We continued our look at evidence of bad character.

IMPORTANT MATTER IN ISSUE BETWEEN DEFENDANT AND PROSECUTION (s101(1)(d)) is potentially the widest and most far-reaching gateway. The evidence, to be admissible, must have relevance either to a fact in issue or to the credibility of the defendant.

Matters in issue between defendant and prosecution include (s103(1)):

whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
whether the defendant has a propensity to be untruthful.

Evidence of propensity to commit offences of the kind with which he is charged may, by virtue of s103(2), be shown by proving that the defendant has been previously convicted of an offence either of the same description or the same category as the one with which he has been charged.

An offence of the same description is one that would have been written in the same terms in the charge or indictment (s104(4)(a)), so if a defendant is charged with rape and has two previous convictions for rape, those previous convictions would normally be admissible to show he has a propensity to commit offences of the kind with which he is charged.

Categories of offence are defined by the Secretary of State (s103(4)(a)). Two categories of offence have so far been prescribed: the Theft category and the Sexual Offences (persons under the age of 16) category. The previous convictions of defendants charged with an offence listed within either category will be disclosed to the court as evidence of propensity where the convictions are listed within the same category. Included within the Theft category are offences of theft, burglary or aggravated burglary where the intention is to steal, robbery, taking a motor vehicle without consent, aggravated vehicle taking, handling stolen goods, going equipped for stealing and making off without payment. The Sexual Offences category is equally wide, covering rape, intercourse with a girl under 16, incest, indecency, indecent assault and a whole range of other offences committed on persons under the age of 16.

Also admissible as evidence of propensity under s101(1)(d) will be evidence of misconduct previously admitted under similar fact evidence rules. Although CJA 2003 has abolished common law rules, it is likely that much of the case law on similar fact evidence will remain relevant, hence a short explanation of the previous law is necessary.

MAKIN v ATTORNEY-GENERAL FOR NEW SOUTH WALES [1894] was the first case to lay down rules for the admission of similar fact evidence. The case involved the trial for murder following the death of a baby who had been in the care of the Makins. It would seem that the couple ran an unofficial adoption service, taking on the care of children in return for payment by the parents. The prosecution was allowed to admit evidence that the bodies of 13 other babies had been found buried in the grounds of properties previously inhabited by the Makins. Lord Herschell in the Privy Council laid down the important rule that evidence of propensity or disposition to commit the sort of offence charged is insufficient unless that evidence is relevant to an issue before the jury. That rule remains of importance, in light of s103(1): evidence of propensity is admissible except where his having such a propensity makes it no more likely that he is guilty of the offence.

By way of example, suppose the defendant was charged with burglary and had six previous convictions for burglary. Under similar fact evidence rules, evidence relating to those previous convictions would be inadmissible because that evidence shows no more than a propensity to commit burglary. Suppose the burglary with which the defendant was charged was committed at 7 Elm Road; his six previous convictions for burglary related to offences committed sequentially at 1, 2, 3, 4, 5 and 6 Elm Road. In those circumstances the previous convictions might be admissible as similar fact evidence because the evidence has a high degree of probative force in identifying the defendant as the offender in the present case.

s101(1), (3) provides a discretion to exclude evidence under s101(i)(d) where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In exercising this discretion, courts must pay particular regard to the length of time between the matters to which the evidence relates and matters which form the subject of the offence charged (s101(4)).

s103(1)(b) admits evidence of a propensity to be untruthful, although evidence is inadmissible under this paragraph except where there is a suggestion that the defendant has been untruthful in the present trial.

IMPORTANT MATTER IN ISSUE BETWEEN DEFENDANT AND CO-DEFENDANT (s101(1)(e)) allows evidence of bad character to be admitted where it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. This gateway will apply where two defendants run “cut-throat” defences, each suggesting the other is the guilty party.

RANDALL [2003] provides a good illustration, although it was decided before CJA 2003 came into force. Two defendants were jointly charged with murder and ran cut-throat defences, each blaming the other for the murder. The first defendant’s previous convictions were serious and included convictions for violence; the second defendant’s convictions were minor. Their different convictions suggested that the first defendant was the more likely assailant. It is probable that, had s101 been in force, the first defendant’s convictions would have been admissible under s101(1)(e) as having a substantial probative value in relation to an issue between defendant and co-defendant.

CREATING A FALSE IMPRESSION (s101(1)(f): a defendant who suggests that he is honest and hard-working, yet has previous criminal convictions for dishonesty, is likely to fall foul of this gateway. s105(1) lays down that only such evidence as has probative value in correcting the false impression will be admitted, so where a defendant suggests he is honest but has a conviction for theft, that would be disclosed to the court. If he also had a conviction for assault, that would be inadmissible.

An accused will be “responsible” for creating a false impression through his own testimony in court, through responses made to questioning at a pre-trial stage, or through the testimony of defence witnesses or through the response of a prosecution witness during cross-examination (s105(2)).

s105(2)(a) states that a false impression may be created by a defendant through his conduct in the proceedings. Clearly, a defendant who purported to be a vicar by wearing a “dog collar” would be caught by this paragraph.

MAKING AN ATTACK ON ANOTHER PERSON’S CHARACTER (s101(1)(g)) allows admission of evidence of bad character where a defendant impugns the character of any other person. Under the previous law defendants could freely attack persons who were not called as witnesses by the prosecution; under s101(1)(g) no attack can be made upon anyone, so a suggestion that a third party might have committed the offence with which the defendant is charged will open this gateway.

PRIVILEGE. Although the general principle of litigation, civil or criminal, is in favour of full disclosure of all relevant evidence to the court so that witnesses must attend court if ordered to do so and must answer all relevant questions in court or produce any document when ordered to do so, there is one ground upon which they may legitimately refuse to do so, namely privilege. Privilege is usually subdivided into public privilege and private privilege.

PUBLIC PRIVILEGE. The principle is that where it is claimed that the disclosure of evidence (documentary or oral answers in cross-examination) would harm the public interest, the judge will weigh the conflicting principles (i.e. that litigation should be frank and open and that certain public bodies should have the right not to disclose) and decide whether to allow the claim to privilege. To make his decision the judge may demand to see any document involved and after consideration may disallow the claim for privilege and order the document to be produced or the witness to answer the questions.

PRIVATE PRIVILEGE covers:

(1) Legal professional privilege

The principle that a person should he able to be totally frank with his own lawyer is paramount. Therefore there is a privilege application to communications between client and a lawyer which has a partial extension to communications between the client or lawyer and third patties in litigation.

(a) Solicitor-client communications.

The rule is that neither client nor solicitor can be compelled to produce documents, or answer questions about communications which passed between them in their capacities as solicitor and client. This applies whatever the nature of the matter on which the communication passed provided it was bona fide concerned with legal advice) whether it was contentious or non-contentious.

(b) Communications between solicitor or client and a third party when litigation is imminent or contemplated.

There is an extension of the principle in (a) above in cases where litigation is imminent or contemplated. In such cases, in addition to the usual privilege between solicitor and client as in (a) above, there is a further privilege for communication between the solicitor (or the client) and third parties. The most common example of this is a simple witness statement obtained by the solicitor where litigation is pending. The written statement is privileged so that at trial the opposing side cannot make anyone produce the statement if; for example, it was decided not to call the witness. Thus the prosecution would never know what the witness had to say (or even who the witness was). Note that this privilege is confined to the legal profession and does not apply to other professional relationships (for example accountant-client, doctor-patient, priest-penitent). In the lawyer-client relationship the privilege is vested in the client, therefore if the client either expressly or impliedly waives the privilege then the lawyer cannot refuse to answer any questions in respect of the communications.

We then turned to what occurs after conviction. Surprisingly there are several things to consider before sentencing takes place.

TAKING OTHER OFFENCES INTO CONSIDERATION. A person who is charged by the police with one or more offences and is prepared to plead guilty may well be questioned by the police about other offences of a similar type which they have not as vet solved. It may be that the accused will be prepared to admit these also but only on the basis that he is not formally charged with them but rather that they are “taken into consideration”. This procedure is available in both the magistrates’ court and the Crown Court.

The police will prepare a schedule of these offences giving the time. date. place and surrounding circumstances in brief, to which the accused will be asked to agree. It is most important for the lawyer advising the accused to check this carefully with him as it may be that the police have been remarkably persuasive with the offender and if the offender has habitually committed similar types of crime undetected over a long period. say burglaries at week-ends on a more or less regular basis, which is a not uncommon situation. it may be that the suspect will have inadvertently admitted to things that for one reason or another he could not possibly have done. Once it is checked that all his “TICs”, as they are called, are properly attributable to him the court will be informed, after conviction on a guilty plea, that he is prepared to have a number of other offences taken into consideration.

This practice is not sanctioned by statute, or expressly by case law, but is extremely common. The effect of an offender asking for several other offences to be taken into consideration is that the offender “wipes the slate clean” of those offences and will not be charged with them at any time in the future. One might think in principle that a person who pleads guilty to, say, three offences and asks for another thirty to be taken into consideration would be admitting to the judge a consistent course of criminal conduct which would make the judge highly likely to sentence him most severely. In fact this does not happen and the effect of admitting, say thirty, more offences when already convicted of three may well be that only a very slight increase in the length of the sentence the judge originally had in mind may be imposed.

The police officer known generally as the “antecedents officer” will generally go into the witness box after this stage and read out from a prepared form details of the offender’s antecedents. This will contain very briefly an account of his criminal record with brief details of the nature of each offence and the date of release if the sentence he has previously had was custodial. He will also give details of the offender’s age, education, employment record and family circumstances. Increasingly, antecedents are presented simply by prosecuting counsel. The rules of evidence do not apply at this stage in their strict form. The purpose of antecedents was originally to indicate the offender’s personal circumstances to the court, no doubt in the kind of case where he would have been unrepresented. A defendant who is represented can, of course, rely upon his own advocate to put to the court any personal factors which ought to be known which will assist the court in sentencing him.

REPORTS ON THE ACCUSED. When the antecedents evidence and, where appropriate, the question of offences taken into consideration, has been dealt with the judge will read any report which has already been prepared on an offender. Usually such reports will be available at this stage only if the offender has been in custody. There is nothing, however, to stop an offender who is in a position to pay privately from having a specialist of his own, most usually a psychiatrist, prepare a report on him.

PRE-SENTENCE REPORTS, usually prepared by the probation service, will give details of the offender’s background and antecedents and may highlight the circumstances which led to the commission of the crime. The defendant’s attitude to the crime should be explored and any contrition or remorse mentioned. The reports usually conclude with a recommended sentence and may suggest the offender’s suitability for a community sentence. Generally, a report is needed in almost every case before a custodial sentence or before the majority of community sentences can be considered.

MEDICAL OR PSYCHIATRIC REPORTS. The court has the power to order medical or psychiatric reports and to remand the accused in custody or on bail for the preparation of them. In some cases, the court must obtain a psychiatric report, such as s4(1) CRIMINAL JUSTICE ACT 1991 which requires a court sentencing an offender “who is or appears to be mentally disordered” to obtain and consider a medical report before passing a custodial sentence.

MITIGATION. It is a vital part of the defence lawyer’s job to prepare for what may happen after conviction even if one is hopeful at the outset of securing an acquittal. A crucial part of this is to ensure that should the defendant be convicted he will be dealt with by the court as leniently as possible. From the first interview, therefore, information should be collected which might be useful in the event of conviction. As has been indicated earlier, unlike the civil courts (where in principle legal aid will be granted only to those who are felt to have a “winning case”), in criminal cases, legal aid is available even to those who propose to plead guilty so that a proper plea in mitigation may be made and the court thus made aware of all the factors which should move them towards leniency.

It is therefore an essential task if one is the advocate for the accused, to prepare a cogent speech in mitigation, and when preparing counsel’s brief for the Crown Court to include a summary of things that might be said.

It is generally considered prudent to arrange the factors to be discussed in a plea in mitigation under the following headings:

Factors connected with the offence.
Factors connected with the offender.
The accused’s conduct in relation to the investigation of and prosecution of the offence.
Capacity for reform.


It is usual to tell the judge details of:

the offender’s life,
previous history and family circumstances, at least if these are in any way helpful.
credit must be given for a good record in the past. Good record may mean no more than absence of a criminal record and in itself this is perhaps the most potent mitigating factor there can be. Matters which are actually creditable to the defendant should also be stressed, in particular good service record, a record of public service to the community (e.g. as a town councillor or scout master, charity work etc).
a good employment record is usually considered to impress favourably most judges and indeed cynical lawyers are often heard to advise unemployed clients who are shortly to appear before the Magistrates’ Court to leave no stone unturned in their efforts to get a job for this reason alone.
a happy and steady family situation is also thought to be a good mitigating factor and if a custodial sentence is feared, the effect on some other person such as the fact that a family will be thrown on social security if the bread-winner is sent to prison.
likewise another potent factor here is the fact that the offender has already been punished in some way (e.g. social disgrace or having been dismissed by one’s employer is a good mitigating factor)
even if an accused has a substantial criminal record and nothing particularly to commend him, one can usually find something in his past worth speaking about.
if he has a record of regularly offending and the time gap between his last offence and the present crime is longer than usual then this might be worth stressing. It should, of course, be checked that the reason why the offender has not re-offended for such a long period is not due to the fact that he was in prison for most of it!
it is generally considered a good mitigating factor that the accused co-operated with the police enquiries, for example by making an early admission of involvement, by helping the police to recover stolen property, and by helping the police to trace the accused’s accomplices.
a guilty’ plea is also given appropriate weight by the court as having saved the court’s time and public money and may lead to a discount on a custodial sentence of perhaps as much as a third, where it is made early in the process

SENTENCING. All sentences imposed by either the magistrates’ court or Crown Court must have regard to the following four factors:

(1) DETERRENCE

That by the accused being caught, tried and punished in some disagreeable way, will dissuade like-minded people from offending.

(2) RETRIBUTION

To express society’s outrage at the offender’s conduct and to take revenge, on society’s behalf, against the offender’s criminal behaviour.

(3) PREVENTION

Imposing conditions on the offender which will make his re-offending less likely, for example by taking away his liberty.

(4) REHABILITATION

This part of the sentencing process is aimed at reforming the offender that is, making him a useful member of society.

We will continue this next week.