Confusion Surrounding the Interpretation of Sections 101-107 of the Criminal Justice Act 2003 - Report Example

Confusion Surrounding the Interpretation of sections 101-107 of the Criminal Justice Act 2003 The Criminal Justice Act’2003 (2003, c.44) is an Act of Parliament to refine many areas of the criminal justice system in UK (England and Wales). It deals with the amendment of laws relating to criminal offences, bad character evidences etc. it aims at extending the circumstances, where the defendant could be trialed twice for the same offence when new and convincing evidence is filed up. It even imposed restrictions on the defense lawyer to cross examine prosecution witnesses about their own criminal record. This condition is itself a cause of confusion. Although inspired and informed by the recommendations of the Law Commission, it deviates in both text and strength from those recommendations in significant respects. The current scenario in the evidence of a defendant’s bad character is generally inadmissible, subject to a number of restricted common law but section 101- 107 lay down the circumstances or conditions under which such evidence could be admissible in future. It deals with the defendant bad character and provides the criteria for the defendant’s bad character to be taken as admissible. In a narrow aspect , section 101-107 provide an advancement to judge the defendant’s earlier statement and misconduct under which the relevant evidences or clues are admissible but if the court has firm ground to believe that the circumstances stated could affect the judgment on fair terms then the evidences can be excluded or overruled. The confusion in the interpretations lie in the current extent to which a non-party witness in criminal proceedings can be cross-examined about previous ‘bad character’ is very wide and engrossed with uncertainties in its perimeter (Durston, 2004) .As already mentioned above, the Criminal Justice Act 2003 replaces the common law governing the circumstances for defining the defendant’s bad character with a new legal system in section 100 of the Act. This stipulation may restrict the extent to which witnesses can be cross-examined about their past behaviour; however, its limits remain unclear and will need to be made clear and precise by judicial system. The Criminal Justice Act 2003 led a new system for determining the admissibility of bad character evidence in criminal proceedings. Unlikely, this system is linked with incongruity and inconsistency. These problems make the entire system proceedings unclear so as to what constitutes ‘bad character’ evidence. This uncertainty is caused to the fact that the Act offers vague clues as to the meaning of the words ‘reprehensible behaviour’ Goudkamp. J (2008). evidence of which is ‘bad character’ evidence on which the authorities or the concerned people offer inadequate guidance making it more complex and difficult to comprehend. The implementation of the Act has infact adopted a different approach to non-defendants and defendants bad character. Non-defendants are given protection in the law for the first time against their bad character being exposed unless they stand offender on the parameters of 'enhanced relevance test'. A defendant's bad character evidence is not subject to the 'enhanced relevance test' but is admissible if it is relevant to an important matter in issue subject to the court's discretion is itself a subject leading to the confusion of the relevance of the test. The effect of the changes made in the rules place the non-defendants in a safer position from the attacks on their characters than was done earlier. The Act provides a complicated system of “gateways” which are set out in s.101. The basic rule is that evidence of bad character is only admissible if it can be brought through one of the gateways. Section 101 provides that in all in criminal proceedings evidence of the defendant's bad character is admissible if: a. All parties to the proceedings agree to the evidence being admissible, b. The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, c. It is important explanatory evidence, d. It is relevant to an important matter in issue between the defendant and the prosecution, e. It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, f. It is evidence to correct a false impression given by the defendant, or g. The defendant has made an attack on another person's character. (Wikepedia, 2003) Section 102 deals with the “Important explanatory evidence” Section 103 deals with the “Matter in issue between the defendant and the prosecution” Section 104 resolves the “Matter in issue between the defendant and a co-defendant” Section 105 provides “Evidence to correct a false impression” Section 106 confirms the “Attack on another person’s character” Section 107 makes sure to “Stop the case where evidence is contaminated” The confusion is that according to the section 101(a) it makes no sense in excluding evidence, if all parties agree that it should be admitted. In this case there is no legal discretion to exclude evidence; a defendant may lead evidence of his bad character, if he chooses, and whether or not the co-defendant agrees. However evidences can throw light on the hidden aspects of the case, whether it is important or not can be judged only when taken into consideration while the trial is on. If the court is satisfied that the defendant is responsible for giving a false impression then the evidence of his bad character will be admissible. However, a defendant is not responsible for a declaration if he either backs up or disbands himself from it, acc to section 105(3) the confusion in the interpretation arises as the Act does not elaborate on how this must be done. Section 99 abolishes the old law rules on what is still called ‘similar fact’ evidence in respect of bad character evidence. It was also claimed at times that the ‘similar facts’ rule was not engaged when the reasoning process went, not from the disposition of the accused to commit crimes , but in the direction from his having committed the actual crime charged to his having the disposition to commit such crimes. Evidence although that is prejudicial but not necessarily evidence of misconduct is still admissible under the enhanced relevance. So now we have confusion whether to go for Evidence of a propensity which is not actually bad character, governed by the common law or evidence of propensity which is bad character, governed by the Act. As per the court of Appeal the confusion can be clearly seen in the case of R.v. Highton; R.v. Van Nguyen [2005] EWCA Crim 1985, 28th July 2005 Lord Woolf Chief Justice gave the judgment of the Court that till the Court comes to a conclusion judges should work on the assumption that s.78 provides an additional protection for a defendant in addition to s. 101 (3) and s. 103 (3) to avoid any sort of injustice to a defendant. Acc to the clause “important explanatory evidence” under s.101 (1) (c.) if the court finds that the evidence is both important and explanatory it is unlikely then to exclude the evidence under any discretionary powers. The same is true of evidence “given to correct a false impression” under s. 101 (1) (f). If the court has found the test of admissibility has been passed then bearing in mind that only such evidence as is “necessary to correct the false impression” will be admissible it would again seem to be unlikely that the court would seek to exclude the evidence pursuant to s.78. Just because a defendant had previous convictions for a similar offence did not mean that he was guilty of the offence with which he had been charged. Juries now are encouraged to judge on the basis of their knowledge of a defendant’s previous convictions rather than the evidences produced. In another case of R.v. Edwards; R.v. Fysh [2005] EWCA Crim 1813, 29/06/05 The jury was instructed not to place undue reliance on previous convictions. It was clearly stated that relevance will not be dependent only on the section of 101 (1) CJA 2003 though the evidence admitted through gateway (g.) (Attack on another’s character could be relevant to propensity. Confusion in the interpretation lies in understanding when Evidence under (c.) and (f.) in the above mentioned clauses do not require judicial leave and are not subject to the power to exclude under s. 101 (3). Evidence under (d.) and (g.) also does not require judicial leave but are subject to s.101 (3). It is unclear from the Act what the intention of Parliament was in this respect. Clause (d.) Section 101 is probably the single most controversial provision in relation to bad character, as per the interpretation of the Criminal Justice Act, 2003 juries will be encouraged to convict on the basis of their knowledge of a defendant’s previous convictions and therefore there will be cases in which juries will convict on that basis rather than the evidence proving the culpability. When considering what was just under s.103 (3) and the fairness of the proceedings under s.101 (3) a judge could take into consideration the degree of similarity between the previous conviction and the offence charged. This provision will be complicated as it will to require judges to evaluate evidence and make decisions on matter of fact. It is however inevitable as the judge will have to decide whether the evidence is capable of providing evidence from which the jury could surmise susceptibility. An important rule of criminal evidence is that evidence of a defendant’s previous misconduct is inadmissible. The usual justification for this rule is that, in most cases, such evidence is either irrelevant or likely to have an unduly prejudicial effect on the fact-finder however, the statistics suggest that those with previous convictions are much more likely to affront than are those without a criminal record (Mike Redmayne, 2003) which implies that evidence of bad character will usually be relevant to justify its admission as proof of remorse.   One respect in which the new law does depart from the old is that the gateway applies when the accused chooses not to testify, but has made his attack in an earlier statement. It should be noted that any attack upon a witness in court is subject to strict conditions and guidelines in section 100 (Renda, 2003).None of these, however, apply to the evidence of the accuser’s bad character and that evidence is admissible both as to issue and to credibility However it can be said that the provisions of CJA were brought into force, somewhat prematurely, in December 2004. The new rules were, despite some unhelpful drafting, held to apply to all trials that commenced after that date, irrespective of proceedings being already in train, or of their taking the form of a rehearing after reference from the Criminal Cases Review Tribunal of a case initially determined under the old rules. A major Public confusion lies in the over sentencing and anxiety over early release schemes that would a major concern for all involved in the criminal justice system. REFERENCES Criminal Justice Act, 2003, (2003, 23rd Dec), Explanatory Notes to Criminal Justice Act 2003 [Online], C-44. Available: http://www. Criminal Justice Act 2003.mht [20th April, 2008] Criminal Justice Act, 2003, (2008, 25th Feb), Criminal Justice Act 2003 From Wikipedia, the free encyclopedia [Online] Available: http://www. Criminal Justice Act 2003 - Wikipedia, the free encyclopedia.mht [20th April, 2008] Durston .G (2004). Bad character evidence and non-party witnesses under the Criminal Justice Act 2003, Vol 8, Issue 4, 233-239. Goudkamp. J (2008). Bad character evidence and reprehensible behaviour, Vol 12, Issue 2, 116-140 Renda, (2003) Bad Character of the Abused Section 106(1) (c) p. 187) Redmayne .M (2003), The Relevance of Bad Character, 61. 684-714 Read More