Character Evidence and the Criminal Justice Act 2003

Introduction

The Criminal Justice Act 2003 (‘the CJA 2003’) introduces radical changes in the law of criminal evidence by abolishing the common law rules governing the admissibility evidence of character in criminal trials.^[1] It should be noted that the terms of the abolition are capable of leading to problems. In this regard, two observations may be made. Firstly, the abolition is of rules of admissibility of evidence of bad character, but not of rules of inadmissibility which might be properly considered the principal target of the Law Commission’s review. One could consider this distinction somewhat irrelevant but the matter is of import especially in view of the common law distinction between what is rule and what exception.^[2]

Secondly, since the abolition only affects ‘common law rules of admissibility’ it seems that common law rules allowing discretionary exclusion of evidence of bad character unless it is more probative than prejudicial are still operative. The CJA 2003’s restriction of discretion to exclude in section 101(3) appears not to have taken this possible retention into account as it has restricted its ambit to applications by the defendant. To the extent that common law rules allowing the exercise of discretion are not covered by the abolition, the new statutory scheme also leaves unaffected rules of practice, such as the approach to the use of spent convictions under the old law. This aspect may complicate applicable law.

However, apart from these observations, the provisions of the CJA 2003 relating to character evidence have got sufficient scope to handle character evidence during trial. In the following sections, I succinctly analyse the core elements of the character provisions as they appear in the Act.

The character provisions relating to defendants

One general aim of the legislation was to make it easier to put evidence of previous misconduct before a court, where it was considered relevant to the offence with which the accused person was presently charged. This area of law was previously governed by the law on ‘similar fact’ evidence, and regulated by a series of cases dating back well over a century, the most important recent example being DPP v P.^[3] However, according to the Home Secretary, these common law rules were ‘confusing and difficult to apply’ and too restrictive, frequently preventing jurors from hearing cogent evidence that could be highly relevant to their decision-making. The new provisions in the CJA 2003 were therefore aimed at correcting this mischief.

The bad character provisions which are provided at sections 98 to 108 of the CJA 2003) include evidence on the part of the defendant, defence and prosecution witnesses, and even third parties not called to give evidence. It also covers bad character evidence whether it is adduced to directly establish guilt, to undermine credit or to provide the contextual background to an offence.

The adduction of a defendant’s bad character for any purpose will be governed by s 101. Within this section, the most important provision for replacing the similar fact regime is contained in sestion 101(1)(d), which provides that evidence of misconduct can be adduced if relevant to an ‘important matter in issue between the defendant and the prosecution’. Section 103(1)(a) provides that this includes whether a defendant has a propensity to commit offences ‘of the kind with which he is charged’.

Under section 103(2), guidance is given on how such a propensity can be established. In particular, it can be done by adducing evidence that the defendant has been convicted of offences of the same ‘description’ or ‘category’ as those for which she or he stands trial. These two words are further defined in section 103(4). Offences are of the same description as each other if the indictment would be couched in the same terms. In addition, an order from the Secretary of State, pursuant to section 103(4)(b) may decree that certain offences are of the same category. Under section 103(5), any category prescribed by such an order must consist of offences of the ‘same type’. Unfortunately, the CJA 2003 does not define what is meant by ‘same category’ or ‘same type’. This is a setback for the legislation because it gives the Secretary of State too much discretion in choosing what should constitute offences of the same description or category in relation to the introduction of bad character evidence during criminal trials.^[4]

Obviously, bad character evidence runs the risk of unfairly prejudicing the defendant’s trial. Consequently, the CJA 2003 has built in safeguards to prevent the likelihood of such prejudice arising.

Excluding bad character evidence

Section 101(3) makes it clear that bad character evidence can still be excluded, on defence application, if admitting the evidence would have ‘such an adverse effect on the fairness of the proceedings that the court ought not to admit it’. In particular, under section 101(4), the court must have regard to the age of the misconduct that the Crown seeks to adduce in deciding if it would be unjust to allow it. The older the convictions, the less likely they are to be admitted. The designated categories are not exclusive, and evidence of a defendant’s previous convictions will still be admissible, even if outside them, if sufficiently probative.

The character provisions relating to non-defendants

Section 100 is a wholly new rule, intended to prevent any party from raising the bad character of a non-defendant unless that evidence is of importance in the case. The rule doesn’t simply apply to persons who appear as witnesses, but applies to any person other than the defendant. Moreover, the new rule applies equally to prosecution and defence, and so arguably provides some protection for potential defence witnesses who have previous convictions and who might, in the past, have been reluctant to give evidence for fear that their previous convictions would be raised. These rules do not prevent any party from accusing another of involvement in the offence itself-the new definition of ‘bad character’ specifically excludes the offence in issue, as well as matters relating to its investigation and prosecution. Defendants can therefore blame other people for committing the offence and can raise issues about misconduct in the investigation without falling within these new rules. However, such attacks will, of course, potentially permit the admission of the defendant’s own bad character under section 101(1)(g) CJA 2003.

In other instances, where the defence or prosecution wish to raise the bad character of a non-defendant they must meet one of three conditions:

(i)all parties agree to its admissibility;

(ii)the evidence is important explanatory evidence; or

(iii)it has substantial probative value in relation to a matter in issue that is of substantial importance in the context of the case as a whole.

The leave of the court is required in all but the first category. The final provision (‘substantial probative value’) is likely to be the most critical. Section 100(3) provides a test for assessing ‘probative value’, taking into account all relevant factors, but expressly including the nature of the events in issue, the time when they are said to have happened, the nature and extent of any similarities, and the degree of certainty in relation to them. The key issue, however, will be whether the courts will tend to take the view that evidence of misconduct by a person is going to tend to be of particular relevance in assessing either their credibility as a witness or their potential involvement in the offence, and so will often be sufficiently probative to be admissible.

Implications of the new rules

Given the wide scope for judicial interpretation, it is difficult to summarise the implications of these provisions especially when they have not been baptised by the fire and brimstone of the court room. The thrust of the legislation seems to be that previous convictions generally will be more readily adduced to establish guilt rather than undermine credit, the very high level of probative value that was required under the ‘similar fact’ doctrine being slightly reduced. Convictions that come into the designated categories will be much more readily admitted where the accused is charged with the same type of offence, and the onus will be on the defendant to persuade the court that they should not be adduced. What these changes will mean, in practice, is perhaps best seen in the context of previously decided cases. The jury that convicted Roy Whiting of abducting, sexually assaulting and murdering eight-year-old Sarah Payne was left in ignorance of his previous conviction of abducting and assaulting a nine-year-old. Were such a case to recur now, it is highly likely that the earlier offence would be disclosed.

Concluding note

The Criminal Justice Act 2003 makes critical changes to the law relating to the admissibility of bad character evidence as regards both defendant and non-defendant witnesses. However, the new rules do not put into effect all the recommendations suggested by the Law Commission with the result that fairness as motivated by the government when passing the CJA 2003 may not be achieved with the new statutory framework. The law reform process provided an opportunity where the law should have been clarified and simplified. The new law has achieved neither of these objectives.

Bibliography

Statutes

Criminal Justice Act 2003

Cases

Makin v Attorney General of New South Wales [1894] AC 57

DPP v P[1991] 2 AC 447

Footnotes

^[1] Criminal Justice Act 2003, s 99(1).

^[2] Makin v Attorney General of New South Wales [1894] AC 57.

^[3] [1991] 2 AC 447.

^[4] The first order under section 103(4)(b) was laid before Parliament on 25 October 2004 and introduced two grouped categories of offence: theft; and sexual offences committed against those under 16 years of age.