Criminal Practice (Character Evidence)

Question 1

What is good character evidence?

What are the three types of good character

Answer 1

Defendants are allowed to adduce evidence of their good character including….

• Absolute Good Character: No previous convictions or other reprehensible conduct.
• Effective Good Character: Old, minor, or unrelated convictions.
• Positive Good Character: Demonstrates virtuous behavior, e.g., volunteer work.

Question 2

How can defendants admit good character evidence?

Answer 2

Defendants can admit good character evidence by:
- Cross-examining a police officer to confirm no previous convictions,
- Formal Admission (s.10 CJA),
- Examining the defendant’s character in chief,
- Calling a character witness.

Question 3

What is a Good Character Direction?

Answer 3

A direction by the judge to help the jury understand the relevance of the defendant’s good character, covering credibility and propensity.

Question 4

What is the Credibility Limb in a Good Character Direction?

Answer 4

If a defendant is of good character, the jury should consider this in assessing the credibility of the defendant’s evidence or pre-trial statements. It typically applies to defendants of absolute good character, but may be discretionary otherwise.

Question 5

What is the Propensity Limb in a Good Character Direction?

Answer 5

The jury should consider the defendant’s good character when assessing the likelihood of them committing the offense charged. This usually applies to defendants of absolute good character but may be discretionary for others.

Question 6

What happens in joint trials with one defendant of good character?

Answer 6

In joint trials, a defendant of good character is entitled to a full good character direction, even if co-defendants are not of good character.

Question 7

How are old, spent, or irrelevant convictions handled?

Answer 7

The jury must be informed, and a modified good character direction may be given. Judges avoid good character directions if there is evidence of bad character or reprehensible conduct.

Question 8

What is bad character evidence?

Answer 8

Per s.98 CJA, Bad Character Evidence is evidence of a person’s disposition towards misconduct unrelated to the offense’s alleged facts or the investigation

Misconduct includes the commission of an offense or other reprehensible behavior.

Question 9

What are sources of bad character evidence?

Answer 9

Sources include:
- Previous convictions,
- Cautions,
- Acquittals,
- Agreed facts of reprehensible behavior,
- Witness evidence of reputation for reprehensible behavior.

Question 10

What happens if the prosecution relies on previous acquittals?

Answer 10

The prosecution can assert the defendant did commit the offense for which they were acquitted, provided it does not seek additional punishment, thus not breaching double jeopardy.

Question 11

What evidence does s.98 CJA exclude?

Answer 11

s.98 CJA excludes evidence of misconduct which ….

• has anything to do with the alleged offence charged; or
• Is committed in connection with the investigation or prosecution of that offence

…making it inadmissible. It cannot go through a gateway to be admissible. It is totally inadmissible if connected to the offence in question.

Question 12

What is s.101 of CJA 2003?

Answer 12

Section 101 provides seven gateways through which bad character evidence (unrelated to the offence - therby not excluded per s.98) of a defendant can be admissible.

Question 13

If the evidence does not fall within s.98, what two provisions provide that evidence must go through gateways to be admissible?

Answer 13

s.100 - Defendant Gateways

s.101 - Non-Defendants Gateways

+
Relevance

Question 14

When is bad character evidence admissible by agreement?

s.101 - Gateways for Defendant Bad Character

Answer 14

Admissible if all parties agree, with no formal requirements.

s.101(a) - Agreement

Question 15

When does a defendant’s own bad character evidence become admissible as a consequence of their own actions?

s.101 - Gateways for Defendant Bad Character

Answer 15

If the defendant admits it or answers a question revealing it during cross-examination, with no leave needed.

s.101(b) - Blurt it Out

Question 16

When is context-based bad character evidence admissible?

s.101 - Gateways for Defendant Bad Character

Answer 16

If essential for understanding the prosecution’s case, with leave required.

s.101(c) - Context

Question 17

What is the ‘done it before’ (propensity) gateway?

s.101 - Gateways for Defendant Bad Character

Answer 17

Admissible if the defendant …

• Has a history of propensity to commit the offence of the same description?
• Making it more likely that the defendant committed the offence charged?
• The previous offences of the same category or description as the offence charged?
• Even if not of same category or description, does R V Hanson apply > there is a propensity to commit offences of the same kind ?

s.101(d) - Done it Before (Propensity)

Simply, a propsensity to commit offences of the same description, category or kind?

Question 18

When is ‘substantial probative value’ used as a gateway?

s.101 - Gateways for Defendant Bad Character

Answer 18

For evidence showing an important matter in issue between the defendant and co-defendant, usable only by the defence, with leave required.

For example, blaming another defendant.

s.101(e) - E did it

Question 19

What is the ‘false impression’ gateway?

s.101 - Gateways for Defendant Bad Character

Answer 19

Admissible to correct a false impression given by the defendant

e.g., if D falsely claims to have acted honestly, with leave required.

s.101(f) - False Impression

Question 20

What is the ‘gets at the witness’ gateway?

s.101 - Gateways for Defendant Bad Character

Answer 20

If the defendant has attacked another’s character, the jury is able to consider the defendants character to assesses the credibility of the attack.

Requires leave and is safeguarded by s.103(3).

s.101(g) - Gets at the witness

Question 21

Who can adduce non-defendant bad character evidence under s.100?

Answer 21

Any party may adduce such evidence.

Question 22

When can non-defendant bad character evidence be adduced?

Answer 22

With leave from the court, unless all parties agree.

Question 23

What is s.100(1)(a) of CJA 2003?

Important Explanatory Evidence - Non-defendant bad character

Answer 23

Admissible if the evidence is necessary to understand other case evidence fully, with significant explanatory value.

Question 24

When does s.100(1)(b) apply?

Non-defendant bad character

Answer 24

If evidence has substantial probative value on an important issue, relevant to the case context as a whole.

For example, D could adduce evidence to show that another person’s prosperity to commit offences of the type charged show that they, and not the defendant, committed the offence.

Question 25

What does section 78 PACE allow for?

Safeguard

Answer 25

Judicial discretion to exclude evidence if it would unfairly impact the fairness of proceedings.

Question 26

What is section 101(3) CJA for?

Safeguard

Answer 26

Allows exclusion of evidence if it would unfairly affect trial fairness, applicable to gateways 101(1)(d) and (g).

• Done it Before
• Gets at the witness

Question 27

What is section 107 CJA?

Safeguard

Answer 27

Allows the court to halt proceedings if admitted bad character evidence is contaminated and could lead to an unsafe conviction.

Question 28

What does section 110 CJA require?

Safeguard

Answer 28

The court must give open-court reasons for any rulings on bad character evidence.

Question 29

What are the rules on proof of convictions?

Answer 29

A UK or EU conviction can be proven with a certificate, unless the defendant disproves it on a balance of probabilities (s.74 PACE).

Question 30

What are the rules for non-defendant bad character applications?

Answer 30

Make an application under rule 21.3

Question 31

What is the procedure for defendant character evidence applications?

Answer 31

Make an application under rule 21.4

Question 32

What are the time limits for prosecution defendant bad character evidence applications?

Answer 32

Magistrates Court: within 20 business days after a guilty plea.

Crown Court: within 10 business days after a guilty plea.

Question 33

What are the time limits for co-defendant character evidence applications?

Answer 33

As soon as reasonably practicable, but within 10 business days after prosecution disclosure.

Question 34

What are the time limits for responding to defendant bad character notices?

Answer 34

Response is required within 10 business days of notice service.

Question 35

What should be included in a prosecution’s defendant bad character notice?

Answer 35

The facts of misconduct, proof methods, and reasons for admissibility.

Question 36

What should a response to defendant bad character notice contain?

Answer 36

Admission or dispute of facts, reasons for inadmissibility, fairness arguments, and objections.

Question 37

When must non-defendant bad character evidence notice be given?

Answer 37

As soon as practicable and no later than 10 business days after prosecution disclosure.

Question 38

What are the available pre-trial evidence exclusion options?

Answer 38

Defense can apply for exclusion via s.78 PACE at PTPH, a pre-trial hearing, or before trial.

Question 39

What are special measures for witnesses?

Answer 39

Arrangements to help vulnerable witnesses, including live links, private evidence, and other protective steps.

Question 40

What types of special measures exist?

Answer 40

YJCEA measures: screens, live links, private evidence, intermediaries, anonymity, and aids for communication.

Question 41

Who is eligible for special measures under s.16 and 18 YJCEA?

Answer 41

• All witnesses under 18 years old
• Witnesses who have a mental disorder or impairment of intelligence
• Witnesses in fear or distress about giving evidence
• All adult complainants of sexual offences or certain offences under Modern Slavery Act
• All witnesses in a case involving a relevant offence (serious offences) such as homicide or involving firearms/knives.

Question 42

When can vulnerable defendants apply for special measures?

Answer 42

• The accused is under 18 and their ability to participate is compromised by their level of intellectual ability or social functioning
• The accused is over 18 and they are unable to participate because the accused has a mental disorder or significant impairment of intelligence and social function

Question 43

What is a witness summons?

Answer 43

A court order ensuring a witness appears at trial, requested by either side if attendance is uncertain.

Question 44

How can a defendant change their plea to guilty?

Answer 44

They can request that the indictment be put again any time before the jury’s verdict.

Question 45

How can a defendant change a guilty plea to not guilty?

Answer 45

Ds who plead guilty can, at any time before being sentenced, apply to the court for leave to change their plea.

The two most common scenarios where the rarely exercised discretion is applied are…

• D can show the prosecution has no evidence of an essential ingredient of the offence; or
• D was placed under undue pressure to plead guilty or was materially misadvised by his/her legal team

Question 46

What is the ‘same description’ route of the Bad Character Propensity Gateway?

Answer 46

Route 1 (s.103(4)(a): Were the previous offences of the same description as the offence charged?

This must be the exact same offence.

If so, it can be adduced.

Question 47

What is the ‘same category’ route of the Bad Character Propensity Gateway?

Answer 47

Route 2 (s.103(4)(b):

Were the previous offences of the same category as the offence charged?

There are only two categories: (1) Theft; or (2) Sexual Offences - if yes, the evidence can be admitted.

Question 48

What is the Hanson ‘same kind’ route of the Bad Character Propensity Gateway?

Answer 48

Even if not of same category or description, does R V Hanson apply

Is there a propensity to commit offences of the same kind ?

For example, s.47 ABH and s.20 GBH neither same description or category but if the circumstances are so similar, the prosecution may argue this shows propensity.

Note, Hanson works both ways so that the defence could argue that an offence of the same description/category still does not show propensity”

Question 49

When will cross-examination recorded in advance of trial be available as a special measure?

Answer 49

This currently only applies to child witness or where the quality of a witnesses evidence is likely to be diminished due to a mental disorder, a physical disability or a significant impairment of intelligence and social function.

Additionally, this type of special measure is only available in crown court cases.

Note that there has been a pilot for s28 of the Youth Justice and Criminal Evidence Act 1999 to be rolled out to victims of adult sexual offences and modern slavery offences. However, it is currently only a trial.

Question 50

Who must prove the competency of a witness?

Answer 50

There is a presumption that a witness is competent, but once the issue of competency is raised, the party calling the witnesses needs to establish on the balance of probabilities that the witness can

a) understand the questions put to him as a witness, and

b) give answers to the questions which can be understood.

The standard of proof is the same for both the prosecution and the defence.