Historically, there are both common-law and statutory commissariats regulating admissibility of character grounds in tribunal. In condemnable instances grounds of the accused ‘s good character is admissible with good ground, because there is a just and merely given that a individual of good character would non perpetrate a offense. The admissibility of good character grounds remains governed by the common jurisprudence. As for bad character, subdivision 3 of the Criminal Procedure Act 1865 provides, a party is non entitled to impeach the recognition if his ain informant by general grounds of his bad character.
By and large, there are two exclusions to the inadmissibility of bad character grounds, the “ similar fact grounds ” and the issue of the accused character. The exclusion was contained in s.1 ( 3 ) of The Criminal Evidence Act ( CEA ) 1898 where ( I ) the accused asserted his good character ; ( two ) where the old misconduct is an built-in portion of the offense ; and ( three ) where the accused give grounds against co-accused. However, the commissariats of s.1 ( 3 ) are frequently referred to as a `shield ‘ for the suspect to expose his bad character if the similar fact regulation did non use and conditions in s.1 ( 3 ) are non satisfied. Due to the defects of the old jurisprudence, The 2001 Law Commission Report[ 1 ]agreed that the bing jurisprudence lacked lucidity and led to inconsistency. The Law Commission recommended that a leave should be required before the admittance of bad character grounds. Lord Justice Auld[ 2 ]besides found the jurisprudence is extremely unsatisfactory. Sir Robin Auld favoured the revelation of the condemnable records of the suspects. Chapter 1 of the Criminal Justice Act ( CJA ) 2003 appeared to codify jurisprudence regulating admissibility of bad character grounds by get rid ofing the common jurisprudence regulations, amending s.6 of The Criminal Procedure Act 1865.[ 3 ]
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Section 99 of the CJA 2003 abolished all common regulations regulating bad character grounds in condemnable proceedings.[ 4 ]S.98 defines “ bad character ” as misconduct[ 5 ]other than that which has to make with the alleged facts of the offense with which the suspect is charged. Evidence of bad character covers misconduct whether or non improper and whether it resulted in strong belief or acquittal. The House of Lords determination in R V Z[ 6 ]where grounds on misconduct is admissible because it tends to demo that the accused was guilty of a old not guilty offense. Trusting on Z, Scott Baker LJ in R V Edwards[ 7 ]said that if grounds of old allegation is in rule admissible notwithstanding that the accused was acquitted of charges based on allegation in old test, grounds associating to allegation that had ne’er been tried should non be admissible is unquestionable. The word “ condemnable ”[ 8 ]carries with elements of blameworthiness or culpability depends on which positions are likely to differ.[ 9 ]In R v Weir[ 10 ], condemnable behavior is non behaviour which is condemnable. A lawful relationship with a younger miss does non amount to bad character grounds. The Court pointed out that s.103 ( 2 ) , a leaning to perpetrate offense may be proved by grounds of committee of other offenses, but is non confined to that. This is besides illustrated in R V Renda[ 11 ]but in the instance of suspects, grounds of misconduct will normally be limited to grounds refering to old strong beliefs.
Before the coming into force of CJA 2003, grounds of bad character of the accused was admissible merely with exclusion and a differentiation was drawn between grounds adduced because of relevancy to the issue of guilt and credibleness of accused as a informant in cross-examination. S.101 ( 1 ) CJA 2003 provides 7 gateways where ( a ) the suspect ‘s bad character is admissible in condemnable proceeding if all parties to the proceedings agree to the grounds being admissible ; ( B ) the grounds is adduced by the suspect himself or is given in reply to a inquiry asked by him in cross-examination and intended to arouse it ; ( degree Celsius ) it is of import explanatory grounds ; ( vitamin D ) it is relevant to an of import affair in issue between the suspect and the prosecution ; ( vitamin E ) it has significant probatory value in relation to an of import affair in issue between the suspect and a co-defendant ; ( degree Fahrenheit ) it is grounds to rectify a false feeling given by the suspect or ; ( g ) the suspect has made an onslaught on another individual ‘s character. S.101 ( 3 ) of CJA 2003 provides that the tribunal must non acknowledge grounds under subdivision ( 1 ) ( vitamin D ) or ( g ) if on an application by the suspect to except it, it appears to the tribunal that the admittance of the grounds would hold such an inauspicious consequence on the equity of the proceeding that the tribunal ought non to acknowledge it. In all fortunes other than s.101 ( 1 ) ( vitamin D ) and ( g ) , The Police and Criminal Evidence Act ( PACE ) 1984, s.78 gives the justice discretion to except prosecution grounds.[ 12 ]
S.101 ( 1 ) ( a ) allowed bad character grounds to be admitted by understanding of all parties. S. 101 ( 1 ) ( B ) permits grounds of bad character to be admitted by the accused himself without the leave of the tribunal when defense mechanism informant gave grounds of suspect ‘s ad character ; when the suspect uncover his old strong belief before test ; when there is no purpose to abduce grounds of old misconduct which sum to bad character. Section 101 ( 1 ) ( degree Celsius ) allows
grounds of the suspect ‘s bad character to be admitted where it is “ of import explanatory grounds ” designed to reflect the place at common jurisprudence which admitted what came to be known as “ background grounds ” . In R V Pettman,[ 13 ]Purchas LJ said that for the proposition that grounds demoing the suspect ‘s committee of the offense could be admitted if it was necessary to put it before the jury in order to finish, or do it comprehendible. S.102 farther provides that grounds is of import explanatory grounds if without it, the tribunal or jury would happen it impossible or hard to understand other grounds in the instance and, its value for understanding the instance as a whole is significant. This was somewhat different from the common jurisprudence regulation allowing the usage of background grounds, notwithstanding that it reveals the bad character grounds of the accused. In R V Edwards,[ 14 ]the statement of designation informant to recognize the accused was admitted under s.101 ( 1 ) ( degree Celsius ) supplying that it was inevitable that the jury, who would hold to be directed as to the cautiousness necessary in designation. Evidence of old history can be held admissible as in R v Philips.[ 15 ]The common jurisprudence governments will go on to supply valuable counsel since gateway ( degree Celsius ) in consequence gives statutory force to a philosophy established at common jurisprudence.[ 16 ]
Section 101 ( 1 ) ( vitamin D ) CJA 2003 “ it is relevant to an of import affair in issue between the suspect and the prosecution ” provides the admissibility of grounds traveling to the guilt of the accused every bit good as credibleness. S.101 ( 1 ) ( vitamin D ) is supplemented by s.103 ( 2 ) where “ affairs in issue ” include the inquiry of leaning to perpetrate the offense and whether the leaning is to be untruthful. S.103 ( 2 ) besides defines the classs of offenses which can be
admitted as leaning to include “ offenses of the same description ”[ 17 ]or the “ same class. ” Harmonizing to R V Chopra,[ 18 ]grounds of the accused ‘s leaning to pique in the mode charged was leading facie inadmissible at common jurisprudence, whilst under the 2003 Act it is leading facie admissible. Evidence of bad character relevant to the guilt and admissible under gateway ( vitamin D ) is non confined to grounds of leaning and similar fact grounds. At common jurisprudence, other types of misconduct were admissible to set up the prosecution ‘s instance. By using R V Grooves,[ 19 ]it was held in R V Yalman[ 20 ]that one time there was leading facie for Y to reply, the grounds of utilizing drugs was admissible on the issue whether he has wittingly involved in the importing. Following common jurisprudence rules, the admissibility of grounds relevant to the issue of guilt under s.101 ( 1 ) ( vitamin D ) will go on to run relating to the nature of defense mechanism. The impression for “ similar fact ” grounds to fall within a closed list of defined classs of relevancy was steadfastly rejected in Harris V DPP.[ 21 ]
S.101 ( 1 ) ( vitamin E ) stated that “ it has significant probatory value in relation to an of import affair[ 22 ]in issue between the accused and co-accused. ”[ 23 ]Section 104 ( 1 ) provinces that grounds of a leaning to be untruthful is admissible under S.101 ( 1 ) ( vitamin E ) merely if the nature or behavior of his defense mechanism is such as to sabotage the codefendant ‘s defense mechanism. In both Lowery V R[ 24 ]and R v Douglass,[ 25 ]where one accused adduces grounds of his ain deficiency of leaning and this goes to the issue of a co-accused guilt, the co-accused can name contradictory grounds. However in R V Randall[ 26 ]the House of Lords confined that there must be instances in which the leaning of one accused may be relied on by the other, irrespective of whether he has put his character in issue.[ 27 ]
S.101 ( 1 ) ( degree Fahrenheit ) CJA 2003 permits prosecution grounds to rectify a false feeling given by the suspect reflects an old common jurisprudence regulation. S.105 ( 1 ) ( a ) indicates that “ the false feeling must associate to the suspect, and grounds to rectify such feeling is grounds which has probatory value in rectifying it ( S.105 ( 1 ( B ) ) . ” S.105 ( 2 ) specifies under what fortunes the suspect is treated as being responsible in doing an averment. So by s.105 ( 3 ) a suspect can retreat or dissociate himself from a false feeling and most significantly s.105 ( 6 ) restricts the extent of the grounds which is admissible to that which “ goes no further than is necessary to rectify the false feeling. ” This is a going from the common jurisprudence regulation that allow cross-examination on the whole of a suspect ‘s character. In R V Winfield,[ 28 ]it was held that the prosecution were entitled to cross-examine accused about a old strong belief for dishonesty under the 1898 act.[ 29 ]However, such cross-examination would non be allowed under s.105 because the suspect had non created a false feeling about his character in relation to adult females which was the lone portion of his character that was relevant on a charge of indecorous assault.[ 30 ]
S.106 CJA 2003 supplemented S.101 ( 1 ) ( g ) , prosecution grounds of the accused bad character is admissible if the suspect has made attack on another individual ‘s character if he “ adduces grounds assailing the other ‘s character ; ask inquiries in cross-examination that are intended to arouse such grounds or, grounds is given on imputation about the other individual made by the suspect. ” S.106 ( 2 ) reprises the definition of “ bad character ” set out in s.98 and s.112, farther defines the impression of “ grounds assailing other individual ‘s character ” . It is really depends on the suspect ‘s credibleness in relation to any strong belief if one attacked a informant ‘s character under the old jurisprudence. The new CJA 2003 and the Court of Appeal have been argus-eyed to guarantee that lone strong beliefs which are direct grounds of untruthfulness as opposed to generalised dishonesty are admissible, which is the suspect ‘s truthfulness. The Court of Appeal has made it clear that one time an onslaught is launched on the character of another individual, so grounds of any strong belief may be admitted to sabotage the credibleness of the suspect.
In R v Highton,[ 31 ]the plaintiff in error was charged with snatch, robbery and larceny. He accused the ailments of lying and his old strong belief were admitted pursuant to s.101 ( 1 ) ( g ) . The Court of Appeal said that a differentiation must be drawn between the admissibility of bad character grounds. Lord Woolf made clear that the usage of bad character grounds depends on affairs to which it is relevant instead than to the gateway through which it is admitted. When depends on the accused holding attacked on another individual ‘s character the grounds may depend the facts, be relevant non merely to credibleness but besides to leaning to perpetrate offenses of the sort with which the suspect is charged. Similarly, grounds admitted under gateway ( vitamin D ) to demo leaning may besides hold relevancy to credibleness. In rejecting the impression that grounds of leaning to perpetrate offense is merely admissible via S.101 ( 1 ) ( vitamin D ) , Lord Woolf CJ made mention neither to the Act ‘s loose-knit Explanatory Note nor to the position advanced by the judicial Studies Board ‘s Criminal Committee.[ 32 ]
The full deductions of Lord Woolf ‘s logical thinking became expressed in R V Campbell.[ 33 ]The suspect who had old strong beliefs was charged with assault and force to his girlfriend. The Court of Appeal dealt with the issue of a leaning to untruthfulness. Lord Philips CJ rejected the entry that way to the jury have to see to bad character grounds for some intents and it “ would be to return to the unsatisfactory patterns that prevailed under the old jurisprudence ” if ignoring its relevancy in other respects. Lord Philips directed the jury that they must non convict the plaintiff in error on the footing of bad character but that they could utilize the old strong beliefs s.101 ( 1 ) ( vitamin D ) CJA 2003 to assist decide the issue.[ 34 ]His Lordship stated that the changed introduced by the 2003 Act should be the juncture for simplifying the waies to juries and determinations before 2003 Act are unhelpful and should non be cited.
The primary land of entreaty was that the plaintiff in error had two old strong beliefs to which he had pleaded guilty, had no bearing on his leaning to state the truth and argued that there was misdirection that rendered the jury ‘s finding of fact unsafe. The Court held that whether a suspect has a leaning for being untruthful would non usually be capable of being described as “ an of import affair in issue ” unless stating prevarications was an component of the offense in inquiry and a leaning to be untruthful would non set up the suspect was guilty of the offense charged. S.103 ( 1 ) ( B ) provides “ the inquiry whether the suspect has a leaning to be untruthful in any regard, except where it is non suggested that the suspect ‘s instance is non untruthful in any regard. ” The tribunal concluded that the justice had given the jury the Judicial Studies Board ‘s specimen way without associating them to the facts of the instance and was improbable to hold been really helpful. However, they did non considered the justice ‘s way could hold led the jury astray and that it did non affected the finding of fact. The entreaty was dismissed.
Prior to the 2003 Act the bad character of the suspect was admissible chiefly either under the similar fact philosophy or the Criminal Evidence Act 1898. In contrast, where bad character was brought out in cross-examination, under the 1898 Act this grounds was chiefly relevant to the credibleness of the suspect and non straight relevant to the issue of guilt. Under CJA 2003 grounds of the suspect ‘s bad character remains by and large inadmissible prior to a determination of guilt but s.101 ( 1 ) provides seven gateways, where such grounds may be admitted. One inquiry before the Court in Campbell was whether the usage to which the grounds could be put depended on the gateway through which it was admitted. In this instance s.101 ( 1 ) ( vitamin D ) was used to acknowledge two of the suspect ‘s old strong beliefs.
In Highton and Campbell the issue concerned old strong beliefs admissible under gateway ( g ) . The effect adopted by Lord Chief Justice, grounds of leaning to perpetrate offenses can now be admitted under s.101 ( 1 ) ( g ) even it is non relevant to an of import affair in issue between the prosecution and the accused ( s.101 ( 1 ) ( vitamin D ) ) or does non hold significant probatory value in relation to an of import affair in issue between the accused and co-accused ( s.101 ( 1 ) ( vitamin E ) ) . It seems most improbable that this is the parliament ‘s purpose. In R V Meyer[ 35 ]the plaintiff in error had been convicted of doing dangerous bodily injury with purpose. The justice directed the jury that the old strong beliefs of the accused were potentially relevant to credibleness. It was held that old strong beliefs had no impact on his credibleness and the entreaty was allowed. It is clear from Meyer and Campbell the justice must guarantee a clear way to the jury on the usage of bad character to which it is relevant.[ 36 ]
Before the 2003 Act, the earlier committee of platitude offenses in a platitude manner was non of sufficient probatory worth to be admitted when a suspect was subsequently charged with the same platitude offense committed in the same platitude manner. It seems clear, nevertheless, that such grounds can now be admitted. In R V Hanson,[ 37 ]grounds was held admissible under s.101 ( 1 ) ( vitamin D ) of a considerable figure of old strong beliefs for burglary and larceny from a home.[ 38 ]Similarly in R V Gilmore,[ 39 ]three old strong beliefs for shoplifting were admissible to demo leaning to steal although the justice had erred in sing the day of the months of the strong beliefs instead the day of the months of the offense. Pre-2003 Act will go on to use when measuring whether an onslaught has been made on another individual ‘s character under s.101 ( 1 ) ( g ) provided it was compatible with s.106.[ 40 ]
Evidence admissible under s.101 ( 1 ) ( g ) is unfastened to discretional exclusion under s.103 ( 1 ) . In R V Burke,[ 41 ]Aukner LJ practising the central rule set out in Selvey V DPP[ 42 ]upon which the discretion to except was exercised under s.1 ( 3 ) ( two ) CEA 1898, said that the test justice may experience that if the recognition of the prosecuting officer or his informants has been attacked, the jury should organize their judgement on stuff whether the accused is any more worthy of belief than those he has attacked.[ 43 ]
Sing the assorted discretion that can use to bad character grounds, it seems arguable that there is material difference between grounds admitted via gateway ( vitamin D ) and ( g ) . The tribunal can merely contemplate excepting grounds under the “ unfairness discretion ” of s.101 ( 3 ) “ on an application by the suspect to except it. ” In contrast, the “ unjustness discretion ” must automatically considered by the tribunal. If a suspect apply to except bad character grounds under s.101 ( 1 ) ( g ) but the grounds is besides held to travel to leaning under s.101 ( 1 ) ( vitamin D ) , the suspect will be deprived from the protection of “ unjustness discretion ” , the grounds merely applied to one of its intents as in Highton and Campbell. A farther job arises sing the notice demand. 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 grounds.[ 44 ]However, it seems nil to propose that failure to follow with the notice commissariats will of itself prevent the admittance of the grounds, without unfairness being shown.[ 45 ]
Since the CJA 2003 come into force a suspect enjoys less protection than he did under the CEA 1898.The regulation simply gave rise to a certain rational untidiness, which troubled the esthesias of the Law Commission.[ 46 ]The 2003 Act has introduced a extremely unsure government, where one can expect consideration fluctuation from one tribunal to another.[ 47 ]There is suggestion for a reversion to the Orthodox common jurisprudence regulation and 1898 statutory commissariats pattern might liberate the tribunal to concentrate more intensively on the application of its determinations. However, the new government does has its benefits and non yet make a “ incubus of fundamental law ” state of affairs, the 2003 Act should be amended and reform on it despite of get rid ofing it. It would be clear that the justice must exert attention when summing up
the instance, and waies must be given to the jury on the relevancy of bad character grounds. Furthermore, there should be a responsibility on the tribunal to give grounds for its opinion,[ 48 ]Last but non least, the CJA 2003, like any other legislative act, must be interpreted in the visible radiation of the European Convention on Human Rights, Art 6 ( 2 ) of which provides that everyone charged with a condemnable offense shall be presumed guiltless until proved guilty harmonizing to jurisprudence.