Introduction:

The good and bad character evidence provisions are contained within the Criminal Justice Act 2003 (henceforth ‘CJA 2003’) [1]. A two-strand argument will be contended. Firstly, it will be argued that evidence of a defendant’s good character should be admissible under common law rules. Secondly, it will be demonstrated that the provisions of the CJA 2003 relating to admissibility of evidence of a defendant’s bad character strike an incorrect balance between evidential value and prejudice to the accused.

 

Fairness of Admissibility of Defendants’ Good Character Evidence:

Generally, evidence of a defendant’s good character must be confined to evidence of reputation [2]. Under the CJA 2003, section 118(1) transposes the common law rules into statute. Pre-CJA 2003, there were visible difficulties with the admissibility of defendants’ good character. This began in R v Vye, where LCJ Taylor elicited the two-limb test for a good character direction [3]. Firstly, a direction as to a defendant’s credibility if a defendant has satisfied certain criteria, and secondly, a direction as to propensity, where the tribunal of law must make direction as to whether good character is relevant to tribunal of fact in considering the likelihood of whether a defendant committed the offence.

The ‘Vye Direction’ was further qualified under R v Aziz, where it was held that a “trial judge should never be compelled to give meaningless or absurd directions, or to go through the charade of attributing good character to someone…if he or she considers it an insult to common sense”[4]. Arguably though, the ‘Vye Direction’ was pushed too far in R v Durbin, where the Court of Appeal stretched the principle to being in ‘contravention with Lord Steyn’s ‘absurdity principle’ [5]. However, post-CJA 2003, R v Hunter (Nigel)clarified the position [6]. It was held that the principles of good character evidence had been stretched too far, and Hallett LJ endorsed 3 broad categories of defendant, who will be entitled to various elements of the ‘Vye Direction’. Based upon this re-qualification, the law governing admissibility of defendants’ good character has been brought back to its rightful position. Based on this now established position, evidence of good character should be admissible where it is not “manipulating good character principles to coax trial judges into endorsing the defence case” [7].

 

Provisions of Criminal Justice Act 2003 Relating to Defendants’ Bad Character:

Various provisions of the CJA 2003 relate to admissibility of a defendant’s bad character [8]. Section 98 gives the statutory definition on bad character, stating; ‘references of bad character are evidence of or a disposition towards misconduct, other than evidence which, (1) is about the alleged facts of the current offence charged, or (2) is evidence of misconduct about the offence charged’ [9]. Relating specifically to admissibility of bad character, section 101(1) of the CJA 2003 provides 7 gateways. Evidence is thus only rendered admissible if it fits within these gateways. Lastly, section 112(1) CJA 2003 defines misconduct as ‘the commission of an offence or any other reprehensible behaviour’.

 

Weighing Evidential Value Against Prejudice to the Accused: The Wrong Balance?

The CJA 2003 overruled the Criminal Evidence Act 1898, widening the provisions for when a defendant’s bad character can be placed before the tribunal of fact. Section 98 of the CJA 2003 provides the statutory definition of bad character, with the key element being ‘misconduct’. Section 112(1) of the CJA 2003 defines ‘misconduct’ as ‘reprehensible behaviour’. It must be noted that the statute does not define ‘reprehensible behaviour’. This leads Goudkamp to contend that the CJA 2003 provisions provide “scant guidance as to the precise contours of this pivotal concept” [10]. Clearly, “scant provisions” are not good enough on consideration of the serious consequences arising from an incorrect interpretation of the rules on admissibility of bad character [11].

Furthermore, the “scant provisions” provided by Parliament in relation to their use of the words ‘reprehensible behaviour’ are demonstrated in only one format, the CJA 2003 Explanatory Notes [12]. Here, ‘reprehensible conduct’ is considered as ‘including previous convictions, evidence on concurrent charges and evidence related to offences which have not been charged, or where that person is acquitted’ [13]. This makes it explicitly clear that evidence within a case where a defendant has been acquitted may be utilised for demonstrating their bad character. In R v Harrison, evidence of past acquittals was used to obtain a conviction, and the Court of Appeal upheld this, on the basis that the defendant’s past conduct, despite being acquitted, demonstrated a ‘persistent pattern of previous conduct’, which “lent the acquittal its particular weight in the context of the case” [14]. On this basis, it is argued that section 112(1) of the CJA 2003, and the explanatory notes in relation to the definition of ‘reprehensible conduct’, provide for a wrong balance between evidential value and prejudice to the accused. Evidently, the “very wide” meaning utilised by Parliament in the words ‘reprehensible conduct’ provide for evidence to be admissible where a defendant has been already acquitted, and this is argued as displaying the rules of admissibility of bad character striking the incorrect balance between evidential value and prejudice to the accused [15]. Munday summarises this view, believing “the Explanatory Notes, will unquestionably disadvantage some defendants” [16].

Substantiating this argument, it is argued that gateways (c) and (d) under section 101(1) further the proposition that the CJA 2003 strikes the wrong balance between evidential value and prejudice to the accused. In relation to gateway (c), defined in section 102 of the CJA 2003, it was stated in R v Davis that the court ought to ensure this gateway is not utilised as a means of admitting bad character that should go through other gateways [17]. Evidently, if the courts are governing this approach appropriately, then caution should be exercised in the pursuit of fairness. However, it is argued that this gateway provides manoeuvrability for the prosecution, which may lead to excessive prejudice on the accused in an unfair manner.

Furthering this contention, gateway (d) also demonstrates the statute striking an incorrect balance. Gateway (d) is split into two elements under section 103(1) of the CJA 2003. These include; ‘(a) where a defendant has the propensity to commit an offence of the same kind, and (b) where a defendant has propensity to be untruthful’ [18]. For the purposes of this argument, section 103(1)(a) will be focused upon. In relation to the statutory provision, the issue specifically relates to how ‘propensity’ is measured. In Tully and Wood the Court of Appeal disapproved with the trial judge’s bad character direction, with LJ Smith highlighting that under the CJA 2003, there should be “a degree of similarity” between past convictions and the offence in question, with the greater the similarity, “the greater the probative force” [19]. Further, in Bullen, it was held that the trial judge had wrongly made the defendant’s 7 previous convictions admissible, with these previous convictions held by the Court of Appeal as not relevant [20]. It is argued that the above caselaw makes for a strong basis on which to contend that too much evidence of not enough value can be made admissible by a trial judge, which prejudices the accused unfairly. Thus, the balance between these important values is struck incorrectly.

 

Conclusion:

Two strands of argument have been contended. Firstly, evidence of a defendant’s good character has now been brought back to an acceptable position by R v Hunter (Nigel), and should be admissible on this basis [21]. Secondly, the provisions of the CJA 2003 relating to admissibility of defendants’ bad character strikes an incorrect balance between evidential value and prejudice to the accused.

The key issue in relation to this second strand is evidenced by the Select Committee on Home Affairs, who believe that first and foremost, admission of a defendant’s bad character to the tribunal of fact may lead to an assumption “that as ‘he did it before’, he was likely to do it again”, which epitomises this incorrect balance [22]. Furthermore, it is argued based on the caselaw in relation to admissibility of bad character, that it should not be for the Court of Appeal to wade in and issue clarification on the law. The CJA 2003 should already be doing so. The Court of Appeal is evidently forced to become involved to alleviate the issues caused by the current law, and this is not good enough.

 

References:

[1] Criminal Justice Act 2003.

[2] R v Rowton(1865) Le & Ca 520.

[3] [1993] 1 WLR 471.

[4] [1996] AC 41.

[5] [1995] 2 Cr App R 84, Nicola Monaghan, ‘Reconceptualising Good Character’ (2015) 19 The International Journal of Evidence & Proof.

[6] [2015] EWCA Crim 631.

[7] Hunter(n 7).

[8] CJA (n 1).

[9] CJA (n 1).

[10] James Goudkamp, ‘Bad Character Evidence And Reprehensible Behaviour’ (2008) 12 The International Journal of Evidence & Proof.

[11] Goudkamp (n 10).

[12] Goudkamp (n 10).

[13] Criminal Justice Act 2003 Explanatory Notes.

[14] [2004] EWCA Crim 1792; Roderick Munday, ‘What Constitutes “Other Reprehensible Behaviour” Under the Bad Character Provisions of the Criminal Justice Act 2003?’ (2005) Criminal Law Review 24.

[15] R v Manister[2005] EWCA Crim 2866.

[16] Roderick Munday, ‘Bad Character Rules and Riddles: “Explanatory Notes” and True Meanings of Section 103(1) of the Criminal Justice Act’ (2004) Criminal Law Review 533.

[17] [2008] 172 JP 358.

[18] Section 103(1), CJA 2003.

[19] [2007] 171 JP 25.

[20] [2008] 2 CR App R 23.

[21] Hunter(n 7).

[22] Select Committee on Home Affairs, ‘Second Report: Evidence of Bad Character’ (2002) Part 11, Chapter 1 <https://publications.parliament.uk/pa/cm200203/cmselect/cmhaff/83/8310.htm&gt;.

 

Bibliography:

Cases:

R v Aziz[1996]

Bullen[2008]

R v Davis[2008]

R v Durbin[1995]

R v Harrison[2004]

R v Hunter (Nigel)[2015]

R v Manister[2005]

R v Redgrave(1981)

R v Rowton(1865)

Tully and Wood[2007]

R v Vye[1993]

Legislation:

Criminal Evidence Act 1898

Criminal Justice Act 2003

Secondary Sources:

Criminal Justice Act 2003 Explanatory Notes

Goudkamp J, ‘Bad Character Evidence And Reprehensible Behaviour’ (2008) 12 The International Journal of Evidence & Proof

Monaghan N, ‘Reconceptualising Good Character’ (2015) 19 The International Journal of Evidence & Proof

Munday R, ‘Bad Character Rules and Riddles: “Explanatory Notes” and True Meanings of Section 103(1) of the Criminal Justice Act’ (2004) Criminal Law Review 533

Munday R, ‘What Constitutes “Other Reprehensible Behaviour” Under the Bad Character Provisions of the Criminal Justice Act 2003?’ (2005) Criminal Law Review 24

Select Committee on Home Affairs, ‘Second Report: Evidence of Bad Character’ (2002) Part 11, Chapter 1

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