The potential problem with previous convictions?

By Vida Simpeh

The Criminal Justice Act 2003 makes provision to allow the prosecution or a co-defendant to rely on the bad character of the accused as evidence to prove either the defendant’s guilt or untruthfulness. The Act also makes provision for the accused to rely on the bad character of other persons (i.e. witnesses)as evidence that the person is not credible.
Bad character means evidence of or a disposition towards misconduct. Misconduct means the commission of an offence or other reprehensible behaviour.
This article focuses only on the issue of bad character evidence being relied on by the prosecution or co-defendant to prove a defendant’s guilt. It will set out the circumstances where such evidence can be used and how such applications can be challenged.
When can the bad character evidence be admissible?
Under section 101(1) of the Criminal Justice Act 2003, the evidence of bad character can be admissible (valid or accepted) as evidence if, but only if,
a. All parties, i.e. both the prosecution and defence agree to the evidence being admissible (valid or accepted)
b. The evidence is adduced (referred to ) by the defendant himself or is given in answer to a question asked in cross-examination and the person cross examining the defendant intended to elicit it (bring it out)
c. It is an important explanatory evidence
d. It is relevant to an important matter in issue between the defendant and the prosecution
e. It has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant.
f. It is evidence to correct a false impression given by the defendant (for example, where the defendant has a previous conviction of theft and says, whilst in the witness box, that he will never steal anything).
g. The defendant has made an attack on another person’s character
When can bad character evidence adduced by the prosecution be challenged?
In a case in which the prosecution wishes to adduce evidence on the basis that all parties agree to the evidence being admissible; the evidence has been adduced by the defendant, the evidence has a substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, or is evidence to correct a false impression given by the defendant, the court has a discretion to exclude such evidence under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it would be unfair to adduce it.
Save for the scenario where all parties have agreed to the evidence being admissible, the defence can make an application to exclude the evidence relying on section 78 of the Police and Criminal Evidence Act 1984.
As set out above, the prosecution may also rely on evidence of the defendant’s bad character on the basis that it is important explanatory evidence. Under section 102 of the Criminal Justice Act, evidence can be considered as an important explanatory evidence if:

1. Without it, the court or jury would find it impossible or difficulty properly to understand other evidence in the case and

2. The value for understanding the case as a whole is substantial.

Consequently, the prosecution cannot simply state that because a person acted badly before the incident or has previous convictions, their bad character (evidenced by those convictions) should be admissible on the basis that they are important explanatory y evidence. The prosecution must show that it would be impossible or difficult properly to understand other evidence in the case without evidence of the defendant’s bad character and the value for understanding the case as a whole is substantial.
Consequently, this applies where for example, it is necessary to give evidence of the background against which the offence was committed, even though to do so will reveal facts showing the defendant in a discreditable light. For example, in the case of Neale (1977) 65 Cr App R 304, where the defendant was charged with arson, it was important to show that the hostel which he set on fire was for boys released from the borstal (prison ) where he was previously an inmate.
In the circumstances where the prosecution wishes to rely on bad character evidence on the basis that the defendant has made an attack on another person’s character, the defendant can argue that the bad character evidence would have such an adverse effect on the fairness of the proceedings (having regard to the length of time since the last matter) that the court ought not admit it.
Adducing bad character evidence to show that the defendant has a propensity to commit offences
If the prosecution wishes to adduce bad character evidence, on the basis that it is an important matter in issue between the defendant and prosecution, they may argue that it is an important matter in issue because it shows that the defendant has a propensity to commit further offences of the kind charged or that he has a propensity to be untruthful (section 103(1)(a) and (b)).
In a number of cases, where the Defendant has either one previous conviction or several, which may have similarity to the offence charged, the prosecution will raise this as an issue and request that the bad character evidence is admissible.
Under section 101(3) such an application by the prosecution may be challenged on the basis that the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
It was explained in the case of Hanson [2005] 1 WLR 3169, that:
“When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.

In principle, if there is a substantial gap between the dates of commission of and conviction for the earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility. Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.

It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant’s record as a whole. The sentence passed will not normally be probative or admissible at the behest of the Crown, though it may be at the behest of the defence. Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.

As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the words honest and dishonest appear in the criminal law, that Parliament deliberately chose the word “untruthful” to convey a different meaning, reflecting a defendant’s account of his behaviour, or lies told when committing an offence. Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations.”

Consequently, the fact that a defendant has previous convictions does not automatically mean that the defendant either has a propensity to commit the offence charged or to be untruthful.

Conclusion
Applications by the prosecution in relation to the admission of bad character evidence must be considered properly to ensure that the defendant’s case is not prejudiced.
It is therefore very important that a defendant who has previous convictions is properly represented to ensure that such evidence is not adduced in their case and cause them detriment.

Vida Simpeh

Pupil Barrister

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