Evidence of Bad Character
A practice advice document on Evidence of Bad Character has been produced by the National Centre for Policing Excellence (NCPE) Directorate of Centrex on behalf of ACPO. The document explains the circumstances in which bad character evidence is admissible in court proceedings in respect of defendants and non-defendants, and gives specific advice on dealing with bad character at the interview stage of an investigation.
The document also contains an appendix in question and answer format on the bad character provisions of the Criminal Justice Act 2003. A legal guidance paper prepared for Crown prosecutors is also contained in the document.
In cases where evidence of bad character is being considered as part of the prosecution case, officers will be required to complete a new form known as an MG16. This form will be submitted to the duty prosecutor together with the form MG3 for pre-charge advice/charging decision or, where appropriate, post charge.
Hard copies of the advice document have been circulated to all police forces. It is understood that an electronic version of the document is to be made available on the ACPO website at www.acpo.police.uk.
Case law on bad character evidence under the Criminal Justice Act 2003 will no doubt continue to regularly arise; one such case, R v David Benjamin Bradley, has already been covered in the Digest, and other recent cases in particular R v Hanson provide further guidance on the bad character provisions.
The case of R v Hanson was held in conjunction with two other cases, R v Gilmore and R v P in the Criminal Appeal Court on March 22, 2005.
The cases centred on the admissibility of a defendants bad character and previous convictions in evidence as set out in Section 98 to 113 of the Criminal Justice Act 2003, but in particular to evidence of previous convictions. The judgement now forms the basis of the guidelines in which courts may follow in cases such as these.
It was held:
Under the Criminal Justice Act 2003 S 103(2), a defendants propensity to commit offences of the kind with which he was charged could be established by evidence of conviction of an offence of the same description or category as the one with which he was charged; but by Criminal Justice Act Section 103(3) that did not apply if the court was satisfied that that would be unjust by reason of the length of time since the conviction or for any other reason.
Where propensity to commit an offence was relied upon there was essentially three
questions to be considered:
u Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
u Does that propensity make it more likely that the defendant committed the offence charged?
u Is it unjust to rely on the convictions of the same description or category; and in any event, will the proceedings be unfair if they are admitted?
In referring to offences of the same descriptions or category, Section 103(2) is not exhaustive of the type of convictions which might be relied upon to show evidence of propensity to commit offences of the kind charged; nor is it necessarily sufficient, in order to show such propensity, that a conviction should be of the same description or category as that charged.
A single previous conviction for an offence of the same description or category will often not show propensity; but may do so where it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. Child sexual abuse or fire setting are comparatively clear examples of unusual behaviour (the list is not exhaustive). Circumstances demonstrating probative force are not confined to those sharing striking similarity. So a single conviction for shoplifting, will not be admissible to show propensity to steal, but if the modus operandi has significant features shared by the offence charged it may show propensity.
When considering what is just under Section 103(3) and the fairness of proceedings under Section 101(3), the Judge may take into consideration the degree of similarity between the previous conviction and the offence charged. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. However striking similarity did not have to be shown before convictions became admissible.
As to propensity to untruthfulness, this is not the same as propensity to dishonesty. It is to be assumed that Parliament deliberately c