Bad Character Evidence Should be Proved Beyond Reasonable Doubt
January 23, 2017
Bad Character Evidence Should be Proved Beyond Reasonable Doubt for it to be Admissible In Court
R v Mitchell (Northern Ireland)
Supreme Court of the United Kingdom
 UKSC 55 on appeal from  NICA 34
Kerr J , Clarke J, Hughes J, Toulson J and Hodge J
October 19, 2016
Reported by Linda Awuor & Kakai Toili
Evidence – character evidence – character evidence in a criminal trial – bad character evidence – admissibility of bad character evidence – threshold for admitting bad character evidence – whether it was necessary to prove bad character evidence in a criminal trial beyond a reasonable doubt – Criminal Justice (Evidence) (Northern Ireland) Order 2004, articles 4 & 6
Evidence – propensity – propensity to commit a crime –requirements to prove propensity to commit a crime – truth and accuracy of the matters alleged on a person’s propensity to commit a crime -whether a preliminary evaluation should be carried out on the truth and accuracy matters alleged before the question of the existence of propensity is examined – Criminal Justice (Evidence) (Northern Ireland) Order 2004, article 8
The Respondent was convicted of the murder of her former partner Anthony Robin on May 11, 2009. At the trial, she did not dispute that she had stabbed Mr Robin, but said she had acted in self-defence. She claimed that she had been provoked and that she did not have the intention to kill him or cause him really serious harm.
The Prosecution applied to adduce evidence of the Respondent’s previous bad character for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. The evidence related to two incidents in 2003 and 2007 in which she was said to have threatened and stabbed others with knives. None of the previous alleged incidents had resulted in a conviction. It was agreed between the Prosecution and the Defence that statements which contained details of the earlier incidents would be read out during the trial. The Trial judge directed the jury to take that evidence into account or leave it out of account as they considered appropriate, but not to make any assumptions based on it as to the Respondent’s guilt.
On appeal, the Respondent argued that the Trial Judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before they could have taken it into account. The Court of Appeal allowed her appeal, quashed the conviction and ordered a re-trial. At the re-trial the Respondent pleaded guilty to manslaughter and was acquitted of murder.
The Prosecution appealed to the Supreme Court against the quashing of the murder conviction.
- Whether a jury could carry out a preliminary evaluation on the truth and accuracy of the matters alleged before the question of the existence of propensity was examined.
- Whether it was necessary to prove bad character evidence beyond a reasonable doubt before a jury could take it into account in determining whether a defendant was guilty or not.
Relevant Provisions of the Law:
Criminal Justice (Evidence) (Northern Ireland) Order 2004 (SI 2004/1501))
Article 4 – Abolition of common law rules
(1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished.
Article 6 – Defendant’s bad character
(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,
(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.
(3) The court must not admit evidence under paragraph (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.
Article 8 – Matter in issue between the defendant and the prosecution
(1) For the purposes of Article 6(1)(d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question 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.
(2) Where paragraph (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Paragraph (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason that it would be unjust for it to apply in his case.
(4) For the purposes of paragraph (2)—
(a) two offences are of the same description as each other if the statement of the offence in a complaint or indictment would, in each case, be in the same terms;
(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this Article by an order made by the Secretary of State.
(5) A category prescribed by an order under paragraph (4)(b) must consist of offences of the same type.
(6) Only prosecution evidence is admissible under Article 6(1)(d).
- At common law, as a general rule, evidence of the bad character of an accused person was not admissible in a criminal trial. There were exceptions to that however, and one was similar fact evidence. An early and notable example of the admission of this type of evidence was the case of Makin v Attorney General for New South Wales where the Court while acknowledging the general rule stated that, in appropriate circumstances it was legitimate to have allowed evidence to be admitted which was relevant to an issue in the case.
- Article 4(1) of the Northern Ireland Criminal Justice (Evidence) Order, 2004 (2004 Order) on abolition of common law rules, abolished the common law rules governing the admissibility of evidence of bad character in criminal proceedings. The Order significantly expanded the circumstances in which bad character evidence could be admitted and the rules which previously restricted admission of such evidence had no part to play in the decision as to whether it could have been received.
- Article 6(1) of the 2004 Order on Defendant’s bad character set out a number of what had come to be known as gateways for the admission of evidence of a defendant’s bad character. Article 8 on matters in issue between the Defendant and the prosecution, dealt specifically with propensity. It related back to gateway (d) of article 6(1). Mere propensity to have committed offences of the kind charged might have been admissible. It might have been proved by convictions for offences of the same description or category, but also by other evidence, such as that of complainants or observers, or by past admissions where there had not been a conviction.
- If admission had been solely under article 6 (1) (c), (f) or (g) of the 2004 Order on Defendant’s bad character, it could have been necessary to consider at the end of the evidence whether propensity had become a legitimate issue, and how the jury should have been directed as to the use which could have been made of it. But whether or not it was also admitted under article 6(1)(f), the evidence was plainly admissible under article 6(1)(d), and thus propensity to offend as was charged was a relevant matter which the Crown could have sought to establish.
- The law before the enactment of the 2003 Act and the 2004 Order was not that the prosecution was required to have proved to the criminal standard the truth and accuracy of evidence said to have constituted similar facts or propensity. Neither the Criminal Justice Act 2003 (Northern Ireland) nor the 2004 Order stipulated that only the common law rules as to the admissibility of bad character evidence had been abrogated. There were no clear Common law rules on the question as to how such evidence should have been evaluated. The debate as to how evidence of bad character admitted under the relevant legislation should have been regarded by the jury was not assisted by a consideration of the common law position.
- The legislation concerning the admission of bad character evidence was silent on the question of whether that evidence had to meet the requirement of proof beyond reasonable doubt before it could be taken into account. On one view, that was indicative of a legislative intention that the species of evidence should not have been subject to a special regime of independent proof, that it should simply have combined with the other evidence in the case for evaluation as to whether the guilt of the Accused had been established to the requisite standard. The contrary view was that whether someone had a propensity to have engaged in activity such as that which constituted the crime charged or whether they had been involved in acts of a similar nature stood apart from direct evidence of their actual involvement in the crime charged. On that account, the question of whether they had such a propensity or had been involved in events claimed to have comprised similar facts, called for consideration separate from the evidence which directly implicated the Accused in the offence for which they were being tried.
- A distinction had to be recognised between proof of a propensity and the individual underlying facts said to establish that a propensity existed. In a case where there were several incidents which were relied on by the prosecution to have showed a propensity on the part of the Defendant, it was not necessary to have proved beyond reasonable doubt that each incident happened in precisely the way that it was alleged to have occurred and neither was it necessary for the facts of each individual incident to have been considered by the jury in isolation from each other.
- The proper issue for a jury on the question of propensity was whether they were sure that propensity had been proved. That did not mean that in cases where there were several instances of misconduct, all tending to show a propensity, the jury had to be convinced of the truth and accuracy of all aspects of each of those.
- The jury was entitled to and should have considered the evidence about propensity. There were two interrelated reasons for that. First the improbability of a number of similar incidents alleged against a Defendant being false was a consideration which should have naturally informed a jury’s deliberations on whether propensity had been proved. Secondly, obvious similarities in various incidents might have constituted mutual corroboration of those incidents. The question impelled by the 2004 Order was whether propensity had been proved.
- The existence of a propensity had to be proved to the conventional criminal standard. It called for special treatment and needed to be established beyond reasonable doubt. Evidence about a propensity or tendency to have committed a specific type of crime or to have engaged in a particular species of misconduct was not in pari materia with testimony that touched on the actual events said to have constituted the particular crime involved. It was right that the jury should have been directed that before they took that into account, they had to be convinced that propensity had been proved. That was not to say that the jury had to be unanimous on the question of whether it existed. Jurors were at liberty to have followed their own evidential track. But the jury should have been directed that, if they were to take propensity into account, they should have been sure that it had been proved. That did not require that each individual item of evidence said to show propensity had to be proved beyond reasonable doubt. It meant that all the material touching on the issue should have been considered with a view to reaching a conclusion as to whether they were sure that the existence of a propensity had been established.
- The Court of Appeal held that the Trial Judge should have directed the jury not to rely on the allegation that the Respondent had threatened to kill his partner unless they were sure that he had made the threat. One could have understood why the conclusion was reached. A very specific threat had been imputed to the Defendant and the evidence about it was, at best, equivocal. The incident to which the evidence related was not similar to other instances of criminal conduct which were referred to by the Crown, in support of its claim that the Defendant had a general propensity to crimes of violence. The evidence relating to the threat required to have been considered by the jury along with other evidence which was called to establish propensity and a determination ought to have been made on whether all that testimony, taken in combination, proved the claimed propensity.
- Each item of evidence in relation to individual instances of alleged propensity had to be examined and conclusions on the primary facts should have been reached but, in its deliberations as to whether propensity had been proved, the jury should have considered the evidence on the subject as a whole rather than in individual compartments.
- It would have been misleading and confusing for a jury to have been instructed that they should have ignored the significance of one incident tending to show propensity when they came to form their views about another. Indeed, it would have been unrealistic to have expected that they performed the counter intuitive intellectual exercise of segregating various incidents for separate consideration without considering the possible impact of one on the other. Decisions about propensity should not have been the product of a review of facts about separate episodes in hermetically sealed compartments.
- Three trials of the earlier incidents were conducted and the Appellate Court had to deal with that unalterable fact. It was inappropriate for the jury to have been directed that it had to examine in insulated compartments the evidence in relation to each previous incident and that it had to be sure that each incident had been proved before it could take any account of it. It was, of course, necessary to have lead evidence of the three incidents. The jury should have been directed to consider whether the sum of that evidence established to the criminal standard that the Defendant was possessed of the propensity which was alleged. The evidence in relation to those incidents should have been considered cumulatively, not as separate aspects of the case for a propensity, isolated one from the other.
- O’Dowd illustrated an important consideration which had to be borne in mind by trial judges when determining applications to have adduced evidence of propensity under article 6(1)(d) on Defendant’s bad character and article 8(1) (a) on matters in issue between the defendant and the prosecution. The jury was not asked to return a verdict on any previous allegations relied upon, and indeed should have been reminded that the Defendant was not on trial for them. It should have been told to focus on the indicted offences. Reliance on cumulative past incidents in support of a case of propensity might have indeed illuminated the truth of the currently indicted allegations, but excessive recourse to such history might have skewed the trial in a way which distracted attention from the central issue.
- Article 6(3) on Defendant’s bad character required the Trial Judge to have considered actively whether the effect of admitting the bad character evidence would have had such an adverse effect on the fairness of the trial that it ought to have been excluded. That species of adverse effect could have arisen through the sheer weight of disputed evidence on other uncharged allegations and that could have happened even though the jury would in due course have been directed to consider propensity cumulatively, if the volume of evidence received was sufficiently strong to have supported a conviction. It was a truism that satellite litigation was often inimical to efficient trial.
- Each incident claimed by the Prosecution to show a propensity on the part of the Defendant was not required to be proved to the criminal standard. The proper question to have been posed was whether the jury was satisfied that a propensity had been established. That assessment depended on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it had been proved beyond reasonable doubt.
- Propensity was, at most, an incidental issue. It should have been made clear to the jury that the most important evidence was that which bore directly on the guilt or innocence of the accused person. Propensity could not alone have established guilt and it had not been regarded as a satisfactory substitute for direct evidence of the accused’s involvement in the crime charged.
- It was clear that the Trial Judge failed to give adequate directions as to how the question of propensity should have been approached by the jury. On that account the conviction was unsafe and it was properly quashed.
- The Bench Books for Northern Ireland, England and Wales contained specimen directions which might have been considered to suggest that juries required to have been directed that they needed to have been satisfied of the truth of every allegation of propensity before they might take it into account, such a suggestion was misconceived. It would be for the authors of those works to have reflected on whether an amendment to the relevant sections of the Bench Books was required.
Appeal dismissed, Court of Appeal’s decision to quash the Respondent’s conviction for murder upheld
Relevance to Kenyan Position:
Under Kenyan law the burden of proof in criminal cases is required to be beyond reasonable doubt. The main statute in Kenya dealing with matters evidence is the Evidence Act, Cap 80 Laws of Kenya.
Section 57 of the Act gives situations where bad character evidence can be admissible in criminal cases and they include: where such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact in issue, where the proof that he has committed or been convicted of such other offence is admissible under section 14 or section 15 of the Act to show that he is guilty of the offence with which he is then charged, he has personally or by his advocate asked questions of a witness for the prosecution with a view to establishing his own character, or has given evidence of his own good character, the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution or he has given evidence against any other person charged with the same offence.
However the Court has discretion to direct that specific evidence on the ground of the exception referred to in section 57(1)(c) of shall not be led if, in its opinion the prejudicial effect of such evidence upon the person accused will outweigh the damage done by imputations on the character of the complainant or of any witness for the prosecution as to prevent a fair trial.
Section 57 (2) provides that the evidence of previous conviction for an offence may be given in a criminal trial after conviction of the accused person, for the purpose of affecting the sentence to be awarded by the court.
The Evidence Act is silent on the standard of burden of proof required to prove bad character. Various courts have handled matters touching on bad character evidence however the issue of the standard of proof for bad character evidence has yet to be ventilated upon.
In Ndabi v Republic, Criminal Appeal No. 875 of 1986, the Court held that in consideration of conviction, the allegation without more evidence that other offences have been committed, even if admissible under the Evidence Act, would be more prejudicial to the accused than probative, if it was probative at all and should have been excluded by the learned trial magistrate on that basis.
The Court then went on to hold that the same argument applied whether one was referring to section 57(1) or section 57 (1) (a) of the Evidence Act. The Court further stated that when dealing with an unequivocal plea of guilty such evidence was not necessary for such purpose, and would, and should have rightly been excluded for that purpose.
In Republic v Thomas Patrick Gilbert Cholmondeley, Criminal Case 55 of 2006 , the Court held that it had allowed discretion to give the prosecution the go ahead to attack the character of the accused since the defence had attacked the character of the P.W.5. However, in exercise of that discretion under section 57 of the Evidence Act, the Court directed that evidence of the past character of the accused was not admissible because the prejudicial effect of such evidence upon the person accused would outweigh the damage done by imputations on the character of the P.W.5 to prevent a fair trial.
This case brings out the need for the standard of proof required in order for bad character evidence to be admissible in court to be made certain. This case will be of great help to Kenyan Courts when faced by a similar challenge.