Evidence of Bad Character in Criminal ... - Law Commission

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xii Paragraph Page PART XVI: SEVERANCE OF COUNTS OR INFORMATIONS 195 The response on consultation 16.3 195 Joinder and fairness 16.6 196 Option 1 16.9 197 Option 2 16.13 198 Option 3 16.16 200 The recommendation 16.21 201 Special rules for cases involving sexual offences? 16.24 201 PART XVII: PROCEDURAL AND ANCILLARY MATTERS 203 A notice requirement 17.1 203 Pre-trial rulings 17.6 205 A duty to give reasons The common law 17.8 206 The ECHR jurisprudence 17.12 207 Conclusion 17.14 207 Warnings to the jury A warning against speculation 17.17 208 A warning against placing too much weight on evidence of past misconduct 17.18 208 Service courts and professional tribunals 17.21 209 PART XVIII: THE COLLECTED RECOMMENDATIONS AND CONCLUSIONS 210 DRAFT BILL AND EXPLANATORY NOTES 215 APPENDIX A: RESEARCH: THE EFFECT ON MAGISTRATES OF KNOWING OF A DEFENDANT’S CRIMINAL RECORD 241 APPENDIX B: PERSONS AND ORGANISATIONS WHO COMMENTED ON THE CONSULTATION PAPER 250
ABBREVIATIONS In this paper we use the following abbreviations: the 1898 Act: the Criminal Evidence Act 1898 the ALRC: the Australian Law Reform Commission Archbold: Archbold Criminal Pleading, Evidence and Practice (2001 ed, ed P J Richardson) Blackstone: Blackstone’s Criminal Practice (2001 ed, ed P Murphy) the CLRC: the Criminal Law Revision Committee the CLRC Evidence Report: CLRC, Eleventh Report: Evidence (General) (1972) Cmnd 4991 the consultation paper: Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996) Law Commission Consultation Paper No 141 the Convention: the European Convention on Human Rights Cross and Tapper: Cross and Tapper on Evidence (9th ed 1999, ed C Tapper) the Evidence Act 1995 (Cth): the Australian Evidence Act 1995 of the Commonwealth the HRA 1998: the Human Rights Act 1998 the JSB: the Judicial Studies Board the Jury Study: the report of the mock jury research conducted by Dr S Lloyd- Bostock of the Centre for Socio-Legal Studies of the University of Oxford in 1995 the NZLC: the New Zealand Law Commission PACE: the Police and Criminal Evidence Act 1984 the Royal Commission: the Royal Commission on Criminal Justice (Chairman: Viscount Runciman of Doxford CBE FBA) the Report of the Royal Commission: (1993) Cm 2263 the Strasbourg Commission: the European Commission of Human Rights the Strasbourg Court: the European Court of Human Rights xiii
Page 1 and 2: The Law Commission (LAW COM No 273)
Page 3 and 4: THE LAW COMMISSION EVIDENCE OF BAD
Page 5 and 6: v Paragraph Page Severance of defen
Page 7 and 8: vii Paragraph Page The relevance of
Page 9 and 10: ix Paragraph Page Ensuring a fair t
Page 11: xi Paragraph Page PART XIV: THE CO-
Page 15 and 16: OUR APPROACH 1.4 We are aware that
Page 17 and 18: 1.10 We are unable to say whether,
Page 19 and 20: 1.21 In assessing the probative val
Page 21 and 22: PART II THE PRESENT LAW 2.1 In this
Page 23 and 24: 2.8 The following sections address
Page 25 and 26: such case is Lewis 23 where evidenc
Page 27 and 28: efused severance, the judge should
Page 29 and 30: 2.26 A relatively recent line of ca
Page 31 and 32: On a prosecution under this section
Page 33 and 34: likely that by way of analogy a “
Page 35 and 36: offence other than that wherewith h
Page 37 and 38: section 1(f)(i). This was because t
Page 39 and 40: there is no such thing known to our
Page 41 and 42: the prosecution” within section 1
Page 43 and 44: Their Lordships held that a prior c
Page 45 and 46: down guidelines for the exercise of
Page 47 and 48: judged objectively and particular c
Page 49 and 50: defendants, S, was permitted to add
Page 51 and 52: 2.95 This approach was confirmed in
Page 53 and 54: the trial, taking all the circumsta
Page 55 and 56: Denmark case, the trial was before
Page 57 and 58: a prosecution, it might lead to a c
Page 59 and 60: triangulation of interests of the a
Page 61 and 62: may depart from the language of the
Page 63 and 64:
convention. If this test is satisfi
Page 65 and 66:
THE PROBLEMS IN DETAIL (I): EVIDENC
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category into which the evidence fa
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there are many other instances wher
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evidence to be given of any act of
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(ii) The use that can be made of ba
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consequences. This puts a premium o
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(b) testify but not contest the con
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their clients’ records would be r
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has considerable force. This argume
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four respondents who argued that wh
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inconsistencies in the witnesses’
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explanation is that judges must not
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THE NEED FOR CHANGE 4.80 The law on
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PART V GENERAL PRINCIPLES 5.1 In Pa
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(2) the nature of the misconduct ma
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Simplicity 6.5 Option 1 appealed to
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admitted automatically even though
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expected to play some part. A regim
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since the purpose of such a directi
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The risk of prejudice 6.33 In the c
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defendant with a previous convictio
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past behaviour in evidence, in the
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6.55 A practical difficulty with th
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solution would thus be to allow evi
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PART VII OVERVIEW OF OUR RECOMMENDA
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sought to put before the fact-finde
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helpful” in assessing that person
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THE PURPOSE OF THE EVIDENCE 7.20 Th
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(a) it falls within the central set
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Evidence of criminal offences 8.10
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8.16 In view of this difficulty we
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(iii) the accused may have had a re
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8.32 We recommend that (1) all othe
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PART IX EXCEPTIONS APPLICABLE TO NO
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sections 102-103, which provide tha
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extends to all bad character eviden
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distort the fact-finding process”
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could itself lead to unfairness.) 3
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the legislation so as not to exclud
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ut which adds very little. We are n
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it is almost certain that evidence
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admitted as “background” withou
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X sets up a company, as sole shareh
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PART XI THE INCRIMINATORY EXCEPTION
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Option 4: the Australian common law
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11.18 Four of the five respondents
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consultation paper we gave an examp
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11.35 In that case the similar defe
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(A) the risk of the fact-finders at
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stolen goods (section 27(3)(a)) or
Page 165 and 166:
11.59 It is not for us, dealing as
Page 167 and 168:
the likelihood that he or she was l
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(2) the defendant has suggested tha
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(3) by attacking the person’s rep
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WHEN A DEFENDANT IS RESPONSIBLE FOR
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example, it was impossible to edit
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THE CORRECTIVE EVIDENCE MUST HAVE S
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indivisible, but do not prescribe w
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incompetent questioning) into makin
Page 183 and 184:
13.46 We understand the concern tha
Page 185 and 186:
PART XIV THE CO-DEFENDANT EXCEPTION
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(1) the degree to which D2’s defe
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allow D1 to undermine D2’s defenc
Page 191 and 192:
prosecution witnesses. The responde
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(5) there were a series of factors
Page 195 and 196:
The operation of the exception 14.4
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PART XV THE QUALITY OF TENDERED EVI
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The current law 15.9 The question h
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improbability that different compla
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collusion or contamination the pros
Page 205 and 206:
Responses on consultation 15.32 Thi
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15.38 We make no equivalent recomme
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two of those suggested a presumptio
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offences. There was sufficient conn
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separate trials. 17 No argument for
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Boardman 20 that it was simply aski
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statement in advance. 7 If one part
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A DUTY TO GIVE REASONS The common l
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equires magistrates to give reasons
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PART XVIII THE COLLECTED RECOMMENDA
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(3) the evidence adduced in support
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(1) rules on whether leave is requi
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Criminal Evidence Bill 1 DRAFT OF A
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2 3 Non-defendant’s bad character
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Criminal Evidence Bill 3 6 Defendan
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4 Criminal Evidence Bill (a) the de
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Criminal Evidence Bill 5 (d) in a c
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6 Criminal Evidence Bill appears ju
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Criminal Evidence Bill 7 12 Trying
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8 Criminal Evidence Bill (b) the ci
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Criminal Evidence Bill 9 (a) a ruli
Page 247 and 248:
10 Criminal Evidence Bill “defend
Page 249 and 250:
Criminal Evidence Bill 11 (2) The r
Page 251 and 252:
12 SCHEDULES Criminal Evidence Bill
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14 Short title and chapter Extent o
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(5) recent dissimilar conviction; 6
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A.13 A recent dissimilar previous c
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square brackets; this tended to occ
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ASSISTING IN REACHING VERDICT A.30
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APPENDIX B PERSONS AND ORGANISATION
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The Right Honourable Lord Justice P
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