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

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Do all parties agree to the admission of the evidence? YES Admissible Is it a fact about a defendant being adduced YES Admissible by that defendant? Is it within the central set of facts? Yes Admissible 117 No NO NO Leave is required Non-defendant Defendant Does it have substantial probative or explanatory value? Does it fall within the explanatory, or incriminatory, or credibility, or corrective, or co-defendant exceptions? YES NO YES NO Admissible Inadmissible Admissible Inadmissible Structure of the draft Bill
PART IX EXCEPTIONS APPLICABLE TO NON- DEFENDANTS 9.1 As regards defendants, the principle that evidence of other misconduct should be prima facie inadmissible is already embedded in English law. 1 There are two bases for this principle. The first is that such evidence is irrelevant; the second is that it is prejudicial. This principle does not extend to witnesses, but there are sound arguments for saying that it should. 9.2 In the consultation paper we raised the possibility of restricting crossexamination of witnesses to that which would be substantially relevant to the witness’s credibility. We now take the view that a requirement of enhanced relevance for all evidence of the bad character of non-defendants, not just that going to credibility, is an important element in the package of measures we now recommend to secure a trial which is fair to the defendant, but which also safeguards witnesses and others from gratuitous attack. THE CURRENT POSITION 9.3 It is trite law that only “relevant” evidence is admissible. That is the only evidential restriction on bad character evidence that may be adduced about a person who is not a defendant. 2 Where a person testifies, questions put in crossexamination which go to the witness’s credibility “must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence”. 3 9.4 Where a person’s credibility is the issue, he or she may be asked questions about his or her criminal record, associations or way of life which might discredit his or her testimony in the eyes of the fact-finders. 4 Questions can be put to a witness about any improper conduct to test his or her credit. The general rule is that where a witness is cross-examined as to credit, evidence is not admissible to contradict his or her answers. 5 There are a number of exceptions to this general rule. Evidence is admissible to contradict a witness’s answer under crossexamination on credit to prove bias; 6 previous convictions; 7 reputation for 1 Viscount Sankey LC described it as “one of the most deeply rooted and jealously guarded principles of our criminal law” in Maxwell v DPP [1935] AC 309, 317. 2 With the exception of complainants in “sexual offences”: see para 2.69 above. 3 Sweet-Escott (1971) 55 Cr App R 316, 320, per Lawton J. 4 See Archbold para 8–138. 5 Harris v Tippett (1811) 2 Camp 637. 6 Thomas v David (1836) 7 C & P 350. 7 Criminal Procedure Act 1865, s 6. 118
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The Law Commission (LAW COM No 273)
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THE LAW COMMISSION EVIDENCE OF BAD
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v Paragraph Page Severance of defen
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vii Paragraph Page The relevance of
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ix Paragraph Page Ensuring a fair t
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xi Paragraph Page PART XIV: THE CO-
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ABBREVIATIONS In this paper we use
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OUR APPROACH 1.4 We are aware that
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1.10 We are unable to say whether,
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1.21 In assessing the probative val
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PART II THE PRESENT LAW 2.1 In this
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2.8 The following sections address
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such case is Lewis 23 where evidenc
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efused severance, the judge should
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2.26 A relatively recent line of ca
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On a prosecution under this section
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likely that by way of analogy a “
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offence other than that wherewith h
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section 1(f)(i). This was because t
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there is no such thing known to our
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the prosecution” within section 1
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Their Lordships held that a prior c
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down guidelines for the exercise of
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judged objectively and particular c
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defendants, S, was permitted to add
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2.95 This approach was confirmed in
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the trial, taking all the circumsta
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Denmark case, the trial was before
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a prosecution, it might lead to a c
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triangulation of interests of the a
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may depart from the language of the
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convention. If this test is satisfi
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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
Page 79 and 80: their clients’ records would be r
Page 81 and 82: has considerable force. This argume
Page 83 and 84: four respondents who argued that wh
Page 85 and 86: inconsistencies in the witnesses’
Page 87 and 88: explanation is that judges must not
Page 89 and 90: THE NEED FOR CHANGE 4.80 The law on
Page 91 and 92: PART V GENERAL PRINCIPLES 5.1 In Pa
Page 93 and 94: (2) the nature of the misconduct ma
Page 95 and 96: Simplicity 6.5 Option 1 appealed to
Page 97 and 98: admitted automatically even though
Page 99 and 100: expected to play some part. A regim
Page 101 and 102: since the purpose of such a directi
Page 103 and 104: The risk of prejudice 6.33 In the c
Page 105 and 106: defendant with a previous convictio
Page 107 and 108: past behaviour in evidence, in the
Page 109 and 110: 6.55 A practical difficulty with th
Page 111 and 112: solution would thus be to allow evi
Page 113 and 114: PART VII OVERVIEW OF OUR RECOMMENDA
Page 115 and 116: sought to put before the fact-finde
Page 117 and 118: helpful” in assessing that person
Page 119 and 120: THE PURPOSE OF THE EVIDENCE 7.20 Th
Page 121 and 122: (a) it falls within the central set
Page 123 and 124: Evidence of criminal offences 8.10
Page 125 and 126: 8.16 In view of this difficulty we
Page 127 and 128: (iii) the accused may have had a re
Page 129: 8.32 We recommend that (1) all othe
Page 133 and 134: sections 102-103, which provide tha
Page 135 and 136: extends to all bad character eviden
Page 137 and 138: distort the fact-finding process”
Page 139 and 140: could itself lead to unfairness.) 3
Page 141 and 142: the legislation so as not to exclud
Page 143 and 144: ut which adds very little. We are n
Page 145 and 146: it is almost certain that evidence
Page 147 and 148: admitted as “background” withou
Page 149 and 150: X sets up a company, as sole shareh
Page 151 and 152: PART XI THE INCRIMINATORY EXCEPTION
Page 153 and 154: Option 4: the Australian common law
Page 155 and 156: 11.18 Four of the five respondents
Page 157 and 158: consultation paper we gave an examp
Page 159 and 160: 11.35 In that case the similar defe
Page 161 and 162: (A) the risk of the fact-finders at
Page 163 and 164: 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
Page 169 and 170: (2) the defendant has suggested tha
Page 171 and 172: (3) by attacking the person’s rep
Page 173 and 174: WHEN A DEFENDANT IS RESPONSIBLE FOR
Page 175 and 176: example, it was impossible to edit
Page 177 and 178: THE CORRECTIVE EVIDENCE MUST HAVE S
Page 179 and 180: indivisible, but do not prescribe w
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incompetent questioning) into makin
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13.46 We understand the concern tha
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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
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prosecution witnesses. The responde
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(5) there were a series of factors
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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
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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
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10 Criminal Evidence Bill “defend
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Criminal Evidence Bill 11 (2) The r
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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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