27.- (3) Where a person is being proceeded against for handling stolen goods … the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods:-
a) evidence that he has had in his possession, or has undertaken or assisted in the retention, removal, disposal or realisation of, stolen goods from any theft taking place not earlier than twelve months before the offence charged; and
b) ...evidence that he has within the five years preceding the date of the offence charged been convicted of theft or of handling stolen goods.
A previous conviction is relevant to whether the accused ‘knows or believes’ the goods to be stolen. The jury are also entitled to know the details of the conviction - in Hacker the accused was charged with handling a stolen car, namely a Ford Escort RS Turbo. The prosecution sought to prove guilty knowledge under section 27(3) by adducing evidence of a previous handling conviction. The problem was that the prosecution wished not merely to show the fact of conviction but also that the previous offence was also for handling a Ford Escort RS Turbo. The House of Lords held that section 27 must be read alongside section 73(2) of the Police and Criminal Evidence Act 1984 which states that where a conviction is admissible in evidence, the certificate shall give 'the substance and effect (omitting the formal parts) of the indictment and of the conviction'. Lord Slynn held that the particulars of the motor car were 'of the substance of the indictment'. He quoted the judgment of the Court of Appeal,
If the only evidence that can go in is the bare evidence of handling stolen goods, then what will happen if the jury indicate that they wish to know what goods were stolen? They might, quite sensibly, take the point that if it was a handling of a stolen motor car it might be very different from handling of half a pound of sugar. However, that is a matter on the authorities as they presently stand either for the legislator or for a higher court than this.
As these examples of guilty knowledge show, where the previous misconduct is directly relevant to a specific element of the prosecution case, the evidence is admissible even though it reveals the accused's bad character. In Ollis, the defendant was acquitted of obtaining by false pretences when a cheque he gave the victim was dishonoured, his defence being that he thought the cheque would be honoured. The accused was then tried on another indictment on similar counts of obtaining money on cheques which were dishonoured. The prosecution called the first victim to prove guilty knowledge and the admission of this evidence was upheld on appeal. A recent example is Caceres-Moreira where the accused was charged with importation of cocaine and a previous incident was admitted as going to the issue of the defendant’s knowledge that the parcel contained drugs.
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further issues can arise around the establishment of a defence. In Jones v DPP, the accused was charged with murder and rape of a young girl guide. Previously he had been convicted of the rape of another young girl. In the course of that trial, he put forward a defence of alibi and narrated a long conversation with his wife in which he admitted that he had been with a prostitute. At his trial for murder, the Crown chose not to introduce the earlier rape conviction as part of the prosecution case. The accused testified and gave an account of his movements which again involved his being with a prostitute and having had a long conversation with his wife when he returned home. The two conversations corresponded almost word for word. The disclosure that he had been tried previously in circumstances that required him to produce an alibi would normally be excluded but the truth or falsity of the alibi in the murder trial is clearly an ‘important issue’ and cross examination would now be permitted under section 101(1)(d). Another example would be where the evidence is used to rebut a defence of innocent association. In Ball, the accused were brother and sister charged with incest. The House of Lords held that evidence that the sister had a child by the brother before the passage of the Incest Act was admissible.
Such categories would clearly come within section 101(1)(d) as ‘important matters in issue’ and the evidence adduced is generally highly probative in relation to the issue. The new legislation reflects the common law, except with regard to the expanded propensity provisions under section 101(3)
- Does it have sufficient probative force to make it justified to admit it?
Identifying the issue to which the bad character evidence is relevant is straightforward. It is much more difficult to address the question whether it possesses sufficient probative force to justify its admission. Lord Herschell in Makin did not address this problem – the evidence of the babies’ bodies was damning. But subsequently courts needed to consider how they framed the question at all - the first approach was simply to enumerate formal categories where relevance and probative value were assumed to exist. If the evidence did not fit the category, it could be neither relevant nor sufficiently probative. Those categories were:
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where the previous acts revealed a propensity to commit acts in a specific manner, a modus operandi, as in Straffen
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where the evidence supported evidence of identity as in Thompson
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where the evidence would rebut a defence of innocent association as in Ball
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where evidence of previous similar acts would rebut a defence of accident as in Smith.
Such formal categories were restrictive as to the issues that could be addressed through such evidence and were a means of sidestepping the question of whether the evidence was sufficiently probative.. For example, excluded from such categories would have been the question of 'guilty knowledge'. Did the accused 'know' a particular fact or circumstance? Did the accused believe the goods were stolen? Prior misconduct was obviously relevant.
The House of Lords in DPP v Boardman threw off the shackles of the earlier category approach and their judgments seemed to herald a return to a simpler approach, based on a judicial discretion which required the judge to consider the probative value of the evidence but to balance that against the prejudicial effects. In the case, the accused was a headmaster of a boarding school for boys charged with sexual offences on separate occasions on two pupils. The similarities in the accounts by the two pupils were striking but the defence was that the boys were lying and that the incidents never occurred. Were the accounts given by each boy admissible on the charge relating to the other boy? The House of Lords upheld the trial judge's decision to admit the evidence. Evidence of similar facts may be admitted if the judge views its probative force in relation to an issue in the trial as outweighing its prejudicial effect. The strength of the probative force lies in its striking similarity and where that similarity is inexplicable on the basis of coincidence or concoction.
If the evidence was to be received, then it must be on some general principle not confined to sexual offences. There are obvious difficulties in the way of formulating any such rule in such a manner as, on the one hand, to enable clear guidance to be given to juries, and, on the other hand, to avoid undue rigidity.
The prevailing formulation is to be found in the judgment of the Court of Criminal Appeal in R v Sims where it was said,
The evidence of each man was that the accused invited him into the house and there committed the acts charged. The acts they describe bear a striking similarity. That is a special feature sufficient in itself to justify the admissibility of the evidence;... The probative force of all the acts together is much greater than one alone; for, whereas the jury might think that one man might be telling an untruth, three or four are hardly likely to tell the same untruth unless they were conspiring together. If there is nothing to suggest a conspiracy their evidence would seem to be overwhelming.
Sims has not received universal approbation or uniform commentary, but I think that it must be taken that this passage has received at least the general approval of this House in R v Kilbourne. For my part, since the statement is evidently related to the facts of that particular case, I should deprecate its literal use in other cases. It is certainly neither clear nor comprehensive. A suitable adaptation, and, if necessary, expansion, should be allowed to judges in order to suit the facts involved. The basic principle must be that the admission of similar fact evidence (of the kind now in question) is exceptional and requires a strong degree of probative force. This probative force is derived, if at all, from the circumstance that the facts testified to by several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence. The jury may, therefore, properly be asked to judge whether the right conclusion is that all are true, so that each story is supported by the other(s).
The issues faced by a court in deciding whether to admit similar fact evidence are twofold; firstly the evidence's relevance to an issue in front of the court and secondly whether the evidence's probative weight (or degree of relevance) is sufficient to overcome its prejudicial effect. On the first issue, the result of Boardman meant that bad character evidence could be relevant to a broader range of issues than previously. On the second issue, it emphasised that there should be significant probative weight and a common theme from the judgments in Boardman was that the similar fact evidence should possess a 'unique or striking similarity' to the offence charged. This certainly reflects the late search for enhanced relevance and the requirement of ‘substantial probative value’ in section 101(1)(d). Bad character evidence should not be introduced just because it has some marginal relevance to an issue but because it has real probative value.
But the outcome of the Hose of Lords decision was that trial courts looked for that probative value only through the test of ‘striking similarity’. This criterion proved to be as much a distraction as the older category-based approach to relevance. Courts became fixated by the phrase, 'striking similarity', seeing it as the only test for the necessary probative weight whereas similar fact evidence may be not at all striking and yet highly probative. This can be seen in cases such as Roy where a doctor was accused of indecent assault on a number of patients. There was nothing 'striking' about the accounts nor were there any bizarre elements. But aggregated, the stories had considerable probative weight, rebutting any suggestion that these assaults might have been bona fide medical examinations.
Not only was the issue of ‘probative weight’ being subsumed within the notion of ‘striking similarity’, pragmatically the test was proving less than easy to apply. The House of Lords addressed these issues in R v P where the defendant was accused of incest with and rape of his two daughters. There was evidence that he had engaged in incest over a long period, using force and threatening both girls unless they kept silent. He had paid for abortions for both. At trial, he applied for the counts relating to each daughter to be tried separately. The judge refused, holding that the testimony of one daughter was admissible evidence on charges involving the other. The Court of Appeal quashed the conviction on the grounds that there was no feature of striking similarity. The House of Lords restored the conviction and held that the test of admissibility was whether the evidence was relevant and had probative value which outweighed its prejudicial effect. It was not necessary to single out 'striking similarity' as an essential element, though in some cases where identity was in issue a 'signature' might be looked for.
It is apparent that the particular difficulty which arose in this case is the development of the authorities in this area of the law requiring some feature of similarity beyond what has been described as the paederast's or incestuous father's stock-in-trade before one victim's evidence can be properly admitted upon the trial of another that inhibited the Court of Appeal from deciding as otherwise it would have done. The question in this appeal therefore is whether this development is a sound one or not. (Lord Mackay reviewed the judgments in Makin and Boardman)
As this matter has been left in Boardman I am of the opinion that it is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is in issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required...
From all that was said by the House in Boardman I would deduce the essential features of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime 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. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that, of which Straffen and Smith provide notable examples. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume in his work Commentaries on the Law of Scotland Respecting Crimes, said long ago:
...the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.
Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.
The view that some feature of similarity beyond what has been described as the paederast's or incestuous father's stock-in-trade before one victim's evidence can be properly admitted upon the trial of another seems to have been stated for the first time in those terms in R v Inder. Although that case also contains a reference to a warning not too attach too much importance to Lord Salmon's vivid phrase 'uniquely or strikingly similar' I think in the context this is what has occurred. This trend has been followed in later cases, for example, R v Clarke, R v Tudor and particularly R v Brooks. In so far as these decisions required, as an essential feature, a similarity beyond the stock-in-trade I consider they fall to be overruled.
In the present case the evidence of both girls describes a prolonged course of conduct in relation to each of them. In relation to each of them force was used. There was a general domination of the girls with threats against them unless they observed silence and a domination of the wife which inhibited her intervention. The accused seemed to have an obsession for keeping the girls to himself, for himself. The younger took on the role of the elder daughter when the elder daughter left home. There was also evidence that the accused was involved in regard to payment for the abortions in respect of both girls. In my view these circumstances taken together gave strong probative force to the evidence of each of the girls in relation to the incidents involving the other, and was certainly sufficient to make it just to admit that evidence, notwithstanding its prejudicial effect. This was clearly the view taken by the Court of Appeal and they would have given effect to it were it not for the line of authority in the Court of Appeal to which I have referred.
…When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.
For the reasons which I have given, I am of the opinion that there was sufficient connection between the circumstances spoken of by the two girls in the present case for their evidence mutually to support each other, that the appeal should be allowed, and the conviction restored.
I would answer the first question posed by the Court of Appeal by saying that the evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it, notwithstanding its prejudicial effect. It follows that the answer to the second question is No, provided there is a relationship between the offences of the kind I have just described.
Lord Mackay is clear that it is 'not appropriate' to single out 'striking similarity' as an essential element. Just as relevance to an issue can be found in a wide array of situations so can probative weight be discovered in different factual situations. This judgment reflects the principles propounded by Lord Wilberforce in Boardman while at the same time casting off the straitjacket of 'striking similarity'. Relevance depends on the issue which needs to be decided. The degree of relevance of one victim's account to that of the other is provided by the circumstances and relationships. This may take many forms. But the probative force must be of such a degree that it is 'just to admit the evidence' despite the prejudicial effect.
- Would the admission of such evidence make the proceedings unfair whether as a result of prejudice or for any other reason?
Unfairness and prejudice inevitably surrounds the admission of bad character evidence. This can be seen in Thompson where the boys identify Thompson as the man who assaulted them. There were two items of evidence in dispute, the first being the possession of powder puffs, items which were used in the course of the initial offence. These are unusual items for males to carry and their existence tends strongly to support the boys’ identification of Thompson. just as discovering lock-picking equipment on a suspected burglar. However the powder puffs also suggest that Thompson is homosexual, inevitably prejudicial in the eyes of an all-male, middle class jury. But the corroboration of the identification is so strong as to set that prejudice to one side. The prejudice reveals itself in the judgments in relation to the obscene photos are found at Thompson’s flat. These are weaker evidence to support the identification. But they suggest that the accused is a paedophile - for the jury as well as for Lord Sumner, this creates the irresistible and fallacious inference that the accused assaulted the young boys. Admitting the photos creates a wholly illegitimate and overwhelming prejudice against the accused who must require '...the habitual gratification of a particular perverted lust...' and must therefore be guilty.
Until the 2003 reforms, the common law engaged in this balancing act between the probative weight of the evidence and its prejudicial effect. But, in both Boardman and P, their Lordships give considerable attention to the issue of relevance but the nature of the prejudice generated gets short shrift, apart from the need to balance the probative value and the prejudicial effect. The 2003 Act now talks, under section 101(3) in terms of the evidence having, ‘… such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’ The issue remains the same – for the prosecution, the admission of similar fact evidence is often important to strengthen an evidentially weak case. There is an acceptance that bad character evidence may be relevant to a fact in issue. But while relevance can be logically demonstrated, there are no objective criteria for unfairness or the prejudicial effect. As long as the trial judge addresses their mind to the issue of unfairness, the appellate court will rarely interfere. Without guiding criteria, the admission of similar fact evidence becomes a lottery and abrogates the principle is that it is unfair that an accused should be answerable at a trial for anything other than the offence charged. The admission of such evidence also infringes the concept of treating like cases alike because an accused with a criminal record will be treated differently from an accused without a record. The need is for the courts take a less relaxed attitude to identifying and combating unfairness and prejudice.
Lloyd-Bostock conducted a study on the impact on juries of discovering that the accused had a criminal record:
The results clearly confirm that evidence of previous convictions can have a prejudicial effect, especially where there is a recent previous conviction for a similar offence. Significant effects were found even though no information about the previous conviction other than the offence was provided, and where there was only one previous conviction. It may well be that greater effects would be found for a longer criminal record, especially one including several similar previous convictions. The findings concerning the effects of a previous conviction for indecent assault on a child in particular show the potential for such convictions to be highly prejudicial. It appears that, in addition to any effect of similarity to the current charge, the nature of the offence produces a more general negative evaluation, including a perceived propensity to commit a range of other offences.
The effects of dissimilar as compared with similar previous convictions are particularly interesting for what they tell us about the decision processes underlying the effects of information about previous convictions. Participants appear to be drawing on beliefs about typical offenders and patterns of offending which include not only beliefs about the likelihood that offenders will commit similar offences in future, but also beliefs that offenders who commit certain types of crime typically do not commit certain others. Defence counsel may be right occasionally to reveal old or dissimilar previous convictions to a jury, although we do not know how the effect may vary according to the particular combination of previous and current offences.
The study throws yet further doubt on the usefulness of the common law rule …, whereby a direct inference of guilt from propensity is forbidden, but an indirect inference mediated by an assessment of likely truthfulness is permitted. The results for similarity and dissimilarity of previous convictions strongly suggest that the effects of previous conviction evidence are mediated by stereotypes of typical criminality. On the other hand, there was nothing to suggest that the participants thought of honesty or truthfulness as a trait that could help them decide whether the defendant's evidence could be believed: indeed, perceived likelihood that the defendant would lie in court was unrelated to a previous conviction for dishonesty. It seems that the standard judicial instruction is not only hard to understand, but also asks jurors to confine their reasoning to a form that does not come at all naturally. It is doubtful that a jury could be relied on to avoid the compelling effects of similarity to the current charge.
Of course, the study has limitations, and could only address a limited set of questions. In particular, the defendant's prior record consisted of only one conviction: many questions remain about how the effects of similarity and recency could operate where there is a mixed record of multiple convictions. Some of the results may be specific to particular combinations of offences studied: the man who handles stolen goods may have a particular image that contrasts him with the man who commits a violent assault or indecently assaults a woman. The study does not even touch on the likely effects of a defendant's race on the way previous convictions are interpreted. These are all questions that require further research. In addition, as mentioned earlier, the simulation method has inherent limitations as well as advantages. Research of the kind reported here does not provide the basis for deciding whether any particular defendant has been wrongly convicted, nor what the effect of revealing convictions will be in a particular case. Nonetheless, the central findings of this and already existing research are consistent and make theoretical sense. Very thin information about a previous conviction (the name of the offence) is evidently sufficient to evoke a quite rich stereotype, so that a similar recent conviction (especially for sexual abuse of a child) is potentially damaging for no reason that the law permits.
Section 101(3) requires that the admission of the evidence should not have an adverse effect on the fairness of the proceedings – is it unfair if the effect of previous conviction evidence is to create stereotypes of typical criminality in the minds of the jury?
A subsidiary issue of fairness was emphasised by Lord Wilberforce in Boardman. Where there is evidence of similar conduct on other occasions, those stories must derive from a common cause, which can be collusion, coincidence or the fact that the witnesses are all telling the truth. Probative weight must increase when a court is able to rule out collusion or coincidence. Ananthanarayanan considered this and held that bad character evidence should be excluded where there was the possibility of collusion. This carried a serious risk of rendering the ruling in P ineffective since there must always be a real risk of contamination between siblings living under the same roof. It was reconsidered by the House of Lords in R v H which involved a defendant accused of sexual offences carried out against his adopted daughter and stepdaughter between 1987 and 1989. The complaints were made in 1992, after confiding in the appellant's wife. Russell LJ reviewed the decision of Laws J. in Ananthanarayanan and said,
For our part we pause and venture to suggest that in the passage cited from Ananthanarayanan the court was confusing the admissibility of evidence with the quality of evidence, that is, the role that the evidence, once admitted, plays in the jury's deliberations. If there is a risk of contamination the evidence cannot be used as corroboration. it does not necessarily follow that the evidence becomes wholly inadmissible as is the case when the judge excludes evidence because of breaches of the code made under the provisions of the Police and Criminal Evidence Act 1984. In our judgment the two situations are quite different and the one is not an analogy of the other.
In our judgment and experience, in almost every case where two or more daughters are living under the same roof and complain of molestation by their father it is virtually inevitable that at some stage the daughters will have talked between themselves and usually with their mother. Whether this contaminates their evidence is very much a fact-finding process. Active collaboration will invariably be denied. there may be extreme cases where the judge concludes, having seen and heard the witnesses, that collaboration has taken place, and in such a case he may exercise his powers to stop the trial and direct an acquittal on Galbraith principles or abort the trial and sever the indictment. But these exceptional cases apart, we take the view that a jury, having seen and heard the witnesses, should form its own assessment of the dangers and, provided it receives the warnings and directions to be found in the summing up of Tucker J. in the instant case, the jury can properly decide whether the evidence of one complainant corroborates the evidence of another. In our view, to deny the jury the responsibility of this fact-finding exercise is to usurp the function of the jury and we do not believe that the long line of authority to which reference was made in Ananthanarayanan was ever intended to assert the contrary.....
...The judge is not deciding a question of admissibility when he considers whether evidence can be used as corroboration. The evidence of the individual complainant remains admissible even if it is contaminated. Contamination goes not to admissibility but to the part to be played by the evidence after it is admitted. The proper role of the evidence, once admitted, can be left to the jury, who will receive appropriate directions from the judge. It must depend, in our judgment, upon the degree of contamination...
The impact of this is somewhat mitigated by section 107 which provides for the case to be stopped if the evidence is found to be contaminated – under subsection (5) contamination includes cases where the evidence is false or misleading as a result of collusion.
Propensity as a matter in issue under section 103
There is a major development under the 2003 reforms. In addition to the general matters in issue between the prosecution and the defence discussed above, there is now another category under section 103 – that a propensity to commit the offence or to be untruthful can be matters in issue between the defendant and the prosecution.
s.103 (1) For the purposes of section 101(1)(d) the matters include-
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.
(2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of-
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
(4) For the purposes of subsection (2)-
(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
(5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type
(6) Only prosecution evidence is admissible under section 101(1)(d).
Revealing propensity
The Government’s secondary aim was to reform the previous haphazard collection of exclusionary rules. But the primary purpose was to encourage greater use of previous convictions. In the White Paper, Justice for All, it was stated that the aim was not routine introduction of the defendant’s previous convictions but, where these are relevant to an issue in the case, then unless the court considers that the information will have a disproportionate effect, the jury should be allowed to know about it. It will be for the judge to decide whether the probative value of introducing this information is outweighed by its prejudicial effect. This text sounded very close to the common law position but the impact has been to encourage the prosecution to apply for leave to adduce such evidence in many more cases.
This section allows a court to rely on evidence of propensity to commit offences of the kind with which he is charged. Such propensity can be revealed by evidence that the accused had committed such crimes before, although never charged or prosecuted. Usually the propensity will be revealed by previous convictions - section 103(2), propensity can be revealed by convictions not only of the same description but also of the same category. Secondary legislation has been introduced to define ‘offences of the same category’.
But this is not just routine parading of the defendant’s criminal record before the court. There are constraints - the propensity must make it more likely that the defendant is guilty (subsection (1)(a)). The prosecution must demonstrate for the purposes of section 101(1)(d) that the propensity exists but that it is relevant to an ‘important matter in issue’. It can only be relevant if it has probative value with regard to that matter. But, significantly, it is not necessary to show that it has substantial probative value – clearly the intent of the legislature is to allow such evidence to be adduced more easily. Section 103(3) also suggests that ancient spent convictions should not be adduced where it would be unjust to do so. This seems to echo section 101(3) that a court should not admit evidence under section 101(1)(d) where this would have an adverse effect on the fairness of the proceedings.
The implications of the section were considered in Hanson. Rose LJ laid down the following guidelines,
7. Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:
1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
2. Does that propensity make it more likely that the defendant committed the offence charged?
3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?
8. In referring to offences of the same description or category, section 103(2) is not exhaustive of the types of conviction which might be relied upon to show evidence of propensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.
9. 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. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged ... Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list. Circumstances demonstrating probative force are not confined to those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal. But if the modus operandi has significant features shared by the offence charged it may show propensity.
10. In a conviction case, the decisions required of the trial judge under section 101(3) and section 103(3), though not identical, are closely related. It so to be noted that wording of section 101(3) - "must not admit" - is stronger than the comparable provision in section 78 of the Police and Criminal Evidence Act 1984 - "may refuse to allow". When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. 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.
11. In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. 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.
12. It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant's record as a whole. 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. 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.
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15. If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of non-compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense …
…
17. In cases of the kind we are considering, it is the Crown which begins the process of applying to adduce evidence of bad character. It must specify the relevant gateways. The form of application … requires that the Crown set out "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." Form BC 3, similarly prescribed for the use of the defence, calls for particulars of why it is contended that the evidence ought not to be admitted. It follows from what we have already said that, in a conviction case the Crown needs to decide, at the time of giving notice of the application, whether it proposes to rely simply upon the fact of conviction or also upon the circumstances of it. The former may be enough when the circumstances of the conviction are sufficiently apparent from its description, to justify a finding that it can establish propensity, either to commit an offence of the kind charged or to be untruthful and that the requirements of section 103(3) and 101(3) can, subject to any particular matter raised on behalf of the defendant, be satisfied. For example, a succession of convictions for dwelling-house burglary, where the same is now charged, may well call for no further evidence than proof of the fact of the convictions. But where, as will often be the case, the Crown needs and proposes to rely on the circumstances of the previous convictions, those circumstances and the manner in which they are to be proved must be set out in the application. There is a similar obligation of frankness upon the defendant, which will be reinforced by the general obligation contained in the new Criminal Procedure Rules to give active assistance to the court in its case management (see rule 3.3). Routine applications by defendants for disclosure of the circumstances of previous convictions are likely to be met by a requirement that the request be justified by identification of the reason why it is said that those circumstances may show the convictions to be inadmissible. 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.
18. Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. 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; that whether they in fact show a propensity is for them to decide; that 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. …
If this judgment sets the standard for subsequent cases, it is a conservative standard, which echoes the language of the old common law and often cites the authorities. It is emphasised that it is necessary for the prosecution to demonstrate why the convictions have probative value and that there is a strong and clear warning to the jury.
However, in Hanson, one of the linked appeals is from Gilmore who has been convicted of theft from a garden shed. The trial judge admits three recent convictions for shoplifting and the Court of Appeal upheld the conviction saying, ‘The Recorder was fully entitled to conclude that the offences showed a recent persistent propensity to steal.’ It is unlikely that the court would have decided that way under the old law. But the court also mentioned that there was substantial other evidence against the defendant and in that context the conviction was not unsafe.
Section 103(1)(b) also allows bad character evidence to be adduced to demonstrate a propensity to be untruthful. Does this mean that prior convictions can always be adduced to show that the defendant is not a credible witness? This appears not to have been the intent of Parliament.
Section 103(1)(b) makes it clear that evidence relating to whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) can be admitted. This is intended to enable the admission of a limited range of evidence such as convictions for perjury or other offences involving deception (for example, obtaining property by deception), as opposed to the wider range of evidence that will be admissible where the defendant puts his character in issue by for example, attacking the character of another person. Evidence will not be admissible under this head where it is not suggested that the defendant's case is untruthful in any respect, for example, where the defendant and prosecution are agreed on the facts of the alleged offence and the question is whether all the elements of the offence have been made out.
This was discussed by Rose LJ in Hanson.
13. As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word "untruthful" to convey a different meaning, reflecting a defendant's account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations.
This is far from clear. Evidence introduced under section 103(1)(b) does not need to show that the propensity makes it more likely that the defendant is guilty (as in (1)(a)). But the prosecution must demonstrate for the purposes of section 101(1)(d) that the propensity to be untruthful is relevant to an ‘important matter in issue’. It can only be relevant if it has probative value with regard to that matter. Creditworthiness is undoubtedly a matter in issue and often, for the jury, an important issue. There is scope for a broad interpretation of this provision but it is necessary to echo section 101(3) that a court should not admit evidence under section 101(1)(d) where this would have an adverse effect on the fairness of the proceedings. A court will always approach, if not cross, the borderline of fairness where it admits previous convictions for the purpose not of demonstrating that the accused is guilty of the offence but only that he is untruthful
Gateway 5: substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
Criminal trials will frequently involve more than one defendant. In such cases, it is often the case that one accused will seek to deny or underplay their involvement in the crime and place responsibility at the door of their co-accused. Adducing the co-accused’s prior criminal convictions may well be an element of such a ‘cut throat’ defence. The common law was always permissive about this,
Cut-throat defences which involve laying sole responsibility for a crime at the door of an accomplice are a commonplace in joint trials. The Privy Council in Lowery v R treated evidence from a psychologist of the sadistic and aggressive disposition of a co-accused as admissible at the instance of an accused, even though such evidence could not have been introduced by the Crown. Victorian courts have said that a judge can exclude character evidence tendered by an accused which has little probative force and is prejudicial to a co-accused. Such an exercise of discretion will, it has been said, be rare. Indeed the existence of such a discretion runs directly counter to statements in numerous English cases which have stressed the right of an accused to establish his innocence by relevant evidence regardless of the impact on other defendants.
At common law, an accused could only lead evidence on a co-accused's general bad character where the line of questioning is relevant to an issue. In cross-examination, such questions went to credibility but opened up the accused to questions about their own criminal record. This area is now regulated by section 101(1)(e),
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
Section 104 supplements this provision,
- "Matter in issue between the defendant and a co-defendant"
(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.
(2) Only evidence-
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,
is admissible under section 101(1)(e).
There are three situations where an accused might wish to adduce evidence (although not necessarily bad character evidence) against a co-defendant, where the evidence could be said to have substantial probative value in relation to an important matter in issue between the co-accused.
- where the co-accused has made an incriminating statement to the police that the prosecution cannot or do not rely upon
- where the co-accused has displayed a particular propensity that makes it more likely that he or she committed the offence charged
- where the co-accused has a disposition to untruthfulness
Incriminating Statements
An incriminating statement by a co-accused is not bad character evidence but it is sensible to consider in this context. The defence may introduce such a statement either by evidence-in-chief or through cross-examination. But if the admission is inadmissible for the prosecution, is it also inadmissible for the defence? A statement may be ruled inadmissible, for example, where the prosecution are unable to satisfy the court that a confession by a co-accused conforms to the requirements of section 76 of the Police and Criminal Evidence Act 1984.
But even where the co-accused's confession is inadmissible as far as the prosecution is concerned, can another defendant cross-examine the co-accused on that statement? The general rule is that questions cannot be put to a witness which would elicit inadmissible evidence. In Treacy the prosecution sought to introduce a confession allegedly made by the accused as part of their evidence-in-chief. The confession was deemed inadmissible. When the accused testified, the prosecution sought to cross-examine him on the contents of the confession as a statement inconsistent with present testimony under section 4 of the Criminal Procedure Act 1865,
In our view, a statement made by a prisoner is either admissible or it is not admissible. If it is admissible, the proper course for the prosecution is to prove it, give it in evidence, let the statement if it is in writing be made an exhibit, so that everybody knows what it is and everybody can inquire into it and do what they think right about it. If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination
This is not a rule that binds a co-accused. In Myers the accused and her boyfriend were convicted of the killing of a mini-cab driver. She made statements to the police after her arrest in which she had at first admitted stabbing the victim but then asserted it was her co-accused. The House of Lords held that the fact that the prosecution was not able to introduce the evidence because of breaches of Code C of PACE did not preclude the co-accused from raising the confession when cross-examining her on her assertion that it was her boyfriend who had murdered the cab driver. Her confession was clearly relevant to his defence that it was not he who had killed. Obviously either one or the other had killed the driver and justice required that he should be allowed to bring out the earlier confession. Judicial discretion should not be allowed to fetter a defendant in seeking to extract, by cross-examination, evidence of assistance to their own defence. But under Myers, such examination goes to the defendant-witness‘s credibility and the jury had to be warned from placing weight on it in considering the prosecution case.
This has been overtaken by section 128(1) of the Criminal Justice Act 2003
(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
However subsection (2) imposes a condition that the confession was not obtained by oppression or in circumstances that may make it unreliable. A defendant can only rely on a confession by a co-accused where the defendant can prove on the balance of probabilities that it was not obtained through these means.
Is this a wholly satisfactory solution? The Crown benefits as they are now able to use as evidence a statement which failings in the investigation process had rendered inadmissible. But this is the necessary cost of ensuring fairness to the defendant, who is entitled to emphasise the co-accused’s inconsistency even at the cost of considerable prejudice to the co-accused’s case.
Particular Propensity
Another tactic of the 'cut-throat' defence is to suggest that one's co-accused possesses a particular trait of character that makes it more likely that he or she committed the offence. In Miller, one defendant alleged that the offences had been committed by a co-accused and to that end sought to ask a prosecution witness whether or not it was true that the offences stopped when that accused had been in prison and re-started after his release. Although the prosecution would be barred from such a line of questioning, Devlin J. held that questioning by a co-accused was only limited by considerations of relevance.
In Lowery, the two accused, L and K, attacked and sadistically killed a 15 year old girl. K's defence was that the killing was the work of L, that he (K) had been under the influence of drugs and that, although he had seen L strangling the girl, he had been helpless to stop him. He wished to introduce testimony from a psychologist who had examined both defendants. The psychologist’s expert opinion was that L possessed a sadistic and aggressive disposition. L's defence was that K had committed the killing. He (L) had driven to the spot as he believed that K wished to have sex with the victim. Only later did he follow them and found K assaulting the girl. L also called evidence as to his own reputation with a view to showing that his disposition made him unlikely to have committed such a crime. In this context the Privy Council agreed that the psychologist's testimony was admissible,
...It was said that the evidence was not relevant to any issue and was of no probative value in considering the guilt of the accused; that evidence of the psychological condition of an accused person as tending to prove his guilt ought never to be introduced either by the prosecution or by the defence of a co-accused person; that the evidence whether adduced by prosecution or by defence ought to have been excluded as a matter of law because its introduction would merely show disposition; that the evidence did not fall within any of the exceptions denoted in Makin v Attorney-General for New South Wales...
...The questions arise whether the evidence was (a) relevant and (b) admissible: not all evidence that is relevant is admissible because its prejudicial effect heavily overbalances its probative value and as a matter of fairness or of public policy a court will not allow the prosecution to call such evidence.... [Lord Morris summarises the psychologist's conclusions on the psychological make-up of L and K].
In all these circumstances it was necessary on behalf of K to call all relevant and admissible evidence which would exonerate K and throw responsibility entirely on L. If in imaginary circumstances similar to those of this case it was apparent that one of the accused was a man of great physical strength whereas the other was a weakling it could hardly be doubted that in forming an opinion as to the probabilities it would be relevant to have the disparity between the two in mind. Physical characteristics may often be of considerable relevance: see Toohey v Metropolitan Police Commissioner. The scientific evidence...was not related to crime or criminal tendencies: it was scientific evidence as to the respective personalities of the two accused.....
These authorities have now been supported by the House of Lords in Randall. The two accused put forward differing accounts of the fatal assault. They both adduced evidence of the other’s prior convictions – the appellant had been convicted of relatively minor offences whereas his co-accused, who was acquitted, had a bad record and at the time of the assault, was on the run from the police in connection with an armed robbery. The trial judge directed the jury that the record was only relevant to credibility and irrelevant to the likelihood of him having been the person who attacked the victim. It was argued on appeal that the evidence was relevant to the issue as to which of the co-accused was more likely to have attacked the victim. The Court of Appeal agreed and ordered a re-trial. The House of Lords rejected an appeal from the Crown. Lord Steyn stated,
18. .. the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused….
19. It is therefore common ground that in the present case the only issue is whether the evidence of [ the co-accused’s] propensity to use and threaten violence, which was placed before the jury, was relevant to the issue whether it was Randall who committed the attack on the deceased.
20. The theme that ran through the Crown's case and oral argument was that evidence of [ the co-accused’s] propensity to violence "proves nothing". Taken in isolation that is right. But relevance in cases such as the one under consideration is a more subtle concept: Article 1 of Stephen's Digest of the Law of Evidence explains relevance as follows:
"any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other."
In R v Kilbourne, Lord Simon of Glaisdale put the position more simply:
"Evidence is relevant if it is logically probative or disprobative of some matter which requires proof . . . relevant . . . evidence is evidence which makes the matter which requires proof more or less probable."
A judge ruling on a point of admissibility involving an issue of relevance has to decide whether the evidence is capable of increasing or diminishing the probability of the existence of a fact in issue. The question of relevance is typically a matter of degree to be determined, for the most part, by common sense and experience…
22. It is difficult to support a proposition that evidence of propensity can never be relevant to the issues. Postulate a joint trial involving two accused arising from an assault committed in a pub. Assume it to be clear that one of the two men committed the assault. The one man has a long list of previous convictions involving assaults in pubs. It shows him to be prone to fighting when he had consumed alcohol. The other man has an unblemished record. Relying on experience and common sense one may rhetorically ask why the propensity to violence of one man should not be deployed by the other man as part of his defence that he did not commit the assault. Surely such evidence is capable, depending on the jury's assessment of all the evidence, of making it more probable that the man with the violent disposition when he had consumed alcohol committed the assault. To rule that the jury may use the convictions in regard to his credibility but that convictions revealing his propensity to violence must otherwise be ignored is to ask the jury to put to one side their common sense and experience. It would be curious if the law compelled such an unrealistic result.
These authorities, decided prior to the implementation of the Criminal Justice Act 2003, suggest that a defendant can introduce evidence of a co-accused's disposition when that evidence is clearly relevant to the defendant's case. This is what is envisaged in section 101(1)(e) - the defendant can lead evidence or cross-examine on the issue without waiting for the co-accused to put character into issue. In Murell, co-defendants on a drug importation charge were permitted to cross-examine the police officer on the appellant’s previous conviction for the importation of cocaine and on the evidence of the firearm and ammunition found at the appellant’s house. The only limit is that of relevance and the trial court should not use its discretion to balance the probative weight against the prejudicial effect
Disposition to Untruthfulness
Under section 104,
‘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.’
There is a similar provision under section 103(1)(b). The Explanatory Notes suggest that this restricts the admissibility of bad character evidence that shows a propensity to be untruthful to circumstances in which a defendant has undermined a co-accused’s defence. But the co-accused must demonstrate for the purposes of section 101(1)(e) that the propensity to be untruthful is relevant to an ‘important matter in issue’ and has substantial probative value with regard to that matter. Creditworthiness is undoubtedly a matter in issue and where there is a cut throat defence, it is clearly an important issue and evidence of a propensity to untruthfulness on its face might be highly probative. Once this threshold is crossed, there is no scope for judicial discretion, as Lord Steyn pointed out in Randall
18. .. the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused….
When does a defendant undermine a co-accused’s defence? The leading case is Murdoch v. Taylor where Murdoch, who had a criminal record, was tried for handling stolen goods jointly with Lynch, who had no previous convictions. Lynch testified, implicating Murdoch. Murdoch testified under cross-examination that the box containing the stolen property had been in Lynch's possession. Counsel for Lynch then cross-examined Murdoch on his previous convictions. Lord Donovan stressed that it does not matter whether the evidence is given in chief or under cross-examination. The issue is the effect on the jury. It does not require hostile intent on part of the co-accused.
‘Giving evidence against' encompasses more than mere denial of something said by the co-accused, requiring either support of the prosecution case or undermining the co-accused's defence - in Bruce, the two accused were charged with robbery. The first admitted the plan to rob but denied taking part in its execution. The second denied any plan to rob at all. The first defendant cross-examined the second on his previous convictions. The second defendant's conviction was quashed. Although he had contradicted his co-defendant's evidence, he had not given evidence against him. In Varley the court took a different view - the appellant was jointly charged with Dibble with offences of robbery and possession of a firearm. The appellant initially admitted his part in the robbery but at trial denied that he had participated at all. Dibble's defence was that he had been forced to take part by Varley and he testified to this:
Now was Dibble's evidence 'against' the appellant? Clearly it was. Was the appellant's evidence 'against' Dibble? That is what this appeal is all about. Fortunately, in the interests of justice, the jury learned about Dibble's criminal history because he was cross-examined about his convictions. The jury rejected his defence of duress....
The decision was approved in Murdoch's case. This decision created difficult problems in practice because either to establish or to destroy this right involved, in many cases, an acute analysis of whether or not the evidence which had been given was 'against' the other party charged.....
...What was the nature of the guidance in R v Stannard? It was this, approved by Lord Donovan in Murdoch's case '...'evidence against' means evidence which supports the prosecution in a material respect or which undermines the defence of the co-accused.' There are three reported cases in the Court of Appeal, Criminal Division , in which this interpretation has been considered and to which we were referred. They are R v Davis, R v Bruce and R v Hatton. Now putting all the reported cases together, are there established principles which might serve as guidance......? (1) If it is established that a person jointly charged has given evidence against the co-defendant that defendant has a right to cross-examine the other as to previous convictions and the trial judge has no discretion to refuse an application. (2) Such evidence may be given either in chief or during cross-examination. (3) It has to be objectively decided whether the evidence either supports the prosecution in a material respect or which undermines the defence of the co-accused. A hostile intent is irrelevant. (4) If consideration has to be given to the undermining of the other's defence care must be taken to see that the evidence clearly undermines the defence. Inconvenience to or inconsistency with the other's defence is not of itself sufficient. (5) Mere denial of participation in a joint venture is not of itself sufficient to rank as evidence against a co-defendant. For the proviso to apply, such denial must lead to the conclusion that if the witness did not participate then it must have been the other who did. (6) Where the one defendant asserts or in due course would assert one view of the joint venture which is directly contradicted by the other such contradiction may be evidence against the co-defendant.
In Crawford Lord Bingham CJ stated that the evidence of one defendant is evidence against a co- defendant if it supports the prosecution case against the co-defendant in a material respect or undermines the defence of the co-defendant. Lord Bingham saw this as a matter of common sense and that a clear and simple rule was propounded in Murdoch. The essential question put is this: Does the evidence given by the defendant in the witness box, if accepted, damage in a significant way the defence of the co-defendant? It is suggested that these principles, although decided under the provisions of the 1898 Criminal Evidence Act, will apply to the new Act.
Gateway 6: evidence to correct a false impression given by the defendant
At common law, there were just two opportunities for the prosecution to adduce evidence of the accused’s bad character, firstly under the similar fact rules and secondly in order to rebut evidence advanced of the accused’s good character. In Rowton, after the accused had put his own character into issue, the prosecution were able to call witnesses as to his reputation, one of which, when asked as to the defendant's general reputation for decency and morality of conduct, answered,
I know nothing of the neighbourhood's opinion, because I was only a boy at school when I knew him; but my opinion, and the opinion of my brothers, who were also pupils of his, is that his character is that of a man capable of the grossest indecency and the most flagrant immorality.
Was this admissible? Such evidence is restricted to reputation and not to specific discreditable acts. Cockburn C.J. is quite clear that this has to be the reputation of the neighbourhood and not an individual’s opinion,
...within what limits must the evidence be confined which is adduced in rebutting evidence to meet the evidence which the prisoner has brought forward? I think that that evidence must be of the same character and kept within the same limits: that while the prisoner can give evidence of general good character, so the evidence called to rebut it must be evidence of the same general description, showing that the evidence which has been given to establish a good reputation is not true, because the man's general reputation is bad.
....The witness, it seems, disclaims all knowledge as to the general reputation of the accused; what he says is this: 'I know nothing of the neighbourhood's opinion.' I take the witness in this expression to mean to say, 'I know nothing of the opinion of those with whom the man has in the ordinary occupations of life been brought immediately into contact. I knew him, and so did two brothers of mine when we were at school, and in my opinion his disposition (for in that sense the word 'character' is used by the witness) - 'in my opinion his disposition is such that he is capable of committing the class of offences with which he is charged' I am strongly of opinion that that answer was not admissible in evidence...
Although testimony in chief was restricted to general good reputation, it was permissible to cross-examine about specific acts (including previous convictions). A further oddity of the common law was that, once the accused's character was in issue, every aspect of that character is included. In Winfield, the charge was indecent assault and the accused led evidence of his sexual propriety. But the prosecution were permitted to counter this by cross-examining on the defendant's previous convictions for dishonesty. But questions on simple allegations were not permitted - in Stirland, the defendant was accused of forgery and testified as to his own good character and good employment record. He was cross-examined as to suspicions about forgery that had been voiced by that previous employer, questioning that was deemed inadmissible by the House of Lords,
It is no disproof of good character that a man has been suspected or accused of a previous crime. Such questions as 'Were you suspected?' or 'Were you accused?' are inadmissible because they are irrelevant to the issue of character and can only be asked if the accused has sworn expressly to the contrary
Also at common law, a simple assertion of innocence did not put your character into issue, as that required adducing positive evidence of good character. Where the accused was questioned about prior bad conduct on disproof of assertions of good character, this went solely to the credibility.
How have these provisions survived the 2003 reforms? Under section 101(1)(f),
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
(f) it is evidence to correct a false impression given by the defendant
This is supplemented by section 105,
(1) For the purposes of section 101(1)(f)-
(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative value in correcting it.
(2) A defendant is treated as being responsible for the making of an assertion if-
(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) the assertion was made by the defendant-
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it,
and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
(5) In subsection (4) "conduct" includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.
(7) Only prosecution evidence is admissible under section 101(1)(f).
What is a false impression? There is probably little change to the common law. It is clearly intended that this should cover express, albeit bland, assertions of good character – in Coulman the defendant testified that he was married with children and in regular employment and was then questioned on his previous convictions. Non-verbal behaviour can also amount to an assertion – dressing as a priest, for example. But in Robinson, the accused testified holding a small bible. Henry LJ did not feel that this warranted a loss of protection from being questioned about his previous convictions,
17. The judge clearly did not believe that the defendant was a believer, or that he was genuinely looking to God for guidance as he had said. But, to take it in stages, a defendant does not put his character in just by taking the oath, even though that might arguably cloak him with an apparent respectability which his record belied. Nor does that situation change if, as often happens, in the course of his evidence, he reminds the court and the jury that he has sworn on the Bible to tell the truth. Nor does taking up of the Bible for whatever reason amount to an assertion that the defendant is putting himself forward as being of good character. While the court will want to discourage disruptive or exhibitionist behaviour, the penalty for potentially offensive behaviour should not be loss of the protection
It is possible that the wording of section 105(4) would cause the court to rethink this. However one definite change is that the defendant is held responsible for a misleading assertion at any stage of the proceedings, not simply in the trial. This can be seen in subsection (2) – assertions made under caution or at charge may be rebutted by the prosecution at trial. However subsection (3) does allow for the defence to disassociate themselves from such assertions, whether made by the accused or another.
There is a very significant change from the common law. This is the abrogation of the rule in cases such as Winfield and Stirland that once the accused raises the issue of good character, all aspects of that character can be examined. Under subsection (6), only that evidence can be adduced that is necessary to correct the false impression. Thus in Winfield, evidence to correct his claim of sexual propriety might be introduced but not evidence of dishonesty. This is supported by subsection (1)(b) that says that evidence to correct the impression must have ‘..probative value in correcting it.’
Gateway 7: the defendant has made an attack on another person's character
The final gateway is under section 101(1)(g),
(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if-
(g) the defendant has made an attack on another person's character.
This is supplemented by section 106,
106 "Attack on another person's character"
(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if-
(a) he adduces evidence attacking the other person's character,
(b) he … asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the defendant-
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it.
(2) In subsection (1) "evidence attacking the other person's character" means evidence to the effect that the other person-
(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way;
and "imputation about the other person" means an assertion to that effect.
(3) Only prosecution evidence is admissible under section 101(1)(g).
At common law there was no power to retaliate if the accused attacked the reputation of Crown witnesses. This was remedied in the 1898 Criminal Evidence Act which regulated the questions that could be asked of the defendant who chose to testify. Thus there was a significant gap – if the accused attacked Crown witnesses and chose not to testify, the prosecution could not introduce evidence in chief. Under the 2003 provisions, the prosecution are entitled adduce evidence-in-chief or to cross examine the accused about these matters.
When does the defendant attack another’s character? The common law, limited to prosecution witnesses, has been broadened as the defendant is liable to have their previous bad character revealed when they have made an attack on ‘another person’s’ character. This person need not be a witness – for example, assertions made about police officers who are not testifying or about the victim in a homicide case. In Bovell, the defendant asserted that, on the day before burglary charged, his co-accused had committed another burglary. However there must be some association between the ‘other person’ and the case - this can be policed by the use of the exclusionary discretion of the judge under section 101(3).
Nor is it limited to questions or assertions made in court. Section 106(1)(c) covers the situation where such imputations are made at caution or charge and evidence to that effect is given in court. A key issue is the nature of an attack – the imputation must be that the person has committed a crime or otherwise behaved in a reprehensible fashion. The jurisprudence on this issue interpreting the provisions of the1898 Act will still be relevant.
The problems lie in deciding what is an ‘attack on another’s character’? Mere denials of guilt are not enough although these may imply that the prosecution witnesses are lying. Sometimes it is clear - the nature or character of the defence will involve making allegations about the conduct or character of the prosecutor or the prosecution witnesses or those associated with the investigation and prosecution. Clear examples might include the defence putting prior convictions, sexual peccadilloes or other character defects to the witness. In sexual abuse and rape cases, it is often alleged that the complainant is fabricating the account. In a murder case, the allegation that the victim struck the first blow went beyond mere denial. A frequent scenario will be an attack on the police in charge of the investigation or interrogation, suggesting violent or manipulative conduct or simply that the police witnesses are lying. It is this latter category where the boundary between the proper and improper presentation of a defence has proved difficult.
In Jones, Lord Hewart said that it was one thing for the defendant merely to deny making a confession but quite another matter to allege that it was a deliberate and elaborate police concoction. In Britzman the Court of Appeal were considering a burglary conviction. The accused had been arrested on May 29th, denying guilt and refusing to make statement. He remained in custody during May 30th, still asserting innocence. However on June 1st (pre-Police and Criminal Evidence Act 1984) the police officers said that there had been a long interview, recorded in their notebooks which contained comments from the accused from which the jury might infer guilt. One officer testified that he had heard the accused shouting to one another whilst in their cells, again making statements that were highly suggestive of guilt ('Look, we've only got to sweat this out. They can't keep us here forever. That old bird won't pick us out. Just keep your mouth shut. We'll be OK'). The accused denied that the June 1st interview or the shouting between the cells had taken place. They were cross-examined on their previous convictions and the Court of Appeal upheld this decision,
...Any denial that the conversation had taken place at all necessarily meant by implication that the police officers had given false evidence which they had made up in order to get the appellants convicted. On the facts of this case there could be no question of mistake, misunderstanding or confusion....
A defence to a criminal charge which suggests that prosecution witnesses have deliberately made up false evidence in order to secure a conviction must involve imputations on the characters of those witnesses with the consequence that the trial judge may, in the exercise of his discretion, allow prosecuting counsel to cross-examine the defendant about offences of which he has been convicted. In our judgment this is what Parliament intended should happen in most cases. When allegations of the fabrication of evidence are made against prosecution witnesses, as they often are these days, juries are entitled to know about the characters of those making them…
In our judgment the nature and conduct of the defence did involve imputations on the characters of the three officers...This opinion is in accord with two decisions of this court, namely R v Tanner and R v McGee and Cassidy. In Tanner,...Browne LJ said:
In some cases the distinction may be a very narrow one, but that it exists in principle is clear. the decision whether a case is on one side of the line or the other must depend on the facts of each particular case. In our judgment, the nature and conduct of the defence in the present case did involve imputations on the character of the police officers. This was not a case of a denial of a single answer, nor was there any suggestion or possibility of mistake or misunderstanding. The appellant was denying not only his admission, nut in the case of each interview a series of subsequent important answers attributed to him by the police....
We hope that it will be helpful for both judges and counsel if we set out some guidelines for the exercise of discretion in favour of defendants. First, it should be used if there is nothing more than a denial, however emphatic or offensively made, of an act or even a short series of acts amounting to one incident or in what was said to have been a short interview...The position would be different however if there were a denial of evidence of a long period of detailed observation extending over hours and just as in this case and in Tanner, where there were denials of long conversations.
Second, cross-examination should only be allowed if the judge is sure that there is no possibility of mistake, misunderstanding or confusion and that the jury will inevitably have to decide whether the prosecution witnesses have fabricated evidence. Defendants sometimes make wild allegations when giving evidence. Allowance should be made for the strain of being in the witness box and the exaggerated use of language which sometimes results from such strain or lack of education or mental instability. Particularly care should be used when a defendant is led into making allegations during cross-examination. The defendant who, during cross-examination, is driven to explaining away the evidence by saying it has been made up or planted on him usually convicts himself without having his previous convictions brought out....
The effect of Britzman is that, where there is a denial of a short interview, the presumption will be in favour of the defendant. But if the accused denies a long conversation, makes wild allegations or used unrestrained language and the judge was sure that there is no possibility of mistake or confusion, cross-examination under section 101(1)(g) is permissible. Prosecutors should not rely on section 101(1)(g) where the other evidence was overwhelming.
The fact that any attack on another’s character or imputation is a necessary part of the defence will not protect the defendant from the revelation of prior misconduct, despite the dicta of Viscount Simon in Stirland,
An accused is not to be regarded as depriving himself of the protection of the section because the proper conduct of his defence necessitates the making of injurious reflections on the prosecutor or his witnesses
But in Selvey v DPP, the accused was charged with buggery. There was medical evidence which supported the victim's complaint. Selvey's defence was that the complainant had already committed buggery with another man on the same day and that this accounted for the doctor’s evidence. The complainant had offered himself to the accused. He had refused and the complainant had planted indecent photographs on him. The trial judge allowed the prosecution to question the accused on previous convictions for soliciting for a lewd and immoral purpose. The House of Lords held that the accused could be cross examined on his previous convictions under the provisions of the 1898 Criminal Evidence Act which were applicable even where the casting of such imputations is necessary to establish the defence.
Two main views have been put forward. One view adopts the literal meaning of the words. The prosecutor is cross-examined to show that he has fabricated the charge for improper reasons. That involves imputations on his character. Therefore, it lets in the previous convictions of the accused. The practical justification for this view is the 'tit for tat' argument. If the accused is seeking to cast discredit on the prosecution, then the prosecution should be allowed to do likewise. If the accused is seeking to persuade the jury that the prosecutor behaved like a knave, then the jury should know the character of the man who makes these accusations, so that it may judge fairly between them instead of being in the dark as to one of them.
The other view would limit the literal meaning of the words. For it cannot, it is said, have been intended by Parliament to make a man liable to have his previous convictions revealed whenever the essence of his defence necessitates imputations on the character of the prosecutor. This revelation is always damaging and often fatal to a defence. The high-water mark of this argument is the ordinary case of rape. In this the vital issue (as a rule) is whether the woman consented. Consent (as a rule) involves imputations on her character. Therefore, in the ordinary case of rape, the accused cannot defend himself without letting in his previous convictions. The same argument extends in varying lesser degrees to many cases.
The argument in favour of a construction more liberal to the accused is supported in two ways. First it is said that character is used in the sense in which it was used in R v Rowton where the full court ruled that evidence of good character must be limited solely to general reputation and not to a man's actual disposition....
...It might be justifiable to consider whether 'character' means in the context solely general reputation, if a reassessment could lead to any clarification of the problem. But in my opinion it leads nowhere. For I cannot accept the proposition that to accuse a person of a particular knavery does not involve imputations on his general reputation. The words 'involve' and 'imputations' are wide. It would be playing with words to say that the allegation of really discreditable matters does not involve imputations on his general reputation, if only as showing how erroneous that reputation must be. The argument is, however, a valuable reminder that the Act is intending serious and not trivial imputations.
The second part of the argument in favour of a construction more liberal to the accused is concerned with the words 'the conduct or nature of the defence'. One should, it can be argued, read conduct or nature as something superimposed on the essence of the defence itself. In O'Hara v H M Advocate the learned Lord Justice-Clerk (Lord Thomson), after a careful review of the English cases, construed 'conduct' as meaning the actual handling of the case by the accused or his advocate. He found difficulty with 'nature' but said:
But the more general considerations which I have mentioned persuade me to the view that 'nature' is to be read, not as meaning something which is inherent in the defence, but as referable to the mechanism of the defence; nature being the strategy of the defence and conduct the tactics.
This argument has obvious force, particularly in a case of rape, where the allegation of consent is in truth no more than a mere traverse of the essential ingredient which the Crown have to prove, namely, want of consent. But the argument does not, and I think cannot, fairly stop short of contending that all matters which are relevant to the crime, that is, of which rebutting evidence could be proved, are excluded from the words 'conduct or nature of the defence'.
To take the present case as an example, the evidence having established physical signs on the victim of the alleged offence, his admission that he had previously committed it with somebody else was relevant. So, too, was his admission that he had been paid £1 for it, since, when the conversation was relevant, it could not be right to bowdlerise it. And, therefore, it is said, the putting of the allegation in cross-examination and the evidence given by the accused was an essentially relevant part of the defence and therefore was not within the words, 'the nature or conduct of the defence'. If Mr Jeremy Hutchison's forceful argument on the proper construction of the subsection is right, the story told by the accused did not let in the conviction.
So large a gloss upon the words is not easy to justify, even if one were convinced that it necessarily produced a fair and proper result which Parliament intended. But there are two sides to the matter. So liberal a shield for an accused is in many cases unfair to a prosecution.
The trial, it is suggested, cannot be fair if the jury is kept in ignorance of the defendant’s character even where the line of questioning is a necessary part of the defence. This is is well illustrated in Bishop where the accused had been the tenant of a room in a house belonging to Mr Price. He only stayed there for 12 days before leaving and Mr Price complained that his bedroom door had been forced and after-shave and money taken. Bishop was charged with burglary. Not only had he left precipitously, the after-shave was found in his room. Worse, Bishop's fingerprints were found in Price's bedroom. Bishop's explanation was that, during his brief stay, he had had a homosexual affair with Price. Price vehemently denied this. The prosecution sought and were allowed to cross-examine about his previous convictions. The conviction was upheld since the allegation of homosexual relations between Mr Price and the appellant was an imputation on Mr Price's character and it was not material that the imputation had been made, not to blacken the name of the witness but to explain the presence of the accused's fingerprints at the scene of the crime. Had the occupant been a woman and the allegation one of a heterosexual affair, would the result have been different?
One major exception to this rule lies in the area of rape to which the logic of Selvey and Bishop would seem to apply. Where the defence is that the victim consented and the victim is questioned as to past sexual conduct, this should theoretically mean that the accused opens himself to cross-examination on his own record. Yet the House of Lords in Selvey held that the accused in rape cases can allege consent without risking such cross-examination, either because rape is sui generis or on the ground that the issue is one raised by the prosecution. In Selvey Lord Pearce said,
The second part of the argument in favour of a construction more liberal to the accused is concerned with the words 'the conduct or nature of the defence'. One should, it can be argued, read conduct or nature as something superimposed on the essence of the defence itself....This argument has obvious force, particularly in a case of rape, where the allegation of consent is in truth no more than a mere traverse of the essential ingredient which the Crown have to prove, namely, want of consent. But the argument does not, and I think cannot, fairly stop short of contending that all matters which are relevant to the crime, that is, of which rebutting evidence could be proved, are excluded from the words 'conduct or nature of the defence'
This exception was established beyond doubt under the 1898 Act but there was little justification for treating rape as a special case. Nowadays, questioning a complainant about their sexual history in any sexual offence case is governed by section 41 of the Youth Justice and Criminal Evidence Act 1999. Such questioning is constrained and leave must be given by the court. The factual circumstances will vary – questioning may simply be about the victim’s past relationship with the accused and be relatively uncontroversial. In other cases, the victim may be questioned about sexual behaviour that could easily be seen as ‘reprehensible’ within section 106(2)(b). It is open to a court to treat such questioning as an attack on the victim’s character. It may be necessary for a fair trial to allow the defendant to pursue this line of questioning under section 41 but equally the trial cannot be fair if the jury is kept in ignorance of the defendant’s own character.
The question arises that, when the prosecution bring out the fact of any prior conviction, to what extent are they entitled to adduce evidence of the details of such a conviction. When bad character evidence was introduced to undermine the accused’s credibility, such details were not introduced. In Khan, the charge was assault on a police officer. He alleged that the police had lied and the prosecution cross-examined on a previous conviction for assault, eliciting details with obvious similarities to the present case. The conviction was quashed because these details should not be referred to as a matter of course but only where they are relevant to issues of credit. Details such as modus operandi should only be admitted where they would be admissible as similar-fact evidence. Where there was a risk that the jury might believe that the cross-examination went to the probability that the accused committed the offence, the judge might disallow the examination. In Watts, the charge was indecent assault and the accused alleged that the admission had been fabricated. The prosecution were allowed to cross-examine on previous convictions for indecent assault on young girls. The conviction was quashed since the risk of prejudice was too great.
These authorities were reviewed in McLeod in which the defendant was charged with armed robbery of a Securicor van and was cross examined about details of his convictions for previous robberies. Stuart-Smith LJ laid down these principles:
As to the nature of the questions that may properly be put, we consider that the following propositions should be borne in mind.
l. The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged…. But the mere fact that the offences are of a similar type to that charged or because of their number and type have the incidental effect of suggesting a tendency or disposition to commit the offence charged will not make them improper: Powell, Owen and Selvey.
2. It is undesirable that there should be prolonged or extensive cross-examination in relation to previous offences. This is because it will divert the jury from the principal issues in the case, which is the guilt of the accused on the instance offence, and not the details of earlier ones. Unless the earlier ones are admissible as similar fact evidence, prosecuting counsel should not seek to probe or emphasise similarities between the underlying facts of previous offences and the instant offence.
3. Similarities of defences which have been rejected by juries on previous occasions, for example false alibis or the defence that the incriminating substance has been planted and whether or not the accused pleaded guilty or was disbelieved having given evidence on oath, may be a legitimate matter for questions. These matters do not show a disposition to commit the offence in question; but they are clearly relevant to credibility.
4, Underlying facts that show particularly bad character over and above the bare facts of the case are not necessarily to be excluded. But the judge should be careful to balance the gravity of the attack on the prosecution with the degree of prejudice to the defendant which will result from the disclosure of the facts in question. Details of sexual offences against children are likely to be regarded by the jury as particularly prejudicial to an accused and may well be the reason why in Watts the Court thought the questions impermissible.
5. If objection is to be taken to a particular line of cross-examination about the underlying facts of a previous offence, it should be taken as soon as it is apparent to defence counsel that it is in danger of going too far. There is little point in taking it subsequently, since it will not normally be a ground for discharging the jury.
6. While it is the duty of the Judge to keep cross examination within proper bounds, if no objection is taken at the time it will be difficult thereafter to contend that the Judge has wrongly exercised his discretion. In any event, this Court will not interfere with the exercise of the Judge's discretion save on well-established principles.
7. In every case where the accused has been cross-examined as to his character and previous offences, the judge must in the summing-up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering.
To what extent are these principles still valid post-2003?
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The law in McLeod, under the 1898 Act, only dealt with the cross-examination of the accused’s character in these circumstances and such questioning went only to the credibility of the accused. But the number and type of past offences which might be put to the accused might well lead the jury to conclude that the accused had tendency to commit such offences and was more likely to have committed the offence charged. As McLeod suggests, this did not make such questions improper, even under the pre-2003 law. Now, the Court of Appeal has held that evidence admitted under section 101(1)(g) can go to the likelihood of the accused having committed the offence. The use depended upon the matters to which it was relevant rather than upon the gateway through which it was admitted. In Highton the accused alleged that the prosecution witnesses had fabricated their robbery story. The accused’s prior convictions for robbery and theft were introduced under pathway (g). These were clearly relevant to propensity and the judge invited the jury to consider this. The convictions were upheld.
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As McLeod suggests, extensive cross-examination on the facts of earlier convictions is undesirable, unless those facts were admissible under the similar fact rules. This remains the case – the primary purpose of adducing evidence under section 101(1)(g) is to demonstrate to the jury what kind of person the accused is. The details are not relevant and, unless the earlier convictions are admissible under (1)(d), counsel should not seek to ‘emphasise similarities’ between the previous and the current offences.
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The court in McLeod stressed that ‘similarities of defences which have been rejected by juries on previous occasions, for example false alibis or the defence that the incriminating substance has been planted… may be a legitimate matter for questions. An example, discussed earlier, was the exploration of the false alibi in Jones v DPP. Under the 2003 Act, such questions of detail are clearly admissible but would need to be brought under subsection (1)(d) as probative of an important matter in issue between the defendant and prosecution.
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Where evidence of bad character is introduced, the issue of excluding highly prejudicial evidence is raised. Under the 1898 Act, that discretion was exercised in cases such as Watts. Now evidence may not be admissible under gateway (d) but be adduced under gateway (g) to show the jury the ‘true’ nature of the defendant. The details may well be prejudicial and the court retains the discretion to restrict questions on those details or even to exclude evidence of past convictions under section 101(3) – if such questions would have an adverse effect on the fairness of the proceedings. The Court of Appeal is unlikely to interfere with this discretion unless there is an error in principle.
It can emerge by accident - Munday R., 'Irregular Disclosure of Evidence of Bad Character' [1990] Crim. L.R. 92
Makin v Attorney-General for New South Wales [1894] AC 57 at 65 per Lord Herschell
Tapper C., ‘The Criminal Justice Act 2003: Evidence of Bad Character’ [2004] Crim LR 533 for a review of the flaws in the common law and the reform movement
Law Commission Evidence of Bad Character in Criminal Proceedings, Law Comm No.273 (2001)
Redmayne M., ‘The Relevance of Bad Character’ 61 Cambridge LJ (2002) 684
Review of the Criminal Courts: Report (2001) paras 11.119-11.120
Home Office: Justice For All Cm 5563 (2002) 79
Extracted from Osner N., Quinn A. and Crown G.: Criminal Justice Systems in Other Jurisdictions ( Royal Commission on Criminal Justice (HMSO 1993))
Munday R., ‘What constitutes reprehensible behaviour?’ [2005] Crim LR 24; Munday R., ‘Bad Character Rules and Riddles’ [2005] Crim LR 337; Munday R., ‘Cut Throat Defences and the Propensity to be Untruthful’ [2005] Crim LR 624
Pettman (unreported, 2 May 1985), approved in Sidhu (1994) 98 Cr App Rep 59 and Fulcher [1995] 2 Cr App Rep 251
(2000) 2 Crim App Rep 220
ibid at 916-917 per Slade J.
(1915) 11 Cr. App. R 229; Humphreys, Sir Travers, A Book of Trials (Pan 1955) 82-86
Smith supra at 233 - the words of the trial judge, Scrutton J. to the jury quoted at the appeal.
Munday R., 'Handling the Evidential Exception' [1988] Crim L.R. 345
The facts in this case are illustrative - the argument is no longer relevant as it centred around the relationship of s.1(e) and s.1(f) of the Criminal Evidence Act 1898
(1915) 11 Cr. App. R 229; Humphreys, Sir Travers, A Book of Trials (Pan 1955) 82-86
Boardman supra at 897c ff
[1992] Crim. L.R. 185; Laidman and Agnew [1992] Crim. L.R. 428
Novac (1976) 65 Cr. App. R 107; Johannsen (1977) 65 Cr. App. R 101; Tricoglus (1976) 65 Cr. App. R 16; Barrington [1981] 1 WLR 419
(4th ed. 1844) Vol 2, p.384
'Where a father or step-father is charged with sexually abusing a young daughter of the family, is evidence that he also similarly abused other young children of the family admissible (assuming there to be no collusion) in support of such a charge in the absence of other 'striking similarities'?'
'Where a defendant is charged with sexual offences against more than one child or young person, is it necessary in the absence of 'striking similarities' for the charges to be tried separately?'
R v P supra at 340e-348f per Lord Mackay LC
Lloyd Bostock S., ‘The effects on juries of hearing about the defendant’s previous criminal record: a simulation study’ [2000] Crim LR 734
[1994] 2 All ER 847; applied in Ryder [1994] 2 All ER 859
Galbraith [1981] 1 WLR 1039
E.g. Criminal Justice Act 2003 (Categories of Offences) Order 2004, Statutory Instrument 2004 No 3346, prescribes offences in the categories of theft and sexual offences against persons under the age of 16.
Contrast this to s.101(1)(e) where it is necessary to show that the evidence has substantive probative value; also to s.100(1)(b) which permits questioning a witness about bad character but only where the evidence has substantive probative value to a matter in issue and that issue is of substantial importance.
(2005) 2 Cr App R 21- considered in Edwards [2005] EWCA Crim 3244, Highton (2005) 1 WLR 3472, Bovell (2005) 2 Cr App R 27
Criminal Justice Act 2003 – Explanatory Notes para 374; see Munday R. ‘ Cut Throat Defences’ op cit at 625ff
Darrington (1980) 1 A.Crim.R 124, 162 (Vic.F.C.)
Allen [1965] 2 QB 295; Neale (1977) 65 Cr. App. R 304; Bracewell (1978) 68 Cr. App. R 44; Rowson [1985] 2 All E.R. 539
Pattenden R., 'Character of Victims and Third Parties in Criminal Proceedings' [1986] Crim.L.R. 367 at 370
This was under the [now repealed] s.1(f) Criminal Evidence Act 1898
Munday R., ‘Cut Throat Defences and the Propensity to be Untruthful’ [2005] Crim LR 624
ibid at 236 per Humphreys J.
This is now s. 76A Police and Criminal Evidence Act 1984
Where the Crown wish to rely on a confession, they must prove beyond reasonable doubt that it was not obtained by oppression or in circumstances that might render it unreliable
(1952) 36 Crim App Rep 169
Lowery supra at 668-671 per Lord Morris
[1982] 2 All ER 519at 521-522 per Kilner Brown J
Character cannot be put into issue 'accidentally' by witnesses blurting out their good opinion of the accused - Gadbury (1838) 8 C&P 676; Redd [1923] 1 KB 104
Stirland supra at 327 per Viscount Simon
Butterwasser [1948] 1 KB 4
(2005) 2 Cr App R 2at para 30
Hanson op cit per Rose LJ at para 14
Pickstone(reported in Hanson op cit) per Rose LJ at paras 48-51
Blackford (unreported 7th Nov 2005 CA)
Tanner (1977) 66 Cr. App. R 56; Nelson (1978) 68 Cr. App. R 12
Britzman supra at 372a-374c per Lawton LJ
Selvey supra at 521a-522h per Lord Pearce
Cook [1959] 2 QB 340 at 347 per Devlin J.
Duncalf [1979] 2 All ER 1116
[1983] 3 All ER 101; reviewed in Powell[1986] 1 All ER 193 and Owen 83 Cr. App .R. 100
Under the 2003 Act, an attack on another’s character can lead to the Crown adducing character evidence as part of their case as well as through cross examining the accused.