Has the concept of the indivisibility of character evidence survived the Criminal Justice Act 2003?

Analysis of the question

This question requires at least an outline knowledge of the earlier law, although bear in mind that the Supreme Court in R v Platt (2016) has expressed disapproval of the practice of citing pre-2003 precedents. The concept behind the question is that a defendant cannot allow references to some aspects of their character which might be favourable to them and expect that other less favourable parts will be ignored. Your essay should include the definition of character in legal terms and compare that with some of the evidence from psychological science that bad character evidence necessarily suggests the witness may not be telling the truth on oath. You should make the point that only ‘bad character’ is defined in the statute and that good character is defined by the common law still.

The question is partly about whether, if the witness claims to be of good character, his ‘bad character’ will also be admitted. Refer to the particular problems of character evidence identified by the Law Commission, namely moral and reasoning prejudice and the difficulties since the 1898 statute of achieving a fair balance between the interests of the defendant and the public interests in prosecuting crime successfully. This is an area where relevance may have to give way to other considerations. Refer also to Lloyd-Bostock (2006) and the empirical support her research gives to the possibility of prejudice in a jury. The approach of the courts has been, even before the defendant was allowed to testify, that the jury on the other hand must not be misled and that a defendant could not claim to be of good character without having his bad character admitted. Note that the question does not specify that it is referring only to the defendant. The status of the non-defendant witness may also be covered. A possible outline for your essay is:

Introduction

Pre-2003 position under common law (non- testifying defendant) and under CEA 1898. If the defendant claimed to be of good character, his bad character would be admitted. See Rowton (1865). The framework of the CJA 2003 in relation to the admissibility of the defendant’s bad character sets out the various triggers which might prompt it, see ss101. By contrast the previous position under the common law and the Criminal Evidence Act 1898 provided a ‘shield’ protecting the defendant from too ready disclosure. The essay should outline how far the operation of the Act upholds the proposition that good and bad character are indivisible and thus the jury is presented with a more rounded picture of the defendant.

Four problems with the pre 2003 position are at issue in the question:

Firstly, the different definitions of good and bad character – the former in terms of general reputation, the second primarily in the specific terms of criminal record.

Secondly, see R v Winfield (1939) where Humphreys J stated, ‘there is no such thing known to our procedure as putting half a prisoner’s character in issue and leaving out the other half’. This is the clearest example of the indivisibility of character and the admissibility of retaliatory evidence.

Thirdly, what Mirfield has called the ‘no-stymie principle’ prevailed (See Mirfield P., ‘(1991)). Even if the accused made an imputation against a prosecution witness that was necessary for his defence, he risked having his criminal record put in see DPP v Selvey [1970].

Fourthly, the position of the non-defendant witness pre-2003 was not in keeping with the government’s stated aim of giving greater support to victims who had no protection from having their bad character admitted.

Taking each of these in turn:

Firstly, the definition of bad character has been changed by ss98 and 112 of the CJA 2003. It now is broader than criminal record and includes ‘other reprehensible behaviour’ which is not defined in the Act. This means that bad character, where it is admissible, encompasses a range of activities by the defendant and the interpretation by the courts has led to contrasting decisions (see R v Lewis (2014) and R v Osbourne (2007). However, the courts have exhibited some restraint in adopting a prosecutorial stance. For example, R v Omoto (2018), where a conviction was quashed, was cited by McKeown (2019 p160) as demonstrating that ss 101 (1) (f) and (g) should be triggered ‘too readily’.

Secondly, Winfield has been effectively overruled by the CJA 2003. Under s101(1)(f) if the defendant claims to be of good character, bad character evidence is admissible ‘only if it goes no further than is necessary to correct the false impression’. See R v Weir [2006]. However, it is arguable that R v Somanathan [2006] (one of the conjoined appeals in R v Weir) shows how difficult it is to keep to such a restriction. In that case, a Hindu priest accused of rape claimed he enjoyed a good reputation and had not behaved inappropriately to women. The court then allowed evidence from women who claimed to have been assaulted by him. Despite contrary recommendations by the Law Commission, the defendant has no immunity from his bad character being admitted because he makes imputations which relate to the facts of the defence or the conduct of the investigation.

On the other hand, where the previous offences were minor, the defendant may be treated as being of qualified good character. See Thompson v R (1998), R v M (2009) and the leading case on directions on good character, R v Hunter (2015)

Thirdly, the indivisibilty of character still prevails if the attack on a prosecution witness is necessary for the defence. Thus, the guidelines set out in Selvey still prevail, see R v Lameletie (2008).

Finally, the non-defendant witness under s 100 of the CJA is accorded more protection than the defendant, in that the test for the admissibility of bad character is set high. Here, indivisibility does appear to have been eroded. In R v Broxall (2020) the court stated that it would be rare for the Crown to adduce prosecution evidence under s 100 such as to trigger s78 PACE.

Conclusion:

In relation to the defendant, but less so in the case of the non-defendant witness, aspects of the indivisibility of character evidence still prevail. Overall, this suggests as Choo (2020, p21) points out, that the defendant is not sufficiently protected. Arguably the approach of the courts is overly technical and marginalises psychological empirical research on the evidential value of previous bad character.