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

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ecommended by this Commission 27 (and accepted by the Government). As Lord Mustill has said, the risk that the jury may act upon evidence which is not worthy to be relied upon “may well be seen as serious enough to outweigh the general principle that the functions of the judge and jury must be kept apart”. 28 15.36 A further respondent thought it should be left to the Court of Appeal to quash an unsafe conviction, and not for the trial judge to prevent the conviction in the first place. We do not agree. A judge has a duty to achieve a fair trial for the defendant. It is now recognised that there is a high level of coincidence, (if not total identity) between a trial which is not fair and a verdict of guilty which is “unsafe”. 29 If evidence has been admitted which is highly prejudicial, and a direction from the judge may not adequately guard against prejudice, then protection for the accused from an unsafe conviction requires intervention to withdraw the case from that jury. The recommendation 15.37 We recommend that, in a trial on indictment, where evidence of the defendant’s bad character has been admitted with leave, and the judge is satisfied that the evidence is contaminated such that, considering the importance of the evidence to the case against the defendant, a conviction would be unsafe, the judge should be required to discharge the jury or direct the jury to acquit. 30 27 Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) Law Com No 245, para 11.31, Recommendation 47. 28 Daley v R [1994] 1 AC 117, 129D. 29 Davis, Johnson and Rowe [2000] Crim LR 1012 was the first case to consider whether the defendants’ convictions were unsafe following the Strasbourg Court’s finding that their trial had been unfair. The Court of Appeal agreed that the trial had been unfair, and went on to conclude that the convictions were unsafe. However, the court took the view that this was not an inevitable conclusion. The nature and the degree of the breach of Article 6 would determine whether the conviction was unsafe. Davis, Johnson and Rowe was considered in the case of Togher [2001] Crim LR 124, but slightly glossed: “We would suggest that, even if there was previously a difference of approach, that since the [HRA 1998] came into force, the circumstances in which there will be room for a different result before this Court and before the ECHR because of unfairness based on the respective tests we employ will be rare indeed ... we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.” This approach was firmly endorsed by the House of Lords in Forbes [2001] 2 WLR 1, 13. Unfortunately the subsequent case of Williams, The Times 30 March 2001 was decided on the basis of Davis, Johnson and Rowe without reference to the more recent cases. Nonetheless, the outcome in Williams is consistent with the Togher-Forbes test, so it is now settled law that “safety” will almost inevitably follow “unfairness”. 30 Clause 13 lays a duty on the court to direct an acquittal in a trial on indictment, in specified circumstances. Under ss 6(3) and 7(1) of the Criminal Law Act 1967 and surviving common law provisions (see Saunders [1988] AC 148), a defendant may be convicted of a lesser offence when acquitted of the greater offence. Where the defendant has been found unfit to plead by reason of mental disability, the jury must determine whether the defendant did the act or made the omission under section 4A Criminal Procedure (Insanity) Act 1964. If evidence of the defendant’s bad character is so affected 193
15.38 We make no equivalent recommendation for the magistrates’ court: if the magistrates think either that a conviction would be unsafe, or merely that the incriminating evidence has been so weakened by evidence of collusion or contamination that they cannot be sure the accused committed the offence, they will acquit. by collusion or contamination that a verdict of a lesser offence or finding that the defendant did the act would be unsafe, then a duty should be laid upon the judge to direct the jury in this circumstance to acquit the defendant. This is provided for by cl 14(3). 194
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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
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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
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: Responses on consultation 15.32 Thi
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
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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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