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

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John Duckett JP His Honour Judge Mark Dyer Mr Justice Dyson Andrew Edis, Northern Circuit His Honour Judge G O Edwards QC B E Evans JP David Faulkner, University of Oxford, Centre for Criminological Research Mr Justice French Mr Justice Garland His Honour Judge Gerald Gordon QC His Honour Judge Richard Havery QC Michael Hirst, Reader in Law, University of Wales in Aberystwyth John Hodgson, Association of Law Teachers His Honour Judge Michael Hucker Professor John Jackson, Queen’s University Belfast David Jeffreys QC Mr Justice Ian Kennedy His Honour Judge Kenny His Honour Judge Esyr Lewis QC Mr Justice Longmore His Honour Judge David Lynch His Honour Judge R G May Norman Marsh Professor Jenny McEwan, Keele University His Honour Michael McMullan His Honour Judge Mettyear Peter Mirfield, Jesus College, University of Oxford Mr Justice Morland Professor Peter W Murphy, South Texas College of Law Michael Neligan Mr Justice Newman Sir John Nutting QC S J Odgers and Justice Tim Smith, Supreme Court of Victoria David Pannick QC 251
The Right Honourable Lord Justice Phillips His Honour J W Rant CB QC, Judge Advocate General Dr M Redmayne, University of Manchester His Honour Judge Rivlin QC Paul Roberts, Reader in Criminal Justice, University of Nottingham Peter Roe Peter Rook QC Mr Justice Rougier Ian G Sampson Alec Samuels JP Mr Justice Sedley The Right Honourable Lord Justice Schiemann His Honour Judge Peter Smith Professor Sir John Smith CBE QC FBA, University of Nottingham South Eastern Circuit Alan Suckling QC The Right Honourable Lord Justice Swinton Thomas Professor Colin Tapper, Magdalen College, University of Oxford His Honour Judge Tetlow His Honour Judge Anthony Thorpe Mr Justice Toulson Treasury Counsel at the Central Criminal Court, (David Calvert-Smith QC, Nicholas Loraine-Smith, Jonathan Laidlaw) The Justices of Uxbridge Magistrates’ Court Wales and Chester Circuit (Wales and Chester branches submitted separate responses) His Honour Judge Brian Walsh, Recorder of Leeds Professor Martin Wasik, University of Manchester His Honour Judge Wickham Stephen Williamson QC Michael Worsley QC Mr Justice Wright 252
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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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offences. There was sufficient conn
Page 213 and 214: separate trials. 17 No argument for
Page 215 and 216: Boardman 20 that it was simply aski
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 and 262: ASSISTING IN REACHING VERDICT A.30
Page 263: APPENDIX B PERSONS AND ORGANISATION
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