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

More documents

Recommendations

Info

10.11 The difference between our policy and the current law is that, under the current law, if evidence of the defendant’s other misconduct comes into the category of “background” evidence, it is admitted without any assessment of its prejudicial effect, whereas under our recommendation, the risk of prejudice does have to be taken into account. In our view, this requirement will secure a fair, rational and consistent approach to the inclusion of such evidence. 10.12 We recommend that leave may be given to adduce evidence of the bad character of a defendant if it has substantial explanatory value and the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect. 15 15 This recommendation is given effect by cl 7 of the draft Bill. 137
PART XI THE INCRIMINATORY EXCEPTION INTRODUCTION 11.1 In Part VIII we explained our recommendation that leave should be required for evidence of bad character which falls outside the central set of facts. This Part describes the second of the exceptions for evidence of the bad character of a defendant. This exception is for evidence of substantial probative value which goes to a matter in issue. It will enable the prosecution, in certain circumstances, to adduce evidence of the defendant’s bad character as part of the prosecution’s case. 11.2 In Part X of the consultation paper we took the view that the present law, based on the concept of similar fact, is unsatisfactory, and set out six options for consideration. We start by explaining what the responses were to those options, and how they have informed our recommendation. At the end of this Part, we address three special cases where evidence of the defendant’s bad character might form part of the prosecution case. THE OPTIONS FOR REFORM AND THE RESPONSE ON CONSULTATION 11.3 The first option considered was for no change. We rejected that option in the light of the problems we thought exist in the current law. 1 A substantial number of respondents addressed this, but only a small minority thought the law should be left as it is. Most of those thought that the difficulties are not attributable to the law itself but are inherent in the nature of the problem. Option 2: adducing bad character evidence to prove mens rea 2 11.4 This option would allow evidence of an accused’s previous convictions to be adduced where the conduct is admitted but there is an issue whether it was performed with any criminal knowledge or intent. For example, where a person with convictions for burglary is charged with having entered a building as a trespasser with intent to steal 3 and his defence is that he entered the building only to sleep, 4 evidence of previous convictions for burglary would be admitted, even without particular similarities between the past conduct and the charge. 11.5 We pointed out in the consultation paper that, in practice, this option would not in fact lead to the automatic admission of previous convictions for the same offence. The bare fact of the conviction would have little probative value but its prejudicial effect could easily be more than trivial, and so the defence would, no 1 Paras 10.20 – 10.22 of the consultation paper. 2 Paras 10.23 – 10.36 of the consultation paper. 3 Contrary to the Theft Act 1968, s 9(1)(a). 4 See Cokar [1960] 2 QB 207, n 47 in Part IV above. 138
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 and 12:
xi Paragraph Page PART XIV: THE CO-
Page 13 and 14:
ABBREVIATIONS In this paper we use
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
Page 67 and 68:
category into which the evidence fa
Page 69 and 70:
there are many other instances wher
Page 71 and 72:
evidence to be given of any act of
Page 73 and 74:
(ii) The use that can be made of ba
Page 75 and 76:
consequences. This puts a premium o
Page 77 and 78:
(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 and 130: 8.32 We recommend that (1) all othe
Page 131 and 132: PART IX EXCEPTIONS APPLICABLE TO NO
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: X sets up a company, as sole shareh
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
Page 181 and 182: 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
Page 187 and 188: (1) the degree to which D2’s defe
Page 189 and 190: allow D1 to undermine D2’s defenc
Page 191 and 192: prosecution witnesses. The responde
Page 193 and 194: (5) there were a series of factors
Page 195 and 196: The operation of the exception 14.4
Page 197 and 198: PART XV THE QUALITY OF TENDERED EVI
Page 199 and 200: The current law 15.9 The question h
Page 201 and 202:
improbability that different compla
Page 203 and 204:
collusion or contamination the pros
Page 205 and 206:
Responses on consultation 15.32 Thi
Page 207 and 208:
15.38 We make no equivalent recomme
Page 209 and 210:
two of those suggested a presumptio
Page 211 and 212:
offences. There was sufficient conn
Page 213 and 214:
separate trials. 17 No argument for
Page 215 and 216:
Boardman 20 that it was simply aski
Page 217 and 218:
statement in advance. 7 If one part
Page 219 and 220:
A DUTY TO GIVE REASONS The common l
Page 221 and 222:
equires magistrates to give reasons
Page 223 and 224:
PART XVIII THE COLLECTED RECOMMENDA
Page 225 and 226:
(3) the evidence adduced in support
Page 227 and 228:
(1) rules on whether leave is requi
Page 229 and 230:
Criminal Evidence Bill 1 DRAFT OF A
Page 231 and 232:
2 3 Non-defendant’s bad character
Page 233 and 234:
Criminal Evidence Bill 3 6 Defendan
Page 235 and 236:
4 Criminal Evidence Bill (a) the de
Page 237 and 238:
Criminal Evidence Bill 5 (d) in a c
Page 239 and 240:
6 Criminal Evidence Bill appears ju
Page 241 and 242:
Criminal Evidence Bill 7 12 Trying
Page 243 and 244:
8 Criminal Evidence Bill (b) the ci
Page 245 and 246:
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
Page 253 and 254:
14 Short title and chapter Extent o
Page 255 and 256:
(5) recent dissimilar conviction; 6
Page 257 and 258:
A.13 A recent dissimilar previous c
Page 259 and 260:
square brackets; this tended to occ
Page 261 and 262:
ASSISTING IN REACHING VERDICT A.30
Page 263 and 264:
APPENDIX B PERSONS AND ORGANISATION
Page 265 and 266:
The Right Honourable Lord Justice P
show all

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

Create successful ePaper yourself

Delete template?

Save as template?