Law Commission’s 2008 report into prior convictions and allegations
6.28After the Act received Royal assent, but prior to the Act coming into force, the Law Commission received a reference asking it to consider the extent to which a jury in a criminal trial is made aware of prior convictions of a defendant and allegations of similar offending. The Law Commission published an issues paper in 2007 and a final report in 2008 in response. The issue of how to deal with evidence of bad character was also included in the review, but was not its primary focus. The report noted some issues with the provisions (considered in more detail below) but ultimately recommended no amendment to the veracity and propensity provisions in the Act. However, the report proposed that the Law Commission continue to monitor the courts’ interpretation of the veracity and propensity provisions with a view to providing advice to the Government in 2010 as to whether they are operating adequately and as intended.
Evidence of veracity
6.29After examining the issues and analysing the submissions it received, the Law Commission concluded that veracity “is not the major issue of public concern”, but did note that:
- It is questionable whether a court should have regard to previous convictions for offences which indicate a propensity merely for “dishonesty” as opposed to a “lack of veracity” (offences indicating a propensity for dishonesty are included in the list of factors to be considered when determining whether evidence is substantially helpful in terms of veracity). While the courts may read down “dishonesty” where there is no significant veracity issues (as courts in England have done), specific amendment of the Act may be required at some point.
- Where a defendant is charged with offences of dishonesty and has previous convictions for similar kinds of dishonesty, directions that the jury should only consider the previous convictions in relation to the defendant’s veracity and not to propensity are likely to be ineffective. While a judge might exclude the similar previous convictions under s 8 as unfairly prejudicial, specific provision for this in the Act may be required.
- There is uncertainty as to whether the prosecution may lead its own evidence of a defendant’s previous convictions when a defendant has attacked the credibility of prosecution witnesses but has refrained from giving evidence themselves. It is unclear whether the previous position, based on the “cardinal principle” of relevance, survives where the prosecution is unable to do so. There is a difficulty with this proposition if the prosecution has put the defendant’s statement to the police in evidence.
6.30At the time the Law Commission published its issues paper, there was some uncertainty as to how the exclusionary approach in s 43 of the new Act would be interpreted and applied. One possible approach, based on the earlier stated objectives of the Law Commission, would be for the courts to treat s 43 as simply restating the common law approach to similar fact. An alternative was to focus on the statutory language, reading it on its face as a fresh start. As it turned out, by the time the Law Commission reported in 2008, the Court of Appeal had answered this question in favour of the latter “fresh start” approach. The Law Commission considered this to be acceptable.
6.31In its issues paper, the Law Commission put forward eight options in relation to propensity evidence:
1 No change from the present position;
2 “Wait and see”: respond as appropriate after judicial interpretations and working experience has clarified the effects of the new legislation;
3 “Wait and see”: (as in (2) above), but with immediate amendments enabling appropriate determination of circumstances of previous convictions, and confirming that multiple complainants’ similar fact evidence is propensity evidence and is not veracity evidence;
4 Amend section 43 by a declaratory provision that it is not to be interpreted by reference to previous rules as to similar fact evidence, but is to be read as if a code;
5 Amend section 43 (with or without removal of similar fact restrictions) by stating propensity evidence will not be admissible if the risk of unfairly prejudicial effect of the defendant or proceeding “substantially” outweighs probative value;
6 Replace section 43 by provision that propensity evidence will not be admissible if the evidence will prevent a fair trial;
7 Adopt solution 4 above, but in addition create a special class of or classes of offence in which propensity evidence is admissible regardless of risk of unfair prejudice;
8 Repeal section 43 and qualify section 8: allow in all relevant propensity evidence in all trials regardless of risk of unfair prejudice and risk of unfair trials.
6.32By the time of the Law Commission’s 2008 report, option 4 had become redundant in light of the Court of Appeal decision referred to above interpreting section 43 as a “fresh start”.
6.33In that report, the Law Commission was not prepared to countenance any options that involved “acceptance of a heightened risk of unfair trials”. The Law Commission took the view, however, that while there are a number of circumstances in which the probative value of previous convictions is very limited, the law prior to the Evidence Act was “too restrictive” and “notoriously difficult to apply in practice”.
6.34It noted that with the Court of Appeal adopting a fresh start, a more liberal approach, and even expansion in some classes of case, was probable. The Law Commission was not persuaded that there was any inherent difficulty with the statutory test involving a weighing of probative value and prejudicial effect. While there is imprecision in these concepts, any test that did not involve a difficult exercise of judgment would likely result in rigidity and hence injustice.
6.35Finally, the Law Commission concluded that:
It would nevertheless be premature to reach the conclusion that the current rules do not need to be changed. The Act is very new, and it cannot be said with certainty that a more liberal position will necessarily be adopted or maintained. If there were to be an unexpected retreat back to more restrictive traditional outlooks, some additional legislative guidance might become warranted. Moreover, there are some unresolved difficulties and uncertainties in the current law that the courts may or may not be able to resolve unaided. These include the potential difficulties that arise in the segregation between propensity and veracity. …
The Commission therefore proposes that it should continue to monitor and further assess the operation and impact of the provisions of the Evidence Act 2006 relating to previous convictions, propensity and veracity, and to report back to government by 28 February 2010 whether any amendment to the legislation is required in the light of experience in the intervening period.