Evidence of Bad Character

J R Spencer

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781509900053
• Edition: 1
• Topic: Droit
• Subtopic: Procédure pénale

This is the third edition of J R Spencer's now well established book which seeks to explain this area of law for the benefit of judges, criminal practitioners and academics teaching the law of evidence.
In the past, the rule excluding evidence of the defendant's general bad character and disposition to commit the offence was sometimes described as one of the most hallowed rules of evidence; Lord Sankey, in Maxwell v DPP, referred to it as '...one of the most deeply rooted and jealously guarded principles of our criminal law.' In reality it was not particularly ancient, and as the years went by it was increasingly attacked. On technical grounds the body of law surrounding it was criticised as over-complicated and inconsistent, and more radical critics condemned it as unduly favourable to the guilty. In response to this, the law was completely recast in Part 11 of the Criminal Justice Act 2003. This book, now again updated to take account of further legislative changes, case-law and academic writing, offers a thorough analysis of the bad character provisions of the Criminal Justice Act 2003 in the light of the way in which they have been interpreted by the courts.

1

Introduction

1.1 In English law, the defendant’s character, whether good or bad, has always been considered relevant to sentence, insofar as the court had a discretion as to the sentence to impose.¹ It therefore goes without saying that evidence of the defendant’s bad character has always been admissible in evidence at the sentencing stage. Indeed, in the past the legal system has taken considerable trouble to ensure that the sentencing court is made aware of the criminal record of the defendant, if he had one: for several centuries, first-time offenders convicted of theft or manslaughter were branded on the thumb, in order to make absolutely sure that they would be sentenced with the full rigour of the law if they appeared in court again.²

1.2 By contrast, the courts were traditionally reluctant to treat the defendant’s bad character as admissible evidence at the earlier stage of the proceedings at which his guilt or innocence is determined. Until the Criminal Justice Act (CJA) 2003, the position at trial was that a defendant with a clean record could adduce his good character as evidence in the hope of persuading the court that he was less likely to have committed the offence charged, or more credible in his evidence, or both;³ but a defendant whose character was bad could not in general have this used in evidence against him at the trial.

1.3 In the past, the rule excluding evidence of the defendant’s general bad character and disposition to commit the offence as evidence at trial was sometimes described as one of the most hallowed rules of evidence. In Maxwell v DPP Lord Sankey described it as ‘one of the most deeply rooted and jealously guarded principles of our criminal law’,⁴ and its invention was traditionally ascribed to the common lawyer’s inherent sense of decency and fair play.⁵

1.4 In reality, however, the common law rule was not particularly ancient,⁶ as it only dated from the middle of the nineteenth century. And although the common lawyer’s inherent sense of fair play was undoubtedly one of the reasons for its creation, it was only one of them. Reasons that reflect less credit on the common law were the absence in those days of any rules about pre-trial disclosure, which meant that such evidence, if admitted, would have been particularly difficult to challenge, and the limited time available for trials, which made the judges particularly reluctant to devote any of it to matters not directly relevant.⁷

1.5 In the closing years of the twentieth century the rule excluding evidence of bad character was increasingly attacked. On technical grounds, the body of law surrounding it was criticised as over-complicated and inconsistent, and more radical critics condemned it as unduly favourable to the guilty. It was in response to this that it was completely recast in Part 11 of the CJA 2003.

Technical Criticisms of the Previous Law

1.6 In broad outline, the basic rule was not difficult to state. The classic formulation was made by Lord Herschell in Makin v Attorney-General for New South Wales:⁸

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

But, as Lord Herschell admitted, if the principles themselves are clear ‘the application of them is by no means free from difficulty’. Around the basic rule, a large body of detailed law grew up. This evolved as three separate groups of rules, governing three situations: the defendant’s bad character as evidence in-chief, the defendant’s bad character as a topic of cross-examination, and the defendant’s bad character as evidence for a co-defendant. One criticism of the resulting body of law was that, in each group, the principle was interpreted in different ways. Writing retrospectively in 2015, Professor Mike Remayne concludes: ‘In my view, the lessons to be drawn from the pre-2003 case-law are largely negative: this is not the way to do things.’⁹

1.7 Another technical criticism was the gulf between the rules governing evidence of the defendant’s character and disposition, and the rules on evidence of the character and disposition of other people (and in particular, prosecution witnesses). For defendants, the rule was that they could produce evidence of their good character if they had one, but their bad character could not generally be used against them. For witnesses, the position was the reverse: a witness was liable to have his discreditable past brought up against him to undermine his credibility, but his good character could not generally be used to enhance it.¹⁰ A related criticism centred upon what frequently happened in sex cases. Although the defendant’s record for sexual misbehaviour (if he had one) was usually suppressed, at common law the defence could use the complainant’s irregular sex-life in an attempt to discredit her or her complaint. This led to legislative intervention in 1976 and again in 1999.¹¹

Radical Criticism

1.8 The rule was also criticised more radically as counter-intuitive and unduly favourable to the guilty. The radical critics argued that it is not unfair to assume that a person with a demonstrably bad character is more likely to be guilty of the offence charged than a person whose character is demonstrably good. So this is a piece of background information which the tribunal of fact should know—and should be trusted to give the appropriate degree of weight.

1.9 The rule was also said to be unrealistic. In practice, the jury or magistrates sometimes know that the defendant has a criminal record, and where they do not know, may guess (and possibly guess wrong). The point was well illustrated by a letter from a former juror to The Times some years ago:

I see that after a recent trial at the Old Bailey … some jurors burst into tears, when having acquitted a defendant of murder they were told that he had previous convictions. I would have thought that it was very easy to know whether a defendant had a murky past, although the jury is not supposed to take this into consideration in their deliberations. It is my experience, having sat on several juries, that if the defendant has a clean past record the defending counsel will make a big thing of this, and even if the defendant has pleaded guilty, counsel will say that the present position of the defendant is due to a temporary lapse of honesty. If, however, the defendant has a bad record, defending counsel keeps very quiet on this point. My experience resulted in only a small sample, but it seemed to work every time.¹²

Because of this, it would be better, some said, if the matter were brought out into the open and the fact-finders were given official information about the defendant’s antecedents which is accurate.¹³

1.10 Radical critics also pointed out that in continental Europe, including in countries where as here the system is broadly ‘adversarial’, and those where lay people are involved as fact-finders, the court is routinely informed about the defendant’s criminal record. In theory, continental courts regard evidence about the defendant’s character as mainly relevant to sentence, and hear his antecedents at the start of the proceedings because—unlike in England—the finding of guilt and the sentencing take place at one single session, at which evidence relevant to guilt or innocence and evidence relevant to sentence are heard together. But whatever the theoretical position may be, in practice continental courts are undoubtedly influenced by information about the defendant’s character when deciding the issue of his guilt, at least to some extent. And this is not generally criticised as tending to produce injustice.

1.11 Radical criticism of the exclusionary rule was accentuated by various high-profile cases where, following a defendant’s acquittal, he was shown to have a record that appeared to put his guilt beyond doubt. One such case was that of Simon Berkowitz, who in 1992 was accused of burgling the offices of Paddy Ashdown’s solicitor and stealing papers relating to an embarrassing incident in Mr Ashdown’s private life, which he had then tried to sell to the News of the World for £30,000. His defence was that he had been given them, for nothing, by a man he had met in a pub, whose identity he did not know, and the jury acquitted him. It then came out that he had a record of 240 previous convictions, 230 of them for burglary.¹⁴ A similar reaction was provoked by the case of William Beggs. In 1987, Beggs was convicted of murdering a man by slashing him with a razor-blade, the court hearing evidence of several earlier incidents in which he had apparently cut men for no intelligible reason. In 1990, the Court of Appeal quashed his conviction, because evidence of the other incidents should not have been admitted.¹⁵ Then in 2001 he was convicted of another and particularly gruesome murder. The detective responsible for his arrest in 1987 told the BBC that when his earlier conviction was quashed he was ‘quite aghast at what had happened’.¹⁶

1.12 Looking back on the old law retrospectively, Redmayne mentions less high-profile cases in which there can be equally little doubt that exclusionary rule led to wrongful acquittals.¹⁷

The Law Commission’s Proposals

1.13 In 1994, the Home Secretary referred the rules on evidence of previous misconduct t...