How willing are the courts to admit bad character evidence?

In R v Ross (CLW/08/11/2) a defendant was charged with various money-laundering offences under sections 327 and 329 of the Proceeds of Crime Act 2002.

The prosecution wished to prove the bad character (viz. the convictions for drug-related offences) of two people who had accompanied the defendant abroad on various ferry trips, in order to demonstrate that those trips were for a drug-related purpose, which supported the prosecution’s case that the defendant’s property specified in the charges was the result of his illegally dealing in drugs, and generated partly by those trips.

One of those two people was also a prosecution witness in relation to a charge of using criminal property, a charge which related to a car alleged to have been bought by the defendant from the witness in satisfaction of a drug debt.

The Court of Appeal held that the judge had been entitled to admit the bad character evidence of that witness, since the issue that the evidence addressed (viz. whether the trips were drug-related) was different to the issue the witness’s oral testimony was intended to address (viz. how the defendant had acquired the car), and so, by adducing the bad character evidence, the prosecution would not be attacking the credibility of their own witness.

However, the witness had in the event testified that the trips were not drug-related, and so the sole purpose of the bad character evidence had become to encourage the jury to disregard the witness’s testimony on that issue and the court held that an irregularity had occurred.

At that point, according to the Court of Appeal, consideration should have been given to how the case had developed (i.e. whether the irregularity should have led to the discharge of the jury); and, on appeal, the question that fell to be answered was whether the irregularity had affected the safety of the conviction.

In the event, it was held that it had not.

CLW comment

Reference to the facts of this case discloses a depressing picture of practice in criminal courts of first instance.

The notion that there should be a particularised charge to be proved according to strict rules of evidence seems to belong to another era. Instead, money laundering charges are routinely trotted out in circumstances for which they are completely inappropriate, and are supported by what appears to be little more than the tittle-tattle or gossip of anybody who may have some sort of grudge against the defendant.

The charges themselves are often in the vaguest of terms. For example, one of the counts in this case alleged using criminal property, namely a car, which had been obtained either by theft or by blackmail or as payment for a drug debt.

It might have been thought that this would require the judge at the least to direct the jury on the ingredients of theft and on those of blackmail, but there is no indication that this was done.

Furthermore, the evidence to support such charges seems to be given with precious little regard for the rules relating to hearsay and bad character – almost as if there is now a settled belief that the Criminal Justice Act 2003 enacted an “anything goes” rule.

Here, the defendant’s disgruntled former girlfriend seems to have been allowed to give a generalised narrative account of his alleged criminal activities over the previous 10 years, even though it must have been quite obvious that she had no personal knowledge of much of it.

And when it came to the character evidence, the prosecution were content to seek to adduce evidence of the bad character of their own witness, rather than do the obvious thing and ask him in evidence what the purpose of the trip abroad was.

Why did they not want to ask him? Because they knew he would give an answer contrary to their case!

Apart from the fact that they thereby sought to undermine the evidence of their own witness, no real consideration seems to have been given to any possible justification for admitting the evidence under