Stirland v Director of Public Prosecutions

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. Z

Apart altogether from the impeached questions (which the

(1) [1935] A. C. 309, 321. (3) [1935] A. C. 309.
(2) Ibid. 319.

A. C. AND PRIVY COUNCIL. 321

Common Serjeant in his summing-up advised the jury entirely H. L. (E.)
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 9 °™'™*4NP
failed to convict the appellant on the rest of the evidence to Drrecror
which no objection could be taken. There was, therefore, no °F UBLTC
miscarriage of justice, and this is the proper test to determine _ trons.
whether the proviso to s. 4, sub-s. 1, of the Criminal Appeal yicooantsimon
Act, 1907, should be applied. The passage in Woolmington - 1
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 under-
stood 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 mis-
carriage 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. r of the —
Criminal Appeal Act and the observation above quoted from
Woolmington's case (I) 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.

1944

322

H. L. (E.)

1944

STIRLAND
U.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Viscount Simon

|

HOUSE OF LORDS [1944]

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. I 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 per-

"son charged and being a witness in pursuance of this Act
"may be asked any question in cross-examination notwith-
"standing 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

'

c

"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.

=—

SNS ot AN

A. C. AND PRIVY COUNCIL. 323

prisoner (who had put his character in issue) whether on H. L. (E.)
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 oe
not admissible, for the previous acquittal proved nothing Drrecror
against the accused—' the mere fact of a charge cannot in 9p POPES
" general be evidence of bad character or be regarded otherwise _ tions.
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. 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

1944

Viscount Simon

"or accused without prosecution."' When the a
(t) [1935] A. C. 319. (3) (1943) 29 Cr. App. R. 154,
(2) Ibid. 320. 157, 158.

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

324

H. L. (E)

1944

STIRLAND
v.
DIRECTOR
OF PUBLIC
PROSECU-
TIONS.

Viscount Simon
E.G:

. HOUSE OF LORDS [1944]

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 hi pected him of forgery were not, therefore,
any challenge to the vera t_he had said. _Neither
were they relevant as going to dsprots good character. 4 The.

most virtuous may be suspected, and an unproved accusation
proves nothing against the accusedXbut the questions, while

irrelevant both to the charge which was being tried and to the
issue of good character, were calculated to injure the a e appellantg
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. ~Té 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

(qe) r935)] AniCs 327. (3) (1865) 10 Cox C. C. 25.
(2) Ibid. 309.

A. C. AND PRIVY COUNCIL.

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.

Thg historical development of the English rule _ that the
proséct scution, in seeking to prove the crime charged, ma 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
"anconnected 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 vite.'' The rule, however, was later
extended to cover any prosecution for positive crime. '' The
"true line of distinction . . ."' said Eyre C.B. in Ait.-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 infor-
'mation "' (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. (3) (791) 2 B& P. 532, x.
(2) (1664) 6 Howell's St. Tr. 565, 613.

325

H. L. (BE)

1944

STIRLAND
Uv.
DIRECTOR
or PUBLIC
PROSECU-
TIONS.

Viscount Simon
JEXCS

326

H. L. (E.)

1944

STIRLAND
v.
DIRECTOR
oF PUBLIC
PROSECU-
TIONS.

Viscount Simon
Lic,

HOUSE OF LORDS [1944]

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 speak-
"ing, 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. r 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) (7798). 26° Howell's St. "Ir. (3) bids 113.

LIO¥ 3627 St.<Tti x. (4) 10 Cox C..C..25, 29, 30.
(2) 27 Howell's St. Tr. 40.

ADC AND PRIVY COUNCIL.

eatiales 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 asllsthions on the prosecutor or his witnesses: Rex

ais been ce le 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 T. 2 above. 6. 'The fact
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 mis-
"carriage 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. (4) (1938) 26 Cr. App. R. 148,
(2) 29 Cr. App. R. 154, 158. 153.
(3) (1941) 28 Cr. App. R. 80, 83. (5) [1910] 2 K. B. 746, 764.

327

H. L. (E.)

1944

STIRLAND
v.
DIRECTOR
OF PUBLIC
PROSECU-
TIONS.

Viscount Simon ~ :
LC;

328

HiL.i(B)

1944

STIRLAND
v.
DIRECTOR
OF PUBLIC
PROSECU-
TIONS.

Viscount Simon
LC.

HOUSE OF LORDS [1944]

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 im-
portance, 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 18098 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.

Lorp Wricut. My Lords, I also agree.

Lorp Porter. My Lords, I agree.
Appeal dismssed.