Police station advice


The implementation of the bad character provisions of the Criminal Justice Act 2003 that will take place later this month has a more immediate effect for those advising in the police station.


The provisions will apply to any person charged or summoned on, or after, the date of implementation and thus may affect any criminal investigation where there are bails-to-return beyond that date for the collection of evidence or for the Crown Prosecution Service to decide on the level of charge.


If a client gives a false impression about himself during a police interview or on charge, then his true character can be proved by the prosecution as part of its case at trial. Similarly, if during interview or on charge a suspect attacks the character of a prosecution witness that too will place their own character in evidence at trial. There is a third way by which such evidence may be introduced by the Crown. This is where suspects introduce evidence of their own bad character.


None of this is uncommon in a police station interview. A client falls into the trap of saying that he had never been in such difficulty before; or loses his temper over allegations that are made; or lets slip information about previous convictions while describing events leading up to the particular event, often to contrast the two.


From now on, this has the most serious consequences. Therefore, solicitors will wish to give advice during consultation to concentrate purely on the facts of the particular case and not to allow the suspect to be diverted to such matters. Inevitably, such advice in consultation will have to be reinforced during the interview itself. As soon as an adviser hears a possible introduction of these subjects, it will be necessary to intervene to bring the interview to an end. No longer will comments about previous convictions be edited out prior to trial.


With the full operation of the Act, it seems likely that police officers will themselves ask questions about a suspect's previous convictions if they see them as being material to propensity to commit crime or propensity to untruthfulness.


Solicitors will need to consider their strategies for dealing with such issues. The least risky approach for the time being appears to be to advise clients to make no comment in relation to their own previous convictions. This is not without dangers. If there were factual elements distinguishing those previous convictions from the matter now under investigation, it may be that inference under section 34 of the Criminal Justice and Police Act 1994 could be drawn. However, clients' recollections are likely to be faulty and inaccurate answers damaging. Facts and circumstances surrounding previous convictions are themselves capable of investigation by the defence and of objective proof. It will not be possible to draw an inference where the truth is established by such investigations.



These areas of concern will further complicate matters of disclosure with the investigating officer. To advise properly on each of these areas, solicitors will require much fuller disclosure of previous convictions than is now given and is in some police areas available. This would certainly mean that a solicitor could not give sensible advice in accordance with the decision in R v Roble [1997] Crim LR 449, at least on the area of bad character.



In R v Beckles (2004) The Times, 17 November, the Lord Chief Justice Lord Woolf has tried to balance conflicting judgment on the significance of legal advice to make no comment in relation to inferences from silence. The essential issue is whether the suspect genuinely and reasonably relied on such advice. 'It was of the greatest importance that defendants should be able to be advised by their lawyer without their having to reveal the forms of that advice if they acted in accordance with that advice,' said Lord Woolf. Solicitors will want to ensure that they have a good record of their reasoning processes, but it appears that a jury will only be able to draw inferences if satisfied that it suited the suspect's purpose to take advantage of that advice.



Inferences from silence were further considered, at least so far as routine casework is concerned, in R v Hilliard [2004] 5 Archbold News 2, where it was made clear that an inference from silence was unsafe where a suspect's only chance to mention a fact was when a victim's statement had been read over in interview and he had not been told he should stop and correct any part of that statement.



This is a scenario that often exists notwithstanding the presence of a legal adviser. The court may infer that the adviser should have pointed out that a chance to mention the fact had not been given. This is probably best done at the end of the reading of the victim's statement, when it should be pointed out to the investigating officer that the suspect does indeed wish to comment but now requires specific questions from the officer to identify the areas on which comment is required. The statute only allows an inference when it was reasonable on all the facts to do so, and the reason for an interview is to enable suspects to answer specific questions put to them.



The need for an interventionist role by the solicitor has been emphasised in two further situations. In R v Gray [2004] 7 Archbold News 1, it was made clear that a judge is not bound to identify for a jury possible reasons for silence that were not made known at the police station stage. In that case, by the time of trial, the defendant sought to rely on fear of his father and the wish not to implicate another, rather than merely legal advice and his lack of experience of police stations, which had been given as the reasons at the time of his arrest.



Similarly, in R v Lambert 68 JCL 285, the Court of Appeal made clear that an issue of identification could not arise where all that a suspect had done was answer no comment to any question that was asked of him or merely by admission as to presence or some participation in events. A greater specification of the issue of identification, such as who took what steps, will be required. Advisers may consider that this is best done by a no-comment interview but supported by a prepared statement in accordance with the decision in R v Knight [2003] Crim LR 799.



Dealing with bad characters



A fundamental change in the law of evidence in relation to bad character will apply, under the Criminal Justice Act 2003, to all prosecutions commenced on or after 15 December 2004. The Act makes a critical distinction between the evidence of bad character relating to any witness who is not a defendant, whether for the Crown or for the defence, and the position of defendants themselves.


The concept of bad character is defined in section 98 of the Act as 'evidence of or a disposition towards misconduct other than evidence which has to do with the alleged facts of the offence with which the defendant is charged or; is evidence of misconduct in connection with the investigation or prosecution of that offence'.


Misconduct is defined in section 112 as meaning 'the commission of an offence or other reprehensible behaviour'. The word reprehensible is not defined but the meaning appears to be wide. It would appear to include all fixed-penalty notices, cautions, conditional cautions, reprimands and warnings, and there must now be considerable risk that even the acceptance of conduct leading to a bindover could fall within this definition.


In relation to any witness who is not a defendant, leave will always have to be obtained (absent agreement of all parties) before matters of character can be raised. Leave can only be given on three grounds (section 100), which are summarised as being evidence when:


- It is 'Important explanatory evidence'. Essentially, this is the old law of background evidence. Where a court would find it impossible or difficult properly to understand other evidence in the case and its value for understanding the case as a whole is substantial; or


- It has substantial probative value in relation to a matter that is in issue in the proceedings and that is of substantial importance in the context of the case as a whole; or


- All parties to the proceedings agree.


Section 100(3) identifies issues relevant to the probative value of the evidence. They include:


- The nature and number of the events to which the evidence relates;


- When those events are alleged to have happened;


- Where the evidence is of a person's misconduct and it is suggested that the evidence has probative value by reason of its similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities; and


- Where the evidence is evidence of a person's misconduct and it is suggested that that person is also responsible for the misconduct charged and the identity of the person responsible for the misconduct is disputed, the extent to which the evidence shows that the same person was responsible each time.


Rules of Court will provide how the party wishing to raise bad character will bring this to the attention of the court and the other parties.


The position of a defendant is very different. This is dealt with by section 101. The key change made by the legislation is that no longer will the Crown be able to introduce the defendant's bad character only if the defendant has introduced relevant matters in evidence. Under these new rules, it will be possible for the Crown, having given notice to the court and the defence, to lead evidence of bad character as part of the prosecution case. In eight situations, a defendant's bad character is admissible and no leave is required from the court. They can be summarised as follows:


a) All the parties agree;


b) The evidence is adduced by the defendant himself or is given in answer to cross-examination when the question was intended to elicit it;


c) When it is important explanatory evidence;


d) When it is relevant to an important matter in issue between the defendant and the prosecution;


e) When it has substantial probative value in relation to an important matter in issue between the defendant and 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.


The distinction in the wording between the various grounds for the introduction of bad character is itself significant. Grounds (e) and (g) at least have their origins in section 1(3) of the Criminal Evidence Act 1898. However, ground (d) leads to a significant change in the law. Section 103 defines a matter in issue between the defendant and the prosecution as including the question of whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such propensity makes it no more likely that he is guilty of the offence (which will raise issues of relevance); and the question of whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect. Thus both propensity to commit crime and propensity to be untruthful are now relevant in a way that would never have been permitted under the existing law.


The Crown may establish the defendant's propensity to commit offences of the kind with which he is charged by evidence that he has been convicted of:


- An offence of the same description as the one with which he is charged. Offences are of the same description if the statement of the offence in a written charge of indictment would, in each case, be in the same terms; or


- An offence of the same category as the one with which he is charged. The government has indicated an intention to introduce at this time categories covering offences of dishonesty and sexual offences.


The extent of the propensity to untruthfulness provision will require rapid judicial attention. It is not impossible that any case in which a defendant was convicted following a not guilty plea could be introduced under this provision.


Rules of court will provide for issues arising from these provisions to be resolved at preliminary hearings. When the Crown relies on grounds (d) or (g), section 101(3) provides that the court must not admit the bad character evidence if it appears to the court that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to admit it. In relation to the other grounds, the defence will need to rely on the similarly drafted provision of section 78 of the Police and Criminal Evidenced Act 1984.



By Anthony Edwards, TV Edwards, London