Bad Persona Evidence: Then and Now
- Ur v BrownEWCA Crim 1636
- R versus Campbell EWCA Crim 1472
- R versus Chohan EWCA Crim 1813
- R v Clarke EWCA Crim 939
- R sixth is v Hamer WLR (D) 235
- R sixth is v Hanson and others EWCA Crim 824
- R v Hunter and Others EWCA Crim 631
- R versus Kamara EWCA Crim 1146
- R v M EWCA Crim 1588
- R versus Mahil EWCA Crim 673
- R sixth is v Manister 1 Cr App R nineteen; EWCA Crim 2866
- R v Mc Kenzie EWCA Crim 758
- Ur v Nguyen EWCA Crim 585
- Ur v Olu & Others EWCA Crim 2975
- L v Tirnaveanu EWCA Crim 1239
- L v Weir EWCA Crim 2866
- Z . 2 ALTERNATING CURRENT 483.
2 This law
The admissibility of evidence of the prior misconduct with the defendant within a criminal trial has for over a hundred years been governed by a sophisticated yarn of statute and common legislation. This assortment of rules underneath were afterwards to gain lawful recognition and a comprehensive affirmation on the rules of proof on personality evidence was appeared in the Criminal Evidence Act 1898 whose section 1 generally dealt with the competence of witnesses in criminal instances. The approach regarding non-party witnesses and defendant witness was significantly different while using latter getting essentially exclusionary whilst the former was typically inclusionary.
The Criminal Justice Act 2003 makes important changes to what the law states relating to the admissibility of bad character evidence as regards both defendant and non-defendant witnesses. Aside from detailing the grounds under which in turn bad personality evidence could possibly be proffered, the law also features certainty into the principles which usually govern this area of the regulation by abolishing the common legislation rules some of which were challenging and weren’t getting precision. While in some aspects the things that may come up for vindicability have been increased, these alterations are accompanied with fairly far-reaching procedural and substantive safe guards to ensure that evidence submitted has substantial probative value instead of its prejudicial character. The rules cannot certainly be typified simply to be exclusionary or perhaps inclusionary as they combine both elements. However , the new rules should support secure the defendant’s right to a fair trial as provided within the Human Rights Act 98 as well as the Euro Convention on Human Privileges. It is difficult at this time to predict how the process of law will interpret and apply the new conditions. Obviously, a single hopes the fact that courts will not produce case law that complicates the already intensive rules underneath the Criminal Justice Act the year 2003.
A Non-defendant witnesses
Section 100 permits non-defendants’ bad character to get adduced in three separate situations. First of all, it will be confessed where each agree to the evidence being adduced. Secondly, it might be admitted whether it is informative evidence’ and ultimately, under section 100(1)(b), this kind of evidence can even be adduced if it has significant probative worth in relation to a thing that is both equally a in issue in the process, and is of substantial importance in the circumstance of the case overall. ‘ Inside the latter two gateways, poor character evidence may only always be adduced while using leave of court.
As a result, the new statutory scheme eliminates the the almost carte blanche approach that was allowable under the outdated rules. Whereas the the courtroom did not have got much control of the participation of non-defendants’ bad persona evidence, the newest rules places the courtroom at the middle of the concerns by necessitating them to scholarhip leave unless of course the rapprochement of such evidence has already been agreed.
W Defendant witnesses
Section information introduces even further radical changes. Whilst under section 1(f)(ii) of the Lawbreaker Evidence Act 1898, the defendant was required to put his character in issue ahead of being cross examined upon it, section info dispenses with this requirement and enables the defence to present bad character evidence, not only upon get across examination, although even throughout the giving of proof in primary as long as such evidence meets the participation requirements beneath section information.
According to the conditions of section 101, poor character proof is adoptable in any with the following cases:
- In which the defence as well as the prosecution consent to the evidence staying admissible
- The evidence is adduced by the defendant himself or is given in reply to a question asked by him in mix examination and intended to elicit it
- The evidence provides important informative value
- It has substantial probative benefit in relation to an essential matter in issue between your defendant and a co-defendant
- It really is relevant to an important matter in issue between defendant and the prosecution
- If the accused has made an attack against another person’s character
- If it is evidence to improve a false impression given by the defendant
These categories of inclusiveness are further more explained by the provisions of sections 102-106 which boost the instances of admissibility thorough above. It really is clear why these grounds of admissibility are certainly not exclusionary of each other in fact it is possible for evidence of bad character to be adduced under a number of of the recommended grounds.
To find the present discussion, it is noteworthy that the circumstances for lack of the protect by the defendant under the 1st limb of section 1(f)(ii) have been maintained by the Felony Justice Work 2003 underneath section 101(b). Thus, the defendant continues to be as prone to cross-examination under the new rules as he was under the Lawbreaker Evidence Act 1898.
However , the Lawbreaker Justice Action introduces one more element. Section 101(b) must be read along with the provisions of sections 101(f) and one zero five which permit the prosecution to acquire evidence designed to correct a false impression. As a result, whilst underneath the Criminal Evidence Act it was specifically required that the accused put their character in issue just before he lost the safeguard, under the new rules simple assertion of circumstances which in turn give a misconception may lead to the defendant getting cross-examined on his bad personality. Although the evidence allowed beneath these provisions is limited to correcting the false impression made by the defendant’s assertion, it really is clear that he may even now lose the shield without having putting his character in issue yet merely as they created a misconception.
Another primary change launched by the Criminal Justice Action 2003 is that it mixtures the basic principle that persona is indivisible because underneath section info bad persona evidence is merely admissible only with regard to the reasons detailed below that section. The loss of a shield would not provide the criminal prosecution une planisphblanche to proffer awful character proof without restriction. If the criminal prosecution oversteps the boundaries and the court features the view the evidence will certainly prejudice the defendant’s directly to a fair trial, it has discretion under section 101(3) to disallow the evidence. Thus, very much to God Humphrey’s discompose, it is possible within the new regulation to put the defendant’s character’.
a few The new rules
The Legal Justice Action 2003 produces radical adjustments by abolishing the common law rules governing the inclusiveness evidence of poor character in criminal studies. The Criminal Justice Act 2003 introduces very revolutionary changes to what the law states relating to the admission of evidence of the accused’s negative character. This effectively reduces the principles that the Court in Selvey v Director of Public Prosecutions and R v Dunkley felt had been such an intrinsic part of The english language law that they could not end up being modified.
Considering that the abolition likewise affects instances which determine what constitutes bad character, section 98 attempts to delineate the particular up a person’s bad persona. The section states that evidence of bad character constitutes evidence of wrong doings or disposition towards wrong doings. The provision excludes from its ambit of bad figure evidence associated with any misconduct in connection with the investigation or perhaps prosecution in the offence. It also excludes these kinds of evidence because has to do with the alleged specifics of the offence with which the defendant is definitely charged. The rationale for this exemption is that this sort of evidence is definitely admissible anyway as part of the material facts of the watch case and may have been allowed even under the old rules relating to the admissibility of bad persona evidence. Though section 98 does not define what means, it is clear that the provision widens the tour of material bad character evidence as it is not restricted to evidence of basic reputation because was authoritatively stated in L v Rowton.
B Defendant witnesses
Underneath section 1 of the Criminal Facts Act 1898, a person charged and called as being a witness within the Act could hardly be motivated to answer virtually any question tending to show that he is of bad personality or that he had determined or was convicted of any other offence other than that which he had been charged. This kind of injunction against the solicitation of bad character evidence could possibly be lost in case the accused or perhaps by his advocate asked questions with the witnesses pertaining to the prosecution with a view to determine his very own good character or if perhaps he provided evidence of his own very good character.
As a result, the structure provided for by Criminal Facts Act 1898 compelled the accused to resolve questions in relation to his awful character in either of two circumstances: firstly, where defence elicited evidence the fact that defendant features good character, and second; where the defence attacked the smoothness of prosecution witnesses. The evidence of figure, whether adduced by the prosecution or the protection went toward showing the probability the defendant got acted consistently with that during the just to illustrate. The bad figure evidence is intended to show tendency and disposition in the man’s brain towards doing or abstaining from doing the class of crime which he stands chargedTherefore, by adducing evidence of very good character the defendant places his persona in concern, notwithstanding whether he takes the see stand or perhaps not. But if he elects to give data, the bad character evidence as well goes to his credibility being a witness. The most crucial feature from the provision was that the criminal prosecution was not for liberty to cross-examine the defendant about his persona, unless he intentionally threw away the shield provided by the law.
The underlying reason for the exception for the injunction against adducing personality evidence was explained in Maxwell sixth is v Director of Public Prosecutions where Viscount Sankey LC stated that if the accused or his witnesses provide evidence of his own good character, with regards to showing that it is unlikely that he determined the offence charged, this individual raises by using defence a problem as to his good figure so that he might fairly become cross-examined to demonstrate the opposite.
It must be noted that the accused’s character is definitely indivisible. Therefore in 3rd theres r v Winfield Lord Humphreys held that is not a such thing known to each of our procedure as putting half a prisoner’s personality in concern and departing out the partner. ‘ Therefore, once the falsely accused put her or his character in issue, then simply he or she opened the floodgates regarding which usually aspects of their character could be adduced by prosecution. Even though it is rational and good to proffer evidence displaying prior convictions for scams where the falsely accused has devote evidence information tending to display that a person of their character was unlikely to commit the fraud that he have been charged; adducing evidence that is certainly intended to show that he was convicted of assault seems to be somewhat sketchy and could result in unjust and unfair benefits.
The case of R versus Winfield supplies a very very good illustration of those concerns. If so, the defendant was recharged and found doing indecent assault against a lady. In his protection, he called a witness to provide evidence on his exemplary behavior towards ladies and thereby put his character in issue. The criminal prosecution did not wait to cross-examine him on a prior confidence for robbery and the Court docket of Charm seems to have supported the cross-examination because the certainty was quashed on the basis of the inadequacy of corroborative evidence and not to get the improper admission of evidence relating to the previous conviction for theft.
It is apparent from the above examination that the inexhaustible nature of the evidence the fact that prosecution could elicit when the accused had put his character in issue may prejudice the defendant’s reasonable trial. To avoid this, the courts designed rules where they practiced discretion whether or not to allow proof of bad personality whose probative value was outweighed simply by its prejudicial character. In Selvey sixth is v Director of Public Prosecutions the question came about directly whether or not the trial judge had a discernment under section 1(f)(ii) to preclude the prosecution from cross-examining the accused about certain preceding convictions once the shield is lost. It absolutely was held that such discretion does exist and that it must be exercised where it would be unfairly prejudicial to allow all previous convictions to get put to the accused.
The positioning regarding the protecting of fairness was bolstered by the issuance by the Courtroom of Benefit of a Practice Direction which recommended that reference to spent convictions must be avoided wherever possible in legal courts, however the Rehabilitation of Offenders Act on which the Direction was primarily based did not especially extend to criminal proceedings.
However , the cases continued to show different standards staying adopted in cases of previous vand bad character proof generally and so the Law Percentage was tasked to undertake a comprehensive review of the law and help to make proposals which would motivate fairness in criminal studies. The result was the Criminal Proper rights Act the year 2003.