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

separate trials. 17 No argument for cross-admissibility was raised. Thus the
assumption must be that the evidence of offences alleged regarding KC was not
said to be admissible on the charges concerning ND. If option 2 were adopted
then the court would have no option but to sever the two sets of allegations
notwithstanding that it may be that under the rules for joinder of counts the
evidence of one set of counts is an integral part of the allegations of the other set
of counts, and so the two sets should, by those lights, be heard together.
Option 3
16.16 Option 3 is that if the evidence on one count is admissible on another count then
there is a presumption in favour of joinder and a discretion to sever (as now), but
if evidence on one count is not admissible on another count, and the defence seeks
severance, then there is a presumption in favour of severance but that the
presumption may be rebutted if the defendant can have a fair trial if the counts
are joined.
16.17 The differences between option 2 and 3 are: first, where no application is made to
sever then no question arises of severance merely because the evidence is not
cross-admissible on the various counts. This will save a great deal of court time
being wasted in considering, or having to remember to consider, the question of
severance when it is not seriously in issue. Second: where there is no basis for
ruling evidence of one count admissible on another, the counts may remain
joined if the defendant can still receive a fair trial under option 3, whereas under
option 2 severance would have to be ordered in those circumstances. Option 3,
therefore, enables the court to exercise its judgment taking into account all
relevant matters, including those identified in Christou, but nonetheless elevates
to a position of prime importance the question whether the defendant can have a
fair trial. Thus option 3 still allows for the possibility of counts to be joined even
though evidence is not cross-admissible, but only if the view of the court is that
the defendant can still have a fair trial. In making this judgment, it would still be
legitimate for the court to bear in mind the approach in Christou that juries do
faithfully apply the judge’s directions.
16.18 Thus we are putting the onus on the prosecution, who seek to have the cases
heard together, to persuade the court, which must provide a fair trial for the
defendant, that the defendant can have a fair trial, as that is the paramount
consideration for the court in exercising its discretion. There are two reasons for
adopting this discretionary route rather than an inflexible rule. First, there is
some merit in the argument that, where evidence is admissible on one count and
not on another, it is comparatively straightforward for the magistrates to put the
evidence out of their minds when considering some charges, and, in the Crown
Court, for the judge to emphasise that the jury must put the evidence entirely
out of their minds when considering the latter count. This is so even though the
reason the evidence is not cross-admissible is that were the magistrates or jury
17 Tickner [1992] Crim LR 44 is a similar case: the defendant was deputy headmaster and the
complainants were four pupils at his school. The counts were not severed.
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