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

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viii Paragraph Page The purpose of the evidence 7.20 106 Who is adducing the evidence? 7.21 106 PART VIII: BAD CHARACTER AND THE LEAVE REQUIREMENT 107 Defining evidence of bad character The options considered in the consultation paper 8.4 108 Objections to our provisional proposal 8.9 109 Evidence of criminal offences 8.10 110 Evidence of bad character not amounting to an offence 8.12 110 Disposition 8.18 112 Our recommendation 8.19 112 Bad character evidence not subject to the exclusionary rule 8.20 113 The central set of facts 8.20 113 Evidence which all parties agree should be admitted 8.29 115 Evidence of a defendant’s bad character, adduced by that defendant 8.30 115 Our recommendations 8.31 115 PART IX: EXCEPTIONS APPLICABLE TO NON-DEFENDANTS 118 The current position 9.3 118 Judicial control 9.5 119 The option put forward in the consultation paper 9.8 119 The views of respondents 9.10 120 The dangers of bad character evidence Its irrelevance 9.14 122 Its prejudicial effect 9.16 123 The effect of a statutory test of enhanced relevance 9.24 126 Would a test of enhanced relevance prevent the defendant from having a fair trial? 9.28 127 Our conclusion 9.35 129 Formulating the test of enhanced relevance 9.36 129 The importance of the matter in issue 9.38 130
ix Paragraph Page Ensuring a fair trial 9.40 130 Our recommendations Exceptions: non-defendants: substantial probative value 9.41 131 Exceptions: non-defendants: substantial explanatory value 9.42 131 The consequences for the defendant 9.44 131 The relationship with section 41 Youth Justice and Criminal Evidence Act 1999 9.45 131 PART X: THE EXPLANATORY EXCEPTION 133 The defects of the current law Res gestae and background evidence 10.1 133 Our analysis 10.3 134 Evidence which is part of the narrative of the offence 10.4 134 Explanatory evidence 10.7 135 PART XI: THE INCRIMINATORY EXCEPTION 138 Introduction 11.1 138 The options for reform and the response on consultation 11.3 138 Option 2: adducing bad character evidence to prove mens rea 11.4 138 Option 3: adducing bad character evidence to show disposition 11.8 139 Option 4: the Australian common law test, namely whether there is any reasonable explanation for the similar fact evidence other than that the defendant is guilty 11.11 140 Option 5: the scheme of the Australian Evidence Act 1995 11.14 141 Option 6 11.20 142 Our conclusions A test of enhanced relevance 11.22 142 The relationship between probative value and prejudicial effect 11.23 143 The importance of the matter in issue 11.31 145 The defendant’s propensity to be untruthful 11.32 145 The credibility of a defence 11.34 145 The additional value of the evidence 11.38 147 Statutory guidance 11.40 147 Provisional proposals on statutory guidelines 11.41 147
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: vii Paragraph Page The relevance of
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 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
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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
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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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