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

PART XVI
SEVERANCE OF COUNTS OR
INFORMATIONS
16.1 The present law governing the severance of counts or informations properly
joined is set out at paragraphs 2.91 – 2.95 above. Counts may be joined if they
“are founded on the same facts”, or if they “form or are a part of a series of
offences of the same or a similar character”. 1 In Barrell and Wilson, 2 the Court of
Appeal said that
the phrase “founded on the same facts” does not mean that for
charges to be properly joined in the same indictment, the facts in
relation to the respective charges must be identical in substance or
virtually contemporaneous. The test is whether the charges have a
common factual origin. 3
16.2 A judge has a discretion to order that properly-joined counts be tried separately. 4
THE RESPONSE ON CONSULTATION
16.3 In the consultation paper we considered the argument that a defendant is
prejudiced by counts being heard together where the evidence is not crossadmissible
and concluded:
The logic of this approach is very powerful but, as we have seen, it is
inconsistent with general practice. We do not feel that we can make
any provisional recommendations on this point, though the present
practice does appear to be open to criticism on grounds of logic. We
ask whether the present rules in respect of joinder of charges are
adequate, or whether the courts should sever charges where
prejudicial evidence is not inter-admissible between different charges,
especially in sex cases. 5
16.4 Thirty-seven respondents gave their views on this issue, of which roughly half
thought there was no need for any change. One third did want to see change.
The main underlying reason given by these respondents was that the prejudice
caused to the defendant may be overwhelming and is unjustifiable in principle if
such evidence would not be admissible under the rules governing similar fact
evidence. A further four respondents thought some modification necessary, and
1 Indictment Rules SI 1971 No 1253, r 9.
2 (1979) 69 Cr App R 250, 252-253.
3 But see Lockley and Sainsbury [1997] Crim LR 455.
4
Indictments Act 1915, s 5(3). The position is the same in the magistrates’ courts. See paras
2.93 – 2.95 above.
5 Para 10.111.
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