The Impact of the Criminal Justice Act 2003 on Similar Fact Evidence

AuthorGregory Durston
Published date01 August 2004
DOI10.1350/jcla.68.4.307.36520
Date01 August 2004
Subject MatterComment
COMMENT
The Impact of the Criminal Justice Act 2003
on Similar Fact Evidence
Gregory Durston*
This commentary examines the potential impact of the Criminal Justice
Act 2003 on the area of law currently termed ‘similar fact’ evidence, i.e.
those situations in which the prosecution seek to adduce a defendant’s
previous bad character to suggest directly that he is guilty of the offence
with which he is presently charged, rather than, for example, seeking to
use it to undermine the credibility of his testimony. Under s. 99(1) of the
2003 Act, the fairly complex set of rules established over almost 200
years governing inter alia similar fact evidence in criminal proceedings,
will be abolished. There is no indication at the time of writing as to when
the new, and very complicated, legislation will be brought into force.
Late amendments and a disappointingly brief set of Explanatory Notes
have not assisted in its interpretation.
The new legislation
Under s. 98 of the 2003 Act, bad character is succinctly def‌ined as
‘evidence of, or of a disposition towards, misconduct on his [a defen-
dant’s] part’. Misconduct is def‌ined in s. 112 as the commission of an
offence or ‘other reprehensible behaviour’. Section 98 clearly encom-
passes both aspects of character evidence that are currently adduced
under similar fact principles. Thus, it includes the situation in which an
individual who has done something criminal in the past has allegedly
done the same thing again, and the Crown seeks to give evidence of his
previous crime to support its present prosecution. However, it also
includes evidence of a ‘disposition’ towards misconduct, such as the
possession of paedophile literature where a paedophile offence is cur-
rently charged, as in R vLewis.1Where this leaves previous behaviour
that is probative, but which, arguably, does not necessarily constitute
‘misconduct’, such as consensual sexual relations of an unusual type as
in R v Butler, is not absolutely clear.2
One of the primary aims behind the 2003 Act was to put all of the
rules governing bad character, whether for a defendant or any other
type of witness, and whether they go to credit or directly to the issue in
a case, into a single statute. The relevant section governing the adduc-
tion of a defendant’s bad character, for any purpose, is s. 101. Many of its
* MA, DipL, LLM, PhD, Barrister. Senior Lecturer, Kingston University.
The author would like to thank Victor Temple QC for comments on an earlier
draft of this article. All opinions expressed, however, are entirely those of the
author.
1 (1983) 76 Cr App R 33.
307

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