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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(Notes) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(Notes).html Cite as: [2001] EWLC 273(Notes)

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EXPLANATORY NOTES

Bad character evidence generally

Clause 1

This clause defines evidence of bad character.

Clause 2

This clause provides that, with certain exceptions, bad character evidence is admissible in criminal proceedings only with leave of the court. Clauses 3–11 then describe the circumstances in which leave may be given, where it is required.

Subsection (1) ensures that leave is not required for evidence of the central facts of the case. Evidence is admissible under this exception if, though it falls within the definition of evidence of bad character, it has to do with the alleged facts of the offence charged, or the investigation or prosecution of that offence. Leave is required only for evidence of bad character which falls outside that central set of facts. For example, D is charged with burglary. Evidence that he committed that burglary is evidence of bad character as defined by clause 1, because it is evidence which tends to show that he has committed an offence; but it does not require leave, because it is evidence of the offence with which he is charged. Evidence that he committed an assault in the course of the burglary is also evidence of bad character, for the same reason; but it too does not require leave because, though not actually evidence of the offence charged, it has to do with the alleged facts of that offence. Evidence that D had tried to intimidate a prosecution witness would also not require leave, because it is evidence of misconduct in connection with the investigation or prosecution of the offence charged. Evidence that D had committed burglary on another occasion, however, would satisfy none of these conditions, and would therefore require leave.

The clause applies equally where the evidence is of the bad character of a person who is not a defendant. For example, evidence that a police officer planted evidence on the defendant, or fabricated a confession, would be admissible without leave because it has to do with the alleged facts of the offence charged or is connected with the investigation or prosecution of that offence. Evidence that the officer had planted evidence or fabricated confessions on other occasions, however, would satisfy none of these conditions, and would therefore require leave.

Subsection (2) provides that leave is not required if all parties consent to the evidence being admitted, or if it is the defendant who wishes to adduce evidence of his or her own bad character.

Clause 3

Where leave is required to adduce evidence of the bad character of someone who is not a defendant, this clause provides that leave may only be given if the evidence falls within clause 4 or 5.

Clause 4

This clause concerns evidence of the bad character of someone who is not a defendant which any party wishes to adduce for the sake of its explanatory value. Leave may be given under this clause if

•    ?without the evidence it would be impossible or difficult for the magistrates or jury properly to understand other evidence in the case; and

•    the evidence has substantial value for the understanding of the case as a whole.

Clause 5

This clause concerns evidence of the bad character of someone who is not a defendant which any party wishes to adduce for the sake of its probative value.

Leave may be given under this clause if the evidence has substantial probative value in relation to a matter in issue which is itself of substantial importance in the context of the case as a whole.

Subsection (2) lists a number of factors to which the court must have regard in assessing the probative value of the evidence. For this purpose the court must assume that the evidence is true unless it appears that no court or jury could reasonably find it to be true (see clause 14).

Clause 6

Where leave is required to adduce evidence of a defendant's bad character, it may only be given if the evidence falls within (at least) one of clauses 7, 8, 9, 10 or 11.

Clause 7

This clause concerns evidence of a defendant's bad character which the prosecution or a co-defendant wishes to adduce for the sake of its explanatory value.

To obtain leave under this clause, the party seeking to adduce the evidence must satisfy the court that

•    without the evidence, it would be impossible or difficult for the magistrates or jury properly to understand other evidence in the case; and

•    the evidence has substantial value for the understanding of the case as a whole; and

•    either the evidence is unprejudicial, or its explanatory value is such that, even taking account of the risks of prejudice which do attach to it, the interests of justice require it to be admitted. "Prejudice" is defined at clause 17(2).

Clause 8

This clause concerns evidence of the bad character of a defendant which the prosecution wishes to adduce for the sake of its probative value.

To obtain leave under this clause, the prosecution must satisfy the court that

•    the evidence has substantial probative value in relation to a matter in issue which is itself of substantial importance in the context of the case as a whole; and

•    either the evidence is unprejudicial, or it is so probative that, even taking account of the risks of prejudice which do attach to it, the interests of justice require it to be admissible. Subsection (3)(b) sets out the factors that the court must take into account in determining whether the evidence has enough probative value to outweigh any risk of prejudice. ("Prejudice" is defined at clause 17(2).)

In assessing whether the evidence has enough probative value to satisfy these conditions, the court must have regard to the factors listed at clause 5(2). For this purpose the court must assume that the evidence is true unless it appears that no court or jury could reasonably find it to be true (see clause 14).

The purpose of subsection (5) is to ensure that the prosecution may not advance its case under this exception by seeking only to prove that the defendant has a propensity to be untruthful. If, for example, the defendant has a conviction for perjury, the prosecution may not seek leave to adduce evidence of that conviction under clause 8 on the basis that the defendant's propensity to lie on oath is a matter in issue. To adduce this evidence it would have to satisfy the more stringent requirements of clause 9.

This rule does not, however, prevent the prosecution from seeking to adduce evidence which shows that the defendant has advanced a similar defence before.

Clause 9

This clause concerns evidence of a defendant's bad character which the prosecution wishes to adduce to show that the defendant has a propensity to be untruthful. The essence of this exception is to ensure that the magistrates or the jury are not given a false impression of the defendant's propensity to be untruthful as compared with that of another person.

This clause applies only where the defendant has suggested that another person has a propensity to be untruthful. The defendant may do this by adducing evidence of that person's propensity, by cross-examining to that effect, or by making an assertion to that effect after being cautioned (whether when being questioned or on being charged) of which evidence is then given.

The clause does not apply where the allegation of untruthfulness has to do with the facts of the offence charged or the investigation or prosecution of that offence. For example, the defendant would not open the door to evidence of his own past untruthfulness merely by suggesting that prosecution witnesses are lying about the offence charged, or that the prosecution's evidence has been fabricated by the police.

To obtain leave under this clause, the prosecution must satisfy the court that

•    the evidence it wishes to adduce has substantial probative value in showing that the defendant has a propensity to be untruthful; and

•    without that evidence, the magistrates or jury would get an inaccurate impression of the defendant's propensity to be untruthful in comparison with that of the other person; and

•    either the evidence is unprejudicial, or it is so probative that, even taking account of the risks of prejudice which do attach to it, the interests of justice require it to be admissible. Subsection (6)(b) sets out the factors that the court must take into account in determining whether the evidence has enough probative value to outweigh any risk of prejudice. ("Prejudice" is defined at clause 17(2).)

Subsection (7) sets out a number of further factors to which the court must have regard in determining whether these conditions are met.

In assessing the probative value of the evidence, the court must assume that it is true unless it appears that no court or jury could reasonably find it to be true (see clause 14).

Clause 10

This clause concerns evidence of a defendant's bad character which the prosecution wishes to adduce to correct a false or misleading impression about the defendant for which the defendant is responsible. A defendant is responsible for such an impression if it results from an assertion which is made

•    by the defendant in the proceedings (either in the course of giving evidence, or through his or her representative);

•    in an assertion made out of court by the defendant after caution, and evidence of the assertion is before the court;

•    by a defence witness;

•    by any witness in cross-examination by the defendant, unless the question was not intended to produce the answer given; or

•    by anyone out of court, and the defendant adduces evidence of it.

Under subsection (6) the court may also treat the defendant as responsible for creating a false or misleading impression about himself or herself where it appears to the court that the defendant is seeking to give the magistrates or jury such an impression by means of his or her conduct.

To obtain leave under this clause, the prosecution must satisfy the court that

•    the evidence has substantial probative value in correcting the false or misleading impression; and

•    either the evidence is unprejudicial, or it has such corrective value that, even taking account of the risks of prejudice which do attach to it, the interests of justice require it to be admissible. Subsection (4)(b) sets out the factors that the court must take into account in determining whether the evidence has enough corrective value to outweigh any risk of prejudice. ("Prejudice" is defined at clause 17(2).)

Subsection (8) sets out a number of further factors that the court must take into account in determining whether these two conditions are met.

In assessing the corrective value of the evidence, the court must assume that it is true unless it appears that no court or jury could reasonably find it to be true (see clause 14).

Subsection (9) provides that, where the prosecution proposes to apply for leave under this clause in the magistrates' court, the court must first rule whether, in the context of the case as a whole, the impression in question is sufficiently important to need correcting. If the court rules that it is not, the prosecution may not pursue that application. The court must make its ruling without hearing about the evidence which it is said would correct the impression given.

Clause 11

This clause concerns evidence of a defendant's bad character which a co-defendant wishes to adduce (or to elicit in cross-examination) for the sake of its probative value. (If the codefendant wishes to adduce it for the sake of its explanatory value, leave may be sought under clause 7.) The prosecution may not apply under this clause.

Leave will be given under this clause if the evidence has substantial probative value in relation to a matter in issue between the defendants concerned, which is of substantial importance in the context of the case as a whole. For this purpose the court must have regard to the factors listed at clause 5(2), and must assume that the evidence is true unless it appears that no court or jury could reasonably find it to be true (see clause 14). There is no need for the court to consider whether the evidence is prejudicial or, if so, whether the interests of justice require it to be admitted despite that risk.

Subsection (2), however, provides that evidence of a defendant's propensity to be untruthful cannot be admitted under this clause unless that defendant has undermined the codefendant's defence. The defendant may do this either by running a particular defence (for example, that the co-defendant was solely responsible) or by running the defence in a particular way (for example, by attacking the credibility of the co-defendant's witnesses).

Clause 12

Subsection (1) amends section (5) of the Indictments Act 1915 so as to provide for the situation where counts are properly joined in an indictment and where evidence of the defendant's bad character is admissible on one count but inadmissible on another. If the defendant applies for the counts to be tried separately, the paramount consideration for the court is whether the defendant can receive a fair trial. If the court is not so satisfied, there must be separate trials.

Subsection (3) makes similar provision for summary trials.

Clause 13

This clause comes into play where, in a trial on indictment, evidence of a defendant's bad character has been admitted with leave, but, after the close of the prosecution's case, the court is satisfied that that evidence is "contaminated". By virtue of subsection (5), evidence might be "contaminated" as a result of: deliberate fabrication of allegations resulting from an agreement between witnesses; concoction of an allegation by one person (no conspiracy); collusion between witnesses to make their evidence sound more credible falling short of concoction of allegations; deliberate alteration of evidence or unconscious alteration of evidence, resulting from having become aware of what the evidence of another

will be or has been.

Where the court is satisfied that the contamination is such that a conviction would be unsafe, it must stop the trial on that charge (and on any lesser offence: subsection (2)).

Subsection (3) achieves the same result where the defendant has been found unfit to plead by reason of mental disability, and (under section 4A(2) of the Criminal Procedure (Insanity) Act 1964) the jury therefore has to determine not whether the defendant is guilty, but only whether he or she did the act or made the omission charged. This clause does not apply to summary trials.

General

Clause 14

Subsection (1) provides that the probative value of bad character evidence is to be assessed on the assumption that it is true.

Subsection (2), however, provides for an exception to this rule where it appears that no court or jury could reasonably find the tendered evidence to be true. In that case the court need not assume that it is true, but may assess the reliability of the evidence for itself, and has an inherent power to arrive at that decision in whatever way is thought most appropriate. It might be possible to make the assessment on the basis of the papers alone, taking submissions by the advocates into account; or the court might think it necessary to hear evidence, in which case it would do so on a voir dire.

Clause 15

This clause provides that, where a court

•    rules on whether bad character evidence is admissible only with leave,

•    gives or refuses leave, or

•    rules on an application to stop the trial under clause 13 (on the ground that contaminated evidence of the defendant's bad character has been admitted),

it must give its reasons, and those reasons must be recorded.

Clause 16

This clause provides for rules of court to be drawn up concerning notice that a party will have to give to a defendant that it intends to adduce evidence of that defendant's bad character, and gives the court or defendant the power to dispense with such a requirement.

Clause 17

This clause defines various expressions used in the Bill.

Subsection (3) has the effect that, in applying clause 8 where the defendant faces more than one charge, the court approaches the question of admissibility for each offence in isolation. Thus evidence might be admissible in relation to offence A but inadmissible in relation to offence B.

Clause 18

This clause gives effect to Schedule 1, which makes provision for the use of bad character evidence in courts-martial and other service courts.

Clause 19

This clause makes various minor and consequential amendments to existing statutes.

Clause 20

Subsection (1) abolishes the existing common law rules on bad character evidence, and subsection (3)(a) repeals section 1(3) (formerly section 1(f)) of the Criminal Evidence Act 1898. (The Bill has been drafted on the basis that paragraph 4 of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 is already in force although it is not in force at the time of writing.) Thus the Bill sets out all the rules applicable to bad character evidence in criminal proceedings.

Subsection (2) abolishes the common law hearsay exception which permits evidence of character to be proved by evidence of a person's reputation, but only in respect of evidence of bad character.

Subsection (3)(b) repeals section 27(3) of the Theft Act 1968, which provides for the admissibility of certain previous convictions of a defendant charged with handling stolen goods. Such cases will no longer be governed by special rules.

Subsection (4) gives effect to Schedule 2, which repeals various existing provisions.

Clause 21

This clause provides for the Bill's short title, the date of its coming into force, and its territorial extent.

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