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

PART XVII
PROCEDURAL AND ANCILLARY MATTERS
A NOTICE REQUIREMENT
17.1 As we wrote in the consultation paper, 1 the accused may be unfairly
disadvantaged in the trial if he or she has not anticipated that acts other than
those alleged in the charge will be raised. This was historically one of the reasons
for the rule against evidence of bad character, 2 and also justifies the view that bad
character evidence which is admissible in chief should not be saved until the
cross-examination of the accused. 3 Presently, there are obligations on the
prosecution to disclose evidence, 4 so the defendant should not be ambushed by
evidence of bad character. There is some risk that a defendant at summary trial
may be ambushed by an attack by a co-defendant, as there is no obligation for the
defence to disclose its case in advance (except for expert evidence) 5 but it may be
that in practice this will rarely occur. 6 There is less risk of an ambush by a coaccused
in the Crown Court as the defence is required to submit a defence
1 Para 7.28.
2 Section 8 of the Treason Act 1695 provided that “no evidence shall be admitted or given of
any overt act that is not expressly laid in the indictment against any person or persons
whatsoever.” Foster explains this as arising “lest the prisoner should be surprised or
confounded by a multiplicity and variety of facts which he is to answer upon the spot”:
Crown Law (1st ed 1762) p 244. See also Phillips’ Case (1829) 1 Lew CC 105, 168 ER
977; Knapp and another v Haskall (1831) 4 CAR & P 590, 172 ER 838; Whiley and
Haines (1804) 2 Leach 983, 168 ER 589; Gray (1866) 4 F & F 1102, 176 ER 924.
3
See, eg, Jones v DPP [1962] AC 635, 646, per Ashworth J (CA); at p 668, per Lord
Denning; and at p 685, per Lord Morris.
4 At least in the case of indictable offences: Magistrates’ Courts (Advance Information)
Rules 1985 (SI 1985 No 601) (offences triable either way); Magistrates’ Courts Act 1980,
s 5, as substituted by Criminal Justice and Public Order Act 1994, Sched 4 (cases
transferred to the Crown Court); and R v DPP, ex p Lee [1999] 1 WLR 1950 (offences
triable only on indictment). In practice, the prosecution frequently, but not invariably, gives
disclosure of evidence in summary only cases. Whilst there is no requirement to give
advance disclosure, it ought to be given in contested cases and the court must take into
account the impact of non-disclosure on the fairness of the trial as a whole, see R v
Stratford Magistrates ex p Imbert [1999] 2 Cr App R 276. A magistrates’ court may order
advance disclosure.
Disclosure is governed by Part I of the Criminal Procedure and Investigations Act 1996:
the prosecution is required to give at least primary disclosure (s 3) irrespective of the
mode of trial.
5 Magistrates’ Court (Advance Notice of Expert Evidence) Rules, SI 1997 No 705 (L11),
made pursuant to the Magistrates’ Courts Act 1980, s 144, and the CPIA 1996, s 20(3) and
(4). If advance notice is not given, the leave of the court must be obtained before the
evidence is adduced.
6 Under s 6 CPIA 1996, defence disclosure is voluntary before summary trials, but there is
an incentive to give a defence statement where evidence of bad character may be an issue
as the prosecution would therefore be required to give secondary disclosure under s 7.
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