Character (W12)

Question 1

F13.4 - Bad character

Answer 1

• s.101 CJA 2003: evidence of the bad character of an accused is admissible if but only if it falls within a specific ‘gateway.’
• s.98 CJA 2003: References to evidence of a person’s ‘bad character’ are evidence 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’ means the commission of an offence or other reprehensible behaviour, so evidence suggesting guilt of an offence is potentially evidence of misconduct, whether or not the accused has been charged with or convicted of it.
• The use of evidence of criminal misconduct not resulting in proceedings may require special caution.

Question 2

F13.5 - Convictions

Answer 2

• Where convictions are relied upon, it is likely that the value of the evidence will depend on the proof of the circumstances of the offence, not merely upon the actual previous conviction and the matters formally established thereby, and such circumstances will require to be properly proved.
• Where the circumstances of the offence are of the essence, there is an obligation on the party relying upon them to be specific and it is good practice for details to be available if required.
• Similar considerations apply to the use of cautions and the facts on which they are based.
• Offences occurring subsequent to the offence charged may be admissible, as may evidence of propensity exhibited after the offence, provided that the propensity is one that might be expected to be continuing.
• e.g. in a case where evidence tending to show that D had harboured racist views was admitted to connect him with a racially motivated murder although the evidence was gathered 20 months later.
• A conviction resulting from a plea of guilty during the instant investigation is also a conviction for these purposes.
• Convictions before a foreign court may be adduced as evidence of bad character under the CJA 2003 if a corresponding offence in England and Wales would be treated as so.
• The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence.

Question 3

F13.6 and 7 - Reprehensible behaviour

Answer 3

• Decisions as to what constitutes reprehensible behaviour are fact specific
• The word ‘reprehensible’ connotes some element of culpability or blameworthiness
• Conduct is not necessarily ‘reprehensible’ under s.98 just because it is morally lax
• Gang membership is well established example of reprehensible behaviour

Question 4

F15.6- CJA 2003 s.100

Answer 4

Evidence of bad character can be admitted only if it satisfies the further conditions of admissibility in s.100 (non-defendant’s bad character) or s.101 (defendant’s bad character)

Question 5

F15.8 - CJA s.100: Gateways to admissibility

Answer 5

(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.

(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.

Question 5

F15.8 - CJA s.100: Gateways to admissibility

Answer 5

(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.

(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.

Question 6

F15.9 - Use of s.100

Answer 6

Regulates all aspects of the use of bad character of a person other than the accused, in chief or in cross exam, whether or not the person appears as a witness. Therefore it covers the character of a person whose statement is admitted under an exception to the hearsay rule.

Question 7

F15.10 - General principles

Answer 7

Four important features:

(1) the test of ‘substantial probative value’ is not the same as the test for gateway (d) of s.101, where evidence of bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance. It is, however, the same as the test that appears in gateway (e) where evidence is tendered by one co-accused against another.
(2) If the conditions in s.100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence.
(3) Except where the parties agree to admit the evidence, the leave of the court is always required.
(4) Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion.

Question 8

F15.11 - Strict construction of gateways

Answer 8

Both s.101(1)(e) and s.100 ‘have the capacity to change the landscape of a trial’ and a strict reading is required in order to ensure fairness.

Question 9

F15.12 - Important explanatory evidence

Answer 9

s.100 CJA 2003:
‘(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.

• The gateway is inapplicable if the evidence is readily understandable without evidence of bad character.
• Explanatory evidence under s.100’s value for understanding the case as a whole must be ‘substantial’.

Question 10

F15.13 - Evidence of substantial probative value in relation to matter in issue of substantial importance

Answer 10

Under s.100(1)(b), the trial judge must consider two essential questions:

(1) whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, and
(2) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings.

Question 11

F15.14 - Matters in issue: propensity, credibility and other issues

Answer 11

• In applications under s.100(b) the issue to which the evidence relates will usually, though not always, be either the propensity, or credibility, of the person of bad character.
• The credibility of a witness is capable of being an issue of substantial importance in relation to the case as a whole but ‘just because a witness has convictions does not mean that the opposing party is entitled to attack the witness’ credibility’

Question 12

F15.15 - Substantial probative value

Answer 12

• The assessment of substantial probative value relates to the force of the evidence. This judgment is highly fact sensitive and must take account of the case as a whole.
• It may be significant to consider whether it adds significantly to other more probative evidence in the case or not.
• This is a consideration of particular importance where the evidence consists of unproven allegations going to a witness’ credibility where it has already been decided that the jury will be told of the person’s previous convictions under s.100

Question 13

F15.16 - Matters relevant to assessment of probative value

Answer 13

CJA 2003, s.100:
‘(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 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.

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

Question 14

F15.17 - Substantial probative value in relation to issues other than credibility

Answer 14

• A frequently recurring issue in s.100 case law concerns the admissibility of bad character evidence to support a defence that a victim or third party was the aggressor in a crime of violence.
• Substantial probative value may be established where, for example, an accused is charged with an offence of violence and claims self-defence, and there is a previous instance of violence by the complainant towards the accused using a weapon.
• Alyson: D contended that the complainant might have been subjected to violence by other persons as a result of her involvement in drug-dealing. The application was rejected because the evidence he proposed to give were merely that these were the types of activities that often lead to violence, not of any particular instances of violence.

Question 15

F15.18 - Substantial probative value in relation to credibility

Answer 15

• Leading case Brewster: evidence of bad character that might qualify as being of substantial probative value in relation to credit was of two types: (1) evidence that is relevant directly, as providing a reason for doubting the truth of the evidence of the witness in the particular case, and (2) evidence which is relevant only indirectly, as providing a general reason for suggesting that the witness was a person not to be trusted.
• The appropriate test is to ask whether the evidence is ‘reasonably capable of assisting a fair-minded jury to reach a view whether the witness’ evidence is, or is not, worthy of belief.’

Question 16

F13.15 - CJA 2003, s.101 gateways

Answer 16

(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,
(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,
(c) it is important explanatory evidence,
(d) it has substantial probative value in relation to an important matter in issue between a defendant and co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s 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 proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3), the court must have regard, in particular, to the length of time between the matters to which the evidence relates and the matters which form the subject of the offence charged.

Question 17

F13.16 - s.101(1)(a) Admissible by general consensus of the parties

Answer 17

• In the interests of good trial management, the court should be informed of any agreement to admit bad character evidence at the beginning of the trial.
• Where there are multiple defendants, the gateway clearly requires that the consent of all must be secured.

Question 18

F13.17 - s.101(1)(b): Accused can elect to tender evidence of their own bad character

Answer 18

• A common reason for doing so is to lay a foundation so the accused may argue never to have been convicted of an offence similar to that charged.
• R v Hunter permits a modified good character direction in the judge’s discretion in such cases.
• ‘it would be inappropriate in a gateway (b) situation for a defendant to have carte blanche to make such points as he wishes about his criminal record, without facing the possibility that his record does him no favours as far as credibility is concerned.’
• where evidence of relatively minor bad character is tendered to prevent the jury from speculating that it is worse than it is, the judge should direct that the evidence has been admitted ‘only so that they know of the whole background and, if appropriate, that the evidence does not make it more or less likely that D committed the offence.’

Question 19

F13.18 - s.101(1)(d): Admissible if relevant to an important issue between the accused and the prosecution

Answer 19

Where the evidence of bad character is disputed, s.109 requires the court to consider its relevance and probative value on the assumption that it is true, unless it appears that no court or jury could reasonably find it to be true.

Question 20

F13.19 - Powers of exclusion under s.101(3)

Answer 20

• The principal mechanism by which the court can ensure that an accused is not prejudiced by revelations of evidence under s.101(1)(d) or (g) is the exclusionary power under s.101(3): that it appears to the court that admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
• The power comes into play on application by the defence to exclude the evidence rather than the prosecution to admit it. The power does not appear to be exercisable by the court on its own motion but if necessary, an application could be prompted by the court.
• ‘must not admit’ in s.101(3) is stronger wording than ‘may refuse to allow’ in s.78 PACE 1984

Question 21

F13.20 - Use of s.101(3) for gateways other than (1)(d) or (g)

Answer 21

• Cannot be used to restrict any of the other five gateways, which lead directly to admissibility.
• It raises no issues with (a) and (b)
• In relation to (e), the rule that there is no discretion to restrain the co-accused in tendering relevant evidence is well established
• Under (c) and (f), however, it may be possible where the defence will seek to make an argument for exclusion based on unfairness.
• s.78 would still apply so could be relied upon where s.101(3) could not

Question 22

F13.28 - s.101(1)(c) Explanatory evidence

Answer 22

Evidence without which it would be ‘impossible or difficult to understand other evidence in the case’ can be admitted, provided that its value for understanding the case as a whole is ‘substantial.’

s.102: ‘For the purposes of s.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.

Question 23

F13.29 and 30 - further examples/principles on s.101(1)(c) explanatory evidence

Answer 23

• The basis for admitting background evidence is if ‘it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history.’
• That the evidence is helpful is not by itself enough, nor is it sufficient that the jury might wonder about a gap in the evidence
• Explanatory evidence should be carefully scrutinised to ensure that it does not become a backdoor method of smuggling in prejudicial evidence of propensity. s.101(1)(d) provides for relevant evidence of propensity to be admitted and is likely, subject to an argument about exclusion based on prejudice, to be admitted.
• It is ‘only where the evidence truly adds something, beyond mere propensity, which may assist the jury to resolve one or more issues in the case, or is the unavoidable incident of admissible material, as distinct from interesting background or context’ that justification exists for admitting explanatory evidence.
• Once admitted, explanatory evidence may require a particularly careful direction.
• Evidence admitted under one gateway sometimes becomes admissible on another basis too, making it important for the jury to have directions that focus their attention on the use they may make of evidence.
• Where explanatory evidence is admitted, it may be fairest to present it in the form of an agreed statement of facts, for the avoidance of prejudice and to prevent the distraction of the jury.

Question 24

F13.36 - s.103: Admissibility under s.101(1)(d)

Answer 24

(1) For the purposes of s.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 SoS
(5) A category prescribed by an order under subsection 4(b) must consist of offences of the same type.
(6) ONLY PROSECUTION EVIDENCE is admissible under s.101(1)(d)

Question 25

F13.37 - Relevance to important matter

Answer 25

• Under s.101(1)(d), the prosecution are required to show that evidence of bad character is relevant to an ‘important matter in issue’ between prosecution and defence.
• ‘Important matter’ means ‘a matter of substantial importance in the context of the case as a whole’ (s.112(1))
• While the issue must be of substantial importance, it is not necessary for the evidence of the bad character to be of substantial probative value. This means the threshold is satisfied if the evidence is merely relevant to an important issue between the prosecution and the defence.
• Provided the evidence is relevant, the court’s power to exclude under s.101(3) is now the focal point of cases where the defence objects to the admission of the evidence.
• Where the evidence is admitted, the defendant’s protection from unfairness lies in the direction given by the judge. An appeal court is unlikely to interfere with the judge’s judgment unless it is plainly wrong or has been exercised unreasonably in the Wednesbury sense

Question 26

F13.39 - Propensity as an issue

Answer 26

• Propensity to commit offences ‘of the kind charged’ is taken to be an issue between the defence and the prosecution except where it makes it no more likely that the accused is guilty. Propensity as to untruthfulness is also to be taken in this way unless it is not suggested that the accused’s case is untruthful in any respect.
• Where propensity is relevant, no additional hurdle is imposed requiring other evidence to support the matter, although the absence of such evidence may bear on the question of discretionary exclusion.
• The nature of the defence may be such so as to render propensity evidence admissible.

Question 27

F13.39 - Hanson: steps which must be followed by a trial judge in determining the use which may be made of evidence of propensity consisting of convictions under s.101(1)(d)

Answer 27

(1) Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
(2) If so, does the propensity make it more likely that the defendant committed the crime charged?
(3) Where the convictions are for offences of the same category or description, is it unjust to rely on them? Where the propensity is proved by other means, is it unfair under s.101(3) to admit the evidence?

Question 28

F13.40 - Demonstrating propensity

Answer 28

• Hanson: propensity can be determined by just one previous event if sufficiently probative, e.g. where the behaviour is ‘strikingly similar.’
• In cases where a jury may have difficulty disentangling the relevance of the evidence, a careful direction will be needed.
• Evidence that may not be admissible for propensity: there are few similarities between the offences, the probative value is slight and its prejudicial effect is considerable

Question 29

F13.48 - Identifying the accused by evidence of bad character under CJA 2003, s.101(1)(d)

Answer 29

• An important function of bad character evidence is to identify the accused as the perpetrator of an offence. This may be arrived at via an inference from propensity or by any other relevant inference drawn under gateway (d).
• The effect is the same, but the process of reasoning is different, and will need to be reflected in the summing up.
• Where a feature is said to be the equivalent of a signature, it is an acknowledgment that it possesses to a very high degree the unusual features associated with ‘striking similarity’ at common law. In these circumstances, the evidence of bad character may support the prosecution case to the extent that very little other evidence is required to convince of guilt.

Question 30

F13.49 - Evidence going to gang membership or affiliation

Answer 30

Evidence going to show gang membership or affiliation is frequently deployed as evidence under s.101(1)(d) to link the accused to the commission of a specific offence.

Question 31

F13.49 - Bad character may be relevant and therefore admissible to support identification without any similarity between offences

Answer 31

e.g. where a robber asked for ‘coke’ on a robbery, this was sufficient to admit his previous convictions for cocaine-related offences.

Question 32

F13.57 - multiple charges and accusations under s.101(1)(d)

Answer 32

• Where an accused faces multiple charges in the same proceedings, the ‘bad character’ provisions apply as if each was charged in separate proceedings, i.e. a gateway is required to facilitate cross-admissibility
• Where no application to make use of the evidence in this way is made, the accused is entitled to have the case decided on the grounds that the evidence is inadmissible, and the judge should direct the jury to that effect.

Question 33

F13.65 - Acquittals

Answer 33

• On rare occasions, the prosecution contend that D has been guilty of past relevant misconduct despite having been acquitted in respect of that conduct.
• The evidence would be admissible if the prosecution could show its relevance to an important issue under s.101(1)(d), leaving the accused to contend that it should be excluded under s.101(3)
• Provided that the prosecutor does not seek to punish the accused for the other offences, the double jeopardy rule is not infringed.
• A co-accused may adduce evidence of an accused’s bad character where the conditions of s.101(1)(e) are satisfied, notwithstanding acquittals.
• A jury is not bound to accept the factual basis of a previous plea of guilty.

Question 34

F13.66 - s.101(1)(e) Evidence of bad character going to a matter in issue between co-accused

Answer 34

s. 104: ‘(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under s.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 s.101(1)(e).’

Primarily relevant to the cut-throat defence where evidence of propensity is directed more towards establishing lack of veracity than the issue of guilt.

The restriction applied by s.104(1) does not bite where the evidence of propensity is not directed at untruthfulness but at the issue of commission of the offence. In such cases, propensity evidence can be adduced against an accused by a co-accused whatever the nature of the defence, provided it is of ‘substantial probative value’ to an issue between them, though this will frequently occur because usually one of them blames the other.

Question 35

F13.67 - Important matter in issue for s.101(1)(e)

Answer 35

• The mere denial by a co-accused of participation in a crime does not meet the terms of s.101 but if it is a necessary implication of the denial that another accused has committed the offence, s.101(1)(e) does come into play between them.
• Where defendants are not facing a joint charge and there is no cut-throat defence, it is particularly important to ascertain the fact in issue and that it is truly an important one.
• For s.101(1)(d), the matters in issue between the prosecution and the defence are deemed to include the accused’s propensity. No such provision applies to gateway (e), so the propensity of a co-accused to commit an offence of the type charged is not itself an issue between them.

Question 36

F13.73 - Evidence going to issue of untruthfulness between accused and co-accused

Answer 36

• s.101(1)(e) renders admissible evidence that has ‘substantial probative value’ in relation to an important matter in issue between co-accused.
• ‘Important matter’ means ‘a matter of substantial importance in the context of the case as a whole.’
• Where the evidence adduced is of one defendant’s ‘propensity to untruthfulness’, s.101(1)(e) is further restricted in evidence by s.104 to cases where the nature or conduct of their defence is such as to undermine that of the other defendant.
• Only defence evidence is admissible under this provision.

Question 37

F13.78 - s.101(1)(f) Evidence to correct a false impression

Answer 37

• Permits evidence of bad character to be adduced by the prosecution to correct a false impression given by the accused about themselves.
• Supplemented by s.105, which lays down the circumstances in which the accused is regarded as having given such an impression.
• Evidence admitted is limited to evidence correcting the false impression so the general doctrine that evidence, once admitted, is admissible for all purposes to which it is relevant is excluded.
• Provisions of s.101(3) do not apply to evidence tendered under s.101(1)(f)

Question 38

F13.78 - s.105 CJA 2003

Answer 38

‘(1) For the purposes of s.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,
(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 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) ‘conduct’ includes appearance or dress.
(6) Evidence is admissible under s.101(1)(f) only if it goes no further than necessary to correct the false impression.
(7) Only prosecution evidence is admissible under s.101(1)(f)

Question 39

F13.79 - Considerations for s.101(1)(f)

Answer 39

• A gateway that should not be overused and requires analysis of the specific assertion the accused has made that is alleged to be false.
• The court should also consider whether the accused has attempted to mislead in a way that goes beyond just denying the offence.
• Particular care should be taken where an answer given in cross-examination is equivocal and may not amount to a false impression.

Question 40

F13.80 - Withdrawing/backtracking from a false impression

Answer 40

There is a difference between making a positive decision to correct an impression and being driven in cross-exam to concede its falsity. In the latter case, the accused could not rely on the benefit of s.105(3).

Question 41

F13.84 - s.101(1)(g): Attack on another person’s character

Answer 41

• Permits the prosecution to adduce evidence of bad character to counter an attack on another person.
• Applications by one co-accused to adduce evidence of bad character against another would fall instead under s.101(1)(e).
• s.101(1)(g) is supplemented by s.106 which details the circumstances in which such an attack occurs.
• s.101(3) would apply in relation to this gateway.

Question 42

F13.85 - s.106 CJA 2003

Answer 42

(1) For the purposes of s.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 (or any legal representative appointed under s.38(4) YJCEA 1999 to cross-examine a witness in his interests) asks questions in cross-exam 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 s.101(1)(g).’

Question 43

F13.87 - Evidence proving ‘attack’

Answer 43

• The attack may be made in an out of court statement, including an interview (s.106(1)(c))
• There is no requirement that the evidence of the attack is adduced by the defence

Question 44

F13.88 - ‘On another person’s character’

Answer 44

• s.101(1)(g) contemplates an attack on a specific person. It would not be engaged if the accused lay the blame on an unknown individual.
• where a specific attack is made, it does not matter if the attack is on a person who is not a witness in the case
• an attack on any victim may trigger s.101(1)(g), including an attack on a homicide victim.
• it would however be rare for an accused’s bad character to be admitted for an attack on a non-victim who was also a non-witness

Question 45

F13.90 - Discretion s.101(1)(g)

Answer 45

• There is no need for the prosecution to demonstrate that evidence of bad character, to be relevant to credibility, demonstrates an underlying propensity to untruthfulness.
• The purpose of s.101(1)(g) is to ‘provide the jury with information relevant to the question whether the defendant’s attack on another person’s character is worthy of belief.’
• There is no requirement that the evidence thus admitted should reach any particular threshold of probative value, or that the creditworthiness of the defendant should be an issue of substantial importance
• Judges should be careful to ensure that gateway (g) is not invoked too lightly where a police officer’s conduct of an investigation is the subject of cross-exam.

Question 46

CrimPR 21.2 : Content of application or notice

Answer 46

(1) A party who wants to introduce evidence of bad character must—
(a) make an application under rule 21.3, where it is evidence of a non-defendant’s bad character;
(b) give notice under rule 21.4, where it is evidence of a defendant’s bad character.

(2) An application or notice must—
(a) set out the facts of the misconduct on which that party relies,
(b) 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
(c) explain why the evidence is admissible.

Question 47

CrimPR 21.3: Application to introduce evidence of a non-defendant’s bad character

Answer 47

2) That party must serve an application to do so on—
(a) the court officer; and
(b) each other party.

(3) The applicant must serve the application—
(a) as soon as reasonably practicable; and in any event
(b) not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

(4) A party who objects to the introduction of the evidence must—
(a) serve notice on—
(i) the court officer, and
(ii) each other party
not more than 10 business days after service of the application; and
(b) in the notice explain, as applicable—
(i) which, if any, facts of the misconduct set out in the application that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible, and
(iv) any other objection to the application.

(5) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;

(b) must not determine the application unless each party other than the applicant—
(i) is present, or
(ii) has had at least 10 business days in which to serve a notice of objection;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980449 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987450, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996451 (ruling at preparatory or other pre-trial hearing in the Crown Court).

Question 48

CrimPR 21.4: Notice to introduce evidence of a defendant’s bad character

Answer 48

(2) A prosecutor or co-defendant who wants to introduce such evidence must serve notice on—
(a) the court officer; and
(b) each other party.

(3) A prosecutor must serve any such notice not more than—
(a) 20 business days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 10 business days after the defendant pleads not guilty, in the Crown Court.

(4) A co-defendant who wants to introduce such evidence must serve the notice—
(a) as soon as reasonably practicable; and in any event
(b) not more than 10 business days after the prosecutor discloses material on which the notice is based.

(5) A party who objects to the introduction of the evidence identified by such a notice must—
(a) apply to the court to determine the objection;
(b) serve the application on—
(i) the court officer, and
(ii) each other party
not more than 10 business days after service of the notice; and

(c) in the application explain, as applicable—
(i) which, if any, facts of the misconduct set out in the notice that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible,
(iv) why it would be unfair to admit the evidence, and
(v) any other objection to the notice.

(6) The court—
(a) may determine such an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless the party who served the notice—
(i) is present, or
(ii) has had a reasonable opportunity to respond;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996 (ruling at preparatory or other pre-trial hearing in the Crown Court).

(7) A party entitled to receive such a notice may waive that entitlement by so informing—
(a) the party who would have served it; and
(b) the court.

(8) A defendant who wants to introduce evidence of his or her own bad character must—
(a) give notice, in writing or orally—
(i) as soon as reasonably practicable, and in any event
(ii) before the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness in order to obtain that evidence; and
(b) in the Crown Court, at the same time give notice (in writing, or orally) of any direction about the defendant’s character that the defendant wants the court to give the jury under rule 25.14 (Directions to the jury and taking the verdict).

Question 49

CrimPR 21.5: Reasons for decisions

Answer 49

The court must announce at a hearing in public (but in the absence of the jury, if there is one) the reasons for a decision—

(a) to admit evidence as evidence of bad character, or to refuse to do so; or
(b) to direct an acquittal or a retrial under section 107 of the Criminal Justice Act 2003.

Question 50

CrimPR 21.6: Court’s power to vary requirements under this Part

Answer 50

(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally; and
(c) dispense with a requirement for notice to introduce evidence of a defendant’s bad character.

(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.

Question 51

F13.3 - Notice requirements

Answer 51

• All applications should be made in accordance with CrimPR 21.
• The proper course should be to make a written application and for a judge to rule on the point as the circumstances require.
• The accused may waive the entitlement to notice and the court has power to allow notices to be given in a different form, or at a different time, where to do so is in the interests of justice.
• Where the rules have not been complied with, the court should consider whether to vary the notice requirements using the power in CrimPR 21.6. The power is unfettered, and not limited to exceptional cases.
• Where that power is not exercised, the evidence will be excluded, though this should be regarded as a device to prevent unfairness rather than a disciplinary sanction.

Question 52

F12.1 - Proof of convictions and acquittals

Answer 52

• PACE 1984 s.73 provides for the proof of convictions and acquittals in the UK and other EU Member States by a certificate of conviction or acquittal, together with proof that the person named in the certificate is the person whose conviction or acquittal is in issue.
• Although it is for the judge to decide whether there is prima facie evidence fit for the jury’s consideration, ultimately it is a question of fact for the jury to decide.

Question 53

F12.2 - Contents of a certificate of conviction or acquittal

Answer 53

• On indictment: a certificate signed by the proper officer of the court where the conviction or acquittal took place, giving the substance and effect of the indictment and of the conviction or acquittal
• Summary trial: a copy of the conviction or of the dismissal of the information, signed by the clerk of the court where the conviction or acquittal took place or by the clerk of the court, if any, to which a memorandum of the conviction or acquittal was sent.
• In another Member State: a certificate, signed by the proper officer of the court where the conviction or acquittal took place, giving details of the offence, of the conviction or acquittal, and of any sentence
• A document purporting to be a duly signed certificate of conviction/acquittal shall be taken to be such unless the contrary is proved.

Question 54

F12.6 - Convictions as evidence of facts on which based

Answer 54

• s.74(2) PACE 1984: a person (other than the accused) convicted of an offence in any court in the UK or EU Member State shall be taken to have committed that offence unless the contrary is proved.
• Legal burden is borne by the party against whom the presumption operates; and if borne by the accused, may be discharged on the balance of probabilities.
• s.74(3) creates a similar presumption in the case of previous convictions of the accused, provided that evidence is admissible of the fact that the accused has committed the offence in respect of which they are convicted.

Question 55

F13.22 - Stages for the judge in bad character admissibility

Answer 55

(1) The judge determines admissibility under the relevant gateway(s)
(2) Where it is raised, the judge determines any question of exclusion in terms of prosecution evidence, e.g. under s.101(3) or s.103(3) CJA 2003, or s.78 PACE 1984
(3) Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated, and the judge’s direction as to the use to which the evidence may be put.
(4) The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight.

Question 56

F13.23 - Hanson: content of a bad character direction

Answer 56

(1) Give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
(2) Stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against a defendant;
(3) Emphasise that the jury should not infer guilt from the existence of convictions.

Question 57

F13.23 - Other considerations for the bad character direction

Answer 57

• Evidence may be admitted under more than one gateway, and be relevant to more than one issue in the case. Central to the direction therefore is the identification of the purpose(s) for which the evidence may be used, and of any purpose for which it may not be used.
• An important distinction to be drawn is between evidence going to issues and evidence going to credibility.

Question 58

F14.1 - Relevance and admissibility of good character

Answer 58

In modern law, evidence of good character is admissible as of right, both to show that an accused who lacks a proven propensity to do wrong is less likely to have committed the offence, and to show that a person of good character is more likely to be telling the truth than one who is not (where credibility of the accused is in issue)

Question 59

F14.2 - Good character and the right to a direction

Answer 59

• The judge must give the jury specific directions on the relevance of good character (Vye)
• The right to a good character direction applies only to the accused.
• Evidence of the good character of a person other than the accused may only be admitted if it is directly relevant to an issue, e.g. to rebut a suggestion that the person was attempting to rob the accused or had made an unprovoked attack.

Question 60

F14.3 and 4 - Unmeritorious claims and the impact of Hunter

Answer 60

The question of what directions, if any, to give in respect of defendants who are no longer entitled to a full direction is regarded in Hunter as a matter for the trial judge’s general discretion, based on the need to ensure a fair trial.

Question 61

F14.5 - Impact of CJA 2003 bad character provisions on good character

Answer 61

• Hunter: CoA unequivocally rejected the notion, suggested by some authorities in light of the bad character provisions of the CJA 2003, s.101, that the mere fact that no evidence of bad character was tendered against an accused was a reason of itself for giving a good character direction.
• Even a ‘modified’ direction that reflects an accused’s known antecedents should no longer be given if it would work against the proper inferences the jury could draw from those antecedents.
• The true rule is that only defendants with absolute good character, or who are deemed to be of effective good character are entitled to any judicial directions on the matter.
• An accused who has no pre-cons may nevertheless have bad character as defined by CJA 2003 s.98 by reference to other misconduct or a disposition towards misconduct.

Question 62

F14.6 - Absolute good character

Answer 62

• If the accused has no previous convictions and no other reprehensible conduct is alleged, admitted or proven.
• It is not necessary for the accused to positively prove good character.
• The CoA have been prepared to uphold convictions even if the judge fails to direct the jury appropriately.

Question 63

F14.7 - Effective good character

Answer 63

• An accused who is judged to be of ‘effective good character’ is also entitled to the good character directions in full.
• Where the defence lay claim to effective good character, the matter is one of law.
• Once the judge has ruled in the accused’s favour, the directions may not be withheld, though they should be modified to the extent that it is necessary to reflect the matters that preclude the accused from absolute good character, so as to not mislead the jury.

Question 64

F14.8 - Effective good character and previous offences

Answer 64

• A person cannot be automatically treated as of effective good character on the ground that their convictions or cautions have no relevance to the charge, even when they are old and minor instances of offending.
• The judge should take into account all the circumstances of the offence and the offender, and decide what ‘fairness to all’ dictates. Judge has a broad discretion.
• Sufficiently detailed information will be needed as a basis for the court’s decision where a direction is sought.
• Cautions cannot be ignored nor can a finding of guilty in a foreign court.
• However, issuing of a penalty notice for disorder, a warning letter for harassment or breach of environmental regulation should be kept from the jury when giving a good character direction.

Question 65

F14.10 - Admissibility for defence of evidence of convictions/cautions of a defendant who is not of effective good character

Answer 65

• A defendant who is not judged to be of effective good character and who has convictions or cautions is still entitled to adduce them under CJA 2003 s.101(1)(b), e.g. to pave the way for an argument that they have no record for the type of offences charged.
• Hunter specifies that a modified good character direction may be relevant in these circumstances, but the judge has a broad discretion.
• Where such evidence has been adduced by the defence, it is wrong to direct a jury that it can be used to support the prosecution case, although the jury should not be directed against making a rational inference.

Question 66

F14.11 - Accused with no convictions/cautions whose other misconduct is relied upon by the prosecution

Answer 66

• Such an accused will attract a direction based on the use that may be made of the bad character evidence. ‘
• In such cases, the judge has a discretion to make as part of that direction relevant observations of the defendant’s otherwise good character, as long as it makes sense to do so.

Question 67

F14.16 - Standard two-limb good character direction

Answer 67

(1) Credibility
(2) Propensity

Important for the judge to tailor the terms of the direction to the case.

Question 68

F14.19 - Direction on credibility where accused does not testify

Answer 68

• Vye: where the accused has not given evidence at trial but relies on admissible exculpatory statements made to the police or others, the judge should direct the jury to have regard to the accused’s good character
• Judge is entitled to make observations about the weight to be given to those statements as opposed to testimony on oath.
• Where the accused of good character does not give evidence and has given no pre-trial answers or statements upon which reliance is placed, a first limb is not required as no issue as to the accused’s credibility arises.