Bad character Flashcards
What is evidence of bad character?
Evidence of, or a disposition towards misconduct –> comission of an offence or other reprehensible behaviour
s98 CJA
This includes previous convictions, cautions, acquittals, or witness evidence of a reputation for such behavior.
What does bad character evidence not refer to?
- anything to do with the alleged facts of the offence with which D has been charged
- Evidence of misconduct in connection with the investigation or prosecution of that evidence
Therefore no need for a gateway for this sort of evidence
What is the double jeopardy rule and how does it relate to bad character?
A rule that prevents a defendant from being punished for previous offences if they were already acquitted.
Previous acquittals can be brought as evidence of bad character - the double jeopardy rule is not transgressed as long as P does not seek to have D punished for previous offences
What is the legal status of evidence from previous convictions?
It raises a rebuttable presumption that the defendant committed the said offence - D can adduce evidence to show they were wrongly convicted
What are the seven gateways for admitting evidence of bad character?
s101(1) CJA
A. Agreement of the Parties
B. Evidence Adduced by Defendant
C. Important Explanatory Evidence
D. Important Matter in Issue between Defendant and Prosecution (propensity)
E. Important Matter in Issue between Defendant and Co-Defendant
F. Correcting a False Impression
G. Attack on another person’s character
What is required for the ‘Agreement of the Parties’ gateway?
No need to make an application to court; all parties must agree, even tacitly
There are no formal requirements for this agreement.
What does the ‘Evidence Adduced by Defendant’ gateway entail?
The defendant may give evidence themselves or answer questions in cross-examination without needing court application
Why might a D put adduce their own bad character evidence?
- to show that an old conviction was so long ago, they are now changed - this shows good character
- to show that all other offences are of a different type
- to put forward a defence - e.g I was in prison at the time
- to show why the police may be biased against them
What is the requirement for ‘Important Explanatory Evidence’ to be admissible?
Leave of the Court is required
How is important explanatory evidence defined
Without it, the jury would find it difficult to properly understand other evidence in the case. They therefore need this evidence to understand the case as a whole.
s102 CJA
Under which gateway would you adduce evidnece to show a previous relationship between two people?
s101(1)(c) - important explanatory evidence
What is the purpose of the ‘Important Matter in Issue between the Defendant and Prosecution’ gateway?
- When P wants to show D has a propensity to commit offences of the same kind (s101(1)(a))
- When D wants to show D has a propensity to be untruthful (s101(1)(b)).
What evidence can be adduced under s101(1)(d)?
Prosecution evidence only
How are offences of the same kind defined under s103?
s103(4)(a) - same charge i.e both ABH
s103(4)(b) - same category as defined by the SoS i.e all theft offences are the same category c.f OAP offences are not the same cateogry.
What must be considered when deciding whether previous convictions show a propensity to commit offences of the same kind?
Hanson:
- Is it unjust to rely on previous offences (so much time has passed that it would be unfair?)
- no minimum number of caes is required to show propensity (fewer cases = weaker evidence)
- one conviction alone is not enough to show propensity unless there is strikingly similar behaviour (Straffen)
- Consider the rest of the P evidence - unlikely to be allowed to admit P evidence if there is little or no evidence against D
- can use bad character evidence that arises after the alleged offence if it shows that propensity is continuing.
How is the propensity to be untruthful defined?
This is not the same as dishonesty (Hanson). Examples of untruthfulness:
- pleading not guilty when they were guilty
- the way in which an offence was committed was untruthful (e.g fraud by false rep)
Under which gateway will prosecution evidence relating to the cross-admissibility of evidence be allowed in?
e.g multiple charges in the same proceedings
s101(1)(d) - propensity to commit offences of the same kind
Is permission required to admit prosecution evidence through s101(1)(d)
Yes
- the judge determines whether evidence is capable of establishing propensity
- if yes, the jury decides whether the evidence acutally does show the asserted propensity
What safeguard exists alongside s101(1)(d)?
s101(3) - can not admit evidence for propensity to commit offences of the same kind if the court thinks that it would be unjust to admit it (e.g too much time has passed)
What must occur for evidence to be admissible under the ‘Important Matter in Issue between Defendant and Co-Defendant’ gateway?
Leave of the court is required to admit evidence of a co-defendant’s character
Define an important matter in issue between D and co-D
It has substantial probative value in relation to an important matter in issue between D and co-D (this is a higher bar than just being relevant). The evidence must relate to the co-D’s propensity to be untruthful.
s78 could not apply here - defendant evidence is not caught by s78!
What does the ‘Correcting a False Impression’ gateway allow?
Evidence to correct an impression that the defendant is of absolute good character
Is the leave of the court required to admit evidence under s101(1)(f)?
Yes
Is there a restriction on whose evidence can be admitted under s101(1)(f)?
Yes - prosecution evidence only can be admitted under this gateway
What happens if the defendant attacks another person’s character?
The jury is entitled to know the character of the person making the allegation - the prosecution only can therefore adduce evdience of D’s bad character.
Need court’s permission
What safeguard exists alongside s101(1)(g)?
The court must not adduce evidence under this gateway if it appears by an application by D that the admission would have such an adverse effect on proceedings that the court ought not to admit it.
True or False: Bad character evidence should be used to bolster a weak case.
False
The jury should not find a defendant guilty solely based on propensity.
What safeguards exist against using bad character evidence?
- Hanson - jury must be warned not to put too much relevance on bad character. Propensity is not enough to confirm a conviction.
- s78 PACE - prosecution evidence only. Gives the court discretion to exclude evidence if it would have such an adverse effect on proceedings
- s101(3) - applies to gateways d and g only BUT preferable: the court must not admit evidence…
s107 CJA - court has discretion to stop the case if it thinks that bad character evidence that has been admitted is contaminated and a conviction would therefore be unsafe - s110 CJA - court must give reasons in open court for any ruling it makes on the issue of bad character
When is non-defendant bad character evidence admissible?
- important explanatory evidence (court or jury would find it difficult to undersatnd other evidence in the case, it has substantial value for understanding the case as a whole)
- substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
- agreement
s100(1) CJA
Is court permission required to adduce non-defendant bad character evidence?
Yes unless it is adduced by agreement of the parties.
