Effect of Bad Character Evidence on Juries

The Criminal Justice Act 2003 (CJA) was introduced as the result of the Governments’ intention to allow more defendants’ bad character evidence to be presented to juries than under previous law. Tony Blair, the then Home secretary said the measures were to ‘put victims first’ by rebalancing the criminal justice process in their favour to achieve safe communities. This essay will discuss the seven gateways and the affect they could have upon a defendant, attempt to establish exactly what bad character is, determine and discuss ‘misconduct’, ‘reprehensible behaviour’ and propensity. This essay will also consider the jury alongside the biases that may be created by bad character evidence and how it can affect them. It will establish the role of the judiciary in conjunction with safeguards that are currently in place to protect a defendant and conclude whether the gateways of the CJA are fair or not in every case.

Prior to the CJA the law of bad character was a haphazard mixture of statute and common law rules.[1]The defendant possessed a shield against bad character evidence providing he did not attack another persons’ character whilst giving evidence at trial. In R v Campbell[2] Lord Philips CJ stated, ‘Prior to the Criminal Justice Act 2003 it was rare for a jury to be given details of a defendant’s previous criminal record. Since the Act has come into force it has become much more common.’ Now the CJA provides seven gateways through which a defendants’ bad character may be admissible in court. The Act changed the law regarding the admissibility into evidence of a defendants’ convictions for previous offences, and his misconduct, extensively broadening the circumstances in which the prosecution can introduce such matters.[3] The bad character provisions of the CJA came into force in December 2004 despite warnings of how difficult they were to understand and of the tsunami of wrongful convictions that would result from them.[4]

It is the responsibility of the prosecution to prove that one of the seven circumstances of the gateways apply. They must then give the courts notice should they wish to adduce the evidence of bad character so that the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. For the application to be accepted it must pass the test in s.100 (1) which states it must be important explanatory evidence or have substantial probative value in relation to a matter which is in issue and is of substantial importance in the context of the case as a whole. A defendant representing themselves in court may not understand the complexities of admissibility,[5] the importance of applying to exclude his bad character[6]or indeed the time frames which have been criticised by the Law society for being unrealistic.  In R v Hunter and Others[7] the Court of Appeal stated,

[T]he difficulties that have arisen most commonly because inadequate discussion has taken place between the advocates and the judge before the evidence has been adduced, before speeches, and before summing up.

Gateway (c) allows evidence the court or jury would find it difficult or impossible to understand other evidence without, to be admitted. In Chohan,[8] the defendants’ bad character was admitted by a prosecution witness who unfairly identified him as a heroine dealer. Theoretically this gateway should have quite a high threshold but in practice it appears to be much lower.

Bad character is defined in s. 98 as ‘misconduct’ in connection with the investigation or prosecution of that offence. It is further defined in s 112 as the ‘commission of an offence or other reprehensible behaviour’.[9] Reprehensible behaviourhas been criticised[10] because it could be interpreted widely owing to its lack of definition within the CJA. There is also a possibility that prosecutors and judges could develop bad character evidence beyond its limits. In a society that is increasingly permissive, to whose standards must we consider the behaviour reprehensible? [11]If the court is persuaded that the behaviour is reprehensible then it could be ruled to be evidence of bad character, admissible via gateway (d), which is very broad, and if the court is unconvinced that the behaviour is in fact reprehensible, the court will admit it in any case because it would be considered relevant. In the case of Manister[12] it was held that a sexual relationship with a sixteen year old girl failed to amount to reprehensible behaviour and neither did a previous sexual attraction to a fifteen year old girl. This evidential information was therefore considered inadmissible via the gateways, which was unfair upon the victim in this case.

 Bad character evidence should be excluded if it is unfairly prejudicial.[13] The courts should be reluctant to admit bad character evidence in case the jury are prejudiced by its introduction and they convict despite all other evidence against the defendant being weak. This appears to be unfair and disadvantageous to defendants but Laudan argues against defendant friendly rules, claiming that the presumption of innocence and the burden of proof being ‘beyond reasonable doubt’ favours defendants’ and further suggests this should be put out to pasture.[14]

Most jurors find it difficult not to be influenced by the admission of previous convictions, this means that the defendant is often on trial not for their alleged crime, but for their previously committed crimes.  This has been considered ‘guaranteed to lead to miscarriages of justice’.[15] In an experimental study Doob and Kirshenbaum[16] found that mock jurors informed of a defendants previous convictions were significantly more likely to find the defendant guilty  than those unaware of the defendants antecedents. Lloyd-Bostock also claimed the results of her experiment were a ‘clear’ confirmation of a ‘prejudicial effect’ by mock jurors when they learned of previous convictions.[17] To the contrary, Nunez[18] found the effect was tempered by juror deliberations and Laudan suggested that jurors might well be capable of separating past from current guilt and that we may well be doing them a disservice.[19]  Evidence of bad character cannot be used simply to reinforce a weak case, or to prejudice the minds of a jury against a defendant. A defendant’s previous convictions actually tells us very little of their character, they may have been wrongly convicted, they may have pleaded guilty because they were offered an attractive plea bargain or they simply may have made a guilty plea rather than risk a heftier conviction at trial. It is for this reason that previous convictions should not carry much weight, however, it is not just previous convictions that are used as bad character. In R v Olu & Others[20] the court of appeal claimed that cautions are only given to defendants that admit their guilt. Therefore accepting a caution could be considered a confession. Acquittals and accusations have been used as evidence of bad character[21] but fixed penalty notices were  held inadmissible in R v Hamer[22] because fixed penalty notices were different to cautions owing to the lack of admission of an offence. In R v Weir[23] it was held that a caution could be used as evidence of propensity, despite relating to a minor offence. May argues that cautions should not have a negative impact on the question of a person’s good character.[24] However, s 66 (5) (a) and (b) of the Crime and Disorder Act 1998 states that any youth warning or reprimand ‘may be cited in criminal proceedings…in the same circumstances as a conviction’.[25] Cautions, alleged offences and accusations are quite distinct from a conviction, an out of court admission should be regarded as hearsay, and in the interests of justice, such hearsay should remain excluded. In the absence of a conviction, the route and justification for admitting evidence should be scrutinised with care.[26]

A defendant’s criminal record can still be be adduced by the prosecution via gateway (g) to dent his credibility if he makes an attack upon another’s character or a co-defendant, or via gateway (e) if he uses his defence to undermine that of a co-defendant or via gate way (d) to show that the defendant has a propensity to be untruthful. The person whose character is attacked does not need to be a witness, a person whose hearsay statement is admitted in evidence, or even a named person. Where the court determines that an attack has taken place, evidence of the defendant’s bad character becomes admissible, but only by the prosecution,[27] whether or not the defendant even gives evidence. In R v Clarke [28]the defendant was prosecuted for a sexual offence on a minor. His defence was that the minor had lied because there had been hostility between them. The attack on the victims’ character enabled the prosecution to admit his previous convictions via gateway (g) despite them being for such dissimilar offences as robbery and motor vehicle offences. This may be important in a murder case, for example, when previous convictions for offences involving aggression or violence could be admitted to show the defendant has the propensity to be violent or aggressive, but how many times must an aggressive or violent offence be committed before it can be used to show evidence of propensity? Just because it has been committed once does not show evidence of a habitual behaviour. However, in R v Brown[29] a single conviction for robbery was considered sufficient for propensity and again in R v Kamara[30]witha conviction for possession of drugs. The Court of Appeal has previously quashed rape convictions because the jury was informed of the defendant’s one previous rape conviction despite this showing that the defendant has a propensity for non- consensual sexual intercourse or  a ‘tendency towards unusual behaviour’[31] or similar behaviour to the offence alleged. It could be argued that even having such a propensity makes it no more likely that the defendant is guilty of the offence alleged. In joint enterprise if two defendants are on trial for murder. One without previous convictions (A), one with a history of violent offences (B). If (A) actually committed the offence but testifies it was (B), the jury may decide that (B) has the propensity to commit the offence, resulting in the unfair conviction of (B).[32]  Finding propensity is only one element in the determination of guilt, it is vitally important that it is considered with all other evidence, including what the defendant says about the previous conviction, whether the conviction is stale, and the gravity and relevancy of the offence. According to Section 101 (4) CJA 2003 the court must also have regard to the length of time between the previous crime and the crime under consideration. Evidence may not be admissible even if it is relevant to the proceedings, if the defence can prove that there was a sufficient lapse of time between the occurrence of the facts and the current allegations, as it would be unjust to admit bad character evidence under these circumstances. The mere existence of a previous conviction is not conclusive of guilt therefore caution must be exercised to ensure evidence of a criminal history presented to the jury is accurate and reliable. If it is incorrect and the defendant denies the history, the jury may conclude that the history is correct and the defendant dishonest.[33] The court can negate unfairness by discharging the jury[34] but in R v Mahil[35] the Court of Appeal stated that ‘a very high degree of necessity is required before a jury is discharged’. Caution must also be exercised by police not to round up suspects in cases in which the suspect is unknown by arresting those with a criminal history consisting of offences similar to that committed.

Under gateway (f) if the court is satisfied that the defendant is responsible for making an express or implied assertion to give the court a false or misleading impression about him, then evidence of his bad character will be admissible. A false impression can be created by conduct other than the giving of evidence,[36] for example a homeless defendant of bad character who attends trial wearing a suit may constitute the giving of a false impression that he is a man of good character, allowing his bad character to be revealed to the court. This may be considered unfair because the defendant may have simply worn a suit to court on the day or behaved differently out of respect for the formality of the courts.

There are safeguards in place, for example the courts must not admit evidence under gateways (d) or (g) if it appears the evidence would have an adverse effect on proceedings. However, gateways (d) and (g) are the only two gateways that have the exclusion of fairness. Gateway (a) states all parties must agree evidence is admissible. Trial judges have no discretion to refuse to admit admissible evidence but they must exercise their discretion under s 78 PACE[37] to protect defendants and ensure that bad character evidence is not admitted as a matter of routine, infringing the defendants’ right to a fair trial.[38] Judges in summing up should warn juries against placing undue reliance upon previous convictions, they can also make a ‘vye’ direction which brings the defendants good character to the attention of the jury. However, it is the jurors’ prerogative to ignore the judge’s instructions and directions if they feel it conflicts with their perception of a fair outcome. In R v Campbell the quashing of a conviction owing to a bad character direction was described by Lord Philips CJ as a ‘lamen­table state of affairs’.  In R v Hanson and Others[39] the court stated, ‘Parliaments purpose in the legislation was to assist in the evidence based conviction of the guilty and not putting those who were not guilty at risk of conviction by prejudice’. The Criminal Procedure (Amendment) Rules 2016 recently came into force[40] introducing new rules about giving notice where a defendant intends to refer to his or her own bad character during a trial.[41] Its effects will have to be seen.

In conclusion, the gateways of the CJA are complex, they allow judges and juries to decide the fate of criminal defendants based upon evidence about their personality, previous convictions, allegations, accusations and cautions. Within the judiciary there appears to be confusion regarding what exactly amounts to bad character and difficulties distinguishing between bad character evidence that has value and that which may bias the juror against the accused. Judges vary in their sympathy towards defendants, their screening of bad character evidence, instructions to jurors regarding probative value and even in their clarification of the explanation given when warning jurors regarding placing undue reliance upon previous convictions. Juries also vary in their sympathies and their capabilities of understanding the complexities of a criminal trial, including, ‘innocent until proven guilty’.[42] There is no statutory definition of ‘reprehensible behaviour’ or ‘misconduct’, there is also a lack of consistency with propensity which allows gateways to be expanded, perhaps beyond their limits. Our system is an adversarial one which promotes competition between prosecution and defence. Both parties want to win, if this is by introducing bad character evidence inadvertently it is impossible to erase this from the minds of jurors. It is adverse to fairness to rebalance the process in favour of either party by allowing evidence which may have previously been inadmissible to now be admitted via any one of seven gateways. This allows more bad character evidence into court enabling more offenders to be convicted and imprisoned. The CJA is a nightmare of interpretation[43]  providing the court with too much power to vary requirements allowing too much vagueness to the detriment of defendants. It must therefore be concluded that the gateways for the admission of defendants’ bad character evidence are not fair in every case and further reform is necessary.

Bibliography

Legislation

• The Police and Criminal Evidence Act 1984
• The Criminal Procedure (Amendment) Rules 2016
• The Human Rights Act 1998
• The Criminal Justice Act 2003
• The Crime and Disorder Act 1998

Cases

• R v Brown [2011]EWCA Crim 1636
• R v Campbell [2007] EWCA Crim 1472
• R v Chohan [2005] EWCA Crim 1813
• R v Clarke [2011] EWCA Crim 939
• R v Hamer [2010] WLR (D) 235
• R v Hanson and others [2005] EWCA Crim 824
• R v Hunter and Others [2015] EWCA Crim 631
• R v Kamara [2011] EWCA Crim 1146
• R v M [2012] EWCA Crim 1588
• R v Mahil [2013] EWCA Crim 673
• R v Manister [2006] 1 Cr App R 19; [2005] EWCA Crim 2866
• R v Mc Kenzie [2008] EWCA Crim 758
• R v Nguyen [2008] EWCA Crim 585
• R v Olu & Others [2010] EWCA Crim 2975
• R v Tirnaveanu [2007] EWCA Crim 1239
• R v Weir [2005] EWCA Crim 2866
• Z [2002] 2 AC 483.

Books

• Emson R, Evidence (5^th edn, Palgrave Macmillan 2010)
• Keane A and Mc Keown The Modern Law of Evidence (10^th edn, OUP 2014)
• Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006)
• Mountbatten Yearbook of Legal Studies. (Southampton Solent University, Southampton 2007)
• Taylor R, Wasik M and Leng R, Blackstones Guide to The Criminal Justice Act 2003 (OUP 2004)

Journals

• Branston G, ‘A Reprehensible use of Cautions As Bad Character Evidence?’ [2015] Crim LR 8
• Doob A.N. and Kirshenbaum H.M, ‘Some Empirical Evidence on the Effect of s12 of the Canada Evidence Act Upon the Accused’. (1972) Criminal Law Quarterly 15
• Elliott D. W, ‘Cut Throat Tactics; the Freedom of an Accused to Prejudice a Co-accused’ (1991) Crim LR 5
• Laudan L, ‘Is Reasonable Doubt Reasonable? ’ Legal Theory 9 (4) Dec 2003
• London K and Nunez N, ‘The Effect of Jury Deliberation on Jurors Propensity to Disregard Inadmissibility of Evidence’ (2000) Journal of Applied Psychology 85(6) 932
• Lloyd Bostock S,’The Effects on Lay Magistrates of Hearing that the Defendant is of Good Character’ [2006] Crim LR 189.
• Lloyd-Bostock S,’ The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study’, (2000) Crim LR 734
• May R, ‘The Legal Effect of a Police Caution’ [1997] Crim LR 491
• Mitchell J F and Borschard D, ‘The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, Is Either of Them Safe’ 2006 L Rev 237-265
• Munday R, ‘Single- act Propensity’ [2010] Journal of Criminal Law 74 (2) 127
• Munday R, ‘What Constitutes “Other Reprehensible Behaviour” Under the Bad Character Provisions of the Criminal Justice Act 2003?’ (2005) Crim LR Jan 24
• Parsons S, ‘The Criminal Justice Act 2003- Do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ Mountbatten yearbook of Legal Studies  (Southhampton Solent University, 2007)
• Spencer J.R, ‘Evidence of Bad Character- Where We Are Today’ (2014) Archbold Review 7
• Tapper C, ‘Criminal Justice Act 2003: Part 3: Evidence of Bad Character’ (2004) Crim LR 533

Websites

• <http://www.theguardian.com/uk/2004/oct/26/ukcrime.immigrationpolicy> accessed April 5 2016.
• <http://www.legislation.gov.uk/ukpga/2003/44/contents>accessed  March 25 2016.

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[1] Simon Parsons, ‘The Criminal Justice Act 2003- Do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice? Mountbatten yearbook of legal studies (Southampton Solent University, Southampton 2007).

[2] [2007] EWCA Crim 1472.

[3] It also imposed statutory restrictions, for the first time, on the ability of defence lawyers to cross-examine prosecution witnesses about their own criminal records.

[4] J.R. Spencer, ‘Evidence of Bad Character- Where We Are Today’ [2014] Archbold Review 7.

[5] Under gateway (b).

[6] Under Section 101(3) CJA 2003.

[7] [2015] EWCA Crim 631

[8] [2005] EWCA Crim 1813.

[9] The Explanatory note to the 2003 Act makes it clear that the definition of bad character is broad. In R v Tirnaveanu [2007] EWCA Crim 1239 the Court of Appeal observed that s 98 and 112(1) create a far reaching definition of bad character.

[10] See R v Mc Kenzie [2008] EWCA Crim 758. The court emphasised that bad character or reprehensible behaviour must not attract undue attention.

[11]  J.R. Spencer, ‘Evidence of Bad Character- Where We Are Today’ [2014] Archbold Review.

[12] [2006] 1 Cr App R 19; [2005] EWCA Crim 2866.

[13] Colin Tapper, ‘Criminal Justice Act 2003: Part 3: Evidence of Bad Character’, [2004] Crim LR 533 at 540.

[14] Larry Laudan, ‘Is Reasonable Doubt Reasonable?’ Legal Theory 9 (4) Dec 2003 p295.

[15] Barry Hugill a spokesman for the human rights group Liberty. http://www.theguardian.com/uk/2004/oct/26/ukcrime.immigrationpolicy

[16] A.N.Doob and H.M Kirshenbaum , ‘Some Empirical Evidence on the Effect of s12 of the Canada Evidence Act upon the Accused’ (1972) Criminal Law Quarterly 15, 88-96.

[17] Sally Lloyd-Bostock, ‘The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study’, (2000) Crim LR 734, 743

[18] K London and N Nunez, ‘The Effect of Jury Deliberation on Jurors Propensity to Disregard Inadmissibility of Evidence’ (2000) Journal of Applied Psychology 85(6) 932.

[19] Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge University Press, 2006).

[20] [2010] EWCA Crim 2975. Olu claimed to have accepted the caution because he had been told that if he did so he would not have to go into a cell, he would not need a solicitor and he could be on his way. 

[21] See Z [2002] 2 AC 483 and R v Nguyen [2008] EWCA Crim 585.

[22] [2010] WLR (D) 235. A Fixed Penalty Notice could not be regarded as evidence which impugned the character of the defendant or be admitted as such.

[23] [2005] EWCA Crim 2866.

[24] R. May, ‘The Legal Effect of a Police Caution’ [1997] Crim LR 491.

[25] There is no equivalent provision for adult cautions.

[26] Gareth Branston, ‘A Reprehensible Use of Cautions as Bad Character Evidence?’ CLR 2015.

[27] Section 106(3).

[28][2011] EWCA Crim 939.

[29][2011] EWCA Crim 1636.

[30][2011] EWCA Crim 1146.

[31] L.J. Rose in R v Hanson and others [2005] EWCA Crim 82.

[32] See D.W. Elliott, ‘Cut Throat Tactics; the Freedom of an Accused to Prejudice a Co-accused’ (1991)  Crim LR 5.

[33] See R v M [2012] EWCA Crim 1588.

[34]Where the evidence of bad character is admitted under section 101 paragraphs (c) to (g) and proves to be so contaminated that any resulting conviction would be unsafe, the court may direct an acquittal or discharge the jury at any time after the close of the prosecution case under section 107 (3) (c) (ii) Criminal Justice Act 2003.

[35] [2013] EWCA Crim 673.

[36] Section 105(4).

[37] Police and Criminal Evidence Act 1984.

[38] Under Article 6 of the European Convention of Human Rights.

[39] [2005] EWCA Crim 824.

[40] 4^th April 2016.

[41] Part 21.

[42] Mitchell J Frank and Dawn Borschard, ‘The Silent Criminal Defendant and the Presumption of Innocence: In the Hands of Real Jurors, Is Either of Them Safe?’ (2006) L  Rev 237-265

[43] Roderick Munday, ‘What Constitutes “Other Reprehensible behaviour” Under the Bad Character Provisions of the Criminal Justice Act 2003?’ (2005) Crim LR Jan , 24