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

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A.8 The results were tested for statistical significance: that is the probability that such data would be produced by chance. In this study, as in that conducted with juries, a significance level of less than 0.05 (one in twenty) is used, meaning that a result which has a less than one in twenty likelihood of occurring randomly is treated as significant. Naturally, the significance level of particular results and confidence in the reliability of the findings is increased where analyses of different variables show a similar result or pattern of results. Where a large number of statistical tests are carried out, however, the probability of one reaching a significance level by chance increases. SUMMARY OF RESULTS AND ANALYSIS A.9 The first part of this analysis, concerning likelihood and belief in guilt, examines only the results of the groups that viewed the videos concerning previous conviction scenarios one to six. The results generated by the videos involving indecent assault on a child are discussed at paragraph A.24 below. Likelihood scores A.10 Below is a table of the average score (from one to a hundred) given by magistrates on their immediate individual analysis and after deliberation in a bench, of the likelihood that the defendant committed the offence. Table 1 Previous conviction information Average likelihood rating Individual (predeliberation) Old similar 65.5 65.3 Recent similar 60.9 59.1 Old dissimilar 56 58.5 Base 41.6 37.8 Good character 39.1 41.5 Recent dissimilar 37.4 34.9 243 Average likelihood rating Bench (postdeliberation) A.11 The significance level between the sets of the differing conviction information only reached 0.05 in the three highest-scoring groups. The relationship between category of previous conviction and likelihood score is more significant after deliberation, following the same general pattern. A.12 As occurred in the Jury Study, a similar previous conviction is associated with the higher perceived probability that the defendant committed the offence currently charged. In the present study both old and recent similar convictions have a significant effect. However, in the Jury Study, whilst recent similar convictions had the greatest effect on the likelihood score, old convictions made little or no difference to the likelihood estimates.
A.13 A recent dissimilar previous conviction appeared, as in the Jury Study, to be of positive help to the defendant. The dissimilarity neutralises the effect of a conviction, possibly invoking a stereotype of a person who commits that type of offence, not the type of offence charged. Unlike in the Jury Study, however, the small advantage of a recent dissimilar conviction over no information or good character is not significant. Effect of previous conviction information on verdict Individual magistrates A.14 The table below shows the percentage of magistrates recording guilty verdicts and not-guilty verdicts (in brackets) before deliberation, after deliberation, and as a bench. Table 2 Conviction information Predeliberation [%] 244 Postdeliberation [%] Bench verdict [%] Old dissimilar 24.2 (75.8) 24.2 (75.8) 20 (80) Old similar 23.1 (76.9) 23.1 (76.9) 12.5 (87.5) Recent similar 21.4 (78.6) 21.4 (78.6) 25 (75) Good character 19.2 (80.8) 11.5 (88.5) 0 (100) Base 17.2 (82.8) 13.8 (86.2) 0 (100) Recent dissimilar 11.1 (88.9) 7.4 (92.6) 0 (100) A.15 Unexpectedly, old dissimilar convictions were associated with the highest rate of guilty verdicts before and after deliberation. This was not the case in the Jury Study. This finding was consistent amongst the three groups that watched the video in question, but did not appear at a statistically significant level of variance. The “dissimilar conviction” was for a section 18 assault. It appears that a conviction for violent assault was associated with a consistently negative view of the defendant by magistrates. 8 Only where the conviction is recent does the dissimilarity outweigh this negative impression. Bench verdict in relation to magistrates’ belief in guilt. A.16 The table on the following page demonstrates the relationship between the likelihood scores and the bench verdict. The likelihood scores were recorded on a five-point scale relating to belief in the defendant’s guilt. 8 See para A.21 below.
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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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improbability that different compla
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collusion or contamination the pros
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Page 207 and 208: 15.38 We make no equivalent recomme
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Page 211 and 212: offences. There was sufficient conn
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Page 217 and 218: statement in advance. 7 If one part
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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
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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
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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: (5) recent dissimilar conviction; 6
Page 259 and 260: square brackets; this tended to occ
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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