Mental Gymnastics and Intellectual Acrobatics: The Meanings of Statutory and Common Law ‘Bad Character’
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| DOI | 10.1350/jcla.2011.75.2.694 |
| Subject Matter | Article |
Intellectual Acrobatics: The
Meanings of Statutory and
Common Law ‘Bad Character’
Phil Huxley*
Abstract
Historically the common law allowed the prosecution to prove
the defendant’s guilt by adducing not only factual evidence, but also
evidence of his bad character. The latter could take the form of evidence
that the defendant had done the same thing on previous occasions as he
was charged with today. This was known as similar fact evidence (SFE).
Under the Criminal Justice Act 2003 the common law rules as to the
admissibility of evidence of bad character were abolished and replaced
with a statutory scheme which is capable of being used to admit some, but
by no means all, of what was SFE at common law. This article considers
alternative meanings of the two-word phrase ‘bad character’; whether
SFE which is not admissible under the Act is nevertheless admissible at
common law; the relationship between the statutory scheme and the
common law; and crucially, the jury direction at common law.
Keywords
Criminal evidence; Bad character; Similar fact evidence;
Survival of the common law; Jury direction
. . . I am supposed to be capable of doing mental gymnastics,
am I not?
(per Judge Martineau, cited by Hooper LJ in R v Hewlett1)
Prior to the Criminal Justice Act 2003,2 evidence that the defendant was
of bad character could arise in criminal proceedings through one of two
routes—common law or statute. Part 11, Chap. 1 of the CJA 2003
contains evidence provisions intended to reform the statutory position.
The reform was based on the Law Commission’s report, Evidence of Bad
Character in Criminal Proceedings,3 which characterised this part of the law
as ‘a haphazard mixture of statute and common law rules’.4 As we shall
see, the CJA 2003 reversed the principle of exclusion of evidence of the
defendant’s bad character under the Criminal Evidence Act 1898.
* Formerly Principal Lecturer in Law, Nottingham Law School, Nottingham Trent
University; e-mail: huxphj@yahoo.co.uk. My thanks to Michael O’Connell, Rebecca
Huxley-Binns and Jonathan Doak for their helpful comments. Errors remain the
fault of the author.
1 [2008] EWCA Crim 270 at [20].
2 All references in this article are to the Criminal Justice Act 2003 (hereafter ‘CJA
2003’) unless otherwise stated.
3 Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com. Report
No. 273 (2001), available at http://www.lawcom.gov.uk/lc_reports.htm, accessed 25
January 2011. The Bill’s evidence provisions were the subject of considerable
disagreement in Parliament and the defects of the CJA 2003 cannot be laid entirely
at the door of the Law Commission.
4 Ibid. at para. 1.7.
132
The Journal of Criminal Law (2011) 75 JCL 132–141
doi:10.1350/jcla.2011.75.2.694
Meanings of Statutory and Common Law ‘Bad Character’
In outline the CJA 2003 contains a definition of ‘bad character’ and
provides that evidence of the defendant’s bad character is admissible if,
but only if, it passes through one of seven gateways of admissibility
contained in s. 101. Five of the seven gateways are subject to definition
in ss 102–106. Of the seven gateways, the provisions of s. 101(1)(d) are
arguably the most important. Under para. (d) evidence of the defend-
ant’s bad character is admissible where it is ‘relevant to an important
matter in issue between the defendant and the prosecution’. An im-
portant matter in issue includes the defendant’s propensity to commit
offences of the kind with which he is charged or to be untruthful.
Section 103(2) provides two non-exhaustive methods of establishing
the propensities in question, but expressly provides they are ‘without
prejudice to any other way of doing so’. Thus does the CJA 2003 leave
open the possibility of establishing bad character (within the meaning of
the Act) by evidence which is outwith the statutory provisions—in other
words, the common law. This article considers the relationship between
the common law and the Act’s evidence provisions.
The common law and statutory routes of admissibility
The common law was based on the decision of the Privy Council in
Makin v Attorney-General for New South Wales5 as understood and inter-
preted in DPP v Boardman6 and DPP v P.7 In broad terms this route
involved the prosecution being allowed to show the commission of
other acts by the defendant which had a close connection with the
offence charged through the manner of their commission.8 It did not
depend on whether the defendant gave evidence in the proceedings but
was leave-dependent. Some of the other acts (where previous) might
have resulted in prosecution itself resulting in either conviction or
acquittal, but this was by no means always the case. In many cases the
‘other’ acts were counts in the current indictment. When the same jury
is allowed to use evidence on count one as going to guilt on count two,
etc. the process is known as ‘cross-admissibility’. Evidence admitted
under the common law route could be used by the jury as going to the
issue of whether the defendant was guilty as charged.
The statutory route was through the Criminal Evidence Act 1898.
Again in broad terms, the prosecution was allowed to prove the defend-
ant’s bad character through previous convictions, but only where he had
given evidence in the proceedings and had either put his character in
issue, or had attacked the character of a prosecution witness, or had
undermined the defence of a person charged in the same proceedings.9
Unlike evidence admitted under the common law route, evidence ad-
mitted under the 1898 Act went only to the defendant’s credibility.
5 [1894] AC 57.
6 [1975] AC 421.
7 [1991] AC 447, (1991) 93 Cr App R 267.
8 It was important to show there was some actual link between the other acts and
the defendant.
9 Whether the defendant had done so was a matter of law for the judge.
133
The Journal of Criminal Law
There was a ‘standard direction’ to the jury to this effect.10 Lord Lane CJ
said the direction gave rise to a ‘feat of intellectual acrobatics’ which was
‘practically impossible to achieve’.11 In addition, there was considerable
unease about other aspects of the operation of the 1898 Act, not least as
to whether the exclusionary approach on which it was based was
appropriate in the 21st century.
In the words of Hughes LJ in R v Chopra,12 the CJA 2003 brought
about a ‘sea change’ in the statutory position. Under the new Act proof
of the defendant’s bad character is admissible unless excluded by the
court. The evidence in question must pass through one of seven ‘gate-
ways’ to...
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