Evidence: Character Flashcards
What is bad character?
Evidence of misconduct or a disposition towards misconduct on the defendant’s part. Misconduct means a criminal offence or ‘reprehensible behaviour’.
Very fact specific, matter for ToL to determine. An element of culpability or blameworthiness is necessary and not all immoral behaviour is reprehensible
When is bad character automatically admissible?
- [Relevance to offence charged]
Bad character ‘has to do with the alleged facts of the offence with which the defendant is charged’. This means evidence of the offence itself but also character evidence that relates to the offence by being ‘contemporaneous with and closely associated’ with it
E.g Defendant charged with escape from lawful custody
- [Misconduct during trial investigation]
Evidence of misconduct in connection with the investigation or prosecution of the offence.
E.g Attempts to intimidate witnesses, hide evidence and lie on oath so long as the conduct is within the context of the particular offence being prosecuted
What are the 7 gateways for admissible bad character against the defendant?
The 7 ‘gateways’ for admissible bad character against defendant under s101(1) CJA 2003:
a. [Agreed Evidence] - admitted by all parties
b. [Defendant gives the evidence] - admitted by the defendant
c. [Important explanatory evidence] - admitted by the prosecution
d. [Relevant to matter in issue] - admitted by the prosecution
e. [Substantive Probative Value] - admitted by co-defendant
f. [Correcting false impressions] - admitted by the prosecution
g. [Attacks on character] - admitted by the prosecution
Explain gateway a. [Agreed Evidence] for admitting bad character evidence
Admitted by all parties
Evidence that all parties to the proceedings agree to being admissible
Explain gateway b. [Defendant gives the evidence] for admitting bad character evidence
Admitted by the defendant
Evidence is directly adduced by the defendant
Explain gateway c. [Important explanatory evidence]
Admitted by the prosecution
Important explanatory evidence for proving the facts of the case
Explain gateway d. [Relevant to matter in issue]
Admitted by the prosecution
Evidence relevant to an important matter in issue between the defendant and prosecution (proving the criminal elements of AR, MR, identity)
Explain gateway e. [Substantive probative value]
Admitted by a co-defendant
Evidence with substantial probative value in relation to an important matter in issue between a defendant and a co-defendant
Explain gateway f. [Correcting false impressions]
Admitted by the prosecution
Evidence to correct a false impression given by the defendant
Explain gateway g. [Attacks on character]
Admitted by the prosecution
Evidence admitted where the defendant has made an attack on another person’s character
What are the 3 gateways for admissible bad character against non-defendants (witnesses)?
The 3 ‘gateways’ for admissible bad character against non-defendants (witnesses) under s101(1) CJA 2003:
More restricted and can only be admitted if -
a) [Important explanatory evidence]
It is important explanatory evidence and its value for understanding the case is substantial
b) [Substantive probative value]
It has substantial probative value in relation to a matter of substantial importance in the case, or
c) [Agreement between parties]
All parties agree
N.B: Court is required to grant leave for the evidence to be admitted
What is the procedure for admitting bad character evidence?
Procedure for admitting bad character evidence:
1) Party wishing to admit character evidence should make a written application (notice in a pro forma). If it is the prosecution seeking to admit the evidence, the application should set out the facts of the misconduct, how these will be proven and why the evidence is admissible.
2) Notice should be served not more than 20 business days after a NGP at the mags court or not more than 10 business days after NGP at a Crown Court.
3) Party objecting to the admission of the evidence should apply within 10 business days of notification, explaining the basis of the objection.
Disputing admissibility of character evidence = Should be resolved at a pre-trial hearing or on the day of trial in the absence of the jury
Procedural requirements can be waived by the defendant against whom the evidence is admitted or by the court in the interests of justice. The court can admit evidence despite a lack of notice.
What are the 2 main powers of the court to exclude bad character evidence?
Court’s powers to exclude bad character evidence:
1) Statutory discretion to exclude evidence - s78 PACE (excluding prosecution evidence on grounds of fairness)
2) Common law discretion to exclude - right to a fair trial
Explain the effect of s78 PACE
Statutory discretion to exclude prosecution evidence
S78 PACE (excluding prosecution evidence): General power to exclude prosecution evidence only if admitting it would have an adverse effect on the fairness of the trial as a whole. N.B: This power does not apply to evidence admitted by or for defendants even if against co-defendants.
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
Fairness: ‘Both fairness to the accused person and fairness to the public good, as represented by the Crown.’ Balancing act that is central to the exercise of the judge’s decision.
To rely on this exclusion, the breach must be significant and substantial and render the evidence unreliable
Explain the effect of the common law right to a fair trial as a ground to exclude evidence
Evidence may also be excluded by the court by its common law discretion where the prejudicial effect of the evidence would outweigh its probative value. The common law discretion can be used in relation to evidence admitted through any of the gateways, apart from (e).
A court has the power to stay proceedings as an abuse of process. This can be exercised in two situations:
- It will be impossible to give a defendant a fair trial. It might be impossible to try the defendant due to excessive pre-trial publicity or where evidence that might favour the defence has been lost, such as CCTV footage potentially showing the defendant acting in self-defence.
- No trial could result in a fair outcome because, due to the circumstances, it would offend the court’s sense of justice and propriety to be asked to try the accused in the particular circumstance of a particular case.
This may be the case in extreme cases of entrapment where the state has positively encouraged someone to commit an offence they would not otherwise have been willing to commit and then prosecuted them for it. In such cases, rather than exclude particular evidence, the whole trial is stopped.
