Criminal Practice - Character Evidence

Question 1

Bad Character Evidence

Answer 1

• Evidence of / disposition towards misconduct, commission of offences or other bad behaviour not related to current charge

Question 2

Good Character Evidence

Answer 2

• Evidence of lack of / lack of disposition towards misconduct, commission of offences or other bad behaviour not related to current charge

Question 3

Admissibility of Bad Character Evidence

Answer 3

Grounds set out in Criminal Justice Act 2003

Seven gateways for adducing bad character evidence:

1. All parties agree
2. Adduced by defendant
3. Important explanatory evidence (to determine this the judge wil consider if without it the jury would find it difficult or impossible to properly understand other evidence in the case and its value for understanding the case as a whole is substantial)
4. Relevant to important matter in issue between prosecution and defence (can apply to any important matter in issue including propensity to commit offences like the current charge and propensity to be untruthful. Propensity to commit offences means offences of the same kind. More events there are the more likely a propensity is to be made out and the offence will usually need to have an unusual or distinctive feature in common with the previous conviction)
5. Substantial probative value to matter in issue between co-defendants (e.g. defendants running a ‘cut-throat’ defence, i.e. blaming eachother). A higher threshold than gateway 4
6. To correct false impression given by defendant (given during examination in chief or before court proceedings under caution)
7. Defendant attacked another’s character (defendant’s own bad character becomes admissible, e.g. accusing a police officer of misconduct, accusing the victim of punching them first. Attack need not happen during trial can also take place while questioned under caution or upon charge)

Question 4

Procedure to admit bad character evidence

Answer 4

Prosecution must give notice:

• Within 20 business days of not guilty plea in Magistrates’ Court
• Within 10 business days of not guilty plea in Crown Court
• If defendant wishes to oppose the notice must also be served within 10 business days

If application arises in course of trial:

• Application considered in Crown Court by Judge in absence of jury
• In Magistrates’ Court the bench will consider application themselves

If any seven gateways are made out the evidence is admissible

If bad character evidence introduced under the gateways of a) an important matter in issue between prosecution and defence OR b) an attack on another’s character the court must not admit it if the defence apply for it to be excluded and it appears to the court that admitting the evidence would have such an adverse effect on fairness of proceedings that court must not admit it. Court must have regard to:

• The amount of time that has elapsed between the bad character evidence and the offence charged

Question 5

Good Character Direction

Answer 5

• Direction from judge that consists of propensity direction and credibility direction
• Propensity direction: a person of good character is less likely to have committed the offence
• Credibility direction: a person of good character is more likely to be credible when they assert their innocence (either before or during trial)

Entitlement to Good Character Direction:

• If defendant has no previous convictions they are entitled to a good character direction;
• If defendant has previous convictions that are old, minor and not related to the current charge they will be considered of effective good character
• If the defendant has no previous convictions but there is other bad character evidence upon which the prosecution relies a good character evidence will probably not be available
• If the defendant has no previous convictions but there is bad character evidence which the prosecution does not seek to rely on the judge has discretion to give a good character direction

Question 6

Non-Defendant’s Bad Character

Answer 6

Three grounds:

• All the parties to proceedings agree to the evidence being admissible
• It is important explanatory evidence; or
• It has substantial, probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole