Update 4
Introduction
The rules of criminal evidence and the procedural context in which the rules operate
remains the most dynamic area of English law. Since the publication of Update 3, the
widely increasingly pervasive influence of the Criminal Justice Act 2003 has become
apparent with reforms to the law governing the use by a witness of a memoryrefreshing document in court, admitting evidence of a witness’s bad character and
most significantly the bad character of the accused. Update 4 also looks forward to
Spring 2005 where it is expected that the CJA 2003 reforms to admitting hearsay
evidence in criminal cases will be introduced.
The chapter and section references are based on the 2002 edition of the Law of
Criminal and Civil Evidence – Principles and Practice.
Chapter 6: Confessions and Related Matters
Confessions in criminal cases
A revised Code C was introduced with effect from 1 August 2004. The Code’s
substantive provisions are unchanged as are the numbering of the paragraphs and the
explanatory notes.
Chapter 7: The Right to Remain Silent
Much of the recent case law on the drawing of adverse inferences from a defendant’s
silence under s34 Criminal Justice and Public Order Act 1994 has concerned the
approach to be taken where silence is advised by the legal adviser, see the previous
updates which consider the decisions in Knight [2003] EWCA 1977 and Webber
[2004] UKHL 1
In the latest case, of Benn and Benn, the Court of Appeal reaffirmed the position that
where the appellants had received advice from their solicitors not to answer questions,
it was the genuineness of the decision that was relevant in deciding whether adverse
inferences should be drawn and not the quality of the advice. A jury had to consider
whether an accused had remained silent, not because of the advice but because he had
no or no satisfactory explanation to give to the case against him. If the jury was
satisfied that the accused had no explanation or did not have a satisfactory
explanation, adverse inferences could be drawn from his silence under s34 CJPOA.
Ronald Kevin Benn & Sylvia Benn [2004] Lawtel Document ACO36660
The appellants (R and S) appealed against their convictions for conspiracy to evade
the prohibition on the importation of Class A controlled drugs. R and S were stopped
and searched by Customs after numerous trips between the United Kingdom and the
Netherlands, and a bag containing a large amount of cash was found in their
possession. There was some cocaine contamination on the banknotes, the appellants’
suitcases and in the boot of their car. At the appellants’ home, the inside of a safe and
the currency notes it contained were also found to be contaminated with cocaine.
Also, a heavy cocaine concentration was detected inside a vacuum cleaner.
Further evidence indicated that the appellants’ financial position showed significant
improvement after each trip to the Netherlands, and they had been able to pay off
major debts as well as enjoy an expensive lifestyle financed, apparently, by cash.
Both were convicted at trial. R was sentenced to nine years' and S to six years'
imprisonment. They were refused leave to appeal.
The present appeal followed referral by the Criminal Cases Review Commission (the
Commission) on the basis of laboratory evidence raising concerns about the forensic
sampling and testing techniques. The Commission concluded that the risks of
contamination that had come to light had been unknown at trial and, therefore not
properly evaluated. Concerns were also expressed about the possibility of innocent
contamination of the notes; the validity of the inference to be drawn from the level of
cocaine on the notes found in the car and the databases used by the prosecution expert
witness for comparison with cocaine contamination of notes "in general circulation".
The Commission considered that there was a real possibility of the convictions not
being upheld.
In their appeal, R and S submitted that (1) expert evidence had been obtained that
threw doubt upon certain crucial findings regarding the cocaine traces found; (2) there
had been deficiencies in the judge's summing-up relating to the effect of the ss34 and
36 Criminal Justice and Public Order Act 1994 on their refusals to answer questions
in interview or explain certain items of property on arrest.
In dismissing the appeals, the Court of Appeal held (1) Regarding contamination, the
evidence did not support the Commission's views that there was any new material or
criticism available to R and S beyond what had been available at trial and that had
been made, acknowledged or dealt with by the expert witnesses. (2) The judge's
directions in respect of ss34 and s.36 Criminal Justice and Public Order Act 1994 was
given before the Court of Appeal had given detailed guidance on directing the jury. At
trial, it had not been made clear to the jury that before any adverse inference might be
drawn, there had to be a case for a defendant to answer, see R v Condron [1997] 1
WLR 827. Where the defendant remained silence or refused to answer questions was
not enough for adverse inferences to be drawn. The trial judge had properly directed
that the reasons given by the solicitors to their clients could be taken into account, but
there had also been a failure to direct that an adverse inference could only be drawn if
the jury was satisfied that silence meant that the defendants had no explanation, or
none that would survive questioning. Although the judge's summing-up was open to
criticism, it did not render the convictions unsafe. Furthermore, the prosecution case
had been overwhelming.
Chapter 8: Identification Evidence
A revised Code D was introduced on 1 August 2004 dealing with identification
procedures to be adopted by the police at the police station was issued. Nothing
substantial has changed in relation to the hierarchy of identification procedures and
the very strict judicial interpretation of the “no useful purpose” test. The numbering
of the paragraphs in Code D and Annexes are also unchanged.
18.2.1 The effect of the Turnbull guidelines
Although the Court of Appeal in R v Turnbull [1977] QB 224, gave detailed
guidelines about the how the jury should be directed in relation to disputed evidence
of eye-witness identification at the crime scene, when directing the jury, the judge is
required to tailor the Turnbull guidelines to the facts of the particular case.
In addition to the Court of Appeal considering the adequacy of the Turnbull direction,
Edwards and Gordon below also provides guidance on the probative effect of a good
character direction, (see also Chapter 21: Character Evidence of the Defendant –
Evidence of the Defendant’s Good Character).
Adrian Edwards and June Gordon [2004] Lawtel Document No.: AC0106749
The appellants (E and G) appealed against convictions for attempted murder. It was
the prosecution case that following an argument with the victim (V), E had pointed a
gun at V and made an unsuccessful attempt to pull the trigger. E's co-accused (T) took
the gun and shot at V, the bullet passing through his clothing. T and E left the scene in
a car driven by G.
At an identification parade, one of the witnesses identified G as the driver of the
getaway car and E was also identified by two witnesses in subsequent identification
parades. E suggested that he had been mistakenly identified or the witnesses
fabricated the case against him. G claimed the identifying witness was mistaken in
recognising her at the scene.
At trial, the jury were invited to infer that, at the time G drove the car she would have
been aware of the plan to use a gun to kill someone and intended to assist the
perpetrators, such inference being supported by her willingness to assist them to
escape after the incident.
E submitted that in his summing-up (1) the judge's directions on identification were
wholly inadequate for a case where the issue of mistaken identification of E was a
central issue and that the judge failed to direct the jury on the dangers of recognition
evidence; (2) the judge failed to emphasise the weaknesses in the identification
evidence, in particular the discrepancies between the description of the man said to be
E at the scene and E himself; (3) the judge failed to deal adequately with flaws in the
identification parades; (4) the judge failed to give appropriate Lucas directions for the
benefit of E; (5) the direction in respect of E's character was inadequate.
G submitted that (6) the judge had been wrong to refuse her submission of no case to
answer on the grounds that the evidence of the sole identifying witness placing her at
the crime scene was unreliable and that there was insufficient evidence to prove joint
enterprise on her part. The judge's directions to the jury on the issue of identification
were inadequate because the judge did not tailor the Turnbull direction to the
particular facts of G's case.
The Court of Appeal held that (1) In relation to E, there was no error or unfairness in
the trial judge's approach. He had properly made clear the nature of the jury's task in a
classic Turnbull direction. The judge referred to the question of recognition having
previously warned the jury of the dangers of mistaken identification. The trial judge
reflected what plainly appeared to him to have been the emphasis and priority given to
the defence as between knowing fabrication and the possibility of unwitting mistake.
(2) Although the judge had not emphasised the importance of the discrepancies
between the description of the man said to be E at the scene of the incident and E
himself, it did not cause harm to E's case, as these points had been emphasised by the
counsel's final submissions to the jury and the judge subsequently drew the
discrepancies to the attention of the jury. (3) The judge had made it clear throughout
his summing-up that the decision in the case depended on identification evidence so
that his failure to confirm to the jury that there was no independent evidence to
support the identification by the prosecution witnesses had no adverse effect on the
trial. (4) To extend the requirement for a Lucas direction in the case of one defendant
to a general requirement to warn the jury against any adverse conclusion against a codefendant was carrying the law too far. The jury, as a matter of logic and common
sense, had to decide whether the witnesses for the Crown were telling the truth and a
conclusion that they were would necessarily involve a conclusion that the accused
was lying. Therefore the issue of lies was not a matter that the jury had to take into
account separately from the central issue in the case. (5) Although it would have been
better if the judge had followed the specific words of the model character direction,
the implication of the judges' direction had been clear, namely that the good character
of the defendants was something to be borne in mind as a factor in their favour in the
sense that it made it more, rather than less, likely that they were telling the truth. The
judge had not omitted anything that amounted to a substantial flaw in his summing-up
and accordingly E's conviction was safe.
(6) In relation to whether or not the jury might reasonably draw the inference that G
was party to a joint enterprise to kill, the judge had applied the correct test of whether
a jury could, properly directed, draw the inference contended for by the Crown. If the
jury was satisfied as to identification, the inference sought to be drawn was neither
unusual nor unlikely. The judge had given a full and satisfactory direction upon joint
enterprise. It might on occasions, particularly where a case depended entirely on
circumstantial evidence, be necessary for a judge to direct the jury on the niceties of
the role of inference in coming to their conclusion, but the instant case was not such.
The situation was plainly one that called for an answer from G, and the jury were
entitled to infer that the only sensible explanation for her silence was that she had no
answer to the charge. As regards to the Turnbull direction the judge had not failed to
tailor his direction to what were in fact the matters for the jury to consider. In the
circumstances G's conviction was safe.
Appeals dismissed.
Other Ways in Which Evidence of Identification Can Be Derived
R v Mitchell [2004] The Times 8 July
Evidence of a DNA profile which was found at the crime scene but which did not
match with the accused was a powerful piece of evidence in support of the defence
case which a jury ought to consider when reaching its decision.
Chapter 14 – Statutory exceptions permitting the use of hearsay evidence
First-hand documentary hearsay
s23 Criminal Justice Act 1988 provides that a statement contained in a document may
be admitted where one of the grounds in s.23 CJA is satisfied and, where the
statement has been prepared specifically for the purpose of criminal proceedings,
under s26 CJA it is “in the interests of justice” to admit the statement as hearsay. The
case of Sed considers whether the competence of the hearsay witness to give evidence
is a factor which the court may take into when exercising discretion under s26 CJA.
R v Sed [2004] The Times 8 July
The defendant was alleged to have had sexual intercourse with the complainant when
he knew due to her obvious mental weakness that she was obviously incapable of
giving consent. The prosecution applied to the court to admit a video tape (which
comes within the meaning of a “document” under s23 CJA) of the complainant’s
police interview. Whilst some of the complainant’s answers were confused, she stated
that a man had sexual intercourse with her against her wishes. Expert evidence
indicated that at the time of her interview she was not fit to give evidence in court
because of dementia. At trial, the judge allowed the prosecution’s application for the
witness’s evidence to be admitted under s23 CJA accepting that the interests of justice
test under s26 CJA was satisfied. The defendant was convicted and appealed.
The Court of Appeal in dismissing the appeal stated, in exercising discretion under
s26 CJA, the court was entitled to take into account the witness’s legal competence to
give evidence under s53 Youth Justice and Criminal Evidence Act 1999. The trial
judge had correctly applied the test in s53 YJCEA in assessing the complainant’s
competence and concluded that she had an appreciation of why she was being
questioned and had complained repeatedly about the assault. The Court concluded
that it had been in the interests of justice for the complainant’s statement to be
admitted under s23 CJA.
Reforms to the law of hearsay under the Criminal Justice Act 2003
When implemented (expected during Spring 2005), the law governing the admission
of hearsay in a criminal case will be put on a statutory footing by the Criminal Justice
Act 2003 (CJA). The purpose of the reforms to is to modernise the law by making it
more positive and transparent.
Section 114 CJA 2003 provides a statutory meaning of hearsay as “a statement not
made in oral evidence in the proceedings is admissible as evidence of any matter
stated if it comes within one of the four exceptions”
Section 114 then identifies the following four situations where hearsay will be
admissible under the Act –

hearsay will be admissible where it comes within one of the categories of
admissible hearsay evidence,

hearsay will be admissible where it comes within one of the preserved
common law rules

hearsay will be admissible where the parties agree to the evidence being
admitted;

hearsay will be admissible where the court is satisfied that it’s in the “interests
of justice” for the hearsay statement to be admitted.
Each of these heads of admissibility is now briefly considered.
(1) Hearsay will be admissible where it comes within one of the categories of
admissible hearsay evidence under the CJA 2003
The main statutory provisions for admitting hearsay are provided by ss.116 and 117
CJA 2003, which repeal ss.23 and 24 CJA 1988.
Section 116 CJA permits a statement to be admitted where the witness is unable to
attend court to give oral evidence for a recognised reason including where –

the witness is absent from court through illness or death; or

the witness is missing; or

the witness is outside the UK and it is not reasonably practicable for him to
attend; or

the statement was made by a frightened witness.
In addition to one of the above grounds being satisfied for the makers’ absence from
trial, a statement will only be admissible under s.116 CJA 2000 where –

the witness could have given oral evidence if he had attended court; and

the person who made the statement is identified to the court’s satisfaction.
Whilst there are similarities between s.116 CJA and s23 Criminal Justice Act 1988,
there are also significant differences with the 2003 Act providing a wider ambit for
the admission of hearsay in the following ways –

s.116 CJA is not confined to hearsay contained in a document and includes
oral hearsay;

a wider definition of what amounts to “fear”; and

in deciding whether to admit the evidence as hearsay, under the CJA 2003 the
court will no longer exercise the “interests of justice” discretion.
Section 117 CJA 2003 permits business documents to be admitted as hearsay
provided the following conditions apply:

the document was created or received in the course of a trade, business,
profession etc or as the holder of a paid or unpaid office; and

the person who supplied the information in the statement had or might
reasonably be expected to have had personal knowledge of the matters dealt
with in the statement; and

each person through whom the information passed was supplied received the
information in the course of a trade, business, profession or other occupation
or as the holder of a paid or unpaid office.
Section 117 CJA 2003 generally replicates the conditions laid down in s24 CJA 1988
even to the extent of where the document has been created for the purpose of a
criminal investigation or proceedings, the reason for the supplier’s absence form court
is that he is unavailable or cannot reasonably be expected to remember the
document’s contents.
(2) Hearsay will be admissible where it comes within one of the preserved
common law rules, s118 CJA 2003
The CJA specifically preserves many of the common law exceptions to the
hearsay rule, of which the most important is res gestae. The other common law
provisions are either outdated such as evidence regarding a family’s reputation or
tradition or have been superseded by the statute such as confessions. A dying
declaration will be abolished.
(3) Hearsay will be admissible where the parties agree to the evidence being admitted.
This ground is self explanatory
(4) Hearsay will be admissible where the court is satisfied that it’s in the “interests of
justice” for the hearsay statement to be admitted.
In applying the “interests of justice” discretion, the court will take into account a
number of factors including –

the creditworthiness of the statement’s maker;

the probative value of the statement;

the reason why oral evidence cannot be given; and

the extent to which the other party would be prejudiced by having the
statement admitted as hearsay;

how important the statement is to the party’s case;

the amount of difficulty in challenging the statement.
The “interests of justice” ground will apply where the hearsay evidence cannot be
admitted under any of the other provisions.
Additional safeguards when admitting hearsay evidence
Although the CJA 2003 introduces a more liberal regime in admitting hearsay,
even where the conditions for admissibility are satisfied, the Act introduces a
number of safeguards to limit multiple hearsay and a provision for challenging the
capability and credibility of a hearsay witness.
Restricting multiple hearsay – s121 CJA 2003
Multiple hearsay is not admissible unless –

the evidence is admissible under s.117 CJA 2003 as a business document;
or

the parties agree to it being admitted; or

the court is satisfied that it is in the interests of justice for the statement to
be admitted as hearsay.
The ‘capability’ requirement – s123 CJA 2003
Hearsay evidence will be admitted provided the hearsay witness would have been
competent to have given oral evidence under s55 Youth Justice and Criminal
Evidence Act 1999 if he had been present at the trial.
Challenging the hearsay witness’ credibility – s124 CJA 2003
Section 124 CJA 2003 permits the other side to challenge the hearsay witness’s
credibility in the same way as if the witness had given oral evidence.
Stopping the case –s.125 CJA 2003
Section 125 CJA requires the court to stop the case and to acquit the defendant where
the case against him is based wholly or partly on an out of court statement which is so
unconvincing, that considering its importance to the case, a conviction would be
unsafe.
Excluding unnecessary hearsay – s.126 CJA 2003
The court has a general discretion to exclude any hearsay evidence where the reason
for excluding the evidence outweighs the value in admitting it. Section 126(2) CJA
preserves the discretions under s78 PACE (unfairness) and s82(3) (probative value
outweighed by prejudicial effect) to exclude hearsay evidence where it’s not in the
interests of a fair trial. .
Reversing the decision in R v Myers [1998] AC 124
Section 128 CJA 2003 inserts s76A PACE which effectively reverses the House of
Lords’ decision in R v Myers [1998] AC 124. One co-accused will not be permitted to
use a confession made by another co-accused where the confession could not be put
forward as part of the prosecution case as it had been excluded under s76(2)(a) or (b)
or s78 PACE.
Reversing the decision in R v Kearley [1992] 2 AC 228
Section 115 CJA permits evidence of implied assertions to be admitted and effectively
overturns the decision in R v Kearley [1992]. Implied assertions will therefore be
admissible as an exception to the hearsay rule.
A detailed explanation of the new provisions will be included in Update 5.
Chapter 15 – Examination-in-Chief of a Witness
Whilst the law of out-of-court memory refreshing documents remains unchanged, the
use of such documents by a witness when testifying is now governed s139 Criminal
Justice Act 2003
Under s.139 Criminal Justice Act 2003, a witness is entitled to refresh his memory
from a document whilst testifying provided:

the document was made witness or verified by the witness on an earlier
occasion; and

the witness states in his oral evidence that the document records his
recollection of the matter at the earlier time; and

his recollection of the matters about which he is testifying is likely to have
been significantly better at that time than it is at the time of his oral evidence.
Before the witness can use the document, it must be produced for inspection by the
court and by the opposing advocate.
Where the witness is cross-examined on those parts of the document which the
witness used to refresh his memory, the document does not form part of the evidence
in the case.
Where the cross-examiner strays outside those parts of the document that the witness
used to refresh his memory, the whole document becomes part of the evidence in the
case.
The most commonly encountered memory-refreshing document is a police officer’s
notebook. A ‘lay’ witness may also refer to a memory refreshing document including
his written statement or for example, a piece of paper on which he noted the
description and registration number of a car he saw at the crime scene.
Chapter 16 – Evidential Issues Arising Out of Cross-Examination and ReExamination
Admitting evidence of bad character of someone other than the defendant – s100
CJA 2003
Under the ‘old’ law, the parties were given a degree of latitude to ask witnesses about
aspects of their past (most obviously any criminal convictions) which might be seen
to undermine the witness’s credibility.
The position is now governed by s100 CJA 2003, which provides that the court may
only grant leave to admit evidence of the bad character of someone other than the
accused if :
(a) it is important explanatory evidence;
(b) it has substantial probative value in relation to a matter which is a matter in issue
in the proceedings and is of substantial importance in the context of the case as a
whole; or
(c) all parties agree
(a) The meaning of explanatory evidence - s100 (1)(a) CJA 2003
It is evidence which without it the court would find it impossible or difficult properly
to understand other evidence in the case and its value for understanding the case as a
whole is substantial.
(b) The witness’s bad character has substantial probative value in relation to a matter
in issue and is of substantial importance in the context of the case as a whole - s100
(1) (b)CJA 2003
In assessing the probative value, the court will have regard to a non-exhaustive list of
factors in s100(3) CJA 2003

The nature and number of events or things to which the evidence relates

When those events or things are alleged to have happened or existed

The nature and extent of the similarities and dissimilarities between each of
the alleged instances of misconduct

The extent to which the evidence shows or tends to show the same person was
responsible each time
The court’s discretion
Leave to admit such evidence must be given save where the parties agree. This may
well require the trial to be stopped whilst the point is considered.
What does s100 CJA 2003 mean in practice?
In deciding whether to raise the bad character of a witness’s bad character, the
advocate will ask himself whether the evidence to be adduced is important to my
client's case? Would my client's trial be unfair if I didn't put this question to the
witness/or adduce the evidence in some other form? The question must have a high
degree of relevance which might be answered by considering what motive/incentive
does the witness have to lie on this occasion?
Consider the following examples.
D is on trial for burglary. D calls A to give evidence of alibi. A has two recent
convictions for dishonesty. Will the prosecution be able to put these questions to A?
Under the old law-the answer would be yes and the same is arguably true of the new
law.
X is charged with theft from his employer. He denies the offence. He contends that a
fellow employee Y committed the theft. Will X be allowed to adduce evidence of the
fact that 5 years ago Y was dismissed from his former employment for an act of theft
from a fellow employee? Under the old law-such questioning would be allowed. The
position under the new law is more debatable and would involve application of the
criteria and the factors in s 100.
Comment
It remains to be seen how s100 CJA 2003 will be applied in practice. A lot of
questioning that has previously gone on in trials of a routine nature will now be
subject to the requirement of leave if both sides cannot agree. This will lengthen trials.
Where the defence make an application, the judge will no doubt be mindful of the risk
of appeal in the event of conviction. It should be remembered that there is no burden
of proof on the D-all he has to do is raise a reasonable doubt. For this reason it ought
to be easier for the defence to demonstrate that the line of questioning has substantial
probative value at least in the context of the defence case.
Where s100 CJA 2003 will not apply
Under s98 CJA 2003, s100 has no application if the misconduct of the witness is
connected with the investigation or prosecution of the present offence. If it does relate
to the present offence, it will be freely admissible and s100 CJA 2003 has no
application.
Chapter 20 - Character Evidence Relevant to Guilt
Chapter 20 – Reforms under the Criminal Justice Act 2003 to the admission of
Character Evidence Relevant to Guilt
Chapter 21 – Reforms under the Criminal Justice Act 2003 to the admission of
Character Evidence Relevant to the Credibility of the Defendant as a Witness
Disclosing evidence of the defendant’s character under the Criminal Justice Act
2003
Part 11 CJA 2003 has introduced a statutory framework for admitting evidence of a
witness’s bad character in a criminal case. The main focus of the revised law
undermines many of the traditional immunities which generally gave the defendant a
shield from having evidence of his bad character being disclosed to the court. The
CJA 2003 extends the boundaries for admitting evidence of the defendant’s bad
character whilst providing fewer safeguards than under the ‘old’ law.
Section 98 CJA 2003 defines evidence of a person’s bad character as
…evidence of, or of a disposition towards, misconduct on his part other than evidence
which –
(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.
The term “misconduct” is further defined by s.112 CJA 2003 as the commission of an
offence or other reprehensible behaviour. The definition includes –

evidence of the defendant’s previous convictions; and

evidence of charges on which the defendant is being concurrently tried;

evidence relating to an offence(s) with which the defendant has been
charged;

evidence of where the defendant was charged for an offence but was
not prosecuted; and

evidence of where the defendant was acquitted of an offence.
Section 101(a)-(g) CJA 2003, sets out the gateways where evidence of the
defendant’s bad character may be revealed to the court in the following circumstances
(a) all the parties to the proceedings agree to the evidence being admissible;
(b) 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,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defence and the
prosecution,
(e) it has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant
(f) it is evidence to correct a false impression given by the defendant; or
(g) the defendant has made an attack on another person’s character.
Evidence of the defendant’s bad character may be admitted in the following
circumstances under the CJA 2003
(1) All parties to the proceedings agree to the evidence of the defendant’s bad
character being admitted – s.101(1)(a) CJA 2003
This ground is unlikely to apply in many cases except perhaps where a defendant
has convictions for minor offences such as driving whilst disqualified and is now
charged with a much more serious offence such as rape. In this situation, it might
be in the defendant’s interests to disclose his previous minor conviction to
persuade the court that whilst he has a conviction for a minor offence, he is not the
type of person who would commit a serious crime such as rape.
(2) The evidence of bad character 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 – s.101(1)(b) CJA 2003
Again, this ground is unlikely to be regularly applied except as with ground (1) above,
where the defendant considers it to be in his interests to disclose to the court evidence
of wrongdoing as the lesser of two evils. Consider the following example.
George is charged with inflicting grievous bodily harm with intent. His defence is
alibi as at the time of the grievous bodily harm offence, George was committing an
offence of taking a motor vehicle without the owner’s consent. The court could be
told by of the taking without consent offence either by George or by his accomplice in
examination in chief or during cross-examination.
(3) Evidence of the defendant’s bad character as important explanatory evidence –
s.101(1)(c) CJA 2003
In some cases it will be necessary for the prosecution to give explanatory background
information to the offence, which may result in part or the whole of the defendant’s
bad character being disclosed. Section 101(c) CJA 203 gives statutory effect to this
principle and explains important explanatory evidence as either evidence without
which the court would find it impossible to or difficult to understand the other
evidence in the case or where the value of understanding the evidence in the case is
substantial.
In some cases it will be necessary for the prosecution to give explanatory background
information about the offence, which may result in part or the whole of the
defendant’s bad character being disclosed. In effect, s101(1)(c) CJA 2003 gives
statutory effect to what was the position at common law, exemplified in cases such as
R v Pettman (2nd May 1985 unreported) in which Purchas LJ stated:
“Where it is necessary to place before the jury evidence 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,
then the fact that the whole account involves including evidence establishing the
commission of an offence with which the accused is not charged is not of itself a
ground for excluding the evidence”.
(4) Evidence of the defendant’s bad character is an important matter in issue between
the defendant and the prosecution – s.101(1)(d) CJA 2003
Where it is an important issue between the prosecution and the defence, this very
wide provision permits evidence of the defendant’s bad character to be admitted in
two situations –

to show the defendant has a propensity to commit offences of the kind
with which he is currently charged (unless the propensity makes him
no more likely to be guilty of the offence with which he is charged);
and / or

to show the defendant has a propensity to lie (unless it is suggested that
he is not lying).
Evidence of the defendant’s propensity to commit offences of the kind with which he
is currently charged is based on the former similar fact evidence principle and
importantly goes towards proving his guilt for the present offence. It includes where
the defendant is currently being tried for burglary and he has previous convictions for
burglary. The prosecution may adduce evidence of his previous burglary convictions.
The provision also applies where the defendant has previous convictions for an
offence in the same category as the offence for which he is being tried. Guidance as to
the categories of offences covered by the section has been published by the Home
Secretary in relation theft offences and child sex offences. Additional categories of
offences are expected. Therefore where the defendant is charged with burglary and
has previous convictions for offences of the same category including theft and / or
obtaining by deception etc, these offences may be disclosed to the court. The
probative effect will be towards proving the defendant’s guilt for the present offence.
Some attempt has been made to safeguard the defendant’s position by giving the court
discretion to refuse to admit evidence of the defendant’s previous conviction(s) where
–

the offences were committed sufficiently long ago that it would be unfair to
rely on them; or

some other reason why it would be unfair to rely on the previous convictions;
or;

it would have an adverse effect on the fairness of the proceedings to allow
evidence of the defendant’s previous convictions to be put before the court,
s.101(3) CJA 2003.
The second gateway under this provision permits evidence of the defendant’s
previous convictions to be admitted to show the defendant has a propensity to lie.
Evidence admitted under this rule undermines your client’s credibility as a witness.
Consider the following examples of the section’s operation.
Examples
David is charged with assault occasioning actual bodily harm on his neighbour. He
pleads not guilty maintaining he acted in self defence. David has three previous
convictions for theft. Could these convictions be admitted as evidence of David’s
propensity to be untruthful?
The prosecution would be contending that David’s defence is a fabrication. Previous
convictions for dishonesty would suggest that David is not a man whose word can be
trusted. Arguably they would be admissible within the terms of s 101 (1) (d), subject
to the defence applying to the court to have them excluded in accordance with s. 101
(3). On the wording of the section, bad character involving untruthfulness could
become routinely admissible where the prosecution allege the defendant is putting
forward an untruthful defence. A relevant consideration in this case might be the age
of the previous theft convictions. If they were committed ten of more years
previously, with the defendant having enjoyed an exemplary record in the meantime,
there is an argument for saying that it would be unfair to infer a propensity to be
untruthful.
Would this fact have been admissible under the old law? Not unless David threw
away his shield under s1(3)(ii) CEA 1898 (which he would only do if he were to cast
an imputation on the character of a prosecution witness and only if he gave evidence
on oath). Under the old rule such previous convictions would be relevant to an
assessment of David’s credibility only. There is no such restriction under the new
provisions.
Frank is charged with indecently assaulting his 9 year-old nephew. He denies the
offence maintaining the child is lying. Frank is also found to be in possession of a
number of indecent photographs of young boys. He will plead guilty to this offence.
Can the prosecution use this fact in evidence against him at his trial for indecent
assault?
The prosecution would argue that it is indicative of a propensity towards a sexual
interest in young boys, making it less likely that the nephew is making up the
allegation. The defence advocate would need to argue that its admission at the trial for
indecent assault would prejudice Frank’s right to a fair trial on the basis that its
prejudicial value exceeds its probative effect .Does it make it more likely that the boy
is telling the truth? Given parliament’s clear intention that the jury should be trusted
to handle such information, it is not altogether clear that a trial judge would exclude
such evidence. If the facts were changed such that Frank’s defence was one of
accidental touching then, you might say the fact of his possessing indecent
photographs makes his defence considerably less plausible and should therefore be
admitted.
Under the old law, Frank’s guilty plea to the photographs would only be admissible as
similar fact evidence if the court concluded that the probative value of the evidence
outweighed its prejudicial effect. Arguably it would.
(5) Evidence of a defendant’s bad character has substantial probative value in relation
to an important issue between the defendant and a co-defendant, s.101(1)(e) CJA
2003
The fifth gateway under the CJA 2003, is the equivalent of the former ground under
s.1(3)(iii) Criminal Evidence Act 1898 where one co-accused would lose his shield
where he gave evidence which either strengthens the prosecution case against a coaccused or undermines the co-accused’s defence.
It is assumed that the new provision will be invoked on the same basis as under the
CEA 1898 where, during examination in chief or in cross-examination, one coaccused’s evidence strengthens the prosecution case against another co-accused or
undermines the co-accused’s defence. One significant additional requirement
however, is that the gateway will only apply where the evidence of the co-accused’s
defendant’s bad character has “substantial probative value” in the case. What amounts
to substantial probative value will be decided on the facts of the particular case as no
guidance in given the CJA 2003.
The following should be noted about s.101(e) CJA 2003 –

the provision is only available to a co-accused but not the prosecution;

where the grounds for admitting evidence of a co-accused’s bad character
are satisfied, there is no discretion to disallow cross-examination;

evidence of a bad character disclosed under the provision not only goes
towards undermining the co-accused credibility as a witness but may also
his propensity to commit offences. This is a wider application than under the
s.3(1)(iii) CEA 1898.
Example
Aaron and Jordan are jointly charged with wounding with intent to cause grievous
bodily harm. The prosecution allege the victim was wounded as a result of being
knifed by one or both of the defendants. Aaron and Jordan are pleading not guilty are
running cut-throat defences by blaming each other.
In cross-examination by Jordan’s counsel, Aaron, who has three convictions for
assault occasioning actual bodily harm and two for obtaining property dishonestly,
states that he is the victim of mistaken identity as it was Jordan, who knifed the
victim.
Jordan may seek to cross-examine Aaron about his previous convictions as Aaron’s
evidence has –

undermined Jordan’s defence; and

has substantial probative value to an important issue between the co-accused –
i.e. the identity of the person who knifed the victim.
Provided these conditions are satisfied, the court has no discretion to prevent Jordan
from cross-examining Aaron about his convictions. The bad character evidence is
relevant to both undermining Aarons credibility as a witness as his previous
convictions show that he has a propensity to be dishonest. Also, Aaron’s previous
convictions also indicate a propensity to commit offences involving violence.
(6) Evidence of the defendant’s bad character is admissible to correct a false
impression given by the defendant – s.101(1)(f) CJA 2003
This provision replaces the former rule under s.1(3)(ii) CEA 1898, where the
defendant falsely asserted his good character, the prosecution could with leave crossexamine him about his bad character.
The revised position under s.101(1)(5) CJA 2003 is wider than its predecessor as the
false assertion of good character may come not only by testimony but also through the
defendant’s conduct. Unlike the CEA 1898, it appears not to be limited to when the
accused elects to testify in his own defence but extends to any false assertion that
forms part of the defence case whether asserted at trial or even before trial.
Consider the following example.
Example
Shanaz is charged with handling a consignment of stolen designer clothes. Both
during the police investigation and at trial, Shahnaz asserts that she would never do
anything dishonest where her business interests are concerned. To rebut this false
assertion about her unimpeachable business ethics, the prosecution wish to put in
evidence Shahnaz’s three convictions under the Trades Descriptions Act for falsely
representing 200 dresses sold in her shop as being designed and personally made by
the Ponto, the exclusive Italian designer. The dresses were in fact cheap fakes.
The prosecution may only introduce evidence of the defendant’s bad character to
rebut the false impression that was made about the defendant’s character. In many
cases, it will not be necessary for the whole of the defendant’s bad character to be
disclosed.
(7) Evidence of the defendant’s bad character is admissible after the defendant has
made an attack on another persons character, s.101(1)(g) CJA 2003
This provision replaces the most widely used subsection under s.1(3)(ii) CEA 1898,
where the defendant would lose his shield after making an imputation against the
character of a prosecution witness or the prosecutor or the deceased victim of the
crime for which the defendant was on trial.
Again, s.101(g) CJA 2003 is wider than its CEA 1898 predecessor by extending to
where the defendant attacks another person’s character –

when adducing evidence; or

being asked questions in cross-examination; or

on being questioned under caution before charge about the offence with
which he is charged; or

on being charged with the offence or officially informed that he might be
prosecuted for it.
“Attack” is defined by s.106(2) CJA 2003 as suggesting that the person has
committed an offence or has behaved in a reprehensible way or is inclined to behave
in a reprehensible way. The court may refuse to permit evidence of the defendant’s
bad character being disclosed where it would have “an adverse effect on the fairness
of the trial”, s.101(3) CJA 2003.
Example
Alex is charged with burglary to which he pleads not guilty. At the police station
when being questioned about the offence under caution, the investigating officer,
Inspector Mallory asks Alex to account for the presence of Alex’s fingerprints at the
victim’s house. Alex accounts for the presence of his fingerprints by suggesting that
they had been planted there by the scene of crime officer at Mallory’s instigation.
Alex goes on to suggest that “everyone knows you are as corrupt as hell, Mallory”
and that “you have always had it in for me”.
At trial, the police may adduce evidence of Alex’s attack on Mallory’s credibility and
disclose Alex’s two convictions for theft and three public order offences provided the
court is satisfied under s.101(4) would not have an adverse effect on the fairness of
the proceedings.
This is a very wide definition. It clearly covers previous convictions and a disposition
to commit certain types of behaviour. However, the definition extends to include
reprehensible behaviour which was admissible at common law but was very rarely
admitted. It appears that this head of bad character has been resurrected and will cover
evidence of the:

the defendant’s sexual immorality;

the defendant cheating on his spouse;

the defendant cheating in an exam or possessing pornographic material.
What is not regarded as bad character?
Finally, it is important to be aware what is not regarded as evidence of had character.
If the defendant’s bad character has to do with the facts of the offence with which the
defendant is charged or is evidence of misconduct in connection with the investigation
or prosecution of that offence, s98 CJA 203 provides that the bad character provisions
of s101 CJA 2003 has no application.