Law of Evidence
English law has traditionally allowed the jury to hear bad character evidence in exceptional circumstances. The belief that the extension of admissibility of evidence would make it fairer for the defendants led to the introduction of CJA 2003. The CJA 2003 made fundamental changes to the admissibility of evidence relating to character in respect to defendants and others, with the aim to allow evidence of a defendant’s bad character to play a greater part in the prosecution of cases, as the solution for minimizing injustice. However, criticism has developed stating that actually the CJA 2003 is increasing injustice, as a jury would be more likely to convict someone with previous criminal convictions. This essay aims to examine whether or not the CJA 2003 has succeeded in its aim or has just increased injustice.
The provisions of Criminal Justice Act 1898 are older than 100 years and they concern the cross examination of the accused in a criminal case. However, these provisions were fundamentally reconsidered after the recommendations of three reports. Firstly, the report by the government in “The way ahead “ policy paper, secondly Lord Justice Auld in the criminal Court Review and thirdly the Law Commission report on Evidence of Bad Character in Criminal Proceedings[1]. These three reports have outlined solutions to solve the problems concerning cross-examination under Criminal Evidence Act 1898 such as the distortion of process and the weakness to operate fairly. Yet, despite the necessity for reform, the question how exactly that was possible to be done was difficult to answer. Historically, the admissibility of evidence of disposition was governed by the great body of case law, known as the law of “similar fact evidence”, except where the defendant “puts his character in issue” by calling witnesses to testify to his good character[2]. The defendant could not testify on his own defence until the Criminal Evidence Act (CEA) 1898 was introduced.
In CEA 1989 an exclusionary rule was laid out and prohibited the prosecution to adduce evidence of a defendant’s bad character or propensity even if relevant[3]. The main exception to the exclusionary rule was the ‘similar fact rule’, which permitted the admission of evidence of misconduct by the defendant in order to show a propensity to commit offences of the type charged. The leading authority was DPP v P[4]. The test of admissibility was whether the probative value of the evidence to be admitted was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to the accused in tending to show that he was guilty of another crime.
Most recently, in response to section 1(3) of CEA 1989, the Criminal Justice Act 2003 (CJA) was introduced. In part 11 it contains clauses about character evidence, partly based on the Law Commission’s proposals but significantly ‘bent’ to make evidence of the defendant’s bad character more readily admissible[5]. Currently the 2003 Act permit the defendant’s bad character to be admitted at trial in a far wider range of circumstances (there are seven gateways s.101 (1)(a)-(g) ) and often permit the use of the defendant’s bad character to show propensity to commit the offence charged[6]. One general aim of the legislation was to make it easy placing down evidence of previous misconduct before the court, where it was considered relevant to the offence with which the accused person was presently charged. As it was mentioned above, this area of law was previously covered by the “similar fact” evidence rule, which, according to the Home Secretary, was very confusing and also very difficult to apply. The new provisions were therefore aimed to correct this mischief. The provisions referring to bad character are provided in sections 98 to 108 of the CJA 2003 and include evidence on the part of the defendant like defence and prosecution. The adduction of the bad character of a defendant is governed by section 101 of CJA 2003[7]. The most important change in the act is in section 101 (1) (d), which provides that “evidence of misconduct can be adduced if relevant to an important matter in issue between the defendant and the prosecution”. Section 103(1) (a) provides that this includes whether a defendant has a propensity to commit offences ‘of the kind with which he is charged’’[8]. Under this section, an order from the Secretary of State, pursuant to section 103(4) (b), may decree that certain offences are of the same category. Under section 103(5), any category prescribed by such an order must consist of offences of the ‘same type’. However, the CJA 2003 does not define what is meant by ‘same category’ or ‘same type’[9]. This is a setback for the legislation as it gives the Secretary of State too much discretion in choosing what should constitute offences of the same description or category in relation to the introduction of bad character evidence during criminal trials. Obviously, bad character evidence runs the risk of unjustly prejudicing the defendant’s trial. As a result, the CJA 2003 has built in safeguards to avoid the possibility of such prejudice arising[10].
Furthermore the fact that the defendant has committed several offences in the past, it is often said, that it does not make it more probable that he has committed the specific offence. Therefore the character of the defendant is irrelevant in the case and in the procedure to reach a decision[11]. However there is a risk that the jury or magistrates may give more weight to the evidence than its relevance justifies and that its prejudicial effect may outweigh its probative value[12]. As a consequence, in English criminal law the general rule is that such evidence is inadmissible prior to a finding of guilt. This is in contrast to continental Europe where the court is routinely informed about the previous convictions of the defendant.
It can be said that CJA 2003 focused on to substitute the new provisions relating to the admissibility of evidence of bad character, but not of rules of inadmissibility, which might be considered as the principal target of the Law Commission’s review[13]. This distinction can be somewhat irrelevant but the matter is of importance especially in view of the common law distinction between what is rule and what exception. The outcome of this Act was that the prosecution has been given greater scope to adduce such evidence under the seven gateways of section 101 and simplifying the route to the juries in relation to such evidence[14]. If the prosecution wishes to rely on bad character, has initially to satisfy the court that one of the gateways has been satisfied. The issue arising is the way in which the evidence may be put, once it has been admitted in evidence. It might be argued that the bad character should only be used to cast doubt on the credibility of the defendant and not as evidence of propensity, namely that he committed the crime. The Court of Appeal held, however, that the use of the evidence could depend upon the matters to which it is relevant rather than upon the gateway through which it was admitted. In Highton[15] the accused attacked the prosecution witnesses, accusing them of fabricating the story of kidnapping and robbery. Under gateway 1(g) the accused’s prior convictions for robbery and theft were introduced. The judge invited the jury to consider the fact that those were relevant to propensity[16]. The jury needs to be given assistance as to the relevance of the bad character that is tailored to the facts of the case; hence the direction to the jury is of key importance. The Court of Appeal in Campbell (2007) impliedly criticized the Judicial Studies Board’s specimen direction, indicating that part of it was not likely to be helpful to the jury and that the direction must relate to the facts of the case. Lord Philips CJ held, in contrast with previous decisions, that a trial judge’s failure to provide a jury direction in accordance with a relevant specimen direction should no longer be treated as an automatic ground of appeal or automatically to permit an appeal[17]. Judges ought to consider whether a jury would have reached the same conclusion by the application of common sense to the evidence[18].
As seen, the CJA 2003 introduced the seven gateways for evidence to be admitted in order to be simpler for the judge to direct the jury in relation to evidence of bad character. The key gateway is s.101(1)(d), supplemented by s.103, stating that evidence of bad character is admissible when it is relevant to an important matter in issue between the defendant and the prosecution. Section 103 states that a matter in issue can be to show that the defendant has a propensity to commit offences of the kind with which he is charged or a propensity[19] to be untruthful[20]. This is conceptually confusing since propensity of the kind to which the section refers to, has never before been treated as a matter in issue. It is also in contrast with 1898 Act whereby jurors were instructed that the information was to be used only in relation to the question of the credibility of the defendant, and not to assess the likelihood that the defendant committed the crime he is now charged with[21].
Critical gateway is also the 101 (1) (e). Under s 101 (1) (e) a defendant’s character can be adduced if it has “substantial probative value in relation to an important matter in issue between the defendant and the co-defendant”[22]. In the Ibrahim Musone[23] case, Moses LJ states that s. 101(1)(e) confers no express power on a court to exclude such evidence on the ground that it is fair, once evidence of a defendant are admissible under the section. In addition there is no power to exclude the evidence under section 78(1) of the PACE 1984, because it is not evidence on which the prosecution proposes to rely[24]. In these circumstances the co-defendant can rely on his right to fair trial under section 6 of the ECHR, since section 78 of PACE could not be applied, and argue on the ground that if such evidence applied, it would be against his human rights.
Of vital importance is s.101 (1) (g) gateway, where a defendant has made an attack on another person’s character. The two gateways (d) and (g), stated in section 101(3), are under the exclusionary discretion of the court, whereby “The court must not admit evidence under subsection 101(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”. Following this, the court should balance the probative value of such evidence with its prejudicial effect; however there are no objective criteria in order to guide the court as to what to consider, when trying to decide the admission of such evidence. Without guiding criteria, the admission of similar fact evidence “becomes a lottery and abrogates the principle is that it is unfair than an accused should be answerable at a trial for anything other than the offence charged”[25]. Therefore, instead of having rules, the parties will have to rely upon judicial discretion during the proceedings. This however, is not substitute for the former[26] and should not be treated this way. Moreover, the research study of Lloyd-Bostock indicates that revealing a previous conviction to jurors, it evokes stereotypes of typical criminality and it increases the likelihood of a finding of guilt by them[27].
From the above it can be concluded that regardless the significant change on the provisions of bad character still they can promote complexity into the trial process and can lead to injustice, maybe more that it was before[28]. Now the only solution seems to be the ability of the competent judges and jurors to assess the weight of the evidence.
References
Books
Durston G., Evidence Text and Material, Oxford Uni. Press, 2008
Hannibal M., The law of criminal and civil evidence: principles and practice, Pearson Education, 2002.
Keane A., The Modern Law of Evidence, 6th ed., Oxford University Press, 2006
Tapper C., Cross R., Cross and Tapper of Evidence, Oxford University Press, 2007
Unlow S., Evidence Text and Materials. 2nd, Sweet & Maxwell, 2006
Spencer J, Evidence, 5th ed., Oxford University press, 2007
Articles
- Lloyd-Bostock S., “The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study”, 2000:C.L.R. 734
- Roberts A., Evidence: bad character – pre-Criminal Justice Act 2003 Law, Criminal Law Review, 2008
- Plowden P., Making Sense of Character Evidence, 2005:N.L.J 47
- Tapper C, Criminal Justice Act 2003: Part 3: evidence of bad character, 2004:C.L.R. 533
Cases
- R v Campell [2007] 1 WLR 2798
- DPP v P [1991] 2 AC 447.
- Highton (2005) 1 WLR 3472
- Ibrahim Musone [2007] 2 Cr App R 29, CA
[1] Keane A., The Modern Law of Evidence, (2006), 6th ed., Oxford University press, pp: 480.
[2] Hannibal M., The law of criminal and civil evidence: principles and practice, (2002), Published by Pearson Education, pp: 374.
[3] Keane A., The Modern Law of Evidence, (2007), 7th ed., Oxford University press, pp: 388.
[4] [1991] 2 AC 447
[5] Ibid.
[6] Plowden P., Making Sense of Character Evidence, (2005) N.L.J 47,p.47
[7] Tapper C., Cross R., Cross and Tapper of Evidence, (2007), Oxford Uni. Press, pp: 367.
[8] ibid
[9] Spencer J, Evidence, 5th ed., 2007, Oxford University press, pp: 63
[10] Tapper C, Criminal Justice Act 2003: Part 3: evidence of bad character, (2004) Criminal Law Review.
[11] Unlow S., Evidence Text and Materials. 2nd, (2006), Sweet & Maxwell, pp: 500
[12] ibid
[13] ibid
[14] R v Campell [2007] 1 WLR 2798
[15] (2005) 1 WLR 3472
[16] Roberts A., Evidence: bad character – pre-Criminal Justice Act 2003 law, (2008), Criminal Law Review.
[17] Supra n. 3 pp: 498
[18] Supra n. 14
[19] S.103(1)(a)
[20] S.103(1)(b)
[21] Lloyd-Bostock S., “The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study”, (2000) C.L.R. 734,p.735
[22] Durston G., Evidence Text and Materials, (2008), Oxford Uni. Press, pp: 207
[23] [2007] 2 Cr App R 29, CA
[24] Supra n:22 pp: 209
[25] Supra, n.7, p.526
[26] Tapper C., “The Criminal Justice Act 2003”, (2004) C.L.R. 533,p.555
[27] Supra, n.18, p.737
[28] Supra,n.15,p.49