The Law Commission (LAW COM No 273) EVIDENCE OF BAD CHARACTER IN CRIMINAL PROCEEDINGS Report on a reference under section 3(1)(e) of the Law Commissions Act 1965 Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty October 2001 Cm 5257 The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Carnwath CVO, Chairman Professor Hugh Beale Mr Stuart Bridge Professor Martin Partington Judge Alan Wilkie QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. The terms of this report were agreed on 8 August 2001. The text of this report is available on the Internet at: http://www.lawcom.gov.uk ii THE LAW COMMISSION EVIDENCE OF BAD CHARACTER IN CRIMINAL PROCEEDINGS CONTENTS Paragraph Page PART I: INTRODUCTION AND SUMMARY 1 The background to this report 1.1 1 The area of law covered in this report 1.3 1 Our approach 1.4 2 Our main recommendations 1.12 4 The structure of this report 1.24 6 PART II: THE PRESENT LAW 8 Exceptions to the rule of exclusion: (I): Adducing evidence of a defendant’s bad character in chief 2.3 8 “Similar fact” evidence 2.4 8 Res gestae and background evidence 2.9 10 Can evidence of propensity be admitted as similar fact evidence? 2.10 10 How can similar fact evidence be used to rebut a defence? 2.13 11 Does the prosecution have to wait and see what defence is to be relied upon before adducing similar fact evidence? 2.16 12 Is there a special rule for sexual offences against persons of the same sex, or children? 2.18 13 Is there a discretion to exclude similar fact evidence? 2.19 14 Supervening discretions: section 78, and the common law 2.20 14 Identity cases Striking similarity 2.23 15 How the evidence is to be approached 2.24 15 iii Paragraph Page Special cases where bad character evidence is admissible in chief Section 27(3) of the Theft Act 1968 2.27 16 The application of section 27(3) 2.29 17 Section 1(2) of the Official Secrets Act 1911 2.31 17 Special cases where bad character evidence is inadmissible in chief Spent convictions 2.33 18 (II): Evidence adduced by the defendant 2.39 20 Evidence adduced against a co-accused 2.40 20 Is there a discretion to exclude defence evidence? 2.41 21 (III): Adducing bad character evidence in cross-examination 2.43 21 The meaning of section 1(f) 2.45 22 The relationship between section 1(e) and section 1(f) 2.48 23 Section 1(f)(i) 2.50 23 The first limb of section 1(f)(ii): asserting good character 2.53 24 What is an assertion of good character? 2.55 25 Character is indivisible 2.59 25 The discretion to exclude 2.61 26 Common law rules 2.62 27 The second limb of section 1(f)(ii): casting imputations against prosecution witnesses 2.63 27 The pre-conditions 2.64 27 Sexual cases 2.68 29 The discretion to exclude 2.71 30 Similarity of offences 2.73 30 Where the convictions do not reveal dishonesty 2.74 31 Defence necessarily involving imputations 2.75 31 Section 1(f)(iii): attacking a co-defendant 2.77 32 “has given evidence” 2.78 33 “against any other person charged in the same proceedings” 2.80 33 When section 1(f)(iii) is invoked 2.85 35 iv Paragraph Page Severance of defendants 2.88 35 Section 1(f)(iii) and separate trials 2.89 36 Severance of counts/informations 2.91 36 PART III: THE EUROPEAN CONVENTION ON HUMAN RIGHTS 39 The structure of Article 6 3.2 39 Article 6 and rules of evidence 3.4 40 The fairness of the admission of previous convictions per se 3.7 41 Loss of shield by casting imputations 3.9 42 Victims of crime and the Convention 3.14 43 The effect of incorporation 3.21 45 The distinctive nature of Article 6 3.25 46 HRA, section 3 3.29 47 Reading down 3.32 48 Reading in 3.33 48 Conclusion 3.36 50 PART IV: DEFECTS OF THE PRESENT LAW 51 The principal defects 51 The problems in detail (I): Evidence in chief Lack of clarity in the “similar fact evidence” rules 4.2 52 Evidence of propensity admitted as similar fact evidence 4.7 53 Background evidence 4.11 54 Section 27(3) of the Theft Act 1968 The justification for section 27(3) 4.13 55 The defects of section 27(3) 4.17 56 The problems in detail (II): Cross-examination of the defendant 4.24 58 Section 1(f)(i) 4.25 58 The first limb of section 1(f)(ii): assertions of good character 4.26 59 (i) The doctrine that character is indivisible 4.27 59 (ii) The use that can be made of bad character evidence 4.28 60 (iii) It is unclear what kinds of assertions will trigger the loss of the shield 4.30 60 v Paragraph Page (iv) Previous convictions of other possible culprits 4.32 61 The second limb of section 1(f)(ii): imputations against prosecution witnesses and deceased victims Summary 4.33 61 (i) No exception for necessary imputations 4.34 62 (ii) Over-reliance on judicial discretion 4.44 65 (iii) The foundations for the second limb of section 1(f)(ii) are unsound 4.47 66 (a) Credibility 4.48 66 (b) Fairness 4.51 67 (c) Deterring attacks on prosecution witnesses 4.53 68 (iv) Non-testifying defendants 4.60 69 (v) A temptation to fabricate 4.66 71 (vi) Inconsistent prosecution practice 4.67 71 (vii) Lack of clarity 4.68 71 Section 1(f)(iii): cross-examination of a co-accused 4.70 72 (i) Lack of judicial discretion 4.71 73 (ii) Defendants may be inhibited in their defence or may be deterred from testifying 4.76 74 (iii) The court may be misled 4.78 75 The hearsay exception for reputation 4.79 75 The need for change 4.80 76 PART V: GENERAL PRINCIPLES 78 PART VI: THE GENERAL APPROACH: THE OPTIONS 81 Option 1: adduce the defendant’s criminal record at the start of every trial 6.3 81 Arguments in favour of option 1 6.4 81 Simplicity 6.5 82 Removal of injustices and anomalies in the current law 6.8 82 Avoiding the prejudicial effect of revealing the defendant’s record in cross-examination 6.9 82 vi Paragraph Page The relevance of the record 6.10 83 Relevance to the defendant’s propensity to act in the manner alleged 6.11 83 Relevance to the defendant’s propensity to lie 6.14 84 The fact-finders know anyway 6.18 85 Is this true? 6.20 86 Is option 1 the only solution? 6.23 87 Is option 1 the best solution? 6.27 88 Arguments against option 1 6.30 89 Irrelevance 6.31 89 The risk of prejudice 6.33 90 The research 6.37 91 Minimising the prejudicial effect of automatic disclosure 6.43 92 The perceived risk of prejudice 6.46 93 Longer trials 6.47 93 Distraction 6.49 94 The fairness of the criminal justice system 6.50 94 Conclusion 6.53 95 Option 1A: adduce the defendant’s record of similar offences at the start of every trial 6.54 95 Option 2: adduce the defendant’s record of sex offences in sex cases 6.57 96 Option 3: allow evidence of the defendant’s previous misconduct to be adduced only where it is an ingredient of the offence charged 6.62 98 Option 4: a single inclusionary rule with an exception for evidence whose likely prejudicial effect outweighs its probative value 6.64 98 Option 5: an exclusionary rule with a single exception for evidence whose probative value outweighs its likely prejudicial effect 6.66 99 Conclusion: the general approach we recommend 6.67 99 PART VII: OVERVIEW OF OUR RECOMMENDATIONS 100 Inside or outside the central set of facts 7.4 100 “Substantial” probative value 7.8 102 Taking factors into account 7.18 105 vii Paragraph Page The purpose of the evidence 7.20 106 Who is adducing the evidence? 7.21 106 PART VIII: BAD CHARACTER AND THE LEAVE REQUIREMENT 107 Defining evidence of bad character The options considered in the consultation paper 8.4 108 Objections to our provisional proposal 8.9 109 Evidence of criminal offences 8.10 110 Evidence of bad character not amounting to an offence 8.12 110 Disposition 8.18 112 Our recommendation 8.19 112 Bad character evidence not subject to the exclusionary rule 8.20 113 The central set of facts 8.20 113 Evidence which all parties agree should be admitted 8.29 115 Evidence of a defendant’s bad character, adduced by that defendant 8.30 115 Our recommendations 8.31 115 PART IX: EXCEPTIONS APPLICABLE TO NON-DEFENDANTS 118 The current position 9.3 118 Judicial control 9.5 119 The option put forward in the consultation paper 9.8 119 The views of respondents 9.10 120 The dangers of bad character evidence Its irrelevance 9.14 122 Its prejudicial effect 9.16 123 The effect of a statutory test of enhanced relevance 9.24 126 Would a test of enhanced relevance prevent the defendant from having a fair trial? 9.28 127 Our conclusion 9.35 129 Formulating the test of enhanced relevance 9.36 129 The importance of the matter in issue 9.38 130 viii Paragraph Page Ensuring a fair trial 9.40 130 Our recommendations Exceptions: non-defendants: substantial probative value 9.41 131 Exceptions: non-defendants: substantial explanatory value 9.42 131 The consequences for the defendant 9.44 131 The relationship with section 41 Youth Justice and Criminal Evidence Act 1999 9.45 131 PART X: THE EXPLANATORY EXCEPTION 133 The defects of the current law Res gestae and background evidence 10.1 133 Our analysis 10.3 134 Evidence which is part of the narrative of the offence 10.4 134 Explanatory evidence 10.7 135 PART XI: THE INCRIMINATORY EXCEPTION 138 Introduction 11.1 138 The options for reform and the response on consultation 11.3 138 Option 2: adducing bad character evidence to prove mens rea 11.4 138 Option 3: adducing bad character evidence to show disposition 11.8 139 Option 4: the Australian common law test, namely whether there is any reasonable