Monday, 23 December 2013

Nigella Lawson and section 100 of the Criminal Justice Act 2003

The trial of sisters Elisabetta and Francesca Grillo became a media circus because television celebrity Nigella Lawson (pictured) was the key prosecution witness. The Grillos were accused of fraudulently using the credit cards of Charles Saatchi's private company - Telegraph 27th November.   They were acquitted.  The sisters claimed that Lawson had permitted them to use the credit cards in exchange for their silence regarding her drug use.  R v Grillo and Grillo. This was a claim which brought into play the "bad character" provisions in the Criminal Justice Act 2003 Part 11 Chapter 1.

The 2003 Act replaced common law rules relating to bad character evidence and essentially made a fresh start with regard to when evidence of bad character might be used at trial.  Bad character evidence of non-defendants and defendants is addressed by the Act.

By section 98, evidence of a person’s “bad character” is defined as evidence of, or of a disposition towards, misconduct on his part, other than evidence which - (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.   Thus, bad character is not confined to previous criminal convictions or cautions but extends to "misconduct" and, by section 112, "misconduct” means the commission of an offence or other reprehensible behaviour.  Possession of a controlled drug is, of course, an offence - Misuse of Drugs Act 1971 section 5 and so, in principle, evidence that a person possessed a controlled drug could amount to bad character evidence.

Section 100 deals with "Non defendant's bad character."  It is possible for all parties to agree that such evidence be introduced - section 100(1)(c).  If there is no such agreement, a party who wishes to adduce bad character evidence of a witness must apply to the court for leave to introduce the evidence and, by section 110, the judge must state in open court (but in the absence of the jury) the reasons for a decision.

The conditions (or "gateways") for admissibility of non defendant bad character are set out in section 100.  The evidence of bad character must either:

(a) be "important explanatory evidence" - section 100(1)(a) or

(b) have "substantial probative value" in relation to (i) a matter in issue in the proceedings and (ii) be of substantial importance in the context of the case as a whole - section 100(1)(b) or

(c) all parties to the proceedings agree to the evidence being admissible.

Evidence is "important explanatory evidence" if (a) without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case, and (b) its value for the understanding of the cases as a whole is substantial.

In assessing the probative value of evidence, the court must have regard to a non-inclusive list of factors set in section 100(3) - e.g. the nature and number of events, or other things, to which the evidence relates and when those events or things are alleged to have happened or existed.  Section 100 goes on to deal with certain other matters.

Arguably, section 100 has the potential to deter individuals from giving evidence.  This is discussed by Geoffrey Robertson QC in an article in The Guardian - The vilification of Nigella Lawson: this is no way to treat a witness.   Robertson states:

'Criminal justice is dependent upon the willingness of witnesses to testify in public – a nerve-racking experience. If they or their family can be vilified, in the defamation-free zone of a courtroom, then they will be reluctant to do this civic duty.'

He concludes by arguing:

'The best way forward would be for parliament to amend section 100 so that whenever a judge permits "bad character" cross-examination of a witness with "good character" (ie with no previous convictions), such witnesses should be entitled to their own counsel who could cross-examine their accusers and call evidence of innocence.'

Interestingly, in the Grillo case, the trial judge had initially refused to permit bad character evidence to be introduced.  As Robertson states:

The law (section 100 of the Criminal Justice Act 2003) only allows "bad character" evidence about a witness if this might have "substantial probative value", and in a detailed ruling delivered on 15 November the judge refused to allow it. A few days later, the judge changed his mind when he was shown the email Charles Saatchi sent to his ex-wife after he had seen confidential statements apparently made by the Grillos to their solicitors, which had mysteriously appeared on an internet blog site.' 

The law in the Criminal Justice Act 2003 is based on the Law Commission's report (LC273, 2001) - Evidence of Bad Character in Criminal Proceedings.  Section 100 has resulted in a considerable amount of case law - e.g. Brewster 2010

A very useful resource on bad character evidence 


  1. I find it very strange that if a person is testifying against you in a criminal trial there is no automatic right to adduce bad character evidence.

    It seems obvious that bad character would undermine any evidence that they gave so would automatically be of "substantial probative value" - at least insofar as the evidence they gave was of substantial probative value. So other than a hostile witness I cannot see any application for the rule.

    1. I have added a link to this post - A very useful resource on bad character evidence. The intended purpose of section 100 is explained at pages 145 / 146. The useful resource contains links to decided cases.

      For my part, I am of the same view as Geoffrey Robertson QC (link in article) who argues that a witness against whom bad character evidence is permitted should have the right to challenge that evidence and to adduce any contrary evidence. That way, the jury will have a fuller picture of the character of the witness.