The K-Zone: Changes to the law on evidence of bad character

This Act introduces radical reforms to the law of evidence in criminal proceedings, among other things

Changes to the law on criminal hearsay

In general, the 2003 Act makes few substantive changes to the kinds of evidence that must be excluded because they are hearsay. However, it makes a number of procedural changes, which have the effect of imposing an obligation to refute admissibility onto the party which objects to it.

There is now a statutory definition of hearsay. It is narrower than the definition developed over the years by the courts; in particular, the kind of ImpliedAssertion deemed to be hearsay in RVKearly1992 will no longer be within the scope of the hearsay rule at all

Courts now have the discretion to admit any hearsay evidence, if it is in the interests of justice. In considering whether to admit it, the court must have regard to a number of factors, including its probative value and prejudicial effect. Presumably, anonymous hearsay could be admitted under this provision, at least in principle. Hearsay will also be admissible if the parties are in agreement.

The most important CommonLawExceptionsToTheHearsayRule are preserved, including ResGestae statements, confessions, the body of knowledge referred to by an expert witness, and public records. However, the common law on DyingDeclaration is abolished, as such evidence would now be admissible on other grounds, and the common law admissibility of statements adverse to the maker's pecuniary interest is abolished without specific replacement

Hearsay evidence from a person who is dead or unavailable to testify is now prima facie admissible, where previously such evidence required the leave of the court. Where a witness refuses to testify out of fear, leave of the court is still required (see StatutoryExceptionsToTheHearsayRule)

The `absent witness' provisions now apply to oral, as well as written, statements

Documents created or received in the course of business are now prima facie admissible, where previously leave of the court was required. However, the court has a discretion to refuse to admit such documents if, inter alia, their source appears unreliable

The Act contains an additional ground for admitting police officer's records that amount to `business documents' -- the person who made the statement could not reasonably be expected to recall the details. This new provision clearly catches the Jones v Metcalf situation, in which a witness to a road accidence dictated the registration number of a vehicle to the police, but did not verify it, and so the number could not be used in evidence

A defendant may admit evidence of, and cross-examine on, a co-defendant's confession, even if it would be inadmissible if tendered by the prosecution. This confirms the judicial development in RVMyers1997, but goes further than the court in allowing evidence excluded under s.76 PACE to be admitted. The dangers inherent in this development were recognized by the Law Commission, which recommended a specific judicial warning to the jury. This recommendation was not enacted.

If a hearsay statement is admitted under any of the provision in the 2003 Act, the opposing party may lead evidence that undermines the credibility of the maker of the statement. This is a concession to the criticism that hearsay should not be admitted becuase the maker of the statement cannot be cross-examined.

The overall effect seems to be to make it much easier to admit evidence of bad character. In particular, the `prejudicial effect' test of DPP V P seems to be gone, in relation to `similar fact' evidence. However, the admissibility of this evidence can be challenged by the defendant, and the judge `must not' admit it if to do so would be unfair. So, on closer inspection, it may be the case that the changes in this area of law are mostly procedural too.

There is now a statutory definition of EvidenceOfBadCharacter: ``commission of an offence or other reprehensible conduct''. This definition includes evidence of a tendency to be untruthfull, as well as previous convictions.

The defendant need not make an issue of his own good character before the prosecution will be allowed to lead EvidenceInChiefOfBadCharacter. Previously, if the defendant did not testify, he could impugn prosecution witnesses without putting his own character in issue (see PuttingCharacterInIssue, RVButterwasser1940)

It is now clarified that the defendant can admit evidence of his own bad character, although this was probably the case before (the situation did not arise all that often)

Where evidence of bad character is generally admissible, it will be admissible whether the defendant testifies or not. Previously s.1 of the CriminalEvidenceAct1898 was only engaged if the defendant testified

CrossExaminationAsToBadCharacter;

Evidence of the defendant's untruthfullness is prima facie admissible, provided that the prosecution case rests to some extent on the fact that the defendant is lying. Presumably this would make admissible evidence of previous convictions for deception offences, among other things.

Evidence of previous convictions of the same `type' or `category' are prima facie admissible

EvidenceOfDisposition is admissible if it is relevant. It appears that the threshold for admissibility of evidence of the SimilarFact type is lower even than the low threshold in DPPVP1991 (probative value outweighs prejudicial effect)

Bad character evidence is admissible if it is necessary for an understanding of the case as a whole

It remains the case that bad character is admissible if the defendant attacks the character of another person. This provision is similar to that in s.1(3)(iii) of the 1898 Act

Evidence of bad character to show the untruthfullness of the defendant if the defendant has made allegations against a co-defendant which would undermine the co-defendant's defence. This provision is also similar to that in s.1(3)(iii) of the 1898 Act, but would apply to situations where the defendant was undermined without attacking the character of the co-defendant

Bad chaharacter evidence may be tendered to correct a false impression made by the defendant. This, presumably, is equivalent to the common-law provision which allows bad character evidence to be adduced if the defendant puts his own good character in issue;

Bad character evidence may not be adduced of a person other than the defendant without leave of the court, and unless it has `substantial probative value' or is `important explanatory evidence'. This is a radical departure from the previous law, which allowed for the previous convictions of witnesses to be admitted as a matter of routine

The law on EvidenceOfGoodCharacter appears to be unchanged (see, e.g., VyeDirection)

Changes to the law on admissibility of previous statements

The main change in this area is that the new Act largely removes the artificial and unworkable distinction between previous statements which count towards the credibility of the witness, and those which can stand of evidence of their facts.

A PreviousConsistentStatement is admissible if it was made by a complainant at the first reasonable opportunity after the offence. This confirms the `RecentComplaint' principle at common law, but extends it to other offences. The evidence is admissible as to its facts, and not just as to credibility (unlike, e.g. RVVirgo1978).

A previous consistent statement tendered to rebut an allegation of fabrication is now evidence of its contents, not just of the credibility of the witness The Act does not state the conditions for admissibility of such evidence, so presumably the common-law test (e.g., RVOyesiku1972) still applies -- the allegation must go to a specific point, and not amount to a general accustation of untruthfullness

A previous statement is admissible if the witness states that, to the best of his knowledge, he made the statement and it is true, aned if it identifies a person, place, or thing, or his memory is insufficiently clear to allow for oral testimony. In such a case, the statement is evidence of its contents, not just credibility. Note that this provision applies only to statements by the witness, not recorded on behalf of the witness. This provision confirms the judicial decision in RVCook1982 that photofits and photographs are admissible for identification, but on different grounds

The 2003 Act does not change the requirements for a witness to be designated a HostileWitness. However, a PreviousInconsistentStatement is now admissible as to its facts, not just as to credibility

The Act does not significantly change the law on confessions, so it seems that law on admissibility of a MixedStatement will not be changed. Such a statement will be admissible as a concession to fairness (RVStorey1968) but will (presumably) still only count to the credibility of the witness

Changes to the law on refreshing memory

The 2003 Act simplies this area of law radically.

The Act allows the witness to refresh his memory from any note written or verified by himself, at any stage in the proceedings. There is no definition of `verified', so presumably the common-law position in RVKelsey1991 applies -- there is no specific formality requirement (e.g., signature)

There is no distiction between `contemporaneous' and `non-contemporaneous' notes of events; the only test is that the note is likely to represent better his recollection at that earlier time. However, it has to be noted that the law was moving in this direction anyway (e.g., RVDaSilver1990)

There is no distinction between `original' and `fair copy' notes

The judge has no discretion to refuse to admit such evidence so long as it meets the test. However, presumably the general discretion under s.78 of PACE is not disturbed

The Act does not seem to prevent a witness refreshing his memory from notes on a matter which he has entirely forgotten. However, the Act also allows the whole document to be admitted as an alternative to oral testimony, which might be more sensible

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