Admissibility Of Evidence Of Bad Character In Criminal Proceedings

Definition of Bad Character

1. The admissibility of the evidence of the bad character of the defendant in criminal proceedings is dealt with under Part 11, Sections 98 to 113 of the Criminal Justice Act, 2003 (Legislation.uk.gov, 2022). Whether the prosecution wants to rely on the evidence of bad character, the definition of bad character must be identified and satisfied as set out in the Criminal Justice Act, 2003. Generally, the term ‘bad character’ can be defined as a disposition towards misconduct or evidence of misconduct. As per section 112 of the Act, ‘Misconduct’ is defined as “the commission of an offense and reprehensible behavior” (Legislation Online, 2022). Section 98 of the Criminal Justice Act, 2003 defines Bad Character in broader terms as evidence or evidence of character towards an individual’s misconduct other than-

1. The claimed facts of the crime with which the accused is alleged, or
2. Is evidence of wrongdoing or misconduct with regard to the prosecution and investigation of that crime (Legislation.uk.gov, 2022).

In the case of  R v. Dossett (2013), one of the issues that were brought forward was whether the previous conviction of the suspect could be demonstrated as a propensity of the defendant to behave in the way alleged and had occurred in the similar conditions of the present case. The above case discusses the extent of the admissibility of the evidence of the bad character of the defendant and its effect on the fairness of the proceedings in criminal matters.

The following points were brought before the court in the case of R v. Dossett [2013] EWCA Crim 710, 32):

1. Previous conviction of the defendant: robbery and assault
2. Propensity of the defendant to behave in the alleged ways (Levanon, 2019)
3. Identification test (the victim saw the defendant in the reduced street light.) (Steinbach, et al., 2015)
4. Relevancy and admissibility of the evidence of the bad character
5. Effect on the impartiality of the trial (Smit, et al., 2018)
6. Dismissal of appeal against conviction

The Criminal Justice Law, 2003 has underlain that the previous convictions of the defendant must be taken into account and treated as aggravating factors where relevant to do so (legislation.gov.uk, 2022). Its relevance is dependent on the gravity of similarity between the past offense and the instant case. In this case, the defendant had been previously convicted for two offenses- robbery and assault. One of the previous convictions of the defendant showed his tendency to violent behavior towards the aged people and similarity in the way how he is involved in the present case. However, it was evident that the previous conviction of the defendant carries a probability of distracting the jury from the careful analysis of the findings and evidence of the case in which the defendant is charged.

Under the common law, the evidence of bad character was inadmissible except where such was admissible as similarity of facts by the trial in DPP v P [1991] 2 A.C. 477. The Criminal Evidence Act, 1898 permits the limited occasions of such admissibility (legislation.gov.uk, 2022). However, the Criminal Justice Act of 2003 has introduced an agitational change to the bad character’s admissibility in criminal matters. Section 101(1) provides that the evidence of bad character can be admissible, only if it falls within the pursuit of the following:

1. Admissibility is agreed by all the parties to the proceedings;
2. Adducement of evidence by the culprit himself or given as an answer to the question in cross-examination and intended to bring out;
3. Is crucial explanatory evidence;
4. Has relevance to the major matter in issue between the prosecution and the defendant (Thompson & Schumann, 2017).
5. Is of substantive value to testify in connection to a chief matter in issue between the co-defendant and the defendant;
6. Serves as evidence to rectify an untruthful impression provided by the defendant; or
7. An attack is made by the defendant on the character of other person (legislation.gov.uk, 2022).

In R v. Howe [2017] EWCA Crim 2400, the evidence of the earlier conviction of burglary is relevant in the testification of the identity of the accused on burglary charges. It was stated that the admissibility of the evidence of bad character is relevant to the main matter in issue between the defendant and prosecution for the rebuttal of coincidence’s suggestion.

Admissibility of Evidence of Bad Character

Section 103(1)(a) discusses the aim of sec. 101(1)(d) which includes the question of whether the propensity of the defendant to commit an offense is of the similar kind with which he is alleged or whether the defendant’s propensity is untruthful (Levanon, 2019). Section 103(2) purports that the defendant’s tendency to commit the kind of offense with which he is charged may be set by the evidence that he has been convicted of the offense of

1. same description; or
2. same category

as the one with which he is alleged in the instant case.

The jury has to decide to what extent the evidence is potentially relevant if it helps in deciding the issue. Based on the character and extent of convictions or the defendant’s bad character brought before the jury, the direction as to the impact of evidence on the defendant’s credibility is needed.

In  R v. Hanson [2005] EWCA Crim 824, R v McDonald [2011] EWCA Crim 2933, and R v. Darnley  [2012] EWCA Crim 1148 it was stated that to support a weak case the evidence of bad character ought not to be corroborated.

In R v. Dossett, the evidence of bad character sets that the defendant has a tendency of committing violence in the streets and was capable of drawing support to the conclusion of the case. The judge identified the prejudicial of the conviction but considered the admissibility as it was highly corroborative. However, need to be examined with care and the logical basis of conclusion (Sampson & Smith, 2021).

If there is any unfair prejudice, the evidence of the bad character should be excluded. If the application made by the defendant to exclude bad character evidence and it gives the impression to the court that the admission of it would cause contrary effect on the fair proceedings, the court should not admit it (legislation.gov.uk, 2022). The court must take the note of lapse of time between the previous offense and the crime which is in consideration.

To ensure the fairness under section 103(3) and fairness under section 101(3) in the proceedings, the judge has to take into account the gravity of similarity between the earlier conviction and charge in consideration. Even though they fall within the same description or same category. The gravity of the previous offense and the current offense may also be taken into account by the judge (Bagaric, 2014). The strength of the prosecution case must be taken into consideration. It is not likely to be just to admit the past convictions of the defendant if there is no or some other evidence against him. The court should be careful while admitting the evidence of the bad character of the defendant in case the jury is prejudicial by the introduction of such evidence and conviction is done despite taking all other evidence are considered against the defendant being weak. This causes unfairness in the trial and disadvantages to the defendant.

Thus, the evidence of the bad character of the defendant can only be admissible if it covers any of the seven gateways given under section 101 of the Criminal Justice Act, 2003 (Stockdale, Smith & Roque, 2016). It cannot be taken into consideration to simply support a weak case. It shall be admitted as relevant if the matter in issue directly or indirectly appears to be of the same description or of the same category of the offense with which he was charged or convicted previously. His criminal record can be proved by the prosecution to corroborate the defendant’s creditability if an attack is made by him on another’s character or the character of the co-defendant, or in case he has the propensity of being untruthful. These gateways of bad character vary from case to case (Stockdale, Smith & Roque, 2016). The interpretation of the Criminal Justice Act 2003 provides the courts the exclusive power to vary the needs allowing the vagueness and complexity in recognizing the defendants’ detriment. The judges should alert the jury not to put undue reliance on the previous convictions to support the weak cases.

Case of R v. Dossett

The mere existence of past convictions is not conclusive to prove guilt (Njoko, 2021). Therefore, reasonable caution and care must be exercised to ensure the relevancy and admissibility of the evidence of the bad character of the defendant. The propensity is only one factor to determine the guilt, it is also crucial to consider all the other evidence, relevancy, and gravity of the offense and previous convictions. The lapse of time between the past convictions and the present offense should also be taken into consideration when determining the admissibility of the previous conviction and the bad character of the defendant. However, a higher degree of caution and necessity is required before discharging a jury. 

2. In criminal law, confession refers to the statement in which an individual admits and acknowledges that he is culpable of committing one or more offenses. In other words, a voluntary acknowledgment, declaration, or admission made by a person, either orally or in writing, that he has committed one or more crimes (LexisNexis, 2022). Section 82 sub-section 1 (Part VIII- Interpretation) of the Police And Criminal Evidence Act, 1984 defines confession as “any statement which adverse, either wholly or partly, the person who made it in authority or not, whether made in words or otherwise” (legislation.gov.uk, 2022). It is not required that confession must be made before someone who is in authority. To be admitted as a confession, the statement made must be adverse to the person making it and it can be in words or otherwise.

In the given case scenario, the following facts are brought forward:

• Drip is suspected of shoplifting.
• He is questioned by the PC Brisket, the policeman.
• He agitates and asks to see a lawyer.
• PC Brisket at that moment denies it for the reason being the matter can get delayed while arranging for the lawyer.
• Drip’s mum is ill and he is heading to the hospital to see her.
• The doctor put him on pills so he was ready to admit whatever Brisket wants him to admit.
• He confessed to shoplifting and this is tape-recorded by Brisket.
• Brisket goes to his flat and discovered the stolen goods.

The issue brought forward in his scenario is regarding the admissibility of the confession of Drip and the stolen goods.

The provisions regarding the confession and its admissibility are dealt with under the Police And Criminal Evidence Act, 1984 (PACE). The definition of confession is given under subsection 1 of section 82 of the Act. Section 76 of the Act provides the provisions for admissibility of the confessions. As per the subsection 1 of section 76, if a confession made by the accused is disputed, it cannot be used against him unless it is proved beyond the reasonable doubt by the prosecution that it was not acquired-

1. By oppressing the person who made it; or
2. by anything done or said that was probably at that time, renders any confession unreliable if made in consequence thereof (legislation.gov.uk, 2022).

Oppression is defined under section 76 (8) which includes threat, degrading or humiliating treatment, and the threat or use of violence whether amounts to torture or not. Section 76(2) of the PACE provides that the defendant can challenge the admissibility of the confession on the grounds of oppression, unfairness, and unreliability. Such issues of confession’s admissibility are identified earlier in the stage of the trial. Section 78 provides for the exclusion of unfair evidence. The adversity in the fairness of the proceedings can be caused in the cases where the police failed to secure an approach to arrange a lawyer, intentionally breaches the Police And Criminal Evidence Act 1984 (Pace) Code C, and fails to protect the vulnerable suspect (Gov.uk, 2022)..

Some circumstances which make the confession unreliable include the failure of the police officer to make a proper record of the interview and a breach of the code of practice, not cautioning the suspect before initiating the interview, and if the confession is made as to the result of the inducement (Gov.uk, 2022)..

Previous Admissibility of Evidence of Bad Character

In R v Delaney 1988 86 CR App R 18 it was stated that the risk of false confession by the suspect is too high in the case of vulnerability. The trueness of the confession is not the issue, but whether it is obtained in reliable circumstances is important for its admissibility (Rea, 2022).

In R v Fulling [1987] 2 All E.R. 65, The Court of Appeal broadly interpreted the unreliable confessions including failure to arrange for a Defence solicitor. In R v Aspinall [1999] Crim LR 741 the interview of the defendant was taken in the absence of the lawyer. It was stated that it has an adverse effect on the fair trial.

In the case of R v Keenan [1990] 2 QB 54 it was held that evidence obtained from the substantial breach of any of the codes or the Police and Criminal Evidence Act is to be excluded (Vlexjustis, 2022).

Under section 76 (4) (a) of the Police and Criminal Evidence Act 1984, it is provided that the admissibility of any object or other evidence discovered as the consequence of confession is not affected by the fact that such confession is wholly or partly excluded. In other words, if any object or information is discovered in furtherance of any confession obtained, whether admissible or not, the discovery of such other evidence or information is to be taken into consideration by the court and is admissible (Health and Safety Executive, 2022).

In the given case scenario, the confession was obtained in an interview by the person in authority, i.e., PC Brisket at the police station (Grif?ths & Milne, 2019). The confession so obtained is under the circumstances which render it unreliable, i.e., he was vulnerable to accept and agree to the suggestions without questioning or protesting (Jones & Penrod, 2018). He agrees to say whatever Brisket likes and make such a confession. The admissibility of the confession is excluded as it was made under vulnerability. As per section 76(2) (b) unreliable confessions must be excluded whether it is true or false. Here, PC Brisket has failed to identify the vulnerability of the suspect due to existing circumstances.

With reference to the case laws R v Fulling [1987]  and R v Aspinall [1999] the arrangements to seek a defense lawyer during interviewing the suspect was not made by Brisket on Drip’s request. PC Brisket has caused the breach of Code-C of the Police and Criminal Evidence Act, 1984 (Gov.uk, 2022).

The stolen goods were found at Drip’s flat after obtaining his confession. The discovery of an object as a result of confessions that is inadmissible under section 76 of the Police and Criminal Evidence Act, 1984 is admissible (Legislation.gov.uk, 2022). In other words, such confessions can be used to obtain other information or evidence and discovery of any such fact is admissible despite the inadmissibility of the confession. Therefore, the discovery of stolen goods makes it relevant and admissible.

In the given case scenario, the following points were satisfied as per the provisions of the Act:

• The confession was obtained at the police station by the person in authority.
• Drip was cautioned two times by PC Brisket before starting the interview.
• The interview was tape-recorded.
• The stolen goods were obtained from the flat of Drip for which he has confessed.

Gateways for Admissibility of Evidence of Bad Character

From the overall analysis of the case scenario, it is advisable that the confession of Drip about the shoplifting should not be taken into consideration as it is not admissible being obtained in the circumstances which made it unreliable and inadmissible (Health and Safety Executive, 2022). The following circumstances regarded this confession by Drip as inadmissible:

• He was vulnerable and prone to agree with the suggestions and to do whatever is said by Brisket;
• He was not provided with any reasonable opportunity of hearing. He asked to see a lawyer but no arrangements were made for a lawyer. The interview was taken in absence of a defense counsel (Pivaty, et al., 2020).
• There was no previous dealing with any police officer regarding the commitment of the offense of shoplifting by Drip. He was not warned or informed about this incident any time earlier.

Thus, it can be said that the confession so obtained was under unreliable conditions and rendered inadmissible as per the provisions of the Act (Health and Safety Executive, 2022). It can be challenged on the ground of unreliability (Rea, 2022). This will ensure a fair trial. Nevertheless, as per the common law, the discretionary power to eliminate evidence to secure a fair trial lies with the court as held in Scott v R, Barnes v R [1989] AC 1242. This power is certainly retained by section 82(3) of the Police And Criminal Evidence Act, 1984 (Legislation.gov.uk, 2022).

The stolen goods are taken into consideration as admissible evidence despite the fact the confession so obtained that resulted in the discovery of the stolen goods whether admissible or not. As per the provisions of the Act, the prosecution can rely on the fact of admissibility of the evidence of the stolen goods and the same can be used to form a charge against the suspect. Thus, the evidence of stolen goods is admissible in the purview of section 76 (4) (a) of the Police And Criminal Evidence Act, 1984 (Legislation.gov.uk, 2022).

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