关于Versus Highton一案的启示的法律论文 [6]
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论文字数:3619论文编号:org201409241313595262语种:英语 English地区:中国价格:免费论文
关键词:Versus Highton法律论文Law Essay刑事案件
摘要:本文是关于Versus Highton一案的启示的法律论文,良好的品格作为可受理的证据仍然受到普法的管辖。至于人品太差的情况,1865年刑事诉讼法第3条规定,一方当事人无权以自己亲眼看到的不良品格作为一般证据,来否定信誉。
victions for shoplifting were admissible to show propensity to steal although the judge had erred in considering the dates of the convictions rather the dates of the offence. Pre-2003 Act will continue to apply when assessing whether an attack has been made on another person’s character under s.101(1)(g) provided it was compatible with s.106. [40]
Evidence admissible under s.101(1)(g) is open to discretionary exclusion under s.103(1). In R v Burke, [41] Aukner LJ rehearsing the cardinal principle set out in Selvey v DPP [42] upon which the discretion to exclude was exercised under s.1(3)(ii) CEA 1898, said that the trial judge may feel that if the credit of the prosecutor or his witnesses has been attacked, the jury should form their judgment on material whether the accused is any more worthy of belief than those he has attacked. [43]
Regarding the various discretion that can apply to bad character evidence, it seems arguable that there is material difference between evidence admitted via gateway (d) and (g). The court can only contemplate excluding evidence under the “unfairness discretion” of s.101(3) “on an application by the defendant to exclude it.” In contrast, the “unjustness discretion” must automatically considered by the court. If a defendant apply to exclude bad character evidence under s.101(1)(g) but the evidence is also held to go to propensity under s.101(1)(d), the defendant will be deprived from the protection of “unjustness discretion”, the evidence only applied to one of its purposes as in Highton and Campbell. A further problem arises regarding the notice requirement. Pt.35.4(1) of the Criminal Procedure Rules 2005 provides that notice must be given under s.101 CJA 2003 in order for prosecution to raise bad character evidence. [44] However, it seems nothing to suggest that failure to comply with the notice provisions will of itself prevent the admission of the evidence, without unfairness being shown. [45]
Since the CJA 2003 come into force a defendant enjoys less protection than he did under the CEA 1898.The rule merely gave rise to a certain intellectual untidiness, which troubled the sensibilities of the Law Commission. [46] The 2003 Act has introduced a highly uncertain regime, where one can anticipate consideration variation from one court to another. [47] There is suggestion for a reversion to the orthodox common law rule and 1898 statutory provisions practice might free the court to focus more intensively on the application of its decisions. However, the new regime does has its benefits and not yet reach a “nightmare of
constitution” situation, the 2003 Act should be amended and reform on it despite of abolishing it. It would be clear that the judge must exercise care when summing up
the case, and directions must be given to the jury on the relevance of bad character evidence. Furthermore, there should be a duty on the court to give reasons for its ruling, [48] Last but not least, the CJA 2003, like any other statute, must be interpreted in the light of the European Convention on Human Rights, Art 6(2) of which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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