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

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(72.5%) said they had never withdrawn for that reason. Those that had had occasion to do so had withdrawn once (6.3%) or twice (9%). CONCLUSION A.35 Any previous conviction unfavourably affected the magistrates’ impressions and verdicts, except where the defendant had a recent conviction dissimilar to that charged. The effects are not large but they are significant and follow a consistent pattern which broadly mirrors that found in the Jury Study. A.36 The main difference between the results of the two studies relates to assumptions made by the mock jurors about a defendant with a previous conviction for indecent assault on a child and those made by magistrates in relation to a previous conviction for section 18 assault. The mock jurors consistently associated a previous conviction for indecent assault on a child with a negative evaluation of the defendant, including a greater perceived likelihood that the defendant would commit further offences, whether sexual in nature or not. The magistrates, however, had a less favourable impression of the defendant with a previous conviction for section 18 assault, also assuming that that defendant had a greater likelihood of commiting further offences. This virtually supplanted the effect of indecent assault on a child found in the Jury Study, although it was not as strong or consistent. This effect may be explained by the magistrates’ greater awareness of the kind of offence a section 18 assault represents. A.37 Other differences between the studies include the effect of good character, which impressed magistrates far more than the mock jurors. Magistrates were more influenced by old convictions than the mock jurors. Furthermore, magistrates tended to be more confident in their verdicts: the likelihood of guilt ratings altered less before and after deliberation. A.38 In general the results indicate that information about previous conviction is likely to affect magistrates’ decisions despite their awareness of the dangers and their efforts to avoid bias. These findings do not offer confidence that the rules on admitting previous convictions can be safely relaxed for magistrates any more than for juries. 249
APPENDIX B PERSONS AND ORGANISATIONS WHO COMMENTED ON THE CONSULTATION PAPER INDIVIDUALS AND GROUP RESPONSES Duncan Alexander, Jackie Pearcey, and Richard Faulkner R E Arnold-Shrubb JP Their Honours Judge Francis Allen, Judge Richard Bray and Judge Julian Hall Mr Justice Alliott His Honour Judge Michael Baker His Honour Judge Bathurst-Norman Paul Batterbury Judge Peter Beaumont Mr Justice Bell Mr Justice Blofeld Sir Wilfrid Bourne KCB QC P D Brown JP The Right Honourable Sir Stephen Brown Mr Justice Buckley The Right Honourable Lord Justice Buxton The Right Honourable Lord Justice Carswell Peter Carter QC, Wadham College, University of Oxford Dr Andrew L-T Choo, University of Leicester His Honour Judge Colston QC D S Cottrell His Honour Judge Cowell Stephen Cretney Mr Justice Curtis Dr Penny Darbyshire, Kingston Law School His Honour Judge Rhys Davies QC, Honorary Recorder of Manchester His Honour Judge Neil Denison QC, The Common Serjeant of London His Honour Judge John Devaux Sean Doran, Queen’s University Belfast 250
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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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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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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 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
Page 259 and 260: square brackets; this tended to occ
Page 261: ASSISTING IN REACHING VERDICT A.30
Page 265 and 266: The Right Honourable Lord Justice P
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