BAD CHARACTER AND THE CRIMINAL JUSTICE ACT
2003
INTRODUCTION
•
Section 99 abolished the common law rules
•
the Criminal Evidence Act 1898 is repealed by Part 5 of Schedule 37
WHAT IS BAD CHARACTER?
•
Section 98 - any evidence of “misconduct” or “a disposition towards
misconduct
• Section 112 - misconduct “means the commission of an offence or other
reprehensible behaviour”
R v Weir & Others [2005] EWCA Crim 2866 - propensity to commit crime
may be proved by evidence of commission of other offences, but is not confined to that
R v Renda & Others [2005] EWCA Crim 2826 – a prosecution witness may be
cross-examined about incidents of misconduct known to the defendant which have
never been the subject of charge
PROCEDURE
•
Section 111(2) makes provision for rules
•
Part 35 of Criminal Procedure Rules contains rules
•
Prescribed Form BC2 for notice of intention
•
Prescribed Form BC3 for notice of objection
 Paul Keleher 2005
1
•
notice of intention to adduce evidence of bad character must be given on the
prescribed form which requires: o "a description of the bad character evidence and how it is to be adduced
or elicited in the proceedings including the names of any relevant
witnesses."1
•
in the case of a non-defendant’s bad character:
o it must be served on all parties and the court not more than 14 days after
the prosecutor has purported to make primary disclosure
o opposition to the application must give notice of opposition within 14
days of receiving application
•
in the case of a defendant’s bad character to be adduced by the prosecution:
o it must be served on all parties not more than 14 days after committal or
service of evidence in cases of transfer
•
in the case of a defendant’s bad character to be adduced by a co-defendant:
o not more than 14 days after the prosecutor has purported to make
primary disclosure
•
notice of application to exclude bad character evidence must be served on all
parties on the correct form within 7 days of receipt of the notice.
R v Hanson, Gilmore and Pickstone [2005] EWCA Crim 824:“We would expect the relevant circumstances of previous convictions generally to be capable of
agreement, and that, subject to the trial judge's ruling as to admissibility, they will be put before
the jury by way of admission. Even where the circumstances are genuinely in dispute, we would
expect the minimum indisputable facts to be thus admitted. It will be very rare indeed for it to
be necessary for the judge to hear evidence before ruling on admissibility under this Act.”2
R v Bovell and Dowds [2005] EWCA Crim 1091: -
The form of application (BC2), prescribed by Rule 23E, inserted into the Crown Court Rules
1982 by Statutory Instrument 2004 No 2991 (L18)
2 Paragraph 17
1
 Paul Keleher 2005
2
“First, it is necessary for all parties to have the appropriate information in relation to convictions
and other evidence of bad character, whether in relation to the defendant or to some other
person, in good time. That can only be achieved if the rules in relation to the giving of notice are
complied with.”
“It is worth mentioning that the basis of plea in relation to an earlier conviction may be relevant
where it demonstrates differences from the way in which the prosecution initially put the case.
In other words, a mere reference to the statement of a complainant in an earlier case may not
provide the later court with the material needed to make a decision as to the admissibility of
the earlier conviction.”3
R v Edwards, Fysh Duggan & Chohan [2005] EWCA Crim 1813: “the facts were not agreed because no notice had been given and no adequate pre-trial
enquiries had, in consequence, been made. The defendant was cross-examined about the facts
of one of these offences. Mr Lynn submits the defendant was embarrassed in consequence,
because the explanation which he had to give in relation to one of the offences was that it did
not involve entry into someone else's home, and the victim of the offence was his girlfriend.
Clearly, it is unfortunate that there was cross-examination in those circumstances.
As this Court has previously pointed out, (see Bovell & Dowds para 2) it is important that
provisions in relation to notice are observed so that adequate enquiries can be made on both
sides as to the circumstances of offences, in so far as those circumstances may be relevant
when the question of the admissibility of previous convictions arises.”4
R v Humphris [2005] EWCA Crim 2030 usual rules of evidence apply when
proving convictions
•
3
4
the usual rules as to disclosure apply provided one pleads this is the BC3
Paragraph 2
Paragraphs 31-32
 Paul Keleher 2005
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NON-DEFENDANT’S BAD CHARACTER
Section 100 - evidence of a non-defendant’s may now be cross examined as to
character if, and only if
(1)
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which (i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
Evidence is important explanatory evidence if -
(2)
(a) without it, the court or jury would find it impossible or difficult properly to
understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3)
In assessing the probative value of evidence for the purposes of subsection (1)(b)
the court must have regard to the following factors (and to any others it considers
relevant) (a) the nature and number of the events, or other things, to which the evidence
relates;
(b) when those events or things are alleged to have happened or existed;
•
section 100(4) such evidence can only be given with the leave of the court.
R v Weir and Others a person’s arrest for an offence is not evidence of
misconduct.
 Paul Keleher 2005
4
R v Weir and Others: “Paragraph 363 of the Explanatory Notes does refer to ‘an enhanced relevance test’5 but only
in relation to section 100 of the Act. The terms of that section clearly impose a higher test in
respect of the introduction of a non-defendant’s bad character than the test for the introduction
of a defendant’s bad character.”6
R v Weir and Others a defence witness’s caution for possession of cocaine was
inadmissible under s.100(1). The witness was crucial, but the caution did not have
substantial probative value in relation to her credibility.7
a reference to O’Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038
Paragraph 36
7 Paragraph 73-74
5
6
 Paul Keleher 2005
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DEFENDANT’S BAD CHARACTER
Section 101(1)
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to
a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and
the prosecution,
(e) it has substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person's character.
 Paul Keleher 2005
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(c) it is important explanatory evidence,
section 102 - evidence is important explanatory evidence if (a) without it, the court or jury would find it impossible or difficult properly to
understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial
R v Edwards, Fysh, Duggan & Chohan [2005] EWCA Crim 1813.: “it was inevitable that the jury, who would have to be directed as to the caution necessary in
identification by reference to Turnbull, would have to consider the circumstances in which the
witness claimed to be able to identify the defendant. It would, the judge concluded, be difficult
properly to understand other evidence in the case without knowing the background of the
heroin dealings which, he concluded, went to the heart of matters.”8
8
Paragraph 70
 Paul Keleher 2005
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(d) the evidence is relevant to an important matter
in issue between the defendant and the prosecution
•
the matter in issue must be an important one R v Highton, Van Nguyen
and Carp [2005] EWCA Crim 1985
•
Evidence of a propensity which is not actually bad character is governed by the
common law R v Weir and Others
•
s.103(1) “matters in issue” include but are not restricted to propensity
•
s.103(2) propensity to commit offences may be proved by evidence he has
committed offences of the same description or category
R v Hanson, Gilmore & Pickstone [2005] EWCA Crim 824
•
Does the history of convictions [the case confined itself to evidence of
misconduct arising from convictions] establish a propensity to commit offences
of the kind charged?9
•
Does that propensity make it more likely that the defendant committed the
offence charged?10
•
There is no minimum number of events necessary to demonstrate such a
propensity. The fewer the number of convictions the weaker is likely to be the
evidence of propensity.11
•
The sentence passed will not normally be probative or admissible at the behest
of the Crown, though it may be at the behest of the defence.12
•
Propensity to untruthfulness is not the same as propensity to dishonesty13
Paragraph 7
ditto
11 Paragraph 9
12 Paragraph 12
13 Paragraph 13
9
10
 Paul Keleher 2005
8
•
The Criminal Justice Act 2003 (Categories of Offences) Order 2004 SI 2004 No.
3346 is not determinative. Convictions for crimes of ‘dishonesty’ are not
necessarily probative evidence of a propensity to committing other crimes of
dishonesty 14
14
Paragraph 27
 Paul Keleher 2005
9
(e) it has substantial probative value in relation to an
important matter in issue between the defendant
and a co-defendant
•
Section 104(1) - evidence which is relevant to the question whether the
defendant has a propensity to be untruthful is admissible on that basis under
section 101(1)(e) only if the nature or conduct of his defence is such as to
undermine the co-defendant's defence
R v Weir and Others – evidence of a co-defendant’s previous conduct may be
admissible under the common law if not evidence of bad character, but if it is evidence
of bad character, the provisions of this Act apply
 Paul Keleher 2005
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(f) it is evidence to correct a false impression given
by the defendant
This covers an express or implied assertion which is apt to give the court a false
impression about the defendant.
•
Section 105 clarifies
o the false impression must relate to the defendant and not something else
o the defendant is responsible for any assertion made either during the
proceedings, or when interviewed, questioned or charged – and which is given in
evidence
o The assertion could be made by any defence witness, or in cross-examination in
response to a question by the defendant which was intended or was likely to
elicit it
o s.105(3) a defendant shall not be treated as responsible for the assertion if he
withdraws or dissociates himself from it
 Paul Keleher 2005
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(g) the defendant has made an attack on another
person's character
•
the attack need not be on a witness, can be on any person
•
section 106 - an attack on another person’s character is evidence to the effect
that the other person has committed an offence (whether a different offence
from the one with which the defendant is charged or the same one), or has
behaved, or is disposed to behave, in a reprehensible way
•
if the evidence is admitted by s101(1)(g) evidence of any conviction may be
admitted to undermine the credibility of the defendant, not just convictions
involving untruthfulness
R v Hanson & Others
“We have not heard full argument as to whether it is right or indeed necessary to give a
credibility direction where evidence of bad character has been admitted under this Act, nor as
to whether the nature of the direction should be dependent on the gateway through which the
evidence has been admitted. But, in this case, the defendant's credibility was so inextricably
bound up with whether he had committed the offences that no sustainable criticism can be
made of this aspect of the summing-up.”15
R v Edwards and Others - by reason of the appellant’s “sustained attack” on the
character of the police, his previous convictions for robbery, burglary and assault
occasioning actual bodily harm were admissible under s.101(g)16
R v Edwards and Others - the defence that the prosecution witnesses must have
conspired to fabricate their account meant that previous convictions for common
assault, theft, making a false statement to obtain benefit, battery and theft all admissible
under s.101(g)17
Paragraph 53
Paragraph 9
17 Paragraph 34
15
16
 Paul Keleher 2005
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R v Highton, Van Nguyen and Carp - if evidence were admitted via s.101(1)(g),
to what issue was it relevant? It is automatically relevant to credibility and once it had
been admitted via this gateway, also be relevant to the issue of propensity to commit an
offence of the kind charged, that is to say violence18
18
Paragraph 10
 Paul Keleher 2005
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RESTRICTIONS ON THE ADMISSION OF A
DEFENDANT’S BAD CHARACTER
•
Section 101(3) “The court must not admit evidence under subsection (1)(d)
or (g) if the admission of the evidence would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it
•
Section 101(4) the court must have regard, in particular, to the length of time
between the matters to which that evidence relates and the matters which form
the subject of the offence charged
•
Section 103(3) evidence of previous convictions for the purpose of proving a
propensity to commit offences of the same kind does not apply if they are very
old
•
Section 103(3) does not apply to evidence of propensity to be untruthful
•
Section 78 Police and Criminal Evidence Act 1984 should apply to all
applications regarding the admissibility of bad character19
R v Hanson
“The starting point should be for judges and practitioners to bear in mind that Parliament's
purpose in the legislation, as we divine it from the terms of the Act, was to assist in the
evidence based conviction of the guilty, without putting those who are not guilty at risk of
conviction by prejudice. It is accordingly to be hoped that prosecution applications to adduce
such evidence will not be made routinely, simply because a defendant has previous convictions,
but will be based on the particular circumstances of each case.”20
19
20
R v Highton & Others, paragraph 13
Paragraph 4
 Paul Keleher 2005
14
•
Even if the history of convictions establishes a propensity to commit offences of
the kind charged, is it unjust to rely on the convictions; and in any event, will the
proceedings be unfair if they are admitted?21
•
If there is no or very little other evidence against a defendant, it is unlikely to be
just to admit his previous convictions, whatever they are.22
•
Old convictions, with no special feature shared with the offence charged, are
likely seriously to affect the fairness of proceedings adversely, unless, despite
their age, it can properly be said that they show a continuing propensity.23
•
Where past events are disputed the judge must take care not to permit the trial
unreasonably to be diverted into an investigation of matters not charged on the
indictment.24
•
The observations already made concerning the number of convictions required
to establish propensity apply equally to establishing a propensity for
untruthfulness.25
Paragraph 7
Paragraph 10
23 Paragraph 11
24 Paragraph 17
25 Paragraph 13
21
22
 Paul Keleher 2005
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SUMMING UP
R v Hanson
•
the judge in summing-up should warn the jury clearly against placing undue
reliance on previous convictions.
•
In particular, the jury should be directed; that they should not conclude that the
defendant is guilty or untruthful merely because he has these convictions. That,
although the convictions may show a propensity, this does not mean that he has
committed this offence or been untruthful in this case
•
Whether they in fact show a propensity is for them to decide
•
They must take into account what the defendant has said about his previous
convictions; and that, although they are entitled, if they find propensity as shown,
to take this into account when determining guilt, propensity is only one relevant
factor and they must assess its significance in the light of all the other evidence in
the case.26
R v Edwards
•
The Hanson guidance was not intended to provide a blueprint, departure from
which will result in the quashing of a conviction.
•
What the summing-up must contain is a clear warning to the jury against placing
undue reliance on previous convictions, which cannot, by themselves, prove guilt.
•
It should be explained why the jury has heard the evidence and the ways in
which it is relevant to and may help their decision
26
Paragraph 18
 Paul Keleher 2005
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• Provided the judge gives such a clear warning, explanation and guidance as to
use, the terms in which he or she does so can properly differ27
AUTHORITIES
R v Hanson, Gilmore and Pickstone [2005] EWCA Crim 824
R v Bovell and Dowds [2005] EWCA Crim 1091
R v Edwards, Fysh Duggan & Chohan [2005] EWCA Crim 1813
R v Highton, Van Nguyen and Carp [2005] EWCA Crim 1985
R v Humphris [2005] EWCA Crim 2030
R v Weir & Others [2005] EWCA Crim 2866
R v Renda & Others [2005] EWCA Crim 2826
O’Neill (Respondent) v Chief Constable of South Wales
Police (Appellant) [2005] UKHL 26
West Yorkshire Probation Board v Boulter [2005] EWHC
2342 (Admin)
27
Paragraph 3
 Paul Keleher 2005
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