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

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Clause 10 (cont’d) EXPLANATORY NOTES Subsection (8) sets out a number of further factors that the court must take into account in determining whether these two conditions are met. In assessing the corrective value of the evidence, the court must assume that it is true unless it appears that no court or jury could reasonably find it to be true (see clause 14). Subsection (9) provides that, where the prosecution proposes to apply for leave under this clause in the magistrates’ court, the court must first rule whether, in the context of the case as a whole, the impression in question is sufficiently important to need correcting. If the court rules that it is not, the prosecution may not pursue that application. The court must make its ruling without hearing about the evidence which it is said would correct the impression given. Clause 11 This clause concerns evidence of a defendant’s bad character which a co-defendant wishes to adduce (or to elicit in cross-examination) for the sake of its probative value. (If the codefendant wishes to adduce it for the sake of its explanatory value, leave may be sought under clause 7.) The prosecution may not apply under this clause. Leave will be given under this clause if the evidence has substantial probative value in relation to a matter in issue between the defendants concerned, which is of substantial importance in the context of the case as a whole. For this purpose the court must have regard to the factors listed at clause 5(2), and must assume that the evidence is true unless it appears that no court or jury could reasonably find it to be true (see clause 14). There is no need for the court to consider whether the evidence is prejudicial or, if so, whether the interests of justice require it to be admitted despite that risk. Subsection (2), however, provides that evidence of a defendant’s propensity to be untruthful cannot be admitted under this clause unless that defendant has undermined the codefendant’s defence. The defendant may do this either by running a particular defence (for example, that the co-defendant was solely responsible) or by running the defence in a particular way (for example, by attacking the credibility of the co-defendant’s witnesses).
Criminal Evidence Bill 7 12 Trying more than one offence together (1) In section 5 of the Indictments Act 1915 (c. 90) (orders for separate trial etc) insert after subsection (2)— “(2A) Where— (a) a person is charged with more than one offence in the same indictment, (b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person’s bad character and is inadmissible, and (c) the person applies before trial for an order that the offences mentioned in paragraph (b) above be tried separately, the court shall grant the application unless satisfied that trying the offences together would not prevent the defendant having a fair trial. (2B) The reference in subsection (2A) above to evidence of the person’s bad character shall be read in accordance with section 1 of the Criminal Evidence Act 2001.” (2) In subsection (3) of that section, after “before trial” insert “(in a case not falling within subsection (2A) above)”. (3) Where in proceedings before a magistrates’ court— (a) it is proposed that the defendant be tried for two or more offences together, (b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person’s bad character and is inadmissible, and (c) the defendant objects before trial to the offences mentioned in paragraph (b) being tried together, the court may order those offences to be tried together only if satisfied that doing so would not prevent the defendant having a fair trial. 13 Stopping the case where evidence contaminated (1) If on a defendant’s trial on indictment for an offence— (a) evidence of his bad character has been admitted with leave under section 2, and (b) the court is satisfied at any time after the close of the case for the prosecution that— (i) the evidence is contaminated, and (ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. (2) Where— (a) a jury is directed under subsection (1) to acquit a defendant of an offence, and 5 10 15 20 25 30 35 40
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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
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11.18 Four of the five respondents
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consultation paper we gave an examp
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11.35 In that case the similar defe
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(A) the risk of the fact-finders at
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stolen goods (section 27(3)(a)) or
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11.59 It is not for us, dealing as
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the likelihood that he or she was l
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(2) the defendant has suggested tha
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(3) by attacking the person’s rep
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WHEN A DEFENDANT IS RESPONSIBLE FOR
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example, it was impossible to edit
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THE CORRECTIVE EVIDENCE MUST HAVE S
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indivisible, but do not prescribe w
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incompetent questioning) into makin
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13.46 We understand the concern tha
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PART XIV THE CO-DEFENDANT EXCEPTION
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(1) the degree to which D2’s defe
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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 and 206: Responses on consultation 15.32 Thi
Page 207 and 208: 15.38 We make no equivalent recomme
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Page 211 and 212: offences. There was sufficient conn
Page 213 and 214: separate trials. 17 No argument for
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Page 217 and 218: statement in advance. 7 If one part
Page 219 and 220: A DUTY TO GIVE REASONS The common l
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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: 6 Criminal Evidence Bill appears ju
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
Page 257 and 258: A.13 A recent dissimilar previous c
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Page 261 and 262: ASSISTING IN REACHING VERDICT A.30
Page 263 and 264: APPENDIX B PERSONS AND ORGANISATION
Page 265 and 266: The Right Honourable Lord Justice P
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Evidence of Bad Character in Criminal ... - Law Commission

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