Bad Character Evidence

Question 1

which section relates to the definition of bad character?

Answer 1

Section 98 Criminal Justice Act 2003

Question 2

Section 98 Criminal Justice Act 2003

Answer 2

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 3

what amounts to Bad Character?

Answer 3

• Previous convictions in the UK
• Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
• Cautions
• Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted
• Agreed facts that amount to reprehensible behaviour
• Witness evidence of a reputation for reprehensible behaviour

Question 4

Bad Character: previous convictions

Answer 4

o The proof of a conviction creates a rebuttal presumption that the person convicted committed the offence
o Where the circumstances of the offence are of the essence, there is an obligation on the party relying upon them to be specific
o Details which are available is good practice
o Records can be made admissible in order to get the details in court
o Cautions also function the same way
o Offences occurring subsequent to the original offence at trial for are also admissible
o It demonstrates that the propensity is one to be continuing
o Bad character evidence of previous racist tendencies were used for a racially aggravated murder
o Differences may be seen where the plead in guilty is mens rea based. Pleading guilty for section 20 in the past does not establish the ulterior intention for section 18. This is applied to lesser and greater offences in the alternative.
o Convictions of a foreign court may be admitted too as bad character evidence
o international drugs offences are a good example here

Question 5

Bad Character: Meaning of ‘Misconduct’

Answer 5

‘misconduct’ means the commission of an offence or any other reprehensible behaviour. S 112(1) CJA 2003

Question 6

Bad Character: Reprehensible Behaviour

Answer 6

o This is fact specific
o This can be horrible text messages, showing the intention to do something horrible. Although it was seen in this case that D said that they were not being serious, this was a matter for the jury
o Competing to sleep with as many women as possible can be regarded as bad character when it comes to sexual offences
o Reprehensible connotes some form of blameworthiness or culpability
o Reprehensible behaviour is to be distinguished from behaviour which is irritating, annoying inconvenient and upsetting to another
o Violent rap lyrics were seen as reprehensible
o Reprehensible behaviour can be determined by being fact specific.
o But it can be unnecessarily complex
o Gang membership can be sued as reprehensible behaviour

Question 7

Bad Character: Has to do with the alleged facts

Answer 7

• The meanings which are excluded under section 98b are only allowed when they are deemed relevant
• There has to be a nexus between the current offence and the activity on which is aimed to be adduced as bad character
• Section 98 is not to be construed too widely
• The nexus can be in time, what a D says shortly after the offence can be used
• Gang rival months long feud could be used to indicate a motive for killing

Question 8

Bad Character: Previous Allegations

Answer 8

• Unless it is demonstrably relevant, previous accusations can be admitted as bad character
• Allegations have to be accompanied with supporting evidence

Question 9

Section 100 CJA 2003: the gateways for it to be used

Answer 9

(a) it is important explanatory evidence;
(b) it has substantial probative value in relation to a matter which is a matter in issue in the proceedings, and 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.

Question 10

which section refers to bad character of someone other than then accused?

Answer 10

Section 100 CJA 2003

Question 11

bad character: Acquittals and previous convictions

Answer 11

Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted.
The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences.

The logical corollary of this position is that evidence of a previous conviction is in law a rebuttable presumption that the defendant committed the said offence thus the defendant is entitled to adduce evidence tending to show they were wrongly convicted.

Question 12

can Section 100 CJA 2003 (Bad character of non-accused) be used when witness is not present?

Answer 12

Yes.
- can be used if statement is entered under hearsay exception
- can even be used if the witness is dead

Question 13

Section 100 CJA 2003: general principles

Answer 13

(1)The test of ‘substantial probative value’ is not the same as the test for gateway (d) of s. 101 where evidence of the bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance. It is, however, the same as the test that appears in gateway (e) where evidence is tendered by one co-accused against another.
(2)If the conditions of s. 100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence.
(3)Except where the parties agree to admit the evidence, the leave of the court is always required.
(4)Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion.

Question 14

what what be another way to challenge the admissibility of bad character evidence?

Answer 14

Section 78 PACE application

Question 15

Section 100 CJA 2003: Important explanatory evidence

Answer 15

the Bad character cannot be used as an ‘Add on’ to a point of evidence raised. it needs to be necessary for the context of the situation.

Question 16

Section 100 CJA 2003: Substantial Probative Value in relation to a matter in issue of substantial importance: Meaning of ‘Substantial’

Answer 16

two essential questions to consider:
(1) whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole; and
(2) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings. ‘Substantial’ bears its ordinary meaning

Question 17

Section 100 CJA 2003: Matters in Issue: Propensity, Credibility and Other Issues

Answer 17

‘Matter in issue’ can refer to either credibility or a disputed fact. Although there is no specific reference to propensity as a possible matter in issue as we have seen in s.103, propensity can be a matter in issue for the purposes of s.100. The effect of this is that a defendant can adduce evidence of another person’s propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence.

Credibility - can be used to attack credibility, it is not an automatic right when the non-accused has previous convictions.

Question 18

Section 100 CJA 2003: maters which are relevant when assessing probative value —

Answer 18

(a) nature and number of events which relate to the proceedings;

(b) when those events are to have allegedly happened;

(c) where the evidence is evidence of a person’s misconduct, and it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct;

(d) where the evidence is evidence of a person’s misconduct, it is suggested that that person is also responsible for the misconduct charged, and the identity of the person responsible for the misconduct charged is disputed,

Question 19

what is the section responsible for admitting the defendant’s bad character?

Answer 19

Section 101 CJA 2003

Question 20

what are the gateways used to admit the bad character of a defendant under 101 CJA 2003?

Answer 20

a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.

Question 21

Bad character: what is gateway 101(1)(a)?

Answer 21

all parties to the proceedings agree to the evidence being admissible

Question 22

Bad character: what is gateway 101(1)(b)?

Answer 22

the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

Question 23

Bad character: what is gateway 101(1)(c)?

Answer 23

it is important explanatory evidence,

Question 24

Bad character: what is gateway 101(1)(d)?

Answer 24

it is relevant to an important matter in issue between the defendant and the prosecution,

Question 25

Bad character: what is gateway 101(1)(e)?

Answer 25

it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

Question 26

Bad character: what is gateway 101(1)(f)?

Answer 26

it is evidence to correct a false impression given by the defendant,

Question 27

Bad character: what is gateway 101(1)(g)?

Answer 27

the defendant has made an attack on another person’s character.

Question 28

what is the acronym to remember the bad character gateways?

Answer 28

A - Agreement
B - Blurts it out (D tends bad character himself)
C - Context
D - Done it before
E - ‘E’ did it
F - False impression
G - Gets at the witness (evidence to match an attack)

Question 29

where there are multiple defendants, who’s consent needs to be gathered to admit bad character evidence?

Answer 29

all

Question 30

what is the purpose of section 101(3) CJA 2003

Answer 30

• applies to gateways 101(1)(d) and 101(1)(g)
• where the court must not admit bad character through this gateway if it appears that it would be unfair to do so.
• acts as an additional hurdle.

Question 31

what does section 101(3) say?

Answer 31

The court must not admit evidence under subsection (1)(d) or (g) 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.

Question 32

the type of power the court has under section 101(3)

Answer 32

Compulsory. No discretion allowed

Question 33

what can be used as an additional argument against admitting bad character evidence?

Answer 33

Section 78 PACE

Question 34

Section 102 CJA 2003: the meaning of Explanatory evidence in Section 101(1)(c) CJA 2003

Answer 34

For the purposes of section 101(1)(c) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.

o It is not confined to prosecution evidence
o It is necessary to show the background of the case at hand even though it will paint D in a bad light.
o It can demonstrate the continuing bad behaviour of D which is needed for the relevance of the actual offence he is being tried for
o It is not enough for the prosecution to say that this evidence fills in a gap of the whole picture, it is here to help the jury. The bar is a high one, where it is not possible for a jury to draw a conclusion without the historical evidence.
o Should not be used as a backdoor way of entering evidence
o Only where the evidence truly adds something beyond showing a mere propensity.
o Careful direction is needed for explanatory evidence
o Agreed statements of facts may be appropriate for explanatory evidence in order to prevent any prejudice

Question 35

how likely is an appeal court to interfere with a judges decision of admitting bad character?

Answer 35

an appeal court is unlikely to interfere with a trail judge’s decision when it comes to admitting bad character evidence unless It was totally unreasonable such as Wednesbury unreasonable.

Question 36

Gateway 101(1)(d): Relevance to an important matter

Answer 36

o It is an ‘important matter in issue’
o Important matter means any matter of substantial importance which provides help to the context as a whole

Question 37

gateway 101(1)(d): Propensity as an issue

Answer 37

o Propensity has to be a relevance in behaviour. i.e. a D who always relied on self-defence, cannot have their previous convictions heard in court when they rely on intoxication
o If D has already admitted it, there is no need to submit further bad character evidence in order to support, this in fact should be excluded.
o When trial judge is determining the propensity, the reliance of eye witnesses is not enough, judge is encouraged to look at the evidence as a whole

Question 38

Gateway 101(1)(d): Case used for propensity

Answer 38

Hanson

Question 39

gateway 101(1)(d): Steps in Hanson

Answer 39

(1)Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

(2)If so, does the propensity make it more likely that the defendant committed the crime charged?

(3)Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))? Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence?

Question 40

Gateway 101(1)(d): Demonstrating propensity

Answer 40

• If the behaviour is strikingly similar, then even one event may be submitted as demonstrating propensity
• Despite the length of time and the age of the offending, if it is demonstrated to the court it is ‘strikingly similar’ then it may still be admitted
• Previous rape offence, though not ‘strikingly similar’ it was allowed to be adduced as it shown D abusing his position
• Possession offences may be used to demonstrate an offence which goes beyond possession. Such as having possession of heroin, this may be used in a trial of D being convicted of supplying heroin
• Shoplifting does not show a propensity to robbery. There needs to be a sufficient link
• Judge may need to direct the jury on the propensity of the offences, such as explaining their relevance to the jury. However, if the judge has plainly erred when performing this direction, it can suffice an appeal to an unsafe conviction
• There can be the importance of factual connections as opposed to legal similarities

Question 41

gateway 101(1)(d): identifying the accused by evidence of bad character

Answer 41

• This may appear as the same as propensity or the same as allowing evidence through section 101(1)(d), though the summing up to the jury has to differ slightly as the reasoning differs slightly
• It has to be stressed that the conviction cannot be based on bad character totally, but to highlight the hallmark of the defendants offending where the acts which have been used in the current offence sis so strikingly similar to the previous ones he has been convicted of
• It can be also known as ‘signature evidence’
• Where the identification of a previous offence can be sued to ID D for the current one. This can be CCTV used
• It is an established principle that gang membership may be used for the identification of D in the current offences involving gangs.
• There is a risk of the prejudicial impact that can it can have when using gang membership
• Bad character evidence may be used instead of previous convictions being used for identification.

Question 42

gateway 101(1)(d): Multiple charges and accusations

Answer 42

• 112(2) CJA 2003 requires that when the accused has multiple charges, the previous offences nay be used as bad character but the gateway must be applied for each of the charges before it can be used to facilitate cross-admissibility.
• Evidence of one accuser may be used to support another.
• Notice applies equally when it is cross-admissibility of evidence
• Where it is left, and not dealt with in closing speeches and the judge only shows intention for it to be dealt with in summing-up, the late decision on the judges behalf made it impossible for counsel to deal with it.
• Separate summing-up’s for each defendant is useful here when bad character is used in cross-admissibility

Question 43

gateway 101(1)(d): Acquittals - Special Considerations

Answer 43

• A rare opportunity where prosecution state that D is guilty of current offence and was of previous one despite D being acquitted for that previous offence
• The evidence would be admissible if the prosecution could show its relevance to an important issue under s. 101(1)(d), leaving the accused to contend for the exercise of the specific statutory discretion in s. 101(3).
• This can also be used when a co-accused wants to use previous convictions against the other co-accused, despite the acquittal.
• Jury are not bund to accept the reasons for a plea of guilty neither.

Question 44

gateway 101(1)(e): generally

Answer 44

• Section 104(1) is used as a cut-throat defence to co-accused
• It can be used to show this lack of group activity and more of a pushing of guilt
• Restriction does not apply where the issue of propensity is not directed to untruthfulness but t the issue of the commission of the offence
• 101(1)(e) permits the propensity of the evidence to be used against an accused by a co-accused whatever the nature of the defence, provided that it is of ‘substantial probative value’ in relation to the issue between them

Question 45

gateway 101(1)(e): Important matter in issue

Answer 45

Important matter in issue:
o Important matter is a matter which is substantial importance to the context of the case as a whole
o It can be the case where the co-accused is not using the cut-throat defence but needed for showing the substantial importance of a matter in the case.

Question 46

gateway 101(1)(e): Evidence going to the issue if untruthfulness between accused and co-accused

Answer 46

• Section 101(1)(e) of the CJA 2003 renders admissible evidence that has ‘substantial probative value’ in relation to an important matter in issue between co-accused.
• Important matter means ‘a matter of substantial importance in the context of the case as a whole’ (s. 112(1)).
• Where the evidence adduced is of one defendant’s ‘propensity to untruthfulness’, s. 101(1)(e) is further restricted in its operation by s. 104 to cases where the nature or conduct of his or her defence is such as to undermine that of the other defendant. Note that only defence evidence is admissible under this provision (s. 104(2)).

Question 47

gateway 101(1)(f): general

Answer 47

• evidence of probative value in correcting false impression
• It must go no further than what is necessary to correct the false impression – to go further means that it may be challenged as being unfair
• The court must decide if the accused has gone further than what is allowed and attempted to mislead the jury where it goes beyond to just denying the offence
• Ensure to answer questions in cross-examination which does not allow this principle to arise
• Evidence can be used to correct aa false impression which has been given in a police interview.

Question 48

gateway 101(1)(g): general

Answer 48

o D should be allowed to raise self-defence without the possibility of his previous convictions being brought up
o Attack can be brought about if the prosecution witness is being accused of falsity of their account to conspire against the defendant
o The attack does not have to come from D themselves in their testimony nor do they need to have the personal knowledge, it can be enough that the defence advocate has asked questions which has elicited bad character and attacked the prosecution witness for 101(1)(g) to bite.

Question 49

gateway 101(1)(g): Evidence proving the attack

Answer 49

• 101(1)(g) should not be used as a backdoor way of getting bad character in about the defendant
• If the defendant has made bad comments about the prosecution witness in order to attack her character during an interview. If the defendant does not want to maintain the attack, then the judge may use their discretion to not allow the bad character to be allowed in.

Question 50

gateway 101(1)(g): on another person’s character

Answer 50

• It does not suffice where the defendant has blamed an unknown individual
• The person does not have to be a witness to the case, but does need to be a specified individual
• It is unusual to allow bad character based on an attack of a non-witness and a non-victim
• Deceased victims are also allowed to be ones whose character has been attacked

Question 51

gateway 101(1)(g)

Answer 51

• Discretion where the court is of the mind the bad character would cause an adverse effect on the fairness of the proceedings
• Judges also have the discretion to gently hint to the counsel where the potential line of questioning is going in terms of allowing the admission of bad character evidence

Question 52

bad character: proof of convictions and acquittals

Answer 52

• Certificate of conviction or acquittal must be used when a person’s conviction or acquittal is in issue
• With acquittals, it’s a question of fact for the jury to decide whether there is evidence for the jury’s consideration

Question 53

bad character: convictions as evidence of facts on which based

Answer 53

Section 74 PACE allows the previous convictions of another person is taken to be true unless proven otherwise. Burden lies on the party to when the presumption is against, so on the balance of probabilities borne by the accused.

Question 54

Character Evidence Weighting and Judicial Discretion

Answer 54

The key stages have been set out in the case of Edwards:
o The judge determines the admissibility under the relevant statutory gateway(s);
o Where it is raised, the judge deals with the question of exclusion in respect of prosecution evidence, such as s 101(3), s. 103(3) or 78 PACE;
o Once bad character evidence is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated and judges direction this may be put;
o The direction of the weight of the evidence is very important, if the ground to the trial has shifted since the evidence was admitted, it may be necessary to tell the jury it is of little weight.

Where little guidance is given to the jury of how to deal with the bad character evidence, then it will render a conviction unsafe

Direction should be given in cases with how bad character should be used and for what pieces of the case it is used for

Question 55

Hasan Directions - Character Evidence

Answer 55

Hansan stated that a proper direction should:
o Give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
o Stress that the evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;
o Emphasise that the jury should not infer guilt from the existence of the convictions

Question 56

Bad Character of non-accused: Who must the application to admit bad character be served on?

Answer 56

• Court officer
• parties to the case

Question 57

Bad Character of non-accused: when must the application to adduce bad character be served?

Answer 57

(a)as soon as reasonably practicable; and in any event

(b)not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

Question 58

Bad character of non-accused: who must the objection to the bad character be served on?

Answer 58

(i)the court officer, and
(ii)each other party

Question 59

Bad character of non-accused: what must the notice to objection contain?

Answer 59

notice must explain:

(i)which, if any, facts of the misconduct set out in the application that party disputes,
(ii)what, if any, facts of the misconduct that party admits instead,
(iii)why the evidence is not admissible, and
(iv)any other objection to the application.

Question 60

Bad Character of non-accused: time of service for notice to objection of bad character

Answer 60

not more than 10 business days after service of the application

Question 61

how will the court determine an application to adduce bad character of non-accused?

Answer 61

• may determine an application at a hearing, in public or in private, or without a hearing;
• must not determine the application unless each party other than the applicant is present, or has had at least 10 business days in which to serve a notice of objection;
• may adjourn the application; and

-may discharge or vary a determination where it can do so.

Question 62

Bad character of the accused: A prosecutor or co-defendant who wants to introduce such evidence must serve notice on—

Answer 62

(a)the court officer; and
(b)each other party.

Question 63

Bad Character of the accused: A prosecutor must serve any such notice not more than—

Answer 63

(a)20 business days after the defendant pleads not guilty, in a magistrates’ court; or

(b)10 business days after the defendant pleads not guilty, in the Crown Court.

Question 64

Bad Character of the accused: A co-defendant who wants to introduce such evidence must serve the notice—

Answer 64

(a)as soon as reasonably practicable; and in any event

(b)not more than 10 business days after the prosecutor discloses material on which the notice is based.

Question 65

Bad Character of the accused: Service on the objection to the application to adduce bad character

Answer 65

(b)serve the application on—
(i)the court officer, and
(ii)each other party

not more than 10 business days after service of the notice;

Question 66

Bad Character of the accused: what mist be contained in the objection application

Answer 66

in the application explain, as applicable—

(i)which, if any, facts of the misconduct set out in the notice that party disputes,
(ii)what, if any, facts of the misconduct that party admits instead,
(iii)why the evidence is not admissible,
(iv)why it would be unfair to admit the evidence, and
(v)any other objection to the notice.