Bad Character Notices - Drafting

Question 1

Who can introduce and exclude

Answer 1

Either party. The prosecution can introduce evidence of a defendant’s bad character and defendant can introduce evidence of a prosecution witnesses’ bad character. Both parties can exclude

Question 2

Structure - Prosecution notice to introduce evidence of the defendant’s bad character

Answer 2

1) Case details
2) Box 2 - grounds
3) Facts of misconduct
4) How will you prove those facts if in dispute
5) Reasons why the evidence is admissible

Question 3

Prosecution Notice to introduce evidence of the defendant’s bad character - Box 2 Grounds

Answer 3

You will be required to tick one of the following reasons on why you want to introduce evidence of the bad character of the defendant:
1) it is important explanatory evidence
2) it is relevant to an important matter in issue between the defendant and the prosecution
3) it is evidence to correct a false impression given by that defendant
4) the defendant has made an attack on another person’s character

Question 4

Prosecution Notice to introduce evidence of the defendant’s bad character - Box 2 Grounds - Which box is it likely to be

Answer 4

It will usually relate to (2) ‘it is relevant to an important matter in issue between the defendant and the prosecution’

Question 5

Prosecution Notice to introduce evidence of the defendant’s bad character - Facts of the misconduct

Answer 5

1) Need to state the behaviour of the defendant you want to introduce e.g propensity to be untruthful or propensity to commit offences of a certain type
2) Any previous convictions which help to explain this
3) For each explain whether you rely on the fact of the conviction or the circumstances of the offence

Question 6

Prosecution Notice to introduce evidence of the defendant’s bad character - Facts of the misconduct - Example - Propensity to commit offences of violence

Answer 6

The defendant has a reputation for being drunk and behaving in a disorderly fashion. This misconduct will be relied on to show his propensity to commit offences of violence.

Question 7

Prosecution Notice to introduce evidence of the defendant’s bad character - Facts of the misconduct - Example - Propensity to be untruthful

Answer 7

The defendant was convicted of theft 2 years ago. The fact of this conviction will be relied on to establish his propensity to be untruthful.

Question 8

Prosecution Notice to introduce evidence of the defendant’s bad character - Facts of the misconduct - Example - Propensity to commit offences of a violent nature

Answer 8

The defendant was convicted of assault occasioning actual bodily harm 6 months ago. The circumstances of this conviction will be relied on to establish his propensity to commit offences of violence causing injury to the victim’s head.

Question 9

Prosecution Notice to introduce evidence of the defendant’s bad character - How will you prove those facts if in dispute

Answer 9

Need to explain how to rely on facts e.g with witness statement, certificate of conviction or official record

Question 10

Prosecution Notice to introduce evidence of the defendant’s bad character - How will you prove those facts if in dispute - Example certificate of previous convictions

Answer 10

Evidence of the defendant’s certificates of previous convictions will be produced. The officer in charge of the case, PC Chambers, will be called to adduce this evidence.

Question 11

Prosecution Notice to introduce evidence of the defendant’s bad character - How will you prove those facts if in dispute - Example Witness Statement

Answer 11

Evidence will be given by the defendant’s neighbour, Alan Mozo, that the defendant has a reputation for being drunk and behaving in a disorderly fashion (statement attached).

Question 12

Prosecution Notice to introduce evidence of the defendant’s bad character - Reasons why the evidence is admissible

Answer 12

Here need to mention your grounds will usually be S. 101(1)(d) - Relevant to an important matter in issue between prosecution and defence

Question 13

Prosecution Notice to introduce evidence of the defendant’s bad character - Reasons why the evidence is admissible - Example

Answer 13

Section 101(1)(d) CJA 2003 – the misconduct relied on is relevant to an important matter in issue between the prosecution and the defence. The misconduct demonstrates a propensity to commit offences of the type charged and a propensity to be untruthful.

Question 14

Structure - Exclude evidence of defendant’s bad character

Answer 14

1) Case details
2) Grounds
3) Facts of the misconduct in dispute
4) Reasons for objecting to the notice

Question 15

Exclude evidence of defendant’s bad character - Grounds

Answer 15

Need to tick any or all of the following:
1) Evidence is not admissible
2) Unfair to admit that evidence
3) I object to the notice for the other reason(s) explained below
WILL USUALLY TICK ALL 3

Question 16

Exclude evidence of defendant’s bad character - Facts of the misconduct in dispute

Answer 16

Need to state reasons for objecting, which facts you dispute and any that you admit. USUAL TO ADMIT PREVIOUS CONVICTIONS BUT DENY THAT YOU HAVE A REPUTATION FOR BEING VIOLENT/DRUNK ect.

Question 17

Exclude evidence of defendant’s bad character - Facts of the misconduct in dispute - Explanation

Answer 17

The defendant denies that he has a reputation for being drunk and behaving in a disorderly fashion.
The defendant admits that he was convicted of theft 2 years ago.
The defendant admits that he was convicted of assault occasioning actual bodily harm 6 months ago when he caused injury to the victim’s head.

Question 18

Exclude evidence of defendant’s bad character - Reasons for objecting

Answer 18

Need to explain why it’s not admissible (grounds for bad character), if it would be unfair so rely on S. 101(3) (adverse effect on fairness of proceedings) and any other objection

Question 19

Exclude evidence of defendant’s bad character - Reasons for objecting - Example propensity to be untruthful

Answer 19

The defendant’s conviction for theft does not establish that he has a propensity to be untruthful. First, the conviction was for shoplifting. Whilst shopping at a local supermarket, he put a mobile ‘phone charging cable into his pocket. He did not try to mislead or lie to another person as part of committing the theft. The defendant acted dishonestly but he was not untruthful. Secondly, the defendant pleaded guilty to the offence of theft. The defendant was convicted on his own admission and not because the court disbelieved him.

Question 20

Exclude evidence of defendant’s bad character - Reasons for objecting - Example previous convictions if the circumstances/facts aren’t the same

Answer 20

The defendant has only one previous conviction for an offence violence which does not show the alleged propensity. There are significant differences between the facts of that previous offence and the current offence. The only similarity is that relied on by the Prosecution, namely that both caused the victim head injuries. There are no other similarities. [OUTLINE DIFFERENCES BY EXPLAINING WHAT HAPPENED WITH EACH OFFENCE] The facts of the current offence are significantly different.

Question 21

Exclude evidence of defendant’s bad character - Reasons for objecting - Example S. 101(3)

Answer 21

The admission of the defendant’s previous conviction will have a highly prejudicial effect on the fairness of his trial and the jury could well convict the defendant on the basis of the previous conviction alone, rather than examining the other evidence placed before them. [The admission of this spent conviction would be more prejudicial than probative.]