Bad character evidence Flashcards
What is bad characetr evidence?
References in this chapter to evidence of a person’s ‘bad character’ are to be evidence of, or of a disposition towards misconduct on his part other than evidence which –
- Has to do with alleged facts of the offence with which the defendant is charges or
- Is evidence of misconduct in connection with the investigation or prosecution of that offence
Misconduct is defined in s.112 CJA as ‘the commission of an offence or other reprehensible behaviour’
‘Reprehensible behaviour’ is not further defined. – connoted some degree of mora blameworthiness,
Sources of bad character evidence?
- Previous convictions
- Previous convictions in foreign court
- Cautions
- Acquittals where prosecution contend that in fact defendant was guilty of the previous offence which D was acquitted
o Open for prosecution to assert the defendant did commit the offence, ‘double jeopardy rule’ is not transgressed so long as prosecution foes not seek to have defendant punished for the previous offences.
o 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. - Agreed facts that amount to reprehensible behaviour
- Witness evidence of a reputation for reprehensible behaviour
NO NEED FOR GATEWAY
- It specifically excluded evidence of misconduct which:
- Has to do with alleged facts of the offence with which the defendant is charges or
- Is committed in connection with the investigation or prosecution of that offence
Gatways for admissability of bad charater evidence?
Agreement of the parties
- No need to make an application to the court for leave to adduce evidence through this gateway
Blurts it out – defendant says it himself
- Evidence is adduced by defendant himself, or is given in answer to a question – defendant may do this to come clean about old conviction to receive a modified good character direction or to show D has never been convicted of an offence of the type, to put forward a defence that d was in prison at the time, or to show why police officers may have bias against him.
Context – important explanatory evidence
- Without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case
- Its value for understanding the case as a whole is substantial
DONE IT BEFORE GATEWAY? 4
- TWO SUBSECTIONS
- A) Propensity to commit offence of type charged
- The propensity to commit offences of the kind which he is charges, except where his having such a propensity makes it no more likely that he is guilty of the offence.
o A) offence of the same description – EXACT SAME CRIME (S.103(4)(A)
o B) offence of the same category - SAME LEGISLATION LIKE THEFT ACT INCLUDED ROBBERY, THEFT OR BURGALRY. S.103(4)(B) – VERY LIMTIED ONLY 2 CATEGORIES (Theft Act AND Child sex offences) - B) Propensity to be untruthful
- The question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect
- R v Hanson and other [2005] – GRAPPLING WITH THE GAP AND PROBLEM THAT IF ITS NOT EXCAT THEN IT CAN’T BE ADMITTED? E.G – is it capable of showing a propensity in a GBH case with a previous ABH case. So, Hanson just says use the legislation it says these two situations are examples of when propensity would be shown because it says ‘it may be shown through these two) – leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged.
o Does defendants’ history establish a propensity to commit offences of the kind charged?
o Does that propensity make it more likely that the defendant committed the offence charged?
o Where the previous offences are of the same description would it be unjust to rely on them?
o In any event would proceedings be unfair if evidence were to be submitted?
o When you get down to just one conviction – wouldn’t normally rely on just one previous conviction UNLESS its unusual feature
o Or if it over prejudices the jury – prejudicial because use of child can’t get past bad mum bit.
SAFEGUARDS?
- S103(3) – if a long time ago – so old so unjust to put it in
- S101(3) - adverse effect unfairness – this is stronger as court MUST NOT admit it
- Court also held following –
- No minimum previous conviction needed
- But a single one might show a tendency towards unusual behaviour
- Strength of prosecution case should be considered
- propensity to be untruthful
- Also, in same case – propensity to be untruthful is NOT the same as propensity to be dishonest.
- There was a plea of not guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved; or
- The way in which the offence was committed involved being untruthful, e.g., fraud by false representation.
- Cross admissibility –
- Where a defendant faces multiple charges in same proceedings, the bad character provisions apply as if each offence were charges in separate proceedings. Therefore, a gateway is required to allow a cross-admissibility of evidence.
- Functions of the judge and jury
- Judge is to determine whether evidence is CAPABALE of establishing a propensity
- Then it is a matter for jury whether it does actually show a propensity that is asserted
E DID IT? - 5
‘e did it – substantial probative value in relation between defendant and co defendant
- Section 101(1)(e):
- ‘It has substantial probative value in relation to an important matter in issue between the
- defendant and a co-defendant’.
- Section 104 CJA 2003 states:
- ’1 Evidence which is relevant to the question whether the defendant has a propensity to be
- untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his
- defence is such as to undermine the co-defendant’s defence.
- 2 Only evidence—
- (a) which is to be (or has been) adduced by the co-defendant, or
- (b) which a witness is to be invited to give (or has given) in cross- examination by the co-defendant, is admissible under section 101(1)(e).’
- Note that the fairness test in s.101(3) CJA 2003 does not apply to s.101(1)(e). Also, because by definition evidence that comes in through this gateway is not prosecution evidence, s.78 PACE Act 1984 does not apply to it. Therefore, it is very hard for a defendant (D1) to exclude evidence of D1’s bad character where it is a co-defendant rather than the prosecution that seeks to adduce it.
- While the propensity of the co-accused to commit offences of the type charged is not itself an issue between the co-defendants, evidence of such a propensity becomes admissible where one of them asserts that they have no such propensity, in which case the other defendant can adduce evidence of a propensity.
False impression gateway and gets at witness gateway?
- ‘It is evidence to correct a false impression given by the defendant
- So, defendant gives a false impression, evidence to correct such an impression is evidence which has probative value in correcting it. Treated as being responsible for the making of an assertion if: made by defendant
Gets at the witness – attack on another person’s character - Attack on another person’s character
- 2 In subsection (1) ‘evidence attacking the other person’s character’ means evidence to the
- effect that the other person:
- (a) has committed an offence (whether a different offence from the one with which the
- defendant is charged or the same one), or
- (b) has behaved, or is disposed to behave, in a reprehensible way;
- and “imputation about the other person” means an assertion to that effect.
- 3 Only prosecution evidence is admissible under section 101(1)(g).’
Directing the jury?
- Should be made clear to the jury that weight to be placed on evidence of bad character that has been adduced is a matter for them
- Must be warned not to place too much reliance on bad character evidence, it CANNOT BOLSTER A WEAK CASE
- Jury should NOT convict merely because of previous convictions
- A propensity is not enough to show that the defendant committed the offence alleged in this case
Bad character - non defendant?
- Important explanatory evidence
- Matter of substantial probative value in relation to matter
o Matter in issue can refer to either credibility or a disputed fact – no specific reference to propensity as a possible matter in issue as we have seen in s103 - Agreement of parties
Without it the jury would find it difficult to udnertsand the hole case
Can be adduced by any party.
Bad character procedure? D AND G?
- S101(3) reads
- Court must NOT admit evidence if application to exclude appears that it would be unfair – MUST NOT ALLOW IT – ADVERSE EFFECT ON FAIRNESS.
Sections 101(1)(d) and 103(3) CJA 2003
These sections allow the 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
reason of the time that has elapsed since the earlier conviction or for any other reason, it would
be unjust to admit the evidence.
S107 CJA?
– courts discretion to stop the case where that bad character evidence is contaminated and the contamination is such that conviction would be unsafe
- S110 CJA – requires court to give reasons in open court for any ruling it makes on the issue of bad character
Proving convictions under s73-75
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Proving convictions under ss73-75 PACE 1984
- S 73 – where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past – CAN BE PROVED a certificate of conviction of acquittal will prove
S74 and 75 PACE - Provides where a person is proved to have been convicted of an offence by any court in the UK or EU the person shall be taken to have committed the offence unless the contrary is proved. – burden of proving that the offence was not committed by the person whose convictions of the offence is on that person – BURDEN CAN BE DISHCARGED ON BALANCE OF PROBABILTIES - S75 0 makes various documents like charge sheet admissible as evidence.
Procedural requirements? DEFENDANT BAD CHARACTER EVIDENCE?
Time limits for this:
Prosecution evidence –MAGISTARTES not more than 20 business days after the defendants pleads not guilty
- Crown court – not more than 10 business days after the defendant pleads not guilty
Co-defendants evidence
- As soon as practicable, and in any event not more than 0 business days after prosecutor discloses the material on which the notice is based.
Response
- Not more than 10 business days after service of notice
- 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; and * Any other objection to the notice.
FOR non-defendants bad character evidence?
- Not more than 10 business days after service of notice
- 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; and * Any other objection to the notice.
For non-defendant’s bad character
Magistrates and crown court - As soon as practicable
- Not more than 10 business days after the prosecutor discloses material on which the application is based
Response - Not more than 10 business days
Courts powers
- Cand determines on application with or without a hearing in public or in private. Decision must be announced at a hearing in public bur in absence of jury.
