9.7 Character Evidence Flashcards
Bad Character Definition
s 98 CJA 2003: ‘Bad character’ is defined as being ‘evidence of, or a disposition towards, misconduct other than evidence connected with the offence for which the defendant has been charged. ‘Misconduct’ is ‘the commission of an offence or other reprehensible behaviour’
When will the defendant’s misconduct not be subject to the test for bad character evidence?
If the misconduct is related to the offence for which the defendant is being tried
7 Gateways for admitting character evidence
- All parties agree
- Evidence adduced by D himself / given in answer in Cross X
- Important explanatory evidence
- relevant to an important matter in issue between D and P
- Substantial probative value in relation to an important mater between the defendant and a co-defendant
- evidence to correct false impression
- D has attacked someone else’s character
Who can adduce evidence of a defendant’s bad character under gateway (c): important explanatory evidence
The prosecution only
When will a prosecution application to adduce bad character evidence on the ground that it is important explanatory evidence be successful?
A. without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
B. the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).
Gateway D for adducing bad character evidence (important matter in issue): what are potential important matters in issue?
- whether D has propensity to commit offences of the kind with which he is charged
- whether D has the propensity to be untruthful
Propensity to commit an offence of the same kind : when is this illustrated
he has been convicted of:
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
When are two offences of the same description?
Two offences will be of the same description as each other if the statement of the offence in a written charge or an indictment would, in each case, be in the same terms
When will offences be of the same category
Two offences will be of the same category as each other if they belong to the same category of offences prescribed by the Secretary of State, so far there are two
a. the sexual offence category, specifying sexual offences committed against children under 16
b. The theft category, including:
1. theft
2. robbery
3. burglary
4. aggravated burglary
5. taking a motor vehicle or conveyance without authority
6. aggravated vehicle taking
7. handling stolen goods
8. going equipped for stealing
9. making off without payment
10. any attempt to commit the above
11. aiding, abetting, counselling, procuring or inciting the commission of any of the above
When will evidence of previous offences be adduced to illustrate a defendant’s propensity to be untruthful?
the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or
the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed.
If the prosecution seeks to adduce bad character evidence under the gateway that it relates to an important matter in issue - can this be excluded?
s 101 CJA 2003: the court must not admit this evidence 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.
When are courts likely to have to use their CJA 101(3) powers to exclude bad character evidence?
(ONLY for gateways d or g)
- when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative
- when the CPS seeks to adduce previous convictions to support a case which is otherwise weak
- when the defendant’s previous convictions are ‘spent’. - not prevented entirely but should be considered
How long does it take for a custodial sentence over 4 years to be ‘spent’?
It is never spent
Custodial sentence between 30 months and 4 years - when is it spent?
After 7 years
How long until a fine is ‘spent’?
1 year
How long until a community order is ‘spent’?
1 year
Custodial sentence up to 6 months: when is it ‘spent’?
2 years
Custodial sentence between 6 and 30 months: when is it spent?
4 years
Gateway e to adduce bad character evidence (it has substantial probative value in relation to an important matter in issue between the defendant and a co- defendant)
Who can use this gateway?
Can be used by one defendant to admit evidence of another defendant’s bad character
When can a co-defendant admit evidence of another defendant’s bad character?
If it shows:
- Defendant’s propensity to commit offences of the same kind
- defendant’s propensity to be untruthful
When will the prosecution be able to adduce bad character evidence to correct a false impression given by the defendant?
D has made an assertion (express or implied) which gives court or jury false impression
- during the proceedings
- in a defence statement
- made when questioned by police under caution
- made by a witness called by D
- made by ANY witness in cross-X in response to a Q asked by the D
- made by any person out of court wherein the defendant uses this evidence in the proceedings
Is the ability to adduce bad character evidence on the grounds it corrects a false impression limited to false impressions given by the Defendant himsefl?
No, could be given by witness called by defendant or any witness during cross-X, or person outside of court (where this evidence is used in court)
Bad character evidence: When will a defendant be ‘attacking another person’s character’
- Person is a witness or dead or person CPS does not intend to call on
- Evidence that other person had committed an offence, or has behaved or is disposed to behave in a reprehensible way
- Can be in trial or at questioning at police station or in defence statement served on CPS
When can the court exclude bad character evidence admitted under the 7 gateways under CJA?
If it is under grounds (d) or (g)
- it is relevant to an important matter in issue between D and P
- defendant has made an attack on another person’s character
For all other grounds, it is automatically admissible if the requirements in each gate are satisfied
Difference between excluding evidence by virtue of s 101 of CJA and s 78 PACE?
- CJA: if test is satisfied, the court MUST exclude the evidence
- PACE: If test is satisfied, the court may exercise its discretion to exclude the character evidence
What is a ‘contaminated case’
A case has been contaminated when witnesses have colluded to fabricate evidence of the defendant’s bad character
If a case is ‘contaminated’ in the Crown Court …
s 107 of CJA will allow judge to direct jury to acquit or order retrial
Does s 107 CJA (wrt contaminated cases) apply to cases in the MC?
No
procedure for CPS adducing evidence of bad character
- CPS uses prescribed form, with written record of previous convictions that the party making the application wants to adduce
- Comply with MC / CC time limits
- D may oppose this by applying to court for exclusion - application sent to all parties and the court
When can bad character evidence of individuals other than the defendant be adduced?
- Important explanatory evidence Or
- 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 - all parties agree to the evidence being admissible.
Adducing bad character evidence of persons other than the defendant on the grounds it is important explanatory evidence: requirements
- must illustrate without it the judge / jury would find it difficult to understand other evidence
- its value is substantial for understanding the case
- the leave of the court is received
Can the defendant adduce bad character evidence of individuals not involved in the case (ie. not CPS witnesses) on the grounds that it has substantial probative value?
YES
When is leave of the court required to adduce bad character evidence of an individual aside from the defendant?
- if it is done on the grounds that it is important explanatory evidence
- if it is done on the grounds that it has substantial probative value to matters in issue
NOT when all parties agree
