Evidence Of Bad Character

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It has long been a guiding principle of English criminal law that the prosecution cannot use as part of its case evidence which tends to show nothing more than the bad character of the accused, except in well-defined circumstances. This article discusses how this principle has been developed over the years and, in particular, what remains of it after the Criminal Justice Act 2003.

What is 'bad character

The law recongized, and continues to recongize, two main categories of evidence that amount to evidence of bad character:

  1. evidence that the accused has a disposition to commit offences of the same meta as that for which he is on trial (see evidence of disposition), and
  2. evidence that the accused, or another witness, can not be trusted to tell the truth (see evidence of untruthfullness)

However, while it seems fairly certain that 'bad character' goes beyond these two categories, it remains uncertain what its precise boundaries are. At least until the 1980s it seemed that homosexuality could amount to bad character (e.g., RVBishop1974), and passing remarks of the Court of Appeal in R v Redgrave (1981) suggested that evidence of heterosexuality might be considered evidence of good character (at least in a case involving an allegation of homosexual prostitution). The Criminal Justice Act 2003 provides at least a partial definition of bad character -- more on this point later.

Historical background

The admissibility of evidence of disposition was governed by the large body of case law that became known as the law ofsimilar fact evidence, except where the defendant'put his good character in issue' by calling witnesses to testify to his good character (see putting character in issue). In such circumstances, any relevant evidence of bad character could be adduced, including evidence of disposition and evidence of untruthfullness. The case of R v butterwasser (1940) established that the defendant who adduced evidence of the bad character of a prosecution witness was not putting his own good character in issue, and so could not have his bad character revealed.

The modern position before 2003

Until the passage ofcriminal evidence act (1898), the defendant could not testify in his own defence, so the common law had nothing to say about cross-examination as to his character -- disposition or truthfullness. With the 1898 Act came the right of the defendant to testify, and therefore be cross-examined. Consequently there are different rules governing the introduction of original evidence of bad character by the prosecution (see evidence in chief of bad character), and evidence which the prosecution might wish to elicit in cross examination (see CrossExaminationAsToBadCharacter). In outline, under the 1898 Act the defendant could be cross-examined to show his untruthfullness only if he put his own character in issue, or if he put the character of a prosecution witness in issue, or if he gave evidence for the prosecution of a co-defendant. The 1898 Act also allowed for the defendant to be cross-examined on his propensity to commit offences, in similar circumstances to those in whichsimilar fact evidence would be admitted. However, this practice was discouraged by the courts, which preferred evidence of disposition to be adduced by a witness as evidence in chief, not by the prosecution during cross-examination.

The law on bad character evidence until 2003 had a number of features which were frequent sources of criticism.

  1. If the defendant did not make character (his own or someone else's) an issue in his defence, then evidence of his bad character could not be adduced at all, however appalling his record might have been, unless the similar fact rules applied. This was the case whether or not the defendant testified on his own behalf
  2. If the defendant did not testify, he could attack the characters of other witnesses with impunity, so long as he did not make an issue of his own good character. It was only by testifying that s.1(3) of the 1898 Act came into play.
  3. Even if the defendant did testify, and engage s.1(3)(ii) by making an issue of character, or s.1(3)(iii) by testifying against a co-defendant, this only gave the prosecution a right to cross-examine on character. It did not create a right for the prosecution to tender witnesses to testify to the defendant's bad character.

In fact, the provisions of s.1(3) are often referred to as a 'shield' for the defendant. Providing none of the conditions in s.1(3) are satisfied, and the similar fact rules did not apply, the defendant was shielded from having his bad character exposed.

Bad character after the 2003 Reforms

The law in this area has now been radically revised by the CJA_2003 (although the relevant provisions are not yet in force at the time of writing).

Under the 2003 Act, 'bad 'character' has a broad definition: a 'disposition towards misconduct'. s.112 defines misconduct as commission of an offence or other reprehensible conduct. Undoubtedly a tendency to being untruthfull will constitute 'reprehensible conduct', but it is not entirely clear what else will. The Crown Prosecution Service, for example, suggests that a tendency to leave unpaid debts, or to have had a child taken into the care of the local authority, will qualify.

Note that the definition of bad character includes not only previous convictions, but also a disposition toward commission of offences. Superficially this appears to be disadvantageous for the defendant, but such a conclusion would be misconceived. The definition of 'bad character' sets out the kind of behaviour whose admissibility will be regulated by the Act; it does not set out what behaviour will be admissible. During the passage of the draft Bill through parliament, well-meaning objectors made the same mistake, and probably made the Act even more unfavourable to the defendant than it it now is. For example, the original formulation of bad character proposed by the Law Commission was

...commission of an offence or behaviour that, in the opinion of the court, might be viewed with disapproval by a reasonable person

This formulation was changed to reprehensible conduct after objections from civil rights-minded MPs who thought -- wrongly -- that a broad definition was harmful to the defendants' interests: the opposite is the case. Despite the way it appears on a casual reading, the Act does not allow for the admissibility of evidence that shows a disposition towards committing offences. So, for example, the fact that the defendant possessed pornography would not (despite what people are saying) automatically be admissible against him in a trial for, say, rape. On the contrary -- this evidence would be excluded, unless it fell within one of the categories in s.101(1).

However it is defined, evidence of bad character is admissible in the following circumstances (s.101-106):

  1. by agreement between the parties (101(1)(a));
  2. it is adduced by the defendant or on his behalf (101(1)(b)). For example, the defendant might prefer to give the alibi that he was in prison at the time of the offence rather than have no defence;
  3. it is necessary for an understanding of the case as a whole (101(1)(c));
  4. it tends to show that the defendant is untruthfull (103(1)(b));
  5. it tends to show that the defendant has a propensity to commit offences of the kind with which he is tried (103(1)(b) -- this can include evidence of previous convictions of the 'same description' or 'same category'(103(2)). The connection between this provision and the earlier similar fact rules will be discussed below;
  6. it is tendered by a co-defendant to show the untruthfullness of the defendant, in circumstances where the co-defendant's defence would otherwise be undermined (101(1)(e)) (this is a similar provision to that in s.1(3)(iii)) of the 1898 Act;
  7. it is tendered to correct a false impression made by the defendant (101(1)(f)). This, presumably, is equivalent to the common-law provision which allows bad character evidence to be adduced if the defendant puts his own good character in issue;
  8. the defendant has attacked another person's character (101(1)(g)).

So how are these new provisions different from the preceeding ones?

  1. Arguably the provision under para. (a) -- admission by agreement -- is different from the earlier law, although it is somewhat doubtful that the court would have taken the initiative to exlcude relevant evidence if neither the defence nor the prosection objected to it.
  2. Para. (b) -- inasmuch as it allows evidence given by the accused -- is not specifically provided for in the previous law, but there have been suggestions in case law that such evidence would be admitted.
  3. Para. (c) -- explanatory evidence -- again, is new, but its precise scope remains unknown.
  4. Para (d), and 103(2), deal with the 'similar fact' situation, but the scope is much expanded (see below).
  5. Para (e) -- evidence adduced by a co-defendant to prevent his case being undermined -- is arguable narrower than the corresponding provision in the 1898 Act, because it relates only to evidence that would tend to undermine the defence. Under the 1898 Act, if the defendant testified against the defendant at all, then his bad character was admissible. On the other hand, the new provision is broader because it can be invoked even if the defendant does not testify, but calls other witnesses that undermine the credibility of a co-defendant.
  6. Para (f) -- evidence to correct a false impression -- is analagous to the common-law provisions governing the defendant's giving evidence of his good character.
  7. Para (g) -- where the defendant makes an attack on another person's character -- is somewhat broader that the previous provisions because, again, it does no require that the defendant testify.

So, in summary, the substantial changes made by the 2003 Act are as follows.

  1. Previously, if the defendant neither testified nor put his own good character in issue, his bad character was not admissible except as similar fact evidence. Now evidence of disposition and evidence of untruthfullness will be admissible, if they are admissible at all, whether or not the defendant testifies, and whether or not he makes an issue of character.
  2. It is no longer relevant to the admissibility of bad character evidence whether the defendant chooses to testify or not. There may be reasons why the prosecution may prefer to adduce original evidence than cross-examine and, most likely, courts will express a preference for the former where the evidence goes to disposition, as they did under the 1898 Act
  3. Evidence Of Bad Character will be admissible if it is 'important explanatory evidence', although the scope of this provision has yet to be determined.
  4. The 2003 Act does not rule out the admission of 'similar fact' evidence, as it goes to show a disposition to commit offences of the meta charged. In fact, the Act goes further than the common law position in DPP v P by making the test simply whether the evidence is 'relevant to an important matter in issue'. The test that probative value outweights prejudicial effect is removed, and previous convictions of the same description or category will be admissible as a matter of course. What constitutes a 'category' is left to the Home Secretary to decide but, presumably, offences of violence will be a category, theft-related offences will be another, and so on. The Act also makes admissible evidence that goes to show the defendant's untruthfullness, but s.101(1)(d) does not allow for the automatic admissibility of bad character evidence other than previous convictions and untruthfullness.

The 2003 Act has the potential to weaken significantly the defendant's protection against his bad character being admissible as evidence. There are, however, a number of safeguards for the defendant. s.101(3) allows the defendant to challenge the admissibility of evidence of disposition or evidence of untruthfullness, if it is admitted under para (d) (disposition or untruthfullness) or (g) (attack on another person's character). The court must not admit it if it would have an adverse effect on the fairness of the trial. It is not entirely clear whether this creates a different protection for the defendant than that in s.78 of Pace, or not. The wording ('must' rather than 'may') suggests an obligation rather than a discretion to exclude, if the evidence would lead to unfairness. However, whether this difference has a practical significance is doubtful. It is also an open question whether s.78 will apply to the other triggers in s.101 -- it can be argued that, because a test for fairness is imported in paras (d) and (g), the Act is intended not to provide a similar test for the other triggers. Even the CPS has expressed some bafflement about this issue. They suggest that it is most likely that s.78 will continue to apply, but it will rarely be relevant.

An additional safeguard is found in s.107, which allows the court to stop the proceedings if it appears that character evidence is 'contaminated' (for example, falsified).

Note that it is not only the accused whose character may be put in issue; the purpose of cross-examination is to challenge the veracity of the evidence, and one way to do that is to show the poor character of the witness -- in particular, that is testimony cannot be trusted. Under the 2003 Act, s.100 defines the situations in which the bad character of a non-defendant can be adduced in evidence. In outline, the bad character of a non-defendant is admissible if it is 'important explantory evidence', or has 'substantial probative value'. s.101(3) gives examples of situations where bad character evidence has substantial probative value: first, where the witness's past misconduct has similar features to some other misconduct at issue; second, where it is suggested that the witness may, in fact, be the perpetrator of the offence for which the defendant is charged.

s.100 is a significant departure from the previous law, as it was essentially open season once a witness took the stand. Any evidence of bad character, even evidence of long-spent convictions, could be adduced to undermine the witness (although, to be fair, leave of the court was required in the specific instance of spent convictions). Under the new Act, leave of the court will be required before any evidence of bad character can be adduced against a non-defendant.

Criminal Law