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

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Clause 92 - Non-defendant's bad character

325.     Clause 92 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 92(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.

326.     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.

327.     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 92(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.

328.     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.

329.     Evidence which is of probative value is admissible if it meets an "enhanced relevance" test - clause 92(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.

330.     Clause 92(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 93 to 101 defendants

331.     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 93 to 101 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 93 sets out the gateways through which this evidence can be admitted, whilst clauses 94 to 99 provide additional definitional material. Clause 100 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 101 deals with offences committed as a child.

Clause 93: Defendant's bad character

332.     Clause 93(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.

333.     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 93(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.

334.     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 93(4) to take account of the amount of time that has elapsed since the previous events and the current charge. Clause 93(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 94: "Important explanatory evidence"

335.     Clause 94 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 95: Offences "of the same description" or "of the same category"

336.     Clause 95 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 297(5)). The categories must contain offences that are of the same type (clause 95(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 93(1)(f) and 97) and hence only evidence to be adduced by the prosecution is admissible on this basis: clause 95(3). Evidence that is admissible under this head will be subject to the defendant applying to exclude it under clause 93(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 96: "Matter in issue between the defendant and the prosecution"

337.     Clause 96 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 96(2) - and the defendant may apply to have the evidence excluded under clause 93(3).

338.     Clause 96(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).

339.     In a similar fashion, clause 96(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 97: "Matter in issue between the defendant and a co-defendant"

340.     Clause 97 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 97(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 93(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 97 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 98: "Evidence to correct a false impression"

341.     Clause 98 relates to evidence that is admissible under clause 93(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 98(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.

342.     Clause 98(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.

343.     In correcting the impression, the prosecution (and only the prosecution - see clause 98(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 98(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 98(3). In light of this, the scope for a defendant to apply to have evidence of his bad character excluded (clause 93(3)) does not apply to this evidence.

Clause 99: "Attack on another person's character"

344.     Clause 99 deals with evidence that becomes admissible as a result of the defendant attacking another person's character (see clause 93(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 99(1)(a) and 99(2). This is similar to the definition of evidence of bad character in clause 90 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.

345.     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 99(1)(b) and (c).

346.     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 99(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 93(3). This would be the case for particular evidence if the court considered that it would have too great a prejudicial effect.

347.     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 100: Stopping the case where evidence contaminated

348.     Clause 100 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 100(5)).

349.     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.

350.     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 100 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.

351.     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 100(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 100(2)). Clause 100(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 100(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 101 - Offences committed by defendant when a child

352.     Clause 101 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.

Clause102: Assumption of truth in assessment of relevance or probative value

353.     Clause 102 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 102(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 103: Court's duty to give reasons for rulings

354.     Clause 103 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 104: Rules of Court

355.     Clause 104 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 104(3)). The court is empowered to take a failure to give the required notice into account in considering the exercise of its powers in respect of costs (clause 104 (4)).

Clause 105: Interpretation of Chapter 1

356.     Clause 105 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 106: Armed Forces

357.     Clause 106 effects the provisions in Schedule 6. Schedule 6 applies these provisions to the service courts, modifying them as necessary.

Chapter 2 Hearsay Evidence

Clause 107: Admissibility of hearsay evidence

358.     Subsections (1)-(3) set out the circumstances in which a statement which is not made in oral evidence during criminal proceedings can be used as evidence of the facts stated within it. For example, if B was charged with robbery of a jewellers, the prosecution might want A to testify that B told her that he was "outside the jewellers at midday on Monday" in order to prove that B was outside the jewellers at the relevant time. As these subsections remove the common law rule against the admission of such hearsay evidence, this out-of court statement will be admissible in A's testimony, provided it comes under one of the following heads:

  • It is admissible under a statutory provision;

  • It is admissible under a common law rule preserved by this Chapter of the Bill;

  • The parties agree that it can go in; or

  • The court gives leave to admit the statement.

359.     Before the court can grant leave to admit such a statement (under the fourth head above and found in subsection 1(d)) it must be satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice to admit the evidence. The intention, therefore, is that the court should be able to admit an out-of-court statement which does not fall within any of the other categories of admissibility, where it is cogent and reliable. The discretion extends to multiple hearsay (where the information passes through more than one person before it is recorded) as well as first-hand hearsay (where a statement is made by a person who directly perceived the facts of which the evidence is being given).

360.     Subsection (2) sets out some of the factors that the court must consider when deciding whether to grant leave under the discretion in Subsection (1)(d). Some of these factors are:

  • the degree of relevance of the statement in proving a matter in issue in the trial (assuming the statement were true);

  • the circumstances in which it was made (including if it was made at all);

  • the extent to which it supplies evidence which would not otherwise be available;

  • the creditworthiness of the maker of the statement;

  • the reason why oral evidence cannot be given;

  • the extent to which the other party can challenge the statement, and the risk of unfairness.

361.     The list is intended to focus attention on whether the circumstances surrounding the making of the out of court statement indicate that it can be treated as reliable enough to admit it as evidence, despite the fact that it will not be subject to cross-examination.

362.     Subsection (3) provides that out of court statements may still be excluded even if they fulfil the requirements in this Chapter. For example, confessions must meet the additional requirements of sections 76 and 78 of the Police and Criminal Evidence Act 1984 before admission.

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Prepared: 23 May 2003