The Law Commission

 


Criminal Evidence Bill

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CONTENTS

Bad character evidence generally

	Bad character evidence generally
1	"Bad character"
2	Requirement of leave
	Persons other than defendants 3 Non-defendant's bad character
4	Evidence with explanatory value
5	Evidence going to a matter in issue
	Defendants
6	Defendant's bad character
7	Evidence with explanatory value
8	Evidence going to a matter in issue 9 Evidence going to credibility
10	Evidence to correct false impression
11	Evidence going to an issue between co-defendants 12 Trying more than one offence together
13	Stopping the case where evidence contaminated
	General
14	Assumption of truth in assessment of probative value 15 Court's duty to give reasons for rulings
16	Rules of court
17	Interpretation
18	Armed forces
19	Minor and consequential amendments 20 Repeals etc
21	Citation, commencement and extent
Schedule 1	Armed forces
Schedule 2	Repeals

DRAFT OF A

BILL

TO

Make provision about evidence of bad character in criminal proceedings.

BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: -

Bad character evidence generally

1 "Bad character"

References in this Act to evidence of a person's bad character are references to evidence which shows or tends to show that-

(a) he has committed an offence, or

(b) he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person.

2 Requirement of leave

(1) In criminal proceedings evidence of a person's bad character is admissible only with leave of the court, unless the evidence-

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

(2) This section does not apply in relation to an item of evidence if-

(a) all parties to the proceedings agree to the evidence being admissible, or (b) in the case of evidence of the defendant's bad character, the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it.

Persons other than defendants

3 Non-defendant's bad character

In the case of evidence of the bad character of a person other than the defendant, the court is not to give leave under section 2 unless the evidence falls within section 4 or 5.

4 Evidence with explanatory value

Evidence falls within this section if-

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

5 Evidence going to a matter in issue

(1) Evidence falls within this section if it has substantial probative value in relation to a matter which-

(a) is a matter in issue in the proceedings, and

(b) is of substantial importance in the context of the case as a whole.

(2) In assessing the probative value of evidence for the purposes of this section the court must have regard to the following factors (and to any others it considers relevant) -

(a) the nature and number of the events, or other things, to which the evidence relates;

(b) when those events or things are alleged to have happened or existed; (c) where-

(i) the evidence is evidence of a person's misconduct, and

(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

(d) where-

(i) the evidence is evidence of a person's misconduct,

(ii) it is suggested that that person is also responsible for the misconduct charged, and

(iii) the identity of the person responsible for the misconduct charged is disputed,

the extent to which the evidence shows or tends to show that the same person was responsible each time.

(3) In subsection (2)(d) "misconduct charged" means the misconduct constituting the offence with which the defendant is charged.

Defendants

6 Defendant's bad character

In the case of evidence of the defendant's bad character, the court is not to give leave under section 2 unless the evidence falls within section 7, 8, 9, 10 or 11.

7 Evidence with explanatory value

(1) Evidence falls within this section if the following three conditions are met.

(2) The first condition is that, without the evidence, the court or jury would find it impossible or difficult properly to understand other evidence in the case.

(3) The second condition is that the value of the evidence for understanding the case as a whole is substantial.

(4) The third condition is that the court is satisfied-

(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or

(b) that the value of the evidence for understanding the case as a whole is such that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible.

8 Evidence going to a matter in issue

(1) Evidence falls within this section if the following two conditions are met.

(2) The first condition is that the evidence has substantial probative value in relation to a matter which-

(a) is a matter in issue in the proceedings, and

(b) is of substantial importance in the context of the case as a whole.

(3) The second condition is that the court is satisfied-

(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or

(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of-

(i) how much probative value it has in relation to the matter in issue,

(ii) what other evidence has been, or can be, given on that matter, and

(iii) how important that matter is in the context of the case as a whole.

(4) In determining whether the two conditions are met the court must have regard to the factors listed in section 5(2) (and to any others it considers relevant).

(5) For the purposes of this section, whether the defendant has a propensity to be untruthful is not to be regarded as a matter in issue in the proceedings.

(6) Only prosecution evidence can fall within this section.

9 Evidence going to credibility

(1) This section applies only where-

(a) the defendant makes an attack on a person's character, and

(b) the effect of the attack is to suggest, or to support a suggestion, that the person has a propensity to be untruthful.

(2) For the purposes of this section a defendant makes an attack on a person's character where-

(a) he adduces evidence of the person's bad character, other than-

(i) evidence that has to do with the alleged facts of the offence with which the defendant is charged, or

(ii) evidence of misconduct in connection with the investigation or prosecution of that offence,

(b) he asks questions in cross-examination that are intended to elicit evidence of the kind referred to in paragraph (a), or

(c) evidence is given of an assertion made about the person by the defendant -

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he

might be prosecuted for it,

and the assertion is such that, if it were made in evidence, the evidence containing the assertion would be evidence of the kind referred to in paragraph (a).

(3) Evidence falls within this section if the following three conditions are met.

(4) The first condition is that the evidence has substantial probative value in showing that the defendant has a propensity to be untruthful.

(5) The second condition is that, without the evidence, the court or jury would get an inaccurate impression of the defendant's propensity to be untruthful in comparison with that of the other person.

(6) The third condition is that the court is satisfied-

(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or

(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of-

(i) how much probative value it has in showing that the defendant has a propensity to be untruthful,

(ii) what other evidence has been, or can be, given on that matter, and

(iii) how important it is, in the context of the case of a whole, to prevent the impression mentioned in subsection (5).

(7) In determining whether the three conditions are met the court must have regard to the following factors (and to any others it considers relevant)-

(a) the nature and number of the events, or other things, to which the defendant's attack relates and of those to which the evidence in question ("the responding evidence") relates;

(b) when those events or things are alleged to have happened or existed; (c) how important is the defendant's propensity to be untruthful, and that of the other person, in the context of the prosecution case and of the defence case;

(d) in a case where this section applies by virtue of subsection (2)(b), whether or not the evidence intended to be elicited is actually given; (e) how inaccurate the impression mentioned in subsection (5) would be; (f) where the responding evidence is of a spent conviction, the fact that the conviction is spent;

(g) any risk that admitting the responding evidence would be confusing or misleading, or would unduly prolong the proceedings.

(8) Only prosecution evidence can fall within this section.

10 Evidence to correct false impression

(1) This section applies only where the defendant is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.

(2) Evidence falls within this section if the following two conditions are met.

(3) The first condition is that the evidence has substantial probative value in correcting the false or misleading impression.

(4) The second condition is that the court is satisfied-

(a) that, in all the circumstances of the case, the evidence carries no risk of prejudice to the defendant, or

(b) that, taking account of the risk of prejudice, the interests of justice nevertheless require the evidence to be admissible in view of-

(i) how much probative value it has in correcting the false or misleading impression,

(ii) what other evidence has been, or can be, given to correct that impression, and

(iii) how important it is, in the context of the case as a whole, for that impression to be corrected.

(5) For the purposes of this section a defendant is responsible for the making of an assertion if-

(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),

(b) the assertion was made by the defendant-

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it,

and evidence of the assertion is given in the proceedings,

(c) the assertion is made by a witness called by the defendant,

(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant and intended, in the opinion of the court, to elicit it, or

(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

(6) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(7) In subsection (6) "conduct" includes appearance or dress.

(8) In determining whether the two conditions are met the court must have regard to the following factors (and to any others it considers relevant)-

(a) the nature of the impression given by the assertion referred to in subsection (I), and how false or misleading that impression is;

(b) by whom and in what circumstances the assertion is or was made;

(c) the nature and number of the events, or other things, to which the evidence in question ("the correcting evidence") relates;

(d) when those events or things are alleged to have happened or existed; (e) where the correcting evidence is of a spent conviction, the fact that the conviction is spent;

(f) any risk that admitting the correcting evidence would be confusing or misleading, or would unduly prolong the proceedings.

(9) Where in proceedings before a magistrates' court-

(a) the defendant is responsible for the making of an assertion which is apt to give the court a certain impression about the defendant,

(b) the prosecution allege that the impression is false or misleading, and

(c) in reliance on this section the prosecution propose to apply for leave under section 2 to adduce or elicit evidence to correct the impression,

the court must first rule (without being given any details about the evidence) whether, however false or misleading the impression may be, it is unimportant in the context of the case as a whole for it to be corrected; and if the court makes a ruling to that effect, no evidence can fall within this section in relation to the assertion in question.

(10) Only prosecution evidence can fall within this section.

11 Evidence going to an issue between co-defendants

(1) Evidence falls within this section if it has substantial probative value in relation to a matter which-

(a) is a matter in issue between the defendant and a co-defendant, and

(b) is of substantial importance in the context of the case as a whole.

(2) For the purposes of this section, evidence is not to be treated as having the probative value mentioned in subsection (1) by virtue of its relevance to the question whether the defendant has a propensity to be untruthful unless the nature or conduct of his defence is such as to undermine the co-defendant's defence.

(3) In assessing the probative value of evidence for the purposes of this section the court must have regard to the factors listed in section 5(2) (and to any others it considers relevant).

(4) Only evidence-

(a) which is to be (or has been) adduced by the co-defendant, or

(b) which a witness is to be invited to give (or has given) in crossexamination by the co-defendant,

can fall within this section.

12 Trying more than one offence together

(1) In section 5 of the Indictments Act 1915 (c. 90) (orders for separate trial etc) insert after subsection (2)-

"(2A) Where-

(a) a person is charged with more than one offence in the same indictment,

(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and

(c) the person applies before trial for an order that the offences mentioned in paragraph (b) above be tried separately,

the court shall grant the application unless satisfied that trying the offences together would not prevent the defendant having a fair trial.

(2B) The reference in subsection (2A) above to evidence of the person's bad character shall be read in accordance with section 1 of the Criminal Evidence Act 2001."

(2) In subsection (3) of that section, after "before trial" insert "(in a case not falling within subsection (2A) above)".

(3) Where in proceedings before a magistrates' court-

(a) it is proposed that the defendant be tried for two or more offences together,

(b) the prosecution propose to adduce evidence which is admissible in relation to one of the offences but which, in relation to another, is evidence of the person's bad character and is inadmissible, and

(c) the defendant objects before trial to the offences mentioned in paragraph (b) being tried together,

the court may order those offences to be tried together only if satisfied that doing so would not prevent the defendant having a fair trial.

13 Stopping the case where evidence contaminated

(1) If on a defendant's trial on indictment for an offence-

(a) evidence of his bad character has been admitted with leave under section 2, and

(b) the court is satisfied at any time after the close of the case for the prosecution that-

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

(2) Where-

(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and

(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,

the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.

(3) If-

(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,

(b) evidence of the person's bad character has been admitted with leave under section 2, and

(c) the court is satisfied at any time after the close of the case for the prosecution that-

(i) the evidence is contaminated, and

(ii) the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.

(4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.

(5) For the purposes of this section, a person's evidence is contaminated where-

(a) as a result of an agreement or understanding between the person and one or more others, or

(b) as a result of the person being aware of anything alleged by one or more others who are, or could be, witnesses in the proceedings,

the evidence is false or misleading in any respect, or is different from what it would otherwise have been.

General

14 Assumption of truth in assessment of probative value

(1) Subject to subsection (2), a reference in this Act to the probative value of evidence is a reference to its probative value on the assumption that it is true.

(2) In assessing the probative value of an item of evidence for any purpose of this Act, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.

15 Court's duty to give reasons for rulings

(1) Where the court makes a relevant ruling-

(a) it must state in open court (but in the absence of the jury, if there is one) its reasons for the ruling;

(b) if it is a magistrates' court, it must cause the ruling and the reasons for it to be entered in the register of the court's proceedings.

(2) In this section "relevant ruling" means -

(a) a ruling on whether an item of evidence is admissible only with leave under section 2;

(b) a decision whether to give leave under that section;

(c) a ruling under section 13.

16 Rules of court

(1) Rules of court may make such provision as appears to the appropriate authority to be necessary or expedient for the purposes of this Act; and the appropriate authority is the authority entitled to make the rules.

(2) The rules may require a party who-

(a) proposes to adduce evidence of a defendant's bad character that is admissible only with leave under section 2, or

(b) proposes to cross-examine a witness with a view to eliciting such evidence,

to serve on the defendant such notice, and such particulars of or relating to the evidence, as may be prescribed.

(3) The rules may provide that the court or the defendant may, in such circumstances as may be prescribed, dispense with a requirement imposed by virtue of subsection (2).

(4) If a party fails to comply with a requirement that has been imposed in relation to an item of evidence by virtue of subsection (2) (and not dispensed with by virtue of subsection (3)) the court may take the failure into account-

(a) in deciding whether to grant leave under section 2;

(b) where leave is given, in considering the exercise of its powers with respect to costs.

(5) The rules may-

(a) limit the application of any provision of the rules to prescribed circumstances;

(b) subject any provision of the rules to prescribed exceptions;

(c) make different provision for different cases or circumstances.

(6) Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it.

(7) In this section-

"prescribed" means prescribed by rules of court; "rules of court" means-

(a) Crown Court Rules;

(b) Criminal Appeal Rules;

(c) rules under section 144 of the Magistrates' Courts Act 1980 (c. 43).

17 Interpretation

(1) In this Act-

"bad character" is to be read in accordance with section 1;

"criminal proceedings" means criminal proceedings in relation to which the strict rules of evidence apply;

"defendant", in relation to criminal proceedings, means a person charged with an offence in those proceedings; and "co-defendant", in relation to a defendant, means a person charged with an offence in the same proceedings;

"misconduct" means-

(a) the commission of an offence, or

(b) behaviour of a kind that, in the opinion of the court, might be viewed with disapproval by a reasonable person;

"prejudice", in relation to an item of evidence and a defendant, is to be read in accordance with subsection (2);

"probative value" is to be read in accordance with section 14; "prosecution evidence" means evidence which is to be (or has been) adduced by the prosecution, or which a witness is to be invited to give (or has given) in cross-examination by the prosecution.

(2) For the purposes of this Act evidence carries a risk of prejudice to a defendant where-

(a) there is a risk that the court or jury would attach undue weight to the evidence, or

(b) the nature of the matters with which the evidence deals is such as to give rise to a risk that the court or jury would find the defendant guilty without being satisfied that he was.

(3) Where a defendant is charged with two or more offences in the same criminal proceedings, this Act has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.

18 Armed forces

Schedule 1 (armed forces) has effect.

19 Minor and consequential amendments

(1) In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness's conviction for offence may be proved if not admitted) -

(a) for "A witness may be" substitute "If, upon a witness being lawfully";

(b) omit "and upon being so questioned, if'.

(2) In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction of privilege against self-incrimination where defendant gives evidence) at the beginning insert "Subject to section 6 of the Criminal Evidence Act 2001 (inadmissibility of evidence of defendant's bad character),".

(3) In section 16(2) of the Children and Young Persons Act 1963 (c. 37) (offences committed by person under 14 disregarded for purposes of evidence relating to previous convictions) for the words from "notwithstanding" to the end substitute "even though the Criminal Evidence Act 2001 would not prevent the question from being asked."

20 Repeals etc

(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.

(2) The rules referred to in subsection (1) include any rule under which, as an exception to the inadmissibility of hearsay evidence, evidence of a person's reputation is admissible for the purpose of proving his character, but only so far as the rule relates to evidence of bad character.

(3) The following cease to have effect-

(a) section 1(3) of the Criminal Evidence Act 1898 (c. 36) (which makes provision as to the questions that a defendant may be asked about his bad character in cross-examination);

(b) section 27(3) of the Theft Act 1968 (c. 60) (admission of evidence of previous convictions for theft etc to prove that defendant knew goods to be stolen).

(4) The enactments specified in Schedule 2 are repealed to the extent specified.

21 Citation, commencement and extent

(1) This Act may be cited as the Criminal Evidence Act 2001.

(2) This Act comes into force on such day as the Secretary of State may appoint by order made by statutory instrument; and different days may be appointed for different purposes.

(3) No provision of this Act applies in relation to a hearing begun before the day appointed for the purposes of that provision under subsection (2).

(4) An order under subsection (2) may include such supplementary, incidental or consequential provisions as appear to the Secretary of State to be necessary or expedient.

(5) This Act, except section 18 and Schedule I, extends to England and Wales only. (6) Section 18 and Schedule I, so far as relating to proceedings before a particular service court, have the same extent as the Act under which the court is constituted.

SCHEDULES

SCHEDULE 1

Section 18

ARMED FORCES

1      (1) The relevant sections of this Act, in so far as they are not applied in relation to proceedings before service courts by provision contained in or made under any other Act, have effect in relation to such proceedings (whether in the United Kingdom or elsewhere) as they have effect in relation to criminal proceedings.

(2) The relevant sections are sections 1 to 11 (except section 10(9)) and sections 14, 15 and 17.

2 Section 10(9) has effect in relation to proceedings before Standing Civilian Courts (whether in the United Kingdom or elsewhere) with the substitution of "Standing Civilian Court" for "magistrates' court".

3      (1) Section 13 has effect in relation to proceedings before courts-martial (whether in the United Kingdom or elsewhere) with the following modifications.

(2) In subsection (1) -

(a) for "on indictment" substitute "before a court-martial";

(b) for "the court is satisfied" substitute "the judge advocate is satisfied";

(c) for the words after paragraph (b) substitute "the judge advocate must either direct the court to acquit the defendant of the offence or, if he considers that there ought to be a retrial, dissolve the court."

(3) In subsection (2) -

(a) for "a jury" substitute "a court";

(b) for "the court is satisfied" substitute "the judge advocate is satisfied".

(4) In subsection (3)-

(a) for paragraph (a) substitute-

"(a) a court is required to determine under section 115B(2) of the Army Act 1955, section 115B(2) of the Air Force Act 1955 or section 62B(2) of the Naval Discipline Act 1957 whether a person charged with an offence did the act or made the omission charged,";

(b) for "the court is satisfied" substitute "the judge advocate is satisfied"; (c) for the words after paragraph (c) substitute "the judge advocate must either direct the court to acquit the defendant of the offence or, if he considers that there ought to be a rehearing, dissolve the court."

(5) For subsection (4) substitute-

"(4) This section does not prejudice any other power a judge advocate may have to direct a court to acquit a person of an offence or to dissolve a court."

4 Section IS, as it applies in relation to proceedings before service courts, has effect with the substitution of the following for subsection (1)-

"(1) Where the court makes a relevant ruling-

(a) it must state in open court (but, in the case of a ruling by a judge advocate, in the absence of the other members of the court) its reasons for the ruling;

(b) if it is a Standing Civilian Court, it must cause the ruling and the reasons for it to be entered in the note of the court's proceedings."

5 Section 16 has effect as if, in subsection (7), the definition of "rules of court" included rules regulating the practice and procedure of service courts.

6      (1) In this Schedule, and in section 13 as applied by this Schedule, "court-martial" means a court-martial constituted under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53).

(2) In this Schedule "service court" means-

(a) a court-martial;

(b) a summary appeal court constituted under section 83ZA of the Army Act 1955, section 83ZA of the Air Force Act 1955 or section 52FF of the Naval Discipline Act 1957;

(c) the Courts-Martial Appeal Court; (d) a Standing Civilian Court.

(3) In relation to any time before the coming into force of section 18 of the Armed Forces Act 2001 (c.19) (abolition of naval disciplinary courts), this Schedule has effect as if the definition of "service court" in sub-paragraph (2) included a disciplinary court constituted under section 52G of the Naval Discipline Act 1957.

SCHEDULE 2

Section 20(4).

REPEALS

Short title and chapter	Extent of repeal
Criminal Procedure Act 1865 (c. 18)	In section 6, the words "and upon being so questioned, if'.
Criminal Evidence Act 1898 (c. 36)	Section 1(3).
Theft Act 1968 (c. 60)	In section 27 - (a) subsection (3); (b) in subsection (5), the words from "and in subsection (3)(b)" to the end.
Criminal Evidence Act 1979 (c. 16)	In section I, the words from "each of the following" to "1898, and".
Criminal Justice and Public Order Act 1994 (c. 33)	Section 31.
Youth Justice and Criminal Evidence Act 1999 (c. 23)	In Schedule 4, paragraph 1(5).

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