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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(17) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(17).html Cite as: [2001] EWLC 273(17)

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PART XVII PROCEDURAL AND ANCILLARY MATTERS

A NOTICE REQUIREMENT

17.1      As we wrote in the consultation paper,^[1] the accused may be unfairly disadvantaged in the trial if he or she has not anticipated that acts other than those alleged in the charge will be raised. This was historically one of the reasons for the rule against evidence of bad character,^[2] and also justifies the view that bad character evidence which is admissible in chief should not be saved until the cross-examination of the accused.^[3] Presently, there are obligations on the prosecution to disclose evidence,^[4] so the defendant should not be ambushed by evidence of bad character. There is some risk that a defendant at summary trial may be ambushed by an attack by a co-defendant, as there is no obligation for the defence to disclose its case in advance (except for expert evidence)^[5] but it may be that in practice this will rarely occur.^[6] There is less risk of an ambush by a coaccused in the Crown Court as the defence is required to submit a defence statement in advance.^[7] If one party is taken by surprise, it may always apply for an adjournment. For all these reasons, this danger does not seem to be as significant as it has been historically.

17.2      In the consultation paper we stated that "Any system permitting the admission of previous misconduct evidence should contain safeguards against such evidence taking the defendant by surprise." ^[8] Unsurprisingly, no respondents opposed this.

17.3      We recommend that where a party wishes to adduce evidence of the defendant's bad character which does not have to do with the offence charged, and is not evidence of misconduct in connection with the investigation or prosecution of that offence, that party should be required to give notice of the intention to do so, but that requirement may be dispensed with by the court or the defendant.

17.4      The party against whom the evidence is to be given should be able to waive the notice requirement. We consider that the court too should be able to waive the notice requirement if it is in the interests of justice for the evidence to be admitted without the prescribed notice having been given. This might well be the case where the defendant is not in fact prejudiced by the lack of notice. Rules of court are the most appropriate way for this recommendation to be effected.^[9]

17.5      This requirement applies for whatever purpose the evidence is sought to be admitted. For example, in the case of evidence being potentially admissible to correct a false impression under clause 10^[10] a defendant might make a false claim about her own character in the police interview. She might be alleged to be the perpetrator of a continuing business fraud but claim in interview to be an honest but naïve business woman. The prosecution might want to adduce the interview as part of its case but suggest editing it to exclude the false claim. The defendant might not agree to such editing as she does not plan to give evidence and wants this material before the jury. In such a case, the prosecution would want to have the opportunity to contradict the false claim by seeking leave to adduce evidence of her previous convictions for offences of dishonesty or concerning the management of companies. It would be reasonable that they should have to give advance warning of wishing to do so as the decisions of the defendant may be affected by the outcome of such an application for leave.

PRE-TRIAL RULINGS

17.6      We believe that questions of admissibility should, where possible, be resolved before the trial and, where this is not possible, at the start of the trial.^[11] In the case of a trial on indictment, the appropriate place and time would be at the Plea and Directions Hearing.^[12] In fraud cases,^[13] and in other long and complex cases on indictment,^[14] the appropriate time would be at a preparatory hearing. In the case of a summary trial, it would be at a pre-trial review,^[15] if one is held, but only if it was conducted by a bench.^[16] In many cases rulings on the admission or exclusion of such evidence might affect the plea, or the question of whether the proceedings are to continue, so that an early ruling might well lead to an earlier conclusion of the case.

17.7      Section 40 of the Criminal Procedure and Investigations Act 1996, provides that a judge may make a ruling on the admissibility of evidence at a pre-trial hearing which is binding from the time it is made until the case is disposed of.^[17] A judge may subsequently discharge or vary any ruling if it appears to be in the interests of justice to do so, and this power may be exercised on the application of any party to the case or by the court of its own motion.^[18] We see no reason to exempt evidence of bad character from this general provision. We also consider that where magistrates make pre-trial rulings on evidence, their rulings should also be binding.^[19]

A DUTY TO GIVE REASONS

The common law

17.8      In the civil arena, the failure to give reasons for a conclusion essential to the decision at first instance is in itself good grounds for appeal. This was held in Flannery v Halifax Estate Agencies Ltd^[20] where the essential decision was the preference of the evidence of one expert witness over that of another. The Court of Appeal considered the duty to give reasons to be a function of due process. A party should be in no doubt as to why they had won or lost the case and whether the court had misdirected itself so as to enable the losing party to consider whether he might appeal. The extent of the duty to give reasons varies depending on the decision and the circumstances.^[21]

17.9      In the criminal sphere, the absence of a detailed ruling on the admissibility of evidence will not necessarily attract criticism,^[22] but recent authority indicates this may not always be the case:

In our judgment, on this aspect of the matter, the judge plainly did not give reasons for admitting the statements. It is clear that he should have done so. It is clear that the reasons for exercising the discretion under section 26 [of the Criminal Justice Act 1988], like the reasons for exercising any other discretion, ought to be given by the trial judge, however briefly. That has been the position in English law for many years and it is a matter to which Article 6 of the European Convention gives added emphasis.^[23]

17.10      In the Crown Court, reasons should be given for the Crown Court's decision on appeal from a magistrates' court, allowing the parties to know the nature of the criminality the appeal court had found and to consider whether to apply to state a case.^[24] The duty to give reasons applies equally where the court has found for the defendant as on the upholding of a conviction.^[25] This duty is not absolute.^[26]

17.11      Magistrates have no general duty to give judgments or reasons for their decisions and will not necessarily be criticised for their failure to give reasons.^[27] However, there is support for the approach that reasons should be given, in order to assist the defence in considering possible grounds of appeal.^[28]

The ECHR jurisprudence

17.12      Article 6, the right to a fair trial, requires a court to give reasons for its judgment, enabling the defendant to challenge the court's decision on appeal,^[29] but this duty does not extend to all decisions. It is dependent on the nature of the decision and the circumstances of the case. Where a submission to the judge would be decisive of the outcome of the case if accepted, specific and express reasons are required.^[30]

17.13      The relevant consideration is whether the inclusion or exclusion of evidence of previous misconduct is decisive to the outcome of the trial. Reasons must be given for the ultimate judgment,^[31] a major component of the complaint,^[32] or a point allowing the case to be heard such as the application of time-bars:^[33] these are all decisive matters. The reasoning in Hadjianastassiou is also relevant: reasons may be required to allow the defendant to adequately assert his right to appeal.^[34]

Conclusion

17.14      In the Crown Court a judge will usually find it necessary to give reasons for a ruling on admissibility of evidence. In summary hearings, it will not necessarily be known at the time a decision is made on the admissibility of bad character evidence whether it will play a decisive role in the verdict, and even at the end of the summary trial, only the magistrates will know on what basis the defendant was convicted or acquitted. Thus the Strasbourg jurisprudence does not translate easily to the English context. The indications in the English case law have been that magistrates are not always required to give reasons, even in situations where one might expect them to have to do so. If the HRA 1998 has truly changed the position in summary trials, it will require an authoritative decision to say so. There is a trend in this direction, but so far no authority which requires magistrates to give reasons for their rulings, although where a case is appealed they may well do so.^[35]

17.15      We recommend that where a court

(1) rules on whether leave is required for evidence of bad character to be admitted, or

(2) gives or withholds such leave, or

(3) rules on whether the case should be stopped because of such evidence being contaminated,

it must give the reasons for the ruling in open court and those reasons must be recorded.

17.16      This recommendation is given effect by clause 15. In the Crown Court, reasons announced in open court must be entered in the record, by virtue of rule 18 of the Criminal Appeal Rules 1968, so the Bill does not need to make any provision in that respect, but there is no equivalent rule in respect of the magistrates' courts, hence subsection (1)(b).

WARNINGS TO THE JURY

A warning against speculation

17.17      There will no doubt be cases where jurors become aware that evidence about the defendant's criminal record might be being withheld from them. (This is one of the reasons that some put forward for disclosing the record in all cases.)^[36] Our view is that, where the defence agree, the best way to tackle this issue might be for the judge to address the jury directly on the point. As a judge may warn the jury not to speculate about any matter on which they have not heard evidence, so it may be appropriate for the warning to include the absence of evidence about the defendant's character.^[37] This is a course which is currently open to the court if the defence so request.

A warning against placing too much weight on evidence of past misconduct

17.18      One of the reasons that evidence of bad character should be treated with caution is, as we have said, because of the risk that fact-finders will place too much weight on it.^[38] For this reason, where the prosecution seeks to adduce such evidence against the defendant, we have recommended that there is an interests of justice test. Thus the risk of undue weight will be taken into account. The interests of justice may require the evidence to be admissible in spite of the risk of prejudice.

17.19      The current law is restrictive in that it requires the judge to direct the jury that evidence admitted under the 1898 Act goes only to credibility and is not relevant to the issue of guilt. Cases arise where such a rule sits ill with the evidence actually presented. Our view is that judges should be free to advise the jury as the individual case requires. The judge will no doubt start by pointing out the way in which the evidence is said to be relevant. The judge may well think it necessary to warn the jury of the risks of reasoning from past behaviour to a conclusion that the defendant is guilty. This will be especially so where the bad character evidence discloses misconduct of a similar nature to that alleged in the charge, and especially pertinent where the purpose of adducing the bad character evidence is for its relevance to the defendant's credibility (under the corrective or credibility exceptions at the behest of the prosecution, or under the co-defendant exception).^[39]

17.20      We conclude that the jury may need to be given warnings by the judge in two situations: first, where no evidence has been adduced about the defendant's character and there is a danger of speculation about it; second, where there is a danger that the jury will give undue weight to bad character evidence which is admitted.

SERVICE COURTS AND PROFESSIONAL TRIBUNALS

17.21      In the consultation paper we expressed the provisional view that any reforms that we recommended should apply in places where the criminal rules of evidence currently apply, namely courts-martial and professional tribunals established by statute.^[40]

17.22      Eighteen respondents expressly addressed this issue. The office of the Judge Advocate General drew our attention to statutory provisions which automatically apply the rules of evidence in civilian courts to service courts. The question was whether there would be any reason to disapply those provisions in the light of our recommendations. No respondents argued that there was any reason for the rules applicable in civilian criminal proceedings not to apply in service courts and professional tribunals in the usual way.

17.23      We recommend that the above rules should apply where the criminal rules of evidence currently apply, namely in courts-martial, summary appeal courts, the Court-Martial Appeal Court and Standing Civilian Courts, and in naval disciplinary courts and professional tribunals established by statute, but should not affect coroners' courts.

Ý
Ü   Þ

Note 1   Para 7.28.    [Back]

Note 2   Section 8 of the Treason Act 1695 provided that “no evidence shall be admitted or given of any overt act that is not expressly laid in the indictment against any person or persons whatsoever.” Foster explains this as arising “lest the prisoner should be surprised or confounded by a multiplicity and variety of facts which he is to answer upon the spot”: Crown Law (1st ed 1762) p 244. See also Phillips’ Case (1829) 1 Lew CC 105, 168 ER 977; Knapp and another v Haskall (1831) 4 CAR & P 590, 172 ER 838; Whiley and Haines (1804) 2 Leach 983, 168 ER 589; Gray (1866) 4 F & F 1102, 176 ER 924.    [Back]

Note 3   See, eg, Jones v DPP [1962] AC 635, 646, per Ashworth J (CA); at p 668, per Lord Denning; and at p 685, per Lord Morris.    [Back]

Note 4   At least in the case of indictable offences: Magistrates’ Courts (Advance Information) Rules 1985 (SI 1985 No 601) (offences triable either way); Magistrates’ Courts Act 1980, s 5, as substituted by Criminal Justice and Public Order Act 1994, Sched 4 (cases transferred to the Crown Court); and R v DPP, ex p Lee [1999] 1 WLR 1950 (offences triable only on indictment). In practice, the prosecution frequently, but not invariably, gives disclosure of evidence in summary only cases. Whilst there is no requirement to give advance disclosure, it ought to be given in contested cases and the court must take into account the impact of non-disclosure on the fairness of the trial as a whole, see R v Stratford Magistrates ex p Imbert [1999] 2 Cr App R 276. A magistrates’ court may order advance disclosure. Disclosure is governed by Part I of the Criminal Procedure and Investigations Act 1996: the prosecution is required to give at least primary disclosure (s 3) irrespective of the mode of trial.    [Back]

Note 5   Magistrates’ Court (Advance Notice of Expert Evidence) Rules, SI 1997 No 705 (L11), made pursuant to the Magistrates’ Courts Act 1980, s 144, and the CPIA 1996, s 20(3) and (4). If advance notice is not given, the leave of the court must be obtained before the evidence is adduced.    [Back]

Note 6   Under s 6 CPIA 1996, defence disclosure is voluntary before summary trials, but there is an incentive to give a defence statement where evidence of bad character may be an issue as the prosecution would therefore be required to give secondary disclosure under s 7.    [Back]

Note 7   Under the CPIA 1996 s 5 the defence is required, once primary disclosure requirements have been met by the prosecution, to disclose sufficient particulars of its case to identify the issues in dispute. A co-accused would therefore be obliged to give details of its case which could then be relayed to the defendant via secondary disclosure from the prosecution. Failure to give a defence statement may result in adverse comment being made: s 11.    [Back]

Note 8   Provisional conclusion 6(5).    [Back]

Note 9   See cl 16 of the draft Bill.    [Back]

Note 10   Clause 10 is described in Part XIII.    [Back]

Note 11   See, eg, the Hearsay Report, paras 11.8 – 11.11 and Recommendation 42.    [Back]

Note 12   At such hearings, the prosecution and the defence are expected to inform the court of (among other things) the issues in the case, any questions as to the admissibility of the evidence which appears on the face of the papers, and any application for evidence to be given by closed circuit television or to put in a pre-recorded interview with a child witness. Any rulings made at a Plea and Directions Hearing are capable of being binding under Part IV of the CPIA 1996.    [Back]

Note 13   A preparatory hearing may be ordered by a judge in a Crown Court trial when an indictment reveals a case of fraud of such seriousness and complexity that substantial benefits are likely to accrue from such a hearing: Criminal Justice Act 1987, s 7(1).    [Back]

Note 14   In such cases it is possible for a judge to order a preparatory hearing under the CPIA 1996, s 29.    [Back]

Note 15   Early Administrative Hearings, introduced under s 50 Crime and Disorder Act 1998, take place within two days of charge and are not an appropriate venue to deal with admissibility issues.    [Back]

Note 16   The general practice is that pre-trial reviews are conducted by a single justice or justices’ clerk, whose powers are limited to those contained in s 49 Crime and Disorder Act 1998 and who are therefore not able to decide admissibility issues.    [Back]

Note 17   A case is regarded as disposed of if the defendant is acquitted or convicted, or if the prosecutor decides not to proceed with the case: CPIA 1996, s 40(3).    [Back]

Note 18   CPIA 1996, s 40(4); but no application may be made by a party to the case unless there has been a material change of circumstances since the ruling was made: s 40(5).    [Back]

Note 19   There are no established guidelines for pre-trial reviews and at present such rulings are rare due to the tendency for pre-trial reviews to be conducted by single justices or justices’ clerks.    [Back]

Note 20   [2000] 1 WLR 377.    [Back]

Note 21   In R v Secretary of State for the Home Department, ex p Doody [1993] QB 157 Lord Mustill held that the applicants, who had been convicted of murder, were entitled to know the reasons behind the Secretary of State’s decision as to the length of the penal element which they had to serve. This was because the applicant had “an obvious human desire to be told the reason for a decision so gravely affecting his future …”, and because it was necessary to have this information in order to be able to mount an effective attack on the decision.    [Back]

Note 22   See Moss (1990) 91 Cr App R 371 at 375.    [Back]

Note 23   Denton, The Times, 22 November 2000; judgment 19 October 2000, para 35, per Rose LJ.    [Back]

Note 24   R v Snaresbrook Crown Court ex p Input Management Ltd (1999) 163 JP 533.    [Back]

Note 25   R v Inner London Crown Court, ex p London Borough of Lambeth [2000] Crim LR 303.    [Back]

Note 26   It was held in R v Kingston Crown Court, ex p B (A Juvenile) (2000) 164 JP 633 that there was no such requirement where the reasons for the decision were obvious or the subject of the appeal was unimportant.    [Back]

Note 27   R v The Southend Stipendiary Magistrate, ex p Rochford District Council [1995] Env LR 1. See also A v DPP [2000] Crim LR 572.    [Back]

Note 28   Archbold 15–440.    [Back]

Note 29   Hadjianastassiou v Greece (1993) 16 EHRR 219.    [Back]

Note 30   Hiro Balani v Spain (1995)19 EHRR 566.    [Back]

Note 31   Hadjianastassiou v Greece (1993) 16 EHRR 219.    [Back]

Note 32   Hiro Balani v Spain (1995) 19 EHRR 566: whether trade mark rights could be asserted over a similar name in an action to remove a trade mark from the register.    [Back]

Note 33   Ruiz Torija v Spain (1995) 19 EHRR 553.    [Back]

Note 34   Under Article 6(3).    [Back]

Note 35   Eg, Jackson J held in R v Kingston Crown Court, ex p B (a juvenile) that the Crown Court judge sitting in an appellate capacity was under a duty to give reasons, particularly as he was reversing a well-reasoned decision of the magistrates: (2000) 164 JP 633. In R v Crown Court at Canterbury ex p Howson-Ball the Divisional Court quashed the Crown Court decision (rejecting the appeal from the magistrates) because “in the absence of an analysis of the evidence that the Crown Court had heard, its reasons were inadequate”: (2000) JP 164 910.    [Back]

Note 36   See para 6.18 above.    [Back]

Note 37   As we suggest at para 6.24 above.    [Back]

Note 38   See para 5.18 above.    [Back]

Note 39   See paras 12.21, 13.47 - 13.48, and 14.35 above.    [Back]

Note 40   Provisional proposal 50. See Part XV of the consultation paper.    [Back]