The Quick and the Dead: Who Counts as a ‘Person’ under S. 100 of the Criminal Justice Act 2003?
| Author | Roderick Munday |
| DOI | 10.1350/jcla.2007.71.3.238 |
| Published date | 01 May 2007 |
| Date | 01 May 2007 |
| Subject Matter | Article |
Who Counts as a ‘Person’
under s. 100 of the Criminal
Justice Act 2003?
Roderick Munday*
Abstract
Section 100 of the Criminal Justice Act 2003 has transformed
the law’s attitude to references to non-defendants’ bad character in crimi-
nal trials. Unless the bad character has to do with the facts of the case, or
the investigation or prosecution of the offence, the leave of the court must
now be sought before a party can adduce ‘the bad character of a person
other than the defendant’. The word ‘person’ is problematical since the
legislature does not normally use this term to denote those who are dead.
This article addresses the problem of how the term ‘person’ should be
construed.
‘The plausibility of this account greatly perturbs the defence lawyers,
who do all they can to discredit the witness, referring to his questionable
reputation and insinuating that two of his sisters lead a “gay life”—an
expression on a par with “easy women”.’
Leonardo Sciascia, 1912+ 1 (1986) 50
(trans. Sacha Rabinovitch)
1. The problem outlined
Prior to the entry into force of the Criminal Justice Act 2003, the bad
character of any individual figuring in criminal proceedings, other than
the accused, might be freely introduced into evidence. In general, ‘bad
character’ signified both the previous convictions and other assorted
misconduct of the person concerned. Exposure normally occurred in the
course of cross-examination. Courts were quite relaxed about the in-
troduction of the bad character of persons extraneous to the proceed-
ings. Parties, in the words of the Law Commission, pretty much had ‘free
rein’ to attack the character of whomsoever they wished, provided
always that the evidence was relevant.1 It was assumed that all bad
character was potentially pertinent to the credibility of the individual
concerned. Such limits on cross-examination as existed were loosely
defined and related more to time-wasting than to content. According to
Lawton J in Sweet-Escott, questions put to a person in cross-examination
to test his credibility had to ‘relate to his likely standing after cross-
examination with the tribunal which . . . is listening to his evidence’.2
* Fellow of Peterhouse Cambridge.
1 Law Commission Report No. 273, Evidence of Bad Character in Criminal Proceedings,
October 2001, para. 9.8, available at www.lawcom.gov.uk/lc_reports.htm, accessed 21
March 2007.
2 (1971) 55 Cr App R 316 at 320.
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Who Counts as a ‘Person’ under s. 100 of the Criminal Justice Act 2003?
The court possessed inherent power to prevent questions that were
irrelevant or vexatious, or designed to prolong the case unnecessarily.3
Paragraph 708(g) of the Code of Conduct of the Bar of England and
Wales further enjoined counsel not to ‘ask questions which [were]
merely scandalous or intended or calculated to vilify, insult or annoy a
witness or some other person’. But otherwise, when it came to bad
character, in the words of Squire Hardcastle,
[G]entlemen—pray be under no constraint in this house. This is Liberty-
hall, gentlemen. You may do just as you please here.4
The problem exposed
The Criminal Justice Act 2003 introduced a markedly more restrictive
regime. So far as is immediately relevant, s. 100 now enacts:
100. Non-defendant's bad character
(1) In criminal proceedings evidence of the bad character of a person
other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,
or
(c) all parties to the proceedings agree to the evidence being
admissible.
. . .
(4) Except where subsection (1)(c) applies, evidence of the bad charac-
ter of a person other than the defendant must not be given without leave of
the court. (Emphasis added)
Put simply, unless all parties agree otherwise, this provision forbids the
introduction in evidence of the ‘bad character’ (as defined in ss. 98 and
112 of the Act)5 of any person other than the defendant without the
prior leave of the court. Section 100(1)(a) and (b) sets out the two
situations in which such leave may be granted. This article will consider
a small, but not insignificant issue raised by this provision: namely, what
is the meaning of the word ‘person’ in s. 100(1)?
Section 99(1) of the 2003 Act states that:
The common law rules governing the admissibility of evidence of bad
character in criminal proceedings are abolished.
3 ‘Whilst in no way detracting from counsel's duty to his client, he can and should
exercise in the interests of justice as a whole a proper discretion so as not to
prolong cases unnecessarily’: Simmonds [1967] 3 WLR 367 at 373, per Fenton
Atkinson J.
‘[W]e have thought it right in this judgment to remind trial judges of their duty
to curb irrelevancy and to try to keep cases within manageable length as well as the
duty of counsel to observe the warning which Fenton Atkinson J. gave in Simmonds
. . . and which we emphasised in Kalia (1974) 60 Cr.App.R. 200’: Maynard et al.
(1979) 69 Cr App R 309 at 318, per Roskill LJ.
4 Oliver Goldsmith, She Stoops to Conquer, Act II (1773).
5 On which, see further R. Munday, ‘What Constitutes ‘Other Reprehensible
Behaviour’ under the Bad Character Provisions of the Criminal Justice Act 2003?’
[2005] Crim LR 24; Benguit [2005] EWCA Crim 1953 at [31]; Renda et al. [2005]
EWCA Crim 2826 at [24]; Weir et al. [2006] 1 Cr App R 19 esp. at [116] and [118].
239
The Journal of Criminal Law
Whilst it is clear that in the case of living non-defendants leave must be
sought within the terms of s. 100(1)(a) and (b) before their bad char-
acter may be introduced in evidence, the question is what is now
permissible in the case of deceased non-defendants following the razing
of Liberty-hall?6 Given that the relevant common-law rules have all
been abolished, is the term ‘person’ in s. 100 to be construed to include
the dead? Alternatively, owing to the use of the term ‘person’, is a court
now powerless to permit the introduction of a deceased person’s bad
character under any circumstances?
In a paper on Part 11 of the Act, prepared for the Judicial Studies
Board, John Spencer characterised this as ‘an important loose end’ left
by the Act. As he rightly pointed out, the problem will only arise
sporadically, as in many of the most obvious situations the deceased
party’s bad character is likely to fall within the exceptions to this
prohibition provided in s. 98 of the Act. Section 98 exempts from
the operation of s. 100 bad character evidence ‘which has to do with the
alleged facts of the offence with which the defendant is charged’7 as well
as ‘evidence of misconduct in connection with the investigation or
prosecution of that offence’. Although referring to the admissibility of
evidence under s. 101 of the statute, Scott Baker LJ expressed matters
crisply in 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 . . . , it does not follow that
merely because the evidence fails to come within the s 101 gateways it will
be inadmissible. Where the exclusions in s 98 are applicable the evidence
will be admissible without more ado.8
However, in some situations the question that forms the theme of this
article will be posed—as, for example, ‘where the prosecution evidence
includes a statement from a deceased witness, whose credit the defence
wishes to undermine by invoking his criminal record’.9 One might add
that since s. 100 applies to all non-defendants, the situation could also
arise if the prosecution wished to adduce evidence of the bad character
6 Section 99(2), which, along with s. 118 r. 2, preserves the rule of common law
whereby a person’s reputation is admissible for the purposes of proving his bad
character, does not assist as these provisions are concerned solely with licit means
of proof and not with preserving any former expanded common-law connotation of
the term ‘person’.
7 In Machado [2006] EWCA Crim 837 at [13] Thomas LJ indicated how s. 98(a) is to
be approached: ‘What [M] wished to give evidence of in this case . . . was evidence
relating to the very circumstances in which this offence had occurred. All the
matters were in effect contemporaneous to and closely associated with the alleged
facts of the offence. It seems to us, looking at the facts of this case and applying the
simple English of the provision, that these matters were to do with the alleged facts
of the offence. They were, therefore, not evidence of bad character.’
8 [2006] 1 WLR 1524 at [1].
9 See now J. R. Spencer, Evidence of Bad Character (Hart: Oxford, 2006) paras
3.37–3.39.
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Who Counts as a ‘Person’ under s. 100 of the Criminal Justice Act 2003?
of a non-defendant or if, in a spirit of reckless chivalry, it elected itself
to disclose the bad character of a deceased individual relevant to the
trial.10
Everyday and parliamentary linguistic usage
Why should there be any problem in holding that the word ‘person’, as
employed in s. 100, applies to the dead? The principal stumbling...
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