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Law Of Evidence Essay

2100 words - 8 pages

After over 100 years the provisions of the Criminal Evidence Act 1898 relating to the cross examination of the accused are set to be fundamentally reconsidered. Three key reports have recommended such action. Lord Justice Auld in the Criminal Court Review, the Government in "The Way Ahead" policy paper and the Law Commission in their report Evidence of Bad Character in Criminal Proceedings have all outlined solutions to solve the problems that allow the current rules for cross examination of defendants under the Criminal Evidence Act 1898 to operate unfairly and distort the process. Although most agree that reform is necessary how this should be done has proved a more difficult question to answer.Broadly speaking the Criminal Evidence Act 1898, sections 1(2) and 1(3) state that an accused cannot be cross-examined on his or her previous misconduct. The main reasons advanced for the rule are that such evidence is generally irrelevant and that, in any event, its prejudicial effect is likely to outweigh its probative effect. However, there are three exceptions to the general rule: first, where it would be admissible to prove he is guilty of the offence charged, in the main similar fact evidence, but also including evidence under various statutes; second, where he has sought to establish that he is of good character or has attacked the character of a prosecution witness or a deceased victim; and third, where he has given evidence against a co-defendant in the proceedings.It has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty. The Criminal Law Revision Committee in 1972, and the Runciman Royal Commission in 1973 recommended continuation of the scheme of general exclusion, but subject to slightly different exceptions, the latter also recommending that the Law Commission should consider it. In 1994 the Law Commission was asked to do so; it produced a consultation paper in 1996 prior to publishing its final report in 2001 mentioned above. Before this report the Government, in its policy paper "The Way Ahead", described the present law as a "haphazard collection of exclusionary rules" and mentioned as a possibility for "simplification" of the law, the admission of evidence of previous convictions where relevant, providing that their prejudicial effect does not outweigh their probative value. Ben Fitzpatrick in his article felt that "the assimilation into a single statute of the various principles developed by Parliament and the courts regarding the admissibility of previous misconduct should be welcomed, on the grounds of clarity and accessibility."In the Lord Justice Auld report Auld asserts his long held resistance to putting a defendant's previous convictions before a jury as part of the proof of guilt even under the present statutory regime. He said "It has always seemed to me that it is a poor prosecution case that needs to rely on a man's previous convictions in order to convict him. If the...

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