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

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PART IV DEFECTS OF THE PRESENT LAW 4.1 In this Part we review the problems in the current law. We summarise the principal defects, and then describe the problems in detail. THE PRINCIPAL DEFECTS Evidence adduced as part of the prosecution case in chief “similar fact” • There is still confusion about the law on “similar fact evidence”. The test for the admissibility of this kind of evidence does not, in our view, give clear enough guidance on how it is to be applied. background evidence • If evidence is admitted as “background” evidence its value does not have to be assessed in the light of its prejudicial effect (as it would if it were “similar fact evidence”) and yet it may be very prejudicial. Moreover, it is not clear what counts as “background” evidence. Theft Act 1968, section 27(3) • This provision is neither justified nor useful. Evidence adduced in the course of cross-examination • The statutory rules are supposed to have the effect that only bad character evidence which goes to credibility is admitted in cross-examination of a defendant who “loses the shield”, but the courts can and do admit evidence which does not relate to credibility. • The rule that bad character evidence on the “tit-for-tat” basis may only be adduced in cross-examination means that witnesses are inadequately protected from irrelevant cross-examination on their character. • The fear of “losing the shield,” which should deter a defendant from making gratuitous attacks, does not bite where that defendant does not testify, or has no criminal record to be revealed. This puts a premium on tactical decisions and distorts the process. • Defendants may be inhibited from putting their true defence on the central set of facts for fear of their character going in. • The statute does not preclude evidence of the defendant’s bad character being admitted even where its prejudice outweighs its relevance to the defendant’s credibility. • There is no power to prevent the record of a defendant being admitted where that defendant has undermined the defence of a co-accused. Unfairness can result. 51
THE PROBLEMS IN DETAIL (I): EVIDENCE IN CHIEF Lack of clarity in the “similar fact evidence” rules 4.2 It is hard for parties and courts to establish exactly what the law is in this area. When the CLRC looked at it in 1972, they said it was “far the most difficult of all the topics which we have discussed” 1 and, despite the decision in DPP v P, it is still very problematic. This area of the law is ripe for codification which would bring greater clarity, certainty and accessibility. 4.3 The test in the leading authority, DPP v P is too vague. The test was formulated as follows: … the essential feature of evidence which is to be admitted is that its probative force … is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. 2 4.4 To state that the evidence is admissible when it is “just” to do so, does not settle the question of how the probative value ought to relate to the prejudicial effect in order for it to be admitted. 3 There are a number of possibilities. Some of them are quantitative, weighing the probative value against the prejudicial effect by reference to a quantitative benchmark such as on balance; or substantially 4 or clearly outweighing or that it would be “an affront to common sense” 5 to exclude the evidence. Another approach might be qualitative, that is to say placing a burden on one party or the other and/or by being more specific about the way in which the concept of doing justice feeds in to the decision. Thus there might be a presumption of inclusion or exclusion. The test might require the interests of justice to be served marginally or absolutely. For example it may be sufficient that it may be in the interests of justice for the evidence to be admitted, or it may be that the interests of justice must require the evidence to be admitted. In the absence of such clarification different judges may be adopting completely different approaches to the question whether it is just to admit the evidence having regard to probative value and prejudice. 4.5 In a matter requiring the exercise of judgment in an individual case, it is impossible for a test based on what is just to be so precise that there is no room for argument in individual cases, but we do think that there is scope for more guidance. For example, there is no indication of the factors that are relevant in 1 CLRC, Evidence Report (1972) para 70. 2 DPP v P [1991] 2 AC 447, 460E–F. 3 As Professor Birch says: “…the truth is that we do not know what we are looking for”. See her commentary on Channing [1994] Crim LR 924, 926. 4 As in the Australian Evidence Act 1995 (Cth), s 101(2). 5 Boardman [1975] AC 421, 454A, per Lord Hailsham of St Marylebone, approving Lord Simon of Glaisdale’s use of that phrase in Kilbourne [1973] AC 729, 759D. 52
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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-
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 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: convention. If this test is satisfi
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
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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
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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
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6 Criminal Evidence Bill appears ju
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Criminal Evidence Bill 7 12 Trying
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8 Criminal Evidence Bill (b) the ci
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Criminal Evidence Bill 9 (a) a ruli
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10 Criminal Evidence Bill “defend
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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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