Bad Character

Question 1

What is bad character?

Answer 1

Evidence of or of a disposition towards, misconduct on the part of the accused

Question 2

What is not bad character?

Answer 2

Evidence which has to do with the alleged facts of the offence which the defendant is charged with

OR

Evidence of misconduct in connection with the investigation of that offence

This evidence is already admissible

Question 3

Misconduct is defined as ‘the commission of an offence or other reprehensible behaviour’. What is reprehensible behaviour?

Answer 3

Behaviour that as some degree of moral blameworthiness.

Must be more than just morally lax ie having an affair.

Membership of a gang would be reprehensible behaviour.

Question 4

What may be sources of bad character evidence?

Answer 4

• previous convictions in the UK
• previous convictions in a foreign court where such offences have a domestic equivalent ie blasphemy would not be considered bad character here
• cautions
• acquittals where the prosecution contends that the defendant was guilty of the offence
• agreed facts that amount to reprehensible behaviour
• witness evidence of a reputation for reprehensible behaviour

Question 5

How can bad character evidence on the part of the defendant be admissible?

Answer 5

Can be admissible through one of the seven gateways for admissibility

Question 6

What happens when evidence is admitted through any one of the gateways?

Answer 6

It can be used for any purpose for which it is relevant

Question 7

What is a mnemonic for the seven gateways?

Answer 7

• Agreement
• Blurts it out
• Context
• Done it before
• ‘E did it
• False impression
• Gets at the witness

Question 8

What happens if all parties to the proceedings agree that the bad character evidence should be admissible?

Answer 8

Then the bad character evidence is admissible.

No formal requirements are needed to record the agreement. Tacit agreement is enough

Question 9

What happens if the bad character evidence is adduced by the defendant?

Answer 9

Evidence is admissible.

Leave of court is not required

Question 10

Why might a defendant introduce evidence of their own bad character?

Answer 10

• to come clean about an old conviction in order to receive a modified good character direction
• to show that D has never been convicted of an offence of the type with which D is now charged
• to put forward a defence eg to show that D was in prison at the time of the alleged offence
• to show why police officers might have a bias against D

Question 11

What happens if the bad character evidence is important explanatory evidence?

Answer 11

Leave of court is required to introduce evidence.

Prosecution may introduce evidence this way if without the evidence the jury/court would find it impossible or difficult to properly understand other evidence in the case and its value for understanding the case as a whole is substantial

Question 12

What happens if the bad character evidence is relevant to an important matter in issue between the parties? Important matter being one of substantial importance in the context of the case as a whole.

Question 13

What is an important matter under s 101(1)(d) in relation to the admissibility of bad character evidence?

Answer 13

A matter of substantial importance in the context of the case as a whole

Question 14

What are matters in issue under s 101(1)(d) in relation to the admissibility of bad character evidence?

Answer 14

• question as to whether the defendant has a propensity to commit offences of the kind with which he is charged, unless the propensity makes it no more likely that D is guilty
• question as to whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful

Question 15

When will a defendant’s propensity to commit other offences of the kind he is charged with be established?

Answer 15

If he has been convicted of an offence of the same description as the one which he is charged or an offence in the category as which he has been charged

Question 16

When will a defendant’s previous convictions not be admissible even if they are of the same type or same category as the one the defendant is currently charged with?

Answer 16

Where the court is satisfied that the length of time since conviction or for any other reason would mean that it is unjust for the evidence to be admitted

Question 17

What other protection is there for the defendant regarding the court’s power to prevent evidence of propensity to commit the offence/untruthful?

Answer 17

The court must not admit evidence if it appears the evidence would have an adverse effect on the fairness of the proceedings that the court ought not to admit it

Question 18

In R v Hanson, what question must the court ask in order to admit bad character as evidence to show propensity?

Answer 18

• Does the defendant’s history establish a propensity to commit offences of the kind charged
• Does that propensity make it more likely that the defendant committed the offence charged?
• Where the previous offences are of of the same description or category as the offence charged, would it be unjust to rely on them?
• In any event, would proceedings be unfair if the evidence were to be admitted?

Question 19

What effect will the number of convictions have on the admissibility of evidence of bad character to show propensity?

Answer 19

• no minimum number but fewer convictions is likely to mean weaker evidence of propensity
• one single conviction of same description or category may show propensity where is shows a tendency towards unusual behaviour

Question 20

What effect will the strength of the prosecution case have on the admissibility of evidence of bad character to show propensity?

Answer 20

Less likely to admit bad character evidence where there is no or little evidence against the defendant

Question 21

Can propensity be demonstrated by events that happened after the commission of the offence?

Answer 21

Yes - can show that propensity is ongoing

Question 22

Can propensity gateway just be used to show likelihood of committing the crime?

Answer 22

No - can be used to prove all important matters in the case. Including identification such as where there are striking similarities between cases.

Question 23

Is propensity to untruthful the same as propensity to be dishonest?

Answer 23

No - something may be dishonest but not untruthful

Question 24

When are previous convictions likely to show a propensity to be untruthful?

Answer 24

Where there was a plea of not-guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved

The way in which the offence was committed involved being untruthful eg fraud by misrepresentation

Question 25

What happens if a defendant faces multiple charges in the same proceedings in relation to bad character provisions?

Answer 25

The bad character provisions apply as if each offence were charged in separate proceedings

To be cross-admissible a gateway is required

Question 26

What is the function of the judge in determining admissibility of evidence of bad character to show propensity?

Answer 26

Judge determines whether evidence is capable of establishing propensity

Question 27

What is the function of the jury in determining admissibility of evidence of bad character to show propensity?

Answer 27

For the jury to determine whether evidence does actually show the propensity that is asserted

Question 28

When will evidence of a defendant’s bad character be admissible by co-defendant?

Answer 28

Where the evidence has substantial probative value in relation to an important matter in issue between the defendant and co-defendant

Question 29

When does evidence of co-defendant’s propensity to commit offence become admissible by co-accused?

Answer 29

Where one of them asserts that they have no such propensity, the other defendant can adduce evidence of a propensity

Question 30

When does evidence of co-defendant’s propensity to be untruthful become admissible by the co-accused?

Answer 30

Where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence

Question 31

What role does the court have in a co-defendant’s adducing propensity against another?

Answer 31

Leave of court is required to admit the evidence

Court will not however apply a fairness test

Question 32

When is bad character evidence admissible in relation to false impressions?

Answer 32

The prosecution with leave of the court may present evidence of bad character of the defendant where it is necessary to correct a false impression given by the defendant

Question 33

What is a false impression by the defendant?

Answer 33

An express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant

Can be assertion made by defendant in proceedings, assertion made by him, assertion under caution before charge of offence or assertion on charge, assertion by defence witness, assertion made by another person which defendant relies on in court

Question 34

How can a defendant not open up the possibility of evidence being admitted as a result of a false statement?

Answer 34

If they withdraw the false statement or disassociate themselves from it

Question 35

Can a false impression be given by conduct?

Answer 35

Yes - by way of dress or appearance

Question 36

What bad character evidence is admissible under the false impression gateway?

Answer 36

Only evidence that corrects the false impression and goes no further

Question 37

What is necessary for bad character evidence to be admissible as a result of the defendant attacking another person’s character?

Answer 37

If the defendant attacks another’s character by giving evidence that they have committed an offence or behaved in a reprehensible way then prosecution entitled to admit evidence to prove that is untrue

Question 38

Is leave of court required to admit bad character evidence as a result of the defendant attacking another person’s character?

Answer 38

Yes

Question 39

What directions should be given to the jury in relation to bad character evidence?

Answer 39

• they should not conclude that D was guilty or untruthful merely because of D’s previous convictions
• a propensity is not enough to show that the defendant committed the offence alleged in this case
• they should not place too much reliance on bad character evidence

Question 40

When is the bad character of someone other than the defendant admissible?

Answer 40

Only where

• it is important explanatory evidence (jury would find it impossible/difficult to understand other evidence in the case and value for understanding the case as a whole is substantial)
• has substantive probative value for matter in issue and substantial importance for case context (substantial - would impact way in which jury would assess the evidence of a witness or the case as a whole) or
• all parties agree to it being admissible

Leave of court is also necessary

Question 41

What safeguard does s 78 PACE and s 101(3) Criminal Justice Act 2003 provide for defendant whom bad character is trying to be produced against?

Answer 41

Judge has discretion to exclude any evidence that the prosecution seeks to adduce on the ground that it would have an adverse effect on the fairness of the proceedings

Cannot be applied where one defendant seeks to adduce evidence against another

Question 42

What safeguard does s 101(1)(d) and 101(3) CJA 2003 provide for defendant whom bad character is trying to be produced against?

Answer 42

Allows court to exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that by passage of time or any other reason it would be unjust to admit the evidence

Question 43

What safeguard does s 107 CJA 2003 provide for defendant whom bad character is trying to be produced against?

Answer 43

Court discretion to stop the case after the close of the case where it is satisfied that bad character evidence has been admitted is contaminated to extent that any conviction would be unsafe

Question 44

How are convictions and acquittals to be proved?

Answer 44

By production of certificate of conviction or acquittal from court where it took place

Evidence must show person on certificate is person whose conviction/acquittal is in issue

Question 45

What must a party wishing to adduce bad character evidence do procedurally?

Answer 45

• if non-defendant bad character evidence - make application under rule 21.3
• if defendant bad character evidence - give notice under rule 21.4

Question 46

What are the time limits relating to defendant’s bad character?

Answer 46

Prosecution must provide evidence 20 business days in magistrates and 10 business days in crown court after defendant pleads not guilty

Co-defendant’s evidence - asarp and in any event no more than 10 business days after prosecution discloses that material

Response - no more than 10 business days after notice

Question 47

What content must prosecution evidence and con-defendant’s evidence have for bad character?

Answer 47

• sets out facts of the misconduct on which the party relies
• explain how the party will prove those facts if another party disputes them
• explain why the evidence is admissible

Question 48

What content must defendant’s response have to prosecution’s/co-defendant’s notice to admit bad character evidence?

Answer 48

• what facts of misconduct they dispute
• what facts of misconduct they admit
• why the evidence is not admissible
• why it would be unfair to admit the evidence
• any other objection to the notice

Question 49

What time limits are there for application for admitting non-defendant’s bad character evidence?

Answer 49

Magistrates’ court and crown court - soon as reasonably practicable and not more than 10 business days after the prosecutor discloses material on which application is based

Response - not more than 10 business days after service of application

Question 50

What content must be including in application for admitting non-defendant’s bad character evidence?

Answer 50

• facts of misconduct on which party relies
• explanation as to how party will prove these facts if another party disputes them
• explanation as to why evidence is admissible

Question 51

What content must be including in response to application for admitting non-defendant’s bad character evidence?

Answer 51

• facts they dispute
• facts they admit
• why evidence is not admissible
• any other objections