VOLUME
3:2
DECEMBER 2016
163-473
  • BAD CHARACTER EVIDENCE IN THE CRIMINAL TRIAL: THE ENGLISH STATUTORY/COMMON LAW DICHOTOMY — ANGLO-AUSTRALIAN PERSPECTIVES

    Michael Stockdale, Emma Smith and Mehera San Roque
Abstract

Evidence of Bad Character (BCE) is an important evidential category, and its admission can have a significant impact on the criminal trial. The Criminal Justice Act 2003 (CJA 2003) provides a definition for bad character evidence (s.98/112 of the CJA 2003) that, where applicable, requires BCE to surmount one of the gateways to admissibility in s.101(1) of the CJA 2003. Regarding some Uniform Evidence Law jurisdictions in Australia, the Evidence Act 1995 governs the admissibility of evidence to demonstrate “tendency”/“coincidence” (or the improbability thereof) and the use of BCE to rebut defendant-led good character (see ss.97, 98, 101 and 110 of the Evidence Act 1995). The definition of BCE provided in s.98 of the CJA 2003 requires “evidence of, or of a disposition towards, misconduct” and “misconduct” is further defined within s.112 of the CJA 2003 as “the commission of an offence or other reprehensible behaviour”. A wealth of case law has developed around when evidence “has to do with the alleged facts of the offence charged” in s.98(a) of the CJA 2003 (an exception to the definition of BCE) as well the scope of the overlap between s.98(a) and certain gateways to admissibility (eg, s.101(1)(c), (d) of the CJA 2003), which has led to a degree of flexibility and to uncertainty within the law in this area. Similarly, in cases in Australia, evidence incidentally disclosing other (mis)conduct by the accused has been held to fall outside the provisions regulating the admission of tendency (and coincidence) evidence. This article will explore some of the areas of uncertainty that have developed since the implementation of the 2003 reforms, informed by consideration of the approach to equivalent questions in the Australian jurisdictions.

Keywords
bad character; admissibility; relevance; Criminal Justice Act 2003; Uniform Evidence Law
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Introduction

The Criminal Justice Act 2003 ushered in a new regime for the admission of bad character evidence in England and Wales. The reforms were notionally intended to substantially reform an area of evidence law that had been increasingly seen as unwieldy, unnecessarily complex and, by some commentators and courts at least, as incoherent. In recommending reform, the Law Commission was attentive to, and drew in some respects on, a comparable project that had been undertaken some years earlier in Australia — a slow reform process that ultimately resulted in the enactment, in 1995, of the optimistically named “Uniform” Evidence Law (UEL) in two Australian jurisdictions. However, the approach ultimately adopted by the Law Commission and the CJA 2003 to the codification of this area of law differed in significant respects from the direction taken by the Australian Law Reform Commission (ALRC) and the resulting (Uniform) Evidence Acts.
The reforms implemented within the CJA 2003 represented an attempt to clarify and codify the law, but the implementation of the 2003 Act’s provisions, particularly when considered alongside the approach taken by the UEL in Australia, indicates that uncertainty, especially in relation to the definition of evidence of bad character and the scope of the new provisions, remains. The complexity identified by the Law Commission as a problem has been displaced to other areas with consequences for admissibility and subsequent use of bad character evidence at trial that are still being worked through. The aim of this article is to explore some of the areas of uncertainty that have developed since the implementation of the 2003 reforms. The focus is on the development of the law in England and Wales, but the analysis is informed by reference to the ways in which a comparable jurisdiction, and one that was influential on the Law Commission’s recommendations, has approached reform to this area of the law. Overall, the development of the law, post-2003, raises questions as to whether the approach initially taken by the Law Commission, and subsequently modified in the drafting of the CJA 2003, has been effective in simplifying/clarifying this area of the law.
The Law Commission’s draft Bill, the CJA 2003 and the Uniform Evidence Acts, each adopt different approaches to the regulation of “bad character” evidence, in general, and to the management of evidence, which forms part of the res gestae, and to background, contextual and explanatory evidence, in particular. This includes variation in approaches to the issue of whether such evidence falls within the ambit of statutory admissibility codes directed specifically towards the management of “bad character” or whether its admissibility is governed by general principles or indeed continues to be governed by common law principles. When comparing these three regimes (Law Commission recommendations, 2003 Act and Uniform Evidence Acts in Australia), one issue is whether any one of these three approaches produces (or in the case of the Law Commission’s draft Bill, would have produced) an admissibility regime that is more intuitive, more coherent and/or more readily comprehensible than the others. This includes the sub-issue of whether each regime is internally coherent within itself or whether it creates grey areas of ambiguity, for example, in the case of the 2003 Act as regards the relationship between the statutory code and retained common law principles. These are salient questions that require further analysis, given that the aims and motivations behind the reform promulgated by the government were to remedy the difficulties associated with the old law identified by the Law Commission, in their report number 273 in 2001, and Auld LJ, in his report.3 Baroness Scotland, on behalf of the government, when the Criminal Justice Bill was being debated in the House of Lords, indicated that the new statutory scheme for admissibility was to depart from the “plethora of rules that have developed over a century or more, couched on an exclusionary basis and unclear in their application... the new statutory scheme for evidence of bad character [should be] as straightforward and as accessible as possible”.4 A further issue is the extent to which the differences between the three regimes identified above are of practical significance in the sense that evidence of the same type (though, perhaps classified differently) would in practice be more or less readily admissible either for the prosecution or for the defence under one regime than is or would be the case under another. There may also be corollaries with respect to the necessity for, or content of, judicial directions provided in response to the admission of evidence; it may be that bad character directions will differ or even disappear depending on the admissibility regime adopted and/or the route to admissibility that is followed within a specific admissibility regime.
In codifying the law in England and Wales, the CJA 2003 was intended to bring the admissibility framework for bad character evidence under one statute, the position having formerly been regulated by a combination of common law principle and statutory provisions.6 Under the 2003 Act, evidence of misconduct on the part of the accused that falls within the definition of bad character created by ss.98 and 112 of the 2003 Act will be admissible “if but only if” the requirements of one or more of the gateways created by s.101(1) of the 2003 Act are satisfied. There are seven s.101 gateways in total and the nature of those that are of particular relevance to the present discussion are outlined below. (There are also three gateways in s.100 that regulate the admissibility of evidence of bad character of persons other than the accused.) As is seen below, the s.101 gateways determine whether evidence of the accused’s “bad character” will be admissible but do not dictate the use to which such evidence, once admitted, may be put. Rather, the judge will direct the jury as to the potential relevance of the evidence, which is not limited by the gateway through which it has been admitted.
Whereas the basis of the Law Commission’s recommended approach had been the exclusion of bad character evidence, the government favoured “a more targeted approach...one of inclusion that makes it clear that relevant evidence is admissible”.7 The government’s intention was that “[t]he law should...make it clear that the test should be whether the evidence is relevant, and then whether it should be excluded”.8 As is demonstrated below, the bad character provisions of the 2003 Act do not apply to residual areas of evidence of misconduct (specified by s.98(a) and 98(b)) which the Act does not classify as evidence of bad character and, in this regard, do not precisely embody the Law Commission’s recommended approach. The admissibility of such evidence continues to be regulated by the common law test of relevance rather than by the more onerous requirements that govern the availability of the statutory admissibility gateways, and the nature of judicial directions to the jury appears to differ depending on whether the statutory or the common law regime is applicable. Unfortunately, the borderline which s.98 of the 2003 Act creates between evidence of “misconduct”, that amounts to evidence of bad character — the admissibility of which is governed by statute — and evidence of “misconduct” that does not amount to evidence of bad character — the admissibility of which is regulated by the common law — is subject to uncertainty. Indeed, the applicable jurisprudence of the Court of Appeal does not seem to fully reflect either the intention of the Law Commission or the intention of the government regarding where this borderline should be drawn.