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

ecently confirmed in Christou 217 that, once counts have been properly joined, it is
a matter for the discretion of the judge whether they should be severed.
2.92 The preceding case law was not consistent. 218 At one stage it was thought that
there might be a separate rule where the counts on the indictment were of sexual
offences, namely that in such cases there was a rule that unless the evidence
satisfied the similar fact test and was admissible on each count then the
indictment should be severed. It is now clear that there is no such special rule but
that the matter is always one for the trial judge’s discretion, having regard to
fairness both from the point of view of the defendant and of the prosecution, and
to all relevant factors, including those set out in the judgment of Lord Taylor CJ
in Christou.
2.93 The case law applicable to summary trials achieves a similar result to that in the
Crown Court: informations may be tried together if a joint trial would not risk
injustice to the defendant and the facts are sufficiently closely connected. The
court should ask both parties whether either has an objection to all the
informations being heard together. If all parties consent to a joint trial then the
magistrates should accede to their wishes. Lack of consent by either party is not a
bar if, in the justices’ view, a joint trial would not risk injustice to the defendant,
and the facts are sufficiently closely connected. 219
2.94 The case of Chief Constable of Norfolk v Clayton 220 made it clear that the decision
should be made by the magistrates concerning whether informations should be
tried separately. Lord Roskill reviewed the development of practice in
magistrates’ courts and stated 221 that he saw no reason why the practice in
magistrates’ court should not be analogous to that in the Crown Court. The
House stated: 222
… if justices ask themselves, before finally ruling, the single
question – what is the fairest thing to do in all the circumstances in
the interests of everyone concerned? – they are unlikely to err in their
conclusion, for the aim of the judicial process is to secure a fair trial.
217 [1997] AC 117, 129C–F, in which Lord Taylor CJ confirmed the scope of judicial
discretion and gave a non-exhaustive list of factors a judge ought to consider in the correct
exercise of his or her discretion.
218 Contrast Brooks (1991) 92 Cr App R 36, and Cannan (1990) 92 Cr App R 16.
219 See Stone’s Justices’ Manual (2000) para 1–428.
220 [1983] 2 AC 473.
221 Ibid, 491G–492E.
222 Ibid, 492F.
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