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

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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. 37
2.95 This approach was confirmed in R v Camberwell Green Stipendiary Magistrates, ex parte Martin: 223 the test is no stricter in the magistrates’ court than on indictment. 223 [2001] ACD 40. 38
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 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: defendants, S, was permitted to add
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
Page 97 and 98: admitted automatically even though
Page 99 and 100: expected to play some part. A regim
Page 101 and 102:
since the purpose of such a directi
Page 103 and 104:
The risk of prejudice 6.33 In the c
Page 105 and 106:
defendant with a previous convictio
Page 107 and 108:
past behaviour in evidence, in the
Page 109 and 110:
6.55 A practical difficulty with th
Page 111 and 112:
solution would thus be to allow evi
Page 113 and 114:
PART VII OVERVIEW OF OUR RECOMMENDA
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sought to put before the fact-finde
Page 117 and 118:
helpful” in assessing that person
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THE PURPOSE OF THE EVIDENCE 7.20 Th
Page 121 and 122:
(a) it falls within the central set
Page 123 and 124:
Evidence of criminal offences 8.10
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8.16 In view of this difficulty we
Page 127 and 128:
(iii) the accused may have had a re
Page 129 and 130:
8.32 We recommend that (1) all othe
Page 131 and 132:
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
Page 153 and 154:
Option 4: the Australian common law
Page 155 and 156:
11.18 Four of the five respondents
Page 157 and 158:
consultation paper we gave an examp
Page 159 and 160:
11.35 In that case the similar defe
Page 161 and 162:
(A) the risk of the fact-finders at
Page 163 and 164:
stolen goods (section 27(3)(a)) or
Page 165 and 166:
11.59 It is not for us, dealing as
Page 167 and 168:
the likelihood that he or she was l
Page 169 and 170:
(2) the defendant has suggested tha
Page 171 and 172:
(3) by attacking the person’s rep
Page 173 and 174:
WHEN A DEFENDANT IS RESPONSIBLE FOR
Page 175 and 176:
example, it was impossible to edit
Page 177 and 178:
THE CORRECTIVE EVIDENCE MUST HAVE S
Page 179 and 180:
indivisible, but do not prescribe w
Page 181 and 182:
incompetent questioning) into makin
Page 183 and 184:
13.46 We understand the concern tha
Page 185 and 186:
PART XIV THE CO-DEFENDANT EXCEPTION
Page 187 and 188:
(1) the degree to which D2’s defe
Page 189 and 190:
allow D1 to undermine D2’s defenc
Page 191 and 192:
prosecution witnesses. The responde
Page 193 and 194:
(5) there were a series of factors
Page 195 and 196:
The operation of the exception 14.4
Page 197 and 198:
PART XV THE QUALITY OF TENDERED EVI
Page 199 and 200:
The current law 15.9 The question h
Page 201 and 202:
improbability that different compla
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collusion or contamination the pros
Page 205 and 206:
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
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statement in advance. 7 If one part
Page 219 and 220:
A DUTY TO GIVE REASONS The common l
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equires magistrates to give reasons
Page 223 and 224:
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
Page 229 and 230:
Criminal Evidence Bill 1 DRAFT OF A
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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
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(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 and 264:
APPENDIX B PERSONS AND ORGANISATION
Page 265 and 266:
The Right Honourable Lord Justice P
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