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

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Criminal Evidence Bill Schedule 1 — Armed forces “(4) This section does not prejudice any other power a judge advocate may have to direct a court to acquit a person of an offence or to dissolve a court.” 4 Section 15, as it applies in relation to proceedings before service courts, has effect with the substitution of the following for subsection (1)— “(1) Where the court makes a relevant ruling— (a) it must state in open court (but, in the case of a ruling by a judge advocate, in the absence of the other members of the court) its reasons for the ruling; (b) if it is a Standing Civilian Court, it must cause the ruling and the reasons for it to be entered in the note of the court’s proceedings.” 5 Section 16 has effect as if, in subsection (7), the definition of “rules of court” included rules regulating the practice and procedure of service courts. 6 (1) In this Schedule, and in section 13 as applied by this Schedule, “courtmartial” means a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53). (2) In this Schedule “service court” means— (a) a court-martial; (b) a summary appeal court constituted under section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957; (c) the Courts-Martial Appeal Court; (d) a Standing Civilian Court. (3) In relation to any time before the coming into force of section 18 of the Armed Forces Act 2001 (c. 19) (abolition of naval disciplinary courts), this Schedule has effect as if the definition of “service court” in sub-paragraph (2) included a disciplinary court constituted under section 52G of the Naval Discipline Act 1957. SCHEDULE 2 Section 20(4). REPEALS Short title and chapter Extent of repeal Criminal Procedure Act 1865 (c. 18) Criminal Evidence Act 1898 (c. 36) In section 6, the words “and upon being so questioned, if”. Section 1(3). Theft Act 1968 (c. 60) In section 27— (a) subsection (3); (b) in subsection (5), the words from “and in subsection (3)(b)” to the end. Criminal Evidence Act 1979 (c. 16) In section 1, the words from “each of the following” to “1898, and”. 13 5 10 15 20 25 30 35 40
14 Short title and chapter Extent of repeal Criminal Justice and Public Order Act 1994 (c. 33) Youth Justice and Criminal Evidence Act 1999 (c. 23) Section 31. In Schedule 4, paragraph 1(5). Criminal Evidence Bill Schedule 2 — Repeals 5
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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
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(5) there were a series of factors
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The operation of the exception 14.4
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PART XV THE QUALITY OF TENDERED EVI
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The current law 15.9 The question h
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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 and 240: 6 Criminal Evidence Bill appears ju
Page 241 and 242: Criminal Evidence Bill 7 12 Trying
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: 12 SCHEDULES Criminal Evidence Bill
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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