Character II

Question 1

CJA 2003 s.100?

Answer 1

Conditions for admissibility of bad character evidence of persons not the accused.

Question 2

Brewster [2010]

Answer 2

CJA s.100’s purpose is to remove the right to introduce old, irrelevant or trivial behaviour of a witness during cross to diminish their standing.

Question 3

What is the meaning of bad character per CJA s.100?

Answer 3

The s.98 definition: evidence of misconduct not to do with facts or investigation/proceedings of current charge.

Question 4

Is evidence of a medical condition affecting credibility or propensity evidence of bad character?

Answer 4

No, but can be admissible at common law.

Question 5

What common law rule on bad character evidence persists despite CJA?

Answer 5

Evidence to do with the facts or investigation/proceedings of the charge do not have to satisfy s.100 or 101 admissibility gateways.

Question 6

What’s an example of evidence of witnesses that does not have to satisfy s.100?

Answer 6

Evidence of misconduct used to prove bias or partiality of a witness - can be admitted under common law.

Question 7

Is a co-accused’s guilty plea evidence of their bad character?

Answer 7

Not when it is a joint offence, as then it has to do with the offence in question.

Question 8

Is evidence of misconduct in other investigations not about the current offence admissible under s.100?

Answer 8

Yes, as long as it still satisfies s.100

Question 9

CJA 2003, s.100(1)(a)?

Answer 9

Bad character evidence of witnesses is admissible if it is important explanatory evidence

Question 10

CJA 2003, s.100(1)(b)?

Answer 10

Bad character evidence of witnesses is admissible if it has (1) substantial probative value for a matter in issue or of (2) substantial importance in the context of the case as a whole.

Question 10

CJA 2003, s.100(1)(c)?

Answer 10

Bad character evidence of witnesses is admissible if all parties of proceedings agree to its admissibility

Question 11

CJA 2003, s.100(4)?

Answer 11

Except where parties all agree, evidence of witnesses’ bad character mustn’t be given without court permission.

Question 12

Whose bad character would fall under s.100?

Answer 12

Anyone not the accused. Don’t have to be a witness. During Chief AND Cross. Including statements admitted under hearsay, and deceased victims.

Question 13

Harvey [2014]

Answer 13

A person’s statement admitted under hearsay rules is subject to the s.100 gateways for bad character.

Question 14

Braithwaite [2010]?

Answer 14

Outlines 4 important features of the test for admissibility under s.100

Question 15

What is the 1st feature of the s.100 test for admissibility outlined in Braithwaite?

Answer 15

s.100 “substantial probative value” is different from s.101(1)(d) which is only a test of relevance - its the same as s.101(1)(e)

Question 16

What is the 2nd feature of the s.100 test for admissibility outlined in Braithwaite?

Answer 16

If the conditions of s.100 are met, the judge can’t refuse to admit the evidence.

Question 17

What is the 3rd feature of the s.100 test for admissibility outlined in Braithwaite?

Answer 17

Except in s.100(1)(c) where parties agree to admission, court leave is always required for s.100 evidence.

Question 18

What is the 4th feature of the s.100 test for admissibility outlined in Braithwaite?

Answer 18

Rulings by the judge without parties agreeing requires the exercise of judgment, not discretion.

Question 19

Edwards [2018]?

Answer 19

There’s no discretion for a judge to exclude evidence under s.100 on grounds of fairness. But D can still use PACE s.78 to challenge prosecution evidence.

Question 20

Ibrahim [2021]?

Answer 20

s.100(1)(a) and (b) impose a higher threshold to admissibility than the mere relevance of s.101(1).

Question 21

Beverley [2006]?

Answer 21

Important explanatory evidence (s.100(2)) must not be admitted where the evidence is understandable without bad character evidence added on top. Its use to understand MUST be SUBSTANTIAL.

Question 22

What are some examples of bad character evidence being substantially important to aid understanding of an issue?

Answer 22

Where it can show motivations to lie; explain wider patterns of behaviour; but NOT WHERE there’s explicit evidence e.g. CCTV to the contrary.

Question 23

What is the meaning of substantial within the s.100 admissibility test?

Answer 23

Its ordinary meaning… kinda that it enhances the capability of proving a point to a jury.

Question 24

Can s.100 be used to submit evidence of propensity?

Answer 24

Yes - even though not specifically mentioned like in s.101 BUT it is not propensity that the jury must be 'sure' of... just that its likely.

Question 25

Can the credibility of a witness be a substantial issue for s.100 admissibility?

Answer 25

Yes, but the mere existence of convictions will not be relevant enough

Question 26

Can the character of the deceased be a matter for s.100?

Answer 26

Yes, as long as more than just relevant + substantial in value for understanding of an issue.

Question 27

How do you assess substantial probative value for s.100?

Answer 27

Must consider what the force of the evidence in question is for the case as a whole - does it add to other, more useful evidence too?

Question 28

CJA 2003, s.100(3)?

Answer 28

Lists some factors the court must think of when assessing the probative value of B.C. evidence (non-exhaustive)

Question 28

CJA s.100(3)(a)?

Answer 28

When deciding if B.C. evidence has substantial probative value the court must consider nature and number of events the BC relates to. The more serious, the more probative.

Question 29

CJA s.100(3)(b)?

Answer 29

When deciding if B.C. evidence has substantial probative value the court must consider when the BC evidence is alleged to have happened or existed. Older it is, less convincing it is.

Question 30

CJA s.100(3)(c)?

Answer 30

When deciding if B.C. evidence has substantial probative value the court must consider when its alleging repeated conduct, any similarities and differences.

Question 31

CJA s.100(3)(d)?

Answer 31

When deciding if B.C. evidence has substantial probative value the court must consider when BC person has alleged to be responsible for the charge and the identity of BC is disputed, extent to which evidence shows the same person responsible every time.

Question 33

Brewster [2010]?

Answer 33

Whether convictions have persuasive value depends MOSTLY on their nature, number and age.

Question 34

What is a recurring issue regarding admissibility of bad character evidence?

Answer 34

Use of B.C. evidence to support a defence alleging V or 3rd party was the aggressor of a violent offence. must BE VERY CAREFUL here.

Question 35

When would court reject BC evidence to allege a V or 3rd party was the aggressor for violent offences?

Answer 35

Where a previous conviction of a person is old or doesn't meet hearsay requirements.

Question 36

When would court accept BC evidence to allege a V or 3rd party was the aggressor for violent offences?

Answer 36

Where there's previous violence between that person and the accused, or where it might evidence possible involvement of 3rd parties.

Question 37

Stephenson [2006]?

Answer 37

Crreditworthiness of witnesses can be capable of being a matter in issue of substantial importance in the context of the case as a whole.

Question 38

What does Brewster [2010] state about types of evidence aiding understanding of witnesses' creditworthiness?

Answer 38

There're 2 types: evidence relevant directly in that it creates doubt of this particular statement of a witness OR evidence indirectly providing a general reason for suggesting the witness shouldn't be trusted.

Question 39

Brewster [2010]?

Answer 39

The test for deciding to admit BC evidence speaking on a witnesses' credibility is 'if reasonably capable of assisting a fair-minded jury to decide whether W evidence is worthy of belief" it should be admitted under s.100.

Question 40

How should bad character applications be made?

Answer 40

Prompt written application by any party under part 21 + judicial ruling without jury present

Question 41

Adams [2019]?

Answer 41

The procedural rules for how to apply for character evidence apply in cross-admissibility cases too

Question 42

Can the procedure for applying to use bad character evidence be varied?

Answer 42

Yes, D may waive entitlement to notice, and court can permit variances of the form of notices in the interests of justice e.g. late oral application.

Question 43

CrimPR 21.6?

Answer 43

Court has some powers to vary notice requirements for applications for bad character evidence.

Question 44

Musone [2007]?

Answer 44

Court's powers to vary procedure for notice of bad character applications can be used to prevent unfairness that can't be cured by adjournment.

Question 45

CrimPR 21?

Answer 45

Evidence of bad character.

Question 46

CrimPR 21.2?

Answer 46

What must be included in an application or notice of bad character evidence.

Question 47

CrimPR 21.3?

Answer 47

Applies to applications to introduce evidence of a non-defendant's bad character.

Question 48

CrimPR 21.4?

Answer 48

Applies to notice to introduce evidence of defendant's bad character.

Question 49

What 3 things must an application or notice in CrimPR 21 (BC) include?

Answer 49

(1) set out facts of misconduct (2) explain how these facts will be proven (3) explain why the evidence is admissible.

Question 50

What are the rules of service for applications to introduce non-defendant bad character evidence?

Answer 50

Applications for ND BC must be served on the court officer and other parties asap and not more than 10 days after prosecution disclosure of material on which the application is based.

Question 51

What are the rules on objection to non-defendant bad character evidence applications?

Answer 51

A party objecting to ND BC must serve notice to court officer + parties not more than 10 business days after the application and explain (1) facts in dispute (2) facts admitted (3) why evidence is inadmissible.

Question 52

How may the court decide an application to admit non-defendant bad character evidence?

Answer 52

ND BC applications may be decided in public or private hearings, without hearings, as long as parties are present OR have had 10 business days to file objections.

Question 53

What are the 3 outcomes of a hearing on bad character notices (D) and applications (non-D)?

Answer 53

(1) adjournment (2) discharge the application (3) vary a determination, Court must announce reasons for decision in public: whether admit, acquit, or retrial.

Question 54

Who must notice to introduce Ds BC evidence be served upon?

Answer 54

Notice to introduce Ds BC must be served on the court officer + other parties

Question 55

What are the 2 relevant time limits on serving notice to introduce Ds BC evidence?

Answer 55

Notice must be given within 20 business days of a not guilty plea at MC; and 10 business days of a not guilty plea at CC.

Question 56

What rules must a co-defendant serving notice to introduce Ds BC evidence abide by?

Answer 56

The notice must be served asap (as reasonable) and not more than 10 business days after disclosure of P material on which the notice is based.

Question 57

What are the rules on objection to notices to admit Ds bad character evidence?

Answer 57

An objecting party must (1) apply to court to determine (2) serve application on court officer + parties within 10 business days of service (3) explain what elements they agree vs dispute of the notice.

Question 58

How would D introduce evidence of their own bad character?

Answer 58

(1) give oral or written notice asap, but before the evidence is introduced

Question 59

What are the courts powers to vary requirements for admitting BC evidence?

Answer 59

Court can shorten or extend time limits; vary form of applications/notices; dispense with need for notice.

Question 60

Why is there a right to submit good character evidence?

Answer 60

Both to show an accused lacks propensity to have done something and to show that someone of good character is more likely to be truthful.

Question 61

How is the fairness of good character evidence maintained?

Answer 61

The judge must give specific directions on its relevance

Question 62

What do most appeals over good character evidence challenge?

Answer 62

Appeals on good character are about whether the judge gave proper direction more than whether it was excluded improperly

Question 63

Should a good character direction be the same for any party of proceedings?

Answer 63

No. Only the accused has a right to the direction, and it's held to be unfair to give a similar direction for a prosecution witness - it 'waters down' legal protections for D by "evening the playing field"

Question 64

What was considered in Hunter [2015]?

Answer 64

Law on the nature and extent of a good character direction.

Question 65

What is absolute good character?

Answer 65

A person with no previous convictions or cautions and no 'reprehensible behaviour' alleged / admitted or proven

Question 66

What is effective good character?

Answer 66

where a defendant has old, minor and irrelevant previous convictions or cautions.

Question 67

How should a jury be directed where a defendant is not entitled to an absolute good character direction?

Answer 67

Judge's discretion based on the fairness of the trial.

Question 68

Is Hunter, Vye or Aziz the authority on good character directions?

Answer 68

Hunter [2015], is binding, along with reference to the earlier decisions of Vye and Aziz.

Question 69

Is the absence of bad character evidence proof of good character?

Answer 69

No - this principle was rejected in Hunter [2015]. Only Ds with absolute or effective good character are entitled to a full good character direction.

Question 70

Does the relevancy of previous convictions to the current offence affect a good character direction?

Answer 70

Irrelevant previous offences does not automatically lead to a treatment of having effective good character.

Question 71

What 3 requirements must a previous conviction satisfy to permit an effective good character direction.

Answer 71

Previous convictions must be old, minor and irrelevant to permit an effective good character direction.

Question 72

Are cautions relevant to deciding whether to give a good character direction?

Answer 72

Yes, they shouldn't be ignored. Nor should restraining orders, breaches of environment regulations etc.

Question 73

Can Ds that don't satisfy the good character requirements still submit their offending history?

Answer 73

Yes, e.g. to argue that they've never committed offences of that type: judge has discretion to give a modified PARTIAL good direction.

Question 73

Styles [2015]?

Answer 73

Where D provides evidence of their previous misconduct, jury shouldn't be directed that it can support prosecution's case UNLESS prosecution already using it.

Question 74

What happens if an accused without previous convictions has the prosecution rely on other misconduct?

Answer 74

If the prosecution rely on misconduct, a direction based on that bad character evidence will be made to highlight "residual" good character of D to avoid Absurdity. (Aziz [1996])

Question 75

Aziz [1996]?

Answer 75

a good character direction is not defined solely by the absence of previous convictions

Question 76

What are the 2 limbs of a good character direction?

Answer 76

(1) credibility and (2) propensity. What weight the limbs get is for the jury to decide.

Question 77

What was deliberated in Vye [1993]?

Answer 77

Directions on credibility where the accused doesn't testify.

Question 78

Vye [1993]?

Answer 78

If D does not give evidence but relies on exculpatory evidence the jury should get a good character direction on credibility. BUT judge can comment on weight of extra-court statements.