Character Evidence

Question 1

What are the two categories of character evidence?

Answer 1

Bad character evidence; and
Good character evidence.

Question 2

Define good character evidence.

Answer 2

Evidence of a lack of misconduct, the commission of offences or other reprehensible behaviour.

Question 3

Define bad character evidence.

Answer 3

Evidence of, or a disposition towards, misconduct, commission of offences or other reprehensible behaviour.

Question 4

Briefly explain the ‘all party agreement’ gateway of the admission of character evidence.

Answer 4

The evidence will be admitted if the admission of the evidence is agreed by all parties.

Question 5

List the 7 gateways to the admission of character evidence.

Answer 5

1) All party agreement;
2) Evidence adduced by D;
3) Important explanatory evidence;
4) Relevant to an important mattering issue;
5) Matter in issue between co-defendants;
6) Correction of false impression given by D;
7) D attacked another’s character.

Question 6

Briefly explain the ‘evidence adduced by D’ gateway of the admission of character evidence.

Answer 6

Evidence of character will be admissible if the evidence is adduced by D, or the evidence is given by D in response to cross-examination.

Question 7

Briefly explain the ‘important explanatory evidence’ gateway of the admission of character evidence.

Answer 7

Will be admissible if:

1) Evidence is needed to property understand other evidence in the case; or
2) Its value to understanding the case as a whole is substantial.

Question 8

Briefly explain the ‘relevant to important matter in issue’ gateway of the admission of character evidence.

Answer 8

• Will be admissible if the evidence includes propensity to commit offences like the current charge and propensity to be untruthful.
• This gateway can be used to adduce similar prior convictions/ cautions and even dishonesty convictions.

Question 9

Briefly explain the ‘matter in issue between co-defendants’ gateway of the admission of character evidence.

Answer 9

Will be admissible if the evidence has substantial proactive value rte important matters in issue between D and D’s codefendant.

Question 10

Briefly explain the ‘correction of false impressions given by D’ gateway of the admission of character evidence.

Answer 10

• Evidence is admissible if it corrects a false impression given by D.
• This includes evidence given in court by D or before the court proceedings under caution and evidence given by witnesses/ evidence elicited by questioning the defence.

Question 11

Briefly explain the ‘defendant attacked another’s character’ gateway of the admission of character evidence.

Answer 11

Evidence will be admissible if D or their representative attacks another’s character/ questions a witness intending to illicit such evidence. In such situations d’s pwn bad character becomes admissible.

Question 12

Give the requirements in order to rely on the gateway ‘important explanatory evidence’.

Answer 12

• Bad character evidence is admissible if it is important explanatory evidence.
• Evidence is admissible under this gateway if:

1) Without it jury would find it difficult/ impossible to properly understand other evidence in the case; and
2) Its value for understanding the overall case is substantial.

Question 13

Give the requirements in order to rely on the gateway ‘relevant to important matter in issue between prosecution and defence’.

Answer 13

Bad character evidence may be admissible so can be of use to prosecution, as they are able to adduce bad character evidence on the basis of propensity to commit similar offences/ to be untruthful.

Similar offences for the purposes of this gateway are deemed to be all offences of the same kind (ie any offence which demonstrates similar behaviour).

Usually propensity is only found where there are multiple previous offences (unless the current offence has very similar circumstances and traits to the one prior conviction).

Dishonesty offences are sometimes deemed to show propensity. Effectively previous convictions for dishonesty offences (eg theft or blackmail) are unlikely admissible unless they directly relate to the type of offence charged in the instant case.

Question 14

Give the requirements in order to rely on the gateway ‘substantial probative value to important matter in issue between co-defendants’

Answer 14

• This may apply where co-defendants are blaming each other for the offence. In such situations, one of the D’s may wish to introduce evidence of previous similar offences the other has committed to show the other is more likely to be the perpetrator.

1) The matter must relate to an important matter in issue to be admissible; and
2) Must have substantial value rather than just mere relevance.

Question 15

Give the requirements in order to rely on the gateway ‘d has made an attack on the character of another person’.

Answer 15

• D’s own personal character is admissible if they attack the character of another.
• Attack need not take place during evidence at trial, but an attack on character of another during interview under caution or on charge is sufficient.
• Also applies if D’s counsel attacks character of another during cross-examination (ie in such situations D’s bad character will also be admissible).
• Attacks include a wide range of things from suggesting the bias of a witness, raising a previous conviction of a witness or accusing the police of misconduct.

Question 16

explain the procedure for admitting D’s bad character evidence.

Answer 16

• Prosecution must complete ad serve a form within:

1) 28 days of D’s entry of a not guilty plea in Magistrates Court; or
2) 14 days of entry of a not guilty plea in the Crown Court.

• If D wishes to oppose, notice to oppose must also be served on the prescribed form. Application will either be decided at a pre-trial hearing, or on the day of the trial (in the absence of the presence of the jury).

Question 17

Explain the courts power to exclude D’s bad character evidence.

Answer 17

• Even if a gateway is successfully used, court can still excuse the evidence.
• They will do so if:
  1) D makes an application to exclude the evidence; and
  2) It appears the admission of the evidence will have an adverse effect on the fairness of the overall proceedings; and
  3) in making the decision the court must have regard to the amount of time which has elapsed between the previous offences and the current offence.
• PACE sets out that if it is deemed the evidence will have an adverse effect on the fairness of proceedings the court MUST NOT ADMIT the evidence.

Question 18

What is a good character direction?

Answer 18

If D has no previous connections, they are entitled to have the judge give a good character direction to the jury.

A good character direction consists of two parts:

1) Propensity direction; and
2) The credibility direction.

Question 19

Define the propensity direction.

Answer 19

The propensity direction is that a person of good character is less likely to have committed the offence in question.

Question 20

Define the credibility direction.

Answer 20

The credibility direction is that a person of good character is more likely to be credible when assessing their innocence ether before/ during the trial.

Question 21

When is a D entitled to good character direction?

Answer 21

1) If D has previous convictions that are old, minor and not related to the current charge, D is considered to be of good character and may still receive propensity ad credibility directions.

2) If D has no previous convictions but there is other bad character evidence on which prosecution relies, a good character direction will probably not be available.

3) If D has no previous convictions but there is other bad character evidence on which the prosecution does not rely, the judge will have discretion on whether to giver the good character direction.

Question 22

Do allegations of misconduct against D (which are connected with the offence they are being charged with) need to satisfy any of the gateways for admitting bad character evidence?

Answer 22

No.

Eg if someone is being tried for murder and is also accused of fabricating that person’s will for their benefit, this is not bad character but misconduct (as it is directly linked with the offence for which they are being tried).

Question 23

Can bad character alone prove the guilt of D?

Answer 23

No. As with adverse inferences, other evidence must also be present to form the basis of a conviction.

Question 24

Give an example of a situation where D may wish to adduce evidence of bad character themself.

Answer 24

If D has pled guilty to previous offences and is pleading not guilty to a current offence. This could be useful to show that D admits their mistakes when they have made them, strengthening the position of their current not guilty plea.

Question 25

Where the prosecution is arguing the bad character evidence is important explanatory evidence, what are the listed circumstances in which this can be used?

Answer 25

Either:
1) Without the evidence being adduced the magistrates ornery would find it impossible or difficult to properly understand the case; or
2) The value of the evidence for understanding the case as a whole is substantial.

Question 26

Explain the provision of s103(2) CJA 2003.

Answer 26

• This provides that in order to allow the CPS to place evidence of previous convictions before the court, it must be established such propensity makes it more likely D committed the offence.
• s103(2) therefore provides that:
  D’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of :
  1) an offence of the same description of the one with which he is charged; or
  2) an offence of the same category as the one with which he is charged.

Question 27

Describe how to tell if a pervious offence is in the same category as the current offence.

Answer 27

For example two offices both categorised in the sexual offences category.

A theft category offence may include burglary, theft, robbery etc

Question 28

Explain the R v Hanson guidelines fir judges and magistrates to consider whether previous offences demonstrate propensity to commit the current offence with which D has been charged.

Answer 28

3 questions:

1) Does D’s history of offending show propensity to commit offences; and
2) if so does that propensity make it more likely D committed the offence he is currently charged with; and
3) If so, is it just and fair to rely on previous convictions os the same decryption/ category, when considering the overriding principle that proceedings must be fair.

Question 29

Explain the provision of s101(3) CJA 2003.

Answer 29

The court must to admit evidence if, on application by D to exclude it, it appears the admission of the evidence would have such an adverse effect on the fairness of the proceedings.

Question 30

In which situations are the courts most likely to use their power under s101(3) CJA 2003?

Answer 30

1) nature of D’s previous convictions is such that jury would be likely to convict D on the basis of these convictions alone (rather than current evidence);
2) When CPS seeks to adduce previous convictions to support a case which is otherwise weak; or
3) When D’s previous convictions are spent as defined under rehabilitation act) and therefore is treated as though it was never committed. Note this rehabilitation period varies with the sentence.

Question 31

Explain the provision of s107 CJA 2003.

Answer 31

• Judges in the crown court have the power to direct the jury to acquit D, or to order a retrial in circumstances where evidence of D’s bad character is contaminated.
• Contamination for these purposes may occur if, for example, witnesses have colluded to fabricate evidence of D’s bad character.
• Note s107 does NOT apply to trials in the magistrates court.

Question 32

Explain the grounds where bad character evidence of other people (who are not the defendant) are admissible.

Answer 32

These grounds are set out in s101 CJA 2003 as follows:
(1) … evidence of the bad character of a person other than the defendant is
admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties agree to the evidence being admissible.

Question 32

Which two types of previous convictions may be used to suggest the evidence given by that witness lacks credibility?

Answer 32

1) Convictions for offences where witness has made a false statement or representation (perjury, fraud by false representation, theft etc, where the witness has lied to another as part of the commission of the theft); or

2) Convictions where the witness has been found guilty of an offence to which they pleaded not guilty (and were convicted following a trial).

Question 33

List some common examples where D may seek to rely on s78 (expulsion of evidence).

Answer 33

1) illegal searches by the police;
2) incorrect identification evidence/ procedures;
3) confession evidence;
4) evidence obtained from covert surveillance;
5) evidence obtained from undercover operations.

Question 33

What is the rule regarding the exclusion of evidence under s78 PACE on the basis that price have breached the provisions of PACE or the codes of practice in obtaining such evidence?

Answer 33

Their breach MUST be substantial and significant in order for s78 to be relied upon.