LAW OF EVIDENCE

Lord Auld was in no doubt that the present system, with its mix of statutory and common law is “unduly complex, difficult to apply, particularly in the case of similar fact evidence. And it often fails to distinguish between relevant and irrelevant evidence and, some would say, leaves too much discretion to individual judges”.

However Lord Auld felt that if it were to be replaced by a test of balancing proof against prejudice, the imprecision of the exercise applied on a case by case basis might “in the early days substitute uncertainty for complexity, only to succumb again to complexity as it became overlain with case law”. In either form of general exclusionary rule, there is the problem of keeping from the tribunal of fact that a defendant who does not put his character in evidence is likely to have a bad one.

Professor John Spencer, consultant to the Law Commission report has long been of the view that there is an entirely different and better avenue for reform. He considers that the present law, both in its form and application by the judges, is unreasonably favourable to defendants and is, in any event, ineffective as a protection to them where they are entitled to it. His proposals are: first, in order to remove the scope for possibly prejudicial speculation by a jury or lay magistrates when a defendant’s character is not mentioned, his criminal record should be put in evidence quietly and in a matter of fact manner at the start of every trial; second, the prosecution should be allowed to treat it as supportive of the defendant’s guilt where it goes beyond showing he has a general tendency to break the law and is relevant; and third, where there is no other substantial evidence of guilt, the court should normally be required to stop the case. The Law Commission, in its consultation paper, considered this with other options for reform and rejected it. Its arguments were that it would involve the admission of irrelevant and prejudicial material for no very clear purpose.

There is no doubt that the admission of all convictions as a matter of course at the beginning of the case, even if not relied upon as supportive of guilt, could result in the admission of irrelevant and unfairly prejudicial material. Dr Sally Lloyd-Bostock’s research on the effect of bad character evidence on mock jurors indicated that a jury would be more likely to convict if they know that the defendant either had a conviction for a similar offence or for indecent assault (irrespective of the offence charged). As against that, Professor Spencer and others have advanced the following arguments:

1. It is illogical for the law to allow a defendant to put in his good character to indicate lack of propensity but to deny the prosecution the opportunity to establish the converse when he has a bad one.
2. Jurors rapidly learn and magistrates and judges know that if there is no mention of a defendant’s good character, he probably has a bad one, and so it permits the tribunal of fact to guess what it is not officially allowed to know.
3. Magistrates, in any event, soon recognise the regular offenders in their court.
4. In the case of the exception where a defendant’s character goes in because he has wrongly sought to establish his own good character or attacked a prosecution witness, the requirement on the judge to tell a jury that it goes only to credibility, not to propensity, is confusing and unreal.
5. Evidence showing that a defendant has committed offences of a similar type before statistically and logically suggests that he is more likely than those without such a record to commit such offences again, and should for that reason be regarded as relevant evidence - and some propensities can be more significant than others.
6. Though studies such as Sally Lloyd-Bostock’s have shown that juries would be influenced to some extent by knowledge that the defendant has a criminal record, they do not show that juries would be unduly influenced by it.
7. To remove the scope for possibly prejudicial speculation, fact-finders should be informed at the start of the trial whether the defendant has a criminal record and, if so, what it is.
8. Weight should be substituted for admissibility, confining the prosecutor to making active use of the criminal record or bad tendencies where they appear to be relevant to some disputed element in the case, and trusting jurors and other fact finders to give it the weight it deserves.

The Commission’s final report said the law should be codified to abandon the “pitted battlefield” as described by Lord Hailsham in DPP v Boardman, and that the case law on similar fact evidence be swept away in favour of a modern statute based on clear objectives. This codification should allow the courts to make a fresh start. The report rejects the option of disclosing a defendant’s record at the beginning of every trial. The commission’s solutions for the defects it identifies are founded on the concept of the “central set of facts” in any given trial. Evidence falls within the central set of facts if it has to do with the offence charged or is of misconduct connected with the investigation or prosecution of the offence. Any party should be free to adduce relevant evidence, even evidence of bad character, about the central set of facts without constraint. Hence questions about the defendant lying to the police or jumping bail, or the intimidation of witnesses would always be permitted. This would prevent a recurrence of the case of two Russian sailors who were acquitted of rape at a retrial. The jury were unaware that the sailors had been caught trying to flee the country just days before the trial while on bail.

Evidence of a person’s bad character not related to the central facts of the offence would be admissible only with leave, under three exceptions to the exclusionary rules. The first is where the misconduct evidence amounts to evidence of guilt. The other two exceptions define where the defendant has made his bad character relevant through the nature of his defence. The first instance of this would be if the defendant suggests that any other person, whether a witness in the case or not has a propensity to be untruthful. The second instance of the defendant effectively throwing his shield away is where he creates a false or misleading impression about himself and the evidence has substantial probative value in correcting that impression. In all cases the court would have to apply an interest of justice test, taking account of the risk of prejudice to the defendant.  

In conclusion the purpose of cross examination is to attack the creditability of the accused. This was stated as such in Murdoch v Taylor. The admissibility of evidence of the previous misconduct of the defendant in a criminal trial has for over 100 years been governed by an uneasy mixture of statute and common law. As Cross & Tapper put it “this is one of the least satisfactory parts of the law of evidence, characterised by indeterminacy of aim, and inept intervention by the legislature. The problem is acute and difficult to resolve.” Despite this it is only recently that reform has been pushed to the forefront by reports from the Government, Law Commission and Lord Justice Auld. The Government suggested a simplification of the law would allow the admission of previous convictions where relevant, providing their prejudicial effect does not outweigh the probative value. Meanwhile Lord Justice Auld concluded that only radical steps would free us from the undoubted incoherence of the law relating to previous convictions. When the Law Commissions report was published it was far more wide ranging than the earlier Consultation Paper and took into account the entire context in which misconduct evidence operates to provide a more coherent remedy to the unfairness of Murdoch v Taylor. The recommendations to codify the law and introduce the concept of a central set of facts in a trial from which evidence could be freely adduced, would along with the leave granted in selected circumstances, substantially improve this flawed area of law and go some way to resolving the problems of cross examination of the accused under the Criminal Evidence Act 1898 highlighted in this essay.

Bibliography

1. Cross & Tapper on Evidence, Ninth Edition, Colin Tapper
2. Evidence of Bad Character in Criminal Proceedings, Law Com. No. 273 www.lawcom.gov.uk/files/lc273sum.pdf
3. Criminal Court Review, Lord Justice Auld.

1. 4.        Criminal Justice: The Way Ahead. Cm. 5074.

.         Previous Misconduct at the Crossroads: Which “Way Ahead”? Jenny McEwan. [2002] Crim LR 180

4. Evidence of Bad Character. [2001] Crim LR 853
5. Tinkering or transformation? Proposals and principles in the White Paper, ‘Justice for All’. Ben Fitzpatrick BA, Lecturer in Law, University of Leeds
6. The Effects on Juries of Hearing about the Defendant’s Previous Criminal Record: A Simulation Study. Sally Lloyd-Bostock. [2000] Crim LR 734
7. Previous Misconduct and the Magistrates’ Courts – Some Tales from the Real World. Penny Darbyshire. [1997] Crim LR 105
8. All the Usual Suspects: A Critical Appraisal of Law Commission Paper Consultation Paper No 141. Paul Roberts. [1997] Crim LR 75
9. Law Commission Dodges the Nettles in Consultation Paper No 141. Jenny McEwan. [1997] Crim LR 93

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