Hanson CASE Summary - Law of Evidence CW 1 PDF

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Law of Evidence CW 1...

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Full Name: Mustafa Ozcinar Student ID: 6922593 Word Count: 1093 Module Code: 383CLS

Regina v Hanson, Gilmore, P Court of Appeal Rose LJ , Hughes and Hallett JJ 2005 March 21; 22 EWCA Crim 824

Introduction The case of R v Hanson1 was an important staple in developing and annunciating specific principles in the law of bad character, shining light on the then new and imposing Criminal Justice Act 2003, as well as its overarching goal of providing an easier way to judicate. Facts Nicky Hanson, Vincent Martin Gilmore and Robert Alan Pick all pled guilty to their accused charges. They all lodged similar complaints regarding the manner in which the tribunals handled the applications by the Crown Prosecution Service to permit the defendants bad character using gateway (d) as evidence to their propensity to commit their crimes in question, subject to section 101 and 103 of the Criminal Justice Act 2003 (CJA). All three appeals were rejected. Analysis Prior to the CJA, evidence of bad character had only been admissible through a ‘striking’ similarity between offences2. Following Hanson therefore, the Court of Appeal re-established Parliaments purpose in respect to the CJA - to assist in evidence based conviction, minimising the risk of non-guilty individuals facing conviction by prejudice. Specifically, Hanson delivers a focus on the link between bad character evidence and its probative value. Furthermore, in any case in which bad character is adduced to reflect an individual’s propensity to unlawful or dishonest nature, should remind the jury to approach previous convictions with an eye on relevancy to the offence in question and this has since been reinstated by Campbell3. Evidence must not be used as an instrument to bolster a lesser case. It is in fairness’ best interest for the jury to assess the defendants reasoning for these convictions and compare its propensity to commit similar offences. It is imperative the jury do not impose excess reliance on the accused’s bad character.

1 [2005] EWCA Crim 824 2 [1975] AC 421 3 [2007] EWCA Crim 1472

Hanson reiterated seven gateways useable as a vehicle for admittance of bad character. The following however will only focus on gateway (d). Section 103(1) prompts the need for the prosecution to show a propensity to commit crimes of a similar nature if evidence of bad character is to be adduced. Hanson has narrowed the issue of propensity to three questions: a. Does the history of the conviction (s) establish a propensity to commit offences of the kind charged? b. Does that propensity make it more likely that the defendant committed the offence charged? c. Is it unjust to rely on the conviction (s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted? Questionably, Rose L.J. came to the conclusion in Hanson that ‘there is no minimum number of events necessary to demonstrate propensity’4 so long as they fall within the same category of the offence as per s.103(2). Propensity can be defined as an often natural inclination or preference5. Synonyms of propensity include leaning, penchant or tendency. Basic inference highlights the term propensity suggests a repetitive nature. A probative value being adduced merely from one conviction does not seem to fit the term of propensity. However, as per Larkin6, evidence of bad character may be admitted even if a defendant appears before the court with even a single conviction so long as the previous conviction demonstrates a tendency of unusual modus operandus7 (behaviour) or where its circumstances demonstrate probative force in relation to the offence charged.8 Clearly demonstrated in Bernasconi9 whereby a previous single offence of affray had been deemed to show a propensity, with the Court of Appeal endorsing the admittance via gateway (d). However, the law itself is seen to be contradictory. In Long10, the defendants conviction had been quashed due to the judge wrongfully admitting evidence of a single previous conviction for robbery due to its unlikelihood to demonstrate propensity. Contrarily, the Court of Appeal in Jackson11 approved the judges’ decision to allow evidence to be drawn from a single murder conviction 20 years prior. S.101(3) makes it imperative that the court must exclude bad character evidence from gateway (d) if said evidence would have such an adverse effect to the fairness of proceedings. In the same manner , if said single previous offence displays ‘unusual tendencies'12 or probative value, it can show a propensity to partake in unlawful activity. The decision in Jackson is puzzling. It is agreed that the defendants previous conviction displays probative force however to admit bad character evidence of only one previous case will undoubtedly 4 Hanson (n 9) 5 https://www.merriam-webster.com/dictionary/propensity 6 [2016] EWCA Crim 170 7 Steventon, BV and Brown, (2008) The admiisiablity of bad character evidence, Coventry Law Journal, 13 (1): 1-9 8 ibid 9 [2006] EWCA Crim 1052 10 [2006] EWCA Crim 578 11 [2011] EWCA Crim 1870 12 Hanson (n 8) (13).

cause adverse effects on the fairness of proceedings. In the same light, in Brown (2011), it was no issue for the Court of Appeal to allow the prosecution to adduce the defendants one previous conviction of robbery through application of s.101. ‘Unusual tendencies’ most certainly affiliates with McGarvie (2011)13 and Benabbou (2012)14 , both concerning the convictions of rape. It is therefore alarming that the Court of Appeal quashed these convictions with refusal to admit both defendants only previous convictions of sexual assault. Quoting McKenzie (2008) “a single previous conviction is unlikely to show propensity unless it shows a tendency to unusual behaviour”15 The Sexual Offences Act 2003 has expanded the view that the offence of rape has been classed as ordinary in the realm of sexual offences, however the offence presupposes a willingness for the defendant to disregard another person’s sexual autonomy in a way that is extraordinary16. The Court of Appeal would be far more in their rights to admit bad character evidence in McGarvie or Banabbou for unusual modus operendus, just as they did in B (Richard William17 or similarly in the case of Miller 18 for example, whereby the defendants single previous conviction of rape of a 13 year old had been admitted for cross examination. The proceedings would undoubtedly be exposed to prejudice, but so would the evidence of bad character in Jackson or Bernasconi. Hanson is clear in its comprehensive guidance of application of section 101 and 103. In saying that, it is evident that the issue of propensity is far more complex than Hanson could have anticipated. What is most evident is cases where propensity is in issue are undoubtedly prejudiced if a single prior conviction is used to highlight bad character.

Bibliography

Journals Steventon, B.V. and Brown, S.J. (2008) The admissibility of bad character evidence. Coventry Law Journal, volume 13 (1): 1-9. Cases 13 [2011] EWCA 1414 14 [2012] EWCA Crim 1256 15 [2008] EWCA Crim 758 16 J R Spencer, Evidence of Bad character 17 [2008] EWCA Crim 1850 18 [2010] EWCA Crim 1578

B (Richard William [2008] EWCA Crim 1850 Benabbou[2012] EWCA Crim 1256 Bernasconi [2006] EWCA Crim 1052 Campbell [2007] EWCA Crim 1472 Dpp v Boardman [1975] AC 421 Hanson [2005] EWCA Crim 824 Jackson[2011] EWCA Crim 1870 Larkin [2016] EWCA Crim 170 Long [2006] EWCA Crim 578 McGarvie [2011] EWCA 1414 Mckenzie [2008] EWCA Crim 758 Miller [2010] EWCA Crim 1578 Legislation Criminal Justice Act 2003 The Sexual Offences Act 2008 Books

Robert McPeake (2014) Ian H. Dennis, The Law of Evidence (2017) J R Spencer, Evidence of Bad character (2016) 3rd e.d. Websites Propensity Definition, (< https://www.merriam-webster.com/dictionary/propensity >) accessed 10th February 2019...