Guidance on answering the questions in the book: Chapter 18

Guidance on answering the questions in the book: Chapter 18

Question 1

  1. This question concerns the ‘cross-admissibility’ of evidence of bad character. Magda is being tried for three separate but similar sexual offences in the same trial. During the trial, the prosecution will obviously want to use evidence in respect of one offence to support its case against Magda in respect of the other offences and vice versa. See The Modern Law of Evidence (MLE) 12th ed pp 540-543  .
  2. The evidence will obviously qualify as bad character evidence (‘misconduct’- see Criminal Justice Act 2003(CJA), s 98) and may be admissible under CJA, s 101(1)(d) on the basis that it is relevant to an important matter in issue between the prosecution and the defence, namely Magda’s propensity to commit offences of the kind with which she is charged (see CJA, s 103(1)(a)). See MLE 12th  ed at pp         533-538.
  3. In assessing relevance or probative value, there should be an assumption that the evidence is true (see CJA, s 109). In the question, Magda’s similar modus operandi in the different offences means the evidence is relevant and highly probative. Although there is a strong similarity in the way the offences were committed, this is not a requirement to establish propensity - see R v Hanson. See MLE 12th edn at 536-537.
  4. CJA, s 112(2) states that propensity may be established via another charge in the indictment. See also R v Chopra, to which the facts of this question are closely analogous. In Chopra it was held that evidence of bad character in respect of one count on an indictment is admissible against the accused in respect of another count in the same trial, provided the possibility of collusion or contamination can be excluded (see also CJA, s 107). See MLE 12th ed at pp 539-541.

Question 2

This question concerns the admissibility of a defendant’s bad character both by the prosecution and a co-defendant. Part (a) concerns the admissibility of John’s bad character by the prosecution and by his co-defendant, Imran. Part (b) concerns the admissibility of Imran’s bad character by the prosecution and his co-defendant, John.  

(a) The admissibility of John’s convictions

The admissibility of John’s convictions by the prosecution

  1. In respect of the admissibility of John’s convictions by the prosecution, the test for admissibility is contained in s 101(d) of the Criminal Justice Act 2003.  Evidence of bad character is admissible if it is relevant to an important matter in issue between the prosecution and the defendant. S 103(1)(b) states that propensity to be untruthful is an important matter in issue between the prosecution and the defence (see MLE 12th ed 546-549).        
  2. According to R v Hanson [2005] 1 WLR 3169, propensity to be untruthful is not the same as dishonesty and evidence showing a propensity to be untruthful involves deception or the making of false statements (see MLE 12th ed pp                548-549). John’s two recent convictions for credit card fraud may well be evidence showing a propensity to be untruthful. Although in R v Campbell [2007] 1 WLR 2798, it was stated that propensity to be untruthful would rarely be a matter in issue a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies (see MLE 12th ed pp 547-548).
  3. However, this approach has been criticised and in R v N [2014] EWCA Crim 419 it was stated that the approach in Campbell is too restrictive (see MLE 12th ed p 548).  John’s convictions could in principle be admitted by the prosecution to show a propensity to be untruthful, but the judge may exercise his power to exclude under s 101(3) on the basis that to admit them would have such an adverse effect on the fairness of the trial that they ought not to be admitted. As there is a danger that the jury could, on receiving evidence relevant to credibility, also be subconsciously influenced on the issue of propensity a cautious test of admissibility will apply (see MLE 12th ed  p 549). If the evidence was excluded on a prosecution application to admit it under s 101(1)(d), Imran might still apply to admit under s 101(1)(e).  If it is admitted on a prosecution application, it may also be admitted on an application by Imran under s 101(1)(e).

The admissibility of John’s convictions by Imran

  1. The test for admissibility of the defendant’s bad character at the instance of the co-defendant is set out in the Criminal Justice Act 2003, s 101(1)(e), and the test is that evidence of the defendant’s bad character is admissible by a co-defendant if the evidence has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Where the important matter in issue is the defendant’s propensity to be untruthful (essentially, his ‘credibility’), s 104 provides that evidence of the defendant’s bad character is only admissible if the nature or conduct of the defendant’s defence is such as to undermine the co-defendant’s defence. See MLE 12th ed pp 549-553 and 555-558).        
  2. In the question, the defendants run ‘cut throat’ defences.  Imran’s defence is that his co-defendant John was attacked by Hari, and that he (Imran) tried to separate John and Hari. In the course of this, John pulled out a knife and stabbed Hari. John’s defence, on the other hand, is simply that although he was present when the fight took place, he did not participate in anyway.  From Imran’s point of view, the credibility of what John says is an important matter in issue: Imran will be asking the jury to disbelieve John.
  3. Under s 104, before Imran can admit John’s previous convictions for credit card fraud as relevant to John’s credibility, he must show that his defence has been undermined by the nature and conduct of John’s defence.  This hurdle is certainly cleared, given how seriously John’s defence contradicts Imran’s. The next hurdle to be cleared involves establishing that the evidence of the convictions for credit card fraud have a substantial probative value in relation to credibility (the important matter in issue).  
  4. In R v Phillips [2012] 1 Cr App R 332 (25), it was held that attention should be paid to the wording of the test in s 101(1)(e), and the use of the words ‘substantial probative value’. The test is a rigorous one and, also, the assessment of the probative value of the evidence by the judge is highly fact sensitive (see MLE 12th ed p 550-551).  This was re-affirmed in R v Platt [2016] EWCA Crim 4, in which it was said that the words ‘substantial probative value’ need no gloss (see MLE 12th ed p 551-553).  In the question, John’s convictions would have substantial probative value to credibility (or ‘propensity to be untruthful’) because they are convictions for offences that involve deception.

(b) The admissibility of Imran’s convictions       

The admissibility of Imran’s conviction by the prosecution.

  1. In respect of the admissibility of Imran’s conviction by the prosecution, the test for admissibility is contained in s 101(d) of the Criminal Justice Act 2003 (see also, above at (a)(iv)). Evidence of bad character is admissible if it is relevant to an important matter in issue between the prosecution and the defendant. S 103(1)(a) states that propensity to commit offences is an important matter in issue between the prosecution and the defence (see MLE 12th ed pp 533-534).
  2. According to R v Hanson [2005] 1 WLR 3169, propensity to commit offences is established by considering factors such as the nature and number offences (MLE 12th ed pp 536-539). A single previous conviction may establish propensity if there is an unusual characteristic shared with the offence alleged. Imran’s previous single conviction for inflicting grievous bodily harm does not establish a propensity to commit murder and it is difficult to see how, on the facts provided in the question, it could be relevant to any other issue between the prosecution and the defence.  

 The admissibility of Imran’s conviction by John

  1. How does the test in s101(1)(e) apply to Imran’s previous conviction? Imran’s defence clearly undermines John’s- in fact as part of his defence, Imran says that John stabbed Hari. Obviously, Imran’s credibility is an important matter in issue from John’s perspective.  Imran has one previous conviction for inflicting grievous bodily harm with intent and the question is whether it has substantial probative value in relation to his credibility.  It is not a conviction for an offence involving untruthfulness or even dishonesty, and it is five years old.  However, in respect of the admissibility of evidence under s101(1)(e) it is clear from the case of R v Lawson [2007] 1 Cr App R 178 that evidence capable of having a substantial probative value in relation to credibility is not, for the purposes of s 101(1)(e) and 104, confined to evidence involving false representations and lies and could include offences of violence.  It is a matter for the judge having regard to all the facts of the case. See MLE 12th ed pp 555-556).                        
  2. As Imran’s previous conviction does not involve dishonesty or untruthfulness, and so it does not bear directly on his credibility, an issue arises as to its relevance and admissibility.  The principles stated in R v Randall [2004] 1 WLR 56 may be considered. In Randall, a case predating the 2003 Act, it was held that no reason or policy of fairness required the exclusion of evidence tendered to by a co-accused to disprove guilt. Previous convictions showing a propensity to use and threaten violence might not only be relevant to credibility, but might also be relevant where there was an imbalance in the offending history as between the defendants, which might tend to show that one defendant’s version of events could be more probable than the other’s).  
  3. The use of R v Randall, or indeed any common law case, when interpreting or applying s 101(1)(e) must now be seen in the light of R v Platt [2016] EWCA Crim 4 (See  MLE 12th ed p 551-553).  In Platt, the Court of Appeal held that the only test to be applied was the statutory test in s 101(1)(e) and case law pre dating the 2003 Act should no longer be cited. 
  4. On the particular facts of the question, evidence of Imran’s bad character could well be admitted as having substantial probative value in relation to the issue of his credibility, if Imran has adduced evidence of John’s bad character in relation to his (John’s) credibility. Arguably, Imran’s bad character must be admitted too, to enable a proper balanced assessment by the jury of the issue of who is telling the truth, or indeed whether both are lying. 

Question 3

  1. This question principally concerns the tests applied by the courts to the admissibility of evidence showing a defendant’s propensity to be untruthful (a) at the instance of the prosecution, and (b) at the instance the co-defendant. However, when answering the question, some reference could be made to the test which applies to the admissibility of evidence relevant to the credibility of a person other than the defendant.
  2. Concerning admissibility by the prosecution, the relevant provisions are s 101(1)(d) and 103(1)(b) (see MLE 12th ed pp547-549). S 101(1)(d) states that evidence of misconduct may be admissible if it is relevant to an important matter in issue, and s 103(1)(b) states that an important matter in issue may be the question of whether the defendant has a propensity to be untruthful.  The concept of a propensity to be untruthful in the CJA 2003, s 101(1)(d) appears to be narrower than the concept of general credibility. In R v Hanson [2005] 1 WLR 3169, CA, it was held that untruthfulness is not the same as dishonesty and that a propensity to be untruthful would not, for example, be established by dishonesty offences such as theft, but by offences which involved some element of lies or deception, such as fraud.  Additionally, propensity to be untruthful could be established where a defendant had been convicted after a trial in which he had given evidence under oath which was disbelieved. See MLE 12th pp 548-549.
  3. The question of whether a defendant’s propensity to be untruthful is capable of being an important matter in issue in a trial was thrown into confusion by the decision in R v Campbell [2007] 1 WLR 2798, CA. In Campbell it was held that propensity to be untruthful would not normally be an important matter in issue in a trial. This is because, as a matter of common sense, a jury may conclude that a defendant who has committed a criminal offence with which he is charged may be prepared to lie about it even it he has not lied in the past, and an innocent defendant who is telling the truth in this trial, may have told lies in the past (see MLE 12th ed p 547-548). However, this approach has been strongly criticised as being based on dubious logic and being contrary to what Parliament intended.  Credibility can often be a key issue in a case and sometimes it is the only issue in a case, and evidence that a defendant has a history of lying will obviously be relevant when it comes to deciding who is telling the truth.  Additionally, Parliament would simply not have included s 103(1)(b) in the CJA 2003, had it not intended to make propensity to be untruthful capable of being an important matter in issue in a trial. 
  4. Despite the approach laid down in Campbell, a number of subsequent cases held that a propensity to be untruthful was an important matter in issue and that evidence showing such a propensity was properly admitted: see R v Gumbrell [2009] EWCA 550, R v Ellis [2010] EWCA 163, R v Belgoun [2008] EWCA Crim 2006 and more recently R v N [2014] EWCA Crim 419 (see MLE 11th edn pp 543-545, and footnote 262).  In N, it was explicitly stated that Campbell was too restrictive and the court declined to follow Campbell.  The only issue in N was whether the complainant or the defendant was telling the truth, and it was held that the trial judge had properly admitted evidence of the defendant’s lies in a previous trial: the defendant had given evidence which was disbelieved and he was convicted, and he had lied to his barrister at the subsequent sentencing hearing. 
  5. Evidence of a defendant’s propensity to be untruthful may be admitted by a co-defendant under s101(1)(e) if it has substantial probative value in relation to an important matter in issue and, if, under s 104, the defendant has conducted his defence in such a way as to undermine the co-defendant’s defence. At common law, it has been held that undermining a co-defendant’s defence means making his acquittal less likely: see R v Bruce [1975] 1 WLR 1252, CA (MLE 12th ed p 557). This may mean that if the defendant provides a different version of events to the co-defendant, but which provide the co-defendant with alternative defence, which, if believed would result in the co-defendant’s acquittal, the defence is not undermined: see Kirkpatrick [1998] Crim LR 63. See MLE 12th ed pp 556-558). However, it is unclear whether s 104 will be interpreted in this way. Arguably, it is difficult to see how a co-defendant’s evidence could not be undermined in the eyes of the jury by a defendant giving an alternative version of what occurred, in the sense that it must affect the co-defendant’s credibility, and the reasoning in Kirkpatrick seems artificial.
  6. In R v Phillips [2012] 1 Cr App R 332 (25), it was held that the test in s 101(1)(e) is more rigorous than the test in s 101(1)(d) because of the inclusion of the words, ‘substantial probative value’, and it is an ‘enhanced’ relevance test. The enhanced relevance test is justified by the fact that there is no discretion to exclude in relation to s 101(1)(e), as there is with s 101(1)(d) (see s 101(3)) and by the fact that where defendants are running cut-throat defences against each other, they may go further in pressing their defences than the prosecution might in pressing its case, and the range of evidence admissible by a co-defendant to show propensity to be untruthful is broader.  Evidence admissible to show a propensity to be untruthful under s 101(1)(e) and s 104, need not necessarily involve evidence of the defendant’s lies (R v Lawson [2007] 1 Cr App R 178 and R v Jarvis [2008] Crim LR 266): see MLE 12th ed pp 556-557).
  7. In relation to the admissibility of evidence of a witness’s bad character, the relevant provision is s 100(1)(b), so that evidence is admissible if it has substantial probative value in relation to a matter of substantial importance in the context of the case as a whole, and the judge grants leave. There is no reference to propensity to be untruthful being a matter of substantial importance in the context of the case as a whole, but credibility is obviously capable of being such an issue.  Evidence of substantial probative value to credibility suggests an enhanced relevance test, but the courts take a broad brush approach and evidence is admissible as relevant to credibility even if it does not involve the telling of lies.  The test is whether it would affect the worth of the witness’s evidence in the eyes of a fair-minded tribunal. See MLE 12th ed pp 513-517.                                                            
  8. It is arguable that the different tests for the admissibility of evidence where credibility is an issue in a trial are unnecessarily complicated. There are two different tests relating to the admissibility of the defendant’s character depending on whether the evidence is sought to be admitted by the prosecution or the defence and both involve the difficult concept of propensity to be untruthful (see s 101(1)(d) and (e). There is a different test again, relating to the admissibility of the bad character of a person other than the defendant, where credibility is the issue (see s100(1)(b)).  Arguably, there should be a single test of relevance for admissibility of evidence relevant to credibility, with the judge exercising particular caution in the exercise of discretion in relation to the defendant’s character because of what is at stake for the defendant in a criminal trial.