Court's powers to exclude bad character evidence

Introduction

Bad character evidence refers to information about a person's previous misconduct or inclination toward such behavior, which is not directly related to the facts of the current case. In criminal proceedings, the admissibility of this type of evidence is governed by the Criminal Justice Act 2003 (CJA 2003) and the Police and Criminal Evidence Act 1984 (PACE 1984). Courts have specific powers to admit or exclude bad character evidence to ensure the fairness of trials and the proper administration of justice. The core principles involve balancing the probative value of the evidence against its potential prejudicial effect on the proceedings. Key requirements include following statutory gateways for admissibility and the use of judicial discretion under Section 78 of PACE 1984 to exclude evidence when necessary.

Legal Framework Governing Bad Character Evidence

The Criminal Justice Act 2003

The CJA 2003 reformed the law relating to the admissibility of bad character evidence in England and Wales. Under this Act, bad character evidence is defined as evidence of, or a tendency towards, misconduct other than evidence directly related to the offense with which the defendant is charged (Section 98 of the CJA 2003). The Act outlines specific circumstances under which such evidence may be admitted, establishing statutory gateways that provide structured criteria for admissibility while seeking to prevent undue prejudice against the defendant.

The Police and Criminal Evidence Act 1984

Section 78 of PACE 1984 grants courts the discretionary power to exclude prosecution evidence if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This provision acts as a critical safeguard, ensuring that even admissible evidence under the CJA 2003 can be excluded to maintain the integrity of the trial and protect the defendant's right to a fair hearing.

Admissibility of Bad Character Evidence Under the CJA 2003

Statutory Gateways for Admission

Section 101(1) of the CJA 2003 specifies seven gateways through which bad character evidence of a defendant may be admitted in criminal proceedings:

1. Agreed Evidence: All parties to the proceedings agree to the evidence being admissible.

2. Evidence Adduced by the Defendant: The evidence is introduced by the defendant himself or is elicited in cross-examination by the defendant.

3. Important Explanatory Evidence: The evidence is essential to understanding the context of the case, and its absence would leave the jury with an incomplete picture.

4. Relevant to an Important Matter in Issue: The evidence has substantial probative value in relation to a significant matter between the defendant and the prosecution, such as the defendant's tendency to commit offenses of the kind charged.

5. Substantial Probative Value in Relation to a Co-Defendant: The evidence is significantly helpful in resolving important issues between the defendant and a co-defendant.

6. Correcting a False Impression: The evidence is necessary to correct a false impression given by the defendant about himself.

7. Defendant's Attack on Another's Character: The evidence is admissible because the defendant has made an attack on another person’s character, thereby opening the door to scrutiny of his own.

Each gateway has specific conditions, and the court must carefully assess whether the admission of evidence under any of these gateways is appropriate, taking into account the interests of justice and the potential for unfair prejudice.

Judicial Considerations and Case Law

R v Hanson [2005] EWCA Crim 824

In R v Hanson, the Court of Appeal provided significant guidance on the admission of bad character evidence under Section 101(1)(d) of the CJA 2003. The court emphasized that:

• The evidence must show a tendency to commit offenses of the kind charged.
• A single previous conviction may not necessarily establish propensity; the nature, number, and circumstances of previous offenses are critical.
• The court must consider whether it would be unjust to admit the evidence and whether the proceedings' fairness would be adversely affected.

This case highlights the need for a meticulous analysis of bad character evidence before admission, ensuring that its probative value justifies any prejudicial impact.

R v Highton [2005] EWCA Crim 1985

In R v Highton, the Court of Appeal reaffirmed that when admitting bad character evidence, courts must balance probative value against prejudicial effect. The ruling highlighted that even if evidence is admissible under one of the statutory gateways, the court retains discretion under Section 101(3) of the CJA 2003 and Section 78 of PACE 1984 to exclude it if necessary to ensure a fair trial.

Judicial Discretion Under Section 78 of PACE 1984

Exercising the Discretion to Exclude

Section 78 of PACE 1984 empowers the court to exclude prosecution evidence if its admission would adversely affect the fairness of the proceedings. When exercising this discretion, courts consider factors such as:

• Nature and Reliability of the Evidence: Assessing whether the evidence is reliable and how it was obtained.

• Probative Value vs. Prejudicial Effect: Weighing the evidence's value in proving a point against the risk of unfair prejudice to the defendant.

• Impact on the Right to a Fair Trial: Ensuring that admitting the evidence does not compromise the defendant's fundamental rights under Article 6 of the European Convention on Human Rights (ECHR).

Application of Section 78

The discretion under Section 78 is often applied in cases where evidence, though technically admissible, may have been obtained improperly or where its admission could unfairly sway the jury. Courts must ensure that the proceedings remain just and that the evidence presented does not undermine the trial's integrity.

Practical Application and Scenarios

Example 1: Prior Convictions Demonstrating Propensity

A defendant is on trial for burglary. The prosecution seeks to admit evidence of the defendant's previous convictions for similar offenses under Section 101(1)(d) of the CJA 2003, arguing that it demonstrates a tendency to commit burglary.

The court must evaluate:

• Similarity of Past Offenses: Whether the previous burglaries are similar in method and circumstances to the current charge.

• Time Elapsed: The length of time since the prior convictions and any intervening behavior.

• Probative Value: The strength of the evidence in proving propensity.

• Fairness: Whether admitting the evidence would be unfair to the defendant or adversely affect the proceedings' fairness.

Example 2: Correcting a False Impression

In a fraud trial, the defendant claims to have an unblemished financial history. The prosecution seeks to introduce evidence of a past fraud conviction under Section 101(1)(f) of the CJA 2003 to correct the false impression.

The court needs to consider:

• Existence of a False Impression: Determining whether the defendant has created a misleading picture of himself.

• Relevance of the Past Conviction: Assessing how the prior offense relates to the current case.

• Necessity and Proportionality: Whether admitting the evidence is necessary to correct the impression and is proportionate to the potential prejudice.

Example 3: Exclusion of Evidence Obtained Improperly

Suppose the prosecution obtained evidence of the defendant's bad character through entrapment or a violation of procedural rules. Under Section 78 of PACE 1984, the court may exclude this evidence to prevent adverse effects on the trial's fairness.

Factors for the court include:

• Method of Obtaining Evidence: Whether the evidence was obtained illegally or unethically.

• Effect on Fairness: The degree to which admitting the evidence would compromise the defendant's right to a fair trial.

• Integrity of the Judicial Process: Maintaining public confidence in the legal system by upholding ethical standards.

Interplay Between the CJA 2003 and PACE 1984

The relationship between the admissibility provisions of the CJA 2003 and the exclusionary discretion of Section 78 of PACE 1984 is key. The statutory gateways under the CJA 2003 outline when bad character evidence may be admitted, but they do not mandate admission. Courts retain the discretion to exclude evidence if admitting it would compromise fairness.

This interplay requires courts to:

• Conduct a Two-Stage Analysis: First, determine if the evidence is admissible under the CJA 2003. Second, consider whether exclusion is necessary under Section 78 of PACE 1984.

• Balance Competing Interests: Weigh the prosecution's interest in admitting relevant evidence against the defendant's right to a fair trial.

• Apply Judicial Precedents: Follow guidance from cases like R v Hanson and R v Highton to address complex evidentiary issues.

Conclusion

The courts' authority to admit and exclude bad character evidence involves a detailed application of statutory provisions and judicial discretion. Under the CJA 2003, specific gateways permit the admission of such evidence, but courts must rigorously assess its probative value against potential prejudicial effects. Key principles from cases like R v Hanson guide this assessment, emphasizing the need to establish propensity and ensure justice.

Section 78 of PACE 1984 remains a critical mechanism for safeguarding fairness. It empowers courts to exclude evidence, even if admissible under statutory gateways, when necessary to protect the rights of the defendant and uphold the trial's integrity. The interaction between the CJA 2003 and PACE 1984 highlights the judiciary's role in balancing evidentiary relevance with the fundamental principle of a fair trial.

Understanding the courts' powers in this context is essential for managing the complexities of criminal litigation. It demonstrates how legal principles are practically applied to maintain justice, ensuring that evidence admitted in court serves the pursuit of truth without compromising the rights enshrined in law.