Bad character

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Written answers Hansard

Written answers Hansard Thursday, 24 May 2007

JUSTICE

Criminal Justice Act 2003

Mr. Cox: To ask the Minister of State, Ministry of Justice

(1) what assessment she has made of the impact on the conviction rate of those pleading not guilty before the courts of the provisions of sections 100 to 103 of the Criminal Justice Act 2003; [138936]

(2) what estimate she has made of

(a) the number of contested trials in which, since the commencement of sections 100 to 103 of the Criminal Justice Act 2003, evidence of bad character has been admitted,

(b) the number and percentage of those trials which have resulted in conviction and

(3) what assessment she has made of the overall effects on the criminal justice system of the implementation of sections 100 to 103 of the Criminal Justice Act 2003.

Mr. Hanson: Detailed statistics on these matters are not collected routinely. However, following the implementation of Part 11 of the Criminal Justice Act 2003, we have conducted a research project to evaluate the effect of the bad character provisions. The aims of the research are, to determine how frequently applications are made to adduce evidence about the bad character of the defendant and of non-defendants in criminal trials and how frequently applications are granted and refused; to establish how the provisions are being implemented and interpreted by legal practitioners and the courts; to explore what impact the provisions have had upon the balance struck between prosecution and defence interests in criminal trials; to consider to what extent, if any, the provisions have had a differential impact upon defendants or non-defendants from black and minority ethnic groups; and explore whether the provisions have had any impact upon witnesses’ willingness to give evidence. This research is currently undergoing a peer review process.

Bad character application forms/procedure

Bad character: making the application Magistrates/Crown Court

Application for leave to adduce non-defendant's bad character under s.100 Criminal Justice Act 2003 (Criminal Procedure Rules, rr 35.2, 68.21)

Notice of intention to adduce bad character evidence under s.101 Criminal Justice Act 2003 (Criminal Procedure Rules, rr 35.4(1), 68.21])

Application to exclude evidence of the defendant's bad character under ss 101, 108(2) Criminal Justice Act 2003 Criminal Procedure Rules, rr 35.6, 68.21)

Notice of intention to cite previous convictions under s.104 Magistrates' Courts Act 1980 (Criminal Procedure Rules, Sentencing Division) & the Welsh version

Notice of intention to cite previous convictions for offences involving obligatory or discretionary disqualification from driving (Road Traffic Offenders Act 1988, s. 13) & the Welsh version

Criminal Procedure Rules: Bad Character

Criminal Procedure Rules: Part 35: Bad Character

House of Lords Evidence of Bad Character Briefing

Criminal Justice Bill House of Lords Evidence of Bad Character Briefing 2003

“At present there is an exclusionary approach to evidence of a defendant’s bad character whereby it is generally inadmissible, even if relevant, subject to a number of restricted common law and statutory exceptions. This is a derogation from the general rule that all relevant evidence is admissible and has been described by the House of Lords as “one of the most deeply rooted and jealously guarded principles of our criminal law”. The rational behind the exclusionary approach is that evidence of bad character is often irrelevant and its prejudicial effect outweighs its probative value. Further, the common law as it stands prohibits the jury, when such evidence is admitted, from treating it as being relevant to propensity, otherwise known as the ‘forbidden reasoning.’”

Bad Character: Professor John Spencer

Although Professor Spencer wrote this paper at the invitation of the Judicial Studies Board, the views that it contains are his, and the Board does not necessarily endorse them. Copyright belongs to Professor Spencer. For permission to reproduce it, contact him at Selwyn College, Cambridge, CB3 9DQ. Professor Spencer' paper

OVERVIEW

The Act makes fundamental changes to the admissibility of evidence relating to character in respect to defendants and others. The Act is far reaching, particularly section 103 which provides for the admissibility of previous convictions in support of propensity to commit like offences and untruthfulness. Common law rules in relation to the admissibility of bad character evidence are abolished save for one exception (s 99(2)). The legislation, and indeed the chapter of this book draw heavily on Law Commission Paper No 273 which needs to be read in detail to understand fully the rationale behind the new rules. Where appropriate I have extracted whole passages from that paper to illustrate the various concepts being discussed. A copy of the paper is available online Here In this chapter reference is made to the old rules under section 1(f) (i)-(iii) of the Criminal Evidence Act 1898. I use this reference mainly because this is how the provisions are still referenced, incorrectly, in most legal texts. Schedule 4 Para 1(7) of the Youth Justice and Criminal Evidence Act 1999 renumbered the 1898 Act, and the corresponding provisions are now sections 1(3) (i)-(iii). This is mentioned as any practitioner looking for a repeal of section 1(f) will not find it in schedule 37, but will instead see a correct reference to section 1(3).

Definition

Bad character evidence is evidence of, or a disposition towards misconduct; other than evidence which has to do with the alleged facts of the offence with which the defendant is charged or is evidence of misconduct in connection with the investigation or prosecution of that offence. Misconduct is defined as ‘the commission of an offence or other reprehensible behaviour’ (section 112(1)). Bad character in relation to the alleged facts offence itself has always been admissible for obvious reasons. The Act provides for different rules in relation to the bad character of defendants, and that of non-defendants. In assessing the probative value of evidence it is assumed to be true, unless there is material to suggest the contrary (section 109).

Apart from evidence of previous convictions, other evidence, amounting to ‘reprehensible behaviour’ is admissible. The Government stated the following during debate:

“Examples of where it might be appropriate to admit such evidence include circumstances where evidence on a number of charges being tried concurrently is cross-admissible in respect of the other charges.

It might also be appropriate to admit evidence relating to charges on which the defendant was acquitted, as I have already cited in the example of R v Z It would be unfortunate if an argument were to be accepted that, because a person has not actually been convicted of the offence, it cannot be said that the evidence shows that he has indeed committed such an offence and it is therefore excluded.”

Offences committed by children

In relation to a defendant aged over 21 years, evidence of his conviction for an offence committed when under the age of 14 is not admissible unless both of the offences are triable only on indictment and the court is satisfied that the interests of justice require the evidence to be admitted (section 108(2)). The previous partial prohibition on using juvenile convictions under section 16(2) and (3) of the Children and Young Persons Act 1963 is repealed.

Exclusion
In addition to the statutory tests for exclusion that are discussed below, the power to exclude evidence under section 78 PACE 1984 is not affected by these provisions (House of Lords, Hansard, 19 November 2003, Col. 1988).

Further protections

The Act provides for the stopping of a case if it is felt by the judge that the evidence is contaminated. These provisions are deal with in detail below.

Rulings

Section 110 provides for reasons to be given in relation to certain rulings in relation to bad character evidence.

Bad Character of Persons Other Than the Defendant

Leave is required before evidence of bad character can be admitted in the case of a non-defendant, unless all parties consent to the admission of that evidence. The court cannot give leave for the admission of bad character evidence against a person other than the defendant unless the evidence is important explanatory evidence, or has substantial probative value in relation to a matter which is a matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole. The court need not be asked to give leave if all parties agree to the evidence being admissible (section 100(1)(c)).

In Yaxlev-Lennon in the case of Weir & Ors, R. v [2005] EWCA Crim 2866 (11 November 2005) the Court found Section 100 (1) covers matters of credibility and that the evidence that a defence witness had been cautioned by the police for the possession of cocaine was inadmissible under Section 100. It was conceded that it was difficult to suggest that the evidence had substantial probative value in relation to credibility in the light of the witnesses' answers.

Criminal Procedure (Amendment) Rules 2006 In Part 35, rule 35.2 (introducing evidence of non-defendant's bad character) is amended to provide that an application to introduce the previous convictions of a prosecution witness must be made within 14 days of the date when the prosecutor discloses those convictions (rather than 14 days of the date when the prosecutor complies or purports to comply with his initial duty of disclosure under section 3 of the Criminal Procedure and Investigations Act 1996 as previously required). Rule 35.6 is amended to extend the time limit for a defendant's application to exclude evidence of his own bad character from 7 days to 14 days.

Evidence with important explanatory value

Evidence falls into this category if the court or jury would find it impossible or difficult properly to understand other evidence in the case, and its value for understanding the case as a whole is substantial section 100(2)). The evidence is not in itself probative of any fact in issue, but nonetheless is important if the case is to be understood fully in context.

An example of this kind of evidence, used by the Law Commission is:

“Thus, for example, in a case of intra-familial abuse, it was not only abusive behaviour by the defendant on occasions other than that charged which was valuable in explaining the case as a whole to the jury, but also abusive behaviour by other members of the family.”

Evidence going to a matter in issue

Evidence in this category must have substantial probative value in relation to the matter in issue and be of substantial importance in the context of the case as a whole. In assessing probative value the court must have regard to the following factors (and any others it thinks relevant) (section 100(3)):

The nature and number of events, or other things, to which the evidence relates;
When those events or things are alleged to have happened, or existed;
In the case of evidence of misconduct, which is said to have probative value by reason of similarity between that conduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct.
In the case of misconduct, when it is alleged that the person is also responsible for the offence charged, and the identity of the person responsible for the misconduct is disputed, the extent to which evidence shows or tends to show that the same person was responsible each time.

Substantial probative value

It is clear that past misconduct can be probative of the propensity of persons to act in the same way in the future but the probative value of a single incident for example is capable of being over-estimated. The Act therefore imports a “substantial” test in relation to probative value. Previous misconduct is likely to impact on a witness’s general credibility, but since little significance if any can be attached to general credibility, such a route to admissibility needs to be treated with extreme caution. Of more importance is credibility in relation to an issue in the case – for example why a person would lie about a particular incident, as opposed to why they should generally be disbelieved (the boy who cried wolf test).

Steps have been taken in relation to sex cases to limit such questioning (see later), the reasoning for which is outlined above, and explained in the speech of Lord Steyn in Re A (2001) UKHL 25, para 27:

“Nevertheless, it has to be acknowledged that in the criminal courts of our country, as in others, outmoded beliefs about women and sexual matters lingered on. In recent Canadian jurisprudence they have been described as the discredited twin myths, viz “that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief”: R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape Cases.”

Questioning which has little if any probative value, but may have the effect of undermining the case against the accused is the type of questioning that this Act seeks to prevent once and for all. Under the Act, questioning in relation to the following scenario would not be admissible:

“W is a middle-aged woman, who is raped by an acquaintance. D says she consented. The police explain to her that, when she gives evidence, which she must for the prosecution to succeed, she might be asked about a 20-year old shoplifting conviction. Neither her husband nor her children nor her friends know about this conviction. The fear that it would be mentioned in public is enough to dissuade her from giving evidence.”

The prohibition is not about protecting the sensibilities of witnesses per se, but about ensuring that the answer to the question is capable of properly advancing the defence case, and not at the expense of improperly distorting the fact-finding process.

In making the application for leave, an advocate would have to point to the features of the evidence which support the argument that the evidence is substantially relevant – for example, how recent was any alleged misconduct, and how similar to any misconduct alleged in relation to the facts of the offence charged (which may include the giving of false evidence as to those facts).

Applying the rigour of requiring the advocate to satisfy the court of the enhanced level of relevance (substantial probative value) would mean that evidence going to the “specific credibility” of a witness (that is, evidence which suggests that the witness has an incentive to lie on this occasion) would be more likely to have the required level of relevance than evidence which merely suggests that the witness might lie if he or she did have an incentive to do so.

Further examples given by the Law Commission are:

D is charged with theft. W, who was D’s employee at the time of the alleged offence, is a witness who will give incriminating evidence which a jury could hardly accept without convicting D. The bad character evidence in question is the fact (not disputed by the prosecution) that, in her previous job, four years before the time of D’s alleged offence, W was dishonest in her expenses claims. D says that the witness is incompetent and therefore mistaken. It is hard to conceive that the evidence would be admissible under the enhanced test.

Alternatively, D is charged with theft, and wishes to ask W about an allegation that she was dishonest in her previous job. In this example, D’s case is that W is lying, not incompetent. The fact that in the relatively recent past she has been guilty of dishonesty at the work place might well surmount the test of enhanced relevance.

A third variation: D is charged with theft and wishes to ask W about an allegation of dishonesty 10 years previously, or in a non-work context. The court might well take the view that it did not pass the enhanced relevance test.

Substantial importance in the context of the case as a whole

This is the second limb of the admissibility test and is of crucial importance. It may well that the fact may have substantial relevance to the credibility of a person whose credibility is in issue, and thus to the matter in issue on which she gives evidence, although that matter is not of substantial importance in the context of the case as a whole. If the matter on which she gives evidence is of only marginal relevance to the central issues in the case, then no amount of relevance to her credibility can ever amount to substantial importance in the context of the case as a whole. For example, a witness may have an extensive antecedent history, but their evidence may simply be in relation to a matter not in dispute in the case (perhaps producing a video-tape for example). That witness can give evidence safe in the knowledge that their antecedent history is unlikely to be explored.

Sexual Offence cases

Nothing in the Act alters the operation of section 41 Youth Justice and Criminal Evidence Act 1999. However, once leave is given under section 41 for questions in relation to previous sexual behaviour to be asked, the advocate must then make an application for the evidence to be admissible under section 100 of the Criminal Justice Act 2003 if the sexual behaviour cited also amounts to bad character (unlikely in most cases unless it could properly be classed as reprehensible behaviour (section 112 (1)). Of course, if leave is refused under section 41 that is the end of the matter.

Is the test Human Rights Act compliant?

7.14 The Law Commission, who drafted the sections on which the Act is based, commented: “It follows, from the decision in A, that a requirement of enhanced relevance for bad character evidence would risk infringing Article 6 only if the required level of relevance were set so high that evidence sufficiently probative to be necessary for a fair trial might nevertheless fail to satisfy it. This result could be avoided by formulating the requirement in such a way that it will inevitably be satisfied whenever the exclusion of the evidence might render the trial unfair. We therefore do not accept that the introduction of a test of enhanced relevance would necessarily risk infringing Article 6. That risk can be eliminated if the testis properly formulated and applied.”

DEFENDANTS BAD CHARACTER

Evidence of the defendant’s bad character is only admissible if and only if (section 101):

All parties agree to its admissibility
The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it
Evidence with important explanatory value
Evidence going to a matter in issue between the defendant and prosecution
Substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
Evidence to correct false impression
Attack on another person’s character

Evidence with explanatory value

Evidence falls within this category of admissibility if the court or jury would find it impossible or difficult properly to understand other evidence in the case, and that the value of the evidence for the understanding of the case as a whole is substantial (section 102). It is disappointing that Parliament rejected clause 7(3) and (4) of the Law Commission’s draft bill on character evidence which imported a protection in relation to prejudicial evidence. The Law Commission suggested that explanatory evidence that was prejudicial (and much of it would be) should only be admitted if the interests of justice required its admission having considered the prejudice and the value of the evidence for the understanding of the case as a whole. The Law Commission stated that this extra safeguard was needed to secure a fair, rational and consistent approach to the inclusion of such evidence. As this section stands the rule is no different from the old law.

Evidence going to an important matter in issue between defendant and prosecution

Only prosecution evidence can fall within this section (section 103 (6)). This section is potentially far reaching and allows for the admission of bad character evidence to show that the defendant has a propensity to commit offences of the kind with which he is charged and be untruthful. Evidence of similar fact would be admissible under this section, going to prove the core issue(s) between the defendant and prosecution. Evidence of bad character because it is an essential element of the offence with which he is charged will remain admissible (e.g. for an offence under section 21 of the Firearms Act 1968). Evidence under section 27(3) of the Theft Act 1968 is still admissible.

7.18 The reason that this Act goes much further than simply codifying the Common Law is that it makes both kinds of propensity a fact in issue in all cases, thereby opening the door for the admission of previous convictions.

Applications to exclude

The court must not admit evidence under section 101(1) (d) if on a defence application to exclude it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The court must have particular regard to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged (section 101(4)).

Propensity to commit offences

A propensity to commit offences of the kind with which he is charged can be proved (without prejudice to any other way of doing so) by evidence that he has been convicted of an offence of the same description or category as the one with which he has been charged (section 103(2)). A court can exclude such evidence if satisfied that the length of time since the conviction for the like offence would make it unjust for it to be admitted (section 103(3)). An offence of the same description is one which would be written in the same terms in a charge or indictment (section 103(4)(a)). Categories of offence are to be defined by order of the Secretary of State (section 103(4) (b)). Evidence of bad character to support propensity is of no relevance and should not be admitted where such a propensity makes it no more likely that he is guilty of the offence (section 103(1) (a)). An example of this might be where the defendant admits an assault on someone in relation to a murder allegation but argues only that causation is not made out.

In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.

In R v Hanson Gilmore and P] [2005] EWCA Crim 824 [2005] 1 WLR 3169 the court held that there is no minimum number of events necessary to demonstrate propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.

The starting point should be for judges and practitioners to bear in mind that Parliament's purpose in the legislation, as we devine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case.

Weir, R. v (11 November 2005)

Weir, R. v [2005] EWCA Crim 2866 (11 November 2005) The appellant was convicted of sexual assault by touching a 10 year old girl contrary to section 7 of the Sexual Offences Act 2003. Five years earlier the appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978. The prosecution’s application to adduce evidence that the appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978. The application was granted, and it was that decision which was challenged on appeal. It was common ground that the relevant statutory provisions are those to be found in the sections 101(1)(d), 103(1)(a), 103(2)(b) and 103(4(b) of the Criminal Justice Act 2003. The court did not agree with the trial judge that "an offence contrary to section 1 of the 1978 Act can properly be regarded (for the purposes of section 103(2)(b) of the Criminal Justice Act 2003) as being within the same category as an offence contrary to section 7 of the 2003 (Sexual Offences) Act". (Criminal Justice Act 2003 (Categories of Offences) Order 2004)

The court referred to paragraphs 131 to 132 of the paper prepared by Professor John Spencer QC for the Judicial Studies Board. "As Professor Spencer points out, and as we accept, it is necessary to look carefully at the opening words of section 103(2). They show that a defendant's propensity to commit offences of the kind with which the appellant was charged can be proved in ways other than by evidence that he had been convicted of an offence of the same description or an offence of the same category."

The court said that “Unless that approach is adopted no proper weight is given to the use of the word "may" followed by the words in brackets, and the conclusion makes good sense because it allows for the admission of, for example, the fact that the defendant has previously asked to have taken into consideration offences of the kind with which he is now charged, despite the fact that an offence taken into consideration, like a caution, is not a conviction (see Nicholson [1947] 2 All E R 535)”.

The caution would in any event have been admissible pursuant to section 101(1)(g) because the defendant had in effect attacked the character of the complainant. The appeal against conviction was dismissed.

Application of the section

7.21 It is unclear as to the intended effect of this section as Government ministers were unable to clarify its operation in any meaningful way when pressed. In Parliamentary debate it was queried whether it went any further than placing similar fact evidence on a statutory footing. As outlined above this section does go much further than simply codifying the law in relation to similar fact. The question for judges, who have been educated in a system where evidence of propensity has never been admissible, is how to apply these new principles. If a person has one conviction for burglary would that be admissible on a burglary charge? The following examples illustrate the possible issues.

X has one conviction for burglary. The offence was committed on 1 January 1999.

Case 1: X is being tried for a burglary allegedly committed on 10 January 2004. Evidence of propensity unlikely to make it more likely that he is guilty of the offence. Case 2: X is being tried for a burglary allegedly committed on 2 January 1999 at a location near to the address burgled previously. Evidence of propensity likely to be admitted.

X has 20 convictions for dwelling house burglary. Case 1: X is being tried for a burglary of industrial premises during the course of which specialist equipment is stolen. Defence may well be able to argue that propensity to burgle does not make it more likely that he committed this offence as he has never stolen from non dwellings and the previous convictions to not show that he is any more likely to be involved in the burglary of premises in order to steal specialist items.

Case 2: X is being tried for a dwelling house burglary allegedly committed 2 years after his last conviction for burglary. Evidence of propensity likely to be admitted.

Case 3: X is being tried for a dwelling house burglary allegedly committed 10 years after his last conviction for burglary. It is this kind of case that will raise real difficulties for judges, the question of whether the previous cycle of offending has been broken will be open to dispute.

Propensity to be untruthful

The Act makes propensity to be untruthful a fact in issue in all cases. Once again this provision was discussed and rejected by the Law Commission who stated: “We take the view, however, that the defendant’s general propensity to be untruthful is not a matter which it would be fair to allow the prosecution to assert as part of its case against the defendant. Where the defendant simply denies the truth of some or all of the prosecution’s evidence in relation to the offence charged, and makes no attempt to attack anyone else’s credibility, we think it virtually inconceivable that evidence of the defendant’s general untruthfulness could ever have sufficient probative value to outweigh the risk of prejudice.”

The types of character evidence that might support such propensity would be convictions for perjury or deception offences. A conviction for theft would not necessarily qualify as the act of stealing does not equate to a propensity to tell lies. Query though evidence that a defendant has been convicted of an offence having denied it and given evidence. Such evidence may well be admissible. If untruthfulness is not to be part of the prosecution case such evidence cannot be admitted. If the defence was one simply of causation, or whether even if the facts were true it would amount to a defence, such evidence will have no relevance (s 103(1) (b)). It is important to note that there is no “shield” to lose in relation to this section, the prosecution in all cases can seek to show that a defendant’s character is so poor that it is cogent evidence of untruthfulness.

MATTER IN ISSUE BETWEEN A DEFENDANT AND A CO-DEFENDANT

Evidence in relation to a matter in issue between a defendant and a co-defendant, including propensity to be untruthful is admissible under the Act. Propensity evidence in relation to untruthfulness is only admissible if the nature of his defence is such as to undermine his co-defendant’s defence (section 104(1)), but other relevant evidence (such as general propensity does not need such an attack in order to render it admissible). This presents a key departure away from the old system where a co-defendant was protected from evidence relating to propensity if his shield were retained. Such evidence is only admissible if adduced by the co-defendant or by a witness invited to give that evidence in cross-examination by the co-defendant (104(2)). This prevents the prosecution from adducing bad character where the issue is one between co-defendants only. Leave is not required.

7.25 This rule is not simply a re-enactment of section 1(3) of the Criminal Evidence Act 1898, as there are a number of key differences:

(a) The evidence must have substantial probative value in relation to an important issue in dispute (section 101(1) (e)). Judge’s will need to balance very carefully the previous almost unfettered right to introduce bad character in this scenario against this Act’s more restrictive scheme. The enhanced relevance test is discussed above. It ought to be remembered that the issue in dispute will not always be limited to credibility, particularly in many ‘cut throat’ defence cases, where one party has previous conviction for like offending and the other does not. In such instances propensity (to commit the offence, or an argument that one accused is more likely that another to have committed it) can be very much in issue, as confirmed by the House of Lords in R v Randall [2003] UKHL 69.

Practitioners should be aware that save where such propensity is the issue in dispute the co-defendant need not have undermined the defendant’s case, in terms of the old law there need be no ‘loss of shield’.

(b) In the case of evidence relating to propensity to be untruthful, the defendant must have undermined the case of the co-accused (the old shield requirement).
(c) The prosecution cannot avail itself of the section (effectively overruling cases such as R v Seigley (1911) 6 Cr App R 106).
(d) The defendant need not give evidence in order for the evidence to be admitted; the co-defendant would be entitled to adduce the evidence regardless. Whilst it has been argued that since the admission of such evidence is most often to go toward undermining credibility, and that is not in issue where a defendant does not give evidence, that argument was recognised by the Government as being too restrictive in nature. The defendant who does not give evidence will nonetheless put his credibility in issue in relation to out of court statements or by the general nature of his defence.

EVIDENCE TO CORRECT FALSE IMPRESSION

The prosecution (and only the prosecution (section 105(7)) can adduce evidence of bad character to correct a false impression given by a defendant
(section 105). A false impression is defined as an express or implied assertion that is apt to give the court or jury a false or misleading impression about the defendant. The evidence adduced must have probative value in correcting the false assertion.

Making the assertion
The assertion can be made in the proceedings (and is not reliant on the defendant having given evidence of the fact himself), on being questioned under caution before charge or upon being charged (or informed he might be prosecuted for the offence). Assertions can be made in the proceedings by the defendant, a witness on his behalf, as a result of a question asked by the defendant intended to elicit the answer, or in an out of court statement adduced by the defendant during the proceedings. An assertion can be made by way of conduct as opposed to evidence. Conduct includes appearance or dress, and would arguably mean that a defendant who turned up to court in a suit could face having evidence of bad character admitted.

Withdrawing the assertion

Section 105(3) allows a defendant to withdraw or disassociate himself from an assertion, and if he does so shall not be treated as having made the assertion. The disassociation may be partial.

Conditions to be satisfied
Before such evidence can be admitted the court must be sure that the evidence of bad character has probative value in correcting the false or misleading impression. The evidence should go no further than that which is necessary to correct the false impression (section 105(6)).

Scope of the section
This provision is similar to section 1(3) of the Criminal Evidence Act 1898, save that the defendant is not protected from having such evidence adduced by reason of avoiding the witness box.

ATTACK ON ANOTHER PERSON’S CHARACTER

An attack on another’s character can be adduced by the accused or a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999. Such an attack can also be made when being questioned under caution before charge, or upon being charged or officially warned that he may be prosecuted.

What amounts to an attack on character?
An attack on character is evidence to the effect that the person has committed an offence (which might be alleged to be the charge the defendant is facing) or has behaved, or is disposed to behave in a reprehensible way (section 106 (2)). It does not matter that the person attacked is not a witness in the proceedings; it can be seen that this section goes considerably further than section 1(3) of the Criminal Evidence Act 1898. Defendants are no longer at liberty to simply attack the character of others, the test in section 100 will still need to be satisfied (see above).

Exclusion of such evidence

The defendant can apply for evidence of his own bad character (admissible as a result of the attack on another) to be excluded under section 101(3) if its admission would have an adverse affect on the fairness of the proceedings.

STOPPING THE CASE WHERE EVIDENCE CONTAMINATED

A court can order the acquittal of a defendant, or a retrial, if evidence of bad character evidence has been admitted and later found to be contaminated. Only evidence adduced under sections 101(1) (c) to (g) can be excluded under this section, but a judge is not prevented from using any other exclusionary power. The contamination must be such that any resulting conviction would be unsafe given the importance of the contaminated evidence in relation to the case (section 107(1)). Similar provisions apply in relation to determining whether the defendant did an act or made an omission, in accordance with section 4A(2) of the Criminal Procedure (Insanity) Act 1964.

Meaning of contaminated

A person’s evidence can be contaminated in two ways:

(1) Where as a result of an agreement or understanding between the person and one or more others, the evidence is false or misleading in any respect, or is different from what it would otherwise have been, or

(2) Where as a result of the person being aware of anything alleged by one or more others who are, or could be, witnesses in the proceedings, the evidence is false or misleading in any respect, or is different from what it would otherwise have been.

These provisions deal with collusion, which can be a particular feature of sexual offence cases, and general contamination as a result of witnesses being in possession of information they should not be aware.

Police Station Advice (Bad Character Interviews)

Questioning about previous misconduct

Following the introduction of the previous misconduct provisions of the Criminal Justice Act 2003 interviews of suspects at police stations now often include questions about previous bad character. In order to give appropriate advice to the client the solicitor should check with the interviewing officer whether they intend to ask such questions. If so, the solicitor should ask them:

(1) What information the police have about the client’s previous convictions or other misconduct, including the source and extent of that information, and the precise details,

(2)What the specific purpose of the questions is, and

(3) Under what ‘gateway’ of admissibility they are relevant.

The solicitor should also press for such questions to be asked in an interview separate from that dealing with the substantive offence(s). In some circumstances it may be to the client’s advantage to answer questions about previous convictions, or to hand in a statement, particularly where this would demonstrate that there is no particular connection between the previous convictions and the current alleged offence.

However, there will often be no advantage to the client in answering questions about their previous misconduct. Although the issue has not yet been addressed by the courts, it is unlikely in most circumstances that inferences would be drawn from a failure or refusal to answer questions about previous misconduct.

This guidance has been prepared by Professor Ed Cape, with the assistance of the Criminal Law Committee’s police Station Working Group, on behalf of the Criminal Law Committee of the Law Society.

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Category: Evidence