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									    Current Issues in Criminal Evidence: Hearsay and Bad Character


                                 Ian Dennis
      Professor of Law and Director of the Centre for Criminal Law, UCL


The aim of this lecture is to provide an update on a number of current issues
relating to hearsay evidence, and evidence of bad character, in criminal
proceedings. These are both areas of the law where longstanding principles
of the common law were recently abolished and replaced by new statutory
schemes of admissibility. The new schemes have already generated a
substantial body of case-law on the interpretation and application of the
provisions. I won’t be attempting to cover all of it. The focus is mainly on
cases decided in the last twelve to eighteen months; the questions are
“Where are we now as a result of these cases?” and “Where might we go
from here?”

Hearsay

Introduction: a reminder of the origins and purpose of the Criminal Justice Act
2003 Part 11 ch 2
The Criminal Justice Act 2003 recast the law of hearsay in criminal cases.
Chapter 2 of Part 11 of the Act created in effect a new mini-code of rules
regulating the admissibility of hearsay evidence. This code replaced the
common law, and so the Act marked a new beginning. However, although the
rules of the common law were abolished, the Act retained the common law
structure of an exclusionary rule plus exceptions (these include certain
common law exceptions expressly preserved by s 118 of the Act).

The Act’s provisions were largely based on the recommendations of the Law
Commission, which reported on hearsay in criminal cases in 1997 (Law Com
No 245). In dealing with hearsay in criminal cases the Commission adopted
the same guiding principles for reform that inspired its earlier report on
hearsay in civil proceedings (Law Com No 216, 1993). These were that the
law should be simplified to the greatest degree consistent with the proper
functioning of a law of evidence, and that as a general rule all evidence


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should be admissible unless there is a good reason for it to be treated as
inadmissible.


The previous law of hearsay in criminal cases had attracted heavy criticism.
The common law exclusionary rule was often said to be unnecessarily
complex, as well as unclear in its scope. The common law exceptions to the
rule were in several instances unduly narrow, and they did not necessarily
ensure the admission of hearsay that was reliable and probative. The
statutory exceptions in the Criminal Justice Act 1988 also suffered from
limitations, and some drafting defects. Overall there was a feeling that the old
law was outdated and did not consistently achieve justice either to
prosecution or defence.


The purpose of the Act therefore was to recast the law, clarify and simplify it,
and enable the courts to make a fresh start. Opinions may differ on how far
the Act did actually simplify the law; the Act takes 13 sections to give effect to
the Law Com proposals, and we still have eight preserved common law
exceptions as well. But the courts have undoubtedly been willing to start from
the words of the Act and not attempt to recreate the common law. They have
taken the opportunity to liberalise the law, so that hearsay evidence is now
admitted more freely than under the old law. But this is not to say that the Act
has solved all the problems. It’s clear that it hasn’t, as we shall see. For
example, there are ongoing issues with so-called ‘implied assertions’, and
with the compatibility of hearsay law with Art 6 of the ECHR (more on these
below). A new problem is the use of the ‘interests of justice’ exception in the
Act, and how that relates to other hearsay exceptions (again more below).


The new law came into force on 4 April, 2005. It applies to all trials or retrials
beginning on or after that date.


The scheme of admissibility
Section 114 is headed “Admissibility of hearsay evidence''. Subsection (1)

provides:



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“In criminal proceedings a statement not made in oral evidence in the

proceedings is admissible as evidence of any matter stated if, but only if–

(a) any provision of this Chapter or any other statutory provision makes it

admissible,

(b) any rule of law preserved by s.118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be

admissible.''



Section 115 provides important definitions of ‘statement’ and ‘matter stated’:
“(1) In this Chapter references to a statement or to a matter stated are to be

read as follows.

(2) A statement is any representation of fact or opinion made by a person by

whatever means; and it includes a representation made in a sketch, photofit

or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the

purpose, or one of the purposes, of the person making the statement appears

to the court to have been–

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that

the matter is as stated.”



Three key points:

   •   The default position under the Act is that hearsay statements are

       inadmissible (as they were at common law) unless they qualify for

       admission under one of the four bases set out in s 114(1). But this only


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       applies to statements adduced as evidence of any matter stated as

       defined in s 115(3). It therefore continues to be essential to look

       carefully at the purpose for which an out of court statement is being

       adduced.

   •   Sections 114 and 115 should be read with s 118(2): “With the

       exception of the rules preserved by this section, the common law rules

       governing the admissibility of hearsay evidence in criminal proceedings

       are abolished”.

   •   Therefore if a statement would have been defined as hearsay at

       common law, but is not adduced as evidence of any matter stated as

       defined in s 115(3), it falls outside the statutory scheme. Its

       admissibility is now simply a question of relevance – with the possibility

       of exclusionary discretion if it is prosecution evidence. Confirmed by

       CA in Singh [2006] 2 Cr App R 12; Twist [2011] EWCA Crim 1143.



What is and isn’t hearsay under the Act


Express statements: Most express statements which are adduced for their
truth – eg witness statements to the police or business records – continue to
be hearsay and have to be admitted under the Act. But some express
statements don’t count as hearsay any more. Statements in private records
such as diaries and address books may be adduced as relevant true
statements, but they are not adduced as evidence of ‘matters stated’ under s
115(3). This is because it is not the purpose of the writer in making the entries
to cause anyone else to believe the matter. If I write down information for my
own use, and it’s not my purpose that anyone else should believe the
information to be true, my statement is not hearsay under the Act, even
though it would have been at common law. My statement is admissible if
relevant; there is no need to find an applicable hearsay exception. See R v


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N(K) [2006] EWCA Crim 3309 (diary entry); Singh [2006] 2 Cr App R 12
(entries in memories of mobile phones).


‘Implied assertions’: we can now turn to the problem of so-called ‘implied
assertions’. This problem typically arises with communications to a defendant
(or sometimes a third party) which involve greetings or requests or questions.
Examples in drugs cases would be text messages such as “the gear I got
from you last week was great”; “I want my usual”; “Have you got any crack?”
Messages like this are founded on the person’s knowledge or belief about a
particular fact relating to the defendant (eg that he is a drug dealer). They do
not expressly assert that fact, but it is implied in what is actually said. The
common law chose to treat such communications as hearsay, on the basis
that the implicit claim was being adduced as equivalent to an express
assertion: see the majority judgments of the HL in Kearley [1992] 2 AC 228.
The Law Commission intended their definition of ‘matter stated’ in s115(3) to
reverse Kearley and to take such ‘implied assertions’ outside the hearsay rule.
The reasoning goes that under this provision the inquirer does not have a
purpose to cause the defendant to believe that he is a drug dealer. The
inquirer assumes that the defendant knows this already. The inquiry is made
on the basis of their common knowledge or understanding. Accordingly the
text message is adduced (on a charge of possession with intent to supply) as
an item of circumstantial evidence. It is relevant because it is the kind of
message that a person dealing drugs would receive. The prosecution would
not normally be seeking to prove that the gear was great or that the inquirer
really did want ‘his usual’, which would be the matter he actually stated in the
text.


The courts have made somewhat heavy weather of this point. There have
been several cases in the last couple of years which seemed to go in different
directions, but a very recent judgment of the VP Lord Justice Hughes has
convincingly clarified the position. This is the case of Twist [2011] EWCA Crim
1143. This was a group of four cases which all concerned text messages sent
to or by the defendants concerned. In the case involving Twist the Crown
sought to adduce evidence of 24 text messages on two mobile phones used


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by T requesting the supply of drugs. The CA agreed with the trial judge who
had ruled that the messages were not hearsay. According to Hughes LJ the
messages were relevant to the issue of whether T was a drug supplier. But
they did not contain any statement that he was. And even if they amounted to
an implied assertion that he was, the purpose of the senders did not include
causing him or anyone else to believe that he was. So the messages were
rightly admitted simply on the basis of their relevance to the issue of T’s intent
to supply the heroin of which he was in possession.


This is a straightforward application of s 115(3) in accordance with the Law
Commission’s intention to reverse Kearley, and Hughes LJ cites the Law Com
report in support of the court’s approach. He suggests, as did the Commission,
that the principal reason against admitting hearsay evidence except in limited
circumstances is the danger of concoction and the difficulty of testing or
contradicting it when the speaker is not available for cross-examination. But
this danger does not arise where the speaker is not intending to communicate
the unstated fact and therefore is unlikely to be attempting to mislead anyone.
Therefore there is no policy reason for applying the hearsay safeguards.


Hughes LJ suggested that this approach to the application of s 115(3) will
require two questions to be addressed in most cases:
   (i)    what is the matter which it is sought to prove? (it must of course be
          a relevant matter);
   (ii)   did the maker of the communication have the purpose of causing
          the recipient to believe or act upon that matter?


And he emphasised that to say that a communication is evidence of a fact (eg
that T is a drug dealer) is not the same as saying that that fact is the matter
stated in the communication for the purposes of the Act (eg a request to T to
supply drugs). It is easy to confuse these issues, which helps to explain the
uncertainty in some of the previous cases.


Leonard [2009] EWCA Crim 1251 was a case involving two text messages
where the senders commented about the quality or quantity of drugs which L


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had supplied to them. The CA held that these should have been excluded as
inadmissible hearsay. This was on the basis that the Crown were seeking to
prove the matters stated in the texts as a means of showing that L had
supplied drugs to the senders in the recent past. My view is that this
reasoning is simply misconceived. From the way the case at trial is reported I
don’t think this was in fact the Crown’s argument, and it certainly wasn’t
necessary to put the argument in this form. From the Crown’s point of view
the senders’ happiness or unhappiness with the drugs should be completely
irrelevant. What is important is the claim that L had supplied the drugs. That
wasn’t a matter stated as such, and even if it was, it wasn’t the senders’
purpose to cause L to believe that matter. The inference was that this was
common knowledge between them. So not hearsay – the trial judge was right
and the CA wrong.


Bains [2010] EWCA Crim 873 is a drugs case where B was alleged to be
higher up the chain of supply. The text messages were apparently from street
dealers but the precise statements they made are not reported. The texts
were treated as hearsay at the trial, and the trial judge admitted them in the
interests of justice under s 114(1)(d). The CA accepted Leonard as authority
that the messages in question were hearsay, but did not agree that Leonard
was further authority for saying that such messages could not be admitted
under the Act. (The Crown had conceded in Leonard that it would have been
in difficulty arguing for admission in the interests of justice, given the factors to
be taken into account by virtue of s 114(2)). In Bains the court said that a
‘degree of realism’ was required in drugs cases when this kind of message
was in issue. The Crown could not realistically be expected to call D’s
customers as witnesses, whether they were ultimate purchasers or street
dealers. Therefore it might well be in the interests of justice to admit the
messages.


Chrysostomou [2010] EWCA Crim 1403 involved firearms and harassment
charges. C was not charged with drugs offences, but the Crown sought to
adduce bad character evidence in the form of four text messages. The
messages were all questions to C from a person identified only as ‘John’


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about the availability of certain drugs and the prices. The Crown wished to
show that C was a drug dealer, since he had denied this when attacking the
character of the chief prosecution witness. CA held that, assuming the
questions amounted to ‘statements’ for the purposes of ss 114 and 115, they
were not being adduced as evidence of ‘the matter stated’ and were not
therefore hearsay. “The object of adducing them was as evidence of an
underlying state of affairs, which was the basis on which ‘John’ apparently
sent the texts to C, viz that C dealt with drugs and so could meet John’s
demands”. Interestingly the judgment in this case was given by Aikens LJ,
who also gave the judgment in Leonard. He did not attempt to distinguish the
earlier case, except indirectly by stressing the purpose for which the
prosecution were adducing the texts in Chrysostomou.


Elliott [2010] EWCA Crim 2378 is the final case in this quartet. This one
involved firearms and drug offences after both were found at a search of his
home. An issue arose of whether the Crown could adduce bad character
evidence that E was a member of a local violent gang involved in gun and
drug crime. Part of the evidence consisted of letters written to E while he was
in prison which included approving references to the gang and signed in the
form of the gang’s emblem (a hand making a P sign for ‘Peckham Young
Guns’). CA held that the trial judge was correct to rule that these letters were
not hearsay. “The authors of those letters were not making any representation
of fact or opinion. Nor did they have a purpose of causing [E] to believe any
such representation or to act on the basis that any such representation was
correct. They were simply expressing the shared support of both writer and
reader for the PYG. The contents of the letter could properly be regarded by
the jury as being predicated upon a shared involvement in the gang”.


Both Chrysostomou and Elliott are expressly approved in Twist as illustrations
of the ‘correct approach’ to s 115(3) and so-called ‘implied assertions’.
Hughes LJ suggests in fact that it would be better not to use this term at all in
the future. He advises approaching the question of whether the hearsay rules
apply in this way:
   (i)    identify what relevant fact (matter) it is sought to prove;


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   (ii)    ask whether there is a statement of that matter in the
           communication. If No, then no question of hearsay arises (whatever
           other matters may be contained in the communication);
   (iii)   If Yes, ask whether it was one of the purposes (not necessarily the
           only or dominant purpose) of the maker of the communication that
           the recipient, or any other person, should believe that matter or act
           upon it as true? If Yes, it is hearsay. If No, it is not.


After Twist it seems therefore that Leonard should now be regarded as a
decision on its facts and not as authority for any proposition of law, contrary to
what the CA thought in Bains. But it may need one more visit to the CA before
we can be completely confident about this point.


How much does all this matter? If the court thinks that the evidence ought to
be admitted anyway how much difference does it make whether we call it
hearsay or not? The answer is that it may make a considerable difference.


1. If the evidence is not hearsay then the only conditions of admissibility are
relevance, and the possibility of discretionary exclusion of prosecution
evidence under s 78 of PACE.
2. If the evidence is hearsay then it can only be admitted via an exception
provided for in the Act. S. 116 covers statements by witnesses who are
unavailable for various reasons, but that applies only where the maker of the
statement can be identified to the court’s satisfaction. This may well not be
possible in cases of the senders of text messages. S. 114(1)(d) allows for the
admission of hearsay statements ‘in the interests of justice’, but this is a
discretionary power and requires the judge to have regard to a long list of
relevant factors in s. 114(2). There is also an ongoing issue of how far s.
114(1)(d) can properly be used in the case of an absent witness when s 116
is not available, to be discussed below.
3. If the evidence is hearsay then the appropriate notice to adduce it must be
given under the Criminal Procedure Rules. If the notice is not given the judge
may refuse to allow the evidence to be adduced.



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‘Negative’ hearsay; the absence of a record. In DPP v Leigh [2010] EWHC
345 (Admin) L, the registered keeper of a vehicle, was charged with failing to
give information identifying the driver who had been caught speeding in it on
two separate occasions (Road Traffic Act 1988 s 172(3)). W testified that he
had checked the relevant records and had found no reply from L on either
occasion. The Divisional Court followed the common law authorities (Patel
(1981) 73 Cr App R 117; Shone (1982) 76 Cr App R 72) in holding that no
issue of hearsay arose. The absence of a record where one would normally
be expected if it existed is treated as a fact, and not as involving any
‘statement’ by anyone. As the court put it, “it is artificial to suggest that anyone
by failing to put anything in the record concerning a particular individual is
thereby seeking to assert that no reply has been given by that person. That is
not the purpose behind their inaction in not recording a response that has not
been made.” The message of this case is that in this respect the common law
is unchanged. Provided that the witness who testifies as to the absence of the
record is able to give first-hand evidence about the method of compilation of
the record there is no hearsay problem.


Hearsay exceptions


The ‘interests of justice under s 114(1)(d): this was included in the Act on the
recommendation of the Law Commission who saw it as a ‘safety valve’; a
limited discretion available mainly to the defence to prevent miscarriages of
justice where no other hearsay exception could be used. But there is nothing
in the Act to give effect to this view, or to say that the discretion is restricted to
exceptional cases. A number of the early authorities on the Act showed the
CA willing to uphold the admission of prosecution hearsay under this provision
in cases that were by no means unusual or exceptional.


However, there is an issue of how far it is proper to use s 114(1)(d) when the
maker of the hearsay statement might be available to testify. The old ‘best
evidence’ principle is founded on the assumption that it is generally preferable
to call the witness to give oral testimony rather than to rely upon her hearsay
statement. This has proved to be an important strand of thinking in the


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application of s. 114(1)(d). In R v Z [2009] EWCA Crim 20 the Court of
Appeal held that a trial judge had wrongly admitted a hearsay statement
under the provision where the witness was well and able to testify, although
reluctant to do so. The statement related to a sexual attack on the witness by
the defendant and was being adduced by the prosecution as bad character
evidence. As the court said, it was important evidence, potentially prejudicial,
and difficult for the defendant to deal with other than by a simple denial. The
judge had failed to take proper account of the s. 114(2) factors, particularly
para. (g) which relates to the inability of the witness to give oral evidence.


Similarly there are cases where prosecution hearsay from important
eyewitnesses has been excluded where the witnesses were available to
testify (see eg McEwan v DPP [2007] EWHC 740 (Admin)), and the principle
has been applied to defence hearsay as well. In Finch [2007] 1 Cr App R 33,
for example, D1 sought to adduce a confession to the police by D2 which
exonerated D1 of complicity in offences of possession of a prohibited firearm
and of ammunition. D2 pleaded guilty. He was available to give evidence for
D1 but reluctant to do so. The Court of Appeal upheld the trial judge’s
decision that the interests of justice did not call for his police interview to be
admitted, commenting that D2’s reluctance to support his statement on oath
undermined its reliability.


A further argument supporting the decisions in these cases is the danger of
rendering s. 116 redundant by an expansive use of s. 114(1)(d). A
comprehensive fact-specific discretion to admit hearsay evidence in the
interests of justice has the potential to make a narrower category-based
exception like s. 116 unnecessary; the conditions of unavailability of the
witness could simply become factors that will be considered in applying the
wider standard of the interests of justice. A related issue is the use of s.
114(1)(d) to supplement s. 116 by admitting hearsay statements where the
witnesses are ‘unavailable’ for reasons other than those listed in s. 116. This
was a concern for the Court of Appeal in R v Z where the court commented
that s. 114(1)(d) should be “cautiously applied, since otherwise the conditions



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laid down by Parliament in s. 116 would be circumvented”. This point was
repeated by the CA in R v C [2010] EWCA Crim 72, where the court held that
a trial judge had wrongly admitted hearsay evidence of a complaint of child
sexual abuse. It had not been established that the girl in question was unable
or unwilling to testify; the judge had apparently accepted the view of the girl’s
adoptive mother that it would be undesirable for her to give evidence of the
abuse.


“The judgment of this court in Z makes it clear that s 114(1)(d) is to be
cautiously applied since otherwise the conditions laid down by Parliament in s
116 will be circumvented. That is not to say that s 114(1)(d) can never be
invoked when the criteria laid down by s 116 cannot be met. To repeat,
however, a cautious approach is necessary when consideration is being given
to the admission of hearsay evidence when a witness of primary fact is alive
and well and, on the face of it, able to give oral evidence to the court. In our
judgment this approach must be followed strictly when, as here, the witness of
primary fact is an alleged victim of serious crimes.”


However, while these cases represent the current attitude of the CA, it is as
well to remember that such caution has not prevented hearsay being admitted
in some earlier cases under s. 114(1)(d) where the witness was available
(Musone [2007] 2 Cr App R 29 is a good example), or in other cases where
the witness was unavailable for reasons not covered by s. 116 (eg R v RL
[2008] 2 Cr App R 18 – a spouse witness not compellable for the
prosecution). It is suggested therefore that a ‘best evidence’ approach,
although important, should not be regarded as a general rule of application of
the provision in all cases. The discretion remains one to be exercised in all the
circumstances of the case, having regard to the factors listed in s. 114(2) and
any others the court considers relevant.


The section 114(2) factors:
(a) how much probative value the statement has (assuming it to be true) in
relation to a matter in issue in the proceedings, or how valuable it is for the
understanding of other evidence in the case;


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(b) what other evidence has been, or can be, given on the matter or evidence

mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the

context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it

cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party

facing it.''



Multiple hearsay under s 121: an interesting question of multiple hearsay
arose in Thakrar [2010] EWCA Crim 1505. This was a murder case in which
the chief suspect T had fled to Northern Cyprus. The disputed evidence
consisted of three witness statements. The statements had been taken by a
Northern Cypriot police officer G who had arrested T following a request for
assistance from the English police. G had interviewed three associates of T,
who all gave statements reporting conversations they had had with T in which
he had admitted and indeed boasted of carrying out the killings. One of the
statements included details which could only have been known to an
eyewitness or participant, namely that the murderers had shot a dog in the
house and had used the gun to hit one of the victims on the head. None of the
associates was willing to come to England to give evidence, but G did and
testified as to how he took the statements. It was accepted at the trial that this
evidence was multiple hearsay; hearsay evidence of statements by the
associates which reported other hearsay statements in the form of T’s
confessions. As such the evidence could only be admitted if the requirements
of s 121 could be met. The prosecution successfully submitted that G’s


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evidence of the statements should be admitted in the interests of justice (s
121(1)(c)). I pause to note that s 117, which allows for multiple hearsay in
business records, could not be used because the associates, through whom
the information supplied by T was recorded by G, were not acting in the
course of any trade or profession, as required by s 117(2)(c). Nevertheless,
the CA was in no doubt that the judge had been right to admit G’s evidence.
The statements had high probative value, they appeared to be reliable in view
of the detail about the murders that they contained, and it was difficult to see
any motive either for the associates to invent T’s confessions or for G to
concoct the statements. This case does not establish any new principle of law.
But it is a useful example of how the interests of justice may be evaluated in a
case of multiple hearsay, particularly the emphasis given to the presence of
corroborating detail in the statements. It is also worth noting that parts of T’s
confessions incriminated his brother who was the co-defendant, and the CA
held there was no justification for excluding those parts.


Anonymous hearsay: can hearsay evidence ever be admitted where the
maker of the hearsay statement wishes to remain anonymous? Does it make
any difference if the identity of the maker is not known to anyone and he/she
cannot be identified? According to the authorities the answer to both
questions is No. In Mayers [2009] 1 Cr App R 403 the CA considered the
effect of the then new legislation on witness anonymity (the Criminal Evidence
(Witness Anonymity) Act 2008, now in virtually identical terms in the Coroners
and Justice Act 2009). Lord Judge LCJ held that the 2008 Act made no
provision for admitting the hearsay statement of an anonymous witness. He
then added that the 2003 Act also makes no such provision, pointing to the
requirement in s 116 that where a witness is unavailable the witness’s
hearsay statement can only be admitted if the witness is identified. This
requirement could not be bypassed by using the ‘interests of justice’ exception
in s 114(1)(d). Subsequently in Horncastle [2009] UKSC 14 he repeated the
proposition that hearsay evidence from anonymous witnesses is inadmissible.
These statements have been followed by the CA in a couple of cases last
year. In Fox [2010] EWCA Crim 1280 part of the evidence in a robbery
prosecution consisted of the transcript of a 999 call made by an anonymous


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member of the public. The caller had in fact given their identity to the police
and prosecution but requested that it not be disclosed. The judge had
admitted it in the interests of justice, but the CA held that this was erroneous.
The court cited Mayers as deciding that “there is no basis at common law or
under the 2003 Act or the 2008 Act upon which anonymous hearsay evidence
can be admitted. The evidence of the 999 call in the present case was
indisputably anonymous hearsay evidence. In our judgment there was not a
basis for its admission”. In Ford [2010] EWCA Crim 2250 the defendant was
charged on 14 counts with a variety of offences including firearms offences.
An unknown woman had handed to police at the scene a piece of paper
bearing a car registration number and a note saying that she had “heard gun
shots and seen them getting into this car but I don’t want to get involved.” Six
days later the police came across the car with that registration number; four
associates of the defendant were in it at the time. The trial judge had let in
evidence of the paper and the note. The CA commented to the effect that the
evidence was probative and reliable, but should not have been admitted.
Citing Mayers and Horncastle the court said:


“The reality is then that a statement which is sought to be adduced in
evidence in circumstances where the anonymity of the maker is sought to be
preserved can only be so adduced if it falls within any of the provisions of the
Act of 2008 which permit that to be done. The statement of this unknown lady
does not fall within any such provision and it has not been contended that it
does”.


Is this decision correct? Arguably it is not. The first point is that there is only
one express reference in the 2003 Act which relates to the identity of the
maker of a hearsay statement; that is the requirement in s.116 that the maker
of a hearsay statement admitted under that section should be identified. None
of the other exceptions mention this requirement. It’s true they don’t expressly
allow for anonymity of the maker, but they don’t prohibit it either. As David
Ormerod has pointed out in a comment in the Criminal Law Review [2011]
Crim LR 475, there would seem to be nothing to prevent the parties agreeing
to admit anonymous hearsay under s 114(1)(c). Ormerod suggests also that a


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number of the preserved common law exceptions in s 118 would probably
allow for anonymous hearsay.


Secondly, s 117(2)(b) – the business records exception – on one reading
appears to allow that the person who supplied the information contained in the
relevant documentary statement may be unknown, because it refers to a
requirement that that person “had or may reasonably be supposed to have
had” personal knowledge of the matters deal with. This would make sense, for
example, if we think of manufacturers’ records based on information supplied
by individual employees whom it may be quite impossible to identify years
later. It is reasonable to suppose that the woman in Ford did have such
personal knowledge given the circumstances in which she produced the note.
The note was received by the police in the course of their professional duty,
and the woman was unavailable as a witness for one of the reasons listed in s
116, namely that she could not be found. This analysis suggests that the
notes in Ford could have been admitted under s 117, subject to possible
exclusion by virtue of subsections (6) and (7) if the reliability of the statement
is doubtful (which on the facts it was not). It is not clear that this argument was
ever made in the case. A similar analysis could be made of Fox, since the 999
call in that case was received by the operator in the course of their
employment, but the reliability may be more in question.


In conclusion it may still be open to argument that the statements in Mayers
and Horncastle apply with full force only to cases where witnesses make
statements, and then request anonymity and refuse to give live evidence.
Where the maker of a hearsay statement cannot be identified at all the 2003
Act does not necessarily rule out receiving anonymous hearsay.


The state of play with Article 6 of the ECHR


A reminder of the background: under Art.6(3)(d) of the ECHR a person has
the right to examine or have examined the witnesses against him. The
provisions of the 2003 Act which allow for the admission of hearsay evidence
are not necessarily incompatible with the rights of the defence under Art.6.


                                        16
The Strasbourg jurisprudence indicates that these rights are not absolute and
the absence of an opportunity to cross-examine the maker of a hearsay
statement is not automatically a violation of Art.6. However, a line of cases in
Strasbourg has stated that basing a conviction on an untested statement
which was the sole or decisive evidence for conviction violates Art 6. This was
most recently affirmed in a judgment of the Fourth Section of the ECtHR,
namely Al-Khawaja and Tahery v UK (2009) 49 EHRR 1. The case of the first
applicant concerned a witness statement from an alleged victim of an
indecent assault by the applicant, which was admitted after the victim died
before the trial. The second case concerned the admission of a statement by
an eyewitness to a wounding who was too afraid to give evidence at trial. The
same principle has also been said to apply to anonymous evidence from
witnesses.


The issue is whether the English courts are prepared to accept this further
limitation on the use of hearsay (and anonymous) evidence, given the
existence of the ‘carefully crafted code’ (per CA in Horncastle [2009] EWCA
Crim 964) in the CJA which contains a number of safeguards to protect the
rights of the accused. A seven-member Supreme Court gave an emphatic No
in a unanimous judgment on appeal in Horncastle [2009] UKSC 14. In a major
statement of principle Lord Phillips, giving the judgment of the court, refused
to follow the Strasbourg line:


“The requirement to “take into account” the Strasbourg jurisprudence will
normally result in this Court applying principles that are clearly established by
the Strasbourg Court. There will, however, be rare occasions where this court
has concerns as to whether a decision of the Strasbourg Court sufficiently
appreciates or accommodates particular aspects of our domestic process. In
such circumstances it is open to this court to decline to follow the Strasbourg
decision, giving reasons for adopting this course. This is likely to give the
Strasbourg Court the opportunity to reconsider the particular aspect of the
decision that is in issue, so that there takes place what may prove to be a
valuable dialogue between this court and the Strasbourg Court. This is such a
case.”


                                        17
Lord Phillips reviewed the provisions in the 2003 Act and argued that there
was no need for the ‘sole or decisive evidence’ rule to ensure fairness. He
went on to suggest that such a rule is both overbroad and impracticable. It is
clear, as the CA said in Horncastle, that there is no necessary relationship
between the importance of the evidence in the case and its reliability. Hearsay
evidence may be critically important, as it was in Al-Khawaja and Tahery, but
if it is demonstrably reliable, or we have satisfactory procedures for estimating
its reliability, why should it be unfair to the defendant to act upon it?

The impracticability of the test lies in two key points. First, in a jury trial
involving a mixed mass of evidence, where the jury does not give reasons for
its decision, it will be impossible for an appeal court to know which evidence
the jury regarded as decisive. The ‘sole or decisive’ rule cannot therefore be
applied in such cases as a rule of use of evidence. The alternative is to apply
it as a rule of admissibility. But then the second problem arises. How is the
court to know in a given case whether the rule applies? The answer may be
obvious in some instances, as where a statement by a deceased victim
constitutes virtually all the prosecution case. But there will be many other
cases where hearsay is mixed with some direct evidence and/or some
circumstantial evidence. All the evidence will be capable of being probative to
some degree, otherwise it would not be admissible at all. But it may be very
difficult to say how much each type of evidence contributes to the overall case
against the defendant. As Lord Phillips said, “If ‘decisive’ means capable of
making the difference between a finding of guilt and innocence, then all
hearsay evidence will have to be excluded”.


Al-Khawaja and Tahery v UK was subsequently referred at the instance of the
UK government to the Grand Chamber of the EctHR for a further hearing.
That hearing took place in May 2010. We are still waiting for the judgment.
Clearly a great depends upon it. For the moment the English courts are bound
to follow Horncastle and apply the 2003 and 2009 Acts without any overriding
‘sole or decisive evidence’ limitation. But if Strasbourg sticks to its guns and
upholds the principle the Supreme Court will have to revisit the issue as a


                                          18
matter of urgency. Will the principle be accepted? If it is, there will be major
questions about how far the principle extends (eg does it apply only to
witness statements, or affect other forms of hearsay as well?), how the
principle is to be applied in the conduct of trials, and what happens to the
numerous convictions which may have been reached in violation of the
principle?


One compromise solution, which I put forward in an article last year ([2010]
Crim LR 255) would be for the EctHR to redefine its principle in terms of
proportionality. This would argue that the Art 6 right to confront and cross-
examine adverse witnesses may be restricted in cases of conflict with the
interests of other parties or the witnesses according to a principle of
proportionality. But the restriction could not be so extensive as to negative the
‘very essence’ of the right, which would be the right to test the probative value
of the evidence so as to prevent a possible wrongful conviction. However, if
the evidence in question is demonstrably reliable, or there are other adequate
means of determining its reliability, the handicaps to the defence are
adequately compensated for even where the evidence may be is the sole or
decisive evidence for conviction. It remains to be seen whether this solution
appeals to anyone.


Hearsay in sentencing and confiscation hearings


The case of Clipston [2011] EWCA Crim 446 concerned POCA Part 2
confiscation proceedings against C who had pleaded guilty to conspiracy to
supply a Class A controlled drug. The evidence in question was out of court
statements by a co-accused M which were relevant to the quantity of drugs C
had been dealing. M had refused to testify at the hearing, so the judge had
admitted his statements to the police under s 114(1)(d). On appeal C’s
counsel argued (a) that confiscation proceedings were not ‘criminal’, and
therefore (b) that the admissibility of hearsay evidence was governed not by
the 2003 Act but by the Civil Evidence Act 1995, which the judge had not
considered. The CA rejected the argument. Part 2 confiscation proceedings
were held to be criminal in nature as they were an extension of the sentencing


                                        19
hearing after conviction. That meant that the Civil Evidence Act regime for
hearsay was not applicable. But it did not follow that the 2003 Act applied
directly to the proceedings. It is well known that the strict rules of evidence do
not necessarily apply to the sentencing process – see Patrick Smith (1988) 10
Cr App R(S) 271, and the court thought the position was the same in
confiscation proceedings. Hearsay evidence could be admitted provided the
procedure involved is “both flexible and fair”. This might mean applying the
considerations of the ‘interests of justice’ listed in s 114(2) of the 2003 Act by
analogy rather than as governing provisions. But it would not be the case that
‘anything goes’. The judge’s decision to admit M’s statements was upheld. NB:
proceedings under Part 5 of POCA for the recovery of assets have been
distinguished from Part 2 confiscation proceedings: Serious Organised Crime
Agency v Gale [2010] 1 WLR 2881. It would appear that in Part 5 proceedings
the Civil Evidence Act hearsay regime will apply.


Bad character


Introduction: a reminder of the origins and purpose of the Criminal Justice Act
2003 Part 11 ch 1
The Criminal Justice Act 2003 also recast the law relating to bad character
evidence in criminal cases. Chapter 1 of Part 11 of the Act created in effect a
new mini-code of rules regulating the admissibility of evidence of bad
character of defendants and non-defendants. As with hearsay this code
replaced the common law, and so the Act marked a new beginning.


Again as with hearsay the Act was preceded by a Law Commission report
(Law Com No 273, 2001). However, unlike the hearsay report, the
Government only accepted part of the Law Commission recommendations
and made substantial amendments to most of them. Its approach to the Act
was shaped by a policy agenda which called for a ‘rebalancing’ of the criminal
justice system. In crude terms this meant that the system should be more
favourable to victims and witnesses, and less favourable to defendants. The
broad aim of the new code therefore is to provide greater protection for non-
defendants from attacks on their character, while relaxing some of the


                                        20
strictness of the old law regarding evidence of a defendant’s bad character
and other misconduct.


The scheme of admissibility


The scheme begins in s 98 by defining ‘bad character’:


“References in this Chapter to evidence of a person's ‘bad character' are to
evidence of, or 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 that offence.''

This provision must be read together with the definition of “misconduct'' in the
interpretation provisions of s.112(1): “ ‘misconduct' means the commission of
an offence or other reprehensible behaviour''.


Section 99(1) follows this up by abolishing the common law rules ‘governing
the admissibility of evidence of bad character in criminal proceedings’. Section
100 then deals with the admissibility of evidence of the bad character of a
person other than the defendant (see later).


Section 101 deals with the admissibility of evidence of the bad character of
the defendant; it provides in effect a general rule of exclusion, but this is
subject to the possibility of admitting the evidence via one of seven possible
‘gateways’:


“(1) In criminal proceedings evidence of the defendant's bad character is
admissible if, but only if–

(a) all parties to the proceedings agree to the evidence being admissible,


                                        21
(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.

(2) Sections 102 to 106 contain provision supplementing subs.(1).

(3) The court must not admit evidence under subs.(1)(d) or (g) if, on an
application by the defendant to exclude it, it appears to the court that the
admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subs.(3) the court must have
regard, in particular, to the length of time between the matters to which that
evidence relates and the matters which form the subject of the offence
charged.''


Three key points:


   •   the default position is that evidence of a defendant’s bad character is
       inadmissible (as it was under the old law) unless it can be adduced via
       one of the seven gateways in s 101.
   •   But this restriction applies only to evidence of ‘bad character’ as
       defined in s 98. Evidence which is not evidence of the commission of
       offences or other reprehensible behaviour, or of a disposition towards
       such misconduct, is outside the definition. Its admissibility will be




                                        22
       determined by the common law relating to relevance, with the
       possibility of discretionary exclusion if it is prosecution evidence.
   •   Moreover, even if the evidence is evidence of bad character in this
       sense, it will fall back outside the s 98 definition if it is evidence which
       ‘has to do with’ the alleged facts of the offence charged, or it is
       evidence of misconduct in connection with the investigation or
       prosecution of the offence charged. Again its admissibility would then
       be determined by the criteria of relevance and possible exclusionary
       discretion.


What is and isn’t bad character evidence


s 98(a): the authorities were reviewed by the CA in Mullings [2011] 2 Cr App
R 21. This case involved a charge of joint possession of a firearm with intent
to endanger life. The offence arose out of a melee between two Manchester
gangs, the ‘Gooch’ gang and the ‘Doddington’ gang. The melee had taken
place on Doddington ‘territory’; M admitted being present at the scene but
claimed not to have taken part and to have no knowledge of any firearms
being carried by the people he was with. Letters had been written to M while
he was remanded in custody on other matters. The letters expressed support
for the Gooch gang and hatred for the Doddington gang which was included in
a ‘death list’. The trial judge thought the letters were not ‘bad character’
evidence because, contrary to the prosecution’s argument, they were not
evidence that M himself belonged to the Gooch gang. They were not therefore
evidence that M had a disposition towards misconduct. Instead the judge
admitted them on the ground that they were relevant to his mens rea,
specifically his knowledge that his associates might be carrying arms to
protect themselves if they went on to Doddington territory.


The CA held that on this basis the evidence had been rightly admitted. It was
relevant to an issue in the case, it did not amount to evidence of bad
character on the judge’s ruling, and therefore no bad character direction had
been required. The court then went on to consider what the position would



                                         23
have been if the letters were evidence of M’s gang membership, as the court
clearly thought they could be. They would then show a ‘disposition towards
misconduct’, which would take the evidence within the definition of bad
character in s 98. Would they then fall back outside the definition on the basis
that they were evidence ‘to do with the alleged facts of the offence’ (s 98(a))?
The answer was No. The CA adopted Professor Spencer’s distinction
between evidence which is relevant to an offence (which this was) and
evidence which has to do with the facts of the offence (which it was not). The
latter requires a close link in time between the offence charged and the
other misconduct or disposition towards misconduct – see in particular
Tirnaveanu [2007] 2 Cr App R 23; Lowe [2007] EWCA Crim 3047. The old
common law concept of res gestae may be another way of expressing the
principle. The court commented that the wider section 98(a) was interpreted
the more bad character evidence would not be governed by the scheme in the
Act, and this was a reason for preferring a narrower interpretation. In practice
the kind of evidence would likely be admitted via gateway (d) in any event as
relevant to an important matter in issue between the defendant and the
prosecution. But the prosecution ought to give notice if it is bad character
evidence, and the judge ought then to give the bad character direction.


s. 98(b): a short point on s 98(b) arose in Apabhai [2011] EWCA Crim 917. A
was one of three defendants charged with conspiracy to cheat the Public
Revenue in relation to what the CA called a ‘classic carousel fraud’. The issue
concerned the judge’s refusal to permit A to cross-examine one of the co-
accused Amani on an alleged attempt by Amani to blackmail A in connection
with the prosecution. (According to A Amani had threatened to change his
statements and pin all the blame on A unless A paid him £125,000). The
judge had apparently ruled that this evidence did come within s 98(b), so was
not subject to the scheme of the Act, but he then excluded it in the exercise of
discretion as more prejudicial than probative. It was agreed on all sides in the
CA that this was wrong. A trial judge has no discretion at common law to
exclude relevant defence evidence (Randall [2003] UKHL 69, confirming an
earlier line of authority), and s 78 of PACE applies only to prosecution
evidence. The CA then considered the appropriate route to admissibility of


                                       24
this evidence. It did fall within s 98(b). That provision was not restricted, as the
prosecution had suggested, to misconduct by the police or prosecuting
authorities in connection with the investigation or prosecution of the offence. It
could apply to misconduct by a co-defendant. Therefore its admissibility was
simply a matter of applying the common law rule of relevance. The court
added for good measure that if the evidence was governed by the Act then it
would be admissible under gateway (e), as having substantial probative value
in relation to an important matter in issue between the defendant and a co-
defendant. Although the alleged blackmail by Amani had not been proved,
evidence alleging the commission of an offence or other reprehensible
behaviour is within the scope and definition of misconduct.


Sections 101(1)(d) and 103(1): evidence of ‘propensity’ In the leading case of
Hanson [2005] 2 Cr App R 21 Rose LJ commented in relation to proving a
person’s ‘propensity’ to commit offences of the kind charged:


“There is no minimum number of events necessary to demonstrate such a
propensity. The fewer the number of convictions the weaker is likely to be the
evidence of propensity. A single previous conviction for an offence of the
same description or category will often not show propensity. But it may do so
where, for example, it shows a tendency to unusual behaviour or where its
circumstances demonstrate probative force in relation to the offence
charged ... Circumstances demonstrating probative force are not confined to
those sharing striking similarity.''


The courts now seem to be increasingly willing to allow evidence of propensity
via gateway (d), even where only one incident of prior misconduct is involved,
and there is no particular circumstantial similarity with the offence charged. In
Miller [2010] EWCA Crim 1578 M was charged with five counts of rape of a
child under 13 (his niece). The offences were alleged to have taken place at
her grandmother’s house in 2005-06 when M was aged 25. In 1997 when
aged 16 M had been convicted of taking part in the gang rape of a girl aged
15 or 16 in a car park. The CA upheld the judge’s admission of the conviction
despite the differences in the ages of the complainants and the lapse of time


                                        25
since the earlier offence. The court thought that there was a link in the form of
‘an underlying abuse of power’ as suggested by the prosecution: “although
there is a difference between gang rape and paedophilia, both involved the
use of real and additional pressure, in the case of gang rape by added
numbers and in the case of rape of a child by age and relationship”. This case
does not establish any new principle, but it is a good illustration of how far we
have come from the common law. I think it is very unlikely that the rape
conviction would have qualified as ‘similar fact evidence’.


Can a caution for an offence count as evidence of propensity? This issue
arose in Olu and others [2010] EWCA Crim 2975, a murder case in which O
had been convicted as one of a group of men who had stabbed and killed the
deceased in a late night brawl. The prosecution persuaded the judge to admit
bad character evidence against O in the form of a caution he had received
two years earlier for posession of an offensive weapon, namely a flick knife. O
denied committing the earlier offence and claimed that he accepted the
caution only after being told by the police that he would not need a solicitor
and would not need to go to court. The CA held that it was within the judge’s
discretion to admit the caution as evidence of O’s propensity to possess a
knife in a public place. At the same time the court pointed out that there is a
considerable difference between an admission contained in a caution after
legal advice as to the significance of a caution, and an admission in a caution
without legal advice. There seems to be more than a hint in the judgement
that if the caution is of the latter type there would be a good argument for
excluding it on the basis of unfairness, given the variations in police practice
in administering cautions. A further issue in this case was that O had a good
character apart from the one caution. The CA held that since the judge had
given a bad character direction to be followed if the jury accepted that O had
committed the earlier offence, the judge should have accompanied it with a
good character direction to be followed if the jury came to the opposite
conclusion about the earlier offence.


Section 101(1)(g): character and credibility One of the trickiest current issues
relating to bad character evidence in general concerns the use of previous


                                        26
convictions not to prove propensity to commit offences but as going to the
defendant’s credibility. In relation to gateway (d) Hanson took a restrictive
approach to evidence alleged to show the defendant’s ‘propensity to be
untruthful’.


“As to propensity to untruthfulness, this, as it seems to us, is not the same as
propensity to dishonesty. It is to be assumed, bearing in mind the frequency
with which the words honest and dishonest appear in the criminal law, that
Parliament deliberately chose the word ‘untruthful' to convey a different
meaning, reflecting a defendant's account of his behaviour, or lies told when
committing an offence. Previous convictions, whether for offences of
dishonesty or otherwise, are therefore only likely to be capable of showing a
propensity to be untruthful where, in the present case, truthfulness is an issue
and, in the earlier case, either there was a plea of not guilty and the defendant
gave an account, on arrest, in interview, or in evidence, which the jury must
have disbelieved, or the way in which the offence was committed shows a
propensity for untruthfulness, for example, by the making of false
representations.''


In Campbell [2007] 2 Cr App R 28 the CA, in a judgment delivered by Lord
Phillips CJ, took an even more restrictive line, suggesting that evidence
showing a propensity to be untruthful should only be admitted where telling
lies is an element of the offence charged. “Even then the propensity to tell lies
is only likely to be significant if the lying is in the context of committing criminal
offences, in which case the evidence is likely to be admissible under s
103(1)(a),”


These authorities have given rise to two questions. The first is whether under
gateway (d) Hanson or Campbell is to be preferred. We don’t yet have a
definitive answer to that question. Most of the later cases appear to follow
Hanson – see the valuable article by Peter Mirfield in [2009] Crim LR 135. The
second question is whether either approach applies to the other gateways in
the Act. This is an important question particularly in relation to gateway (g),
which deals with use of bad character evidence where the defendant attacks


                                         27
the character of another person, typically the victim or a prosecution witness
or a police officer. This is a common situation that arose frequently under the
old law. Under the old law the crude ‘tit for tat’ principle applied. If the
defendant threw mud at prosecution witnesses in an attempt to discredit them
he lost his shield against cross-examination on his record. The prosecution
were entitled to throw mud back so that the jury could know the character of
the person making the accusations against the witnesses. For this purpose
the defendant’s character was indivisible. All convictions were in principle
admissible to prove his bad character, although a judge might exercise
discretion to exclude particularly prejudicial ones.


This appears still to be the law in relation to gateway (g). In Clarke [2011]
EWCA Crim 939 C was charged with a number of sex offences against two
children. His defence was a total denial of all the incidents and a claim that
the allegations were fabrications and the result of collusion between the girls.
This was undoubtedly an attack on character, and so the prosecution applied
successfully to put in C’s record under gateway (g). C had an impressive list
of convictions: possession of Class A drugs with intent to supply, taking a
conveyance, possession of an offensive weapon, robbery, actual bodily harm,
vehicle theft and several firearms offences. On appeal C’s counsel relied on
Hanson, arguing that none of the convictions demonstrated a propensity to be
untruthful; their only function would be to prejudice the jury against C. The CA
was having none of it. Hanson was distinguished on the ground that gateway
(g) has no provision relating to the defendant’s ‘propensity to be untruthful’.
The restrictive approach wa said not to apply to gateway (g) when the
defendant’s credibility is in issue. The position is the same as it was under the
Criminal Evidence Act 1898.


“…if the credit of the prosecutor or his witnesses has been attacked, it is only
fair that the jury should have before them material on which they can form
their judgment whether the accused person is any more worthy to be believed
than those he has attacked. If a defendant is asking the jury to have regard to
a witness’s character when assessing that witness’s evidence, so they should
be entitled to consider his character when assessing his evidence.”


                                         28
However, the principle only extends to the fact of the previous convictions:


“The authorities demonstrate that under paragraph (g) all convictions are
potentially relevant to assist the jury to assess the character of the accused,
and it is not necessary, or at least not generally so, for detailed facts about the
nature and circumstances of those convictions to be put before the jury. That
is only likely to be required where it is necessary to demonstrate a propensity
for untruthfulness in paragraph (g) cases.”


Section 100: credibility of non-defendants The final issue to be considered is
the use of bad character evidence against non-defendants. When can a
defendant adduce evidence of a prosecution witness’s previous convictions
as a means of discrediting the witness? The governing provision in s 100(1)(b)
of the 2003 Act allows for admissibility where the evidence has substantial
probative value in relation to a matter in issue in the proceedings which is of
substantial importance in the context of the case as a whole. For this purpose
a witness’s credibility may be an important matter in issue. The same issue
arises here as in relation to s 101: should a narrow Hanson-type approach be
applied, so that only convictions which in themselves show a propensity to lie
be admissible, or can other convictions which bear more generally on
creditworthiness be adduced?


In Brewster [2010] EWCA Crim 1194 the CA decisively rejected a narrow
approach. B and another were convicted of offences of kidnapping a woman
AD. AD’s evidence about the incident in question differed radically from the
defendants’ account. They were refused leave to cross-examine her on her
several previous convictions which were for burglary, manslaughter,
possession of a Class A drug with intent to supply, and theft by shoplifting.
The judge took the view that the convictions did not have substantial probative
value, possibly (this is unclear) because he thought they did not bear on her
record for truthfulness. The CA disagreed and quashed the convictions as
unsafe. The reasoning followed an earlier judgment of Hughes LJ in
Stephenson [2006] EWCA Crim 2325, in which Hanson was distinguished as
a case dealing with the caution to be applied to a Crown application. It should


                                        29
not be applied “when what is at stake is a defendant’s right to deploy relevant
material to defend himself against a criminal charge” (contrast Andrew S
[2006] 2 Cr App R 31, where the Hanson approach was applied to a s 100
case).


“It does not seem to us that the words ‘substantial probative value’ in their s
100(1)(b) context require the applicant to establish that the bad character
relied on amounts to proof of a lack of credibility of the witness when
credibility is an issue of substantial importance, or that the convictions
demonstrate a tendency towards untruthfulness. The question is whether the
evidence of previous convictions, or bad behaviour, is sufficiently persuasive
to be worthy of consideration by a fair-minded tribunal upon the issue of the
witness’s creditworthiness….whether convictions have persuasive value on
the issue of creditworthiness will…depend principally on the nature, number
and age of the convictions. However, we do not consider that the conviction
must, in order to qualify for admission in evidence, demonstrate any tendency
towards dishonesty or untruthfulness.”


It remains to be seen how far this more liberal approach will be followed.
There is a danger that a focus on the ‘status’ of the witness may encourage
some judges to return to the situation before the 2003 Act when witnesses’
convictions were freely adduced. That would be contrary to the policy of the
Law Commission and Parliament in trying to give witnesses greater protection
against attacks on their character.




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