Bad Character Flashcards
What are some example sources of bad character?
- previous convictions in UK
- previous convictions abroad that have a domestic equivalent
- cautions
- acquittals where Pros. contends D was actually guilty
- Reprehensible behaviour (i.e membership of gang)
- Witness evidence of reputation for reprehensible behaviour
- NOT blasphemy or affair
What counts as bad character evidence?
Evidence of, or disposition towards, misconduct on the part of the accused.
Misconduct = commission of an offence or other reprehensible behaviour, some element of moral blameworthiness, i.e D in a gang, drinks to excess and takes drugs.
EXCEPT evidence to do with the alleged facts of the offence D is charged with or evidence of misconduct in connection with the investigation or prosecution of that offence (i.e lying to police, tamperting with evidence, previous convictions relevant to current offence e.g showing D driving whilst disqualified).
What are the 7 gateaways through which bad character can be admitted? Do they require court permission?
A = agreement (no permission)
B = Blurts it out (no permission)
C = context
D = Done it Before
E = E Did It
F = False Impression
G = gets at witness
What is agreement of the parties?
Where all of the parties agree to the character evidence being admissible, no formal requirements to record agreement.
D might do this to demonstrate they haven’t committed offence of kind charged before.
What is “Blurts it Out”?
Where the bad character evidence is adduced by D himself or given in an answer to a question asked by him in cross-examination and intended to elicit it.
What is important explanatory evidence?
Can only be used where prosecution trying to admit evidence.
- Without BCE, court or jury would find it impossible or difficult to properly understand other evidence in the case +
- BCE has substantial value for understanding the case as a whole
Often used to explain relationship between D and co-D or victim (e.g members of same gang).
What is “Done it Before”?
Can only be used where prosecution trying to admit evidence.
- BCE is an important matter (i.e matter of substantial importance in context of whole case) in issue between the Defendant and the prosecution.
When will something be considered to be “an important matter in issue between D and the prosecution” for s.101(1)(d)?
Where D has a propensity to:
- Commit offences of the kind of which he is charged (except where propensity makes guilty no more likely);
- Be untruthful
- Offend in a particular way.
When might D have a propensity to commit offences of the kind charged?
- Same offence
- Of same type (i.e theft, offences against the person)
R v Hanson:
(a) Does the history of convictions establish propensity to commit offences of kind charged?
(b) Does propoensity make it more likely that D committed the crime?
(c) If so, would it be unjust to admit the evidence because of time elapsed (s.103(3))? Would it be adverse to the fairness of the proceedings (s.78 PACE)?
No minimum number needed to establish propensity but fewer = weaker. However, single may be enough if it shows unusual behaviour.
* Strength of prosecution case = if strong, more likely to be admitted
What might establish propensity to be untruthful?
- Not the same as propensity to be dishonest
- Might be that D gave evidence at previous trial that jury disbelieved or way offence committed involved being untruthful (e.g fraud by false representation, perjury).
- Not necessarily satisfied by dishonesty offences if they admit it and plead guilty.
Which safeguard exists for s.101(1)(d) and (g)?
The court must not admit evidence via this gateway if, on application by D to exclude it, it appears to the court that the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it (s.101(3)).
Which safeguard exists for s.101(1)(d) only?
Court has discretion to exclude evidence of propensity to commit offences of the same description or type if satisfied that, by reason of the time elapsed since the conviction or for any other reason, it would be unjust to admit the evidence.
Which general safeguards apply to BCE?
- s.78 PACE 1984
- s.107 CJA 2003: court has discretion to stop case after close of prosecution case if satisfied that BCE is contaminated and contamination makes conviction unsafe.
What is “‘E Did It”?
An important matter in issue between the defendant and co-defendant where the co-defendant is seeking to admit BCE about D.
- Admissible if it has substantial probative value in relation to an important matter in issue between co-D and D.
- Evidence of Ds propensity to be untruthful only admissible where D has sought to undermine co-Ds defence
- Only evidence adduced by co-D or which witness invited to give in cross-examination by co-D is admissible.
What is “false impression”?
Only where the prosecution is seeking to admit BCE.
BCE is admissible to correct a false express / implied assertion which D is responsible for making and which is false or misleading - by words or conduct.
Responsible for Making where assertion is made:
* by D in proceedings
* by D on questioning under caution before charge for relevant offence
* By D on being charged or officially informed of possible prosecution
* By witness called by D
* By witness in cross-exam in response to question asked by D which was intended to elicit it or likely to do so
* Made by any person out of court + D adduces it in proceedings
* NOT where D withdraws and associates himself from it.
