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.
a 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 crossexamination 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.