An amazing piece of legislation

I rarely show interest in legislation before it has been passed as so often we see grand schemes trumpeted with somewhat of a damp squib being passed.  This is an exception. The Criminal Justice Act 2003. Many of us would have assumed that the bad character provisions of the Bill would not make their way into the Act. Not only did they survive but the chances are that they have done so in a way that will not be upset by the ECHR (individual cases may be overturned in the ECHR but the legislation will survive).

Bad Character looks like it could be a provision to break the legal aid fund. There will be few cases where the costs are not increased due to the need to consider and then (perhaps) make the necessary applications.  Even if you do not presently intend to introduce the evidence of bad character of a witness or of a co-defendant the application will still need to be considered and often made (just in case).

If there had to be a reason why the provision must be ill thought out it is in relation to disclosure. The crown must surely have to serve details of acquittals for witnesses as well as convictions. There must also be an increased responsibility on the crown to investigate their witnesses background much more than was ever the case.  Defence teams will need to make sure the crown is pursued on the subject otherwise the Act will be skewed in a way that could not have been intended.

Strangely, it is not feasible that the provision will make a huge difference to the large proportion of trials.  It should catch the serial offender who runs the same defence on a number of occasions but judges may be loathe to rush in and allow applications to put in a defendant’s bad character just in case it is not needed and the effect is to hand an appeal to an offender who may be convicted in any event.

Clarke Kiernan,

1 Lamberts Yard, Tonbridge, TN9 1ER

Phone: 01732360999, Fax : 01732353835, info@clarkekiernan.comMap