Character Evidence

Question 1

What is character evidence?

Answer 1

Character evidence can refer to:

• A person’s general reputation.
• Their general disposition to behave in a particular way
• Specific examples of misconduct (e.g. convictions)

Question 2

Why is character evidence admissible?

Answer 2

For any witness (bad character only): In order for the court to assess the credibility of a witness, the court may have to investigate the character of a witness - matters affecting credit

For defendants (good and bad character): As well as credibility, the character of the defendant may be relevant when determining guilt.

• Either as a fact in issue or relevant to a fact in issue. Can also be used to identify a defendant (DPP v Boardman) - matters affecting issue

Question 3

What is the Vye direction for relevance of good character evidence?

Answer 3

1. Good character = relevant to whether defendant is a credible witness - Credit
2. Good character = relevant to the “ultimate issue” (guilt or innocence). If the defendant is of good character, they are less likely to have committed the offence - Issue

Defendants of good character may be entitled to a Vye direction: Vye 1993

Question 4

When should a judge give either limb of the Vye direction?

Answer 4

1. The judge should give a first limb direction (credibility) if D testifies or relies on mixed pre-trial statements - Aziz 1996
2. The judge should give a second limb direction (issue) whether or not the defendant has given evidence or made pre-trial answers/statements

Question 5

What happens when an accused of good character is jointly tried with a person of bad character?

Answer 5

The defendant of good character is entitled to a Vye direction (Gibson 1991)

The defendant of bad character:

Tell the jury there is no evidence before them about character, or say nothing.

Question 6

Which case law defines good character?

Answer 6

Hunter [2015]

Question 7

Where is bad character defined?

Answer 7

Section 98 CJA 2003:

…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 OR
(b) Is evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 8

What does misconduct and “commission of an offence” (s112) mean?

Answer 8

Misconduct - commission of an offence or other reprehensible behaviour (s112)

• “Commission of an offence”:
  
  • Previous convictions/cautions
  • Previous offences for which D has not previously tried
  • Evidence he has committed an offence for which he was acquitted - Z [2000]

Question 9

What is classed as reprehensible behaviour?

Answer 9

1. Taking illegal drugs (and being addicted)
2. Being sexually promiscuous
3. To collect (and or take) digital photos of people being attacked
4. Making a false complaint against someone you dislike.
5. Fabricate a document designed to show another person was doing things they were not.

Question 10

What determines the admissibility of a non-defendant’s bad character evidence?

Answer 10

S100(1) CJA 2003:.

..evidence of the bad character of a person other than the defendant is admissible if:

1. it is important explanatory evidence.
2. It has substantial probative value in relation to a matter in issue or is of substantial importance in the context of the case as a whole.

Question 11

When is the defendant’s bad character admissible?

Answer 11

Section 101 CJA 2003:

1. In criminal proceedings, evidence of the defendant’s bad character will be admissible if, but only if-
   
   1. It is important explanatory evidence
   2. It is relevant to an important matter in issue

Question 12

What is ‘important explanatory evidence’?

Answer 12

Section 102 CJA 2003:

For the purposes of section 101(c) evidence is important explanatory evidence if-

1. Without it, the court or 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 is substantial.

Question 13

What matters in issue between the defence and prosecution must the defendant’s bad character be relevant to?

Answer 13

Section 101(d)“It is relevant to an important matter in issue between the defence and prosecution.

It includes ID (Spittle 2009) and the accused’s defence - R v B 2007

Section 103(1):

Matters in issue include whether the defence has the propensity to commit the offences of the kind with which he is charged and it includes the question whether the defendant has a propensity to be untruthful.

Question 14

What guidance has been laid out by the House of Lords to aid with S101(1)(d), as established in a review of Hanson, Gilmore, Pickstone [2005]?

Answer 14

• No minimum number of events necessary to demonstrate propensity.
• Fewer no. of convictions = weaker evidence of propensity
• A single pre-con for an offence of the same category does not show propensity. it may do so where it shows an unusual behaviour.
• Often necessary to examine each individual conviction.
• Where past events are concerned, the trial should not be diverted to investigate matters not charged.

Question 15

How can character evidence be used by the tribunal of fact if admitted?

Answer 15

Highton; Van Nguyen 2005

Question 16

What discretion is there to exclude bad character evidence?

Answer 16

Section 101(3):

The court must not admit evidence under section 101(1)(d) or (g) if, on the application by the defendant to exclude it, it appears to the court the admission of the evidence would have such an adverse effect on the proceedings that the court ought not to admit it.

Or Section 78 PACE.