Bad Character Evidence Flashcards
What is bad character?
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
Misconduct and reprehensible behaviour
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.
Sources of bad character evidence
- 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
Acquittals and previous convictions
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
Conduct which falls outside section 98
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
Where can the definition of bad character be found?
Section 98 Criminal Justice Act 2003
How many gateways for admissibility of defendant bad character evidence?
There are seven gateways
Where are the gateways for admissibility of defendant bad character evidence found?
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
Section 101(1)a
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.
Section 101(1)b
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
Section 101(1)c
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
Section 101(1)d
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
Same description and same category
Same description: same offence
Same category: theft offences and sexual offences against minors under 16
Section 101(3) exclusion
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.
R v Hanson questions
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?
R v Hanson principles
- 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.
Propensity to be untruthful
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.
Cross-admissibility
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.
s101(1)e
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
101(1)f
Correcting a false impression.
- defendant gives false impression to court or jury of themselves
- correcting it is important to probative issues
s101(1)g
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.
Directing the jury on bad character evidence
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.
How many gateways are there to admit non-defendant bad character evidence?
Three
What are the statutes for admitting non-defendant bad character evidence?
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.
