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Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

62

 

(i)   

how much probative value it has in showing that the

defendant has a propensity to be untruthful,

(ii)   

what other evidence has been, or can be, given on that

matter, and

(iii)   

how important it is, in the context of the case as a whole,

5

to prevent the impression mentioned in subsection (5).

(7)   

In determining whether the three conditions are met the court must

have regard to the following factors (and to any others it considers

relevant)—

(a)   

the nature and number of the events, or other things, to which

10

the defendant’s attack relates and of those to which the

evidence in question (the responding evidence) relates;

(b)   

when those events or things are alleged to have happened or

existed;

(c)   

how important is the defendant’s propensity to be untruthful,

15

and that of the other person, in the context of the prosecution

case and of the defence case;

(d)   

in a case where this section applies by virtue of subsection

(2)(b), whether or not the evidence intended to be elicited is

actually given;

20

(e)   

how inaccurate the impression mentioned in subsection (5)

would be;

(f)   

where the responding evidence is of a spent conviction, the fact

that the conviction is spent;

(g)   

any risk that admitting the responding evidence would be

25

confusing or misleading, or would unduly prolong the

proceedings.

(8)   

Only prosecution evidence can fall within this section.

82J     

Evidence to correct false impression

(1)   

This section applies only where the defendant is responsible for the

30

making of an express or implied assertion which is apt to give the court

or jury a false or misleading impression about the defendant.

(2)   

Evidence falls within this section if the following two conditions are

met.

(3)   

The first condition is that the evidence has substantial probative value

35

in correcting the false or misleading impression.

(4)   

The second condition is that the court is satisfied—

(a)   

that, in all the circumstances of the case, the evidence carries no

risk of prejudice to the defendant, or

(b)   

that, taking account of the risk of prejudice, the interests of

40

justice nevertheless require the evidence to be admissible in

view of—

(i)   

how much probative value it has in correcting the false

or misleading impression,

(ii)   

what other evidence has been, or can be, given to correct

45

that impression, and

(iii)   

how important it is, in the context of the case as a whole,

for that impression to be corrected.

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

63

 

(5)   

For the purposes of this section, a defendant is responsible for the

making of an assertion if—

(a)   

the assertion is made by the defendant in the proceedings

(whether or not in evidence given by him),

(b)   

the assertion was made by the defendant—

5

(i)   

on being questioned under caution, before charge, about

the offence with which he is charged, or

(ii)   

on being charged with the offence or officially informed

that he might be prosecuted for it,

   

and evidence of the assertion is given in the proceedings,

10

(c)   

the assertion is made by a witness called by the defendant,

(d)   

the assertion is made by any witness in cross-examination in

response to a question asked by the defendant and intended, in

the opinion of the court, to elicit it, or

(e)   

the assertion was made by any person out of court, and the

15

defendant adduces evidence of it in the proceedings.

(6)   

Where it appears to the court that a defendant, by means of his conduct

(other than the giving of evidence) in the proceedings, is seeking to give

the court or jury an impression about himself that is false or misleading,

the court may if it appears just to do so treat the defendant as being

20

responsible for the making of an assertion which is apt to give that

impression.

(7)   

In subsection (6) “conduct” includes appearance or dress.

(8)   

In determining whether the two conditions are met, the court must

have regard to the following factors (and to any others it considers

25

relevant)—

(a)   

the nature of the impression given by the assertion referred to

in subsection (1), and how false or misleading that impression

is;

(b)   

by whom and in what circumstances the assertion is or was

30

made;

(c)   

the nature and number of the events, or other things, to which

the evidence in question (the correcting evidence) relates;

(d)   

when those events or things are alleged to have happened or

existed;

35

(e)   

where the correcting evidence is of a spent conviction, the fact

that the conviction is spent;

(f)   

any risk that admitting the correcting evidence would be

confusing or misleading, or would unduly prolong the

proceedings.

40

(9)   

Where in proceedings before a magistrates’ court—

(a)   

the defendant is responsible for the making of an assertion

which is apt to give the court a certain impression about the

defendant,

(b)   

the prosecution allege that the impression is false or misleading,

45

and

(c)   

in reliance on this section the prosecution propose to apply for

leave under section 82B to adduce or elicit evidence to correct

the impression,

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

64

 

   

the court must first rule (without being given any details about the

evidence) whether, however false or misleading the impression may

be, it is unimportant in the context of the case as a whole for it to be

corrected; and if the court makes a ruling to that effect, no evidence can

fall within this section in relation to the assertion in question.

5

(10)   

Only prosecution evidence can fall within this section.

82K     

Evidence going to an issue between co-defendants

(1)   

Evidence falls within this section if it has substantial probative value in

relation to a matter which—

(a)   

is a matter in issue between the defendant and a co-defendant,

10

and

(b)   

is of substantial importance in the context of the case as a whole.

(2)   

For the purposes of this section, evidence is not to be treated as having

the probative value mentioned in subsection (1) by virtue of its

relevance to the question whether the defendant has a propensity to be

15

untruthful unless the nature or conduct of his defence is such as to

undermine the co-defendant’s defence.

(3)   

In assessing the probative value of evidence for the purposes of this

section, the court must have regard to the factors listed in section 82B(2)

(and to any others it considers relevant).

20

(4)   

Only evidence—

(a)   

which is to be (or has been) adduced by the co-defendant, or

(b)   

which a witness is to be invited to give (or has given) in cross-

examination by the co-defendant,

can fall within this section.

25

82L     

Trying more than one offence together

(1)   

In section 5 of the Indictments Act 1915 (c. 90) (orders for separate trial

etc) insert after subsection (2)—

“(2A)   

Where—

(a)   

a person is charged with more than one offence in the

30

same indictment,

(b)   

the prosecution propose to adduce evidence which is

admissible in relation to one of the offences but which,

in relation to another, is evidence of the person’s bad

character and is inadmissible, and

35

(c)   

the person applies before trial for an order that the

offences mentioned in paragraph (b) above be tried

separately,

   

the court shall grant the application unless satisfied that trying

the offences together would not prevent the defendant having a

40

fair trial.

(2B)   

The reference in subsection (2A) above to evidence of the

person’s bad character shall be read in accordance with section

1 of the Criminal Justice and Police Act 2001 (c. 16).”

(2)   

In subsection (3) of that section, after “before trial” insert “(in a case not

45

falling within subsection (2A) above)”.

(3)   

Where in proceedings before a magistrates’ court—

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

65

 

(a)   

it is proposed that the defendant be tried for two or more

offences together,

(b)   

the prosecution propose to adduce evidence which is

admissible in relation to one of the offences but which, in

relation to another, is evidence of the person’s bad character

5

and is inadmissible, and

(c)   

the defendant objects before trial to the offences mentioned in

paragraph (b) being tried together,

the court may order those offences to be tried together only if satisfied

that doing so would not prevent the defendant having a fair trial.

10

82M     

Stopping the case where evidence contaminated

(1)   

If on a defendant’s trial on indictment for an offence—

(a)   

evidence of his bad character has been admitted with leave

under section 82B, and

(b)   

the court is satisfied at any time after the close of the case for the

15

prosecution that—

(i)   

the evidence is contaminated, and

(ii)   

the contamination is such that, considering the

importance of the evidence to the case against the

defendant, his conviction of the offence would be

20

unsafe,

   

the court must either direct the jury to acquit the defendant of

the offence or, if it considers that there ought to be a retrial,

discharge the jury.

(2)   

Where—

25

(a)   

a jury is directed under subsection (1) to acquit a defendant of

an offence, and

(b)   

the circumstances are such that, apart from this subsection, the

defendant could if acquitted of that offence be found guilty of

another offence,

30

   

the defendant may not be found guilty of that other offence if the court

is satisfied as mentioned in subsection (1)(b) in respect of it.

(3)   

If—

(a)   

a jury is required to determine under section 4A(2) of the

Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person

35

charged on an indictment with an offence did the act or made

the omission charged,

(b)   

evidence of the person’s bad character has been admitted with

leave under section 82B, and

(c)   

the court is satisfied at any time after the close of the case for the

40

prosecution that—

(i)   

the evidence is contaminated, and

(ii)   

the contamination is such that, considering the

importance of the evidence to the case against the

person, a finding that he did the act or made the

45

omission would be unsafe,

   

the court must either direct the jury to acquit the defendant of

the offence or, if it considers that there ought to be a rehearing,

discharge the jury.

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

66

 

(4)   

This section does not prejudice any other power a court may have to

direct a jury to acquit a person of an offence or to discharge a jury.

(5)   

For the purposes of this section, a person’s evidence is contaminated

where—

(a)   

as a result of an agreement or understanding between the

5

person and one or more others, or

(b)   

as a result of the person being aware of anything alleged by one

or more others who are, or could be, witnesses in the

proceedings,

   

the evidence is false or misleading in any respect, or is different from

10

what it would otherwise have been.

General

82N     

Assumption of truth in assessment of probative value

(1)   

Subject to subsection (2), a reference in this Part to the probative value

of evidence is a reference to its probative value on the assumption that

15

it is true.

(2)   

In assessing the probative value of an item of evidence for any purpose

of this Part, a court need not assume that the evidence is true if it

appears, on the basis of any material before the court (including any

evidence it decides to hear on the matter), that no court or jury could

20

reasonably find it to be true.

82O     

Court’s duty to give reasons for rulings

(1)   

Where the court makes a relevant ruling—

(a)   

it must state in open court (but in the absence of the jury, if there

is one) its reasons for the ruling;

25

(b)   

if it is a magistrates’ court, it must cause the ruling and the

reasons for it to be entered in the register of the court’s

proceedings.

(2)   

In this section “relevant ruling” means—

(a)   

a ruling on whether an item of evidence is admissible only with

30

leave under section 82B;

(b)   

a decision whether to give leave under that section;

(c)   

a ruling under section 82M.

82P     

Rules of court

(1)   

Rules of court may make such provision as appears to the appropriate

35

authority to be necessary or expedient for the purposes of this Part; and

the appropriate authority is the authority entitled to make the rules.

(2)   

The rules may require a party who—

(a)   

proposes to adduce evidence of a defendant’s bad character

that is admissible only with leave under section 82B, or

40

(b)   

proposes to cross-examine a witness with a view to eliciting

such evidence,

   

to serve on the defendant such notice, and such particulars of or

relating to the evidence, as may be prescribed.

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

67

 

(3)   

The rules may provide that the court or the defendant may, in such

circumstances as may be prescribed, dispense with a requirement

imposed by virtue of subsection (2).

(4)   

If a party fails to comply with a requirement that has been imposed in

relation to an item of evidence by virtue of subsection (2) (and not

5

dispensed with by virtue of subsection (3)) the court may take the

failure into account—

(a)   

in deciding whether to grant leave under section 82B; and

(b)   

where leave is given, in considering the exercise of its powers

with respect to costs.

10

(5)   

The rules may—

(a)   

limit the application of any provision of the rules to prescribed

circumstances;

(b)   

subject any provision of the rules to prescribed exceptions; and

(c)   

make different provision for different cases or circumstances.

15

(6)   

Nothing in this section prejudices the generality of any enactment

conferring power to make rules of court; and no particular provision of

this section prejudices any general provision of it.

(7)   

In this section—

   

“prescribed” means prescribed by rules of court;

20

   

“rules of court” means—

(a)   

Crown Court Rules;

(b)   

Criminal Appeal Rules; and

(c)   

rules under section 144 of the Magistrates’ Courts Act

1980 (c. 43).

25

82Q     

Interpretation

(1)   

In this Part—

   

“bad character” is to be read in accordance with section 82A;

   

“criminal proceedings” means criminal proceedings in relation to

which the strict rules of evidence apply;

30

   

“defendant” in relation to criminal proceedings, means a person

charged with an offence in those proceedings; and “co-

defendant”, in relation to a defendant, means a person charged

with an offence in the same proceedings;

   

“misconduct” means—

35

(a)   

the commission of an offence, or

(b)   

behaviour of a kind that, in the opinion of the court,

might be viewed with disapproval by a reasonable

person;

   

“prejudice”, in relation to an item of evidence and a defendant, is

40

to be read in accordance with subsection (2);

   

“probative value” is to be read in accordance with section 82N;

   

“prosecution evidence” means evidence which is to be (or has

been) adduced by the prosecution, or which a witness is to be

invited to give (or has given) in cross-examination by the

45

prosecution.

 

 

Criminal Justice Bill
Part 10 — Evidence
Chapter 1 — Evidence of bad character

68

 

(2)   

For the purposes of this Part, evidence carries a risk of prejudice to a

defendant where—

(a)   

there is a risk that the court or jury would attach undue weight

to the evidence, or

(b)   

the nature of the matters with which the evidence deals is such

5

as to give rise to a risk that the court or jury would find the

defendant guilty without being satisfied that he was.

(3)   

Where a defendant is charged with two or more offences in the same

criminal proceedings, this Part has effect as if each offence were

charged in separate proceedings; and references to the offence with

10

which the defendant is charged are to be read accordingly.

82R Minor and consequential amendments

(1)   

In section 6 of the Criminal Procedure Act 1865 (c. 18) (witness’s

conviction for offence may be proved if not admitted)—

(a)   

for “A witness may be” substitute “If, upon a witness being

15

lawfully”;

(b)   

omit “and upon being so questioned, if”.

(2)   

In section 1(2) of the Criminal Evidence Act 1898 (c. 36) (restriction of

privilege against self-incrimination where defendant gives evidence) at

the beginning insert “Subject to section 6 of the Criminal Evidence Act

20

2001 (inadmissibility of evidence of defendant’s bad character)”.

(3)   

In section 16(2) of the Children and Young Persons Act 1963 (c. 37)

(offences committed by person under 14 disregarded for purposes of

evidence relating to previous convictions) for the words from

“notwithstanding” to the end substitute “even though the Criminal

25

Justice and Police Act 2001 (c. 16) would not prevent the question from

being asked”.

82S     

Repeals

(1)   

The common law rules governing the admissibility of evidence of bad

character in criminal proceedings are abolished.

30

(2)   

The rules referred to in subsection (1) include any rule under which, as

an exception to the inadmissibility of hearsay evidence, evidence of a

person’s reputation is admissible for the purpose of proving his

character, but only so far as the rule relates to evidence of bad character.

(3)   

The following cease to have effect—

35

(a)   

section 1(3) of the Criminal Evidence Act 1898 (c. 36) (which

makes provision as to the questions that a defendant may be

asked about his bad character in cross-examination);

(b)   

section 27(3) of the Theft Act 1968 (c. 60) (admission of evidence

of previous convictions for theft etc to prove that defendant

40

knew goods to be stolen).”

 

 

 
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