenden [1982] Crim.L.R. 707, at pp. 713–718.
60 [1970] A.C. 304 at 361.
61 See ibid., p. 331.
62 See p. 496, supra.Google Scholar
63 This view of the rationale of cross-examination under the second part of section l(f)(ii) has the support of Seabrooke [1987] Crim.L.R. 231, though he takes the view that the actual decision in Selvey is nevertheless wrong: see p. 235.
64 Seabrooke puts the argument in these terms: see ibid., p. 232. It is well-established that, as a matter of law, so far as loss of the shield in particular is concerned, it is not implicit in a claim that a prosecution witness is of bad character that the accused himself is of good character: see Buttenvasser [1948] 1 K.B. 4 at 7Google Scholar, and Lee [1976] 1 W.L.R. 71 at 73. However, the issue discussed in the text is not whether or not the shield has been lost but how the discretion should be exercised once the shield has gone. It would seem fair to say that, with regard to the discretion, it is not unreasonable for account to be taken of likely jury reaction.
65 (1983) 77 Cr.App.R. 126.
66 Burke (1985) 82 Cr.App.R. 156Google Scholar, Powell [1985] 1 W.L.R. 1364Google Scholar and Owen (1985) 83 Cr.App.R. 100.Google Scholar
67 For detailed consideration, see Munday [1986] Crim.L.R. 511.
68 [1985] 1 W.L.R. 1364 at 1370.
69 See Pleading Evidence and Practice in Criminal Cases (42nd ed. 1985, supplement No. 9 June 1985), para. 4.365.Google Scholar
70 [1986] Crim.L.R. 511, at p. 521.
71 Ibid.
72 See [1985] 1 W.L.R. 1364 at 1370.
73 See Preston [1909] 1 K.B. 568.Google Scholar
74 See Eidinow (1932) 23 Cr.App.R. 145.Google Scholar
75 See generally Griew [1961] Crim.L.R. 142 and 213, and Heydon (1974) 7 Syd.L.Rev. 166.
76 [1904] 1 K.B. 184. See also Grout (1909) 3 Cr.App.R. 64.Google Scholar
77 [1970] A.C. 304 at 339 (per Viscount Dilhorne) and at 344 (per Lord Hodson). Two others, Lords Pearce and Wilberforce. did not express a view, while the fifth, Lord Guest, seems to have considered that use of the discretion to disallow cross-examination would now be appropriate in a case like Rouse (see at 351).Google Scholar
78 See, e.g.. Phipson on Evidence (14th. ed. 1990), para. 18.37.Google Scholar
79 [1904] 1 K.B. 184 at 186.
80 (1910) 5 Cr.App.R. 131. See also Cook [1959] 2 Q.B. 340.Google Scholar
81 (1923) 17 Cr.App.R. 117. See also Clarke [1955] 2 Q.B. 469Google Scholar and Levy (1966) 50 Cr.App.R. p.Google Scholar
82 (1977) 66 Cr.App.R. 56.
83 [1983] 1 W.L.R. 350.
84 See, in particular, ibid., p. 355.
85 See Turner [1944] K.B. 463.
86 See [1983] 1 W.L.R. 350 at 355.
87 [1991]Crim.L.R. 53.
88 [1970] A.C. 304.
89 Cross, op. cit. note 1 supra, points this out at p. 184.Google Scholar
90 (1978) 68 Cr.App.R. 12. There is an excellent discussion of the case by Wolchover [1981] Crim.L.R. 312 and a cogent response by Cohen [1981] Crim.L.R. 523.
91 See [1909] 1 K.B. 568 at 575 (per Channell J.). These remarks are probably the source of the reasoning in Nelson, though Preston is not mentioned there.Google Scholar
92 [1983] 1 W.L.R. 350 at 354–355.
93 [1962] A.C. 635 at 708.
94 Moriarty v. London, Chatham and Dover Railway (1870) L.R. 5 Q.B. 314.Google Scholar
95 [1962] A.C. 635.
96 See, e.g., Shivpuri [1987] A.C. 1Google Scholar, overruling Anderton v. Ryan [1985] A.C. 560Google Scholar, and Murphy v. Brentwood District Council [1990] 3 W.L.R. 414Google Scholar, “departing from” Anns v. Merlon London Borough Council [1978] A.C. 728.Google Scholar