Chapter 5 Outline answers to essay questions

Chapter 5 Outline answers to essay questions

Character evidence

Has the concept of the indivisibility of character evidence survived the Criminal Justice Act 2003?

Introduction

To answer this question properly requires at least an outline knowledge of the earlier law. The concept behind the question is that a defendant cannot only refer to parts of their character which might be favourable to them and expect that other less favourable parts will be ignored. Your introduction should set out the definition of character in legal terms and compare that with some of the evidence from psychological science. You should make the point that only ‘bad character’ is defined in the statute (s101) and that good character is defined by the common law still. The question is really about whether, if the defendant claims to be of good character, his ‘bad character’ will also be admitted. Refer to the particular problems of character evidence identified by the Law Commission, namely moral and reasoning prejudice and the difficulties since the 1898 statute of achieving a fair balance between the interests of the defendant and the public interests in prosecuting crime successfully. This is an area where relevance may have to give way to other considerations. Refer to Lloyd-Bostock (2006) and the empirical support her research gives to the possibility of prejudice in a jury. The approach of the courts has been, even before the defendant was allowed to testify, that the jury on the other hand must not be misled and that a defendant could not claim to be of good character without having his bad character admitted. A possible outline for your essay is:

Introduction

 Pre-2003 position under common law (non- testifying defendant) and under CEA 1898. If the defendant claimed to be of good character his bad character would be admitted. See Rowton (1865).

Problem with pre 2003 position

Three problems arose:

Firstly, the different definitions of good and bad character – the former in terms of general reputation, the second in terms of criminal record.

Secondly, see R v Winfield (1939) where Humphreys J stated, ‘there is no such thing known to our procedure as putting half a prisoner’s character in issue and leaving out the other half’.

Thirdly what Mirfield (1991) has called the ‘no-stymie principle’ was not accepted. If the accused made an imputation against a prosecution witness that was necessary for his defence, he risked having his criminal record put in see DPP v Selvey [1970].

Changes following CJA 2003

 CJA 2003 Winfield but not Selvey has been effectively overruled by the CJA 2003:

As regards the former, retaliatory evidence of an accused’s bad character under s101(1)(f) if he claims to be of good character is admissible ‘only if it goes no further than is necessary to correct the false impression’. See Weir [2006]. However, it is arguable that R v Somanathan [2006] shows how difficult it is to keep to such a restriction. In that case a Hindu priest accused of rape claimed he enjoyed a good reputation and had not behaved inappropriately to women. The court then allowed evidence from women who claimed to have been assaulted by him. Despite contrary recommendations by the Law Commission the defendant has no immunity from his bad character being admitted because he makes imputations which relate to the facts of the defence or the conduct of the investigation.

Where the previous offences were minor, the defendant may be treated as being of qualified good character. See Thompson v R (1998), R v M (2009) and the  leading case on directions on good character,  R v Hunter (2015)

Conclusion:

The comment is correct in relation to the approach on admissibility in relation to good character. But the ‘tit for tat’ principle remains in relation to imputations against prosecution witnesses and co-defendants. Thus, there is a limited prosecutorial advantage in relation to this aspect of CJA 2003.

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