Criminal Justice Act 2003, section 107

Stopping the case where evidence contaminated

Part 11 Evidence

(1)If on a defendant’s trial before a judge and jury for an offence—

(a)evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(b)the court is satisfied at any time after the close of the case for the prosecution that—

(i)the evidence is contaminated, and

(ii)the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

(2)Where—

(a)a jury is directed under subsection (1) to acquit a defendant of an offence, and

(b)the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,

the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1)(b) in respect of it.

(3)If—

(a)a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged,

(b)evidence of the person’s bad character has been admitted under any of paragraphs (c) to (g) of section 101(1), and

(c)the court is satisfied at any time after the close of the case for the prosecution that—

(i)the evidence is contaminated, and

(ii)the contamination is such that, considering the importance of the evidence to the case against the person, a finding that he did the act or made the omission would be unsafe,

the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.

(4)This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.

(5)For the purposes of this section a person’s evidence is contaminated where—

(a)as a result of an agreement or understanding between the person and one or more others, or

(b)as a result of the person being aware of anything alleged by one or more others whose evidence may be, or has been, given in the proceedings,

the evidence is false or misleading in any respect, or is different from what it would otherwise have been.

Definitions used in section 107 4

defendant

“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
offence

“offence” includes a service offence;

Defined in s.112(1) · see it in the full Act
bad character

References in this Chapter to evidence of a person’s “bad character” are to 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.

Defined in s.98 · see it in the full Act

“bad character” is to be read in accordance with section 98;

Defined in s.112(1) · see it in the full Act
the court

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act

Cases considering section 107 9

R v Victor Marke

[2023] EWCA Crim 505 · 4 April 2023Interprets

Section 107 does not require a judge to make a positive finding on contamination when determining the bad-character application; its stopping mechanism was not invoked here (see para [14]).

N(H) v R.

[2011] EWCA Crim 730 · 29 March 2011

If admitted evidence is found to be contaminated, the judge must act under section 107. Where contamination is not established but remains a real risk, the jury require an appropriate warning before relying on mutual complaints as support. (see paras [38]-[41])

Lamb, R. v

[2007] EWCA Crim 1766 · 18 July 2007Defines

The duty to stop the case arises only where the court is satisfied that admitted bad-character evidence is contaminated and that, given its importance, a conviction would be unsafe. Those conditions were not met here; the relevant safeguard was an adequate jury warning. (see paras [36]-[39]; [56]-[57]) The court treated contamination as capable of arising from an agreement or from awareness of another person’s allegation, including evidence altered consciously or unconsciously. The complainants’ discussions created a material risk requiring a direction on evidential weight. (see paras [36]-[38]; [53]-[56])

What each judgment says about section 107 is in the case-law panel in the full Act.

Explanatory note

383.Section 107 deals with circumstances in which bad character evidence has been admitted but it later emerges that the evidence is contaminated, that is, has been affected by an agreement with other witnesses or by hearing the views or evidence of other witnesses so that it is false or misleading (see Section 107(5)).

384.Ordinarily it is for the jury to decide whether or not to believe evidence and decide on the weight to be placed on it. In cases where a question of contamination has arisen, the current position is that the judge must draw that matter to the jury’s attention and warn them that if they are not satisfied that the evidence can be relied on as free of collusion, then they cannot rely on it against the defendant. If it becomes apparent that the evidence is so contaminated that it could not reasonably be accepted as free from collusion, the judge should go further and direct the jury not to rely on the evidence for any purpose adverse to the defence. This will continue to be the case.

385.However, there may be cases where it is not possible to expect the jury to put this evidence completely out of their mind. There are existing common law powers for the judge to withdraw a case from the jury at any time following the close of the prosecution case. Section 107 builds on these powers by conferring a duty on the judge to stop the case if the contamination is such that, considering the importance of the evidence to the case, a conviction would be unsafe. This is intended to be a high test and if the judge were to consider that a direction along the lines described above would be sufficient to deal with any potential difficulties, then the question of safety does not arise and the case should not be withdrawn.

386.Having stopped the case the judge may consider that there is still sufficient uncontaminated evidence against the defendant to merit his retrial or may consider that the prosecution case has been so weakened that the defendant should be acquitted. Section 107(1) provides for the judge to take either of these courses. If, however, an acquittal is ordered then the defendant is also to be acquitted of any other offence for which he could have been convicted, if the judge is also satisfied that the contamination would affect a conviction for that offence in the same way (Section 107(2)). Section 107(3) extends the duty to the situation where a jury is determining under the Criminal Procedure (Insanity) Act 1964 whether a person, who is deemed unfit to plead, did the act or omission charged. Section 107(4) makes it clear that the section does not affect any existing court powers in relation to ordering an acquittal or discharging a jury.

All the explanatory notes for the Act