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82B        Requirement of leave

 

(1)   

In criminal proceedings, evidence of a person’s bad character is

 

admissible only with leave of the court, unless the evidence—

 

(a)   

has to do with the alleged facts of the offence with which the

 

defendant is charged, or

 

(b)   

is evidence of misconduct in connection with the

 

investigation or prosecution of that offence.

 

(2)   

This section does not apply in relation to an item of evidence if—

 

(a)   

all parties to the proceedings agree to the evidence being

 

admissible, or

 

(b)   

in the case of evidence of the defendant’s bad character, the

 

evidence is adduced by the defendant himself or is given in

 

answer to a question asked by him in cross-examination and

 

intended to elicit it.

 

82C     

Non-defendant’s bad character

 

In the case of evidence of the bad character of a person other than

 

the defendant, the court is not to give leave under section 82B

 

unless the evidence falls within section 82D or 82E.

 

82D     

Evidence with explanatory value

 

Evidence falls within this section if—

 

(a)   

without it, the court or jury would find it impossible or

 

difficult properly to understand other evidence in the case,

 

and

 

(b)   

its value for understanding the case as a whole is

 

substantial.

 

82E     

Evidence going to a matter in issue

 

(1)   

Evidence falls within this section if it has substantial probative

 

value in relation to a matter which—

 

(a)   

is a matter in issue in the proceedings, and

 

(b)   

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

 

whole.

 

(2)   

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

 

section, 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 the evidence relates;

 

(b)   

when those events or things are alleged to have happened

 

or existed;

 

(c)   

where—

 

(i)   

the evidence is evidence of a person’s misconduct,

 

and

 

(ii)   

it is suggested that the evidence has probative value

 

by reason of similarity between that misconduct and

 

other alleged misconduct,

 

   

the nature and extent of the similarities and the

 

dissimilarities between each of the alleged instances of

 

misconduct;

 

(d)   

where—


 

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(i)   

the evidence is evidence of a person’s misconduct,

 

(ii)   

it is suggested that that person is also responsible for

 

the misconduct charged, and

 

(iii)   

the identity of the person responsible for the

 

misconduct charged is disputed,

 

   

the extent to which the evidence shows or tends to show

 

that the same person was responsible each time.

 

(3)   

In subsection (2)(d) “misconduct charged” means the misconduct

 

constituting the offence with which the defendant is charged.

 

82F     

Defendant’s bad character

 

In the case of evidence of the defendant’s bad character, the court is

 

not to give leave under section 82B, unless the evidence falls within

 

section 82G, 82H, 82I, 82J or 82K.

 

82G     

Evidence with explanatory value

 

(1)   

Evidence falls within this section if the following three conditions

 

are met.

 

(2)   

The first condition is that, without the evidence, the court or jury

 

would find it impossible or difficult properly to understand other

 

evidence in the case.

 

(3)   

The second condition is that the value of the evidence for

 

understanding the case as a whole is substantial.

 

(4)   

The third 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 the value of the evidence for understanding the case as

 

a whole is such that, taking account of the risk of prejudice,

 

the interests of justice nevertheless require the evidence to

 

be admissible.

 

82H     

Evidence going to a matter in issue

 

(1)   

Evidence falls within this section if the following two conditions are

 

met.

 

(2)   

The first condition is that the evidence has substantial probative

 

value in relation to a matter which—

 

(a)   

is a matter in issue in the proceedings, and

 

(b)   

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

 

whole.

 

(3)   

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

 

justice nevertheless require the evidence to be admissible in

 

view of—

 

(i)   

how much probative value it has in relation to the

 

matter in issue,

 

(ii)   

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

 

that matter, and


 

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(iii)   

how important that matter is in the context of the

 

case as a whole.

 

(4)   

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

 

have regard to the factors listed in section 5(2) (and to any others it

 

considers relevant).

 

(5)   

For the purposes of this section, whether the defendant has a

 

propensity to be untruthful is not to be regarded as a matter in issue

 

in the proceedings.

 

(6)   

Only prosecution evidence can fall within this section.

 

82I     

Evidence going to credibility

 

(1)   

This section applies only where—

 

(a)   

the defendant makes an attack on a person’s character, and

 

(b)   

the effect of the attack is to suggest, or to support a

 

suggestion, that the person has a propensity to be

 

untruthful.

 

(2)   

For the purposes of this section, a defendant makes an attack on a

 

person’s character where—

 

(a)   

he adduces evidence of the person’s bad character, other

 

than—

 

(i)   

evidence that has to do with the alleged facts of the

 

offence with which the defendant is charged, or

 

(ii)   

evidence of misconduct in connection with the

 

investigation or prosecution of that offence,

 

(b)   

he asks questions in cross-examination that are intended to

 

elicit evidence of the kind referred to in paragraph (a), or

 

(c)   

evidence is given of an assertion made about the person by

 

the defendant—

 

(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 the assertion is such that, if it were made in evidence,

 

the evidence containing the assertion would be evidence of

 

the kind referred to in paragraph (a).

 

(3)   

Evidence falls within this section if the following three conditions

 

are met.

 

(4)   

The first condition is that the evidence has substantial probative

 

value in showing that the defendant has a propensity to be

 

untruthful.

 

(5)   

The second condition is that, without the evidence, the court or jury

 

would get an inaccurate impression of the defendant’s propensity

 

to be untruthful in comparison with that of the other person.


 

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(6)   

The third 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

 

justice nevertheless require the evidence to be admissible in

 

view of—

 

(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, 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 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, 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;

 

(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

 

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

 

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 in correcting the false or misleading impression.


 

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(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

 

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 that impression, and

 

(iii)   

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

 

whole, for that impression to be corrected.

 

(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—

 

(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,

 

(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

 

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 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

 

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

 

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;

 

(e)   

where the correcting evidence is of a spent conviction, the

 

fact that the conviction is spent;


 

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(f)   

any risk that admitting the correcting evidence would be

 

confusing or misleading, or would unduly prolong the

 

proceedings.

 

(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, 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,

 

   

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.

 

(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, 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 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).

 

(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.

 

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 same indictment,

 

(b)   

the prosecution propose to adduce evidence which

 

is admissible in relation to one of the offences but


 

(  12  )

 
 

which, in relation to another, is evidence of the

 

person’s bad character and is inadmissible, and

 

(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 fair trial.

 

(2B)   

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

 

person’s bad character shall be read in accordance with

 

section 82A of the Police and Criminal Evidence Act 1984

 

(c. 60).”

 

(2)   

In subsection (3) of that section, after “before trial” insert “(in a case

 

not falling within subsection (2A) above)”.

 

(3)   

Where in proceedings before a magistrates’ court—

 

(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

 

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.

 

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 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

 

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—

 

(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,

 

   

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.


 
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