Character Evidence Flashcards

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1
Q

Bad character definition

A

Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 thus:

‘References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of 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, or

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

‘Misconduct’ is defined in s.112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’.

‘Reprehensible behaviour’ is not further defined in the Act, though there is case law on the issue. ‘Reprehensible’ connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered in law bad character. It is well established that evidence of membership of a gang is evidence of reprehensible behaviour.

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2
Q

Sources of bad character evidence

A

Bad character may be shown by any of the following:

  • Previous convictions in the UK
  • Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
  • Cautions
  • Acquittals, where the 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
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3
Q

Acquittals and previous convictions

A

Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted.

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

Z [2000] 2 AC 483

In this case (a rape case where the defence was consent) it was permissible for the prosecution to rely on four previous rape allegations where the same defence was advanced, three of which resulted in acquittals, to show that Z had a propensity to rape and to assert that consensual intercourse had taken place. All four previous complainants were allowed to give evidence and the jury were entitled to assess their credibility regardless of the verdicts reached in the previous trials.

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.

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4
Q

Conduct which falls outside s.98

A

Section 98 CJA 2003 specifically excludes evidence of misconduct which:

(a) Has to do with the alleged facts of the offence with which the defendant is charged; or

(b) Is committed in connection with the investigation or prosecution of that offence.

Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character).

If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b).

Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant or another, evidence of that conduct will fall outside s.98.

Examples are offences of driving while disqualified where the prosecution will have to prove that the defendant committed an earlier offence and was disqualified as a result.

Attempts at jury tampering or witness intimidation are examples of misconduct connected with the investigation or prosecution of the offence, so evidence of those matters is not bad character evidence.

The decided cases seem to accept that evidence of the motive of the accused to commit the offence is evidence that has to do with the alleged facts of the offence.

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5
Q

Gateways for admissibility of defendant bad character evidence

A

a) Agreement

b) Blurts it out

c) Context

d) Done it before

e) ‘E did it

f) False impression

g) Gets at the witness

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6
Q

Agreement of the parties

A

‘1 In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if, -

(a) all parties to the proceedings agree to the evidence being admissible’

There is no need to make an application to the court for leave to adduce evidence through this gateway.

There are no formal requirements as to the recording of the agreement or how it is reached. A tacit agreement is enough.

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7
Q

Section 101(1)(b): Evidence adduced by the defendant

A

This allows defendants to introduce evidence of their own bad character.

‘Section 101(1)(b) “the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it”.’

There are a number of reasons why D may wish to do so. Reasons include:

  • To come clean about an old conviction in order to receive a modified good character direction
  • To show that D has never been convicted of an offence of the type with which D is now charged
  • To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
  • To show why police officers might have a bias against D

Leave of the court is not required to adduce evidence through this gateway.

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8
Q

Section 101(1)(c): Important explanatory evidence

A

Section 101(1)(c): ‘it is important explanatory evidence’. ‘Important explanatory evidence’ is defined in s.102 CJA 2003 thus:

‘(a) For the purposes of section 101(1)(c) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.’

This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial.

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

Leave of the court is required to adduce evidence through this gateway.

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9
Q

Section 101(1)(d): Important matter in issue between the defendant and the prosecution

A

Section 101(1)(d): ‘it is relevant to an important matter in issue between the defendant and the prosecution’.

Section 112 says that ‘important matter’ means a matter of substantial importance in the context of the case as a whole.

Section 103 further explains the meaning of s.101(1)(d):

‘(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) 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.

(2) Where subsection (1)(a) applies, a defendant’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—

(a) an offence of the same description as the

one with which he is charged, or

(b) an offence of the same category as the one with which he is charged.

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2)—

(a) two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

(5) Only prosecution evidence is admissible under section 101(1)(d).’

Section 101(3) provides that:

‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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.’

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10
Q

Propensity to commit offences of the kind with which D is charged

A

R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:

  • 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 (s.103(3))?
  • In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))?

Propensity

In the same case, the court held that the following principles apply:

  • There is no minimum number of previous convictions required to establish a propensity. The fewer the number of previous convictions, the weaker is likely to be the evidence of propensity. 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.
  • The strength of the prosecution case should be considered. It is unlikely to be just to admit bad character evidence where there is no or little other evidence against the defendant.

While propensity is usually shown by evidence of conduct before the alleged offence, it can be demonstrated by evidence of the existence of the propensity after the offence, provided that it is likely that the propensity is ongoing. For example, propensity to be involved in a racist murder can be shown by evidence of the expression by the accused of racist beliefs after the commission of the offence. It is for the jury to decide whether the accused’s racism is a recently-acquired character trait.

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11
Q

Important matters in issue

A

It is important to remember that while gateway d is often described as the “propensity gateway”, it is in fact concerned with all manner of important matters in issue between the prosecution and defence. An example of an issue other than propensity in a trial is that of identity. In such trials the prosecution may seek to adduce bad character evidence to support their case on identification.

Where the facts of previous convictions are so unusual as to constitute a “signature” of the offender’s mode of offending, the propensity itself is likely to be very powerful evidence against the defendant. In the pre-2003 case law these were termed “striking similarity” cases and based on the principle of “similar fact evidence”.

Straffen [1952] 2 QB 911

An example of striking similarity. Where in a trial for murdering a young girl by strangulation evidence was adduced that the defendant had previously been convicted of two similar offences. All three offences had the unusual feature that there had been no attempt at sexual assault and no attempt to conceal the body. In that case the only additional evidence against the defendant was that he was in the area and he had recently been released from Broadmoor secure psychiatric hospital. In such a case it is not necessary for the judge to give the usual warning not to convict solely or mainly on evidence of bad character.

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12
Q

Propensity to be untruthful

A

Also in R v Hanson the court held that a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a propensity where:

  • 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.

In practice this means that while burglary is categorised as 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, in such circumstances, it would incorrect to describe their behaviour as general untruthful.

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13
Q

Cross-admissibility

A

Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. Therefore a gateway is required to allow cross-admissibility of evidence of one offence as evidence of the other. The most likely gateway to fulfil this function is s.101(1)(d).

For example, where a man is accused of sexual assaults on both of his stepdaughters (A and B), evidence from A that she was assaulted is only evidence that the defendant committed offences against her unless it is admissible through gateway (d) to show a propensity to commit offences of the kind alleged, in which case it also becomes evidence against the defendant when the jury are considering the allegations made by B. In such a case, if a jury were sure that the defendant was guilty in respect of A and they were further sure that that conviction established a propensity to offend in a manner relevant to B’s case, the evidence can be lawfully deployed in that way.

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14
Q

Functions of the judge and jury

A

The judge is to determine whether evidence is capable of establishing a propensity.

If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show the propensity that is asserted.

Leave of the court is required to admit evidence through this gateway.

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15
Q

Section 101(1)(e): Important matter in issue between the defendant and a co-defendant

A

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.

The effect of s.104 is that evidence of the co-defendant’s propensity to be untruthful is only admissible where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence.

Leave of the court is required to admit evidence through this gateway.

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16
Q

Section 101(1)(f): Correcting a false impression

A

Section 101(1)(f): ‘it is evidence to correct a false impression given by the defendant’.

Section 105 states:

‘(1) For the purposes of section 101(1)(f):

(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;

(b) evidence to correct such an impression is evidence which has probative value in correcting it.

(2) A defendant is treated as being responsible for the making of an assertion if:

(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),

(b) the assertion was made by the defendant:

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it,

and evidence of the assertion is given in the proceedings,

(c) the assertion is made by a witness called by the defendant,

(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or

(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.

(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(5) In subsection (4) ‘conduct’ includes appearance or dress.

(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.

(7) Only prosecution evidence is admissible under section 101(1)(f).’

Leave of the court is required to admit evidence through this gateway.

It is possible for s.101(1)(f) to have an effect even where it is the prosecution that adduces the evidence that creates a false impression.

For example, where the defendant says in police interview, ‘I have never acted dishonestly’, and the prosecution adduces evidence of what was said in the interview as part of the prosecution case, s.101(1)(f) allows the prosecution to adduce evidence of previous convictions for offences of dishonesty to correct the false impression given in interview.

17
Q

Section 101(1)(g): Attack on another person’s character

A

Section 101(1)(g): ‘the defendant has made an attack on another person’s character’.

Section 106 says:

‘1 For the purposes of section 101(1)(g) a defendant makes an attack on another person’s character if:

(a) he adduces evidence attacking the other person’s character,

(b) he … asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or

(c) evidence is given of an imputation about the other person made by the defendant—

(i) on being questioned under caution, before charge, about the offence with which he is charged, or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it.

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).’

Note that this gateway can be used to admit evidence of dishonesty, not just of a propensity to be untruthful, as is the case where evidence is admitted thorough the s.101(1)(d) gateway.

The reason is that the purpose of the s.101(1)(g) is to allow the jury to assess how likely it is that the attack on the other person’s character is true. In assessing this, the jury are entitled to know the character of the person who makes the allegation.

This subsection is triggered where an attack is made on any person, living or dead. It is also unimportant whether the person whose character has been attacked is or is not a witness in the case.

Leave of the court is required to admit evidence through this gateway.

The fairness test in s.101(3) CJA 2003 applies to this gateway.

18
Q

Directing the jury

A

It should be made clear to the jury that the weight to be placed on evidence of bad character that has been adduced during the trial is a matter for them.

The jury must be warned not to place too much reliance on bad character evidence. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. The jury should be directed that:

  • they should not conclude that the defendant was guilty or untruthful merely because D had previous convictions; and
  • a propensity is not enough to show that the defendant committed the offence alleged in this case.

The significance of bad character evidence should be assessed in the light of all the evidence in the case.

Where an allegation of conduct that did not result in a conviction is relied on as evidence of propensity and it is disputed, the jury should be directed that they should not rely on it unless they are sure that it is true.

19
Q

Section 100: Gateways for admissibility of non-defendant bad character evidence

A

Section 100 CJA 2003 states:

‘1 In criminal proceedings 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 to the proceedings agree to the evidence being admissible.

2 For the purposes of subsection (1)(a) evidence is important explanatory evidence if:

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

3 In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant):

(a) the nature and number of the events, or other things, to which the evidence relates;

(b) when those events or things are alleged to have happened or existed;

(c) where:

(i) the evidence is evidence of a person’s misconduct, and

(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

(d) where

(i) the evidence is evidence of a person’s misconduct,

(ii) it is suggested that that person is also responsible for the misconduct charged, and

(iii) the identity of the person responsible for the misconduct charged is disputed,

the extent to which the evidence shows or tends to show that the same person was responsible each time.

4 Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.’

20
Q

Section 100

A

Evidence under s.100 can be adduced by any party.

Leave of the court is required unless all parties agree to the admission of the evidence.

Section 100(1)(a): Important explanatory evidence

The definition of ‘important explanatory evidence’ (s.100(2)) is the same as the one given in s.102 in relation to defendant bad character evidence:

  • without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
  • its value for understanding the case as a whole is substantial.

The same considerations apply.

Section 100(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

‘Matter in issue’ can refer to either credibility or a disputed fact. Although there is no specific reference to propensity as a possible matter in issue as we have seen in s.103, propensity can be a matter in issue for the purposes of s.100. The effect of this is that a defendant can adduce evidence of another person’s propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence.

The inclusion of the word ‘substantial’ in the subsection indicates that in order to be admissible, the evidence must be capable of having an impact on the way in which the jury could assess the evidence of a witness or the case as a whole. Whether the misconduct of a non-defendant has substantial probative value depends on the nature, number and age of the instances of misconduct. So recent misconduct is likely to have greater probative value than misconduct long ago. Where it is alleged that the non-defendant committed the offence charged, the similarity of the past misconduct to the facts of the offence charged will be important.

21
Q

Exclusion and safeguards

A

Section 78 PACE Act 1984

This section allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

It has no application where one defendant seeks to adduce evidence against another.

Section 101(3) reads:

‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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.’

Section 101(3) Criminal Justice Act 2003

This subsection applies to evidence of the defendant’s bad character that is to be admitted through gateways 101(1)(d) or (g).

The wording is very similar to that of s.78 PACE Act 1984, with the exception that the word ‘must’ appears in s.101(3), whereas the word ‘may’ appears in s.78.

It is hard to see in what circumstances the difference in the wording would make a practical difference, but for the defence advocate it is obviously preferable to use s.101(3) because of stricter wording.

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.

Section 107 CJA 2003

This section gives the court discretion to stop the case where it is satisfied at any time after the close of the case for the 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.

Section 110 CJA 2003

Section 110 requires the court to give reasons in open court for any ruling it makes on the issue of bad character.

22
Q

Proving convictions under ss.73–75 PACE Act 1984

A

Section 73: Proving convictions and acquittals

Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, s.73 provides that the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.

The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.

Sections 74 and 75 PACE Act 1984

Using convictions as evidence that an offence was committed

Section 74 provides that where a person is proved to have been convicted of an offence by any court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved.

The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person.

Section 75 makes various documents including the information, charge sheet and/or indictment admissible as evidence of the facts on which the conviction was based.

23
Q

Procedural requirements

A

The procedural rules to be followed when a party wishes to adduce bad character evidence are found in Part 21 of the Criminal Procedure Rules.

Notices, applications and responses

Rule 21.2 requires that a party wishing to adduce bad character evidence must, in the case of:

  • non-defendant bad character evidence, make an application under rule 21.3; or
  • defendant bad character, give notice under rule 21.4.

Time Limit

Rules 21.2 and 21.4: Defendant bad character

Prosecution Evidence

  • 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’s Evidence

  • As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based

Response

  • Not more than 10 business days after service of the notice

Contents

Prosecution Evidence and Co-Defendant’s Evidence

  • Set out the facts of the misconduct on which that party relies;
  • Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
  • Explain why the evidence is admissible.

Response

In the application explain, as applicable-

  • 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.

Rules 21.2 and 21.3: Non-defendant bad character

Time Limit

Magistrates’ court and Crown Court

  • As soon as reasonably practicable; and
  • In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant)

Response

  • Not more than 10 business days after service of the application

Contents

Magistrates’ court and Crown Court

  • Set out the facts of the misconduct on which that party relies;
  • Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
  • Explain why the evidence is admissible.

Response

In the notice explain, as applicable-

  • Which, if any, facts of the misconduct set out in the application that party disputes;
  • What, if any, facts of the misconduct that party admits instead;
  • Why the evidence is not admissible; and
  • Any other objection to the application.
24
Q

The court’s powers

A

The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury.

The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired.

In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that becomes admissible through the other gateways in s.101 is likely to do so ‘on the hoof’ as a result of something said or done in the course of the trial. In those circumstances the application is likely to be made orally.