Bad Character Flashcards
What is the procedure for giving notice of an application to adduce a defendant’s bad character [Prosecution] ?
After the defendant pleads the not guilty, the prosecution has:
* 28 days in the Magistrates’ court
* 14 days in the Crown Court
to serve notice on the court officer and each party.
What is the procedure for giving notice of an application to adduce a defendant’s bad character [Co-Defendant] ?
As soon as practicable and in any event no later than 14 days following disclosure of the prosecution’s material on which notice is based.
What must a party objecting to the introduction of bad character evidence set out in its notice of objection?
- Which, if any, facts of the misconduct set out in the notice that party disputes.
- What, if any, facts of the misconduct that party admits instead.
- Why the evidence is not admissible.
- Why it would be unfair to admit the evidence.
- Any other objections to the notice.
When might a defendant wish to adduce evidence of their own bad character?
Each defendant is entitled to disclose evidence of their own bad character, even if the Prosecution does not agree.
A defendant may elect to disclose own bad character evidence i.e. to show they have reformed and accept their misconduct.
What points will the court consider when determining whether non-defendant bad character evidence has “substantial probative value” under s.100(1)(b)?
Section 100(3) - consider
- Number and nature of the event to which the evidence relates;
- timing of these events
If evidence relates to a person’s misconduct (s.101(3)(c))
* consider the similarity between the misconduct and other alleged misconduct.
* extent and nature of the similarities and dissimilarities between each instance.
If evidence is adduced to suggest that non-defendant is to blame for the relevant offence (S.101(3)(d)).
* Determine how much the evidence indicates or tends to indicate that the same person was responsible each time.
What are the main points laid out in R v Hanson regarding thre admissibility of bad character evidence through gateway (101(1)(d)?
- Whether the history of previous convictions establishes a propensity to commit offences of the kind charge.
- Does it make it likely that the defendant committed the offence charge?
- If in the same category or description, would it be unjust to rely on these?
* I.e. length of time since conviction. (s.103(3)). - In any event, would proceeding be unfair if the evidence was admitted? (s.101(3))
Additional principles:
* Fewer number of convictions, the less likely to show evidence of propensity.
* Account for strength of prosecution’s case. If there is little or no evidence it would be likely to be unjust to admit previous convictions.
* Focus on the individual circumstances of each offence rather than merely the fact that they fall in the same category.
When can evidence of a non-defendant’s character be adduced (section 100)?
A) Important explanatory evidence,
B) Substantial probative value in relation to a matter which is:
* (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.
What are the seven gateways to adduce defendant’s bad character evidence?
Section 101(1)
(a) Agreement of Parties
(b) Adduced by the Defendant
(c) Important explanatory evidence
(d) Important matter in issue with Defendant and Prosecution
(e) Important matter in issue between Defendant and Co-defendant
(f) Correcting a false impression
(g) Attack on another person’s character
When will bad character evidence be admissibile under s.101(1)(d)?
Evidence must involve ‘a matter of substantial importance in the context of the case as a whole’.
Includes evidence (section 103(1)) showing:
* (i) propensity to committ offences of the kind charged;
* (ii) propensity to be untruthful.
Offences must be:
* of same description; or
* same category as each other (i.e. Part 1 of CJA 2003 lists Theft Offences as falling within same category).
What are the four key factors/questions to consider under s.101(1)(d) as set out in R v Hanson?
- Does the history of conviction(s) establish a propensity to commit offences of the kind with which he is charged?
- If so, does the propensity make it more likely that the defendant committed the crime?
- No minimum number of events necessary to demonstrate such a propensity, but fewer convictions generally mean weaker evidence of propensity.
- Note that a single previous conviction may not show propensity unless it indicates unusual behavior (e.g., R v Balazs [2014] EWCA Crim 947, R v Bennabbou [2012] EWCA Crim 1256).
- Consider the strength of the prosecution case; little or no other evidence makes it unlikely to be just to admit previous convictions (e.g., R v Darnley [2012] EWCA Crim 1148).
- Examine each individual conviction rather than just the name of the offence.
What should a defendant do to ensure the prosecution does not adduce bad character evidence under gateway s.101(1)(f)?
S.105(2) - defendant should withdraw or dissociate himself from it.
What are the four scenerios where a defendant treated as being responsible for making an assertion under s.101(1)(f)?
Section 105(2)
the assertion is made by the defendant in the proceedings (whether or not in evidence given by him)
(1) where it made by the defendant:
* on being questioned under caution, before charge, about the offence with which he is charged, or
(ii)on being charged with the offence or officially informed that he might be prosecuted for it,
and evidence of the assertion is given in the proceedings.
OR
(2) Defendant’s witness make the assertion
OR
(3) Made by any witness in cross-examinations in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
OR
(4) Assertion was made by any person out of court, which the defendant seeks to adduce into the proceedings.
What gateways under section 101(1) only available to the prosecution?
- Correcting a false impression. (e)
- Attack on another persons’ character (g)
What is the mandatory formulation of section 78 of PACE and when is it available?
s.101(3) can be relied on in respect of gateways s.101(d) and (g).
What amounts to “evidence attacking the other person’s character” under s.101(1)(g)?
Section 106
Evidence suggesting that the witness has either:
(1) committed an offence - irrespective of whether it is the same one as the defendant is currently charged with; or
(2) behaved or is dispposed to behave in a reprehensible manner.
Made either where:
(1) defendant adduces such evidence;
(2) intends to elicit it via cross examination or
(3) evidence is given as an imputation about witness either on (i) interviewing under caution or (ii) on being charged and officially informed of prosecution for it.
