Criminal Justice Act 2003: Bad Character Provisions (2)
| Author | Ben Fitzpatrick |
| DOI | 10.1350/jcla.70.4.307 |
| Date | 01 August 2006 |
| Published date | 01 August 2006 |
| Subject Matter | Court of Appeal |
The ‘false impression’ provision in s. 101(1)(f) of the 2003 Act is broader
than the pre-2003 Act position under s. 1(3)(b) (s. 1(f)(ii) as was) of the
Criminal Evidence Act 1898 (which applied to the defendant who put
his character in issue) in that its operation does not depend on the
defendant testifying. There is thus considerable scope for gateway (f) to
become operative on the basis of a suspect’s utterances in interview.
The other issue of particular interest in the current case is that of
‘reprehensib[ility]’ for the purposes of the definition of ‘bad character’.
The finding that appellant R had committed the act charged following a
finding of unfitness to plead could count as ‘reprehensible’ behaviour. In
a lively discussion of the meaning of ‘reprehensibility’, Munday suggests
(R. Munday, ‘What Constitutes “Other Reprehensible Behaviour” under
the Bad Character Provisions of the Criminal Justice Act 2003’ [2005]
Crim LR 24–43 at 25, references omitted):
It comes as something of a surprise to encounter the very expression,
‘reprehensible behaviour’, in what purports to be a modernising statute.
Doubtless, it took a deft wordsmith to come up with this colourful expres-
sion. Regrettably, in a criminal context, the word ‘reprehensible’ is strongly
redolent of another age: it is more evocative of Victorian social moralising
than representative of the more neutral traits of a statute designed to set
the creaking rules of criminal evidence on a modern footing.
Quite so. Moreover, as Munday also notes (at 37), what counts as
‘reprehensible’ is a matter of law. This can be deduced from the fact that
s. 110 of the 2003 Act requires a court to give reasons for its bad
character rulings—so, if a court takes the view that evidence is evidence
of bad character on the basis of ‘reprehensibility’, it must say so. While
it may appear rather harsh that the tag of ‘reprehensibility’ can attach to
the defendant who has been found unfit to plead—albeit also found to
have committed the act alleged against him or her—the court in the
present case does not suggest that this will inevitably follow.
Ben Fitzpatrick
Criminal Justice Act 2003: Bad Character Provisions (2)
R v Weir [2005] EWCA Crim 2866
Five conjoined cases on the issue of bad character were considered by
the Court of Appeal.
Appellant W
W was convicted, in March 2005, of sexual assault of a girl under the age
of 13, contrary to s. 7 of the Sexual Offences Act 2003.
It was alleged that W touched the complainant’s vagina over her
nightclothes. The complainant was a friend of the daughter of W’s
partner, and the incident was alleged to have taken place while she was
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The Journal of Criminal Law
staying the night at the house which W shared with his partner and her
children.
W denied any impropriety.
The prosecution applied, successfully, to be able to adduce evidence
that W had been cautioned, in August 2000, for taking an indecent
photograph of a child, contrary to s. 1 of the Protection of Children Act
1978 (‘the 1978 Act’), on the basis that it was relevant to an important
matter in issue between the defendant and the prosecution—in this case
propensity—and thus passed through the gateway established by
s. 101(1)(d) of the Criminal Justice Act 2003. W appealed against the
decision to allow the evidence to be adduced, on the basis that the
offence under s. 1 of the 1978 Act could not be used as propensity
evidence in respect of the alleged offence under s. 7 of the Sexual
Offences Act 2003, because the two offences were not offences of the
same ‘category’ for the purposes of s. 103(2)(b) of the Criminal Justice
Act 2003. This submission was based on the Criminal Justice Act 2003
(Categories of Offences) Order 2004 (SI 2003 No. 3346) which estab-
lished a ‘Theft Category’ of offences and a ‘Sexual Offences (Persons
Under the Age of 16) Category’. The offence under s. 1 of the 1978 Act
did not appear, whereas the offence under s. 7 of the Sexual Offences
Act 2003 did appear, in the list of offences constituting the latter cate-
gory, which was set out in Part 2 of the Schedule to the Order.
Section 101 of the Criminal Justice Act 2003 states:
(1) In criminal proceedings evidence of the defendant’s bad character is
admissible if, but only if—
. . .
(d) it is relevant to an important matter in issue between the
defendant and the prosecution,
(3) The court must not admit evidence under subsection (1)(d) or (g) if,
on an application by the defendant to exclude it, it appears to the court 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.
Section 103 of the Criminal Justice Act 2003 states:
(1) For the purposes of section 101(1)(d) the matters in issue between
the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit
offences of the kind with which he is charged, except where his
having such a propensity makes it no more likely that he is
guilty of the offence;
(b) the question whether the defendant has a propensity to be
untruthful, except where it is not suggested that the defendant’s
case is untruthful in any respect.
(2)...
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