Confusing in Approach to the Purpose of Cross-Examination - Essay Example

225891 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. In order to assess the changes in the purpose of cross examination over the last twenty five years it is necessary to examine the intended purpose of the Criminal Evidence Act 1898 s1(f). This Act was introduced in response to the need to make the accused competent to testify in his own defence. The original wording of s1(f) (ii) stated that (f) A person charged in criminal proceedings who is called as a witness in the proceedings shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than the one with which he is then charged, or is of bad character, unless- (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or the deceased victim of the alleged crime The intention of the Act was to ban the prosecution from cross examining a defendant on previous convictions, previous crimes they had committed and any evidence of bad character. The insertion of s1(f) (ii) removed the right not to be cross examined if the accused has attempted through his defence counsel to attack the character of the witness in order to diminish their evidence against him. This form of attack was frequently employed in rape cases where the defence would often resort to questioning the victim regarding their previous sexual experiences. According to Bohner et al (1998) part of the reason why rape is so infrequently reported is due to the ‘stereotypic beliefs about rape that blame the victim and exonerate the rapist’. It was always intended that the judge would have the discretionary power to refuse to allow the defendant to be cross examined on their previous convictions, but in reality this has very rarely happened1. Up until the recent introduction of the Criminal Justice Act 2003 bad character evidence of an accused was admissible only if the evidence could be regarded as similar fact evidence. This meant that the prosecution had to show that the defendant had committed similar crimes, using a similar method, in the past in order for these to be adduced in court. The impact of the 2003 Act has extended the similar fact requirement such that a propensity towards a particular offence can be adduced to demonstrate the guilt of the accused. In the past someone charged with a robbery was only likely to have previous robbery charges raised in court if the offence was committed in a similar manner. Under the 2003 Act any crimes of dishonesty can now be included in the evidence of bad character, where an accused has been charged with robbery, to show that the defendant has a propensity towards crimes of dishonesty. In this way the crimes committed do not have to bear any similarity to the crime that the accused has been charged with. When considering the use of bad character evidence the courts have struggled with determining the weight that can be attached to the previous conduct of the accused. The House of Lords attempted to address the relevance of previous convictions in the case of Maxwell v DPP [1935]2 emphasising 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.’ The defence in Jones v DPP [1962]3 felt that allowing the cross examination of an accused in relation to their previous bad character put the accused at a disadvantage in being able to prepare their responses away from the scrutiny of the jury. In general terms cross examination in relation to bad character was envisualised to only be applicable in relation to previous convictions, however, the court decided in R v Z [2000]4 that if evidence of acquittals was allowed to be offered to the jury then the prosecution should be entitled to cross examine the witness in relation to that acquittal. In this case the accused had tendered evidence of his acquittal on a previous charge of rape. The court stated that it was entirely in order for the prosecution to cross examine the defendant on this matter even if the result of the cross examination should prove that the defendant had been wrongly acquitted of this crime so long as the defendant would not be placed in a double jeopardy situation. Viscount Sankey in this case voiced his distaste at the relaxation of the exclusionary rule in this matter stating ‘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 use of cross examination in relation to bad character has continually been applied in a varied number of ways over the years. In the case of R v Selvey [1970]5 the judge ordered that cross examination had to be restricted to previous convictions for similar offences whilst also allowing the prosecution to explore the facts of these previous convictions with the aim of revealing the ages of the victims from the previous convictions. This was done so as to allow an inference to be drawn as to the prevalence of the accused for concentrating his sexual attention on victims of a certain age. In 1994 the judge in the case of R v McLeod6 stressed that the primary purpose of cross examination must be relevant to the credibility of the accused and can only indirectly aver to his guilt rather than a propensity for the commission of certain crimes. In this case cross examination was allowed not only of similar fact crimes that had been committed for also those were the crimes were dissimilar. The previous convictions that the prosecution were allowed to cross examine the defendant on involved one were the accused had previously offered a false alibi which was similar to the defence offered in the instant case. The one were the facts were dissimilar were in relation to violence used in a previous robbery which bore no resemblance to the offence in question. This was tendered to the jury to demonstrate the violent nature of the accused to substantiate the present charge of robbery with violence. The Law Commission have been asked on several occasions to consider reform on the issue of the use of evidence of bad character. In 1972 the Criminal Law Revision Committee reviewed the use of bad character evidence where they proposed that the retention of the existing system whereby the prosecution was entitled to cross examine an accused about previous convictions. In the report they stated that evidence showing disposition was relevant and that the requirement of similar fact evidence had become too stringent. They also stated that the adducing of bad character evidence was too inconsistently applied. The issue of reform was raised again in 19947 on the grounds that the present system of the use of cross examination in respect of bad character was too complex and not being applied consistently. The paper was finally published in 1996 proposing the exclusion of evidence in cases where it was impossible to instruct the jury or magistrates as to the weight or use that could be made of that evidence8. In the report the Commission regarded the acquittal of an innocent person as more important that the conviction of a guilty person. In this report the Commission expressed their concern on the imputations that could be drawn from the admissibility of bad character evidence based on cross examination as this meant that only those defendant’s that chose to give evidence at trial could be questioned on their previous convictions. The Commission felt that this might discourage an accused from taking the stand so as to avoid having to disclose their previous convictions. In a subsequent and final report published by the Law Commission in 20019 the paper seemed to favour an increased reliance on the ability of a jury to be able to weigh the importance of the bad character of the accused. In the Report the Commission noted 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 misconduct10. The report was concerned that the initial use of bad character evidence envisaged by the Criminal Evidence Act 1898 had been artificially extended in such a way that any relevant conviction could be adduced regardless of whether these should similar facts to the matter at hand11. It was suggested that the test that should be applied should be to determine whether the adducing of the evidence would be more probative then prejudicial12. The difficulty with this test is that there is likely to be a conflict in the assessment of prejudicial value and probative value. In assessing the probative value it is obvious that the evidence is always going to be prejudicial to the defendant as the jury are going to be made aware of the previous convictions of the accused. The report offered no firm guidelines to the court in how to determine when the prejudicial value should be override the probative value and instead left this to the discretion of the court13. In an attempt to correct the use of bad character evidence adduced through cross examination the Criminal Justice Act 2003 included a section at Part 11 to deal with such issues. In R v Hanson [2005]14 the courts stated that the purpose of the use of bad character evidence was ‘. . . 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 recognised in R v Edwards and Rowlands [2005]15 that it was apparent that Parliament intended that evidence would be put before juries more frequently than hitherto had been the case. According to s101(1) of the Criminal Justice Act 2003 …bad character is admissible if, but only 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. Since Hanson the courts have moved away from the old notion 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 established the notion 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]16 endorsed this notion stating 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. These principles still fail to be unilaterally applied as was demonstrated in R v Renda [2005] EWCA Crim 2826, [2006] 1 Cr App Rep 380, [24] in which the court seems to have regarded the conviction of the defendant for violence as relevant to untruthfulness. In order to afford a greater degree of protection to victims or witnesses the government included a greater degree of protection from cross examination within s100 of the CJA 2003. In this section it states that In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible. Despite the suggested protection afforded by the above inclusion in the Act according to Temkin and Krahe (2008) conviction rates for rape have fallen considerably since 1979, were 32% of reported cases resulted in conviction, in comparison with a conviction rate of 5.6% in 2004/ 2005. They blame the low conviction rate on the failure of victims to report such crimes for fear of having their sexual behaviour criminalised in order to exonerate the accused. In general terms the amendments to the CJA 2003 have afforded a degree of protection to witnesses in that the defence have to establish the probative value of the questioning in order to be able to adduce the bad character of the witness; however this is an easy obstacle to overcome in many cases, especially with regard to rape. The principles of bad character evidence continue to be applied in a random manner despite the attempts of the government to offer guidelines through legislation. The conclusion that can be drawn from the above is that despite legislation designed to regulate the usage of bad character evidence there are still inconsistencies in the way in which this is applied. The continued allowance of the prosecution to question an accused on previous convictions remains and is in some ways more vigilantly applied then previously. It would appear that the purpose of cross examination, though designed to be aimed at acquitting the guilty, is still more frequently used to ensure a conviction. Cross examination was supposed to be used to determine the truth of the matter but instead is used as a tool to ensure the conviction of the individual. The attempts to rectify this problem have to date been unsuccessful and it is difficult to envisage any piece of legislation being able to achieve fairness in this area as the allowability of previous convictions to be heard before the court is always likely to be prejudicial to the accused. The use of cross examination of these previous convictions is justified based on the probative value of the questions. It is more likely for an accused to refuse to testify in situations were they have extensive previous convictions as this is one way in which they can avoid being cross examined about these. 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 Bohner, G., Reinhard, M. A., Rutz, S., Sturm, S., Kerschenbaum, B., & Effler, D. (1998). Rape myths as neutralizing cognitions: Evidence for a causal impact of anti-victim attitudes on mens self-reported likelihood of raping. European Journal of Social Psychology, 28, 257- 268. 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 Temkin, J and Krahe, B, Sexual Assault and the Justice Gap: A Question of Attitude, 2008, Hart Publishing Ltd 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 Maxwell v DPP [1935] AC 309 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 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