Topic 12- Character Flashcards
When is bad character evidence admissible?
Only if it falls with a specific statutory gateway
Where are the gateways for bad character found?
CJA 2003, s101 - (a) to (g)
What is the definition of bad character?
Evidence of, or a disposition towards, misconduct on his part
(other than evidence which has to do with the offence)
What is “misconduct”?
The commission of an offence or other reprehensible behaviour
Can bad character evidence showing racist views be used in connection with a racially motivated murder?
Yes, it will be admissible, even if that evidence came about after the murder
It shows a propensity for the offence
Can bad character evidence that arose AFTER the commission of an offence be admissible?
Yes
Where bad character evidence is relied upon, what will the value of the evidence depend on?
It depends on the circumstances of the offence, not merely the actual conviction
Where an accused faces multiple charges in the same proceedings, how do the bad character provisions apply?
They apply as if each was charged in separate proceedings
Therefore, a gateway is required to facilitate the cross-admissibility between charges
If a D has been acquitted by another court of misconduct, can that still be adduced in bad character?
Yes, even if they were acquitted
This is very rare- must show that it is relevant to an important issue in the case
If a D has been acquitted of three separate rape charges, can these be used as bad character evidence?
Yes, if it satisfies s110 (d)- importance
How is reprehensible behaviour usually decided in court?
It is usually very fact specific, so all the facts must be looked at
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>?
No, this is excluded
However, there are circumstances where it could be admissible
Can previously allegations be used as evidence of bad character?
Not usually, only if it is demonstrably relevant
What are the 7 gateways for bad character admissibility?
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
What is gateway a) of the 7 gateways?
Agreement- bad character evidence can be admissible by general consensus of the parties
What is gateway b) of the 7 gateways?
Adduced by the defendant- the accused can elect to tender evidence of his own bad character
Why would a defendant use gateway b) to admit evidence of his own bad character?
Potentially to demonstrate that they have never been previously convicted of an offence similar to that charged
What is gateway c) of the 7 gateways?
Introducing bad character evidence if it is important explanatory evidence
What is gateway d) of the 7 gateways?
Introducing bad character evidence if it is relevant to an important matter in issue
What is gateway e) of the 7 gateways?
Introducing bad character evidence if it has substantive probative value in relation to an issue
What is gateway f) of the 7 gateways?
Introducing bad character evidence if it is evidence to correct a false impression given by the defendant
What is gateway g) of the 7 gateways?
Introducing bad character evidence if the defendant attacks another person’s character
Which gateways can be excluded upon an application by the defendant, if it would have an adverse effect on the fairness of the proceedings?
D to G
What is the exclusionary power in excluding gateways D to G?
It must have an adverse effect on the fairness of the proceedings
The defendant must apply to exclude it
How can bad character evidence be admissible under gateway C- explanatory evidence?
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
How can bad character evidence be admissible under gateway d- important matters in issue?
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
When talking about gateway d- important matters in issue- what does this include?
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
What are the three questions the court must consider when admitting bad character evidence through gateway d- important matters?
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?
How can propensity to commit a crime be determined?
Eg, if the prior behaviour is “strikingly similar” to the offence charged
Eg, an offence of arson
How can gateway D be used to identify a defendant?
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
How is gateway e- substantive probative value- used to admit bad character evidence?
If it there is a substantial important matter that can be resolved and has a substantial importance in the case as a whole
How is gateway f- correcting a false impression- used to admit bad character evidence?
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
How is gateway g- attack on another person’s character- used to admit bad character evidence?
If the defence attacks a prosecution witness’ character, the prosecution can adduce the BC evidence to counter the attack
What is the considered an “attack” in the context of gateway g?
The specific language must be considered here, however potentially making allegations, etc
Could also be out-of-court statements
Which section of CJA 2003 details the admissibility of bad character evidence for non-defendants?
S100
Is BC evidence against a non-defendant admissible?
Yes, if it satisfies the conditions under s100
What can BC evidence against a non-defendant be used to do?
Can be used to prove the bias or partiality of a witness
What are three gateways for BC evidence against a non-defendant?
If it is important explanatory evidence
If it has substantial probative value in the proceedings
If all the parties agree
Can BC evidence against a non-defendant be excluded on fairness?
No, there is no discretion to exclude evidence on ground of fairness
How is gateway 1- important explanatory evidence- used in admitting BC evidence against a non-defendant?
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
What is the meaning of substantial in the context of gateway 2 for BC evidence against a non-defendant?
Whether the issue to which the evidence goes is of substantial importance
Whether the evidence had substantial probative value
When a party wishes to adduce bad character evidence, how is an application made?
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
What is a certificate of conviction or acquittal?
This is a requirement for proof of a person who has a conviction or acquittal
What are the key directions for the jury that a judge must give when admitting BC evidence?
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
What is good character evidence used to do?
Can be used to demonstrate that an accused who lacks a proven propensity to do wrong is less likely to have committed the offence
Even if a defendant has previous convictions, can they still get a good character direction?
Yes, in specific circumstances
What is absolute good character?
An accused is entitled to an absolute good character direction if they have no previous convictions, or reprehensible conduct
What is effective good character?
Where the accused has old, minor or irrelevant previous convictions
What is an example of where an effective good character direction may be used?
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
What must the judge consider when deciding whether to make an effective good character direction?
Must look at all the circumstances of the offence, and decide whether it would be fair to use
What are the two-limbs of the direction for good character made by a judge to the jury?
1- Credibility
2- Propensity
