T15 - Character Evidence Flashcards
1
Q
What is the focus of this topic in criminal law?
A
What is the focus of this topic in criminal law?
2
Q
What legislation governs the admissibility of bad character evidence?
A
The law on bad character evidence is set out in the Criminal Justice Act 2003 (CJA 2003).
2
Q
What is the legal basis for evidence of good character?
A
Evidence of good character is governed by the common law, not statute.
3
Q
Q: What are the three areas of character evidence in criminal cases?
A
A:
1. Admissibility of a defendant’s bad character 2. Admissibility of a non-defendant’s bad character 3. Use of a defendant’s good character evidence by the court
4
Q
Q: Is the definition of bad character the same for defendants and non-defendants?
A
Yes, s.98 provides one definition that applies to both.
5
Q
Definition of Bad Character
Where is the definition of bad character found?
A
In section 98 of the Criminal Justice Act 2003 (CJA 2003).
6
Q
Q: How does s.98(1) define bad character evidence?
A
As evidence of misconduct or a disposition towards misconduct.
7
Q
Q: How is “misconduct” further defined under the Act?
A
Under s.112(1), misconduct means:
The commission of an offence, or Other reprehensible behaviour.
8
Q
Q: What types of conduct fall within this wide definition of bad character?
A
Previous convictions
Behaviour amounting to an offence but not charged
Behaviour resulting in acquittals
Reprehensible acts that are not necessarily criminal
9
Q
Q: What does “reprehensible” mean in this context?
A
Though not defined in the Act, it is interpreted via the Oxford English Dictionary as “deserving of condemnation”, potentially covering a wide range of non-criminal conduct.
10
Q
Q: Is the definition of bad character evidence wide or narrow?
A
Very wide — it encompasses a broad spectrum of past behaviours, both criminal and non-criminal.
11
Q
Q: What is specifically excluded from the definition of bad character under s.98(1)(a) and (b)?
A
Evidence relating to:
(a) The alleged facts of the offence charged, and
(b) The investigation or prosecution of that offence.
12
Q
Q: Why is evidence relating to the offence or its investigation excluded from the bad character definition?
A
Because such evidence is already admissible if it’s relevant, and doesn’t need to pass through additional bad character gateways.
13
Q
Q: Can it be difficult to distinguish between bad character evidence and evidence relating to the offence itself?
A
Yes — especially in the case of background or motive evidence, where it may be unclear whether it falls under bad character or not.
14
Q
Bad Character Evidence of Defendants
Where are the gateways for admitting bad character evidence of a defendant set out?
A
In section 101(1) of the Criminal Justice Act 2003.
15
Q
How many gateways are there for admitting a defendant’s bad character evidence?
A
Seven.
16
Q
Q: What is Gateway (a) under s.101(1)?
A
s.101(1)(a) – All parties agree to the evidence being admitted.
17
Q
Q: What is Gateway (b) under s.101(1)?
A
s.101(1)(b) – The evidence is adduced by the defendant himself.
18
Q
Q: What is Gateway (c) under s.101(1)?
A
s.101(1)(c) – The evidence is important explanatory evidence.
19
Q
Q: What is Gateway (d) under s.101(1)?
A
s.101(1)(d) – The evidence is relevant to an important matter in issue between the defendant and the P
20
Q
Q: What is Gateway (e) under s.101(1)?
A
s.101(1)(e) – The evidence has substantial probative value to a matter in issue between the defendant and a co-defendant.
21
Q
Q: What is Gateway (f) under s.101(1)?
A
s.101(1)(f) – The evidence is to correct a false impression given by the defendant.
22
Q
Q: Can any party use all seven gateways?
A
No.
Only the prosecution can use:
1) s.101(1)(d) (relevant to an issue with prosecution)
2) s.101(1)(f) (false impression), and
3) s.101(1)(g) (attack on another’s character).
23
Q
Q: What is Gateway (g) under s.101(1)?
A
s.101(1)(g) – The evidence is admitted where the defendant has made an attack on another person’s character.
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What must a party do to use bad character evidence of a defendant?
They must bring it within one or more of the 7 statutory gateways in s.101(1).
25
Gateway 1) All parties Agree
S.101(1)(a)
If all parties (prosecution, defence, and any co-defendants) agree to the admission of bad character evidence, it can be admitted without needing the court's permission.
The defence may agree strategically—for example, if they plan to attack a prosecution witness’s character, which would likely lead to the defendant’s bad character being raised anyway.
26
Gateway 2 ( D adduces Bad Character evidence)
S.101(1)(b)
If the defendant wants evidence of his bad character adduced, he can do so.
This a tactical decision.
It may be that the defendant has convictions but they are not similar to the charge that he faces. Highlighting that past offences have been different and that he has always pleaded guilty may help him. This is particularly so if the defendant faces a sexual offence, but has no previous sexual offences recorded against him.
27
Gateway 3- Important Explanatory Evidence
S.101(1)(c)
Sometimes in order to tell the whole story about why and how an offence was committed it is necessary to adduce evidence about the background that led to the events.
If the jury did not hear this evidence they would not understand the case as a whole.
An explanation of the background may involve evidence of past misconduct of the defendant.
The common law has always allowed important background evidence to be adduced, even where in doing so the previous misconduct of the defendant was heard by the jury.
This gateway puts in statutory form the common law rules.
S102 of the Act provides further guidance. To be admissible under this gateway it must be shown that the jury or court would find it impossible or difficult to properly understand other evidence in the case without the explanatory evidence.
Also, it must be shown that the explanatory evidence has substantial value in understanding the case as a whole.
28
Gateway 4 - Important matter in issue between the defendant and prosecution-s101(1)(d)
Q: Who can rely on Gateway (d) to admit bad character evidence?
A: Only the prosecution.
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Gateway D
What is meant by an "important matter in issue"?
A: Any matter that:
Has to be proved by the prosecution,
Relates to a defence raised by the defendant, or
Involves any factual dispute between prosecution and defence.
30
Gateway D
Q: What does s103(1) of the CJA 2003 add to this? under GaTeway D= Important matters between D and P
A: It clarifies that "important matters in issue" include:
Whether the defendant has a propensity to commit offences of the kind charged, and
Whether the defendant has a propensity to be untruthful.
31
Gateway D
Q: What is meant by “propensity”?
A: A tendency to:
Commit offences of the kind charged, or
Be untruthful.
32
Gateway D
Q: How can propensity be shown under s103(2)?
A: By showing that the defendant:
Has a conviction for an offence of the same description, or
Has a conviction for an offence in the same category, as the current offence.
33
What is the difference between same description and same category?
Same description = Offences that are legally the same (e.g., both ABH).
Same category = Offences that fall within a prescribed group (e.g., theft and burglary).
33
Q: Who sets the offence categories?
A: The Secretary of State via statutory instrument (e.g., The Criminal Justice Act 2003 (Categories of Offences) Order 2004).
34
Q: Can propensity be proven in other ways besides convictions?
A: Yes – s103(2) is not exhaustive. Each case depends on its own facts and context.
35
Case Law: R v Hanson [2005] 2 CrAppR 21 CA – Key Principles
Q: What is the purpose behind bad character legislation according to Hanson?
A: To aid in convicting the guilty without risking unjust prejudice against the innocent.
36
Q: Should bad character applications be routine if the defendant has convictions?
A: No – applications should be based on specific case circumstances.
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Q: Is a single conviction enough to establish propensity?
A: Often not, but may be sufficient if:
The offence shows unusual behaviour, or
There are distinctive similarities with the current offence.
Examples:
Child sexual abuse or fire setting – often sufficient alone.
A shoplifting conviction alone is not sufficient unless modus operandi is very similar.
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Q: Do offences need to be “strikingly similar”?
A: No – similarity helps, but not a requirement.
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Q: Does the court consider the age of previous convictions?
Q: Does the court consider the age of previous convictions?
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Q: What matters more: date of conviction or date of offence?
A: The date of commission is usually more significant than the date of conviction.
41
Q: Should judges examine each conviction individually?
A: Yes – name of offence alone is not sufficient. Details and context matter.
42
Q: Can the prosecution rely on the sentence to prove propensity?
A: No, but the defence can if relevant.
43
Q: Is dishonesty the same as untruthfulness?
( In relation to propensity)
A: No – untruthfulness refers to lying in the context of the current or prior case, not general dishonesty.
44
Q: When might a previous conviction show untruthfulness?
A: If:
The defendant gave a false account in a prior trial/interview, or
The offence involved making false representations.
45
Q: Can convictions alone prove untruthfulness?
A: Only if there’s relevant conduct or the defendant’s account was disbelieved in that case.
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Gateway 5
Gateway 5 - Important matter in issue between the defendant and co-defendant-s101(1)(e)
Who can use Gateway (e)?
A: Only the defence can rely on this gateway.
47
Q: What does this gateway allow?
Gateway E
A: It allows a defendant to adduce evidence of a co-defendant’s bad character, when it has substantial probative value in relation to an important matter in issue between them.
48
Q: What legal provision gives more detail on this gateway?
A: Section 104(1) of the Criminal Justice Act 2003.
49
Q: What is a “cut-throat” defence?
A: A situation where two or more co-defendants blame each other for the offence.
50
Q: How does this relate to Gateway (e)?
A: One co-defendant may wish to introduce evidence that another co-defendant:
1) Has a record of similar offending, or
2) Has a history of dishonesty, suggesting they are more likely to have committed the offence or should not be believed.
51
Q: Can the prosecution use this gateway if co-defendants blame each other but don’t raise bad character? ( Gateway e)
A: No – this gateway is available only to the defence.
52
Q: Can the prosecution admit the same evidence under a different gateway? ( gateway e)
A: Possibly, if another gateway (e.g. s101(1)(d), (f), or (g)) applies.
53
Propensity for Untruthfulness Between Co-Defendants
Can a defendant raise a co-defendant’s propensity for untruthfulness?
Yes, but only if the nature or conduct of their defence undermines the co-defendant’s defence.
54
Q: Is this different from raising a propensity to commit offences?
A: Yes – when arguing propensity to be untruthful, the threshold is higher:
There must be conflict between defences, and
The defence must directly challenge the credibility of the co-defendant.
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Gateway (f) – To Correct a False Impression (s101(1)(f))
Q: Who can use Gateway (f)?
A: Only the prosecution can rely on this gateway.
56
Q: What does this gateway allow?
A: It allows the prosecution to adduce evidence of bad character if the defendant has made an express or implied assertion that gives a false or misleading impression about themselves.
57
Q: Which section provides further guidance on this gateway?
A: Section 105 of the Criminal Justice Act 2003.
58
Q: In what ways can the false impression be given?
A: The false or misleading impression can be given:
During police questioning under caution.
When charged by the police.
While giving evidence during the trial.
Through a witness for the defence who gives that impression.
59
Q: What are some examples of false impressions that might trigger this gateway?
Claiming to have a clean record, when in fact the defendant has prior convictions.
Wearing symbolic clothing (e.g., a military regiment tie) to imply a trustworthy character, when the defendant has no such background and a fraud record.
Asserting being a kind and loving father, while having convictions for child neglect.
60
Q: Can the prosecution go beyond correcting the false impression?
A: No – they can only introduce enough bad character evidence to correct the false impression. They cannot go further under this gateway
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Q: Can the defendant avoid bad character being admitted?
A: Yes – if the defendant withdraws the false impression or disassociates themselves from it, the bad character evidence may not be admitted.
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Gateway (g) – Attack on the Character of Another (s101(1)(g))
Q: Who can use Gateway (g)?
A: Only the prosecution may rely on this gateway.
63
Q: What does this gateway allow the prosecution to do?
A: If the defendant attacks the character of another person, the prosecution can adduce evidence of the defendant’s own bad character before the court.
63
Which section provides more detail on this gateway?
A: Section 106 of the Criminal Justice Act 2003.
64
Q: Who is included in “another person”?
A: The term is broad and includes:
Any witness in the case.
Any other person, even if not directly involved in the proceedings.
65
Q: When or how can the defendant attack someone’s character?
A: The attack can happen:
During police questioning.
On being charged.
While giving evidence in court.
During cross-examination of witnesses by the defence.
👉 It doesn’t matter at what stage of the proceedings the attack is made—it may still allow the prosecution to adduce the defendant’s bad character.
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💥 What Constitutes an “Attack”?
How is “attack on character” defined under s106?
An attack is when the defendant adduces evidence that:
The other person has committed a criminal offence, or
The other person has behaved, or is disposed to behave, in a reprehensible way.
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Q: Will every negative suggestion about someone else lead to bad character being admitted?
No. Not every suggestion of impropriety will trigger this gateway.
68
Q: What helps determine if the attack gateway applies?
A: Case law developed under the Criminal Evidence Act 1898, the predecessor to this provision, is still relevant and helps assess:
The severity of the attack.
Whether the comments genuinely amount to an accusation of reprehensible behaviour.
69
Application to adduce the D bad character
Which part of the Criminal Procedure Rules covers applications to adduce bad character evidence?
A: Part 21 – It covers both defendant and non-defendant bad character applications.
70
Q: Which specific rule applies to adducing a defendant’s bad character?
A: Rule 21.4 of the Criminal Procedure Rules.
71
📬 Q: What must the prosecution do if it wants to adduce bad character evidence against the defendant?
A: Under R21.4(3), the prosecution must serve written notice to:
The court, and
The defence.
72
⏱️ Q: What are the time limits for the prosecution to give notice?
A:
Magistrates’ Court: Within 20 business days of the defendant entering a not guilty plea.
Crown Court: Within 10 business days of a not guilty plea, if the case is to be dealt with there.
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👥 Q: What if a defendant wants to adduce the bad character of a co-defendant (gateway 101(1)(e))?
A: Under R21.4(4), the defence must give notice to:
The court
The prosecution
The other co-defendants
🕒 The notice must be given:
1. As soon as reasonably practicable, and
2. In any event, no more than 10 business days after the prosecutor discloses the material on which the application is based.
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⏰ Q: Can late applications be made?
A: Yes – under Rule 21.6, late applications to adduce bad character evidence may be made orally in court.
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Applications to exclude evidence of a defendant’s bad character
❓Q: What must the court be satisfied of before bad character evidence can be admitted?
A: That the gateway is properly opened and all statutory conditions are met under that gateway.
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❓Q: What does the court consider when the prosecution relies on gateway 101(1)(d) (propensity)?
A:
Age of previous convictions
Number of convictions
Type of offence
Similarity to the current charge
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❓Q: What challenge can be made under gateway (g) – attack on another’s character?
A: Whether the "attack" is sufficient to meet the statutory definition under s106.
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❓Q: Is the age of the defendant at the time of prior convictions relevant?
A: Yes, it may be considered in assessing relevance and weight.
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❓Q: What if evidence passes through the gateway – can it still be excluded?
A: Yes – courts may still consider exclusion under statute or common law.
80
❓Q: What provision allows the defence to apply for exclusion under gateway (d) or (g)?
A: Section 101(3) CJA 2003 – evidence must not be admitted if it would have an adverse effect on fairness of proceedings.
81
❓Q: How does s101(3) compare to s78 PACE?
A: Similar purpose, but s101(3) is stated in stronger terms.
82
❓Q: Does s101(3) apply to all gateways?
A: No – it only applies to gateway (d) and gateway (g).
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❓Q: Can bad character evidence under gateway (a), (b), or (e) be excluded?
A: No need – these are based on agreement or defence adducing the evidence.
84
❓Q: Can bad character evidence under gateway (c) or (f) be excluded?
A: Yes, using s78 PACE – if fairness is compromised, see R v. Weir [2006].
85
❓Q: What is the time limit to apply to exclude bad character evidence under CrimPR?
A: Within 10 business days of receiving the prosecution’s notice.
86
❓Q: What governs the admissibility of bad character evidence of non-defendants?
A: Section 100 of the Criminal Justice Act 2003.
87
❓Q: What is required before non-defendant bad character evidence can be adduced?
A: It must pass through a gateway in s100, and the court must grant leave, unless all parties agree.
88
❓Q: Is the definition of "bad character" the same for non-defendants as for defendants?
A: Yes – the statutory definition is the same.
89
❓Q: In what scenario is s100 most commonly used?
A: When the defence wants to discredit a prosecution witness (e.g., alleging a witness is dishonest or violent).
90
❓Q: Can s100 apply in situations beyond discrediting a witness?
A: Yes – for example:
1. If the defence suggests someone else committed the offence (even if that person is not called as a witness).
2. If the prosecution seeks to cross-examine a defence witness (other than the defendant) about their bad character.
91
❓Q: Can bad character evidence of a non-defendant be admitted without court leave?
A: Only if all parties agree. Otherwise, court permission is required.
92
❓Q: What section governs the admissibility of non-defendant bad character evidence?
A: Section 100 of the Criminal Justice Act 2003.
93
❓Q: How many gateways are there under s100, and what are they?
A: Three gateways:
s100(1)(a) – It is important explanatory evidence (like gateway s101(1)(c) for defendants).
s100(1)(b) – The evidence has substantial probative value in relation to a matter in issue and is of substantial importance in the context of the case as a whole.
s100(1)(c) – All parties agree to the evidence being adduced.
94
❓Q: What does s100(1)(b) typically relate to?
A: Issues like the credibility of a witness or whether a person is worthy of belief.
95
❓Q: What must the court consider when deciding if evidence under s100(1)(b) has substantial probative value?
A: The court must apply s100(3) and (4), considering:
1. Seriousness of the misconduct
2. Number of incidents
3. Age of the misconduct
4. The force of the evidence
96
❓Q: What is the test for whether misconduct affects creditworthiness?
A: Whether the evidence is “reasonably capable of assisting a fair-minded jury to reach a view on whether a witness’s evidence is, or is not, worthy of belief.”
97
❓Q: Do gateways 100(1)(a) and (b) require leave of the court?
A: Yes – even if the conditions are met, leave of the court is required.
98
❓Q: Is the court’s decision to admit under s100(1)(a) or (b) discretionary?
A: No – it is a matter of judgement, not discretion. If the statutory conditions are satisfied, the court must admit the evidence (unless another exclusionary rule applies).
99
❓Q: Can the evidence still be excluded even if the s100 test is satisfied?
A: Yes, but only if the prosecution is adducing the evidence – it may be excluded under s78 PACE 1984 if it would adversely affect the fairness of the proceedings.
100
Application to admit non-defendant bad character
❓Q: Which rule of the Criminal Procedure Rules governs applications to admit non-defendant bad character evidence?
A: Rule 21.3 CrPRs.
101
❓Q: When must the application be served?
1. As soon as is reasonably practicable, and
2. No more than 10 business days after the prosecution discloses the material on which the application is based (if the applicant is not the prosecution)
102
❓Q: What is the deadline for opposing such an application?
A: The opposing party must serve notice within 10 business days of receiving the application.
103
❓Q: Can the court waive the written application requirements?
A: Yes, the court has the discretion to waive the rules concerning written applications.
104
The Defendant's Good Character
❓Q: What does "good character" mean in the criminal law context?
A: A defendant of good character typically has no previous convictions or cautions. A person of absolute good character also has no proven, admitted, or alleged reprehensible behaviour beyond that.
105
❓Q: Do the rules on good character apply in all criminal cases?
A: No. These common law rules only apply where the defendant has pleaded not guilty and there is a trial.
106
❓Q: What is the leading case that governs how good character should be treated at trial?
A: R v. Vye; R v. Wise; R v. Stephenson [1993] 97 Cr.App.R 134.
107
❓Q: What did the Court of Appeal establish in Vye?
A: It set out a two-limb direction (known as the Vye direction) to be given to the jury or magistrates when the defendant is of good character.
108
❓Q: What is the first limb of the Vye direction?
A: The jury should take the defendant’s good character into account when assessing his credibility — both when giving evidence in court and for any pre-trial exculpatory statements made (e.g., in a police interview).
109
❓Q: What is the second limb of the Vye direction?
A: The defendant’s good character may make it less likely that they committed the offence, so this should be considered in the jury’s assessment of guilt.
110
R v Hunter [2015] 1 WLR 5367 – Good Character Directions
❓Q: What did R v Hunter clarify about good character directions?
A: A defendant is only entitled to a good character direction if they are of either:
Absolute good character (no convictions or reprehensible behaviour), or
Effective good character, as determined by the judge.
111
❓Q: What is meant by “effective good character”?
A: This is where the defendant has old, minor, or irrelevant convictions, and the judge rules that it would be unfair not to treat the defendant as of good character.
112
❓Q: If a defendant is of effective good character, should both limbs of the Vye direction still be given?
A: Yes, but the direction must be modified to reflect the fact that the defendant is not of absolute good character, to avoid misleading the jury.
113
❓Q: Can a good character direction be given to a defendant who is neither of absolute nor effective good character?
A: Possibly. The judge has a discretion to give a partial or modified direction based on what fairness to all parties requires.
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