The Intended Purpose of the Criminal Evidence Act 1898 - Case Study Example

226839 LAW OF EVIDENCE-The courts decisions over the last twenty-five years or so reveal a remarkably confusing approach to the purpose of cross-examination under s.1(f)(ii) Criminal Evidence Act 1898. The starting point in assessing the purpose of cross examination over the last twenty five years is to analyse the intended purpose of the Criminal Evidence Act 1898 s1(f). It can be noted that this Act was introduced with the aim of making the accused competent to testify in court. The original wording of s1(f) (iii) stated that an accused person who has given evidence against another person charged with the same offence may be cross-examined about his previous convictions and his bad character. From the reading of the Act it would appear that the intention was to prevent the prosecution from being able to cross-examine an accused on their previous convictions unless adducing such evidence would prove the guilt of that party, or would rebut an assertion of their good character. The right to cross examine defendants was increased by the rewording of s1(f(iii) in the Criminal Evidence Act 1979 by substituting the words ‘with the same offence’ with ‘in the same proceedings’. This allowed the defence for another defendant to cross examine the other defendant on their previous convictions even if that defendant had not been charged with the same offence. The intention of the Act had always been to allow the judge to exercise his discretion as to whether to allow such a cross examination or not, however this discretion has rarely been exercised1. In recent times attempts have been made to clarify the law in respect of evidence of bad character through the introduction of the Criminal Justice Act 2003. It used to be a requirement that the previous convictions had to contain similar facts before they could be adduced as evidence of bad character, however there has been a relaxation of the law in this area over the years such that convictions for dissimilar crimes have sometimes been allowed to be adduced even when they do not support the original charge. The main deciding fact now appears to be based on the notion of the probative value of that evidence and the usage of the previous convictions to impugn a propensity of the accused towards the commission of certain crimes. The issue of bad character has consistently caused a problem for the courts and they are frequently unable to decide on the weight that can be attached to the use of previous convictions as evidence against the accused. The courts have frequently allowed the cross examination of a co-accused by the defence counsels, especially in cases where the co-accused is reliant on discrediting the other party so as to prove his own innocence. In Lui Mei Lin v. The Queen [1989]2 the court held that the decision applied in R. v. Rowson should be applied in this instance as the co-accused was entitled to rely on s1(f) (iii) of the Criminal Evidence Act 1898 to attempt to establish his own innocence. In R. v. Miller [1952]3 and Murdoch v. Taylor [1965]4 the court held that the defence counsels were entitled to cross examine the defendant on their previous convictions as they had given evidence against each other. In Lui Mei Lin v. The Queen [1989] A.C. 288, 297F Lord Roskill made the comment that the only limit that can be placed on a co-accused to question another co-accused is with regard to relevance. Such questioning can only be carried out once the co-accused has given evidence against the other co-accused In the case of Maxwell v DPP [1935]5 the House of Lords looked at the relevance of the previous convictions of the accused and came to the conclusion that ‘the question whether a man has been convicted, charged or acquitted, even if it goes to credibility, ought not to be admitted if there is any risk of the jury being misled into thinking that it goes not to credibility but to the probability of his having committed the offence with which he is charged.’ It has been argued that allowing cross examination of a witness in the presence of the jury without forewarning the accused of the intention to question him in this manner is unfair. This was discussed in the case of Jones v DPP [1962]6. A further point of contention in relation to evidence of bad character was the allowance of the counsel to question an accused with regard to offences that the defendant had previously been acquitted for. This was the point in issue in the case of R v Z [2000]7 in which the court stated that if an acquittal had been tendered to the jury then counsel were rightly able to cross examine the accused in relation to that acquittal so long as the defendant would not be placed in double jeopardy. Viscount Sankey disagreed with this in this case stating that in his opinion ‘It seemed to be contended on behalf of the respondent that a charge was per se such evidence that the man charged, even though acquitted, must thereafter remain under a cloud, however innocent. The mere fact that a man has been charged with an offence is no proof that he committed the offence. Such a fact is, therefore, irrelevant; it neither goes to show that the prisoner did the acts for which he is actually being tried nor does it go to his credibility as a witness. Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases . . .’ The lack of consistency in the application of bad character evidence has been demonstrated throughout the years in a variety of cases such as R v Selvey [1970]8 in which the judge restricted cross examination to previous convictions for similar offences only whereas in R v McLeod9 the court felt that cross examination had to be relevant to the credibility of the accused before he could be questioned with regard to previous convictions. In Selvey the judge did allow the prosecution to delve into the facts of the previous convictions. In this case such an exploration was allowed as the defendant had been accused of sexual activity with victims of certain ages and the courts allowed the prosecution to question the defendant with regard to the ages of the victims in the earlier offences so as to demonstrate that the accused has a propensity to focus his sexual attention on victims of a certain age. With McLeod the court stated that the cross examination could only be used to aver to the guilt of the defendant rather than to a propensity towards certain crimes. In this case, however, the court did allow the adducing of crimes that were dissimilar to that charged against the defendant. The defendant had been charges with a violent robbery in this case and in order to sow that the defendant had a tendency towards violence evidence of a previous violent crime was adduced despite the fact that there were no other similarities between this offence and the offence charged. Over the years the Law Commission has examined the problem with cross examination on bad character issues, firstly in 1972 then subsequently in 1994 and 2001. In the latest of these reports recommendations were made some of which have been incorporated into the Criminal Justice Act 2003. All of the reports have agreed that the use of bad character evidence has been inconsistently applied since the introduction of the 1898 Act. Suggestions have been made within the Reports to try to amend the problem but even with the inclusion of some of these into the 2003 Act bad character evidence remains inconsistently applied. In the Law Commission paper published in 199610 it was proposed that evidence should be excluded in situations where it was impossible to instruct the jury or magistrates as to the weight or use that could be made of that evidence11. The 1996 Report appears to regard the acquittal of an innocent person as more important than the conviction of a guilty one. It was believed by the Commission that by allowing bad character evidence to be adduced in cross examination more defendants would be discouraged from giving evidence as this could open them up to being questioned about their previous convictions. In cases where the co-accused is willing to give evidence against another co-accused in relation to the commission of an offence the co-accused might be fearful of doing so for fear of being questioned about their own previous convictions. In the finalised Report in 200112 the paper expressed the opinion that the jury might be best placed to decide on the issues of bad character. In the Report the Commission stated that The present law suffers from a number of defects . . . they constitute a haphazard mixture of statute and common law rules which produce inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the fact-finders whilst often exposing witnesses to gratuitous and humiliating exposure of long-forgotten misconduct13. The Commission felt that evidence of bad character should be limited to similar facts to the matter at hand14 and that a test based on the probative value whilst limiting the prejudicial value should be applied15. This test is likely to cause conflict as all material of a probative nature is likely to be prejudicial to the accused.16. With the advent of the Criminal Justice Act 2003 cases such as R v Hanson [2005]17 have been used to determine the purpose of bad character evidence. In this case the use of such evidence was the courts stated that the purpose of the use of bad character evidence was stated to be considered to be admissible ‘. . . to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.’ It was further recognised in R v Edwards and Rowlands [2005]18 that it was apparent that Parliament intended that evidence would be put before juries more frequently than hitherto had been the case. Since Hanson the courts have disregarded the old principle that any conviction should be regarded as relevant. The old notion was based on the fact that previous convictions were relevant to the credibility of the witness. Hanson emphasised the fact that even offences involving dishonestly did not automatically prove a propensity of the accused to be dishonest. The Lord Chief Justice in R v Highton [2005]19 appears to agree with this comment when he stated that convictions for obtaining by deception indicated untruthfulness and therefore other convictions for theft would do little to add to the proof of the deceptive nature of the accused. Unfortunately there are still exceptions to the rule as was the case in R v Renda [2005]20 in which the court seems to have regarded the conviction of the defendant for violence as relevant to untruthfulness. From all of the above the conclusion that can be drawn is that legislation has failed to provide a definitive answer in relation to the use and applicability of bad character evidence. The present system seems to offer little protection to the accused in court not to be questioned on their previous misdemeanours. This could in the future result in less defendants being prepared to give evidence in their own defence. The evidence above also seems to suggest that the original purpose of cross examination designed to assist in acquitting the innocent is more frequently employed to ensure a conviction of the guilty. Cross examination was designed with the hope of uncovering the truth but has instead been used as a weapon to convict an individual. References Allen, C, Practical Guide to Evidence, 2nd Ed, 2001, Cavendish Publishing Ashworth, A and Blake, M The presumption of innocence in English law [1996] Crim LR 306 E Criminal Justice Bill, House of Lords Briefing, Part 11 Chapter 1, Evidence of Bad Character, June 2003 Elliott, C, & Quinn, F, Criminal Law, 3rd Ed, 2000, Pearson Education Glazebrook, P R, Statutes on Criminal Law, 2001, Blackstone’s Huxley, P, & O’Connell, M, Statutes on Evidence, 5th Ed, Blackstone’s Law Com No 273, Evidence of Bad Character in Criminal Proceedings: A summary, 9 October 2001 Law Commission Consultation Paper No 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996) Law Commission Report No 273 Evidence of Bad Character in Criminal Proceedings (Cm 5257, 2001) McEwan, J, ``Previous Misconduct at the Crossroads: Which `Way Ahead? [2002] Crim LR 180. Murphy, P, Blackstone’s Criminal Practice, 2002, Oxford University Press Roberts,McEwan, and Darbyshire [1997] Crim LR 75, 93 and 105. Royal Commission on Criminal Justice (Cm 2263, 1993). Stephen, Sir JF, A Digest of the Law of Evidence, 12th Ed, 1936, Art 147 The erosion of Boardman v DPP’, New Law Journal, August 11 1995, p. 1224 DPP v Boardman [1975] AC 421, [1974] 3 All ER 887, 451, 904 Ebanks v R [2006] UKPC 11, [2006] 1 WLR 1660, Jones v DPP [1962] AC 635, [1962] 1 All ER 569 Lui Mei Lin v. The Queen [1989] A.C. 288 Maxwell v DPP [1935] AC 309 Murdoch v. Taylor [1965] A.C. 574 R v Britzman [1983] 1 All ER 369 R v Edwards and Rowlands [2005] EWCA Crim 3244, [2006] 3 All ER 882 R v Hall [1983] 1 WLR 350, 374, 355 R v Hanson [2005] EWCA Crim 824, [2005] 2 Cr App Rep 299 R v Highton [2005] EWCA Crim 1985, [2006] 1 Cr App Rep 125 R v McLeod [1994] 3 All ER 254, [1994] 1 WLR 1500. R. v. Miller [1952] 2 All E.R. 667 R v Renda [2005] EWCA Crim 2826, [2006] 1 Cr App Rep 380 R v Selvey [1970] AC 304, [1968] 2 All ER 497 R v Taylor: R v Goodman [1999] 2 Cr App Rep 163. R v Z [2000] 2 AC 483 Read More