When does a culture of non-compliance result in an ambush on bad character in criminal cases, asks Francesca Lewington?


Recent Court of Appeal decisions have introduced a 'fairness' test to applications made under section 101(1)(a), (b), (c), (e) and (f) of the Criminal Justice Act 2003 - in relation to the defendant's bad character - where such applications are made out of time.



Though judges and magistrates have always had a discretion as to whether to extend the time-limits set out in the Criminal Procedure Rules 2005 (see information below this article), the court has been slow to give guidance as to how this discretion should be exercised.



In Ibrahim Musone v R [2007] EWCA Crim 1237, the judge refused to exercise his discretion to allow a bad character application to be made out of time by the defendant under section 101(e): that the evidence was relevant to a matter in issue between the defendant and a co-defendant. The judge's refusal to extend the time-limits in fact represented his 'fall-back position' in the original trial, but it was the approach approved by the court.



Two defendants in this case were charged with murder, each blaming the other. Evidence of one co-defendant's confession to an earlier murder, though he was eventually acquitted in that case, was held by the trial judge to be relevant to the issue as to which of them had committed the murder in this case. That being the judge's ruling, there was no discretion to exclude the evidence as unfair under section 101(3), as this does not apply to section 101(1)(e), only to section 101(1)(d) and (g).



Crucially, the application was made well out of time under the Criminal Procedure Rules 2005; counsel for the co-defendant was only informed of the application on the tenth day of the trial.



The trial judge held that he could exclude the evidence under article 6 (fair trial) of the Human Rights Act, even though there was no discretion to exclude it as unfair under section 101(3). This approach was rejected by the court. Instead, it approved the 'fall-back' position: 'If he was wrong about the application of article 6... he had power to exclude the evidence because of a breach of part 35 of the 2005 rules.'



The judge declined to exercise his discretion to extend the time allowed for the application to be made, and this was the approach to the evidence approved by the court, which held the application to be an 'ambush'. The co-defendant had been prejudiced by the lateness of the application because he was not now in a position to deal with the evidence; he could not possibly be expected to deal with it at such short notice.



The court considered that, in some cases, an adjournment would be appropriate to allow the defendant to whom the evidence related to deal with it properly. However, on the facts of this case, it being the tenth day of trial, this was not considered appropriate, as such a late application could be used as a device to restart a trial that was going badly for the party making the application if an adjournment were the natural result.



Another recent case on this subject is R (Paul Robinson) v Sutton Coldfield Magistrates Court [2006] EWHC 307 Admin. In that case, the High Court upheld a decision by magistrates to allow a bad character application that was made on the day of trial, despite agreeing with the appellant's assertion that 'a culture of non-compliance should not be permitted to take root'. Though the High Court agreed with that submission, it did not agree that an extension should only be granted 'in exceptional circumstances'.



The magistrates' court had allowed the late application because the defence had been put on notice of it at the plea-and-case-management hearing, it was well aware of what the previous convictions were, and, as there was no application for an adjournment, it could be inferred from this that the defence did not require any additional time to respond to the evidence to be adduced.



In upholding the magistrates' decision, the High Court began to introduce 'fairness' criteria, similar to the test under section 101(3), into cases where bad character applications are made out of time.



Applying the case law

The protection offered by Musone to a defendant against applications made out of time to adduce evidence of bad character is clear. Where a bad character application made by one defendant against another out of time amounts to an 'ambush', so that the defendant to whom the evidence relates can no longer respond to it properly, it is unlikely that the court will exercise its discretion to extend the time-limits.



Hitherto, there was no unfairness argument available in respect of bad character applications under section 101(e). Now, such an argument is available in relation to the extension of the time-limits.



The appeal court's rejection of the Human Rights Act argument in favour of that based on the time-limits alone is understandable because it restricts the test to the specific issue.



Conclusions

The effect of Musone is to import the concept of fairness into applications under those gateways under section 101(1)(a), (b), (c), (e) and (f) where they are made out of time. The case will enable the defence to argue that an application made by the Crown, as well as a co-defendant, under one of the other gateways, for instance under gateway (c) (important explanatory evidence), amounts to an 'ambush' when made out of time, and where prejudice can be shown.



This must be the situation regarding both prosecution and

co-defendant 'ambush' applications.



Francesca Lewington is a barrister practising from 2 Kings Bench Walk in London



The time-limits

Criminal Procedure Rules 2005

A defendant seeking to introduce evidence of a co-defendant's bad character is required to give notice not more than 14 days after the prosecutor has complied with his primary disclosure obligations under rule 35.5 of section 3 of the Criminal Procedure and Investigations Act 1996. This is the same whether in the magistrates' or Crown Court.



In Crown Court cases, where the prosecution seeks to adduce evidence of a defendant's bad character, notice must be given within 14 days of committal or, if the case has been sent under section 51 Crime and Disorder Act 1998, 14 days of the service of the evidence (rule 35.4(2)(b)).



In the magistrates' court, notice must be given by the prosecution within 14 days of compliance with primary disclosure (rule 35.4(2)(a)).



The court has power pursuant to rule 35.8 to allow notice to be given orally or to shorten the time limit or extend it after it

has expired.