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Published online by Cambridge University Press: 16 January 2009
“There is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.” This observation fell from Humphreys J. in delivering the judgment of the Court of Criminal Appeal in R. v. Winfield (1939). The purpose of this article is to suggest that at common law this statement is not borne out by principle or by authority. The effect on the common law where the prisoner elects to go into the witness-box in exercise of the statutory opportunity created by the Criminal Evidence Act, 1898, will also be considered. The type of situation that arises is illustrated by Winfield's Case, where the facts, in brief, were that on a charge of indecent assault, W. put in issue his good character for sexual morality, and the prosecution in cross-examination proved his previous convictions for offences involving dishonesty. The court held that such cross-examination was proper. The question is whether the evidence of the good or bad character of the prisoner must be confined to the trait or traits relevant to the type of crime charged. It will be submitted that the evidence must be so confined. On an indictment for murder, evidence of the good or bad character of the prisoner for honesty will be inadmissible. Not only the crime charged but also the circumstances in which it is alleged to have been committed must be considered. If the murder is committed with a hammer, character for peace and quiet on the one hand and for violence on the other will be admissible, but not if it is a case of slow poisoning.
1 27 Cr.App.R. 139; [1939] 4 All E.R. 164.
2 61 & 62 Vict. c. 36.
3 R. v. Harrison (1692) 12 St.Tr. 833, 864; see also R. v. Hampden (1684) 9 St.Tr. 1053, 1103. Previously the prosecution used to attack the prisoner's character without reserve: R. v. Faulconer (1653) 5 St.Tr. 323, 354–6; R. v. Hawkins (1669) 6 St.Tr. 921, 935, 949.
4 Unless the bad character is a fact in issue as in the similar fact line of cases such as Makin's Case, see n. 65, post.
5 6 St.Tr. 565, 613; Stephen, , History of the Criminal Law, I, 449.Google Scholar
6 6 St.Tr. 539, 552.
7 13 St.Tr. 267, 299.
8 14 St.Tr. 123, 146.
9 24 St.Tr. 199, 1076.
10 25 St.Tr. 1, 348.
11 As befits a great advocate, he was very familiar with the law of evidence. See Campbell, , Lives of the Chancellors, VIII, 389.Google Scholar
12 32 St.Tr. 957, 1007.
13 Ibid., at p. 1058.
14 Vol. I, 191.
15 L. & C. 520, 537; per Martin B.
16 25 St.Tr. 1, 359.
17 27 St.Tr. 1, 31.
18 31 St.Tr. 99, 187–93.
19 11 L.T. 745, 746.
20 Taylor, , Evidence, 12th ed. (1931), 244.Google Scholar
21 7 C. & P. 298; 173 E.R. 132.
22 5 Jur. 225. Cross-examination of a character witness whether he had heard that W. was suspected of a robbery permitted by Parke B. The prisoner cannot be cross-examined under the Criminal Evidence Act, 1898, as to offences of which he was suspected: Stirland v. D. P. P., see n. 69, post. The common law rule was ignored by the C. C. A., though applicable in R. v. Waldman (1934)Google Scholar 24 Cr.App.R. 204 (see Stone, op. cit., 459, n. 41) and in R. v. Savory (1942)Google Scholar 29 Cr.App.R. 1.
23 Julius Stone, 51 L.Q.R. 443, 458; Russell on Crime, 8th ed., 1956Google Scholar.
24 Phipson, Evidence, 9th ed. (1952), 190; Encyclopaedia of the Laws of England, Vol. 2, 776, 3rd ed. (1938), by Sturge, L. P..Google Scholar
25 Phipson, op. cit., 2nd ed. (1898), 156, cited by Stone, op. cit., 459.
26 191 Atl. 351, 356. Supreme Court of Pennsylvania.
27 7 & 8 Geo. 4, c. 28, s. 11.
28 6 & 7 Will. 4, c. 111.
29 24 & 25 Vict. c. 96.
30 [1905] 2 K.B. 76.
31 8 C. & P. 676; 173 E.R. 669.
32 2 Den.C.C. 319, 322; 169 E.R. 521, 522.
33 L. & C. 520; 11 L.T. 745; 29 J.P. 149; 10 Cox 25. etc.
34 L. & C. 520, 536.
35 11 Jur.(n.s.) 325, 326.
36 11 L.T. 745, 747; per Cockburn C.J.
37 The decision in Rowton is here violated in two respects: (i) personal opinion is offered and (ii) evidence of particular facts. W. was unrepresented at the trial, and some laxity was to be expected. Also the learned editors of Roscoe's Criminal Evidence state that Rowton is “seldom, if ever, acted on in practice”: 16th ed. (1952), 104.Google Scholar Simon, L.C. obiter in Stirland v. D. P. P. [1944]Google Scholar A.C. 315, 325, thinks that in proviso (f), s. 1, Criminal Evidence Act, 1898, where the word “character” occurs four times, it is not confined to the Rowton meaning; also Stone in 51 L.Q.R. 443, 460 and 58 L.Q.R. 369, 372, 380, sed. qu. whether R. v. Dunkley [1927]Google Scholar 1 K.B. 323 (C.C.A.) supports this opinion, save in the phrase “the character of the prosecutor.” In R. v. Butterwasser [1948]Google Scholar K.B. 4, 6 (C.C.A.), a common law case, Goddard L.C.J. calls for a stricter observance of Rowton's Case.
38 See n. 26, ante.
39 32nd ed. (1949), 365.
40 Stephen, A Digest of the Law of Evidence, 12th ed. (1948), 202.
41 17 Cr.App.R. 36.
42 1 Cr.App.R. 113, 119.
43 See n. 12, ante.
44 Evidence, I, 458, s. 59 (1940).
45 The Modern Law of Evidence (1913), 4544Google Scholar, s. 3288.
46 Apparently from the 8th ed. (1838), 490.
47 68 Ind. 54, 57, quoted by Chamberlayne, op. cit., 4545, s. 3288.
48 221 N.W. 521, 523. The principle of Comm. v. Becker (ante, n. 26) was also applied).
49 22 Minn. 407.
50 15 S.W. 818, 819.
51 48 S.W. 516.
52 17 Tex. 565, 573.
53 199 Pac. 161, 165.
54 A reference to the Texas practice just noted.
55 See n. 12, ante.
56 28 & 29 Vict., c. 18, s. 6.
57 2 Cr.App.R. 80.
58 The appeal was therefore dismissed: Criminal Appeal Act, 1907, 7 Edw. 7, c. 23, s. 4 (i), proviso.
59 Notable British Trials, 204.
60 Ibid., 207.
61 Ibid., 173.
62 Ibid., 277.
63 6 Cr.App.R. 159, 169.
64 51 L.Q.R. 443, 455–461; 58 L.Q.R, 369, 384.
65 [1894] A.C. 57.
66 [1935] A.C. 309. M., indicted for manslaughter while causing an abortion, testified on oath as to his good character. The H. L. held that cross-examination as to a previous charge of a like nature on which he had been acquitted should not have been admitted as it did not show bad character. It was not offered as similar fact evidence under exception (i) to proviso (f).
67 [1935] A.C. at p. 318.
68 Ibid., 319.
69 51 L.Q.R. at pp. 456–7; 58 L.Q.R. at p. 385. See also Crown Counsel in] Stirland v. D. P. P. [1944]Google Scholar A.C. 315, 320.
70 Op. cit., 321.
71 See n. 68, ante.
72 See n. 26, ante.
73 51 L.Q.R. 443, 463–4.
74 See n. 32, ante.
75 Op. cit., 326.
76 [1952] 1 All E.R. 1044. Semble, this is the ratio decidendi of the case. It is so formulated by Lord Oaksey, diss., at p. 1051.
77 The passage in Archbold, see n. 39, ante, is another illustration of a writer's deriving a wide principle, leading to an alteration of the common law, from a case decided purely on a statute with a limited sphere of application. The tendency for the common law rules to disappear is also illustrated by the reference in 39 L.Q.R. 212, 221 to Barron (No. 1) (1913) 78 J.P. 184, and Armstrong [1922]Google Scholar 2 K.B. 555, as conflicting interpretations of exception (i) to proviso (f), though both are decisions on the common law, so far as appears from the five reports of the Barron Case, and the detailed account of arguments and judgments in Armstrong's Case in the Notable British Trials series.
78 See n. 39, ante.
79 See n. 12, ante.
80 See Taylor, op. cit., 243, citing an American decision of 1829, Douglass v. Tousey, 2 Wend. 352; Phipson, 9th ed. (1952), 189, citing the dicta in Shrimpton and Rowton; Nokes, Introduction to Evidence (1952), 111.
81 See n. 36, ante.
82 See n. 47, ante.
83 It is submitted that no rule can be ratio decidendi from which affirmance of the decision does not follow: Llewellyn, Bramble Bush, 39; see also Megarry in 64 L.Q.R. 28, 193, 454. Contra, J. H. C. Morris: ibid.
84 Stone, 58 L.Q.R. at p. 372, treats it as a case under the Act of 1898, also Simon L.C. in [1944] A.C. at p. 329; semble, also Archbold, op. cit., 371. Phipson, op. cit., 190, treats it as of general application.
85 Op. cit., 113.
86 Wigmore, , op. cit., III, 538Google Scholar, s. 980.
87 80 Atl. 571, 575. Supreme Court of Pennsylvania.
88 123 Pac. 1102, 1112. District Court of Appeals, California.
89 Of course no Buch argument was advanced.
