Criminal Justice Act in 2003 - Research Paper Example

CRIMINAL JUSTICE ACT, 2003 The Criminal Justice Act 2003 includes a provision which permits the admissibility of a person’s ‘bad character’ to be submitted in court, as evidence in criminal proceedings. The term ‘bad character’ is defined in sec. 98 of the Criminal Justice Act as follows: “References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which – (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 the offence.” (OPSI, 2010). The term misconduct is defined by section 112 of this act as: “the commission of an offence or other reprehensible behaviour” (OPSI, 2010). Prior to the introduction of this act, such evidence including any previous convictions of the individual concerned was inadmissible in court, in criminal proceedings. However there was an exception to this rule – the ‘similar fact’ evidence which allowed for such evidence, regarding the person’s bad character to be presented in court which dealt with their previous misconducts relevant to the case. However, such an exception was regarded as highly detrimental evidence since in a majority of criminal cases, the exclusionary rule was likely to outweigh the purpose for which it was included and act against, rather than in favour of the case. Hence this rule was reversed by the Criminal Justice Act of 2003 to include a more inclusionary perspective with regard to admissibility of evidence of the person’s bad character, thereby converting the exception into a general rule. Thus according to this new inclusionary rule, both – the person’s previous records related to his / her convictions and / or acquittals could be presented and used in court as admissible evidence of their bad character. The definition of bad character also included offenders below the age of fourteen, and all offences committed below such an age, were also permissible as evidence of his/her bad character (Sec. 108, OPSI, 2010). This rule was hence subject to critical review. According to the Joint Committee on Human Rights, admissibility of such evidence would threaten the right of the individuals to a fair trial since any evidence regarding his/her past misconduct can be admitted in court regardless of its evidential value. It is highly likely that such evidence presented in court might be prejudicial in nature and hence lead to wrong judgements. It is likely to sway the decisions of the jury against the accused purely on the basis of their previous misconduct which proves their bad character, and convict them owing to moral disgust. Such evidence of previous misconduct which offers proof of an individual’s bad character, serves as a gross violation of an individual’s right to free trial, as well as the rule that allows for presumption of innocence until proven guilty. Hence, more often than not, such a rule is likely to convict an individual not on the basis of his /her current status but more so, on account of their previous offences which categorizes them as persons who are capable of committing such an offence. It is also highly likely that the evidence in certain criminal cases, which is based on the bad character of an individual, is likely to weaken the case and tilt the judgement of the jury towards a decision which goes against the accused. Owing to such reasons, the use of the bad character rule is widely debated and criticised and hence reformed subsequently. It was largely argued that an individual’s previous misconduct should not act as an obstacle in giving him /her an opportunity for a free and fair trial and they should not be condemned for their past actions. Sec. 98 of the criminal justice act 2003 which defines the term bad character has broadened the scope of the term as used in several criminal cases. The rationale behind broadening the scope of this rule, was to give prudence to the fact that such matters require an admission of guilt, by the defendant. Such an admission of guilt or innocence can then be used in favour of the individuals to grant them a fair trial and which can be used to prove their character as indicative of culpable behaviour. Substantiation of such facts, which are competent to be used in accordance with the definition of misconduct as defined by Sec. 112 entails the use of prior convictions or acquittals of such individuals, including allegations against them which were never tried or complaints which were never registered against them. It should also be noted, that the evidence of bad character is not solely confined to or restricted to previous convictions or acquittals alone. As clearly stated in the definition in Sec. 112 it also includes other reprehensible behaviour as well. The meaning and relevance of the term other reprehensible behaviour has been widely debated by academicians and scholars alike. According to them, it may include such behaviour as: compulsive lying, addiction to alcohol or tendency to consume alcohol in excess, defaulter in debts, gross violation of rules at workplace, failure to obey rules, absenteeism, infidelity, promiscuity etc or any other similar conduct which is morally and ethically wrong. It also includes acts of racism, bullying or other similar disciplinary acts at work place. Thus the scope of the term misconduct is wide in nature, which in turn widens the scope of bad character and the evidences which can be permitted in court during criminal trials. This act allows for inclusion of all relevant evidences related to the previous misconduct of the defendant or a non-defendant, including all previous acquittals or convictions, as well as current trials where the decision is still pending, except in cases where they can be excluded, due to appropriate reasons. Although the definitions of the terms bad character and misconduct have been broadened by the reforms, the meaning and scope of the term ‘reprehensible behaviour’ is still restricted and its interpretation is regarded as relatively difficult as compared to the previous two terms (Munday, 2005). It has been further argued that the offenses committed by an individual in the past, or his/her previous bad reputation, conduct or character is immaterial to the issue of guilt and hence should not be used as evidence, since if it is used as permissible evidence in court, in criminal proceedings, it may seriously distort the fairness of the trial and prove to be potentially damaging for the individual concerned. The jury who are presented with an evidence of previous conviction of an accused may get swayed on account of such evidence and assume that the accused is capable of committing the crime for which s/he was previously convicted based on the admissibility of evidence of bad character. Such negative attitudes towards an individual may prove to be disastrous and lead to a judgement which is against their favour. Similarly if an individual was acquitted for want of evidence and despite committing a crime, was proved innocent, then such previous evidence can also prove to be harmful, if permitted in certain grave criminal offences, for instance, offences against children. On the other hand, conviction of an individual in the past, if presented as evidence in a criminal proceeding may put such an individual at a serious risk of prejudicial attitudes on the part of the jury. It has been proved in the past that even the jurors who have been specially trained for criminal cases, may also get swayed by the evidences of past misconduct against the individual being tried in court for a criminal offense and the jurors may ultimately, pass a decision disproportionately against such an individual. Furthermore in absence of the reforms which were introduced in the criminal justice act of 2003, there was a high possibility that the permissibility of evidence of bad character in the criminal proceedings might completely remove the initial reluctance which prevents the jury from harbouring biased views against the individual accused of a crime, on the basis of the assumption of natural innocence until proven guilty rule. There are, however, various exceptions to this rule, where the evidence of bad character can prove to be extremely crucial and relevant to a particular case. For instance, in cases where the accused has been convicted of causing serious bodily harm to another individual with an intention to cause such harm or injury, ultimately leading to the death of the victim, such an evidence can be considered as important and crucial for convicting the accused in a murder trial. Similarly if the accused has a history of committing similar offenses in the past, in the exact same manner and pattern, which is identical to the offense for which s/he has been accused, then in such cases the evidence of bad character or previous misconduct can prove to be extremely important in bringing justice to the victims. Furthermore in case the accused – himself or through his lawyer, questions the honesty and integrity of the prosecution witness, then he can be interrogated for dishonesty he is willing to offer evidence on his behalf. If however, he decides not to offer any such evidence and it is absolutely necessary for the case to acquire the same, then the court may interfere in the matter and take action against his failure to do so. However, prior to this reform, if he fails to provide any evidence then the evidence of his previous bad character cannot be admissible in court. Since this hardly makes much sense, it was proposed to change this rule in order to empower the prosecution witness and enable them to offer the evidence of their own bad character in front of the jury. The reforms thus were intended to correct this falsity in law and allow for a better judgement on the part of the juries, by offering evidence of an accused person’s bad character. However on the other hand, if the accused shows based on his past conduct that he is incapable of committing such a crime, then such untruthful evidence can also be admitted in court. This may lead to misleading results, whereby the individuals who may have been capable of committing a given offense based on past evidence but did not actually commit it in reality, may be wrongfully convicted by the jury. The situation is even grave in cases of serious criminal offences such as terrorist acts whereby if the person accused of committing such a crime, fits the description with no actual evidence against them, then such evidence, may owing to public pressure lead to wrongful arrest of that individual. The reforms thus were needed to correct and prevent such a mistake whereby overriding evidence of a person’s previous bad character which fits the description but with no actual evidence, cannot be admissible in court, since it has limited value and it is highly likely that some other individual/s may have had similar opportunity to commit the crime for which s/he was arrested. It is hence, highly likely that the police may wrongfully arrest an individual based on past misconduct and in the absence of total lack of substantial evidence. In sensitive criminal cases such evidence acts as a poor tool and holds limited value, and hence cannot and should not be permitted to be used in court, during any prosecution. The reforms introduced sought the restore the basic human rights of all individuals in such cases where the evidence of bad character may or could be used against them. Such reforms would ensure that the individual may not be accused of a crime, purely based on his/her previous misconduct and holds no relevance to the present case or his/her present behaviour. The accused can now avail the benefits of basic human rights i.e. the right to a fair trial, devoid of any previous prejudice resulting from knowledge of his/her past misconduct and withhold their legal right to be treated as innocent until proven guilty. 2. The issues related to guilt or innocence are highly trivial particularly when viewed in terms of a serious criminal trial, and the evidence is highly crucial for arriving upon a decision. In such cases, it is necessary to rely upon the guidance of an expert to prove or offer substantial evidence which proves or dismisses the presence of guilt or innocence as it pertains to the case. However, developing proper rules which governs the admissibility of such evidence in courts appears to be almost impossible, since all attempts to do so have failed in the past. The criminal law in the UK has evolved over the years with various reforms introduced from time to time to ensure maximum justice and protection of basic human rights of all the accused, as well as their right to be considered innocent until proven guilty. However in various criminal cases such rights are often subject to frequent violations owing to the nature of the crime and the rules governing admissibility of evidence which may convict the accused. In certain cases expert evidence is required to be presented as evidence in criminal proceedings. Police officers investigating a certain case are required to testify in court by offering their expert opinions against the accused, which is then used by the jury to decide upon their verdict. It has been argued however, that expert evidence of "doubtful reliability" if allowed to be admitted freely and in turn accepted readily by the jury, could prove to be fatal for the case and lead to wrongful conviction of the accused. Unreliable expert evidence is known to distort the true, factual and fair understanding of the case thereby tending to mislead the judgement. For instance, in Hodges [2003] 2 Cr App R 15 the defendants were criminal drug dealers and the police officer, investigating the case was called upon to present expert evidence, who stated that the drugs obtained in possession of the defendants, were in quantities which exceeded the legally permissible limit for personal use and hence were guilty. The expert evidence in this case on the part of the police officer was admitted on account of the fact that the officer had substantial knowledge of the issue, had undergone extensive training, and had experience of 16 - 17 years which affords him the liberty to present his expert opinion. The defence objected to the evidence presented in court arguing that it cannot be used against the defendants despite being provided by an expert, unless those who supplied such information to the officer were also presented as witnesses. This argument was however rejected by the court stating that the defence may challenge the officers evidence but only through cross-examination, since "it is not necessary for the various people to whom the witness had spoken to be called before the witness could give expert evidence based on what they had said" (N.A., 20081). The use of expert evidence is required in several criminal trials in order to determine various disputed issues. Presenting evidence in such crucial issues requires expert knowledge, hence the evidence presented by experts is used in a majority of criminal proceedings in order to accurately arrive at a fair judgement. However, the credibility of such expert evidence is often questioned and unreliable and it is impossible to determine their credibility for instance in cases involving presenting of scientific or medical evidence. The validity of the methods employed by the experts cannot be completely and thoroughly verified which further accentuates the problem, leaving the jury to rely on the opinion of such experts. There have been various instances where the expert evidence was admitted readily regardless of innumerable successful and highly publicised appeals with regard to the credibility of such evidence and the opinions of the experts. Such instances indicate a grave danger of wrongful convictions or acquittals. In United States v Addison 498 F 2d 741 (1974) 744 it was stated that "scientific proof may in some instances assume a posture of mystic infallibility in the eyes of the jury of laymen" who may readily rely on such evidence thereby arrive at false judgements. It is further observed that “there is virtual unanimity among courts and commentators that evidence perceived by jurors to be scientific in nature will have particularly persuasive effect (Great Britain Law Commission, 20092) In case of Sally Clarke, a qualified solicitor from Wilmslow, Cheshire was convicted for the murder of her two sons and later on was found to be innocent and subsequently acquitted. The admissibility of expert evidence in this case was highly controversial, where by the expert opinion was adjudged to be of supreme significance resulting in the wrongful conviction of an innocent mother, which later on culminated in her death. Similarly in another case, Angela Cannings was wrongly convicted of murdering her two babies only to be cleared of the charges later on. The admissibility of expert evidence is a highly critical aspect of criminal justice law, considering the emotional and / or psychological impact it may have on the accused who are wrongfully convicted of serious crimes. It also brings into question, the fact that in cases involving the help of experts such as forensic or medical experts in the cases discussed above, the possibility of human error is largely ignored and the word of the experts is taken much too seriously, often leading to wrongful conviction of the accused and the impending irreparable psychological damage. The admissibility of hearsay evidence in courts of law during criminal proceedings is also highly debatable since such evidence is highly controversial in nature and may lead to wrongful conviction of the accused in the absence of current substantial proof against them. In case of hearsay evidence, the reforms were meant to encourage the practitioners to focus on the principle that all ‘relevant’ hearsay evidence must be treated as important and must be potentially admissible in court. In cases where the issue of guilt or innocence is at stake, there is always a predicament in terms of laws, since on one hand the rules can prevent an accused from being wrongfully acquitted while on the other it may safeguard the guilty from being rightfully convicted. Although various changes and reforms have been introduced in the criminal law which focused on the need to develop appropriate laws which dealt with such issues as guilt or innocence in extremely sensitive criminal cases, it has only led to the development of a set of highly complex rules and exceptions. For instance, in effect, the law allows the accused the right to conceal his/her ‘bad character’ by providing them their basic human right to plead guilty or innocent, or the fact that they have had previous serious convictions in other cases by the jury to be prevented from disclosed in court. Although, in a majority of cases, the onus of proving the innocence or guilt of the accused lies on the jury who is responsible to assess and substantiate the credibility of claims made. Such a rule which enables the accused to conceal their innocence or guilt in criminal cases may prove to be highly prejudicial and lead to the passing of a wrong judgement. It can be argued that the rule which states that the accused should be presumed to be innocent until proven guilty is fair and valid, however, the presumption of the credibility of witnesses including those who are accused, is highly controversial. The standard argument which is offered to substantiate this rule is that, the evidences of previous convictions may influence the jury regarding the guilt or innocence of the accused, even before the case is duly proved in court. But this calls on another counterview which questions the rule, on the grounds that the jury is adequately capable of arriving at a fair judgment and not get dissuaded on the basis of previous evidence presented in the court. The fact that the presumption of innocence is required to be upheld owing to national and international laws is acceptable, however it can be argued that any rule should not tend to oblige an individual to ignore the facts and pass judgements on the basis of previous evidence of misconduct or bad character which proves that the individual who is accused of a crime in the current case is guilty. The rule concerning double jeopardy is regarded as one of the most crucial principles which have turned around the criminal justice systems in a substantial manner. This rule seeks to offer judicial protection to an individual who has been prosecuted and at the same time, it offers more legal certainty to the existing laws thereby eliminating misjudgements and wrongful acquittal of the guilty. However, if such a rule is applied in a highly sensitive criminal case, for instance, and where the individual accused of the crime, is acquitted for want of evidence and compelling evidence later emerges against such an individual, the person who was previously, and wrongfully, acquitted under the double jeopardy rule, is most likely to result in acquittal of the guilty and conviction of the innocent. This rule thus violates or contradicts the very basis of law and justice, and the purpose for which it was established. Rather than providing more credibility and certainty to a case, it weakens the case in favour of the accused and in the process bring disgrace to the law. In conclusion, it is true that in certain cases dealing with innocence or guilt, highly sensitive evidence may tend to sway the decision of the jury, especially in the absence of a coherent rule which prevents such a verdict. Although there is strong and visible evidence in law, which states that establishing such a rule is highly impossible and exceptions and loopholes are likely to weaken the case in favour of the guilty. It also on the other hand, points to a need for developing some robust mechanism which can ensure justice for both – the victim as well as the guilty. Bibliography: OPSI (2010). Office of Public Sector Information, Criminal Justice Act 2003 Accessed: May 14th 2010 [internet] Available from: OPSI (2010). Explanatory Notes to Criminal Justice Act 2003 [online] Accessed: May 15, 2010 from: < http://www.opsi.gov.uk/acts/acts2003/en/ukpgaen_20030044_en_1> Gibson, B., Watkins, M., (2004). Criminal Justice Act 2003: A Guide to New Procedures and Sentencing, Waterside Press Munday, R. (2005) What Constitutes Other Reprehensible Behaviour under the Bad Character Provisions of the Criminal Justice Act 2003. Criminal Law Review 2005, Pp. 24-43. A Bill of Rights for the UK?: Oral and Written Evidence, (2008). The Stationery Office, Vol. 2 Twining, W. L., (2006). Rethinking Evidence: Exploratory Essays, Cambridge University Press Read More