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Published: Fri, 02 Feb 2018

Common-law and statutory provisions governing

Law Of Evidence


The full implication of Lord Wolf’s reasoning in the case of R v Highton [2006] 1 Cr App R 125, became explicit in R v Campbell [2007] EWCA Crim 1472 in relation to the admissibility and use of bad character evidence of an accused person.

Analyse and critically evaluate the implication of Section 101 of the Criminal Justice Act 2003 and that of R v Campbell [2007].

Historically, there are both common-law and statutory provisions governing admissibility of character evidence in court. In criminal cases evidence of the accused’s good character is admissible with good reason, because there is a fair and just presumption that a person of good character would not commit a crime. The admissibility of good character evidence remains governed by the common law. As for bad character, section 3 of the Criminal Procedure Act 1865 provides, a party is not entitled to impeach the credit if his own witness by general evidence of his bad character.

Generally, there are two exceptions to the inadmissibility of bad character evidence, the “similar fact evidence” and the issue of the accused character. The exception was contained in s.1(3) of The Criminal Evidence Act (CEA) 1898 where (i)the accused asserted his good character; (ii)where the previous misconduct is an integral part of the offence; and (iii)where the accused give evidence against co-accused. However, the provisions of s.1(3) are often referred to as a `shield’ for the defendant to expose his bad character if the similar fact rule did not apply and conditions in s.1(3) are not satisfied. Due to the defects of the old law, The 2001 Law Commission Report agreed that the existing law lacked clarity and led to inconsistency. The Law Commission recommended that a leave should be required before the admission of bad character evidence. Lord Justice Auld also found the law is highly unsatisfactory. Sir Robin Auld favoured the disclosure of the criminal records of the defendants. Chapter 1 of the Criminal Justice Act (CJA) 2003 appeared to codify law governing admissibility of bad character evidence by abolishing the common law rules, amending s.6 of The Criminal Procedure Act 1865.

Section 99 of the CJA 2003 abolished all common rules governing bad character evidence in criminal proceedings. S.98 defines “bad character” as misconduct other than that which has to do with the alleged facts of the offence with which the defendant is charged. Evidence of bad character covers misconduct whether or not unlawful and whether it resulted in conviction or acquittal. The House of Lords decision in R v Z where evidence on misconduct is admissible because it tends to show that the accused was guilty of a previous acquitted offence. Relying on Z, Scott Baker LJ in R v Edwardssaid that if evidence of previous allegation is in principle admissible notwithstanding that the accused was acquitted of charges based on allegation in previous trial, evidence relating to allegation that had never been tried should not be admissible is unquestionable. The word “reprehensible” carries with elements of culpability or blameworthiness depends on which views are likely to differ. In R v Weir , reprehensible behaviour is not behaviour which is criminal. A lawful relationship with a younger girl does not amount to bad character evidence. The Court pointed out that s.103(2), a propensity to commit crime may be proved by evidence of commission of other offences, but is not confined to that. This is also illustrated in R v Renda but in the case of defendants, evidence of misconduct will usually be limited to evidence pertaining to previous convictions.

Before the coming into force of CJA 2003, evidence of bad character of the accused was admissible only with exception and a distinction was drawn between evidence adduced because of relevance to the issue of guilt and credibility of accused as a witness in cross-examination. S.101(1) CJA 2003 provides 7 gateways where (a)the defendant’s bad character is admissible in criminal proceeding if all parties to the proceedings agree to the evidence being admissible; (b)the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it; (c)it is important explanatory evidence; (d)it is relevant to an important matter in issue between the defendant and the prosecution; (e)it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; (f)it is evidence to correct a false impression given by the defendant or; (g)the defendant has made an attack on another person’s character. S.101(3) of CJA 2003 provides that the court must not admit evidence under subsection (1)(d) or (g) if on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceeding that the court ought not to admit it. In all circumstances other than s.101(1)(d) and (g), The Police and Criminal Evidence Act (PACE) 1984, s.78 gives the judge discretion to exclude prosecution evidence.

S.101(1) (a) allowed bad character evidence to be admitted by agreement of all parties. S. 101(1)(b) permits evidence of bad character to be admitted by the accused himself without the leave of the court when defence witness gave evidence of defendant’s ad character; when the defendant reveal his previous conviction before trial; when there is no intention to adduce evidence of previous misconduct which amount to bad character. Section 101(1)(c) allows

evidence of the defendant’s bad character to be admitted where it is “important explanatory evidence” designed to reflect the position at common law which admitted what came to be known as “background evidence”. In R v Pettman, Purchas LJ said that for the proposition that evidence showing the defendant’s commission of the offence could be admitted if it was necessary to place it before the jury in order to complete, or make it comprehensible. S.102 further provides that evidence is important explanatory evidence if without it, the court or jury would find it impossible or difficult to understand other evidence in the case and, its value for understanding the case as a whole is substantial. This was slightly different from the common law rule permitting the use of background evidence, notwithstanding that it reveals the bad character evidence of the accused. In R v Edwards, the statement of identification witness to recognise the accused was admitted under s.101(1)(c) providing that it was inevitable that the jury, who would have to be directed as to the caution necessary in identification. Evidence of previous history can be held admissible as in R v Philips. The common law authorities will continue to provide valuable guidance since gateway (c) in effect gives statutory force to a doctrine established at common law.

Section 101(1)(d) CJA 2003 “it is relevant to an important matter in issue between the defendant and the prosecution” provides the admissibility of evidence going to the guilt of the accused as well as credibility. S.101(1)(d) is supplemented by s.103(2) where “matters in issue” include the question of propensity to commit the offence and whether the propensity is to be untruthful. S.103(2) also defines the categories of offences which can be

admitted as propensity to include “offences of the same description” or the “same category.” According to R v Chopra, evidence of the accused’s propensity to offend in the manner charged was prima facie inadmissible at common law, whilst under the 2003 Act it is prima facie admissible. Evidence of bad character relevant to the guilt and admissible under gateway (d) is not confined to evidence of propensity and similar fact evidence. At common law, other types of misconduct were admissible to establish the prosecution’s case. By applying R v Grooves, it was held in R v Yalman that once there was prima facie for Y to answer, the evidence of using drugs was admissible on the issue whether he has knowingly involved in the importation. Following common law principles, the admissibility of evidence relevant to the issue of guilt under s.101(1)(d) will continue to operate relating to the nature of defence. The notion for “similar fact” evidence to fall within a closed list of defined categories of relevance was firmly rejected in Harris v DPP.

S.101(1)(e) stated that “it has substantial probative value in relation to an important matter in issue between the accused and co-accused.” Section 104(1) states that evidence of a propensity to be untruthful is admissible under S.101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence. In both Lowery v R and R v Douglass, where one accused adduces evidence of his own lack of propensity and this goes to the issue of a co-accused guilt, the co-accused can call contradictory evidence. However in R v Randall the House of Lords confined that there must be cases in which the propensity of one accused may be relied on by the other, irrespective of whether he has put his character in issue.

S.101(1)(f) CJA 2003 permits prosecution evidence to correct a false impression given by the defendant reflects an old common law rule. S.105(1)(a) indicates that “the false impression must relate to the defendant, and evidence to correct such impression is evidence which has probative value in correcting it(S.105(1(b)).” S.105(2) specifies under what circumstances the defendant is treated as being responsible in making an assertion. So by s.105 (3) a defendant can withdraw or disassociate himself from a false impression and most importantly s.105 (6) restricts the extent of the evidence which is admissible to that which “goes no further than is necessary to correct the false impression.” This is a departure from the common law rule that allow cross-examination on the whole of a defendant’s character. In R v Winfield, it was held that the prosecution were entitled to cross-examine accused about a previous conviction for dishonesty under the 1898 act. However, such cross-examination would not be allowed under s.105 because the defendant had not created a false impression about his character in relation to women which was the only part of his character that was relevant on a charge of indecent assault.

S.106 CJA 2003 supplemented S.101(1)(g), prosecution evidence of the accused bad character is admissible if the defendant has made attack on another person’s character if he “adduces evidence attacking the other’s character; ask questions in cross-examination that are intended to elicit such evidence or, evidence is given on imputation about the other person made by the defendant.” S.106(2) reprises the definition of “bad character” set out in s.98 and s.112, further defines the notion of “evidence attacking other person’s character”. It is very depends on the defendant’s credibility in relation to any conviction if one attacked a witness’s character under the old law. The new CJA 2003 and the Court of Appeal have been vigilant to ensure that only convictions which are direct evidence of untruthfulness as opposed to generalised dishonesty are admissible, which is the defendant’s truthfulness. The Court of Appeal has made it clear that once an attack is launched on the character of another person, then evidence of any conviction may be admitted to undermine the credibility of the defendant.

In R v Highton, the appellant was charged with kidnapping, robbery and theft. He accused the complaints of lying and his previous conviction were admitted pursuant to s.101(1)(g). The Court of Appeal said that a distinction must be drawn between the admissibility of bad character evidence. Lord Woolf made clear that the use of bad character evidence depends on matters to which it is relevant rather than to the gateway through which it is admitted. When depends on the accused having attacked on another person’s character the evidence may depend the facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged. Similarly, evidence admitted under gateway (d) to show propensity may also have relevance to credibility. In rejecting the notion that evidence of propensity to commit offence is only admissible via S.101(1)(d), Lord Woolf CJ made reference neither to the Act’s loose-knit Explanatory Note nor to the view advanced by the judicial Studies Board’s Criminal Committee.

The full implications of Lord Woolf’s reasoning became explicit in R v Campbell. The defendant who had previous convictions was charged with assault and violence to his girlfriend. The Court of Appeal dealt with the issue of a propensity to untruthfulness. Lord Philips CJ rejected the submission that direction to the jury have to regard to bad character evidence for some purposes and it “would be to revert to the unsatisfactory practices that prevailed under the old law” if disregarding its relevance in other respects. Lord Philips directed the jury that they must not convict the appellant on the basis of bad character but that they could use the previous convictions s.101(1)(d)CJA 2003 to help resolve the issue. His lordship stated that the changed introduced by the 2003 Act should be the occasion for simplifying the directions to juries and decisions before 2003 Act are unhelpful and should not be cited.

The primary ground of appeal was that the appellant had two previous convictions to which he had pleaded guilty, had no bearing on his propensity to tell the truth and argued that there was misdirection that rendered the jury’s verdict unsafe. The Court held that whether a defendant has a propensity for being untruthful would not normally be capable of being described as “an important matter in issue” unless telling lies was an element of the offence in question and a propensity to be untruthful would not establish the defendant was guilty of the offence charged. S.103(1)(b) provides “the question whether the defendant has a propensity to be untruthful in any respect, except where it is not suggested that the defendant’s case is not untruthful in any respect.” The court concluded that the judge had given the jury the Judicial Studies Board’s specimen direction without relating them to the facts of the case and was unlikely to have been very helpful. However, they did not considered the judge’s direction could have led the jury astray and that it did not affected the verdict. The appeal was dismissed.

Prior to the 2003 Act the bad character of the defendant was admissible primarily either under the similar fact doctrine or the Criminal Evidence Act 1898. In contrast, where bad character was brought out in cross-examination, under the 1898 Act this evidence was primarily relevant to the credibility of the defendant and not directly relevant to the issue of guilt. Under CJA 2003 evidence of the defendant’s bad character remains generally inadmissible prior to a finding of guilt but s.101(1) provides seven gateways, where such evidence may be admitted. One question before the Court in Campbell was whether the use to which the evidence could be put depended on the gateway through which it was admitted. In this case s.101(1)(d) was used to admit two of the defendant’s previous convictions.

In Highton and Campbell the issue concerned previous convictions admissible under gateway (g). The consequence adopted by Lord Chief Justice, evidence of propensity to commit offences can now be admitted under s.101(1)(g) even it is not relevant to an important matter in issue between the prosecution and the accused(s.101(1)(d)) or does not have substantial probative value in relation to an important matter in issue between the accused and co-accused(s.101(1)(e)). It seems most unlikely that this is the parliament’s intention. In R v Meyer the appellant had been convicted of causing grievous bodily harm with intent. The judge directed the jury that the previous convictions of the accused were potentially relevant to credibility. It was held that previous convictions had no impact on his credibility and the appeal was allowed. It is clear from Meyer and Campbell the judge must ensure a clear direction to the jury on the use of bad character to which it is relevant.

Before the 2003 Act, the earlier commission of commonplace offences in a commonplace way was not of sufficient probative worth to be admitted when a defendant was later charged with the same commonplace offence committed in the same commonplace way. It seems clear, however, that such evidence can now be admitted. In R v Hanson, evidence was held admissible under s.101(1)(d) of a considerable number of previous convictions for burglary and theft from a dwelling. Similarly in R v Gilmore, three previous convictions for shoplifting were admissible to show propensity to steal although the judge had erred in considering the dates of the convictions rather the dates of the offence. Pre-2003 Act will continue to apply when assessing whether an attack has been made on another person’s character under s.101(1)(g) provided it was compatible with s.106.

Evidence admissible under s.101(1)(g) is open to discretionary exclusion under s.103(1). In R v Burke, Aukner LJ rehearsing the cardinal principle set out in Selvey v DPP upon which the discretion to exclude was exercised under s.1(3)(ii) CEA 1898, said that the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, the jury should form their judgment on material whether the accused is any more worthy of belief than those he has attacked.

Regarding the various discretion that can apply to bad character evidence, it seems arguable that there is material difference between evidence admitted via gateway (d) and (g). The court can only contemplate excluding evidence under the “unfairness discretion” of s.101(3) “on an application by the defendant to exclude it.” In contrast, the “unjustness discretion” must automatically considered by the court. If a defendant apply to exclude bad character evidence under s.101(1)(g) but the evidence is also held to go to propensity under s.101(1)(d), the defendant will be deprived from the protection of “unjustness discretion”, the evidence only applied to one of its purposes as in Highton and Campbell. A further problem arises regarding the notice requirement. Pt.35.4(1) of the Criminal Procedure Rules 2005 provides that notice must be given under s.101 CJA 2003 in order for prosecution to raise bad character evidence. However, it seems nothing to suggest that failure to comply with the notice provisions will of itself prevent the admission of the evidence, without unfairness being shown.

Since the CJA 2003 come into force a defendant enjoys less protection than he did under the CEA 1898.The rule merely gave rise to a certain intellectual untidiness, which troubled the sensibilities of the Law Commission. The 2003 Act has introduced a highly uncertain regime, where one can anticipate consideration variation from one court to another. There is suggestion for a reversion to the orthodox common law rule and 1898 statutory provisions practice might free the court to focus more intensively on the application of its decisions. However, the new regime does has its benefits and not yet reach a “nightmare of constitution” situation, the 2003 Act should be amended and reform on it despite of abolishing it. It would be clear that the judge must exercise care when summing up

the case, and directions must be given to the jury on the relevance of bad character evidence. Furthermore, there should be a duty on the court to give reasons for its ruling, Last but not least, the CJA 2003, like any other statute, must be interpreted in the light of the European Convention on Human Rights, Art 6(2) of which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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