Character evidence Flashcards
What’s the meaning of bad character evidence? (CJA 2003, s 98)
= evidence of, or of a disposition towards, misconduct
Except evidence which:
(a) has to do with alleged facts of offence w/ which D charged, or
(b) is of misconduct in connection w/ investigation/prosecution of that offence
What can be constituted as ‘misconduct’?
(1) commission of an offence, or
(2) other reprehensible behaviour
What proof of convictions may be adduced to evidence misconduct?
Proof of conviction → rebuttable presumption that person committed the offence
- However, value of evidence depends on proper proof of circumstances of the offence (not merely fact of conviction / matters formally established thereby)
What convictions may be adduced?
(1) Past
(2) Future →
- Subsequent offences & evidence of propensity exhibited after offence admissible, if propensity = might be expected to be continuing
- E.g. later evidence demonstrating racist views
(3) Current →
- Convictions from G pleas during current investigation
- Plea to a lesser offence (s 20 wounding) may be relevant to Q of intent re: s 18 GBH with intent; but direction must be very clear that lesser intent does not establish ulterior intent for the greater crime
(4) Before foreign court →
- Admissible if an equivalent offence in domestic law, at time of trial
When adducing evidence of Reprehensible behaviour under proof of misconduct - what are the general principles?
General principles:
(1) Definition is ‘fact-specific’
- E.g. a text expressing desire to ‘stab someone’ is reprehensible to extent it has meaning contended for; for jury to decide otherwise
(2) Connotes some element of culpability or blameworthiness
(3) Context-specific
- E.g., in context of the seriousness of the charge
- E.g. aggressive shouting at partner not reprehensible in context of murdering a drug dealer
What 3 things are not necessary reprehensible?
(1) Morally lax
- E.g. large age gap in a relationship between D & anor (30 vs 16)
- E.g. notebook containing ‘dirty thoughts’
(2) ‘Irritating, inconvenient or upsetting’
- E.g. C in sexual assault case communicating with female friend of A
(3) Matters which don’t disclose bad character
- E.g. (lawful) possession of antique firearm
Evidence that ‘has to do with’ alleged facts of the offence charged cannot be bad character evidence. What are the considerations for this criteria?
(1) Anything directly relevant to offence charged that is contemporaneous & closely associated w/ alleged facts
- E.g. in alleged offence of threat to kill, re-iteration 2 days later to 3P of a threat to kill same individual
- E.g. commission of different offence at / around same time
- E.g. threatening a W
- E.g. re: offence of downloading indecent images, the search terms employed by D
(2) But temporal connection only one way of establishing necessary nexus
- E.g. evidence of gang feud over months before a revenge murder; or of membership of a rival to V’s gang — motive
- E.g. solicitor cocaine use – provided a reason to pervert course of justice by giving police drugs operations to supplier
3) So ‘has to do with’ does not only relate to actus reus of the offence
Evidence of previous allegations as is NOT bad character evidence. What are the considerations here?
- Section 98 does not protect A against revelation of previous charges (only) — unless suggested that A committed the offence in Q = falls within definition of ‘bad character’
- But court will not permit to be raised unless demonstrably relevant — mere fact that allegation made, w/o supporting evidence = not normally relevant either to A’s G / credibility as a W
Evidence of D’s bad character is admissible if, but only if? (CJA 2003, s 101(1)(a) to (g))
(a) all parties agree to the evidence being admissible
(b) evidence is adduced by D himself / given in answer to a Q asked by him in XX & intended to elicit it
(c) it is important explanatory evidence
(d) it is relevant to an important matter in issue between D & P
(e) it has substantial probative value in re: to an important matter in issue between a D & a co-D
(f) it is evidence to correct a false impression given by D, or
(g) D has made an attack on another person’s character
The court must not admit evidence under (1)(d) or (g) if?
(1) D applies to exclude it, and
(2) admitting it would have such an adverse effect on the fairness of the proceedings that court ought not to admit it
- Court must have regard in particular to length of time between matters to which evidence relates & present offence
This is a power of exclusion under CJA 2003, s 101(3)
What are the general principles of the court’s power of exclusion?
(1) Power not exercisable by court of its own motion, though application from D can where appropriate be prompted by court (e.g. D unrepresented)
(2) Court has no discretion – must not admit, if would have adverse effect
- NB though s 101(3) applies only to (1)(d) or (g), PACE s 78 can still apply to give court a discretion to exclude evidence on fairness grounds
What’s the section that underlines the court’s power of exclusion?
Powers of exclusion: CJA 2003, s 101(3)
What’s the criteria of admissibility of bad character evidence under s.101(1)(a) - all parties agree (incl. co-Ds)?
(1) Evidence relied on by both P & D to different ends
(2) If multiple Ds, will need all of their agreement
(3) Evidence can be admitted (by P) ‘w/o demur’ by D counsel = ‘tacit’ agreement
(4) Court should be informed of agreements at beginning of trial (no need to apply)
(5) Agreement does not apply to putting docs subject to PI immunity in evidence – a further order required
Why would D want to adduce bad character evidence under s.101(1)(b) - Adduced by D himself / given in answer to Q asked in XX intended to elicit it?
Common reasons why D may do this are to show:
(1) has never been convicted of a similar offence/offence of this seriousness,
(2) has previously pleaded G, but now isn’t (showing innocence), or
(3) in minor cases – to stop jury from speculating it is worse that it is
*judge must direct this is only so jury knows ‘whole background + that the character evidence does not make it more/less likely that A committed the offence
Why would D want to adduce bad character evidence under · 101(1)(c) Important explanatory evidence?
‘Important explanatory evidence’ meaning:
(1) without it, court / jury would find it impossible or difficult properly to understand other evidence in the case, and*
(2) its value for understanding the case as a whole = substantial
and* of extreme importance to this section, both limbs MUST be satisfied
What are the 5 general principles under s. 101(1)(c) Important explanatory evidence?
(1) Two distinct circumstances:
a) Bad character incidental to offence charged
- E.g. letter relevant to proceedings sent by D from prison
b) Bad character itself relevant part of background
- E.g. past sexual abuse against C by D necessary to explain why apparent her compliance now = not indicative of genuine consent
(2) Merely ‘helpful’ is not enough, or that it ‘fills out’ the picture – must be impossible or difficult to see the whole picture w/o it
(3) Must be carefully scrutinised so as not to smuggle backdoor evidence of propensity which should come in under s 101(1)(d) & so subject to ‘fairness’
(4) May require careful direction from judge that it doesn’t go to propensity
- When evidence can be admitted via different gateways for different purposes, judge must provide careful direction on how it is to be used
(5) Where admitted, may be fairest to present in the form of an ‘agreed statement of facts’ to avoid prejudice & prevent distraction of jury
Why would P want to adduce bad character evidence under s. 101(1)(d) Relevant to an important matter in issue between D & P?
Only P evidence is admissible under s 101(1)(d)
Because it’s a matter of substantial importance in the context of the case as a whole
(1) issue must be of substantial importance; but not necessary for the evidence to be of substantial probative value (just needs to be relevant to the important issue)
(2) usually, but not always, used for D’s propensity + untruthfulness (as set out below)
= wide gateway, tempered by requirement under s 110(3) for fairness
- If evidence admitted, any protection from unfairness = direction given by trial judge
Under gateway 101(1)(d), what are the 2 important matters in issue to include?
(1) Whether D has a propensity to commit offences of the kind with which he is charged (except where having such a propensity makes it no more likely that he is G of the offence charged — i.e. must be ‘relevant’)
- May be established by evidence that D has been convicted of:
(a) another offence of the same description
= would appear in same terms on an indictment
(b) another offence of the same category - *Unless unjust due to passage of time since previous conviction / any other reason
(2) Whether D has a propensity to be untruthful (except where not suggested D’s case has been untruthful)
In order to evidence to go through gateway 101(1)(d) the Hanson test must be satisfied. What’s the criteria of this test?
(1) Does history of conviction(s) establish a propensity to commit offences of the kind charged?
(2) If yes, does this propensity make it more likely that D committed the crime charged?
- E.g. where outstanding issue to be proved is A’s intention — previous convictions not ‘relevant’ where throw no light on this
- Rap lyric referencing sale of guns admissible to show propensity as re: charges for firearms & ammunitions offences
(3) If the convictions are for offences of the same category / description, is it unjust to rely on them? → Lots of time has passed
(4) Where the propensity is proved by means other than previous convictions, is it unfair to admit the evidence?
→ Fairness test in s 101(3)
What’s the Fairness test in s.101(3)?
101- Defendant’s bad character
(3)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.
Can the propensity limb from the Hanson test be satisfied by demonstrated by a single previous event if sufficiently probative of the crime in issue (e.g. show ‘strikingly similar’ behaviour)?
Yes it can
- Even if the previous offence was a long time ago
- Propensity can also be shown by offences committed after offence charged — if e.g. they show an unusual sexual preference that is unlikely to have changed over time (evidence of “” in 2015 relating to offence committed in 1972)
Where D disputes ID evidence connecting him to the crime can jury ID D as perpetrator through evidence of propensity (Hanson test)?
I.e. where D disputes ID evidence connecting him to the crime
Jury can ID D as perpetrator via:
(1) An inference from propensity, or
(2) Any other relevant inference drawn under gateway (d)
- E.g. evidence of many similar arson examples don’t result in inference from propensity (as there had not been ID evidence) – rather, inference from unlikelihood of coincidence
- Ok to convict wholly/mainly on ID by bad character in the rare case of ‘signature evidence’ – offences strikingly similar b/c bear D’s ‘fingerprints’
Can evidence of misconduct short of ‘signature evidence’ still support ID (· 101(1)(d) Hanson test)?
yes
Need not necessarily be any similarity between past/present offences — robber D asking for ‘coke’: sufficient to admit previous convictions for cocaine-related offences to support ID
E.g. on charge of street violence — propensity to commit such offences = admissible to support disputed ID
E.g. frequently, (circumstantial) evidence of gang membership used to link A to offence charged: e.g. charge relating to drugs + guns found in D’s store cupboard — can admit evidence showing D’s membership of gang involved in drug crime/use of firearms
Under 101(1)(d), where D faces multiple charges in same proceedings, do the ‘bad character’ provisions apply as if each was charged in separate proceedings?
Yes, cross-admissibility (multiple charges & accusations) is applicable
Establishing a gateway is necessary to facilitate X-admissibility between charges
- & if evidence of the commission of 1 count is to be used as evidence of commission of another = must pass through one of the gateways
- Where A faces 2+ similar charges / evidence of similar allegations is tendered in support of 1 charge = evidence of one accuser may be admissible to support evidence of another
- But only where an application is made to use the evidence in this way (otherwise A entitled to have it ruled = inadmissible)
May P contend A guilty of past relevant misconduct despite acquittal or nolle prosequi in re: of it?
Yes, P may do this
A guilty of misconduct on the previous occasion even though no attempt made to impose any penalty for it
- Provided relevant to an important issue in the present case
What are the 2 test required for admissibility of bad character evidence under s.101(1)(e) - Important matter in issue between co-Ds?
Tests required:
-1) Propensity to commit offence of the kind charged →
- Substantial probative value in re: an important matter in issue between D & a co-D [cf (1)(d) which is merely ‘relevant’ to an issue]
2) Propensity to be untruthful →
(1) Substantial probative value, AND
(2) Nature / conduct of (allegedly untruthful) D’s defence = such as to undermine the co-D’s defence [i.e. a cut-throat defence]
What are the evidence limitations of s.101(1)(e) -Important matter in issue between co-Ds?
(1) which is to be (/has been) adduced by co-D, or
(2) which a W is to be invited to give (/has given) in XX by co-D
Under s.101(1)(e), what are ‘important matter in issue’?
= matter of substantial importance in context of case as a whole
- Unlike w/ s 101(1)(d), propensity not deemed to be a matter in issue — so must be shown to be genuinely a fact in issue between Ds
(1) Mere denial by co-A of participation doesn’t meet s 101 — but if denial necessarily implies another A has committed offence = sufficient to raise ‘important matter’ & s 101(1)(e) is in play between them
(2) Similarly, where Ds not facing a joint charge & no cut-throat defence = important to ascertain that fact in issue between Ds is truly important
When can s.101(1)(f) Evidence to correct a false impression be adduced by P?
Can only be adduced by P and when D gives a false impression
- If responsible for making an express or implied assertion which gives the court or jury a false / misleading impression about the D (notwithstanding if also true)
NB: attempt to mislead court must go beyond denying the offence
Under 101(1)(f), D is responsible for making an assertion if?
(1) D makes it in the proceedings (whether/not in evidence)
- If D appears to be giving the false impression by conduct other than giving evidence, e.g. appearance / dress = court may treat D as being responsible for the making of an assertion apt to give that impression if appears just to do so
(2) D makes the assertion on being Q’ed under caution or after charge
(3) Assertion is made by a D W
(4) Assertion is made by any W in XX in response to a Q from D intended/likely to elicit it
(5) Assertion was made by a person out of court & D adduces evidence of it
*But not responsible if he withdraws it / dissociates himself from it
NB: difference between positive decision to correct impression & being forced in XX to concede its falsity (latter case doesn’t count)
Under 101(1)(f), what evidence can P adduce?
1) Evidence must have ‘probative value’ in correcting the impression
2) Evidence must go no further than necessary to correct the false impression
Under 101(1)(g) ‘Attack on another person’s character’, D makes an attack on another person’s character if?
(1) he adduces evidence attacking their character
(2) he (/his counsel) asks Qs in XX intended/likely to elicit such evidence, or
(3) evidence is given of an imputation about them made by D during Q’ing under caution / after charge
