“Matter in issue between the defendant and a co-defendant”
Part 11 Evidence
(1)Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.
(2)Only evidence—
(a)which is to be (or has been) adduced by the co-defendant, or
(b)which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,
is admissible under section 101(1)(e).
“probative value”, and “relevant” (in relation to an item of evidence), are to be read in accordance with section 109;
Defined in s.112(1) · see it in the full Act“defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings; and “co-defendant”, in relation to a defendant, means a person charged with an offence in the same proceedings;
Defined in s.112(1) · see it in the full Act“defendant”, in relation to criminal proceedings, means a person charged with an offence in those proceedings; and “co-defendant”, in relation to a defendant, means a person charged with an offence in the same proceedings;
Defined in s.112(1) · see it in the full ActThe court applied the condition that evidence of a propensity to be untruthful is admissible for a co-defendant only where the defendant’s defence undermines that co-defendant’s defence. It was plainly met. (see para [36]) The court accepted that Luke’s proposed evidence satisfied the requirement that it be adduced by a co-defendant. (see para [29])
The court applied the condition that a co-defendant’s propensity to be untruthful is admissible only where the conduct and nature of that co-defendant’s defence undermines the defendant’s defence. A person who pleaded guilty and ran no defence could not meet that condition (see para [32]).
The court held that this provision applies only where the issue is a propensity to be untruthful. It did not govern the separate issue of propensity to commit an offence of the relevant kind. (see paras [14]-[15])
What each judgment says about section 104 is in the case-law panel in the full Act.
375.Section 104 relates to evidence that is relevant to issues between the defendant and a co-defendant (section 101(1)(e)). Evidence is only admissible on this basis by (or at the behest of) a co-defendant: see Section 104(2) – the prosecution therefore cannot avail themselves of this provision. A co-defendant may wish to adduce evidence of a defendant’s bad character if his defence is, for example, that it was the defendant, rather than himself, who was responsible for the offence. Under Section 101(1)(e) evidence is admissible on issues between the defendant and a co-defendant if it has substantial probative value in relation to an important issue in the case. In other words, evidence that has only marginal or trivial value would not be admissible, nor would it be admissible if the issue it related to were marginal or trivial in the case as a whole. However, once this threshold is passed, there is no power for the courts to exclude the evidence. This ensures that defendants are able to put forward the widest range of evidence in their defence and reflects the current position. Section 104 restricts the admissibility of evidence of a defendant’s bad character that only shows that he has a propensity to be untruthful (that is, is not credible as a witness) to circumstances in which the defendant has undermined the co-defendant’s defence. In these circumstances, his credibility may well have a bearing on resolving the issues in the case.