Introduction
Bad character evidence includes information about a person's prior misconduct or disposition, apart from evidence related to the current offense or its investigation. Under the Criminal Justice Act 2003 (CJA 2003), specific principles and procedures regulate the admissibility of such evidence in criminal trials. Understanding these provisions is key to comprehending how courts balance the probative value of evidence and the potential for prejudicing a defendant.
Understanding Bad Character Evidence
Definition under the CJA 2003
Section 98 of the CJA 2003 defines bad character evidence as evidence of, or a disposition toward, misconduct on the part of a defendant, excluding misconduct connected with the offense charged or its investigation. Misconduct includes the commission of an offense or other reprehensible behavior.
Purpose of Admitting Bad Character Evidence
Introducing bad character evidence can assist the court in making informed decisions regarding a defendant's credibility, tendency to commit offenses, or to provide context to the events in question. However, it poses risks of unfair prejudice, potentially leading a jury to convict based on past actions rather than the evidence pertaining to the current charge.
The Seven Gateways to Admissibility
Under Section 101(1) of the CJA 2003, bad character evidence is inadmissible unless it passes through one of seven specific gateways:
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All Parties to the Proceedings Agree to its Admission (s.101(1)(a))
When both the prosecution and defense consent, evidence of bad character can be admitted without further challenge.
Example: In a fraud trial, both parties agree to admit evidence of the defendant's prior deceptive business practices to provide full context to the jury.
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The Defendant Himself Introduces the Evidence (s.101(1)(b))
A defendant may choose to disclose his own previous misconduct, perhaps to demonstrate transparency or to pre-emptively mitigate its impact.
Example: A defendant charged with assault mentions a prior altercation to explain a pattern of being targeted by others.
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Important Explanatory Evidence (s.101(1)(c))
When the evidence is necessary to understanding the case, and without it, the court or jury would find the case difficult to understand.
Example: Evidence of a long-standing feud between the defendant and victim may be necessary to understanding the motive in a murder trial.
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Relevant to an Important Matter in Issue Between the Defendant and Prosecution (s.101(1)(d))
The evidence has substantial probative value concerning a significant matter, such as intent, knowledge, or tendency.
Example: A defendant's previous convictions for burglary may be admitted to show a propensity for theft-related offenses in a current burglary charge.
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Substantial Probative Value in Relation to an Important Matter in Issue Between the Defendant and a Co-defendant (s.101(1)(e))
The evidence is significant in disputes between co-defendants, particularly regarding credibility or blame.
Example: One co-defendant introduces evidence of another's violent past to support a claim that the other was the instigator of an assault.
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To Correct a False Impression Given by the Defendant (s.101(1)(f))
If a defendant creates a misleading impression about his character, the prosecution can introduce evidence to rectify it.
Example: A defendant claims to be a peaceful individual, prompting the prosecution to introduce evidence of prior violent offenses to challenge this assertion.
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Defendant Has Made an Attack on Another Person's Character (s.101(1)(g))
When a defendant attacks the character of a prosecution witness, the prosecution may respond by introducing bad character evidence of the defendant.
Example: After the defendant accuses the victim of dishonesty, the prosecution reveals the defendant's own history of deceitful behavior.
Judicial Considerations
Courts must carefully assess the admissibility of bad character evidence, particularly under gateways (d) and (g), as highlighted in R v Hanson [2005] EWCA Crim 824. The Court of Appeal provided guidance on evaluating factors such as the nature of previous convictions, their relevance to the current charge, and the time elapsed since the prior offenses.
Procedure for Admission
Prosecution's Obligations
Under the Criminal Procedure Rules, the prosecution must provide written notice to the court and the defense when seeking to admit bad character evidence. This notice must specify the gateway under which the evidence is admissible and outline the material facts.
Example: The prosecution submits a notice indicating intent to introduce the defendant's prior conviction for fraud under gateway (d), arguing it is relevant to the current charge of embezzlement.
Defense's Right to Object
The defense has the opportunity to challenge the admission of bad character evidence. Objections may be based on arguments that the evidence does not meet the requirements of the claimed gateway, lacks relevance, or that its prejudicial effect outweighs its probative value.
Example: The defense objects to the admission of a ten-year-old theft conviction, contending that it is not sufficiently similar to the current charge and is too remote in time.
Judicial Decision-Making Process
The judge must consider several factors when deciding whether to admit bad character evidence:
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Relevance and Probative Value
The evidence must be directly relevant to a significant matter in the case and have substantial value in proving an issue.
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Risk of Unfair Prejudice
Under Section 101(3) of the CJA 2003, the court must exclude evidence that would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
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Balancing Exercise
The judge performs a careful consideration, weighing the probative value against the potential for prejudicing the jury unfairly.
Example: In R v Edwards [2005] EWCA Crim 1813, the court excluded evidence of prior drug offenses, concluding that the minimal probative value was outweighed by the risk of prejudice.
Judicial Discretion Under PACE 1984
Section 78 Exclusion
Section 78 of the Police and Criminal Evidence Act 1984 provides judges with discretion to exclude prosecution evidence if, considering all the circumstances, its admission would adversely affect the fairness of the proceedings.
Example: Despite satisfying a gateway under the CJA 2003, evidence of a defendant's minor juvenile offenses may be excluded under Section 78 if admitting it would be disproportionate and unfair.
Application in Bad Character Evidence
Judges may apply Section 78 to exclude bad character evidence even if it meets the criteria under the CJA 2003, ensuring that the defendant's right to a fair trial is preserved.
Case Reference: In R v Musone [2007] EWCA Crim 1237, the Court of Appeal emphasized the importance of judicial discretion in excluding evidence that could render the trial unfair due to its prejudicial effect.
Strategic Considerations for Legal Practitioners
Prosecution Strategies
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Selecting Appropriate Gateways
Careful selection of the applicable gateway increases the likelihood of evidence being admitted.
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Providing Detailed Notices
Comprehensive and timely notices facilitate smoother admission and reduce grounds for defense objections.
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Assessing Probative Value vs. Prejudicial Risk
Prosecution must evaluate whether the evidence's probative value justifies potential prejudice.
Defense Strategies
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Challenging Relevance and Admissibility
The defense can argue that the evidence lacks relevance or fails to meet gateway requirements.
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Highlighting Prejudicial Impact
Emphasizing the undue prejudice the evidence may cause can persuade the judge to exclude it.
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Strategic Disclosure
In some cases, voluntary disclosure of certain prior misconduct might mitigate its impact or serve a tactical advantage.
Ethical Obligations
Both prosecution and defense must maintain ethical standards, ensuring that their actions uphold justice and do not mislead the court.
Complex Interactions and Technical Principles
The admission of bad character evidence involves complex interactions between statutory provisions, case law, and judicial discretion.
Interplay Between CJA 2003 and PACE 1984
While the CJA 2003 provides the gateways for admissibility, the PACE 1984 grants judges the authority to exclude evidence to ensure fairness. Understanding the relationship between these statutes is essential.
Technical Example
Consider a defendant charged with robbery who has prior convictions for similar offenses. The prosecution seeks to admit these under gateway (d) to show a propensity for committing robbery. The defense objects, citing the prejudicial effect and the risk of the jury convicting based on past behavior rather than current evidence. The judge must assess the probative value, consider the guidance from R v Hanson, and decide whether to admit the evidence or exclude it under Section 101(3) of the CJA 2003 or Section 78 of PACE 1984.
Conclusion
The complexities of admitting bad character evidence under the Criminal Justice Act 2003 require a thorough examination of statutory gateways, judicial discretion, and ethical considerations. The interplay between the specific provisions of the CJA 2003 and the overarching duty to ensure a fair trial under PACE 1984 highlights the decision-making process in criminal proceedings. By fully understanding the technical requirements and principles, legal practitioners can effectively manage the admissibility of such evidence, balancing probative value against the risk of unfair prejudice, and thus uphold the integrity of the judicial process.
