Criminal Justice Act - Essay Example

Criminal Justice Act Introduction Bad character in defendants is common in the current society and as such it was deemed necessary to find a way of controlling this type of vice. Extraordinarily, this type of route has been issued prior to the provisions to which it’s related. The 2003 criminal justice act of sections 98 to 112 have come to effect and hence therefore there ought to be authoritative interpretation of these. There are new changes that have been brought in the new provisions fundamentally and there occurrence frequency in future. With this regard, there is evidence that the defendant id behaving badly (has bad character) when she/he has otherwise mis-conducted him/herself (the defendant has criminal convictions). It’s critical to understand how to use this kind of evidence. In very rare occasions in which evidence lacks to directly link defendant to the charged offence, the prosecution will depend exclusively on evidence of bad character which will be in the form that defendant has committed related offences before. Common Law The criminal justice act, chapter one defines vividly what bad character entails, in section 98. Section 99 (1) on the other hand does away with the common law rules that govern permissibility of bad character evidence. Section 100 puts plain the conditions in which evidence of bad character of any other person other than the defendant is admissible (Davies et al 2005). In sections 101 to 108, dealing with the evidence of defendant bad character is outlined. The provisions in section 101 are that: During criminal procedure, evidence of bad character against the defendant is acceptable only on conditions that; 1. All those included in the proceedings concur to the evidence as acceptable 2. when the defendant him/herself adduces the evidence or is in response to a question he or she asked during cross examination and aiming to educe it 3. when it’s a very imperative explanatory evidence (Roberts & Zuckerman 2004) 4. When it is pertinent to an essential matter in issue involving the defendant and the hearing (Durston 2004). 5. When it has a considerable probative value in connection to an essential matter in issue involving the defendant and a co-defendant. 6. when it is evidence to give corrections to a fake thought expressed by defendant 7. Or when the defendant has attacked another individual’s character. Sections 1001 (3) demands that the court should not accept evidence under the subsection 1 (d) or 1 (g) if the defendant applies to leave it out and its seen to the court that admitting this kind of evidence would adversely affect the justice intended in the proceedings so the court should not acknowledge it (Davies et al 2005). The New Law The 2003 criminal justice act allows the admittance of evidence against a person for bad character during criminal process. The new law was enforced in 2004 succeeding the previous common law and many of the statutory regulations that governed the bad character admissibility which were abolished following these changes. The new scheme that replaced them sets out conditions in which such evidence can be put into use in criminal procedures (Denis 2002) The new statute seems to have sent back the position in DPP v P. it would seem that the law disregards the attempt to keep away from inclination evidence following DPP. These changes have been manifested so much in the period after 1999 in cases like R v Humphris (2005), R v Nguyen (2005) and R v Black. Nonetheless, it’s evident that that criminal cat of 2003 discards some of the cases like instance of the case of New South Wales Makin V Attorney-General-(Roberts & Zuckerman 2004). According to Lord Herschell, the crown was unable to adduce evidence and was inclined to indicate that the accused was guilty of other criminal acts part from those implicated by the indictment for the reasons of drawing conclusions that he is a person likely from the previous criminal record to have committed the felony for which he was to be tried. This outlawed line of thinking prevented the crown from putting up arguments the defendant was guilty based on his general predisposition to commit comparable types of felonies (Denis 2002). Section 101 (1) (d) give the impression of permitting the crown to adduce preceding misconduct that is probative of the details in issue specifically for the reason that it did demonstrate a strong criminal inclination- It’s always been conventional that the majority of the comparable facts evidences are not included not for the reason that it’s inappropriate but due to the fact that it has potential to generate both logic and moral prejudice. The act of 2003 seems to operate entirely by decreasing the extent of prejudice attributed to previous misconduct evidence, with comparison at common law (Durston 2004). Bad Character Evidence: Admissibility There are several cases that help understand what exactly was included in the changes that were out to the common lead with the formation of the 200034 criminal acts. Some issues arise in appeal cases that remind us that the criteria set in the section 101 (1) (d) (f) and (g) fulfilled (Roberts & Zuckerman 2004). Case Study: R V Nguyen [2005] There are several cases that cite the use of criminal act of 2003 and common law. They include R v Humphris [2005], R v weir [2006] R v McNeil [2008], and R v Nguyen [2005]. Due to time and space, I shall dwell with little detail on R V Nguyen cases. In 2005, (16th February) Dong Van Nguyen was convicted for planting a prohibited drug named Cannabis. Judge Ensor sentenced him to prison for 30 moths. And order was also given for destruction of the plant. He was also accorded leave for an appeal. Nguyen was accused together with his brother who pleaded guilty. On the onset of the trial procedure, Mr Goldwater appeared on behalf of the appellant and made a proposal to the presiding Judge His Honour Ensor not to include evidence from an interview held by the police. This was evidence which showed that the appellant took methadone and heroin (Durston 2004). On behalf of prosecution, Mr. Baker suggested that he was satisfied that the information was appropriate for admissible at common law and also under the 2003 act; provisions 101 (1) (d). He argued that the appellant knew the drug was cannabis and that he was conversant with other drugs in the drug scene as well. He contended that there was link between cannabis and those other drugs that he took. The judge accepted these allegations and allowed evidence to be tabled (Roberts & Zuckerman 2004). Heroin addiction meant the appellant would be acting desperately for money and his other felonies including 4 instances of shoplifting led to issuance of notice to serve them under section 101. The appellant interaction with suppliers of heroin meant that he had ways of readily accessing people who would dispose his cannabis. The prosecution also questioned his call when he was robbed 10 pound and police constable arrived immediately. The robbery indicated that the appellant was attempting to purchase drugs in a toilet. The judge summarized the evidence that the jury was satisfied that cannabis was being grown and that the defendant was involved in the cultivation. The defendant also knew cannabis according to what the jury had deduced. The judge was also convinced that it was a joint venture for appellant and his brother. Mr. Goldwater’s view are well focused as once the appellant had admitted that he thought the plant was some kind of prohibited thing and thereby avoiding defence under Misuse of Drugs act section 28 (3) of 1971, this did no matter what the intension of growing the drug were but the question was as to whether he knew it was cannabis. The judge was incorrect to purports that the evidence was appropriate for to significant issue between the defendant and prosecution as to make it admissible under 101 (1) (d). (Powell 2005). Another serious criticism of the judges ruling is that he did not take into consideration the fact that he never considered the adverse effect on the fairness of the procedure provided for in section 101 (3). The court under this order must grant good reason as why that ruling on the admissibility of evidence under section 101 and on application made under section 101 (3) not to include evidence on the basis of unfairness. The judge dealt with admissibility very well but he failed to mention section 101 (3) in his ruling neither did he provide reason why he held that it would not be unfair to admit it Law Com. Report (2001). The judge could not have been technically wrong to consider the situation as one which necessitated that evidence be admitted under section 101 (1) (d) concerning significant issue. The EU Human Rights Concerns and the 2003 Criminal Justice Act The 2003 Criminal Justice Act is designed to be compatible with the European Unions convention in the Human rights. However, this usually sparks some contention since the defendants never get satisfied by the rulings, Law Com. Report (2001). Defendants usually use conventional reasons to argue and support their application of bad character (Spencer 2005). Some of the arguments issued include; Admittance of evidence of the appellant’s bad character is by description not friendly with his/her right to a fair trial under article 6 ECHR. Law commission was by and large opposed to the use of bad character evidence and hence disputed it as unobjectionable on this basis (Auld 2001). Admittance of the defendants bad character turns around the yoke of evidence and is consequently no consistent with article 6 (2) which provides that everybody convicted with an unlawful offence will be assumed guiltless until confirmed guilty. Under this argument, it’s established that some evidence may be made admissible which could otherwise be inadmissible and for this reason, prosecution it’s made easier to prove the defendant is guilty (Auld 2001). In article six, of the convention, an aspect of fair trial is the equality in arms. Part 11 of the CJA is not consistent with this because it makes evidence of the defendant bad character admissible with no legal abscond, while if prosecution witnesses have bad character the defendant needs judicial leave bring this to the open. To conserve the defendant right to a fair prosecution, the act must define part 11 accordingly. Only when judicial leave is issued should the defendant’s bad character be admissible. However, this imbalance was explained by the minister to clarify that the defendant, unlike the witnesses had was entitled to object to the admission of evidence (Powell 2005). In article 6, an aspect of the defendants right to a fair prosecution and defend him/herself effectively is undermined. The Criminal justice just like the previous law mandates that should the defendant attack the character of another individual, his/her bad character is exposed. This challenges his/her right of self defence and hence inconsistent with article 6.the evidence of defendants bad character should not be implicated in this circumstance irrespective of the criminal justice perceptible provisions (Gibson & Watkins 2004). Conclusion The criminal justice act was revolutionized by the enforcement of its part 11 in the year 2004 providing an entirely legitimate structure for the reflection of bad character evidence and reinstating the preceding mixture of legislative and common law provisions. The intention of the legislation was to make it simple to admit evidence of defendant’s bad character which included but not restricted to prior convictions and to provide witnesses maximum security from unwarranted attacks on their character References Auld R (2001). Review of The Criminal Courts Of England And Wales. Ch. 11, Para. 114 Davies M, Croall, H & Tyrer T (2005). Criminal Justice- -An Introduction to Criminal Justice In UK. Longman Denis I, (2002). The Law of Evidence. Sweet and Maxwell Ltd Durston G, (2004). Impact of the Criminal Justice Act 2003 on Similar Fact Evidence. Journal of Criminal Law 68 (307) Gibson B & Watkins M (2004). Criminal Justice Act 2003. The Statute. Waterside Press Law Com. Report (2001). Evidence of Bad Character In Criminal Proceedings. Law Com. Report No. 273 Powell R. (2005). The New Rules on Evidence of Bad Character. Magistrate Court Practice 9.1 (9) Roberts P & Zuckerman A, (2004). Criminal Evidence. Oxford University Press Spencer J, (2005). Bad Character Gateways. New Law Journal 155.7174 (650) Statutes: Criminal Justice Act 2003 Cases- DPP v P R v Humphris (2005) 169 JPR 441, CA; R v Nguyen [2005] 1 WLR 3472, R v weir [2006] 2 ALL ER 570; R v McNeil (2008) 1172 JPR 50, Read More