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

PRE-TRIAL RULINGS
17.6 We believe that questions of admissibility should, where possible, be resolved
before the trial and, where this is not possible, at the start of the trial. 11 In the case
of a trial on indictment, the appropriate place and time would be at the Plea and
Directions Hearing. 12 In fraud cases, 13 and in other long and complex cases on
indictment, 14 the appropriate time would be at a preparatory hearing. In the case
of a summary trial, it would be at a pre-trial review, 15 if one is held, but only if it
was conducted by a bench. 16 In many cases rulings on the admission or exclusion
of such evidence might affect the plea, or the question of whether the proceedings
are to continue, so that an early ruling might well lead to an earlier conclusion of
the case.
17.7 Section 40 of the Criminal Procedure and Investigations Act 1996, provides that
a judge may make a ruling on the admissibility of evidence at a pre-trial hearing
which is binding from the time it is made until the case is disposed of. 17 A judge
may subsequently discharge or vary any ruling if it appears to be in the interests
of justice to do so, and this power may be exercised on the application of any
party to the case or by the court of its own motion. 18 We see no reason to exempt
evidence of bad character from this general provision. We also consider that
where magistrates make pre-trial rulings on evidence, their rulings should also be
binding. 19
11 See, eg, the Hearsay Report, paras 11.8 – 11.11 and Recommendation 42.
12 At such hearings, the prosecution and the defence are expected to inform the court of
(among other things) the issues in the case, any questions as to the admissibility of the
evidence which appears on the face of the papers, and any application for evidence to be
given by closed circuit television or to put in a pre-recorded interview with a child
witness. Any rulings made at a Plea and Directions Hearing are capable of being binding
under Part IV of the CPIA 1996.
13 A preparatory hearing may be ordered by a judge in a Crown Court trial when an
indictment reveals a case of fraud of such seriousness and complexity that substantial
benefits are likely to accrue from such a hearing: Criminal Justice Act 1987, s 7(1).
14 In such cases it is possible for a judge to order a preparatory hearing under the CPIA
1996, s 29.
15 Early Administrative Hearings, introduced under s 50 Crime and Disorder Act 1998, take
place within two days of charge and are not an appropriate venue to deal with admissibility
issues.
16 The general practice is that pre-trial reviews are conducted by a single justice or justices’
clerk, whose powers are limited to those contained in s 49 Crime and Disorder Act 1998
and who are therefore not able to decide admissibility issues.
17 A case is regarded as disposed of if the defendant is acquitted or convicted, or if the
prosecutor decides not to proceed with the case: CPIA 1996, s 40(3).
18 CPIA 1996, s 40(4); but no application may be made by a party to the case unless there
has been a material change of circumstances since the ruling was made: s 40(5).
19 There are no established guidelines for pre-trial reviews and at present such rulings are
rare due to the tendency for pre-trial reviews to be conducted by single justices or justices’
clerks.
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