Free Law Essays - This assignment will consider the view that the prosecution should be allowed to introduce evidence of the Defendant’s previous bad character as long as its relevant.
It will also consider whether or not to withhold such evidence is against the public interest and not in the interests of justice. It will consider the view that the trier of fact can be trusted to evaluate evidence of a Defendant’s previous convictions. It will be concluded that whilst these assertions can seen to be generally correct, there are difficulties in some exceptional cases. The Criminal Justice Act 2003 attempts to rectify these difficulties but whether it creates more problems than it solves remains to be seen.
It is first important to out line the circumstances, under the Criminal Justice Act 2003, in which evidence of a Defendant’s previous bad character is admissible. This assignment will necessarily involve an analysis of the new law, and how these provisions meet the criteria as set out above. Section 101 of the Criminal Justice Act 2003 provides that evidence of a defendant's bad character is admissible if, and only if, it passes through one of the seven 'gateways' listed in sub-s (1). At first sight, all these gateways refer to situations in which evidence of the defendant's bad character was admissible at common law. This includes gateway (d), where "it is relevant to an important matter in issue between the defendant and the prosecution". In its primary sense, this obviously covers the well-known case where evidence that incidentally reveals the defendant's bad character is admitted because it also sheds light directly on some disputed issue. However the width of this gateway is expanded by s 103(1): "For the purposes of s 101(1)(d) [the matters in issue between the defendant and the prosecution include:
a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence."
Section 103 relates to evidence of a defendant's bad character that is admissible because it is relevant to an important matter at issue between the defendant and the prosecution. Section 103(1)(a) makes it clear that evidence that shows that a defendant has a propensity to commit offences of the kind with which he is charged can be admitted under this head. Where propensity is an issue, subsection (2) provides that this propensity may be established by evidence that the defendant has been convicted of an offence of the same description or category as the one with which he is charged. This is subject to subsection (3), which provides that the propensity may not be established in this way if the court is satisfied that due to the length of time since the previous conviction or for any other reason that would be unjust.
Section 103(1)(b) makes it clear that evidence relating to whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) can be admitted.
Section 104 relates to evidence that is relevant to issues between the defendant and a co-defendant. Evidence is only admissible on this basis by (or at the behest of) a co-defendant.
Section 105 relates to evidence that is admissible under s 101(1)(f) to correct a false impression given by the defendant. For this provision to apply, the defendant must have been responsible for an assertion that gives a false or misleading impression about himself. Section 105(2) sets out the circumstances in which a defendant is to be treated as being responsible for an assertion. These include the defendant making the assertion himself, either in his evidence or in his representative's presentation of his case or, if used in evidence, when being questioned under caution or on being charged with the offence. It also includes assertions made by defence witnesses.
Section 106 deals with evidence that becomes admissible as a result of the defendant attacking another person's character. A defendant attacks another person's character if he gives evidence that they committed an offence (either the one charged or a different one) or have behaved in a reprehensible way - s 106(1)(a) and 106(2).
Relevance is a key issue here, as the question suggests, evidence of previous convictions, should only be adduced where it is relevant. This of course begs the question of how relevance should be defined. The Law Commission suggested an enhanced relevance test or threshold for allowing in evidence to prove a 'tendency' to act or think in a certain way, and argued that such evidence should only be adduced if it was of 'substantial' probative value, wording that was inserted in the Commission's draft Bill. This has been effected in the new Act with regard to matters in issue between defendants and co-defendants under s. 101(1)(e), but not, expressly, for prosecution evidence under s. 101(1)(d). Section 103(1)(a) expressly states that evidence of misconduct cannot be adduced by the Crown if the propensity it establishes makes it 'no more likely' that a defendant is guilty of the offence charged. It is argued that this part of the section is not entirely helpful as, theoretically, a small amount of probative value could be attributed to most convictions of a similar type to those charged. The existence of this discretion means that in practice much depends on how conservatively judges apply these provisions. If Auld LJ's view is taken: '. . . it is a poor prosecution case that needs to rely on a man's previous convictions in order to convict him' then this is very narrowly indeed.
In assessing probative value, and where the interests of justice lie, the Law Commission also suggested that courts could be required to have particular regard to a number of factors identified by statute, amongst them being the nature of the previous misconduct, the number of instances of it, how similar it was to the present allegation and how recently it was committed. Although only the last criterion is expressly referred to in the new Act, the others will undoubtedly also be considered relevant
This new law appears to have moved back to the position in DPP v P. It would appear that the statute ignores the move away from tendency evidence following DPP. This change has been manifest in some post-1991 cases, such as R v Black. Nevertheless, it is clear that the 2003 Act abandons the cases such as Makin v Attorney-General for New South Wales, where Lord Herschell LC observed that the Crown could not adduce evidence '. . . tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that he is a person likely, from his criminal conduct or character, to have committed the offence for which he is being tried'. This 'forbidden line of reasoning' prevented the Crown from arguing for a defendant's guilt from his general propensity to commit similar types of offence. Section 101(1)(d) appears to allow the Crown to adduce previous misconduct that is probative of the facts in issue precisely because it does show a strong criminal 'tendency'. It has always been accepted that most similar fact evidence is excluded not because it is 'irrelevant' but because of its potential to produce both reasoning and moral prejudice. The 2003 Act seems to operate largely by reducing the degree of prejudice ascribed to previous misconduct evidence, compared to that attributed to it at common law.
Thus, a general propensity to serious forms of violence, without more, might be enough under the new provisions to justify admission in a case involving a further offence of significant violence, especially where there are similarities between them. In R v Naylor, the murder of a Bradford prostitute in 1986 was deemed not to be admissible as similar fact to support the killer's trial for the murder of another Bradford prostitute, in 1995, because the two women had not been killed in a sufficiently distinctive manner. Although the nine-year delay would be a consideration for the court's discretion it seems likely that the earlier killing, being serious and similar to the subsequent murder, would be admissible under s. 101(1)(d) of the 2003 Act. Parliament suggested that this new Act may prevent incidences such a recent case in West Mercia where a man with a series of burglary convictions was found coming out of a stranger's house, but whose explanation, that he was searching for his lost dog was accepted by a jury that was unaware of his previous offences, if the evidence had been available the opposite verdict is likely to have been made.
One difficulty that arises with similar fact evidence and evidence of previous misconduct is that there is a danger that the complainants could collude to fabricate their evidence or simply discuss, thus creating distorted evidence. An importance consideration is just how substantial such a risk should be, before the trial judge refused to allow the material to go before a jury. In R v H (Evidence: Corroboration) the House of Lords suggested that a court should normally admit similar fact evidence on the assumption that it was true and, if there was a suggestion of collusion/fabrication, simply warn the jury that they could only rely on it if they were first satisfied that this was the case. It was only in exceptional circumstances that the court could impose a quality bar, for example, where evidence emerged that clearly indicated that no reasonable jury could come to this conclusion. In this case, the material could properly be excluded. This issue is addressed in s. 109 of the Criminal Justice Act 2003 with regard to the truth of previous misconduct being adduced under s. 101, and similar conclusions have been reached to those established in H. Essentially, s. 109(1) provides that a reference to the relevance or probative value of evidence is to be 'on the assumption that it is true'. However, under s. 109(2) a court need not assume this if it appears that 'no court or jury could reasonably find it to be true'. Thus, if compelling evidence is adduced to suggest that alleged previous misconduct is fabricated, it need not go to a jury under s. 101(1)(d).
Section 107 establishes a further safeguard. It provides that if, after evidence of bad character has been adduced under inter s. 101(1)(d), the court is satisfied that it is 'contaminated', in such a way that any ensuing conviction would be unsafe, the judge must either direct the jury to acquit the defendant of the offence or discharge the jury and so allow a retrial. The admissibility of evidence of bad character is subject to an application by the defendant to have the evidence excluded if admitting it would have such an adverse effect on the fairness of the trial that it ought to be excluded (s 101(3)). The circumstances in which such an application can be made are where the evidence is relevant to an issue in the case between the defendant and prosecution or has become admissible because of the defendant's attack on another person.
The new law shows that cases involving strong evidence of a general propensity (without more) will now be admissible where such evidence is highly probative. This it is suggested is a favourable outcome. The statutory stress on the lapse of time between earlier and present misconduct and on convictions might suggest that these factors will be given a preternatural significance in decisions on the exercise of judicial discretion. As Durston points out “the new provisions should bring an end to periodic cases in which it is claimed that it is an insult to common sense that jurors were denied highly relevant information about a defendant's previous misconduct because trial judges felt that they had no legal justification to admit it”. Therefore in conclusion and to address the question posed it would seem that to allow evidence of previous bad character is certainly preferable in most if not all occasions and it certainly is for the trier of fact to assess the probative value of such evidence. The recent move, in the Criminal Justice Act 2003, shows that in essence that the majority support this view, yet the views of Lord Auld contradict this. It is an unfortunate fact that there will be those circumstances where such evidence will lead to the wrong decision, however for the majority it will not. It is yet to be demonstrated how the act will work out in practice, but it is thought that it will lead to a fairer system of justice and not a weaker system.
Bibliography
Statutes
Criminal Justice Act 2003
Cases
DPP v P
Makin v Attorney-General for New South Wales [1894] AC 57
R v Beggs (1990) 90 CR APP R 430, THE TIMES (4 JULY 1989)
R v Butler (1987) 84 CrAppR 12
R v H (Evidence: Corroboration) [1995] 2 AC 596, [1995] 2 ALL ER 865
R v Naylor [1998] CRIM LR 663
Other Primary Sources
Evidence Of Bad Character In Criminal Proceedings, Law Com. Report No. 273 (2001)
Sir Robin Auld, Review Of The Criminal Courts Of England And Wales (2001) Ch. 11, Para. 114
Journal Articles
Durston G, (2004) “Impact of the Criminal Justice Act 203 on Similar Fact Evidence” Journal of Criminal Law 68 (307)
Powell R, (2005) “The New Rules on Evidence of Bad Character” Magistrate Court Practice 9.1 (9)
Spencer J, (2005) “Bad Character Gateways” New Law Journal 155.7174 (650)
Books
Denis I, (2002) “The Law of Evidence”, Sweet and Maxwell Ltd
Murphy P, (2003) “Murphy on Evidence” Oxford University Press
Munday R, (2005) “Evidence”, Oxford University Press
Roberts P & Zuckerman A, (2004) “Criminal Evidence”, Oxford University Press
