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Criminal Justice Act 2003

‘Parliament's purpose in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice' (R v Hanson [2005] 2 Cr App R 21, Rose LJ at [4]).

In light of the above statement, evaluate the provisions of the Criminal Justice Act 2003, and the relevant case law under the Act, relating to attack on another's character.

Sections 98 to 113 of the Criminal Justice Act 2003 (CJA) represent a significant change from the accepted common law approach to the methods by which bad character evidence could be introduced in the course of criminal trial proceedings. Notwithstanding the criticisms directed against the legislation from various quarters, an objective appraisal of the provisions themselves and the judicial interpretations provided since the passage of the CJA confirms that to a large degree, the observations of Rose LJ noted in the title as to Parliament's purpose are accurate. As importantly, the evidentiary regime established in the CJA strikes a fair and fundamental balance between the principles of reasonable doubt, the right of the defendant to make full answer and defence to a criminal charge, and the societal interest in the effective prosecution of crime.

This paper commences with an overview of the most important changes to the previous law concerning bad character that are now established by the CJA. The procedure contemplated by the joint effect of the CJA provisions and the Criminal Procedure Rules (CPR) is also considered and evaluated. The paper then provides an examination of the principles that support the admissibility of bad character evidence concerning defendant and non-defendant witnesses, with the seven specific ‘gateways' for such evidence as defined by the CJA given specific consideration. The cases decided since 2004 and relevant academic commentaries are also highlighted.

There are three particular aspects to the CJA regime that guide the present analysis and require specific attention in this regard. These are:

  1. The abolition of the common law rules that previously governed such admissibility as well as the prior rules provided in the Criminal Evidence Act 1898 concerning the cross-examination of defendants as to character

  2. Evidence of bad character concerning a non-defendant is admissible by leave of the court on specific grounds

  3. Evidence of the defendant's bad character is generally admissible on a wider range of prospective trial issues, by virtue of the seven specific ‘gateways' established by the CJA

There is no question that the Criminal Justice Act 2003, Part 11 represents a fundamental alteration of prior English law concerning the general admissibility of bad character evidence. Placed in an admittedly restricted nutshell, the prior law confirmed that the prosecution could not adduce evidence of the defendant's bad character (other than evidence concerning the offence charged or offences against the administration of justice committed in relation to the offence charged). The prosecution was also prohibited from leading evidence of the defendant's propensity to commit criminal acts even if relevant to the charge. In this way, the previous bad character evidence rules were an exception to the general rule that all relevant evidence is admissible in a criminal trial. The traditional caveat advanced in this respect that justified the exclusion of evidence of bad character was that it is often irrelevant to the proof of a defendant's guilt; insofar as it is relevant, its prejudicial effect outweighs its probative value.

The reworking of the law in the CJA commences with the definition of bad character provided at s.98 and s.112. There are two specific ingredients in the definition. Bad character evidence may include any evidence of misconduct or a “disposition” towards misconduct; it may also include misconduct established through evidence of the “…commission of an offence or other reprehensible conduct”.

Subject to special procedures that governed the admissibility of ‘similar fact' evidence that also may have provided the basis for bad character evidence to be admitted against a defendant, the case law that has subsequently interpreted the admittedly broad expressions ‘misconduct' and ‘reprehensible conduct' as employed in the CJA has given each phrase a sensible meaning. If the entire purpose of criminal evidence rules may be summarised as achieving the balance between private rights to full defence and the interest of the state as contended in the paper's opening paragraph, the case law achieves this purpose. In Weir, the Court of Appeal determined that the propensity to commit crime on the part of an accused could be proven with reference to the defendant's commission of other crimes, but the prosecution could establish propensity by other means. The ‘other means' were fleshed out in the other case law, including Renda, where the Court ruled that a prosecution witness may be cross-examined about incidents of misconduct known to the defendant which had never themselves been the subject of a criminal charge.

It is contended that a greater breadth afforded judicial discretion to admit bad character does not improperly impair the defence so much as it ensures a greater range of relevant evidence may be considered by the court. This discretion is placed within a procedural construct that has proven useful in the relatively brief life of the CJA provisions. The prosecution is required to provide the defendant a minimum of 14 days notice of its intention to introduce bad character evidence at trial; the defendant has the opportunity to object prior to the tendering of the proposed evidence and a ruling will be obtained accordingly. The procedure applies to bad character evidence proposed by the prosecution and such evidence a defendant proposes to call with respect to a co-defendant.

These rules achieve two important results not necessarily guaranteed under the former regime where applications of this nature were regularly permitted to be made by trail judges within the trial proper. The defence will not be surprised or in any way caught unawares by the prosecution application to rely on bad character evidence. In a system of justice that historically exhibited reluctance to provide full disclosure of the entire case relied upon by the prosecution in advance of trial, this Rule is a very positive development that promotes the overarching principle of procedural fairness. The secondary benefit achieved through this procedure is a more focused trial. Jurors and witnesses ought to expect that they shall attend a proceeding that will not be diverted from the orderly calling of evidence by virtue of unexpected motions brought to resolve questions of admissibility that can be resolved efficiently at the pre-trial application stage.

Further, the notice provisions provided in the CJA and the Rules of Criminal Procedure permit all parties to make appropriate enquiries in advance of trial concerning the intended evidence. In this important sense, the relevance of the evidence can be buttressed or challenged in a thorough and effective way where appropriate.

The distinction in the treatment of bad character evidence that pertains to non-defendants and defendants is confirmed in s. 100 CJA. It is important to note that the often problematic evidentiary rules concerning the cross-examination of a sexual assault complainant are excluded from the operation of the CJA in this respect. It is contended that this exception is the one significant difficulty revealed by the revisions. The special provisions that were enacted to govern the admissibility of prior sexual history evidence have attracted significant attention. For example, there is a legitimate need to ensure that a defendant in a sexual offence prosecution is not permitted to equate the fact that a woman did not make complaint concerning his conduct at an earlier time with the conclusion that the present complaint must be false. Criminal trials should not be determined on the basis of ‘rape myths' or stereotypical notions of how a rape victim ought to behave. However, it would be preferable that all criminal evidence be evaluated using the same criteria. The CJA framework is entirely suited to prevent the introduction of such evidence when the ‘gateway' principles are applied; special consideration for specific offences undermines the cohesiveness of the law.

In all other respects, the language used in s. 100 section provides the clearest possible demarcation between the permitted approaches to the tendering of non-defendant bad character evidence. Only where the proposed evidence is important explanatory evidence, or where the evidence is directed to an issue in the proceedings and it is of substantial importance to the presentation of the case as a whole may it be admitted. The section provides amplification on the definition of the phrase ‘important explanatory evidence' as evidence without which the jury would find the case difficult or impossible to understand (all emphasis added).

A semantic criticism may be made that the use of ‘difficult' and ‘impossible' in the same definitional expression is clumsy and may lead to inconsistency given the different each term provides as a condition precedent to admissibility. However, the underlying philosophy inherent in the section is sound. Bad character evidence that relates to non-defendant's ought to be pre-screened by the trial judge to ensure its relevance and to give greater assurance that the trial process is not distracted from the consideration of important evidence. The subsequent case law has properly limited ‘misconduct' evidence to exclude an arrest on a criminal charge; the section imposes a higher test with respect to the introduction of a non-defendant's bad character than does the test for the introduction of a defendant's bad character.

Prospective bad character evidence concerning a defendant is potentially admissible through one or more of the seven procedural ‘gateways' established in s. 101 (1) CJA. Each provision has a valid trial fairness objective; for example, bad character admitted on consent, or such evidence led to rebut a defence attack on another person's character are as rooted in common sense as they are fair adjudicative principles. The gateways that restate the importance of explanatory evidence to give a fact situation appropriate context, and the traditional relevance / probative value versus prejudicial test developed in the common law warrant further examination in this regard. These are the most important and the most litigated provisions in the gateway structure.

Edwards provides a useful example of how a court will assess how important background evidence must be to the understanding of the entire case. In this decision, the Court of Appeal confirmed that for a jury to properly understand the nuance of a heroin trafficking transaction, evidence could be called by the prosecution to explain how such transactions proceeded if they were to understand why a witness said that they could identify the defendant.

Relevance to an important matter between the defence and the prosecution as described in s. 101 (1) (d) CJA is not restricted to the defendant's alleged propensity to commit the subject crime or crime generally. The provision represents a barrier to the prosecution to call such evidence if it is not central to its chief purpose. For example, whilst the previous common law based limitations on the tendering of a defendant's criminal record was often regarded as highly prejudicial to the prosecution, the revisions enacted in the CJA provisions do not countenance the wholesale introduction of such evidence, notwithstanding how attractive the evidence might be to the prosecution in the context of its desire to make the most of its position.

Campbell is a decision that underscores why the CJA provisions strike the appropriate balance between defendant interests and the jury's ability to fairly decide the case. The trial judge in Campbell permitted the jury to hear evidence of the defendant's two prior convictions without permitting them to hear any other background into those earlier events. It is not surprising that after the judge's charge to the jury, this question was asked by the jury, “What was the significance of revealing the defendant's two previous assault convictions? Anything else we should know?''The introduction of a criminal conviction alone absent information that provides context to the events that led to the previous entry may result in a skewed understanding of the defendant that prejudices the defence position; the approved course by virtue of Campbell is that the jury should be warned not to attach too much weight to bad character evidence, let alone conclude that the defendant is guilty simply because of his bad character.

The substantial probative value requirement for bad character evidence as confirmed in s. 101 (1) (e) reinforces the traditional bedrock proposition of criminal evidence admissibility – judges must ensure that the probative value exceeds its prejudicial effect. By placing this important principle within the seven avenue evidentiary gateway, the CJA achieves a comprehensive effect concerning the admissibility and appropriate evaluation of bad character evidence that the prior pastiche of common law principles and circumstance driven exceptions could never achieve.

When all of the provisions discussed above are taken together, a clear picture is drawn of the over all effect of the CJA with respect to the admissibility of bad character evidence. The law has been made more certain, but not at the expense of trial or procedural fairness. Relevance and probative value are given their due, and the ability of the defence to counter evidence that passes the CJA standards is unimpaired by its approach as contained in sections 98 to 113.

Bibliography

Statutes and Rules considered

Canadian Charter of Rights and Freedoms 1982

Canada Evidence Act 1990

Criminal Justice Act 2003, ss. 98 -113

Criminal Procedure Rules, Part 35

Cases and reports considered A, R v [2001] 3 All ER 1

Boardman v DPP [1975] AC 421

Bovell and Dowds, R v [2005] EWCA Crim 1091

Campbell, R v [2007] 1 WLR 2798

Corbett , R. v. (1988) 41 C.C.C. (3d) 385

Edwards, Fysh Duggan & Chohan, R v [2005] EWCA Crim 1813

Hanson, Gilmore and Pickstone, R v [2005] EWCA Crim 824

Highton, Van Nguyen and Carp, R v [2005] EWCA Crim 1985

Humphris, R v

[2005] EWCA Crim 2030

Maxwell v DPP [1935] AC 309

O'Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

Renda & Others, R v [2005] EWCA Crim 2826

Weir & Others, R v [2005] EWCA Crim 2866

Authorities considered

Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e London: Cavendish Routledge

Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>

Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003' International Journal of Evidence and Proof 8, 4: 233-239

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 - The End of an Era?' Howard Journal of Criminal Justice 45, 1: 71-73

O'Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives' Warwick School of Law Research (2005) 121 LQR 481-510

Spencer, J.R. (2006). Evidence of Bad Character. Oxford: Hart Publishing.

E.g. Fowles, Tony (2006) ‘Counterblast: The Criminal Justice Act 2003 - The End of an Era?' Howard Journal of Criminal Justice 45, 1: 71-73; O'Brian, William E. (2009) ‘The Right of Confrontation: US and European Perspectives' Warwick School of Law Research (2005) 121 LQR 481-510

The Bibliography reveals a large number of decisions in this area that were rendered between 2005 and 2007, the time frame within which the first trial decisions that applied the new CJA procedures were considered by the Court of Appeal.

S.99 (1) CJA

S.100

S. 101(1); the ‘gateways' are subsections (a) through (g)

Ss.98 to 113, CJA

E.g. Escaping lawful custody or resisting arrest

Maxwell v DPP [1935] AC 309

; Lord Hailsham described the contests between prosecution and defence over propensity evidence as having left a “pitted battlefield” ( DPP v Boardman [1975] AC 421, 445), a testament to the historical importance of this issue in English law that underscores the significance of the CJA provisions

Law Commission Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(2)

Ss. 98, 112

Similar fact evidence admissibility (so called) was subject to the common law rules confirmed in Boardman v DPP [1975] AC 421, where the fundamental evidentiary test of prejudicial effect versus probative value applicable to all types of evidence generally governed similar fact admissibility

Weir & Others, R v [2005] EWCA Crim 2866

Renda & Others, R v [2005] EWCA Crim 2826

By virtue of the combined operation of ss. 111(2), CJA and Part 35, Rules of Criminal Procedure

ibid

Ibid; see Hanson, [2005] EWCA Crim 824, para 117

Other Anglo-American jurisdictions such as Canada opted to enshrine full disclosure and prosecutorial notice in bad character evidence applications in their laws some years ago. See Canadian Charter of Rights and Freedoms, s.7, the Canada Evidence Act, s. 12 and the leading case of Corbett (1988), 41 C.C.C. (3d) 385 at 399-401

See Humphris [2005] EWCA Crim 2030; Edwards [2005] EWCA Crim 1813; Bovell and Dowds [2005] EWCA Crim 1091, all cases that reinforce the relationship between procedural fairness and the s.111(2) CJA provisions

S. 41 Youth Justice and Criminal Evidence Act; see also Durston, Gregory (2004) ‘Bad character evidence and non-party witnesses under the Criminal Justice Act 2003' International Journal of Evidence and Proof 8, 4: 233-239

R v A [2001] 3 All ER 1

ibid

Weir, para 73, 74

Ibid, 36; see also O'Brien v Chief Constable of South Wales Police [2005] 2 WLR 1038

S.101 (1) (a)

S.101 (g)

S. 101 (c); the traditional rules concerning res gestae statements will form a part of this consideration

Ss. 101 (d) and (e), respectively

[2005] EWCA Crim 1813, para 70, 71

Ibid; an important weakness in the prior law is discussed in Crown Prosecution Service (2008). Bad Character Evidence [online] Retrieved March 15, 2010 at:< http://www.cps.gov.uk/legal/a_to_c/bad_character_evidence/>, at part 2 (Principle); the prior law did not define what constituted background

See e.g. Highton, Van Nguyen and Carp [2005] EWCA Crim 1985; see also generally Spencer, J.R. (2006). Evidence of Bad Character, c.1, 2

See Campbell [2007] 1 WLR 2798

Ibid

Ibid, para 14

Ibid, para 45

Boardman , supra; see also Allen, Christopher (2006) Evidence Q&A 2005-2006 6/e

Spencer, 4.20, 4.29

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