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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(13) (October 2001)
URL: http://www.bailii.org/ew/other/EWLC/2001/273(13).html
Cite as: [2001] EWLC 273(13)
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PART XIII THE CORRECTIVE EXCEPTION
13.1 The essence of the exception recommended in this Part is to allow evidence of a defendant's bad character to be adduced for its corrective value. The fact-finders should not be left with a misleading impression of the defendant's character.[1] This exception covers similar ground to that of the "good character" exception under the present law. [2]
13.2 In the consultation paper we made the following criticisms of the existing good character exception. First, behind the present law lies the doctrine that character is indivisible, which is not always a useful guide to whether evidence of bad character should be admitted. We discuss this concept in detail at paragraphs 13.22 – 13.28 below. Second, good character is treated as bearing both on a person's propensities and on truthfulness, whereas, inconsistently, evidence of bad character which is admitted to contradict a claim of good character goes only to credibility. Third, it is presently unclear what kinds of assertions will trigger the loss of the shield.[3] Fourth, a person might falsely claim good character through his or her dress or conduct, but non-verbal assertions fall outside the present exception. Fifth and finally, an anomaly may arise under the present law where the defendant seeks to suggest a favourable contrast with other possible culprits. If those others are prosecution witnesses in the defendant's trial, such a suggestion will amount to an "imputation" and the defendant will lose the shield.[4] If they are not witnesses against the defendant, the suggestion may be made without the loss of the shield. The rationale is supposedly that the defendant is challenging the witnesses' credibility and therefore the defendant's own bad character should be admissible. The reality is that the imputation is about a propensity to commit the offence, not directly about the witnesses' credibility at all. Under our recommendations, if a defendant made this kind of imputation, it might render his or her bad character admissible under the incriminatory exception, as we explain at paragraphs 13.51– 13.52 below.
WHEN A DEFENDANT IS RESPONSIBLE FOR THE MISLEADING IMPRESSION
(a) by the defendant in the course of his or her evidence in chief, or in re-examination;
(b) by a witness for the defendant in the course of his or her evidence in chief, or in re-examination, unless it is made in response to a question which does not appear to the court to have been intended to elicit the assertion;
(c) by the defendant or a witness for the defendant in crossexamination, unless it is a reasonable response to the question asked;
(d) by a prosecution witness, a co-defendant or a witness for a co-defendant in cross-examination by or on behalf of the defendant, if it is made in response to a question which appears to the court to have been intended to elicit the assertion; or
(e) in a hearsay statement adduced by or on behalf of the defendant.[5]
It is not uncommon for a defendant of bad character to call as defence witnesses a string of people of impeccable character to convey the impression that, by association, he is one of them. The shield should also be forfeit in these circumstances.
(1) by the defendant in the proceedings in the course of giving evidence, or through his or her representative;
(2) in an assertion made out of court by the defendant after caution, and evidence of the assertion is before the court;
(3) by a defence witness;
(4) by any witness in cross-examination by the defendant, unless the question was not intended to produce the answer given; or
(5) by anyone out of court, and the defendant adduces evidence of it.
The non-testifying defendant
13.9 In some of the circumstances set out in paragraph 13.7 above the defendant may not have testified at all. This can arise under the present law, where a defence witness makes a false claim of good character on the defendant's behalf. In that situation, the prosecution can cross-examine the witness so as to show that the assertion is false or misleading and, if the witness does not admit it the prosecution can call evidence in rebuttal.[6]
13.10 In the consultation paper we discussed whether the prosecution ought to be permitted to correct a misleading impression created by the defendant other than in cross-examination or in rebuttal.[7] Such a situation might arise where the claim to good character is made in a hearsay statement, adduced by or on behalf of the defendant (as we proposed in the consultation paper) or where it is made by the defendant in an interview with the police which is put in by the defence or the prosecution (as we now recommend).
13.12 Where the prosecution knows, in advance of the presentation of the defence case, that a false assertion of good character will be made, there is no reason, in our view, why the prosecution should not be able to apply for leave to adduce the corrective evidence in chief.[8]
Implied and non-verbal assertions
the statute should make it clear that an implied assertion of good character will result in the loss of the shield in circumstances where an express assertion would do so.[9]
13.16 In the consultation paper we also proposed that where
(1) in the opinion of the court, a defendant's conduct in the proceedings is intended to give the impression that he or she possesses a specific attribute, and
(2) had the defendant expressly claimed to possess that attribute, he or she would have been regarded as implicitly asserting that he or she is of good character,
the defendant should be regarded as so asserting, and should therefore lose the shield.[10]
13.19 An assertion about a person's character may be inferred from, for example, what he or she wears, such as where the defendant appears in court in clothing which implies that he or she holds a position of trust that would not normally be held by a person with a criminal record. It is therefore arguable that non-verbal assertions ought to be within the ambit of the section and that it is defective because it does not include such assertions. Thus if a defendant is to lose the shield if he tells the court he is a vicar he should nonetheless be liable to do so where he makes the same assertion in non-verbal form, such as by appearing in court a dog-collar.[11]
THE CORRECTIVE EVIDENCE MUST HAVE SUBSTANTIAL VALUE
Divisibility of character
13.22 An assertion about a person's character may be about his or her character as a whole, or about a particular trait or traits. At common law, there is authority for the view that character is indivisible: an assertion about a particular aspect of a person's character can be rebutted by evidence about some other aspect.[12] One of the main complaints about the first limb of section 1(f)(ii) was that the rule that character is indivisible can lead to injustice. Thus if a defendant is charged with an offence of assault, and claims always to have been honest, there is nothing in the subsection to prevent previous convictions for offences of violence being admitted. The defendant would have to rely on the court's discretion to keep those offences out. We were critical of this rule in the consultation paper, and provisionally proposed
that the defendant should be open to cross-examination only on that part of his or her character or truthfulness about which an assertion of good character has been made.[13]
13.23 Thirty-two respondents addressed this proposal. Fifteen agreed with it. Two agreed that an element of divisibility should be introduced, but disagreed with the form of the proposal.[14] Thirteen disagreed with it, either expressly or by implication.[15]
13.24 There were three main arguments deployed against the proposal.[16] First, that it is unnecessary because the common law test of relevance applies so that irrelevant evidence is not admitted. One example was given of a prosecution for stealing in which "it would be irrelevant and therefore inadmissible that 20 years earlier the defendant had pleaded to an indecent assault. This point is not just a matter of discretion but of admissibility". The respondent is quite right that such a conviction would be logically irrelevant in such a case; few, if any, would disagree. The difficulties arise because agreement is not so easily reached in more mainstream cases. For example, in the consultation paper we expressed the provisional view that "behaviour not involving dishonesty is unlikely to be relevant to credibility".[17] Ten respondents disagreed with this view: five because they thought we had overstated the relevance of such behaviour to credibility, and five because they thought we had understated it. By doing away with the common law rule that character is indivisible we intend to encourage advocates and courts to focus on the true relevance of the evidence which it is proposed to adduce.
It is, in my view, entirely artificial to dissect good character into sections. If that were what reforms of the law were to require in this area it seems to me they would lead to endless argument and be difficult to apply.
This wording could, inadvertently, provide an unscrupulous defendant with an advantage. "I would never do anything indecent/improper to a little child"; he has previous convictions for indecent assault on an adult. There are various other possibilities. There is a good argument for saying that a person's character cannot be rigidly "compartmentalised".
What is relevant must depend on the assertion made by the accused. If the assertion is specific, e.g. "I have never been in trouble with the law", a specific rebuttal would be to adduce evidence of the accused"s previous convictions. If, on the other hand, the accused makes a broad assertion, e.g. "I am a person of unimpeachable moral character", then a much broader rebuttal becomes relevant, dealing with virtually anything discreditable known about the accused, and including his reputation.
13.28 What we seek is on the one hand to get away from the position that obtains under the current law whereby "character" is seen as a whole, and on the other hand to give the court enough flexibility to allow evidence of previous misconduct to be given to contradict an assertion, even though it reveals a propensity which is not identical to the propensity which the defendant claims not to have. Thus our recommendations abandon the rule that character is indivisible, but do not prescribe what counts as relevant.[18] They do, however, in common with all the other categories of potentially admissible bad character evidence for which leave is required, prescribe an enhanced degree of relevance: bad character evidence is to be admissible only if it is of substantial relevance to that part of the defendant's character about which the magistrates or jury are likely to be misled. Thus bad character evidence cannot be admissible under the exception if it goes further than is necessary to correct the misleading impression, and so the whole of a person's character is not admissible merely because he or she has falsely asserted good character.
THE INTERESTS OF JUSTICE TEST
Factors to take into account
13.30 A court should consider the following, when applying the interests of justice test:
(1) how much value the evidence has in correcting the false or misleading impression;
(2) what other evidence on the matter is available; and
(3) how important it is in the context of the case as a whole to prevent the false or misleading impression.[19]
• the nature and degree of falsity or extent to which the fact-finders would be misled by the material sought to be corrected;
• by whom and in what circumstances the assertion was made, including the extent to which the defendant is personally responsible for the assertion;
• and the effect on the conduct of the trial in terms of the time that would be spent hearing the corrective evidence and its distorting effect.
Unknown to the witness, the court has already heard about some of the defendant's convictions. The court is content simply to ignore what the witness has said.
The witness is the defendant's mother. The court decides not to place too much weight on what she says and does not allow the prosecution to prove he does not have the good character she claims for him.
D has convictions for theft. His employer, who does not know this, speaks about D's trustworthiness. In such a case, the convictions may well be sufficiently relevant for leave to be given.
Practice in the magistrates' courts
USE OF THE EVIDENCE
13.39 Where the defendant claims good character, he or she expects to benefit not just by being thought of as more likely to be truthful, but also by being thought of as less likely to commit the offence, whatever it is.[20] The direction on good character explicitly instructs juries to see "good character" as reflecting on the defendant in both these ways.[21] It is therefore illogical for bad character evidence admitted to counteract an assertion of good character to be treated as relevant only to the defendant's credibility. We set out our views on the rationality and usefulness of the direction given under the first limb of section 1(f)(ii) in provisional proposals 23 and 24:
We believe
(1) that it is unrealistic to distinguish between the use of previous convictions to rebut false claims of good character, and their use in assessing how truthful the rest of the defendant's testimony is likely to be; and
(2) that, in some cases, it may also be unrealistic to distinguish between using the evidence of bad character to assess the likelihood that the defendant is telling the truth, and the likelihood that he or she committed the offence.[22]
13.41 Provisional proposal 24 concerned the effectiveness of judicial directions:
Our provisional view is that, since evidence of previous misconduct adduced to refute a false assertion of good character may in truth relate not only to credibility but also to propensity, judicial warnings that it relates only to credibility are of little, if any, use.[23]
What is important is that an assertion of good character should not become an automatically-opening back-door for the admission and improper use of otherwise inadmissible similar fact evidence or character evidence. On the other hand there will be cases in which the evidence is so strongly relevant that a judge should not direct the jury to use it simply on the issue of credibility.
13.44 We made the following proposal in the consultation paper:
We provisionally propose that where the assertion of good character, and the evidence adduced to rebut that assertion, are directly relevant to the accused's propensities, the fact-finders should not be directed to treat the evidence as bearing solely on the accused's credibility.[24]
13.47 What a judge should do, in our view, is remind the jury of the purpose for which the evidence has been admitted, and, if appropriate, continue in the vein advised by Swinton Thomas LJ in his response: the jury must nevertheless be given a "clear direction that evidence in relation to previous convictions or misconduct does not prove guilt on the charge they are trying, but they must be cautious in their approach to that evidence, and must not place undue weight on it".[25]
THE RECOMMENDATIONS
(1) the defendant is responsible for an assertion (express or implied) which creates a false or misleading impression about the defendant,
(2) the evidence has substantial probative value in correcting that impression, and
(3) the interests of justice require it to be admissible, even taking account of its potentially prejudicial effect.[26]
13.50 We recommend that, where the prosecution seeks to rely on this exception in summary proceedings, it should first indicate to the court that the impression created is false or misleading and that the prosecution has evidence to controvert it; the bench should then rule on whether the impression is important enough to need controverting; only if the bench so rules may the prosecution detail the nature of its corrective evidence, and proceed with the full application to introduce it.[27]
WHERE THE DEFENDANT SETS UP A FALSE OR MISLEADING COMPARISON
13.51 Finally, we describe what the result might be where a defendant adduces or elicits evidence of another's character, such that the fact-finders are likely to be given a misleading impression of the defendant's character (or an aspect of it) when compared with the impression they have been given of that of the other person. This might occur where the defendant gives evidence that other possible culprits have previous convictions for offences similar to that charged. Where those other people do not give evidence, the shield presently remains intact.[28] We noted this anomaly of the current law in the consultation paper.[29]
13.52 Our Bill precludes this anomalous result: the appropriate exception is the incriminatory exception. Suppose, for example, that the defendant is charged with theft. The defence is that A, one of the prosecution witnesses, committed the theft. (For argument's sake, assume that the defendant's criminal history is not at this point sufficiently relevant for it to be admissible under the incriminatory exception.) If the defence were allowed[30] to adduce or elicit evidence of A's other misconduct, on the basis that it has substantial probative value in showing that A has a propensity to commit this sort of theft, the fact-finders would be likely to infer that A has a greater propensity to do so than the defendant does. If the defendant's history reveals a similar propensity, but it were not admitted, the factfinders would be left with a misleading impression of the comparative propensities of A and the defendant. Were the case to take such a turn, it could well be argued that the defendant's history has, in that event gained a greater probative value than before. In that case it might well then have enough probative value to be admissible under the incriminatory exception (clause 8) even though it would not fall within clause 10 as there would be no misleading impression of the defendant's character.
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Note 1 Stephen Seabrooke argued persuasively that the correction of a false impression is the true purpose of section 1(f)(ii): “Closing the Credibility Gap: A New Approach to section 1(f)(ii) of the Criminal Evidence Act 1898” [1987] Crim LR 231. [Back] Note 2 The first limb of s 1(f)(ii) of the 1898 Act. It is described briefly at paras 2.53 – 2.61 above. [Back] Note 3 Eg, it is not clear from the case law whether the section encompasses the mere repetition in court of words claiming a good character uttered upon arrest: Solomon (1909) 2 Cr App R 80. Nor is it clear whether a defendant asserts good character by claiming (truthfully) to be, eg, a solicitor or church warden. It has been held that evidence of good character has been given where the defendant had claimed to have been earning an honest living for a considerable time (Powell [1985] 1 WLR 1364), or to have performed kind or honest deeds on a previous occasion (Samuel (1956) 40 Cr App R 8). [Back] Note 4 Under the second limb of s 1(f)(ii). See para 2.64 above. [Back] Note 5 Para 11.39 of the consultation paper. [Back] Note 6 Redd [1923] 1 KB 104; see also Waldman (1934) 24 Cr App R 204. [Back] Note 7 We sought respondents’ views in proposal 31 (see para 11.48) and they were broadly supportive. [Back] Note 8 There is, of course, a notice requirement. See para 17.3 below. [Back] Note 9 Provisional proposal 26 and para 11.27 of the consultation paper. We noted that the CLRC proposed to apply the rule to the introduction of evidence “with a view to establishing directly or by implication that the accused is generally or in a particular respect a person of good disposition or reputation” (para 136 and cl 7(1)(a) of their draft Bill) and that the same approach has been adopted in the Evidence Act 1995 (Cth), s 110(2). [Back] Note 10 Provisional proposal 27. See para 11.31. [Back] Note 11 In the recent case of Robinson [2001] Crim LR 478, [2001] EWCA Crim 214, the trial judge held that the defendant was making an implied assertion of good character by waving a Bible around when giving evidence. As any defendant may take an oath on a holy book before giving evidence, it does not seem sensible to treat a defendant who brandishes that book around as making any further assertion about his or her character. This was the view of the Court of Appeal, with which we respectfully agree. [Back] Note 12 Winfield (1939) 27 Cr App R 139. See para 2.59 above. [Back] Note 13 Provisional proposal 29 (emphasis in original). See paras 11.40 – 11.42. [Back] Note 14 Respondents commented that bad character evidence to refute an assertion of good character should be limited to evidence going to credibility, and the fault with the current law was that it permitted bad character evidence going beyond credibility. [Back] Note 15 In relation to many of our proposals, some respondents merely made a general statement of agreement with our proposals, without addressing the issue specifically, or said that where they did not mention a proposal specifically, it could be assumed they agreed with it. [Back] Note 16 Four respondents thought it should be left to judicial discretion to disallow evidence which is “patently inappropriate”. If previous misconduct is so irrelevant it should, in our view, be inadmissible as a matter of law, not as a matter of discretion. [Back] Note 17 Provisional proposal 2(3). [Back] Note 18 In the Bill, cl 20(1) repeals the common law rules governing the admissibility of evidence of bad character. [Back] Note 19 These factors appear at cl 10(4)(b)(i), (ii) and (iii) respectively of the draft Bill. [Back] Note 20 See para 11.11 of the consultation paper. [Back] Note 21 Vye [1993] 1 WLR 471. [Back] Note 22 Provisional proposal 23 and para 11.12 of the consultation paper. [Back] Note 23 See paras 11.13 – 11.14. [Back] Note 24 Provisional proposal 30. See para 11.44. [Back] Note 25 See paras 17.19 – 17.20 below. [Back] Note 26 This recommendation is given effect by cl 10 of the draft Bill. [Back] Note 27 See para 13.37 above. [Back] Note 28 If they give evidence for the prosecution, the shield will be lost under the second limb of s 1(f)(ii). [Back]
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