Bad Character Evidence

Thursday, March 08, 2012 10:29 PM

2010: Critically evaluate whether s101(1)(d) of the CJA 2003 provides a more appropriate scheme for the admission of propensity evidence than the similar fact rules. Outline: How the law has changed - ithas become more inclusive, refer to s103 Evaluate whether the similar fact rules were appropriate, were they too restrictive as compared to the approach in the 2003 Act concentrating more on general propensity evidence Whether the 2003 Act legitimises jury prejudice(Lloyd Bostock/ Law Commission) and whether s103 is sufficient protection against this. Analyse the provisions in terms of legal v logical relevance and address the difference between evidence which makes guilt more likely and that which proves it.

The rules regarding bad character evidence before the CJA 2003 came into force were that the accused enjoyed a shield but could lose that shield in certain circumstances and lay himself open to cross-examination on previous convictions. Under the CJA 2003, the bad character of an accused may be admitted through seven gateways laid down by the Act. S101(1)(a-g). The first two gateways under (a) and (b) are not contentious. The evidence here would usually be admitted by the defendant himself about the bad character when he realizes that the evidence will inevitably be admitted under one of the other gateways. By volunteering information it is a way for him to suggest to the court that he is being frank and honest. And (c) is important explanatory evidence. So these three are relatively uncontroversial. The problem is when we come to gateway (d). It is potentially the widest and most far-reaching gateway. The evidence, to be admissible, must have relevance either to a fact in issue or to the credibility of the defendant. Matters in issue between the defendant and prosecution include the circumstances under s103(1) : There can be two ways in which this is determined: a. The propensity to commit the offence if the kind with which he is charged, unless it makes it no more likely that he is guilty of the offence. b. Whether the defendant has a propensity to be untruthful. Compare to the old law pre-2003 Act, it would be likened to evidence of misconduct previously admitted under similar fact evidence rules. Under the old law, the development of cases finally led up to the decision in Boardman which was clarified by DPP v P. In Boardman it was held that in order to be admissible under similar fact evidence rules, evidence must be relevant to an issue in the case, and its probative value must outweigh its prejudicial effect. As a result, propensity itself has been made a fact in issue in every case, so evidence of propensity will always be prime facie admissible. Although propensity evidence must have a probative value, there is no longer a requirement for judges to weigh that probative value against its prejudicial effect.

In Dpp v P, there must he sufficiently strong probative value to jusitfy its admission despite the prejudicial effect. There is again, no requirement for this balancing exercise to be performed where evidence of propensity is admitted under (d). So as long as the previous convictions are of the same description and also of the same category, then the evidence could be admitted regardless of the balancing out of prejudicial effect. But does the balancing out the prejudicial effect and the probative value really affect the prejudice (or lack of) of the fact-finders? In Lloyd Bostock's research they found that the jurors nowadays were not as easily swayed by bad character evidence as they would have been in the past, and that if they are prejudiced, their prejudice would be justified. One can only look to the policy of public interest in order to gain support for this argument that the prejudice is satisfied. We must go back to the principles of evidence: to protect the wrongful from conviction, but we also have to take into interest the affect that a wrongful acquittal would have on the victim, the victim's family or the general public. Would people feel safe in a country whose systems let criminals run loose because the rules of evidence pay such a restrictive role in admitting evidence just based on the fact that the jury might put too much weight into it. Has it been to restrictive? Look at the case law! The three step test in Hanson shows that the courts are not very unwilling to go down a path in which admissible evidence only need be logically relevant. Their three step test indicate that they are looking beyond probative value, but whether it is JUST to admit such evidence. And when they ask if it is just, it signifies that they are taking the justice consideration into view, that could mean to say they may be deciding the probative value in relation to prejudicial effect. Were the similar fact rules in the common law too restrictive? Yes maybe but they had a higher threshold and the Act's provisions do not really fit in with the whole picture if we take into account (a) and (b) as well because what would already be relevent would have been admitted by the defendant's themselves through those gateways anyway.

Has the provision legitimized jury prejudice? The Home Office Minister Baroness Scotland said that trials shoud be a search for the truth and the juries should be trusted with all the relevant evidence available to help them reach proper and fair decisions. Judges can exclude bad character evidence if they think it would be unfair or not in the interests of justice to include it. Problems: Prosecutors can bring weak cases and make blanket applications to adduce a defendant's bad character and the whole host of bad character evidence would lead to confusion and the two types of prejudice that juries are famous for: moral prejudice and prejudicial reasoning. So they may still convict the defendant regardless of whether they were satisfied that he was guilty. For example, gateway g where it can be compared to the tit for tat principle under the old law. Under the old law, the defendant could only attack the PW or the police and have his character then exposed by cross-examination and the evidence then can only be used to attack credibility, but now it can be used as propensity evidence and credibility evidence. Once the d says something about anyone anywhere about reprehensible behaviour would then expose him to a flurry of character attacks. In that case, he would not be defending his innocence in that particular charge, but against accusations made against any of his life's choices be it relevant or not. As compared to (d), where relevance is tantamount, there seems to be no protection here whatsoever for the defendant. Even by calling the victim a slag in Renda(Ball) exposed the defendant to cross-examination that revealed his political views, which by no means were that relevant to the jury . However, we can argue that if

the jury hear the evidence that does not seem to be relevant, they may wonder why was it admissible in the first place and if they should have given it more weight than they really ought to. This is the danger, the exposure of irrelevant evidence can encourage the jury to construe it differently and place more weight on it that what it really deserves, thereby making their prejudice UNJUSTIFIED. In this respect, the old law seems more protective, and for justifiable reasons as well. There is a balancing act to be carried out here, the competing interests of protecting the defendant's sacred right to the presumption of innocence as opposed to getting more convictions and avoiding wrongful acquittals by getting propensity evidence through the back door. To me, it seems like the 101(1)(d) is too broad and this tips the balance over against the defendant's favour. The defendant then has to have another right to counter the effect of the wide interpretation of (d). He has to make an application under s101(3) for the court to exclude the evidence. But why should he in the first place if there is a presumption of innocence? If he is making the application, is it not a sign that the burden of proof has shifted?

2011: The difference in the degree of probative value required by s100(1)(b) and s101(1)(d) in relation to the admission of bad character evidence is indefensible. Outline: Understand the provisions in question- s100(1)(b) requiring a substantial probative value to a matter in issue for non defendants, s101(1)(d) only requiring that the equivalent evidence be relevant where the bad character is that of the defendant. Rationales for providing greater protections to non defendants - the rebalancing agenda, the need for convictions preventing irrelevant/traumatising defence attacks. The interpretation of both provisions, has (d) actually let more evidence in? Analysis of whether the difference is justified.