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

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SEXUAL CASES 2.68 In cases of rape, a defendant who alleges consent on the part of the victim does not, for the purpose of this limb, make “imputations on the character of the prosecution or witnesses for the prosecution”. 151 It is not clear whether this is because rape is sui generis, justifying special rules 152 or because it would be unjust to put the defendant at risk of losing the shield by doing no more than deny one of the elements of the offence which the prosecution must prove. 153 The latter reasoning would apply equally to other offences. It is also possible to explain the cases on the basis that although an imputation is made, the discretion to prevent cross-examination is always exercised. 154 2.69 A defendant’s ability to make imputations about the complainant’s sexual behaviour has been limited by the Youth Justice and Criminal Evidence Act 1999, sections 41–43. 155 These provisions are stricter than their earlier counterparts: 156 evidence may only be admitted with leave of the court, which may be given only where the exclusion of the evidence may lead to an unsafe conviction. 157 Evidence relating to the issue of consent cannot be adduced unless it is contemporaneous, or the behaviour is so similar to contemporaneous behaviour or behaviour described by the accused that it could be a pattern of sexual behaviour. 158 No question may be asked which has as its main purpose impugning the credibility of the complainant as a witness. 159 However, this protection does not extend to evidence relating to the issue of the defendant’s belief in consent. 2.70 The limitations on the questions that may be asked of a complainant in sections 41–43 must, however, be read subject to the House of Lords case of A (No 2). 160 151 See especially Selvey v DPP [1970] AC 304; Sheean (1908) 21 Cox CC 561; Turner [1944] KB 463. 152 Cook [1959] 2 QB 340, 347, per Devlin J. Blackstone, at para F14.26, submits that rape should not be treated as an offence sui generis. Professor J Temkin also argues that there is no reason that it should: “Rape and Criminal Justice at the Millennium” in Feminist Perspectives on Criminal Law (eds D Nicolson and L Bibbings) (2000) p 199. 153 Turner [1944] KB 463, 469, per Humphreys J. See Goodwin, The Times 26 November 1993, where it was held that the mere denial of the existence of an incriminating fact does not amount to an imputation. 154 Following Cook [1959] 2 QB 340, 347, per Devlin J. 155 Which came into force on 4 December 2000: Youth Justice and Criminal Evidence Act 1999 (Commencement No 5) Order 2000 (SI 2000 No 3075). 156 Sexual Offences (Amendment) Act 1976 s 2. 157 The application should be made in advance of the trial and include much detail. The application procedure is set out in Crown Court Rules, r 23D, inserted by Crown Court (Amendment) (No 2) Rules 2000 SI 2000 No 2987. See Criminal Law Week (2000) 42/17 for a discussion on the application of the rules and whether the rules take the provision far further than the statute envisaged. 158 Section 41(3). 159 Section 41(4). 160 [2001] UKHL 25. 29
Their Lordships held that a prior consensual sexual relationship between a complainant and the defendant might, in the circumstances of an individual case, be relevant to the issue of consent; that, although in giving effect to the defendant’s rights under Article 6 account might also be taken of the interests of the complainant and of society in general, his right under Article 6(1) to a fair trial, assessed by reference to the overall fairness of the proceedings, was absolute and fundamental and would be infringed if he were denied the admission of relevant evidence where its absence led to his unsafe conviction. 161 THE DISCRETION TO EXCLUDE 2.71 The trial judge or magistrate has a discretion under the second limb of section 1(f)(ii) to disallow cross-examination if the prejudicial value of the crossexamination exceeds its probative value. This may be used to disallow crossexamination altogether, or to disallow cross-examination on particular instances of previous misconduct. 162 The court will have to decide how to exercise its discretion on the particular facts of each case, and precedents are therefore of limited value, but there are factors which must be taken into account. 163 The principles are summarised by Ackner LJ in Burke. 164 They are essentially concerned with ensuring that the trial is fair to all concerned. 2.72 Before looking at the way in which the courts have exercised the discretion, it must be emphasised that the purpose of the cross-examination is to attack the defendant’s credit as a witness, not to show that he or she has a disposition to commit the offence 165 – although in some cases it may incidentally have this effect. This is consistent with earlier judicial reasoning. 166 Similarity of offences 2.73 It is now established that the mere fact that the accused’s previous convictions are of a similar nature to the offence charged does not mean that the judge ought to exercise the discretion to exclude cross-examination on the defendant’s record in 161 A (No 2) [2001] UKHL 25, para [46], per Lord Steyn. His Lordship put the question in these terms: …the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded. 162 Selvey v DPP [1970] AC 304. 163 Where irrelevant factors are taken into account, it may be held that the trial judge exercised his or her discretion incorrectly and the conviction quashed: Showers [1996] Crim LR 739. 164 (1986) 82 Cr App R 156, 161, referring to Selvey v DPP [1970] AC 304, Jenkins (1945) 31 Cr App R 1, 15 and Cook [1959] 2 QB 340, 347–8. 165 McLeod [1994] 1 WLR 1500, 1511H, per Gage J (reading a judgment prepared by Stuart- Smith LJ). This passage was cited with approval in Fearon v DPP (1995) 159 JP 649, 653E–G, per Leggatt LJ. 166 Eg Watts (1983) 77 Cr App R 126. 30
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 and 26: such case is Lewis 23 where evidenc
Page 27 and 28: efused severance, the judge should
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: the prosecution” within section 1
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
Page 85 and 86: inconsistencies in the witnesses’
Page 87 and 88: explanation is that judges must not
Page 89 and 90: THE NEED FOR CHANGE 4.80 The law on
Page 91 and 92: PART V GENERAL PRINCIPLES 5.1 In Pa
Page 93 and 94:
(2) the nature of the misconduct ma
Page 95 and 96:
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
Page 133 and 134:
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
Page 151 and 152:
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
Page 185 and 186:
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
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
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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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