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

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Clause 13 (cont’d) EXPLANATORY NOTES Subsection (3) achieves the same result where the defendant has been found unfit to plead by reason of mental disability, and (under section 4A(2) of the Criminal Procedure (Insanity) Act 1964) the jury therefore has to determine not whether the defendant is guilty, but only whether he or she did the act or made the omission charged. This clause does not apply to summary trials. General Clause 14 Subsection (1) provides that the probative value of bad character evidence is to be assessed on the assumption that it is true. Subsection (2), however, provides for an exception to this rule where it appears that no court or jury could reasonably find the tendered evidence to be true. In that case the court need not assume that it is true, but may assess the reliability of the evidence for itself, and has an inherent power to arrive at that decision in whatever way is thought most appropriate. It might be possible to make the assessment on the basis of the papers alone, taking submissions by the advocates into account; or the court might think it necessary to hear evidence, in which case it would do so on a voir dire. Clause 15 This clause provides that, where a court • rules on whether bad character evidence is admissible only with leave, • gives or refuses leave, or • rules on an application to stop the trial under clause 13 (on the ground that contaminated evidence of the defendant’s bad character has been admitted), it must give its reasons, and those reasons must be recorded.
Criminal Evidence Bill 9 (a) a ruling on whether an item of evidence is admissible only with leave under section 2; (b) a decision whether to give leave under that section; (c) a ruling under section 13. 16 Rules of court (1) Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules. (2) The rules may require a party who— (a) proposes to adduce evidence of a defendant’s bad character that is admissible only with leave under section 2, or (b) proposes to cross-examine a witness with a view to eliciting such evidence, to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed. (3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2). (4) If a party fails to comply with a requirement that has been imposed in relation to an item of evidence by virtue of subsection (2) (and not dispensed with by virtue of subsection (3)) the court may take the failure into account— (a) in deciding whether to grant leave under section 2; (b) where leave is given, in considering the exercise of its powers with respect to costs. (5) The rules may— (a) limit the application of any provision of the rules to prescribed circumstances; (b) subject any provision of the rules to prescribed exceptions; (c) make different provision for different cases or circumstances. (6) Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it. (7) In this section— “prescribed” means prescribed by rules of court; “rules of court” means— (a) Crown Court Rules; (b) Criminal Appeal Rules; (c) rules under section 144 of the Magistrates’ Courts Act 1980 (c. 43). 17 Interpretation (1) In this Act— “bad character” is to be read in accordance with section 1; “criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply; 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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allow D1 to undermine D2’s defenc
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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
Page 209 and 210: two of those suggested a presumptio
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
Page 221 and 222: equires magistrates to give reasons
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 and 240: 6 Criminal Evidence Bill appears ju
Page 241 and 242: Criminal Evidence Bill 7 12 Trying
Page 243: 8 Criminal Evidence Bill (b) the ci
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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