Bad Character Evidence

Question 1

What is bad character?

Answer 1

Bad character is evidence of a persons bad character which is evidence of or 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

(b) evidence of misconduct in connection with the investigation or prosecution of that offence

Misconduct = commission of an offence or other reprehensible behaviour

Question 2

Misconduct and reprehensible behaviour

Answer 2

Misconduct = commission of an offence or other reprehensible behaviour

Reprehensible behaviour: not officially defined. Some degree of morally blameworthiness. E.g. membership of a gang is evidence of reprehensible behaviour. An affair would not be considered evidence.

Question 3

Sources of bad character evidence

Answer 3

• previous convictions in the UK
• previous convictions in a foreign court where such offences have a domestic equivalent. (e.g blasphemy would unlikely be considered bad character)
• cautions
• acquittals where 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 3

Acquittals and previous convictions

Answer 3

Where prosecution relies on evidence of previous acquittals, open to assets the defendant did commit the offences of which D was previously convicted.

Double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences.

e.g. rape case where defendant is claiming defence of consent - may be relevant to bring up 3 previous acquittals with defence of consent to show pattern

Question 4

Conduct which falls outside section 98

Answer 4

Section 98 excludes evidence of misconduct such as
- alleged facts of the offence the defendant is charged and
- evidence which is committed in connection with the investigation or prosecution of that offence

This evidence is automatically admissible and does not have to go through a gateway.
e.g. tells a lie during an interview (which is relevant)

necessary to prove criminal conduct by the defendant to prove the prosecution case (offence of driving while disqualified - will need to show committed earlier offence and was disqualified as a result)

Jury tampering or witness intimidation is connected to the investigation

evidence of motive to commit the offence has to do with the alleged facts of the offence

Question 5

Where can the definition of bad character be found?

Answer 5

Section 98 Criminal Justice Act 2003

Question 6

How many gateways for admissibility of defendant bad character evidence?

Answer 6

There are seven gateways

Question 7

Where are the gateways for admissibility of defendant bad character evidence found?

Answer 7

s.101(1)(a-g) Criminal Justice Act 2003

a) Agreement
b) Blurts out
c) Context
d) Done it before
e) E did it
f) False impression
g) Gets at the witness

Question 8

Section 101(1)a

Answer 8

Agreement of the parties

No need to make an application to the court for leave to adduce evidence.

No formal requirements as the recording an agreement or how it is reached - tacit agreement is enough.

Question 9

Section 101(1)b

Answer 9

Evidence adduced by the defendant

Number of reasons why D may wish to do so:
- Come clean about an old conviction in order to receive a modified good character direction
- Show that D has never been convicted of an offence of the type with which D is now charged
- Put forward a defence e.g. show D was in prison at the time of the offence
- Show why police officers might have a bias against D

Leave of court is not required to adduce evidence this way

Question 10

Section 101(1)c

Answer 10

Important explanatory evidence

Gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case.

Often will show previous relationships between people involved in the trial without which it would not be possible to understand the narrative put forward by the prosecution

Question 11

Section 101(1)d

Answer 11

Relevant to an important matter in issue between the defendant and the prosecution (substantial importance in context of case as whole).

further explained by s103:
Matters in issue include
103(1)(a): Propensity to commit offences of the type charged
(a) offences of same description written in charge or indictment
(b) offences of the same category prescribed by order of Secretary of State

103(1)(b): Propensity to be untruthful

Question 12

Same description and same category

Answer 12

Same description: same offence

Same category: theft offences and sexual offences against minors under 16

Question 13

Section 101(3) exclusion

Answer 13

Exclusion for bad character evidence admitted under the gateways:

101(1)(d): important matter in issue between the defendant and the prosecution (propensity gateway)

101(1)(g): defendant makes an attack on another person’s character

The court must not admit evidence under these gateways on an application by the defendant to exclude it if 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 14

R v Hanson questions

Answer 14

Leading case on propensity to commit offences of the kind with which the defendant is charged. Must ask:

• Does the defendant’s history establish a propensity to commit offences of the kind charged?
• Does that propensity make it more likely that the defendant committed the offence charged?
• Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them? (s103)
• In any event, would proceedings be unfair if the evidence were to be admitted?

Question 15

R v Hanson principles

Answer 15

• No minimum number of previous convictions required to establish a propensity. Fewer the number of convictions - the weaker it is as evidence of propensity.
  Note: a single previous conviction for an offence of the same description or category as the offence charged might show propensity where it shows a tendency towards unusual behaviour
• Strength of the prosecution case should be considered - unlikely to be just to admit bad character evidence where there is no or little evidence against the defendant.

Question 16

Propensity to be untruthful

Answer 16

Being untruthful is different from being dishonest.

Previous convictions are only likely to be capable of showing such propensity where:
- 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)

means while burglary is a dishonesty offence, it does not logically follow that each and every burglar is untruthful.
A person can commit a burglary and go onto admit it in interview and plead guilty.

Question 17

Cross-admissibility

Answer 17

Where someone is facing multiple charges in the same proceedings, a bad character application is required to allow cross-admissibility of evidence of one offence as evidence of the other.

Eg man assaulted both step-daughters - evidence from A is only evidence that d committed offence against her unless admissible through gateway d, in which case can be used as evidence when jury considering allegations made by B.

Question 18

s101(1)e

Answer 18

Important matter in issue between the defendant and a co-defendant

• propensity to be untruthful is admissible only if the nature or conduct is such as to undermine the co-defendant’s defence

only evidence which is:
- adduced by co-defendant
- which witness is invited to give in cross-examination by co-defendant
is admissible

Question 19

101(1)f

Answer 19

Correcting a false impression.

• defendant gives false impression to court or jury of themselves
• correcting it is important to probative issues

Question 20

s101(1)g

Answer 20

Attack on another person’s character

evidence to the effect the other person has:
- committed an offence
- behaved reprehensibly

Does not matter if the person is a witness or not.

Question 21

Directing the jury on bad character evidence

Answer 21

Jury must be warned not to place too much weight on bad character evidence. Cannot be used to bolster a weak case. Jury should be directed:
- should not conclude that the defendant was guilty or untruthful merely because of previous convictions
- propensity is not enough in itself to show that the defendant committed the offence alleged

Acquittals which are disputed as evidence –> jury should be directed that they should not rely on it as evidence unless they are sure it is true.

Question 22

How many gateways are there to admit non-defendant bad character evidence?

Answer 22

Three

Question 23

What are the statutes for admitting non-defendant bad character evidence?

Answer 23

s100(1)(a) - important explanatory evidence. court leave needed.

s100(1)(b) - substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole. Court to give leave.

s100(1)(c) - Agreement of the parties. Admissible wihtout leave of the court.

Question 24

s100(1)(a) - important explanatory evidence

Answer 24

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

Question 25

Exclusion and safeguards: s78 PACE

Answer 25

s78 PACE - allows judge discretion to exclude prosecution evidence on grounds it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted
Note: no application where one d seeks to adduce evidence against another

Question 26

s100(1)(b) - factors relating to probative value

Answer 26

• nature and number of events or things
• when those events or things are alleged to have happened
• when dealing with misconduct of a similar nature: consider nature and extent of the similarities and dissimilarities between each of the alleged instanced of misconduct

dealing with evidence of past misconduct: extent to which the evidence shows to tends to show that the same person was responsible each time.

Question 27

Exclusion and safeguards: s101(3)

Answer 27

s101(3): gateways 101(1)(d) and 101(1)g: similar to s78 except court MUST exclude

101(1)(d): important matter in issue between the defendant and the prosecution (propensity gateway)

101(1)(g): defendant makes an attack on another person’s character

The court must not admit evidence under these gateways on an application by the defendant to exclude it if 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 28

Exclusion and safeguards: s101(1)(d) and 103(3) CJA 2003

Answer 28

Allows 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 another other reason it would be unjust to admit the evidence.

Question 29

Exclusion and safeguards: s107 CJA 2003

Answer 29

This section gives the court discretion to stop the case where it is satisfied at any time after close of the case for prosecution that bad character evidence that has been admitted is contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.

Question 30

Exclusion and safeguards: section 110 CJA 2003

Answer 30

Requires the court to give reasons in open court for any ruling it makes on the issue of bad character

Question 31

Convictions as evidence the offence was committed

Answer 31

• If person has previous conviction it should be taken as they committed the offence unless the contrary is proven
• burden of proving offence was not committed is on person who has conviction and burden is on the balance of probabilities that the offence was not committed by that person.

Question 31

Proving acquittals

Answer 31

Dispute between conviction ad acquittals (UK or EU) - can be proved by production of the certificate of the conviction from the court in which it took place.

Question 32

Time limits: defendant bad character

Answer 32

Prosecution:
Magistrates court: not more than 20 business days after the defendant pleads not guilty

Crown court: not more than 10 business days after the defendant pleads not guilty

Co-defendant:
- as soon as reasonably practicable and not more than 10 business days after the prosecutor discloses the material on which notice is based

Response:
- not more than 10 business days after service of the notice

Question 33

Contents of notice of bad character evidence and response

Answer 33

Notice (both prosecution and co-defendant):
- Set out the facts of the misconduct on which the party relies
- Explain how that party will prove those facts if disputed (certificate of conviction, official record)
- Why the evidence is admissible

Response:
- Which, if any, of the facts of the misconduct set out in the notice that party disputes;
- What, if any, facts of the misconduct the 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

Question 34

Time limits: non-defendant bad character

Answer 34

MC and CC: as soon as reasonably practicable; and not more than 10 business days after the prosecutor discloses material on which the application is based

Response: not more than 10 business days after service of the application

Question 34

Contents of notice of bad character evidence (non-defendant) and response

Answer 34

Notice (MC and CC):
- Set out the facts of the misconduct on which that party relies
- Explain how that party will prove those facts if disputed;
- Explain why the evidence is admissible

Response:
Explain:
- which facts of the misconduct set out in the application that party disputes
- what facts that party admits instead
- why the evidence is no admissible
- any other objections to the application

Question 35

Courts powers for hearing a bad character application

Answer 35

• Can determine with or without hearing in public or private
• Decision must be announced at hearing in public (in absence of jury)
• court has discretion to extend or shorten time limits or to allow an application or notice to be given in a different form
• extensions can be granted after the time limit has expired
• in practice, written notices through s101(1)c and s101(1)d follow crimpr. Other evidence is usually admissible through something said or done at trial - therefore those applications are likely to be made orally.

Rule 21 CrimPR