Criminal Law Update, series 1: issue 3

22 September 2005

Since the decision of the Court of Appeal in R.v. Hanson; R.v. Gilmore [2005] EWCA Crim 824 there have been three further cases on the bad character provisions of the CJA 2003. The seminar on Bad Character given by Mark George and Mary McKeone in May this year has been updated to take account of these recent cases.

R.v. Bovell; R.v. Dowds [2005] EWCA Crim 1091, 25/04/05

The CA said that it is important that the correct information about previous convictions is provided at an early stage. It is not enough for the prosecution to rely simply on the statement of complaint of a prosecution witness in a previous conviction. It will often be necessary to see the basis of plea to see if the case was resolved on a different basis from the way the prosecution put its case originally.

In the light of this it may be necessary for prosecutors to make sure they retain material about previous convictions for much longer than in the past.

There was evidence that the complainant had been charged with s.18 wounding but the complaint was withdrawn before the case came to trial. The trial judge refused an application to cross-examine him about this matter. Dismissing the appeal, the court said we entertain considerable doubt as to whether the mere making of an allegation is capable of being evidence within s. 100 (1). This was all the more so where, as here, the allegation had been withdrawn. Admitting the evidence of the s.18 allegation would have given rise to investigation of other matters which were exactly what the court in Hanson (para.12) had suggested should not be done and only adds to the unlikelihood that the judge would have permitted the evidence of this matter to go before the jury.

(Comment: This decision is welcome confirmation that in general at least the Court of Appeal will not be impressed by applications from either side to cross-examine on mere allegations as opposed to previous convictions. This contrasts with the views of some academic commentators when the Act first came into force which suggested that all manner of socially dubious but not criminal conduct might be admissible under the bad character provisions as being evidence of misconduct on his part (s.98). As to obtaining proper details of previous convictions the CPS should be pressed to provide full information rather than just the printout of previous convictions. In addition to documents such as the basis of any plea solicitors might thin k it advisable to obtain copies of the memorandum of conviction from the relevant court.)

R.v. Edwards; R.v. Fysh [2005] EWCA Crim 1813, 29/06/05

Further guidance was given as to summing-up on relevance of bad character. The jury must be warned not to place undue reliance on previous convictions. The judge must explain why the jury have heard the evidence and how it may be used in their decision. Relevance will depend primarily though not exclusively on the gateway in s. 101 (1) CJA 2003 through which the evidence was admitted. Evidence admitted through gateway (g.) (attack on another’s character) may be relevant to propensity.

R.v. Highton; R.v. Van Nguyen [2005] EWCA Crim 1985, 28/07/05

Once evidence has been admitted under one of the gateways under s.101 (1) it can be used for any purpose for which it is relevant. Thus evidence admitted under gateway (g.) because of an attack on prosecution witness character may be used to show a propensity to commit the kind of offence with which the defendant is charged as well as to his credibility.

Although not deciding the point, the court was inclined to say that s.78 provides an additional protection for a defendant in addition to s. 101 (3) and s. 103 (3) and that judges should apply s.78 to avoid any risk of injustice to a defendant.

(Comment: what was said about s.78 was obiter but is still to be welcomed in the context of trying to limit the damage from the admission of such evidence against a defendant. On the other hand it is unlikely that in practice resort to s.78 will be of much importance in this context. The protection provided by s. 101 (3) (the court must not admit evidence if it appears that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it) specifically applies to application under s. 101 (1) (d.) and (g.) and s. 103 (3) also applies to s. 101 (1) (d.). Section 78 is likely to be irrelevant if the application is under s.101 (1) (a.) or (b.) and of little if any effect under s. 101 (1) (e.) once the court has found that it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. This then leaves only s. 101 (1) (c.) and (f.). As regards important explanatory evidence under s.101 (1) (c.) if the court finds that the evidence is both important and explanatory it is unlikely then to exclude the evidence under any discretionary powers. The same is true of evidence given to correct a false impression under s. 101 (1) (f). If the court has found the test of admissibility has been passed then bearing in mind that only such evidence as is necessary to correct the false impression will be admissible it would again seem to be unlikely that the court would seek to exclude the evidence pursuant to s.78.)

Crediting periods of remand in custody

The Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 (S.I. 2005 No 2054) provide that s. 240 (3) of the CJA 2003 which requires the sentencing court to give credit for time spent in custody before sentence shall not apply if the person sentenced is already serving a sentence or receives a consecutive sentence in respect of which credit is given under s.67 CJA 1967 (the rules which apply to sentences passed before the CJA 2003 applies) which is consecutive to the sentence passed under CJA 2003. In short this all means that a day spent in custody before sentence can only be credited against a sentence once and the provision appears to have been made to prevent days in custody being counted twice where a person is subject to two sentences of custody at the same time.