15. Character Evidence

Question 1

What is bad character evidence?

Answer 1

Evidence of, or a disposition towards, misconduct on his part other than evidence which:
(a) is to do with the facts of the offence that is charged or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence

Question 2

(At a very high-level basis) When is bad character evidence admissible?

Answer 2

If, but only if, it falls within a gateway in s101 of the CJA 2003.

Question 3

If evidence paints the accused in a bad light but does not fall within the meaning of bad character, can it be admitted? If so, on what grounds?

Answer 3

Yes, on the grounds of relevancy

Question 4

What does ‘misconduct’ in the meaning of bad character mean?

Answer 4

The commission of an offence or other reprehensible behaviour.

‘Other reprehensible behaviour’ may include gang membership, a finding in civil proceedings, rap lyrics, disciplinary proceedings e.c.t.

Question 5

If evidence unrelated to bad character is proposed to be adduced but is such evidence that bad character is implied, should it be subject of a bad character application?

Answer 5

Potentially, but also potentially not. May be better to regard it requiring an application than not.

Question 6

May subsequent (post-charge) misconduct be included as bad character?

Answer 6

Yes, including as propensity

Question 7

Where does the value of the bad character evidence come from?

Answer 7

Generally, the proof of the facts that the conviction was founded on.
However, if, for example, propensity to commit dwelling house burglary was the only thing to be shown through previous convictions, the mere fact of the previous convictions may suffice.

Question 8

Who decides what the facts of the previous bad character conviction are?

Answer 8

The jury, unless it is agreed evidence.

Question 9

How are the facts of the previous bad character conviction proven?

Answer 9

In the normal way.
Business and other records could help. (Nathan’s note – one way could be by the CPS’ case notes.

Question 10

Where there are multiple charges, can the prosecution refer to evidence relating to charge 1 in support of charge 2?

Answer 10

Yes, if a bad character application is made. This is cross-admissibility. A gateway is required.

Question 11

Where cross-admissibility is in play, what should the judge do if he has not allowed the evidence in support of charge 1 to be bad character evidence of charge 2?

Answer 11

He should give a strong and carefully crafted direction about that

Question 12

Where cross-admissibility is in play and the judge has allowed the application for the bad character evidence to be used in that way, what should he do?

Answer 12

He should give a strong and carefully crafted direction to ensure they do not make improper usage of those charges.

Question 13

In cases of cross-admissibility, does the notice procedure apply?

Answer 13

Yes, in the same way.

Question 14

Can bad character evidence be used where an acquittal is the result of the previous proceedings?

Answer 14

Potentially yes, if it meets one of the statutory gateways.
Could be excluded under s101(3) or s78.
Does not infringe double jeopardy rule so long as the prosecutor does not intend to punish them in any other way.

Question 15

Can bad character evidence be used where the evidence is merely that there has been a criminal complaint that has been NFA’d?

Answer 15

Potentially (including complaints in different countries), if it meets one of the gateways.
Fairness is a big consideration here. The passage of time may be relevant in this consideration, such as where the time passing has meant that the circumstances were such that the accused could not properly challenge the bad character evidence.
A transcript is not necessary.

Question 16

Can a co-accused adduce evidence of bad character where the other co-accused has been acquitted?

Answer 16

Yes, where it meets s101(1)(e) – that it has substantial probative value in issue between the defendant and a co-defendant.
Common-law restrictions with regard to evidence resulting in an acquittal had never applied to evidence relevant to the defence of the accused.

Question 17

When bad-character evidence is adduced, are the jury bound to accept the factual basis on which he has been sentenced?

Answer 17

Potentially not.

Question 18

What is the meaning of ‘reprehensible behaviour’ for bad character?

Answer 18

Some element of culpability or blameworthiness. Though a D may be unfit to plead, this does not mean all his culpability has been extinguished.
Conduct is not ‘reprehensible’ because it is morally lax, such as where a 30 y/o had a relationship with a 16 y/o.
What is reprehensible is to be distinguished from what is irritating, inconvenient, or upsetting.
Decisions as to what is reprehensible are fact-specific.
Some examples include evidence of gang-membership or violent rap lyrics.

Question 19

What is evidence that ‘has to do with’ the alleged facts in the indictment (in context of bad-character)?

Answer 19

It is a loose phrase which should not be interpreted literally but should be read in context of evidence which is admissible under the gateways as technically bad character evidence also has something ‘to do with’ the facts, so these should not be included in this definition.
One possible interpretation is that it permits ‘anything directly relevant to the offence charged’ with the proviso that the evidence should be ‘contemporaneous with and closely associated with its alleged facts’. The temporal connection is only one way of supplying the relevant nexus. Motives are clear cases where no temporal connection may be required.

Question 20

Do the bad character provisions contain any protection against previous suspicion or charges?

Answer 20

Not if it is not suggested that he was guilty, though this evidence would of course have to be relevant.
The mere fact of an allegation is likely not relevant unless there is supporting evidence.
Where it is relevant, it may be admitted where its purpose is not to show bad character.
Evidence of a previous acquittal is unlikely to be of relevance except where contended he is guilty, although that may be unfair to contend that.

Question 21

What does section 98 say?

Answer 21

98“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.

Question 22

Where is the statutory scheme for the introduction of bad character of persons other than the accused?

Answer 22

Criminal Justice Act 2003 s100

Question 23

(In a high-level description) when would non-defendant bad character be able to be introduced?

Answer 23

In the circumstances allowed by s100 with the leave of the court OR where the parties agree

Question 24

What is the purpose of s100 CJA?

Answer 24

It aims to eliminate old, irrelevant, or trivial behaviour to diminish the standing of the witness. Also aims to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration on the real issues

Question 25

What is the meaning of bad character for non-defendants?

Answer 25

The same (as contained in s98).
Evidence which, though it may show a person in a bad light, is not evidence of bad character and may be given provided it is relevant. Equally, evidence of a medical condition which may affect the credibility or propensity of a witness is not bad character and is admissible at common law.

Question 26

What is evidence to do with the facts of the offence or its investigation/prosecution for non-defendant witnesses?

Answer 26

Evidence of misconduct tendered to prove bias or partiality is not evidence of bad character.
Evidence of someone having taken drugs is to do with the facts of the offence where the case is that this was the reason for his sudden collapse.
A plea of guilty by a co-accused has to do with the offence charged and is not evidence of the co-accused’s bad character.
Evidence of police misconduct, such as planting evidence or fabricating a confession or lying or intimidation is covered by this.
Misconduct in separate investigations would seem to be admissible only if s100 applies.

Question 27

When is bad character evidence of a non-defendant admissible?

Answer 27

Where:
(a) it is important explanatory evidence
(b) it has substantial probative value in relation to a matter ion issue and of substantial importance to the case of a whole, or
(c) all parties agree

in both (a) and (b), this evidence cannot be adduced without leave of the court.

Question 28

What witnesses does the bad character provisions apply to? Does it apply to a written statement which, for example, is admitted under an exception to the hearsay rule?

Answer 28

It regulates ALL aspects of the use of bad character of a person other than the accused, whether or not the person appears as a witness.
This therefore includes where admitted as hearsay and the character of a deceased in a trial for murder.

Question 29

What are the important features of the test of admissibility for non-defendant bad character evidence?

Answer 29

1. The test of substantial probative value is not the same as the one for defendants
2. If the conditions of s100 are met, there is no residual statutory discretion where the judge could refuse to admit
3. Except where agreement on admittance is made, the leave of the court is always required
4. Rulings in absence of agreement require the exercise of judgment, rather than of discretion

Question 30

Could evidence which meets the test for non-defendant bad character to be admitted still be excluded under s78?

Answer 30

Yes.

Question 31

How strict of a construction should be given to the gateways?

Answer 31

It should be a strict reading given to ensure fairness and prevent unnecessary issues.

Question 32

When is non-defendant bad character important explanatory evidence?

Answer 32

If:
(a) D
(a) Without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case and
(b) Its value for understanding the case as a whole is substantial.

For example if an assault is said to have occurred between serving prisoners, in a cell they shared, it might be impossible or difficult to present the case without reference to this context, though the offences for which they were imprisoned were otherwise irrelevant.

Evidence being relied upon for its probative value is not meant to be admitted under here.

Evidence of a motive to lie may be considered explanatory evidence, but as such evidence would require to have probative value in relation to credibility, the probative gateway is better.

“substantial” has its natural and ordinary meaning.

Question 33

What is the meaning for substantial in relation to substantial probative value in relation to a matter in issue of substantial importance for non-defendant bad character?

Answer 33

The judge must consider two essential questions:

1. Whether the issue to which the evidence goes is of substantial importance in the case as a whole and
2. Whether the evidence had substantial probative value in relation to a matter in issue.

Substantial bears its ordinary meaning. May be considered as ‘enhanced capability’.

Question 34

What is the meaning for matters in issue in relation to substantial probative value in relation to a matter in issue of substantial importance for non-defendant bad character?

Answer 34

Will usually be the propensity or credibility of the person of bad character.
Proof of propensity admitted by the defence does not need to be to the criminal standard. There is likely no burden on the defence for this.
Credibility is capable of being an issue of substantial importance in relation to the case as a whole.
Character of a deceased may be a matter in issue.
Another reason is potentially to show that V had been beaten by others, not D, because of drug debts.

Question 35

How is the assessment of substantial probative value in relation to non-defendant bad character undertaken?

Answer 35

It relates to the force of the evidence and must take account of the context of a case as a whole.

Whether convictions have persuasive value depends on their nature, number, and age.

The more serious the misconduct, and the greater the number of those incidents, and freshness of it may have more probative value

There are statutory matters to take into account

Question 36

What are the factors the court must have regard to when assessing whether there is substantial probative value in relation to non-defendant bad character?

Answer 36

To these (and any others it considers relevant):
1. The nature and number of events to which the evidence relates;
2. When those events or things are alleged to have happened or existed
3. Where:
a. The evidence is evidence of a person’s misconduct, and
b. It is suggested that it is probative by reason of similarity of that and any other misconduct
The nature and extent of those similarities and dissimilarities
4. Where
a. The evidence is of a person’s misconduct
b. It is suggested that that person is also responsible for the misconduct charged, and
c. The identity of the person responsible is disputed
The extent to which the evidence shows or tends to show that the same person was responsible each time

Question 37

What guidance is there on non-defendant bad character evidence relating to issues other than credibility?

Answer 37

May be admitted to show propensity, for example, for violence. Still must be of substantial probative value.

Probative value may be diminished by other evidence in the case.

May also be admitted to show what D’s intention may have been (i.e. if he knew that V was violent, his assessment of self-defence would’ve been different).

Unsubstantiated allegations that a third party may have been responsible merely because the non-defendant deals drugs should not be admitted where it is only done so to say ‘these types of activities can lead to this’ and thus it was not me.

Stereotypical thinking is warned against.

Convictions of another may be admitted where D’s knowledge of them has probative value (i.e. a mother’s knowledge of her son’s previous convictions for violence was relevant to the question of whether she knew, having driven him to a scene of a murder, what it was he intended to do there).

Question 38

What guidance is there on non-defendant bad character evidence relating to issues of credibility?

Answer 38

Credibility is clear capable of being a matter in issue of substantial importance.

Evidence that might quality as being of substantial probative value in relation to credit is of two types:
evidence relevant directly (providing a reason for doubting the truth of the evidence of the witness) AND
evidence indirectly relevant (as providing a general reason the person cannot be trusted).

The test to be applied is whether the evidence was ‘reasonably capable of assisting a fair-minded jury to reach a view as to whether the evidence is, or is not, worthy of belief’.

Question 39

What does section 100 CJA 2003 say?

Answer 39

100Non-defendant’s bad character
(1)In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a)it is important explanatory evidence,
(b)it has substantial probative value in relation to a matter which—
(i)is a matter in issue in the proceedings, and
(ii)is of substantial importance in the context of the case as a whole,
or
(c)all parties to the proceedings agree to the evidence being admissible.
(2)For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b)its value for understanding the case as a whole is substantial.
(3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—
(a)the nature and number of the events, or other things, to which the evidence relates;
(b)when those events or things are alleged to have happened or existed;
(c)where—
(i)the evidence is evidence of a person’s misconduct, and
(ii)it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(d)where—
(i)the evidence is evidence of a person’s misconduct,
(ii)it is suggested that that person is also responsible for the misconduct charged, and
(iii)the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was responsible each time.
(4)Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.

Question 40

What gateways are there for the admissibility of defendant bad character evidence?

Answer 40

(A) All parties agree
(B) The evidence is adduced by the defendant himself or given in answer to a question asked by him in cross-examination and intended to elicit it
(C) It is important explanatory evidence
(D) It is relevant to an important matter in issue between the defendant and prosecution
(E) It has substantial value in relation to an important matter in issue between a defendant and co-defendant
(F) It is evidence to correct a false impression given by the defendant, or
(G) The defendant has made an attack on another person’s character

Question 41

Once the gateway test has been met for being relevant to an important matter in issue between D and the prosecution or where D has attacked another’s character, is there a way to stop its inclusion included within s101?

Answer 41

Yes, if on an application by D to exclude it, it appears to the court the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Question 42

When considering whether to exclude defendant bad character based on an adverse effect to fairness of the proceedings, what must the court have regard to?

Answer 42

In particular, the length of time between the matters to which that evidence relates and the matters which form the subject matter of the charge.

Question 43

When may defendant bad character be said to have been admissible via agreement?

Answer 43

Via general consensus, including evidence admitted without demur from skilled counsel. General consensus is of all, including any multiple defendants.

Does not justify PII documents into evidence where they are disclosed for the purpose of XX.

Question 44

If agreement is reached on admissibility of bad character evidence, when should the court be informed about this?

Answer 44

Ideally at the beginning of the trial.

Question 45

When may it be said D’s bad character has been adduced by the Defendant himself? Why may they do this?

Answer 45

When the accused tenders such evidence.
May do so to argue never to have been convicted of an offence similar to that charged or where they have previously pleaded guilty but now plead not guilty or to stop the jury speculating that the bad character is worse than it is.

Will have to put in an appropriate direction upon this.

Question 46

What does CJA s101(c) (important explanatory evidence) deal with?

Answer 46

It reflects the common law on background evidence

Question 47

What does CJA s101(d) (relevance to an important issue in dispute between defence and pros.) deal with?

Answer 47

Only matters merely relevant to an important issue.
May include evidence of propensity or untruthfulness

Question 48

What does CJA s101(e) (evidence of a co-accused) deal with?

Answer 48

It permits a co-accused to adduce evidence of the accused’s bad character where it has substantial value in relation to an important issue between them. (may be excluded by s101(3))

Question 49

What does CJA s101(f) (false impressions) deal with?

Answer 49

Evidence which is admitted to correct a false impression

Question 50

What does CJA s101(g) (attacks on others) deal with?

Answer 50

Evidence to rebut an attack upon another person’s character (may be excluded by s101(3))

Question 51

What happens where the evidence of a defendant’s bad character is disputed?

Answer 51

The court should consider its relevance and probative value on the assumption it is true unless it appears no court or jury could reasonably find it to be true.

Question 52

What inherent distinction is there in the gateways for defendant bad character and what is its relevance?

Answer 52

A distinction between evidence going to the issue and evidence relevant to credibility.
The relevance is that the court should give common sense directions based upon the relevance of the evidence once admitted.

Question 53

What power of exclusion is contained within CJA s101?

Answer 53

The court must not admit evidence under subsection 1(d) [issue between pros and def] or (g) [attack upon another’s character]

where it appears to the court,

upon an application by the defence,

the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Is not exercisable by the court on its own motion, but could be prompted by the court. The wording is also not a discretion.

Cannot be used for the other sections. However, s78 can apply (not to gateway e, however, that being the co-defendant as s78 only relates to pros).

Question 54

What is explanatory evidence in terms of defendant bad character?

Answer 54

It is important explanatory evidence if:

Without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

Its value for understanding the case as a whole is substantial. It being merely helpful is not enough.

To say the evidence fills out the picture is not enough if the picture is already comprehensible enough.

Such evidence should not be admitted as explanatory evidence where it went to D’s propensity as using gateway d (matter in issue) would ensure the safeguard applies. The importance of distinguishing explanatory evidence and evidence of propensity is stressed here.
Such evidence may be admissible via both gateways for different purposes.

Such evidence may require a particularly careful direction.

Question 55

What may be a fair way to present admissible defendant bad character evidence for explanatory purposes?

Answer 55

In the form of an agreed statement of facts, for the avoidance of prejudice and prevent distraction of the jury.

Question 56

What other guidance is there on when defendant bad character evidence is relevant to an important matter in issue between the defendant and prosecution?

Answer 56

S103, which states the matters in issue include:
(a) Propensity, except were having such a propensity makes it no more likely he committed the offence
(b) The question of whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect

Question 57

How may a defendant’s propensity be proven? What is the exception to this?

Answer 57

S103(2), without prejudice to any other way of doing so, it may be proven from:
(a) A conviction for an offence of the same description as the one he is charged, or
(b) A conviction for an offence of the same category as the one he is charged.
A foreign conviction would also apply if the corresponding offence in England and Wales would be so treated.
The exception is s103(3) where the court is satisfied, by reason of the length of time since or any other reason, that it would be unjust for it to apply.

Question 58

Where are two offences of the same description or category for propensity in a defendant’s bad character?

Answer 58

(a) They are the same description if the statement of the offence in a charge or indictment would, in each case, be in the same terms.
(b) They are the same category if they belong to the same category of offences prescribed for the purposes of s103(4) by the SoS. A category prescribed under this section must consist of offences of the same type.

Question 59

Can both prosecution and defence use gateway s101(1)(d) (matter in issue between d and pros)?

Answer 59

Only the prosecution can.

Question 60

What guidance is there on the CJA s101(1)(d) (important matter in issue between D and pros) as to what the important matter may be and how it may be shown?

Answer 60

Important matter means a matter of substantial importance in the context of the case as a whole (s112(1)).

It is not necessary for the evidence to be of substantial probative value.

The effect is that the threshold for admitting defendant bad character is satisfied if the evidence is merely relevant to an important issue. The court would then turn to the power to exclude in s101(3). Appeal court unlikely to interfere unless unreasonably wrong.

Question 61

What guidance is there on propensity as an important matter in issue for the defendant’s bad character?

Answer 61

Although it is deemed as an issue, this should not be overstated so that relevance is lost sight of. Indeed, the wording is of an “important” issue.

In determining relevance, the judge should look at the evidence globally. The defence relied upon may be such that it makes the evidence admissible.

Where it is relevant no additional hurdle is imposed requiring other corroborating evidence (although the lack of such evidence may be relevant for determining an application to exclude)

The steps which must be followed are (TAKEN FROM HANSON):

1. Does the history of convictions establish a propensity to commit offences of the kind charged
2. If so, does the propensity make it more likely the accused committed the crime charged?
3. Where the convictions are for offences of the same category or description, is it unjust to rely on them? Where the propensity is proved by other means, is it unfair to admit it?

Question 62

What guidance does Hanson give?

Answer 62

1. Does the history of convictions establish a propensity to commit offences of the kind charged
2. If so, does the propensity make it more likely the accused committed the crime charged?
3. Where the convictions are for offences of the same category or description, is it unjust to rely on them? Where the propensity is proved by other means, is it unfair to admit it?
   Also that propensity can be demonstrated by one previous event if sufficiently probative.

Also, it will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant’s record as a whole.

As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty.

We would expect the relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to the trial judge’s ruling as to admissibility, they will be put
before the jury by way of admission. Even where the circumstances are
genuinely in dispute, we would expect the minimum indisputable facts to be thus admitted.

Shouldn’t make bad character applications simply because they have bad character - should understand the point is to only help convict the guilty

Question 63

How can propensity be demonstrated for admission of defendant bad character?

Answer 63

It could be demonstrated by one previous event if sufficiently probative such as where it is strikingly similar (Hanson).
It does not follow that a single conviction for rape, for example, would inevitably be admissible, such as where it is old and dissimilar in circumstances.
Similar considerations apply to a previous offence of non-sexual violence, such as where they are strikingly similar incidents.
On more borderline cases, what could swing it is what the distinctive features are, if any, although this is only a MAY swing it.

There needs to be careful consideration to the probative value of such evidence, and not allow an undifferentiated mass of bad character evidence in unless the probative value of a range of convictions is properly evaluated and shown to be probative through a cumulative effect.

A careful direction will be needed where there will be difficult disentangling the relevance of the evidence.

A ruling on evidence is only likely to be interfered with where a judge has plainly erred.

Thompson [2016] All ER (D) 56 (Dec) provides an extreme illustration of the proposition that a propensity that might be expected to be ongoing can be demonstrated by events taking place after the matters that are the subject of the trial as well as before them. D was accused of indecent assaults against two young sisters in 1972. When arrested in 2015 he was found to have indecent images of children on his computer, and to have conducted internet searches for such material. The Court accepted that the evidence showed that D had a sexual interest in children in 2015, which in turn was capable of showing that he had such an interest in 1972.

Question 64

What guidance is there on using defendant bad character evidence to identify the defendant as the perpetrator of an offence?

Answer 64

It may be done via an inference from propensity. The process of reasoning will need to be reflected in the summing-up, such as through an unlikelihood of coincidence.
where a feature is said to be the equivalent of a signature, it is an acknowledgement that it possesses to a very high degree the unusual features associated with ‘striking similarity’ at common law.
Where such evidence amounts to a signature or hallmark and is directly relevant to the issue, the normal direction not to convict wholly or mainly on bad character may be inappropriate.
However, such evidence may not necessarily be signature evidence but still relevant to support an identification, such as going to their propensity, making it more unlikely the identification was wrong.
Evidence of gang membership may be deployed as supplementary evidence supporting an identification.
Bad character may also be relevant for identification without any similarity between the past and present offences, such as where a robber asks for ‘coke’ and D has previous for cocaine related offences.

Question 65

What guidance is there on using defendant bad character evidence as going to a matter in issue between a co-accused?

Answer 65

It needs to have substantial probative value.

Evidence relevant to whether a co-defendant is untruthful is only admissible where the nature or conduct of that defendant’s defence undermines the co-d’s.

Only evidence which is to be or has been adduced by the co-defendant or which a witness is to be invited to give or has given in cross-examination is admissible under s 101(1)(e).

An “important matter” means a matter of substantial importance in the context of the case as a whole. A mere denial of participation does not meet this, except where a necessary implication of this is the other accused has committed the offence

Question 66

What guidance is there on using defendant bad character evidence as going to a matter in issue between a co-accused SPECIFICALLY for untruthfulness?

Answer 66

Needs to have a substantial probative value in relation to an IMPORTANT matter.

FURTHER:

Evidence relevant to whether a co-defendant is untruthful is only admissible where the nature or conduct of that defendant’s defence undermines the co-d’s (s104).

Question 67

What guidance is there on using defendant bad character evidence to correct a false impression?

Answer 67

The PROSECUTION ONLY may adduce this evidence to correct a false or misleading impression given by a defendant where it has probative value in correcting it and goes no further than necessary to correct it.

A false or misleading impression is: if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant

S78 is important when considering whether it is proportionate to allow the evidence in.

The circumstances as to how it came out are relevant to what evidence is required in rebuttal.

The judge’s feel for the case is important.

Correction should be given while evidence is being given rather than after closing.

A careful direction is required.

Question 68

When is the defendant treated as being responsible for the making of a false or misleading assertion about himself in relation to bad character?

Answer 68

S105:
(a) He makes it in the proceedings, whether or not in evidence
(b) The assertion was made:
a. When questioned under caution, before charge or
b. On being charged or informed he might be prosecuted for it and evidence of the assertion is given in the proceedings
(c) the assertion is made by a defendant’s witness, whether or not it is a character witness
(d) the assertion is made by any witness in XX in response to a defendant’s question intended or likely to elicit that information
(e) the assertion was made by any person out of court and the defendant adduces evidence of it in the proceedings

(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.

(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(5) In subsection (4) ‘conduct’ includes appearance or dress.

IN SUMMARY: gives that evidence or causes it to be given OR conducts himself to give that impression. Can also be given by defence counsel or in interviews.

Question 69

What is a ‘false impression’ in regards to defendant bad character evidence?

Answer 69

No definition: highly fact-specific.

A careful analysis is required to see what is, if anything, false and the extent of that falsity.

The judge should also consider whether the accused has attempted to mislead the jury in a way that goes beyond denying the offence.

An impression may be false if it is misleading, even where it is true.

Question 70

What guidance is there on allowing defendant bad character evidence after an attack on another person’s character?

Answer 70

Applies ONLY TO PROSECUTION EVIDENCE.

Permits it where the defendant has made an attack on another person’s character.

The accused may apply to exclude admission where it would have an unfair effect on the fairness of the proceedings (s101(3)).

The court’s discretion may be invoked where the defence does not sustain the attack.

Question 71

When does the accused make an attack on another person’s character for the purposes of defendant bad character evidence?

Answer 71

He adduces evidence attacking the other persons character

He asks questions in XX that are intended to elicit such evidence or are likely to do so

Evidence is given of an imputation about the other person when the defendant is questioned under caution before charge or on being charged with the offence or informed he might be prosecuted for it

Questions asked by the pros of the D do not apply.

This gateway should not be invoked lightly in order to allow proper questions to be put to an officer about their conduct of the investigation.

A defence suggesting another is more likely to have committed the offence will be an attack, even if the circumstances are that one of them must have committed it BUT the prosecution may stay their hand unless the defence make an issue of the other person’s bad character.

Irrelevant statements where the D makes an attack should not be adduced just to make an attack on their character

Evidence given re abuse of process should not be relied upon when considering whether an attack had been made.

THIS EVIDENCE must be to the effect that the person:
(a) has committed an offence.
(b) has behaved or is disposed to behave in a reprehensible way; and imputation about the other person means an assertion to that effect.

Question 72

How, if at all, does the fact a defence necessarily imputes an attack upon another bear upon the admissibility of bad character evidence?

Answer 72

It still can apply even where it is necessary to the defence, although this may bear upon whether the discretion should be invoked

A mere denial of the offence where it may impute that another was lying is not enough for this gateway.

A person is entitled to run a defence of consent but not to suggest another is lying that she claimed to be unhappy to do a naked photoshoot or to make scurrilous allegations that showed her to be making adult content (case shows IF YOU GO FURTHER THAN MERE DENIAL THAN JUST USING CONSENT YOU MIGHT BE IN TROUBLE)

Question 73

What is ‘another person’s character’ for the purposes of defendant bad character?

Answer 73

It needs to be a specific person, and it does not matter whether that person is a witness in the case or not although this would be an unusual basis for admitting bad character evidence though it may still be admitted.

Question 74

What guidance is there on whether the discretion on not admitting bad character evidence in relation to where an attack on another person’s character has taken place should be exercised?

Answer 74

Where it would have such an adverse effect on the fairness of the proceedings the court ought not to include it.

There is no need for the pros to demonstrate evidence of bad character to be relevant to credibility demonstrates an underlying propensity to untruthfulness.

It is only about giving the jury means to evaluate whether the evidence given by the defendant about the other person’s character is worthy of belief.

There is no requirement that the evidence should be of any particular probative value or that the creditworthiness of the defendant should be an issue of substantial important in the case.

The concept is about the general credit of the accused.

Evidence should properly represent the accused at the time, i.e. some old convictions made be excluded.

Whether or not the bad character evidence has clear proof of offending may be relevant.

ALL CONVICTIONS are potentially relevant.

Question 75

What does s101 CJA 2003 say?

Answer 75

Criminal Justice Act 2003, s. 101

(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—

(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
(2) Sections 102 to 106 contain provision supplementing subsection (1).

(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

Question 76

Where are the procedural rules for adducing bad character evidence contained?

Answer 76

CrimPR Part 21.

Question 77

Who do the procedural rules for adducing bad character evidence apply to?

Answer 77

All parties, including to an accused’s application to exclude or to adduce evidence of their own bad character.
Also apply when adducing cross-admissibility.

Question 78

What (in a basic description) are the procedural rules for bad character evidence?

Answer 78

Notice must be given and in the correct form.

Question 79

May the accused waive entitlement to notice?

Answer 79

Yes

Question 80

Does the court have any power to allow notices to be given in a different form or time?

Answer 80

Yes, where to do so is in the interests of justice.

Question 81

Does the court have the power to vary notice requirements where the rules have not been complied with?

Answer 81

Yes, it is an unfettered power and is not limited to exceptional cases.
Not exercising the power should be construed as a device to prevent unfairness, rather than a disciplinary sanction.

Question 82

What must the application to adduce bad character evidence contain?

Answer 82

It must:
Set out the facts of the misconduct on which that party relies
Explain how that party will prove those facts, if another party disputes them, and
Explain why that evidence is admissible.

Question 83

What is the procedure for adducing/opposing adducing non-defendant bad character?

Answer 83

1. The application must be served on the court officer and each other party.
2. It must be served as reasonably practicable and not more than 10 business days after the prosecution discloses the material on which the application is based.
3. Any party objecting must serve notice on the court officer and each other party not more than 10 business days after service of the application and
4. Explain which facts they dispute, which they admit, why the evidence is not admissible, and any other objections
5. The court may determine an application at a hearing, either publicly or privately, or without a hearing BUT
6. Must not determine unless each party other than the applicant is present or has had least 10 business to respond.
7. It may also adjourn the application and can vary/discharge a determination.

Question 84

What is the procedure for adducing/opposing adducing defendant bad character?

Answer 84

1. The application must be served on the court officer and each other party.
2. A prosecutor must serve it not more than 20 business days after the defendant pleads not guilty in the mags’ or 10 business days after not guilty in the crown
3. A co-d must serve as reasonably practice and, in any event, not more than 10 business days after disclosure of the material relied upon
4. Any party objecting must apply, serve notice on the court officer and each other party not more than 10 business days after service of the application and
5. Explain which facts they dispute, which they admit, why the evidence is not admissible, why it would be unfair to admit, and any other objections
6. The court may determine an application at a hearing, either publicly or privately, or without a hearing BUT
7. Must not determine unless the applicant is present or has had a reasonable opportunity to respond.
8. It may also adjourn the application and can vary/discharge a determination.

Question 85

What must a defendant who wants to introduce evidence of his or her own bad character do?

Answer 85

(a) give notice, in writing or orally—

(i) as soon as reasonably practicable, and in any event
(ii) before the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness in order to obtain that evidence; and
(c) in the Crown Court, at the same time give notice (in writing, or orally) of any direction about the defendant’s character that the defendant wants the court to give the jury under rule 25.14 (Directions to the jury and taking the verdict).

Question 86

Does a court need to give reasons for its decision on admissibility of bad character evidence?

Answer 86

Yes, in public.

Question 87

What must a party who seeks an extension of time in respect of bad character evidence do?

Answer 87

They must apply when serving the application or notice and explain the delay.

Question 88

How can the fact of a conviction be proven?

Answer 88

Via a certificate of conviction or acquittal, together with proof that the person named in the certificate is the person whose conviction or acquittal is in issue.

Question 89

Are convictions evidence of the facts on which they are based?

Answer 89

Yes, and there is a persuasive presumption in their favour. The legal burden is borne against the party whom the presumption operates on a balance of probabilities.

Question 90

Who decides on the weight of bad character evidence?

Answer 90

The jury, - subject to the judge’s power to stop the case where evidence is contaminated (s107)/the judge’s direction as to what use the evidence can be put (he may remark that the evidence is of little weight dependent upon how the trial has subsequently unfolded).

Question 91

What importance is a direction on character evidence?

Answer 91

Extremely.

Question 92

What should be contained in the direction on character evidence?

Answer 92

The jury should be given assistance as to the relevance of the evidence, together with an explanation of why it has been admitted, and a warning against attaching too much weight to an accused’s bad character.
It should also:
(1) give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
(2) stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;
(3) emphasise that the jury should not infer guilt from the existence of convictions.

Question 93

Where the court hears bad character evidence that has not been properly admitted, what should the direction do?

Answer 93

Where the court is taken by surprise by an inadmissible revelation about the character of the accused, the judge must consider the nature and extent of any prejudice to the defence, taking account of the importance of the evidence and its likely effect, in the context of the case as a whole, and the extent to which it can be corrected by a direction to ignore it.

Question 94

Can the accused call evidence of good character?

Answer 94

Yes, of right.

Question 95

What does evidence of good character go to?

Answer 95

Credibility and also to a lack of propensity.

Question 96

Should there be any directions to the jury about good character?

Answer 96

Yes, there is a right to a direction for the accused.
It may be unfair to give a similar direction to a prosecution witness.

Question 97

May evidence of good character other than the accused be admitted?

Answer 97

Yes, but only where it is directly relevant to the issue (i.e. defendant makes the allegation that the person was attempting to rob him)

Question 98

What does Hunter say about good character directions?

Answer 98

The question of what directions, if any, to give in respect of a defendant’s good character is a matter for the trial judge’s general discretion, based on the need to ensure a fair trial. This has significantly tightened the ability to give accuseds good character directions where their previous history is unmeritorious of that.
The mere fact no evidence of bad character was tendered is not a reason to give a good character direction.
A ‘modified’ direction also should not be given where it works against inferences a jury could draw from antecedents.
The true rule is that only (a) defendants with absolute good character, or (b) defendants who are deemed to be of effective good character, are entitled to any judicial directions on the matter
Even the failure to give a direction where one is required will not automatically be seen as unsafe.
Hunter is now the leading authority, alongside Vye and Aziz.

Question 99

What is the true rule in Hunter?

Answer 99

The true rule is that only (a) defendants with absolute good character, or (b) defendants who are deemed to be of effective good character, are entitled to any judicial directions on the matter

Question 100

When can it be said that an accused is entitled to a good character direction on the ground of ‘absolute good character’?

Answer 100

If the accused has no previous convictions and no other reprehensible conduct is alleged, admitted, or proven.
The accused does not need to provide any further information to be entitled to the direction.

Question 101

When can it be said that an accused is of ‘effectively good character’, entitling him to the good character directions in full?

Answer 101

It is a matter of law in which a judgment is required. The judge must take into account all the circumstances of the case and decide what fairness dictates, not merely acceding to the submission just because previous offences are minor or of little relevance. Each decision is fact specific.

Cautions or foreign guilty verdicts cannot be ignored, although a penalty notice for disorder/a warning letter for harassment or breach of environmental regulations should be ignored as they do not entail acceptance of guilt. Foreign warnings should be interrogated to see whether there is any acceptance of guilt. A binding over should be interrogated as its significance has changed over time.

It is the prosecution’s onus of proof to establish the impediment to the direction.

The judge has a broad discretion.

Once a judge has ruled in favour, the accused is entitled to the direction, though perhaps in a modified form.

Due to the CJA 2003, Hunter says that the accused must be entitled to both the credibility and propensity elements to be entitled to the direction.

Question 102

What should be provided to the court to decide whether to treat an accused as effective good character for a direction?

Answer 102

Sufficiently detailed information.

Question 103

Can accuseds who do not have effective good character still make the argument that they have no record for offences of the type charged?

Answer 103

Yes.
Equally, the judge may make a fact-specific, modified good character direction.

Question 104

Where bad character evidence is given and the prosecution do not rely upon it, what should the judge do re directions?

Answer 104

They should not direct a jury the evidence could be used to provide support for the prosecution’s case, but should not be warned against drawing a rational inference.

Question 105

What direction should be given re an accused who has no previous convictions or cautions but whose other misconduct is relied upon by the prosecution?

Answer 105

The direction should inform the jury about the use that can be made of that evidence.
The trial judge also has a discretion to weave into the direction relevant observations about the defendant’s residual good character, where it would not make the direction an absurdity.
Care must also be taken in direction when the alleged misconduct is not admitted.

Question 106

What is the form of the good character direction?

Answer 106

Hunter:
“… the first credibility limb of good character is a positive feature which should be taken into account. The second propensity limb means that good character may make it less likely that the defendant acted as alleged and so particular attention should be paid to the fact. What weight is to be given to each limb is a matter for the jury”
The direction should be tailored, with guidance given by the Crown Court Compendium.
Both limbs should be expressly stated.

Question 107

What is the effect of Vye?

Answer 107

There are two limbs to the good character direction:
(a) propensity

(b) credibility)

Where the accused has not given evidence at trial but relies on admissible exculpatory statements, the judge should direct the jury to have regard to the accused’s good character when considering the credibility of those statements.
The judge is entitled ti draw attention to the difference of weight to be given of out of court statements and evidence given on oath.
Also, it shows that, where no statements or evidence given by the accused is relied upon, a first limb (re credibility) direction is not required.