Topic 12- Character

Question 1

When is bad character evidence admissible?

Answer 1

Only if it falls with a specific statutory gateway

Question 2

Where are the gateways for bad character found?

Answer 2

CJA 2003, s101 - (a) to (g)

Question 3

What is the definition of bad character?

Answer 3

Evidence of, or a disposition towards, misconduct on his part

(other than evidence which has to do with the offence)

Question 4

What is “misconduct”?

Answer 4

The commission of an offence or other reprehensible behaviour

Question 5

Can bad character evidence showing racist views be used in connection with a racially motivated murder?

Answer 5

Yes, it will be admissible, even if that evidence came about after the murder

It shows a propensity for the offence

Question 6

Can bad character evidence that arose AFTER the commission of an offence be admissible?

Answer 6

Yes

Question 7

Where bad character evidence is relied upon, what will the value of the evidence depend on?

Answer 7

It depends on the circumstances of the offence, not merely the actual conviction

Question 8

Where an accused faces multiple charges in the same proceedings, how do the bad character provisions apply?

Answer 8

They apply as if each was charged in separate proceedings

Therefore, a gateway is required to facilitate the cross-admissibility between charges

Question 9

If a D has been acquitted by another court of misconduct, can that still be adduced in bad character?

Answer 9

Yes, even if they were acquitted

This is very rare- must show that it is relevant to an important issue in the case

Question 10

If a D has been acquitted of three separate rape charges, can these be used as bad character evidence?

Answer 10

Yes, if it satisfies s110 (d)- importance

Question 11

How is reprehensible behaviour usually decided in court?

Answer 11

It is usually very fact specific, so all the facts must be looked at

Question 12

If there is evidence of misconduct that “has to do with the alleged facts” of the offence charged, can this be admissible as bad character evidence>?

Answer 12

No, this is excluded

However, there are circumstances where it could be admissible

Question 13

Can previous allegations be used as evidence of bad character?

Answer 13

Not usually, only if it is demonstrably relevant

Question 14

What are the 7 gateways for bad character admissibility?

Answer 14

a) All parties to the proceedings agree to the evidence being admissible

b) The evidence is adduced by the defendant himself

c) It is important explanatory evidence

d) It is relevant to an important matter in issue

e) It has substantial probative value in relation to an issue

f) It is evidence to correct a false impression given by the defendant

g) Where the defendant has made an attack on another person’s character

Question 15

What is gateway a) of the 7 gateways?

Answer 15

Agreement- bad character evidence can be admissible by general consensus of the parties

Question 16

What is gateway b) of the 7 gateways?

Answer 16

Adduced by the defendant- the accused can elect to tender evidence of his own bad character

Question 17

Why would a defendant use gateway b) to admit evidence of his own bad character?

Answer 17

Potentially to demonstrate that they have never been previously convicted of an offence similar to that charged
OR
To show that it was a “one-off” occasion and they regret the offence

Question 18

What is gateway c) of the 7 gateways?

Answer 18

Introducing bad character evidence if it is important explanatory evidence

Question 19

What is gateway d) of the 7 gateways?

Answer 19

Introducing bad character evidence if it is relevant to an important matter in issue

Question 20

What is gateway e) of the 7 gateways?

Answer 20

Introducing bad character evidence if it has substantive probative value in relation to an issue

Question 21

What is gateway f) of the 7 gateways?

Answer 21

Introducing bad character evidence if it is evidence to correct a false impression given by the defendant

Question 22

What is gateway g) of the 7 gateways?

Answer 22

Introducing bad character evidence if the defendant attacks another person’s character

Question 23

Which gateways can be excluded upon an application by the defendant, if it would have an adverse effect on the fairness of the proceedings?

Answer 23

D to G

Question 24

What is the exclusionary power in excluding gateways D to G?

Answer 24

It must have an adverse effect on the fairness of the proceedings

The defendant must apply to exclude it

Question 25

How can bad character evidence be admissible under gateway C- explanatory evidence?

Answer 25

The evidence must have an effect on other evidence that without which it would be impossible or difficult to understand other evidence in the case

Question 26

How can bad character evidence be admissible under gateway d- important matters in issue?

Answer 26

If the evidence is relevant to an important matter in issue questioning whether the D has a propensity to commit similar offences, or a propensity to be untruthful

Question 27

When talking about gateway d- important matters in issue- what does this include?

Answer 27

Whether the D has a propensity to commit offences of the kind charged, or propensity to be untruthful Must also be important in the context of the case as a whole

Question 28

What are the three questions the court must consider when admitting bad character evidence through gateway d- important matters?

Answer 28

Does the history of convictions establish a propensity to commit similar offences? If so, does the propensity make it more likely that D has committed the crime charged? Where the convictions are similar, is it unjust to rely on them?

Question 29

How can propensity to commit a crime be determined?

Answer 29

If the prior behaviour is "strikingly similar" to the offence charged Eg, an offence of arson

Question 30

How can gateway D be used to identify a defendant?

Answer 30

If the bad character evidence of specific misconduct displays a high degree of unusual features associated with the offence Signature evidence of misconduct Can be used in gang affiliation cases

Question 31

How is gateway e- substantive probative value- used to admit bad character evidence?

Answer 31

If it there is a substantial important matter that can be resolved and has a substantial importance in the case as a whole

Question 32

How is gateway f- correcting a false impression- used to admit bad character evidence?

Answer 32

It permits BC evidence if a misleading or false impression of the defendant has been made It this impression may mislead he jury, then the gateway f can be used

Question 33

How is gateway g- attack on another person's character- used to admit bad character evidence?

Answer 33

If the defence attacks a prosecution witness' character, the prosecution can adduce the BC evidence to counter the attack

Question 34

What is the considered an "attack" in the context of gateway g?

Answer 34

The specific language must be considered here, however potentially making allegations, etc Could also be out-of-court statements

Question 35

Which section of CJA 2003 details the admissibility of bad character evidence for non-defendants?

Answer 35

S100

Question 36

Is BC evidence against a non-defendant admissible?

Answer 36

Yes, if it satisfies the conditions under s100

Question 37

What can BC evidence against a non-defendant be used to do?

Answer 37

Can be used to prove the bias or partiality of a witness

Question 38

What are three gateways for BC evidence against a non-defendant?

Answer 38

If it is important explanatory evidence If it has substantial probative value in the proceedings If all the parties agree

Question 39

Can BC evidence against a non-defendant be excluded on fairness?

Answer 39

No, there is no discretion to exclude evidence on ground of fairness

Question 40

How is gateway 1- important explanatory evidence- used in admitting BC evidence against a non-defendant?

Answer 40

It must be impossible or difficult to properly understand other evidence in the case without it Must also have a substantial value in the case

Question 41

What is the meaning of substantial in the context of gateway 2 for BC evidence against a non-defendant?

Answer 41

Whether the issue to which the evidence goes is of substantial importance Whether the evidence had substantial probative value

Question 42

When a party wishes to adduce bad character evidence, how is an application made?

Answer 42

Notice must be made, in writing or orally, as soon as reasonably practicable Or no more than 10 days after prosecution disclosure in Crown Court/20 days in Magistrates

Question 43

What is a certificate of conviction or acquittal?

Answer 43

This is a requirement for proof of a person who has a conviction or acquittal

Question 44

What are the key directions for the jury that a judge must give when admitting BC evidence?

Answer 44

They must give the jury a clear warning against the dangers of placing reliance on previous convictions Stress the fact that BC evidence cannot be used to bolster a weak case Emphasise that the jury should not infer guilt from the existence of convictions

Question 45

What is good character evidence used to do?

Answer 45

Can be used to demonstrate that an accused who lacks a proven propensity to do wrong is less likely to have committed the offence

Question 46

Even if a defendant has previous convictions, can they still get a good character direction?

Answer 46

Yes, in specific circumstances

Question 47

What is absolute good character?

Answer 47

An accused is entitled to an absolute good character direction if they have no previous convictions, or reprehensible conduct

Question 48

What is effective good character?

Answer 48

Where the accused has old, minor or irrelevant previous convictions

Question 49

What is an example of where an effective good character direction may be used?

Answer 49

If D was tried for sexual offences 30 years previously, and is now being charged with theft He may be entitled to effective good character, because the conviction was irrelevant and old

Question 50

What must the judge consider when deciding whether to make an effective good character direction?

Answer 50

Must look at all the circumstances of the offence, and decide whether it would be fair to use

Question 51

What are the two-limbs of the direction for good character made by a judge to the jury?

Answer 51

1- Credibility 2- Propensity

Question 52

If an accused has stated they have never been convicted of anything, yet have previous convictions, what should be done?

Answer 52

Apply to adduce evidence about previous convictions in order to correct the false impression made

Question 53

Can any evidence that relates to the facts of the case be bad character?

Answer 53

No, must not relate to the case It can still be adduced through other means if it is relevant to the issue

Question 54

How is gateway D used to identify the accused?

Answer 54

It is relevant to an important matter in issue Therefore, evidence can be used to identify the accused through inference from propensity

Question 55

What is the difference between gateways C, D and E?

Answer 55

C- explains evidence that would be impossible or difficult to understand D- important to a matter in issue- usually to show propensity E- substantial probative value between CO-ACCUSED

Question 56

What is the test for gateway C (important explanatory evidence)?

Answer 56

The jury must find an issue impossible or difficult to understand without the evidence

Question 57

Where an accused has previous convictions that are completely unrelated and dissimilar to the offence charged, what sort of direction should the Judge give?

Answer 57

The accused is of effective good character, so is entitled to a good character direction in full However, it will be modified to ensure that the jury is not mislead as to her previous convictions

Question 58

What can the judge talk about in a good character direction?

Answer 58

Credibility of the Defendant The likelihood of his having committed the offence

Question 59

If a witness has given a false impression of the accused (without the accused even giving evidence), can this mean his previous convictions can be admissible?

Answer 59

Yes, as they will be admissible to correct a false impression Doesn't matter if the false impression wasn't made by the accused

Question 60

Where an accused is being tried with a co-accused, and is entitled to a good character direction, will the judge have to modify the direction, due to them being tried with a co-accused?

Answer 60

No, the judge will give the same direction as if the accused was being tried alone

Question 61

Where an accused has no previous convictions, and makes a no comment interview and doesn't give evidence at trial, what good character direction will be made?

Answer 61

A direction related only to the issue of guilt Will not be relevant to their credibility as they have not given evidence

Question 62

Where an accused has no previous convictions, and makes a no comment interview but gives evidence at trial, what good character direction will be made?

Answer 62

A direction related to both the issue of guilt and credibility This is because they have given evidence

Question 63

If an accused has attacked another's character in a police interview, but made no mention of it during examination, can the prosecution still adduce their bad character?

Answer 63

Yes, even if it was during the interview

Question 64

Can a defendant apply to adduce their co-defendant's previous convictions, even if the prosecution don't?

Answer 64

Yes, it is admissible through gateway e