Criminal Justice Act 2003: Evidence of Bad Character - Essay Sample

Introduction

The Criminal Justice Act 2003 (CJA 2003) contains, virtually, all the relevant provisions that govern the admission of evidence of bad character in Chapter 1, Part II. In this regard, bad character is the evidence of misconduct or a predisposition towards misconduct. Misconduct, in this context, is "the commission of an offence or other reprehensible behaviours." Evidence of bad character does not include evidence related to the alleged facts of the crime the accused presently face or one associated with the investigation or trial of that offence. As a result, it is indisputable that the defendant's previous convictions for assault and harassment satisfy section 98 as read with section 112 as evidence of bad character for the forthcoming murder trial.

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The Admissibility of a Defendant's Bad Character Evidence

The defendant bad character evidence is, prima facie, inadmissible with the exception that it falls under, at least, one of the gateways the CJA 2003 provides for in section 101(1). This section states to the effect that the court may admit the accused bad character evidence if:

• All parties to the proceeding consent;
• The accused adduce or elicit it;
• It is indispensable explanatory evidence
• It is relevant to an important matter in issue concerning the prosecution and defence;
• It has substantial probative value regarding an important matter in issue between co-defendants;
• The prosecution intends to correct a false impression that the defendant has given; and
• The defendant has attacked the character of others.

Strictly, evidence of the defendant's bad character is permissible if, but only if, it falls under at least one these gateways. (emphasis added)

The Available Gateways

Because the prosecution has not disclosed which gateway(s) it is going to rely on, the first issue this brief deals with is to identify the ones it is more likely going to use. Given this, the legal brief refers to R v Hanson, where the court stated the prosecution is more likely to rely on sub-sections (d), (f), and (g) to introduce the defendant's bad character evidence. It is also possible the prosecutor could apply (c).

The prosecution may argue the previous convictions are vital for the court to and the jury to understand why the Crown identified the defendant as the man in CCTV footage. That is, the first conviction demonstrates the defendant has a tendency to be violent, and the second one illustrates he hates Middletown fans to explain his involvement in the fight. The prosecution may reason that these convictions show it is not a mere coincidence the man in the CCTV footage looks like the defendant because based on the history of violence and hatred toward Middletown fans, he must be the accused.

Whereas the prosecution alleges that the CCTV footage places the defendant at the crime scene, the accused basically denies his involvement in the offence and claims an alibi (mistaken identity), trigger an essential matter in issue and cause 101(1)(d) to comes into play.

Additionally, the client seeks to introduce the evidence that he is of good character. The prosecution can, thus, apply section 101(1)(f) to correct the impression the defendant has given about himself. And finally, the alleges the police have merely arrested him because they know he is a Toptown supporter and that he has previously stated that all fans of Middletown FC are "scum," imputes those officers are unethical and inept since they arrested him without probable cause. This imputation amounts to an attack on the character of the police, which brings the section 101(1)(g) into play.

Application to Exclude the Defendant Previous Convictions

Exclusion Under the Police and Criminal Evidence Act 1984 (PACE)

Important Explanatory Evidence

As the brief indicates above, the prosecution may introduce the evidence by citing that it is "important explanatory evidence." The CJA 2003 considers evidence this way if excluding such evidence will make it impossible or difficult for the judge or jury to comprehend other evidence the prosecution adduces, and its value for understanding the case in its entirety is indispensable.

Accordingly, the prosecution cannot merely argue that the court should admit the accused bad character as important explanatory evidence because the defendant previously misbehaved or has prior convictions that prove the accused bad character. The prosecution should demonstrate that excluding the evidence of bad character will make it impossible or problematic for the court and the jury to aptly comprehend other evidence and that its value to the comprehensibility of the case is considerable. The prosecution can apply to the court to admit bad character evidence to illustrate the backdrop against which the accused committed the charged offence. For instance, in R v Ladds the court held evidence of past 'striking similar' occurrences would suffice as explanatory evidence. Additionally, precedent indicates this sort of evidence "often relates to other acts done or statements made by the accused revealing his desire to commit, or reason for committing, the offence charged." In R v Ball, Lord Atkinson "in an ordinary prosecution for murder evidence is admissible of previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased." Though the court dismissed Ball in R v Berry, it affirmed it in R v Williams and re-confirmed it in R v Phillips. Additionally, in Pettman, the Court of Appeal held:

[E]vidence of part of a continual background of history relevant to the offence charged. and without the totality of which the account placed before the jury would be incomplete or incomprehensible. (emphasis added)

The court, however, restricted the use of evidence of events that happened many years before the crime for it tends to have little probative value. In Phillips, the court refused to admit evidence of a stormy marriage eight years before the crime charged occurred. In Butler, the court excluded evidence of events that had transpired three years before the offence charged.

Therefore, on the basis of the above discussion, the defence could contest that Long's previous convictions do not pass the admissibility test under section 102 because they occurred many years ago, having happened 12 and 3 years ago; and they do not offer any important probative value as to the reason why Long killed the victim. Also, these convictions are spent misdemeanours that have little correlation to why the defendant committed a crime as serious as murder. Therefore, by citing those records, the prosecution is only attempting to sneak evidence of propensity, which is improper under section 101(1)(c). Therefore, the court should apply its exclusionary powers to rule this evidence inadmissible under section 78.

Evidence to Correct a False Impression

If the prosecution seeks to introduce Long's to correct a false impression the defendant has given, the defence should apply for the court to exclude the evidence under the exclusionary rule of PACE 1984 under section 78, which states:

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Given this provision, the defence could argue that the prosecution case is overly weak, and the prosecution seeks to adduce the accused prior convictions to prove his guilt or credibility to patch over the gaps in its case. The defence could argue citing the evidence involving two misdemeanours convictions, which are not only far apart but also spent, to support a murder charge will occasion unfairness to the defendant. Consequently, in admitting the evidence, the court would be prejudicial towards Long.

There has been a debate that the wording of the exclusion rule for evidence of bad character under section 101(3) purely mirror section 78, so much so that, parliament must have expressly intended to limit its use to gateways (d) and (g) only. However, Lord Woolf LCJ in R v Hilton corrected contend that section 78 gives defendants further protection and it intends to comply article 6 of the EHCR, and it is; therefore, a matter of best practice for judges to avoid non-compliance.

Exclusion Under Sections 101(3) and 103(3)

Attack on Another Person's Character

In case the prosecution adduces Long's previous convictions under section 101(1)(g) - that the defendant had attacked the character of other parties, the defence could contest that allowing the "evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." Primarily, since the crimes happened many years ago, it is prejudicial to use them to label the accused capable of committing murder.

Important Matter in Issue

Moreover, the prosecution may apply for the admission of accused prior convictions on the pretext that it is an essential matter in issue between it and the defendant. It could argue Long has a propensity to commit further offences of the kind charged. Given the admission of the prior convictions under this gateway need not meet the old "striking similarity" doctrine of common law, the prosecution may argue that the defendant had previously committed assault occasioning actual bodily harm has some resemblance to assault leading to grievous physical harm and eventual death. Also, it may argue the accused threat of violence to a Middletown fan indicates violence predisposition toward Middletown fans.

Regardless the abolition of the similar fact evidence, the defence can still contest the admission by arguing that admitting the evidence will result in such an adverse effect to the trial that the court should not acknowledge it. The reasons for this are that a long time has passed since the convictions, and there is a striking dissimilarity in the gravity between the respective prior offences and the current crime. In R v Hanson, the court succinctly expounded that:

When considering what is just under s.103(3), and the fairness of the proceedings under s.101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.

In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.

Based on this statement, admitting the defendant's prior records, which concerns minor, spent, and old offences, to prove propensity...