Criminal Justice Act

This assignment will consider the impact that the Criminal Justice Act 2003 has had on the area of criminal evidence. It will first deal with the circumstances in which the court may hear evidence of the accused's character in a criminal trial, considering the impact that the Criminal Justice Act 2003 has had on this area. The next two sections will deal with two particular scenarios in which the act can be utilised. It will deal with the circumstances in which evidence of character can be adduced and demonstrate exactly how it is used in order to admit such evidence. These scenarios will also aim to demonstrate exactly how the new rules differ from the old rules.

2. Development of the Common Law

There are many ways in which similar fact evidence and evidence of character can be admitted and it is important to consider the common law development of these rules before considering the new codified principles set out in the Criminal Evidence Act 2003. The principle of similar fact evidence was recognized first in Makin v. Attorney General for New South Wales were Lord Herschell established that as a rule similar fact evidence would not be admissible. He stated, however that in exceptional circumstances this principle could be overruled and such circumstances would arise if it was relevant and probative. Makin and the case of R v Smith allowed similar fact evidence to be admitted on the basis that the probative power of the similar fact evidence outweighed the prejudicial effect to the defendant on the basis that it was highly improbable that the strikingly similar facts had any other logical explanation other than the guilt of the accused. The principle was extend to include strikingly similar allegations when Lord Denning in the case of R v Sims, considered that allegations of buggery made by three different men should be admitted into the same trial in support of each other.

DPP v Boardman saw the return of the procedural safeguards and sought to bring the law back into line. The test for allowing such similar fact evidence to be admitted, according to the House of Lords decision in DPP was to balance the probative value of the evidence against the prejudicial effect of such evidence may have on the accused. In summation if the evidence was so weak, defective or tainted that its probative value was outweighed by its ability to influence a jury then it should be debarred

The House of Lords considered that the emphasis should be once again placed upon striking similarities being present as between the inadmissible evidence and the facts in the case in question. Indeed the House of Lords considered that this should be extended to include allegations that were strikingly similar as well as previous convicted offences.

In DPP v P Lord Mackay discarded the prerequisite that allegations, in order to be admissible, should be 'strikingly similar'. In doing so he incorrectly claimed that this condition applied only to cases where identification was at issue. The risk therefore is that the jury will give the evidence far more weight then perhaps is deserved; indeed they will treat this evidence as all other evidence is treated by them. The safeguard therefore is of little value and the danger of prejudice will be inherent irrespective of its existence. The Case of R v H was concerned with the issue of similar fact evidence, in particular similar fact evidence in relation to the mutually supportive testimony of two or more witnesses in the same trial, as opposed to evidence of alleged misconduct on unrelated previous occasions. The law that had developed following Boardman had suggested that when such incidences occurred that a voir dire should be held to consider whether or not there was material evidence that there had been contamination or concoction. R v H moved away from this standard to a more Jury based determination of the evidence.

It is important at this juncture to consider the common laws that have developed in relation to the law on previous convictions. Although as a general law the common law did not allow the evidence of previous convictions to be admitted there were occasions when such evidence was considered to have a probative force in support of the allegation that an accused person committed a crime [which] 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. There are other situations that are set out in statutory form where previous misconduct is necessary in order to have committed the offence these include driving while disqualified; being an incorrigible rouge; possession of a firearm and contravention of a disqualification order.

3. Criminal Evidence Act 2003

The position is altered somewhat under the Criminal Justice Act 2003 which allows bad character evidence to be admitted where it is relevant to an important matter in issue between the defendant and the prosecution. This is clarified by section 101(4) of the act which imports the notion of fairness. The effect of this is to introduce the probative value/prejudicial effect criterion raised in DPP v P. Section 103 of the Act imposes further conditions in particular Section 103 requires that evidence can only be included within the concept of bad character if it is relevant to either the issues in the case or the accused's credibility.

Despite these criticisms the Law Commission endorsed R v H and in addition recommended that the judge should be under an explicit duty to direct an acquittal whenever a corrective judicial discretion would be insufficient to offset the impact of evidence which during the court of the trial had come to appear highly prejudicial. Following the Law Commissions' consultation paper the Criminal Justice Act 2003 was created. The aim of the Act was to both simplify and clarify the position in relation to the rules governing bad character. Section 101(1)(c) allows a defendant's previous misconduct to be cited in evidence if it is 'important explanatory evidence'. Guidance on what is meant by this is given in s. 102, which provides that it can be admitted if, without it, the jury or court would find it 'impossible or difficult properly to understand other evidence in the case' and its value for understanding the case as a whole is 'substantial'. This provision is it appears designed to replace the common law principles defined in R v Fulcher which held that where it is necessary to place evidence before the jury of a background or history that was relevant to an offence charged in the indictment, and without which the account would be incomplete or incomprehensible, the fact that it included evidence establishing the commission of an offence with which the accused was not currently charged was not, of itself, a ground for excluding the evidence.

The Law Commission's recommendations have been integrated into sections 107 and 109 of the Criminal Justice Act 2003. Section107 stipulates that whether evidence of the accused's bad character has been admitted into the trial without the accused's agreement, under section 101 (1) paragraphs (C)- (g), and the court is satisfied at any time after the close of the prosecution's case that (i) that evidence is contaminated such that (ii) a conviction would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury. Either way, proceedings will not be allowed to continue if it emerges during the court of the trial that material evidence of bad character has been contaminated. Section 107(5) defines contamination broadly to include innocent confabulation as well as deliberate concoction or conspiracy. Further counts charged in the indictment and lesser included charges must also be abandoned if convictions of those offences would be unsafe as well, in light of the discovery of contamination. Section 98 of the Criminal Justice act defines bad character evidence as 'evidence of, or of a disposition towards, misconduct on his [a defendant's] part'. Misconduct is defined in s. 112 as the commission of an offence or 'other reprehensible behaviour'. Section 98 clearly encompasses both aspects of character evidence that are currently adduced under similar fact principles and it is suggested that it will include evidence of a 'disposition' towards misconduct, such as the possession of paedophile literature where a paedophile offence is currently charged.

Section 109 incorporates R v H in the sense that it will require the court to treat the evidence as true, unless it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true. Contrary to R v H, which it is suggested, was only regarded as limited to cases of contested cross-admissibility, section 109 of the Criminal Justice Act 2003 requires the trial judge to consider all misconduct evidence on the basis that it is true for the purposes of assessing its admissibility unless no reasonable jury could believe it.

The Criminal Justice Act only appears to codify the common law position, it still leaves open the answer as to whether or not these rules strike the appropriate balance between prejudice and proof. The competing interests at stake are evident and the compromise between them is understandable in terms of the adversarial structure of English criminal trials. The situation is complex and solutions are by no means easily available.

Therefore one can see that the pertinent question is whether or not s. 101(1)(d) of the 2003 Act will liberalise the common law situation by making it easier to adduce previous misconduct to suggest present guilt directly? The Law Commission's Report suggests that the new act will be able to achieve this. Whilst the Law Commission were unable to say positively whether its scheme would allow more or less bad character evidence to be adduced when considered overall there was a clear inference was that less evidence of previous bad character would be admitted on the issue of credibility and that this might be counterbalanced because any new Act would see a 'final break' with the old similar fact formulae. As Durston points out This would suggest that the Law Commission does anticipate a significant liberalisation in the current law, making it easier to adduce misconduct to establish guilt.

The Act indicates that evidence should only be adduced if it is of significant probative value with regard to matters in issue between defendants and co-defendants under s. 101(1)(e), but not, expressly, for prosecution evidence under s. 101(1)(d). Furthermore, Section 103(1)(a) expressly states that evidence of misconduct cannot be adduced by the Crown if the propensity it establishes makes it 'no more likely' that a defendant is guilty of the offence charged. The existence of the discretion is difficult to quantify and will depend a great deal on how conservatively or radically judges apply the new provisions. However to cite Auld's view . . . it is a poor prosecution case that needs to rely on a man's previous convictions in order to convict him, it is likely that the former will apply. It is, however, clear that the 2003 Act abandons the historic approach to 'tendency' evidence set out in cases such as Makin v Attorney-General for New South Wales(discussed above).

Section 101(1)(d) appears to allow the Crown to adduce previous misconduct that is probative of the facts in issue precisely because it does show a strong criminal 'tendency'. It is suggested therefore that a general propensity to serious forms of violence, without more, might be enough under the new provisions to justify admission in a case involving a further offence of significant violence, especially where there are similarities between them.

The new statute will bring an end to almost two centuries of steady maturity in the law on similar fact evidence the liberalisation in 1991 following DPP v P will decrease its impact on misconduct evidence adduced to establish guilt. Whether such important change will, eventually, be seen to have been worth the extensive effort and perplexity involved is another matter. Nonetheless, it would appear that many of the factors that were relevant to enhancing probative value in similar fact cases, such as the nature of the defence, etc., will still be appropriate to applications under s. 101(1)(d), though these are more likely to be successful. Although the provision is unlikely to 'open the floodgates' to previous misconduct evidence, it will probably mean that many cases in which 'debatable' similar fact applications were discarded as inadequately probative prior to the 2003 Act would be determined in a different way. In addition, cases concerning strong evidence of a general proclivity will now be admissible where such evidence is highly probative. The statutory tension on the lapse of time between prior and present misconduct and on convictions might suggest that these factors will be given a preternatural significance in decisions on the exercise of judicial discretion. On a more optimistic note, the new requirements should bring an end to episodic cases in which it is claimed that it is an offence to coherence that jurors were deprived of extremely pertinent information about a defendant's prior misdemeanours because trial judges felt that they had no legal justification to admit it.

4. Cane denies in evidence that he made a confession to the police

Section 101, read in conjunction with section 99 of the Criminal Justice Act 2003 now provides a comprehensive code regulating the admissibility of evidence of the accused's bad character. If the accused creates a false impression , as Cane can said to have done here, then the prosecution are entitled, in certain circumstances to adduce evidence of the accused 's previous bad character.

The CJA 2003 contains a dedicated scheme of rules to regulate the admissibility of evidence of the accused's extraneous misconduct in s101(1):

In criminal proceedings evidence of the defendant's bad character is admissible if, but only if -

(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) It is important explanatory evidence,
(d) It is relevant to an important matter in issue between the defendant and the prosecution
(e) It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) It is evidence to correct a false impression given by the defendant, of
(g) The defendant has made an attack on another person's character

We are concerned here with s101(1)(f) which is evidence to correct a false impression. This is further defined by s105(1):

(a) the defendant gives a false impression if he is responsible for making 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 as probative value in correcting it.

Section 105 proceeds to establish that a false impression may be given by conduct as well as though testimony. The accused is treated as responsible for pre-trial assertions made by him whilst being questioned under caution or on being charged with the offence, and for any assertion made by a witness called by the defendant, as well as for assertions made or adduced by the accused in the proceedings and any assertion intentionally or foreseeable elicited from a witness under cross-examination by the defence.

Section 105 (6) provides that:

Evidence is admissible under section 101(1)(f) only if it goes no further than necessary to correct the false impression

This means that the trial judge may restrict admissibility to those aspects of the accused's extraneous misconduct with substantial probative value in correcting a false impression. If the accused tries to present himself as something he is not, that specific misrepresentation can be corrected, but evidence of good character will no longer present the prosecution with unlimited licence to damn the accused on his record. Admitting such evidence will still inevitably expose the accused to an increased risk of unfair prejudice, inasmuch as bad character evidence always does, the risk is justified where information about his antecedents would be significantly probative on the current charge, in light of the way of the way in which the case is being run. Evidence adduced to correct a false impression, if believed by the jury, will do just that and no more. For purposes of assessing the evidential significance of rebuttal evidence, nothing turns on the procedural mechanics of how the assertion or the rebuttal evidence itself came to be adduced in the trial, and it makes no difference whether the accused testifies in his own defence or remains silent and puts the prosecution to proof. This is however no longer the case and on this basis it is assumed that it is likely that the prosecution will be able to admit this evidence.

5. Cane says that Whip and he had admonished Andrew for being naughty

As discussed above the Criminal Justice Act 2003 contains a dedicated scheme of rules to regulate the admissibility of evidence of the accused's extraneous misconduct in s101(1):

In criminal proceedings evidence of the defendant's bad character is admissible if, but only if -

(a) all parties to the proceedings agree to the evidence being admissible.
(b) The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it.
(c) It is important explanatory evidence,
(d) It is relevant to an important matter in issue between the defendant and the prosecution
(e) It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) It is evidence to correct a false impression given by the defendant, of
(g) The defendant has made an attack on another person's character

Therefore this evidence can be admitted by agreement by the parties however this is unlikely. Therefore it is likely that the prosecution will attempt to admit the evidence under sections c and d and this are provisions which are concerned with similar fact evidence. One significant dimension of the similar facts cases concerned the dangers posed by deliberate collusion between witnesses or innocent cross-contamination of their evidence.

Section 101 (C) of the Criminal Justice Act 2003 renders prosecution evidence of the accused's bad character admissible where it is important explanatory evidence. By section 102, evidence qualifies as important explanatory evidence if (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. The key distinction between evidence that is part-and-parcel of the events forming the basis of the charge, and evidence which might be relevant to prove the current charges, but is not an integral aspect of the events themselves or their inseparable background and context.

Although not express it is assumed that section 78 of PACE 1984 still applies to such evidence, even though section 78's derivative test set out in section 101 (3) does not. It is also worth emphasising that the Criminal Justice Act 2003's bad character evidence provisions do not extend to evidence which has to do with the facts of the current charge or to evidence of misconduct in connection with the investigation or prosectution of that offence. To the extent that background evidence falls within either of these two categories, the residual common law discretion, if not the formal SFE rule, continues to impose a PV - PE hurdle to admissibility.

In determining the admissibility of evidence of the accused's misconduct in the first instance, however, section 109 obliges the court to treat the evidence as true, unless it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.

Section 107 where evidence of the accused's bad character has been admitted into the trial without the accused's agreement, under section 101(1) paragraphs (c)-(g), and the court is satisfied at any time after the close of the prosecution's case that (i) that evidence is contaminated such that (ii) a conviction would be unsafe, the court must either direct the jury to acquit the defendant of this offence or, if it considers that there ought to be a retrial, discharge the jury. Either way, proceedings will not be allowed to continue if it emerges during the course of the trial that material evidence of bad character has been contaminated. We will assume that this is not a difficulty here.

Bibliography

Legislation

Criminal Justice Act 2003

Cases

DPP v P [1991] 2 AC 447 at 460

DPP v Boardman 1975] AC 421 HL

Makin v. Attorney General for New South Wales 1894 AC 57, 65

R v H [1995] 2 AC 596, 617

R v Thompson 1918, 13 Cr. App R, p. 80

R v Sims 1946, 31 Cr App R 158

R v Smith 1915 11 Cr App R, 229

Reviews and Reports

Evidence Of Bad Character In Criminal Proceedings, Law Com. Report No. 273 (2001)

Sir Robin Auld, Review Of The Criminal Courts Of England And Wales (2001)

Journal Articles

Durston G, Comment - Impact of The Criminal Justice Act 2003 on Similar Fact Evidence, Journal of Criminal Law 68(307) August 2004

Hoffman L Similar Facts After Boardman, 91 Law Quarterly Review 193 (1975)

Nair R, Weighing Similar Fact and Avoiding Prejudice, Law Quarterly Review 1996, 112 (Apr) 262-268

Smith J, Commentary on Severance Criminal Law Review 1999

Tapper C, The Erosion of Boardman v DPP, New Law Journal August 11 1995

Zuckerman A, "Similar Fact Evidence - The Unobservable Rule" (1987) 103 Law Quarterly Review. 187 at pp. 194-197.

Books

Keane A, (2004) The Modern Law of Evidence, Sixth Edition, Butterworths

Roberts P & Zuckerman A, (2004), Criminal Evidence, Oxford University Press

Tapper C, (2004) Cross and Tapper on Evidence, Tenth Edition , Butterworths

Websites

1894 AC 57, 65

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