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

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prosecution aware of the matters with which the defence intends to take issue. If the defence is not known, then the test for deciding whether the similar fact evidence is relevant to the prosecution’s case is whether the defence in question “may fairly be said to be open to the accused on the facts as they appear from the evidence available to the prosecution”. 34 We believe this to be a fair principle because it is always open to the accused to say that a particular defence will not be taken, or that a particular fact is not in issue, thus obviating the need for similar fact evidence to be called. 35 2.17 While the case law suggests that evidence in rebuttal of a defence fairly open to the accused should be given as part of the prosecution’s case, the courts have also, exceptionally, permitted what has been called the “short-circuiting” of this process, allowing the prosecution to put questions in rebuttal of the accused’s defence in cross-examination without having led the evidence as part of its own case. 36 This is a course which should be avoided wherever possible. 37 It is preferable that the similar fact evidence should be adduced in chief rather than in the course of cross-examination with all its attendant prejudice to the witness. 38 This can be achieved by permitting the prosecution to re-open its case. IS THERE A SPECIAL RULE FOR SEXUAL OFFENCES AGAINST PERSONS OF THE SAME SEX, OR CHILDREN? 2.18 The present position is as stated by the Court of Appeal in Clarke: 39 there is no specific category of offences against children for the purpose of similar fact evidence, because to assert that such offences are so rare as to justify admissibility is to ignore the regrettable fact that they are not uncommon. The more recent case of Musquera 40 confirmed that where the only significant similarity between two groups of offences was that they were sexual in nature, this was not sufficient to allow the evidence of one group to be admitted in respect of the other group pursuant to the rule in DPP v P. 41 In Musquera, having 34 Blackstone, para F12.11. This is borne out by the comments of Lord Sumner in Thompson [1918] AC 221, 232, that “The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset”, subsequently explained by Lord Du Parcq in Noor Mohamed [1949] AC 182, 191–2. 35 See, eg, A-G of Hong Kong v Siu Yuk-Shing [1989] 1 WLR 236, 240H, per Lord Griffiths: “The defence … had the opportunity if they so desired to admit knowledge of the Triad significance of the articles. If the defence had made this admission knowledge would no longer have been in issue and no proper purpose would have been served by proof of the previous conviction.” 36 See Anderson (1988) 87 Cr App R 349, 358, per Lord Lane CJ. 37 Jones v DPP [1962] AC 635, 685, per Lord Morris. 38 Such as the ability to ask leading questions and the proof of previous inconsistent statements. 39 (1978) 67 Cr App R 398. 40 [1999] Crim LR 857. 41 [1991] 2 AC 447. 13
efused severance, the judge should have directed the jury to treat the charges separately. Is there a discretion to exclude similar fact evidence? 2.19 The courts have traditionally had a discretion to exclude similar fact evidence even if it passes the test of admissibility. This discretion “flows from the duty of the judge when trying a charge of crime to set the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused”. 42 In the consultation paper 43 we suggested that the principle stated by the House of Lords in DPP v P 44 has the character of a rule of law – at least in cases where the prosecution seeks to rely on the evidence as proof of the defendant’s disposition, or where there is a risk that the jury will regard it as such – and we questioned the existence of a residual discretion. There is no room for any discretion which entails the weighing of probative value against prejudicial effect, because that is itself the test of admissibility. 45 SUPERVENING DISCRETIONS: SECTION 78, AND THE COMMON LAW 2.20 Section 78(1) of PACE reads: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. 2.21 The scope of section 78 is not limited merely to the balance of relevance and prejudice. Extrinsic considerations of fairness come into play, such as the way in which the evidence was obtained. It is therefore possible that the defence would seek to exclude some item of bad character evidence on these grounds. 46 2.22 Section 82(3) of the same Act preserves the common law discretion to exclude evidence, which is founded on the duty of the judge to ensure that every accused person has a fair trial. 47 As with section 78, this discretion is not limited to 42 Harris v DPP [1952] AC 694, 707, per Viscount Simon. 43 At para 2.41. 44 DPP v P [1991] 2 AC 447. 45 As Peter Mirfield has said: “The judge is likely to invite counsel to explain to him how evidence which, for the purposes of the similar fact rule, has more probative value than prejudicial effect, can possibly be more prejudicial than probative as a matter of discretion.” Mirfield, “Proof and Prejudice in the House of Lords” (1996) 112 LQR 1, 7- 8. 46 In H [1995] 2 AC 596 both Lord Mackay LC at p 612H and Lord Nicholls at p 627E made the point that, even where evidence is admissible under the similar fact rules, the trial judge can always use the s 78 discretion to exclude the evidence where appropriate. 47 See Sang [1980] AC 402, 452, per Lord Scarman; 447, per Lord Fraser; 445, per Lord Salmon. 14
Page 1 and 2: The Law Commission (LAW COM No 273)
Page 3 and 4: THE LAW COMMISSION EVIDENCE OF BAD
Page 5 and 6: v Paragraph Page Severance of defen
Page 7 and 8: vii Paragraph Page The relevance of
Page 9 and 10: ix Paragraph Page Ensuring a fair t
Page 11 and 12: xi Paragraph Page PART XIV: THE CO-
Page 13 and 14: ABBREVIATIONS In this paper we use
Page 15 and 16: OUR APPROACH 1.4 We are aware that
Page 17 and 18: 1.10 We are unable to say whether,
Page 19 and 20: 1.21 In assessing the probative val
Page 21 and 22: PART II THE PRESENT LAW 2.1 In this
Page 23 and 24: 2.8 The following sections address
Page 25: such case is Lewis 23 where evidenc
Page 29 and 30: 2.26 A relatively recent line of ca
Page 31 and 32: On a prosecution under this section
Page 33 and 34: likely that by way of analogy a “
Page 35 and 36: offence other than that wherewith h
Page 37 and 38: section 1(f)(i). This was because t
Page 39 and 40: there is no such thing known to our
Page 41 and 42: the prosecution” within section 1
Page 43 and 44: Their Lordships held that a prior c
Page 45 and 46: down guidelines for the exercise of
Page 47 and 48: judged objectively and particular c
Page 49 and 50: defendants, S, was permitted to add
Page 51 and 52: 2.95 This approach was confirmed in
Page 53 and 54: the trial, taking all the circumsta
Page 55 and 56: Denmark case, the trial was before
Page 57 and 58: a prosecution, it might lead to a c
Page 59 and 60: triangulation of interests of the a
Page 61 and 62: may depart from the language of the
Page 63 and 64: convention. If this test is satisfi
Page 65 and 66: THE PROBLEMS IN DETAIL (I): EVIDENC
Page 67 and 68: category into which the evidence fa
Page 69 and 70: there are many other instances wher
Page 71 and 72: evidence to be given of any act of
Page 73 and 74: (ii) The use that can be made of ba
Page 75 and 76: consequences. This puts a premium o
Page 77 and 78:
(b) testify but not contest the con
Page 79 and 80:
their clients’ records would be r
Page 81 and 82:
has considerable force. This argume
Page 83 and 84:
four respondents who argued that wh
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inconsistencies in the witnesses’
Page 87 and 88:
explanation is that judges must not
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THE NEED FOR CHANGE 4.80 The law on
Page 91 and 92:
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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Responses on consultation 15.32 Thi
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15.38 We make no equivalent recomme
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two of those suggested a presumptio
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offences. There was sufficient conn
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separate trials. 17 No argument for
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Boardman 20 that it was simply aski
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statement in advance. 7 If one part
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A DUTY TO GIVE REASONS The common l
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equires magistrates to give reasons
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PART XVIII THE COLLECTED RECOMMENDA
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(3) the evidence adduced in support
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(1) rules on whether leave is requi
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Criminal Evidence Bill 1 DRAFT OF A
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2 3 Non-defendant’s bad character
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Criminal Evidence Bill 3 6 Defendan
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4 Criminal Evidence Bill (a) the de
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Criminal Evidence Bill 5 (d) in a c
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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
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Criminal Evidence Bill 11 (2) The r
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12 SCHEDULES Criminal Evidence Bill
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14 Short title and chapter Extent o
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(5) recent dissimilar conviction; 6
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A.13 A recent dissimilar previous c
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square brackets; this tended to occ
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ASSISTING IN REACHING VERDICT A.30
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APPENDIX B PERSONS AND ORGANISATION
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The Right Honourable Lord Justice P
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