Whetheris admissible in relation to criminal proceedings depends on its nature. Evidence can come in various forms such as:
To be admissible, the court must be convinced that the evidence is relevant to the facts of the case and has sufficient weight. If the evidence is deemed inadmissible, the fact that it is relevant in the proceedings does not play any role.
Subject to some exceptions, evidence which is normally excluded is:
To assess the credibility of the evidence, it is helpful to have the knowledge of the past behaviour or character of the defendant. The question is whether this is admissible as it could considerably damage the defendant’s reputation and credibility if they considered to be of bad character.
Under s 99 the Criminal Justice Act 2003 (CRA 2003), evidence of bad character is defined as ‘evidence of or disposition towards, misconduct’. Misconduct means the commission of an offence or other ‘reprehensible conduct’ (s 112, CRA 2003). The test for ‘reprehensible conduct’ is objective – it basically covers conduct which the public would regard as reprehensible such as racism; bullying; a bad disciplinary record at work for misconduct; a parent who has had a child taken into care; and minor pilfering from employers.
Under s 101 of CRA 2003, there are seven circumstances when bad character evidence of a defendant is admissible. These are if:
It is the responsibility of the prosecution to prove that one of the seven circumstances applies. The evidence will be admissible if it falls under a, b, c, e or f. If it falls under d or g, it will be admissible unless the court feels it has such an adverse effect on the fairness of the proceedings that it ought not to admit it, bearing in mind in particular the amount of time that has passed since the previous events and the current charge.
Under ss 9(2) and 118(1) of CRA 2003, evidence of reputation is admissible to prove good character, but only to the extent that it allows the court to treat such evidence as proving the matter concerned.
Non-defendants are not defined in CRA 2003, but CPS guidelines state that the term includes: victims (whether or not they give evidence); the deceased in homicide cases; witnesses; police officers involved in the case; third parties who are not witnesses in the case; and defence witnesses.
Under s 100, evidence of bad character of non-defendants is admissible only if:
Under s 107 of CRA 2003, if evidence of a defendant’s bad character has been admitted under paragraphs (c) to (g) of s 101(1) (see above), and the court is satisfied after the close of the case for the prosecution that the evidence is contaminated, and the contamination is such that the defendant’s conviction 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.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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