In each case complaint was made about the way in which the judge had dealt with applications by the Crown to bring in the defendant’s bad character as evidence of his propensity to commit the crime.
Held: The court set out the applicable principles. Parliament had intended to assist evidence based findings of guilt without risking conviction by prejudice. The statute provided seven gateways for admitting such evidence. To admit evidence of previous convictions they must show a propensity to the offence at issue, or to a propensity for dishonesty. There was no minimum number of events required to demonstrate such a propensity, though a single conviction would often not show propensity in the absence of some particular character to the offence.
Rose LJ VP said: ‘When considering what is just under section 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other factors, take into consideration the degree of similarity between the previous conviction and the offence charged, albeit they are both within the same description or prescribed category. For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct. This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible. The judge may also take into consideration the respective gravity of the past and present offences. He or she must always consider the strength of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are . . Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant. In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions. That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.’
Rose LJ VP, Hughes, Hallett JJ
Times 24-Mar-2005, [2005] EWCA Crim 824, (2005) 3 CAR 21, [2005] 1 WLR 3169
Bailii
Criminal Justice Act 2003 98 113
England and Wales
Cited by:
Cited – Regina v Bovell; Regina v Dowds CACD 25-Apr-2005
The defendants appealed their convictions. In one case the prosecution had brought evidence of bad character. Bovell was convicted of wounding with intent, pleading self-defence. His legal team later discovered that the complainant had himself been . .
Cited – Card, Regina v CACD 11-May-2006
The defendant appealed his convictions for sexual assault, saying that details of his previous convictions should not have been admitted under the 2003 Act.
Held: The appeal succeeded. Where there was a risk of evidence of previous complaint . .
Cited – O’Dowd v Regina CACD 12-May-2009
The defendant appealed against his conviction for serious sexual offences. The trial was very lengthy after the prosecution introduced bad character evidence from other allegations from some 17 years or more before. . .
Cited – McDonald v Regina CACD 16-Dec-2011
The defendant appealed against his convictions for murder and other offences of violence. He complained of the admission of bad character evidence against him, in the form of convictions for the use of firearms.
Held: The appeal failed. The . .
Cited – Najib v Regina CACD 12-Feb-2013
The defendant appealed against his conviction for murder saying that the court had given inadequate directions as to his ‘no comment’ interview, the need to treat the evidence of a co-accused with caution, and the need for a bad character direction. . .
Cited – Regina v Ellis CACD 12-Jan-2010
The defendant appealed against his conviction for possession of an offensive weapon in a public place. He had a friction locking police-style baton, handcuffs and a false police ID in the rear of his car when stooped. After first lying he said they . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Leading Case
Updated: 01 November 2021; Ref: scu.223830