House of Commons - Explanatory Note
Criminal Justice Bill - continued          House of Commons

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     Clause 70: Offences in connection with reporting

268.     Clause 70 creates offences connected with any breach of the reporting restrictions contained in clause 69. It will be an offence to report or publish any of the prohibited matters, punishable by a fine. The consent of the Attorney General will be needed to bring any prosecution under this clause (except in Scotland).

     Clause 71: Retrial

269.     Clause 71 makes provisions relating to the holding of retrials. An acquitted person may only be retried on an indictment preferred by the direction of the Court of Appeal. Arraignment on this indictment must be made within two months of the date on which the Court ordered a retrial, unless the Court allows a longer period. The Court can only extend this period if it is satisfied that the prosecutor has acted with due expedition since the order was made, and that there is still a good and sufficient reason to hold the retrial despite any additional lapse of time.

270.     If the acquitted person is not arraigned for the retrial within the two months or any further time allowed, then he can apply to the Court of Appeal to set aside the order for retrial and restore the previous acquittal; or in the case of people acquitted outside England and Wales or Scotland, for a declaration that the acquittal constitutes a bar to any trial for the qualifying offence.

271.     An indictment may relate to more than one offence or to more than one person, including offences which were not the subject of the original order.

272.     This clause also brings the provisions for retrial into line with changes to the law in respect of hearsay evidence and the use of depositions made elsewhere in this Bill.

     Clause 72: Authorisation of investigations

273.     Clause 72 relates to the conduct of police investigations. It allows for police to re-investigate an acquitted person only with the consent of the Director of Public Prosecutions, in cases where new evidence has come to light, or where there are reasonable grounds to believe that further investigation will give rise to new evidence. The DPP must consider whether the previous acquittal constitutes a bar to a further prosecution. If it does not constitute a bar, then there are no restrictions on police investigations into the offence. Where the previous acquittal does provide a bar, this clause permits a re-investigation of the acquitted person only where the DPP's consent is given. It defines a re-investigation in terms of its direct impact on the acquitted person, for example where police wish to interview or arrest him, search his person, vehicle or premises occupied by him, seize evidence or take fingerprints or samples. It does not permit such actions to take place even with the consent of the acquitted person, in relation to a qulifying offence of which the person has been acquitted, as this would provide a means of carrying out re-investigations without using appropriate police powers. This provides a safeguard against any potential harassment of acquitted persons. The requirement for the DPP's consent is not intended to hamper the police making other enquiries which do not directly impact on the life of the individual, for example by interviewing new or previous witnesses, or comparing fingerprint or DNA samples with records which they already hold.

274.     An application for the DPP's consent must be made in writing by an officer of Commander rank or above in the Metropolitan and City Police forces, or Assistant Chief Constable or above in other police forces or bodies of constables. It can be made where new evidence is already known to the officer, or where he has reasonable grounds to believe that new evidence is likely to become available if the investigation proceeds. There must therefore be some "trigger" for the application; it is not intended that the re-investigation of an acquitted person can take place without any element of new evidence.

275.     The DPP can only give his consent if he is satisfied that there is sufficient new evidence to justify the re-investigation, or that such new evidence is likely to come to light if the investigation goes ahead, and that it is in the public interest for the investigation to proceed. In giving his consent, the DPP may also recommend to the chief officer of the force requesting the consent, that another force should conduct the re-investigation. It will then be for the chief officer to make appropriate arrangements with another force which can provide an appropriate level of investigative expertise.

     Clause 73: Urgent investigative steps

276.     Clause 73 makes similar provisions to clause 72, in circumstances where the police need to act urgently. This may be to prevent the investigation being prejudiced, for example by securing evidence immediately; or to prevent any risk of death or serious injury. Urgent action may be needed in cases where new evidence is found during the course of other investigations, or where information provided to the police indicates that new evidence is at a particular location.

277.     In such cases, urgent police action may be authorised by an officer of the rank of Superintendent or above. Urgent police action can only be taken if there has been no undue delay previously in seeking the DPP's consent, and consent has not previously been refused. If the authorisation is not given in writing, it must be recorded in writing as soon as possible.

     Clause 74 Arrest and charge

278.     Clause 74 allows for the arrest under warrant of a person in respect of a qualifying offence, where it can be shown that new evidence relevant to an application under this Part of the Bill is known to the officer. Where a person is arrested, the clause provides that he may be charged with the offence for which he has been arrested in accordance with the provisions of the Police and Criminal Evidence Act 1984 (PACE), if an officer of the rank of Superintendent or above considers that there is sufficient evidence available for the case to be referred to a prosecutor in order to consider making an application for the acquittal to be quashed in accordance with this Part of the Bill. This is the equivalent stage to bringing a criminal charge under PACE in normal proceedings, but provides the additional safeguard that the evidence must be considered at Superintendent level or above.

279.     This clause also requires the Custody Officer to ensure that any relevant evidence which becomes available to him is made available to the relevant officer at Superintendent rank or above to enable him to reach such a decision.

     Clause 75 : Bail and custody before application

280.     Clause 75 provides for a decision on bail or remand in custody to be made, in cases where an acquitted person is in police detention and is charged in accordance with Clause 74. The person must be brought before the Crown Court within 24 hours (excluding Sundays, bank holidays etc). This provision enables the courts to either bail the individual, or to remand him to custody for a period not greater than 42 days, whilst the application to the Court is prepared. It is subject to the same safeguards as other decisions on bail set out in the Bail Act 1976. Where bail is granted the Court may vary the conditions of bail, or revoke it, as necessary.

281.     A power to remand in custody is considered necessary for the courts in those cases where there may be a risk of absconding prior to the application to the Court of Appeal being made or heard. It recognises that it will take some time for the police and prosecutors to formulate the appropriate application to the Court of Appeal, but this time should not be disproportionate. The bail or custody decision will be taken by the Crown Court who may either bail the person, with conditions on bail if necessary, or remand him to custody, either to a time at which the Court will review the decision, or to the time at which notice of the application is made to the Court of Appeal. If no notice of application to the Court of Appeal is made within the maximum 42 days, the prosecutor may ask the Court for an extension provided there is good and sufficient cause to do so, and that the prosecution has acted expeditiously up to that point.

     Clause 76 : Bail and custody before hearing

282.     Clause 76 similarly sets out the arrangements for bail or remand in custody once the notice of application is made to the Court of Appeal. At this stage the Crown Court will make a further decision regarding bail or remand in custody pending the Court of Appeal hearing.

     Clause 77 : Bail and custody during and after hearing

283.     Clause 77 makes similar provision for bail or remand in custody during and after the Court of Appeal hearing. At this stage decisions on bail or remand will be made by the Court of Appeal, which will need to take into account its own decision in relation to the application. The Court may decide either to bail or remand in custody the person until a retrial can be held, or until any appeal against the Court's ruling is determined.

     Clause 78 : Functions of the DPP

284.     Clause 78 disapplies the provision of the Prosecution of Offences Act 1985 which allows the DPP's functions to be exercised by a Crown Prosecutor. In these cases it is intended that the DPP will take decisions personally as to when consent to re-investigate or to apply to the Court should be given. However, this section does allow for another person to be nominated by the DPP to take these decisions in cases where he is unavoidably absent.

     Clause 79 : Rules of Court

285     Clause 79 enables rules of court to be made in respect of the various court procedures set out in this Part.

     Clause 80 : Interpretation of Part 10

286.     Clause 80 defines various terms which appear in this Part of the Bill, and provides that the jurisdiction of the Court of Appeal is exercised by the Criminal Division of the Court.


     Chapter 1 : Evidence of Bad Character

     Clause 81 : Bad Character and Clause 82 Abolition of common law rules

287.     Clause 81 defines the sort of evidence whose admissibility is to be determined under the new statutory scheme. The definition includes evidence that shows that a person has committed an offence, such as evidence relating to a previous conviction. It also extends to evidence that tends to show that they have committed an offence. This is intended to cover evidence that suggests a person has been involved in an offence but where there has been no conviction. It would therefore cover evidence of an offence for which a person has been charged but acquitted. This reflects the state of the current law: in the case of Z ([2000] 2 AC 483), the House of Lords held that there was no special rule that required the exclusion of evidence that a person had been involved in earlier offences, even if they had been acquitted of those crimes, provided that that evidence was otherwise admissible. Thus, if there were a series of attacks and the defendant were acquitted of involvement in them, evidence tending to show that he had committed those earlier attacks could be given in a later case if it were admissible to establish that he had committed the latest attack. The Bill preserves the effect of this decision.

288.     The definition also includes evidence that a person has behaved or is disposed to behave in a way which might be viewed with disapproval by a reasonable person, even if this has not amounted to an offence. This might include, for example, evidence that a person has a sexual interest in children, even if they have not acted on it in a criminal way. At present this sort of evidence would be covered by the common law rules governing the admissibility of previous misconduct. In light of the abolition of those rules, clause 81(1)(b) ensures that this evidence is subject to the new scheme for admissibility.

289.     The scheme does not affect the admissibility of evidence of the facts of the offence nor that which is closely related in time, place or circumstances to those facts. These are excluded from the definition of bad character evidence by clause 81(2), which also excludes evidence of misconduct in connection with the investigation or prosecution of the offence.

290.     Thus, if the defendant were charged with burglary, the prosecution's evidence on the facts of the offence - any witnesses to the crime, forensic evidence etc - would be admissible outside the terms of these provisions. So too would evidence of an assault that had been committed in the course of the burglary, as evidence to do with the facts of the offence. Evidence that the defendant had tried to intimidate prosecution witnesses would also be admissible outside this scheme as evidence of misconduct in connection with, as appropriate, the investigation or the prosecution of the offence, as would allegations by the defendant that evidence had been planted. However, evidence that the defendant had committed a burglary on another occasion or that a witness had previously lied on oath would not be evidence to do with the facts of the offence or its investigation or prosecution and would therefore not be excluded by clause 81(2). It would, however, be caught by the definition in clause 81(1) and its admissibility fall to be dealt with under the Bill's provisions.

     291.     The intention is that this Part of the Bill will provide a new basis for the admissibility of previous convictions and other misconduct. Accordingly, clause 82 abolishes the common law rules governing the admissibility of such evidence. (Statutory repeals are dealt with in part 4 of Schedule 27). This abolition does not extend to the rule that allows a person's bad character to be proved by his reputation. This common law rule is preserved as a category of admissible hearsay in clause 102(2).

Clause 83 - Non-defendant's bad character

292.     Clause 83 sets out the circumstances in which, outside the alleged facts of the offence and its investigation and prosecution, evidence can be given of the previous misconduct of a person other than a defendant in the proceedings. This might be a witness in the case or a victim but extends to any other person as well. Evidence of their bad character is not to be given without the permission of the court - clause 83(4) - and can only be given if it meets one of three conditions. These are:

  • it is important explanatory evidence,

  • it is of substantial probative value to a matter in issue and that issue is one of substantial importance in the case, or

  • the prosecution and defence agree that the evidence should be admitted.

293.     The term "explanatory evidence" is used to describe evidence which, whilst not going to the question of whether the defendant is guilty, is necessary for the jury to have a proper understanding of other evidence being given in the case by putting it in its proper context. An example might be a case involving the abuse by one person of another over a long period of time. For the jury to understand properly the victim's account of the offending and why they did not seek help from, for example, a parent or other guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person.

294.      For evidence to be admissible as "important explanatory evidence", it must be such that, without it, the magistrates or jury would find it impossible or difficult to understand other evidence in the case - clause 83(2). If, therefore, the facts or account to which the bad character evidence relates are largely understandable without this additional explanation, then the evidence should not be admitted. The explanation must also give the court some substantial assistance in understanding the case as a whole. In other words, it will not be enough for the evidence to assist the

court to understand some trivial piece of evidence.

295.     Evidence is of probative value, or relevant, to a matter in issue where it helps to prove that issue one way of the other. In respect of non-defendants, evidence of bad character is most likely to be relevant where a question is raised about the credibility of a witness (as this is likely to affect the court's assessment of the issue on which the witness is giving evidence). It might, however, also be relevant to support a suggestion by the defendant that another person was responsible for the offence.

296.     Evidence which is of probative value is admissible if it meets an "enhanced relevance" test - clause 83(1)(b). That is, it must be of substantial probative value and the matter in issue to which it relates must be of substantial importance in the context of the case. Thus evidence which has no real significance to an issue or is only marginally relevant would not be admissible, nor would evidence that goes only to a trivial or minor issue in the case.

297.     Clause 83(3) directs the court to take into account a number of factors when assessing the probative value of evidence of a non-defendant's bad character. These include the nature and number of the events to which it relates and when those events occurred. When considering evidence that is probative because of its similarity with evidence in the case (which might be the case if the defendant were suggesting that that other person was more likely to have committed the offence), the court is directed by subsection 3(c) to consider the nature and extent of the similarities and dissimilarities. Similarly, where the evidence is being tendered to suggest a particular person was responsible, subsection 3(d) requires the court to consider the extent to which the evidence shows or tends to show that the same person was responsible each time.

Clauses 84 to 92 - defendants

298.     At present evidence of a defendant's bad character is generally inadmissible, subject to a number of restricted common law and statutory exceptions discussed in paragraph 1. Clauses 84 to 92 set out the circumstances in which such evidence is to be admissible in future. In summary, these provide an inclusionary approach to a defendant's previous convictions and other misconduct, under which relevant evidence is admissible but can be excluded in certain circumstances if the court considers that the adverse affect that it would have on the fairness of the proceedings requires this. Clause 84 sets out the gateways through which this evidence can be admitted, whilst clauses 85 to 90 provide additional definitional material. Clause 91 provides an important safeguard where this sort of evidence has been influenced by other witnesses or evidence in the case and is consequently false or misleading and clause 92 deals with offences committed as a child.

     Clause 84 : Defendant's bad character

299.     Clause 84(1) provides that evidence of a defendant's bad character is admissible in the following circumstances:

  • all the parties agree to it being given;

  • the defendant introduces the evidence himself or it is given in response to a question put by the defendant (or his counsel) that is intended to elicit it;

  • it is important explanatory evidence;

  • it is evidence of the defendant's conviction for the same offence or for an offence of the same category;

  • it is relevant to an important issue between the defendant and prosecution;

  • it has significant probative value in relation to an important issue between the defendant and a co-defendant;

  • it corrects a false impression given by the defendant about himself;

  • the defendant has attacked the character of another person.

300.     This is subject in certain circumstances to an application by the defendant to have the evidence excluded if admitting it would have such an adverse effect on the fairness of the trial that it ought to be excluded (clause 84(3)). The circumstances in which such an application can be made are where the evidence is of a conviction for the same offence or an offence of the same category, is relevant to an issue in the case between the defendant and prosecution or has become admissible because of the defendant's attack on another person.

301.     The test to be applied is designed to reflect the existing position under the common law, as section 78 of the Police and Criminal Evidence Act 1984 does, under which the judge balances the probative value of the evidence to an issue in the case against the prejudicial effect of admitting it, and excludes the evidence where the prejudice exceeds the probative value. The intention is for the courts to apply the fairness test set out here in the same way. In applying the test, the courts are directed specifically under clause 84(4) to take account of the amount of time that has elapsed since the previous events and the current charge. Clause 84(5) makes it clear that this specific exclusionary power is without prejudice to any other power to exclude the evidence, for example, on the grounds that it is hearsay evidence.

     Clause 85 : "Important explanatory evidence"

302.     Clause 85 defines what is meant by important explanatory evidence. The definition mirrors that used in the context of non-defendants (see paragraphs 11 and 12 above).

     Clause 86: Offences "of the same description" or "of the same category"

303.     Clause 86 deals with previous convictions for an offence of the same description or of the same category and enables convictions for the same offence or a similar offence to be admitted. The latter are defined by reference to categories of offences that will be drawn up by the Secretary of State in secondary legislation. This will be subject to the affirmative procedure (see clause 264(5)). The categories must contain offences that are of the same type (clause 86(2)), for example, offences involving violence against the person or sexual offences. Evidence that a co-defendant may wish to give about a defendant is dealt with separately (see clauses 84(1)(f) and 88) and hence only evidence to be adduced by the prosecution is admissible on this basis: clause 86(3). Evidence that is admissible under this head will be subject to the defendant applying to exclude it under clause 84(3). In applying the test, the court will need to balance the probative value of the convictions (that is, the extent to which they are relevant to an issue in the case) against any prejudicial effect of admitting them.

     Clause 87 : "Matter in issue between the defendant and the prosecution"

304.     Clause 87 relates to evidence of a defendant's bad character that is admissible because it is relevant to an important matter at issue between the defendant and the prosecution. Evidence might be relevant to one of a number of issues in a case. For example, it might help the prosecution to prove the defendant's guilt of the offence by establishing their involvement or state of mind or by rebutting the defendant's explanation of his conduct. This provision enables evidence over and above convictions for the same or a similar offence to be admitted and would cover, for example, evidence that did not amount to criminal conduct or for which the defendant had previously been acquitted. It would also cover circumstances where evidence might be relevant even though it related to a different type of offence (for example, evidence that the defendant had committed various crimes with a particular group of people before might be relevant to a charge of conspiracy to commit a different type of offence). Again, only prosecution evidence is admissible on this basis - clause 87(2) - and the defendant may apply to have the evidence excluded under clause 84(3).

305.     Clause 87(1)(a) makes it clear that evidence that shows that a defendant has a propensity to commit offences of the kind with which he is charged can be admitted under this head. For example, if the defendant is on trial for grievous bodily harm, a history of violent behaviour could be admissible to show the defendant's propensity to use violence. Evidence is not, however, admissible on this basis if the existence of such a propensity makes it no more likely that the defendant is guilty. This might be the case where there is no dispute about the facts of the case and the question is whether those facts constitute the offence (for example, in a homicide case, whether the defendant's actions caused death).

306.     In a similar fashion, clause 87(1)(b) makes it clear that evidence relating to whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) can generally be admitted. This is intended to cover evidence such as convictions for perjury or other offences involving deception (for example, obtaining property by deception). It is not, however, intended that a conviction for any criminal offence should be admissible by virtue of this provision. And nor will evidence be admissible under this head where it is not suggested that the defendant's case is untruthful in any respect. As with propensity evidence, this is likely to be the case where the defendant and prosecution are agreed on the facts of the alleged offence and the question is whether all the elements of the offence have been made out.

     Clause 88 : "Matter in issue between the defendant and a co-defendant"

307.     Clause 88 relates to evidence that is relevant to issues between the defendant and a co-defendant. Evidence is only admissible on this basis by (or at the behest of) a co-defendant: see clause 88(2) - the prosecution therefore cannot avail themselves of this provision. A co-defendant may wish to adduce evidence of a defendant's bad character if his defence is, for example, that it was the defendant, rather than himself, who was responsible for the offence. Under clause 84(1)(f) evidence is admissible on issues between the defendant and a co-defendant if it has substantial probative value in relation to an important issue in the case. In other words, evidence that has only marginal or trivial value would not be admissible, nor would it be admissible if the issue it related to were marginal or trivial in the case as a whole. However, once this threshold is passed, there is no power for the courts to exclude the evidence. This ensures that defendants are able to put forward the widest range of evidence in their defence and reflects the current position. Clause 88 restricts the admissibility of evidence of a defendant's bad character that only shows that he has a propensity to be untruthful (that is, is not credible as a witness) to circumstances in which the defendant has undermined the co-defendant's defence. In these circumstances, his credibility may well have a bearing on resolving the issues in the case.

     Clause 89 "Evidence to correct a false impression"

308.     Clause 89 relates to evidence that is admissible under clause 84(1)(g) to correct a false impression given by the defendant. For this provision to apply, the defendant must have been responsible for an assertion that gives a false or misleading impression about himself. This might be done expressly, for example, by claiming to be of good character when this is not the case, or impliedly, for example, by leading evidence of his conduct that carries an implication that he is of a better character than he is actually the case. It may also be done non-verbally, through his conduct in court, such as his appearance or dress (clause 89(4) and (5)). For example if the defendant were to suggest that he was a priest by wearing a dog collar, his actions would fall under this clause.

309.     Clause 89(2) sets out the circumstances in which a defendant is to be treated as being responsible for an assertion. These include the defendant making the assertion himself, either in his evidence or in his representative's presentation of his case or, if used in evidence, when being questioned under caution or on being charged with the offence. It also includes assertions made by defence witnesses, those by any witness if responding to a question by the defendant that was intended (or likely to) elicit it and out of court assertions made by anybody if adduced by the defendant.

310.     In correcting the impression, the prosecution (and only the prosecution - see clause 89(7)) may introduce evidence of the defendant's misconduct that has probative value in correcting it, in other words, is relevant to correcting the false impression. Exactly what evidence is admissible will turn on the facts of the case, in particular, the nature of the misleading impression he has given. Evidence is only admissible to the extent that it is necessary to correct that impression: clause 89(6). A defendant may withdraw or disassociate himself from a false or misleading impression by, for example, correcting the impression himself in evidence or through the presentation of his case or cross-examination of witnesses. Evidence to correct the impression is not then admissible: clause 89(3). In light of this, the scope for a defendant to apply to have evidence of his bad character excluded (clause 84(3)) does not apply to this evidence.

     Clause 90 : "Attack on another person's character"

311.     Clause 90 deals with evidence that becomes admissible as a result of the defendant attacking another person's character (see clause 84(1)(h)). A defendant attacks another person's character if he gives evidence that they committed an offence (either the one charged or a different one) or have behaved or are disposed to behave in a way that might be disapproved of by a reasonable person - clause 90(1)(a) and 90(2). This is similar to the definition of evidence of bad character in clause 81 but it also includes evidence relating to the facts of the offence charged and its investigation and prosecution. Thus, a defendant would be attacking a prosecution witness if he claimed that they were lying in their version of events or adduced evidence of their previous misconduct to undermine their credibility.

312.     A defendant also attacks another person's character if he or his representative ask questions that are intended (or are likely) to elicit evidence of this sort or if the defendant makes an allegation of this nature when questioned under caution or on being charged with the offence and this is heard in evidence - clause 90(1)(b) and (c).

313.     Where a defendant has attacked another person's character, evidence of his own bad character becomes generally admissible (but only by the prosecution - see clause 90(3)). Evidence admissible on this basis may, however, be excluded on the application of the defendant if admitting it would have an adverse effect on the fairness of the proceedings: clause 84(3). This would be the case for particular evidence if the court considered that it would have too great a prejudicial effect.

314.     Evidence admissible under this clause will primarily go to the credit of the defendant and allow his character to be known by the jury. It is not, however, intended that the jury should be expected to put all knowledge of these matters out of their mind when considering other issues in the case. However, the judge may wish to consider directing the jury that care should be taken about the level of weight to be placed on the evidence in any other respect.

     Clause 91 : Stopping the case where evidence contaminated

315.     Clause 91 deals with circumstances in which bad character evidence has been admitted but it later emerges that the evidence is contaminated, that is, has been affected by an agreement with other witnesses or by hearing the views of other witnesses so that it is false or misleading (see clause 91(5)).

316.     Ordinarily it is for the jury to decide whether or not to believe evidence and decide on the weight to be placed on it. In cases where a question of contamination has arisen, the current position is that the judge must draw it to the jury's attention and warn them that if they are not satisfied that can be relied on as free of collusion, then they cannot rely on it against the defendant. If it becomes apparent that the evidence is so contaminated that it could not reasonably be accepted as free from collusion, the judge should go further and direct the jury not to rely on the evidence for any purpose adverse to the defence. This will continue to be the case.

317.     However, there may be cases where it is not possible to expect the jury to put this evidence completely out of their mind. There are existing common law powers for the judge to withdraw a case from the jury at any time following the close of the prosecution case. Clause 91 builds on these powers by conferring a duty on the judge to stop the case if the contamination is such that, considering the importance of the evidence to the case, a conviction would be unsafe. This is intended to be a high test and if the judge were to consider that a direction along the lines described above would be sufficient to deal with any potential difficulties, then the question of safety does not arise and the case should not be withdrawn.

318.     Having stopped the case the judge may consider that there is still sufficient uncontaminated evidence against the defendant to merit his retrial or may consider that the prosecution case has been so weakened that the defendant should be acquitted. Clause 91(1) provides for the judge to take either of these courses. If, however, an acquittal is ordered then the defendant is also to be acquitted of any other offence for which he could have been convicted, if the judge is also satisfied that the contamination would affect a conviction for that offence in the same way (clause 91(2)). Clause 91(3) extends the duty to the situation where a jury is determining under the Criminal Procedure (Insanity) Act 1964 whether a person, who is deemed unfit to plead, did the act or omission charged. Clause 91(4) makes it clear that the section does not affect any existing court powers in relation to ordering an acquittal or discharging a jury.

      Clause 92 - Offences committed by defendant when a child

319.     Clause 92 repeals section 16(2) and (3) of the Children and Young Persons Act 1963. This precludes the use in evidence of certain juvenile convictions (those relating to offences committed under the age of 14) in a trial for an offence committed as an adult (over the age of 21). The admissibility of this evidence will instead fall under the general scheme for admitting evidence of bad character described in this part.

     Clause 93 : Assumption of truth in assessment of relevance or probative value

320.     Clause 93 requires a court, when considering the relevance or probative value of bad character evidence, to assume that the evidence is true. This reflects the distinction between the roles of the judge and jury: it is for the jury to form a view on matters of fact, such as the reliability of the evidence, and for the judge to rule on issues of law. However, there may be occasions where evidence is so unreliable that no reasonable jury could believe that it was true. In these circumstances, intended very much to be exceptional cases, clause 93(2) makes it clear that the judge does not have to assume the evidence is true. In making this decision, the court should normally make its decision based on the papers before it, however there may be circumstances in which a separate hearing on the issue (a voir dire) might be necessary. This reflects the current common law position as established in R v H [1995] 2 AC 596 which considered the admissibility of similar fact evidence in cases of alleged collusion.

     Clause 94 : Court's duty to give reasons for rulings

321.     Clause 94 requires a court to give reasons for its rulings under these provisions. These must be given in open court and, in the magistrates' courts, entered into the register of proceedings, ensuring that a record is kept. This applies to rulings on whether an item of evidence is evidence of bad character, on questions of admissibility and exclusion and any decision to withdraw a case from the jury.

     Clause 95: Rules of Court

322.     Clause 95 provides for rules of court to be made to require a defendant who wishes to adduce evidence of a co-defendant's bad character (or elicit it from a witness) to give notice to the co-defendant of their intention. The rules may provide for the co-defendant to waive any notice requirement. (clause 95(3)). The court is empowered to take a failure to give the required notice into account in considering the the exercise of its powers in respect of costs (clause 95 (4)).

     Clause 96 : Interpretation of Chapter 1

323.     Clause 96 defines terms employed in this part. Subsection (3) makes it clear that where the defendant is charged with two or more offences the provisions of this Part refer to each charge as separate proceedings. This means that bad character evidence that is admissible in relation to one charge in the proceedings is not automatically admissible in relation to another charge in the same proceedings, but must instead meet the provisions of this Chapter in respect of that charge.

     Clause 97 : Armed Forces

324.     Clause 97 effects the provisions in Schedule 6. Schedule 6 applies these provisions to the service courts, modifying them as necessary.

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Prepared: 29 November 2002