Law Digest: 1 February 2008

R v B [2008] EWCA Crim 4, [2008] All ER (D) 85 (Jan)

The bad character provisions of the Criminal Justice Act 2003 (CJA 2003) are intended to replace the common law relating to bad character; the common law rules are not to be brought back by a restrictive interpretation of ss 101(1)(d) and 103, Thus, there is no need for “striking similarity”. It may also remain true that a defendant who claims he did not commit an offence (for instance of violence) but who admits his propensity to violence, may not succeed thereby in keeping out his previous convictions for violence, which may remain relevant to the question of his guilt, possibly because of the degree or nature of his propensity. Despite the change in the law, the test is still relevance. The fact that s 103(1) seems to have the effect of always potentially including the “question of” propensity among “the matters in issue” should not be overstated to the extent that sight is lost of the need for relevance. The bad character must still be relevant to an “important” issue; it will not be a matter in issue at all where the proviso to s 103(1)(a) operates “except where his having such a propensity makes it no more likely that he is guilt yof the offence”. The safeguard of s 103(4), where it would be “unjust” for previous convictions of the same description or category to be admitted to be used to establish a propensity, itself emphasises the significance of probative value. Section 101(3) also requires a balancing of probative value and undue prejudice to the defendant (Lord Justice Rix at para 29).