House of Commons - Home Affairs

Select Committee on Home Affairs Second Report

PART 11, CHAPTER 1: EVIDENCE OF BAD CHARACTER

108. In our view, this is the most controversial part of the Bill. Under the present law, evidence of a person's previous 'bad character' (which includes previous convictions) is generally inadmissible at trial, subject to certain exceptions. 'Similar fact' evidence[120] is the main exception, but there are other circumstances in which bad character can be adduced.[121]

109. The rationale for having a general exclusion is that previous misconduct (ie misconduct on an occasion other than that leading to the charge) is likely to be highly prejudicial evidence and in most cases the prejudice is likely to outweigh the probative value. Part 10 will reverse the general exclusion in a number of circumstances—to create a general 'inclusionary' rule.

110. Although we have serious reservations about the provisions of this Part generally, we will focus in particular on the proposals to allow greater admission of the defendant's previous convictions at trial.

THE DANGERS OF ADMITTING EVIDENCE OF BAD CHARACTER

111. The fact that a defendant has previous convictions may well be relevant to the issue of guilt. The danger is that, if it is admitted "the fact-finder will be deflected from the real issue in the case".[122] The risks are twofold. First, the jury may assume that as 'he did it before', he was likely to do it again. Secondly, if the previous conviction is for an unpopular offence, such a sexual abuse of a child, the jury may convict out of moral disgust at his previous record. This has been borne out by an independent study into the effect on 'mock juries' of revealing the defendant's previous convictions. This was commissioned by the Home Office in 1995 (commonly referred to as the Oxford Study).[123]

DEFENDANT'S BAD CHARACTER (CLAUSE 84)

112. Clause 84 will allow evidence of a defendant's bad character to be admissible automatically in a range of specified circumstances. One of the circumstances is where "it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged" (Clause 84(1)(d)). The meaning of "same description" is given a broad definition and, significantly, the Bill gives the Home Secretary power to specify by order what offences are in the "same category", provided they are of the "same type" (Clause 86).

113. In effect, therefore, the prosecution will be able to adduce evidence of a defendant's similar previous convictions, without the need to apply for the court's permission. The onus will be placed on the defendant to apply to exclude the evidence, if he wishes (Clause 84(3),(4)). If he does so apply, the Court must exclude the evidence if its admission "would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it" (Clause 84(3)).

114. Peter Rook QC, Chairman of the Criminal Bar Association said:

"We are very concerned it is going to be a rule where we will have convictions going in on a much wider basis, which we feel could cause unfair trail and, indeed, miscarriages of justice, because the fact-finder will be deflected from the real issue in the case".[

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"the defendant is [then] left to explain those previous convictions, and is at a substantial disadvantage; rather than the prosecution concentrating on the real issue in the case. The worrying thing is that it will not just cause miscarriages of justice, it will also cause investigations to be skewed, because the police would be likely to arrest...the usual suspects".[125]

115. We put a number of scenarios to the Minister to highlight the danger that previous convictions would be used to prop up a weak case and tip the balance in favour of a conviction.[126] However, the Minister argued in reply that if the evidence against the defendant was weak, then it would be adverse to the fairness of proceedings to include it. On that basis, he appeared confident that judges would exclude the convictions in all of our suggested scenarios.[127] He told us:

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116. We have some difficulty with the proposal to allow the defendant's similar previous convictions to be automatically admitted at trial. In the light of the Oxford Study, we believe that these provisions could lead to miscarriages of justice in some cases. In particular, we are concerned at the prospect of using a defendant's previous record to prop up what might otherwise be a weak case. We are also concerned that this will increase the temptation for the police to pursue the "usual suspects".

Defendant's propensity for misconduct

117. A further circumstance in which a previous conviction could be admitted is if it is relevant to an important matter in issue between the defendant and the prosecution (Clause 84(1)(e)). This may include "the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where...[it] makes it no more likely that he is guilty of the offence". It may also include the question of the defendant's propensity to lie (Clause 87).

118. The Criminal Bar Association argue that:

"propensity [cannot] itself justify admission of evidence of a defendant's bad character. It will lead to miscarriages of justice. The test must be—and must be rigorously applied—one of relevance to an issue in the case".[

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119. We agree that propensity for misconduct should not justify automatic admission of the defendant's bad character.

The test of relevance

120. Under the Bill the threshold for admitting the defendant's previous convictions will generally be lower than the threshold for admitting the convictions of other witnesses. As we have seen, the defendant's record will be admissible if it is of the same description/same category—or if it is relevant to an issue between the defendant and the prosecution. By contrast, a witness's previous record will generally only be admissible if it has substantial probative value to an issue that is of itself of substantial importance in the context of the whole case. (The only other exceptions, for non-defendants, are explanatory evidence or where all parties consent).

121. The Minister told us that he thought the Government had "got the balance right".[130] He explained:

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122. We are concerned at the apparent inequality between the tests for admitting the defendant's bad character, as compared with a non-defendant's bad character. At the moment, a lower test of relevance seems to apply to defendants, than to non-defendants. In our view, there should be a standard test requiring the bad character evidence to have "substantial probative value" in relation to a matter in issue, which is itself of substantial importance in the context of the case as a whole.

123. For the reasons given, we recommend that Clauses 84 to 92, which relate to the admissibility of a defendant's bad character, be deleted from the Bill.

120 It is difficult to provide a succinct explanation of the similar fact rule. In general terms, similar fact evidence is evidence of past crimes or other discreditable conduct, which is adduced to prove that the accused is guilty. To be admissible, the evidence must usually relate to similar circumstances or a similar period of time and the probative value must outweigh its prejudicial effect. In some cases (eg where identity is in issue) the evidence must be "strikingly similar" before it can be adduced. Back

121 For a comprehensive review of this subject see: The Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com No 273. Back

122 Q 172, Peter Rook QC. Back

123 The Oxford Study is appended to the Law Commission's consultation paper, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant, CP No 141, Appendix D, para D.63. See also, Sally Lloyd-Bostock, 'The Effects on Juries of Hearing About the Defendant's Previous Criminal Record: A simulation Study, Criminal Law Review [2000] pp 734-755. Back

124 Q 172. Back

125 Q 175. Back

126 Qq 389-391. Back

127 Q 392. Back

128 Q 393. Back

129 Criminal Bar Association, Response to the Government's Proposals on Evidence of Previous Misconduct in Criminal Proceedings, October 2002, para 3(v). Back

130 Q 384. Back

131 Q 382. Back