Misconduct That ‘Has to Do with the Alleged Facts of the Offence with Which the Defendant is Charged’ … More or Less

DOI10.1350/jcla.2008.72.3.499
Date01 June 2008
Published date01 June 2008
Subject MatterArticle
Misconduct that ‘Has to Do with
the Alleged Facts of the Offence
with which the Defendant Is
Charged’ . . . More or Less
Roderick Munday*
Abstract Section 98(a) of the Criminal Justice Act 2003 exempts miscon-
duct evidence that ‘has to do with the alleged facts of the offence with
which the defendant is charged’ from the bad character rules that other-
wise would govern its admissibility. The exception is far from precisely
drafted and on a number of occasions the Court of Appeal has now had
opportunity to consider the scope of application of this provision. This
article critically analyses those decisions, and speculates on themes that in
the future may play a role in the interpretation of s. 98(a).
Keywords Criminal evidence; Bad character; Exceptions
‘How are you going to explain these phenomena,’ he asked.
‘Explain them? Has anyone ever explained anything except by
paraphrasing one set of words by another set?’
August Strindberg, Inferno (1897)
1. The problem posed
When Part 11 of the Criminal Justice Act 2003 refashioned the rules
governing the admission of evidence of bad character in criminal cases,
the def‌inition of ‘bad character’ was made subject to two major excep-
tions. One of these, prescribed in s. 98(a) of the Act, states:
References in this Chapter to evidence of a person’s ‘bad character’ are to
evidence of, or of a disposition towards, misconduct on his part, other than
evidence which—
(a) has to do with the alleged facts of the offence with which the
defendant is charged . . .
Section 98(a) therefore sets up a vital line of demarcation. On the one
side lies evidence of bad character, which may only be admitted pro-
vided that it passes through one of the seven ‘gateways’ sculpted in
s. 101 and its auxiliary sections; on the other, there exists evidence of
misconduct—or a disposition thereto—which is not subjected to any
such criteria of admissibility, but is left to be judged solely on the basis of
ordinary principles of relevance. In short, if it ‘has to do with the alleged
facts of the offence with which the defendant is charged’, evidence of a
defendant’s misconduct or of a defendant’s disposition towards miscon-
duct, exceptionally, is not made subject to the regime of admissibility
* Fellow of Peterhouse, Cambridge.
214 The Journal of Criminal Law (2008) 72 JCL 214–235
doi:1350/jcla.2008.72.3.499
imposed by s. 101. Scott Baker LJ made this point manifest in R v
Edwards:
Often the f‌irst inquiry is whether it is necessary to go through the bad
character gateways at all. In this regard, s. 98 is not to be overlooked. It
excludes from the def‌inition of bad character evidence which has to do
with the alleged facts of the offence or evidence of misconduct in connec-
tion with the investigation or prosecution of that offence. While diff‌icult
questions can arise as to whether evidence of background or motive falls to
be admitted under those exclusions in s. 98 or requires consideration under
s. 101(1)(c), it does not follow that merely because the evidence fails to
come within the s. 101 gateways it will be inadmissible. Where the exclu-
sions in s. 98 are applicable the evidence will be admissible without
more ado.1
Although Part 11 of the Criminal Justice Act 2003 did not eventually
adopt the Law Commissions precise proposals, in its Final Report the
Commission saw it as axiomatic that a distinction is drawn between
(i) evidence about the events for which the accused is being prosecuted
. . . and (ii) any evidence of bad character which goes outside that
central set of facts. This distinction is central to our scheme.2This
general axiomwhich, one could argue, begs the question whether the
central set of facts constitutes a universally or readily identif‌iable
entityhas been retained in s. 98(a).
To plot the boundary between the two species of misconduct
misconduct that relates to the central set of facts and misconduct that
does notit may be necessary both to determine what conduct actually
amounts to bad character within the meaning of ss. 98 and 1123and to
ascertain exactly what the decidedly uncertain phrase, evidence which
has to do with the alleged facts of the offence with which the defendant
is charged, is intended to mean. The latter issue alone will concern us
here. The courts have now had to wrestle with this expression in several
different contexts. On more than one occasion they have given it a
surprisingly wide interpretation, not even demurring when in one
instance both counsel likened evidence admissible under s. 98(a) loosely
to the concept of res gestae.4The time may be ripe to meditate on what
misconduct justif‌iably has to do with the alleged facts of the offence
with which the defendant is charged.
One can readily see the sort of paradigm case that the expression
evidence which has to do with the alleged facts of the offence with
which the defendant is charged was meant to cover. Misconduct tightly
bound up with the commission of the principal offence was obviously
1 [2005] EWCA Crim 3244, [2006] 1 WLR 1524 at [1(i)]. As Scott Baker LJ later
pointed out in R v W[2006] EWCA Crim 2308 at [19], the f‌inal sentence really
ought to have read, the evidence may be admissible without more ado'. See also
Cross & Tapper on Evidence, 11th edn (Oxford University Press: Oxford, 2007) 428.
2 Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com. Report
273 (2001) para. 7.4.
3 This question was considered in R. Munday, What Constitutes Other
Reprehensible Behaviour under the Bad Character Provisions of the Criminal
Justice Act 2003? [2005] Crim LR 24.
4 See R v Lowe [2007] EWCA Crim 3047 at [18(a),(b) and (c)], [20] and possibly
[23], per Sir Christopher Holland.
Misconduct that Has to Do with the Alleged Facts of the Offence . . .
215

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