U4. Character Evidence

Question 1

What are the 2 statory provisions you must know for the sqe in relation to Character Evidence and what do they relate to?

Answer 1

The Criminal Justice Act 2003

1. Section 101 - Admissibility of Defendant bad character evidence and Courts Power to exclude defednants bad character evidence
2. Section 100 - Admissibility of Non Defendant Bad Character evidence

Question 2

What are the 4 things to consider with regards to Character Evidence?

Answer 2

1. The evidence fits the definion of bad character evidence
2. The Evidence is admitable
3. The Procedure to admit the evidence
4. The Courts powers to exclude such evidence

Diffrent rules apply to defendant bad character evidence, and non defendant bad character evidence

Question 3

What is the Definition of Bad Character Evidence?

The first consideration of 4 points when looking at character evidence

Answer 3

Bad Character is evidence of, or a disposition towards, misconduct on the part of the defendant.

Misconduct is concerned with the commission of an offence, or other reprehensible behaviour, such as previous convictions or membership of a violent gang.

Question 4

What does miconduct not include for the purposes of the definion of bad conduct for character evidence?

Answer 4

Is the matter in dispute, or connected to the matter in dispute.

1. Has to do with the alleged facts of the offence with which the defendant is charged
2. Is evidence of misconduct in connection with the investigation or prosecution of the offence (ie attempting to conceal a weapon used in the commision of the offence)

Question 5

What Section gives the 7 ‘gateways’ for Defendant Character Evidence to be admitted?

What are the 7 Grounds?

Answer 5

S.101 Criminal Justice Act 2003

1 of the 7 needs meeting:

1.All Parties Agree

2. The Evidence was Adduced by the Defendant themselves

3.The Evidence is Important Explanatory Evidence

4. The Evidence is Relevant to an Important Issue between the Defence and Prosecution

5.The Evidence has Substantial Probative Value in Relation to a matter between the Defendants and Co-Defendants

6.The Evidence is requires to corrects false impression given be the defendants

7. The Defendant has made an attack on another person’s character

Question 6

What is explantory evidence for the purpose of admitting bad character evidence?

Answer 6

Evidence is Explanatory if:

1. Without it, the court would find it difficult or impossible to properly understand the other evidence of the case
2. The value of the evidence for the understanding of the case as a whole Is substantial

Question 7

What is evidence relevent to an important issue between the defence and Prosecution for the purposes of admitting a defendants bad character?

What are the 4 grounds the Court Will consider?

Answer 7

The defendants bad character is relevant to the matter in issue, and demonstrates Propensity on the part of the defednant (the likley hood to do something again).

Propensity may refer to:

1. The likelihood to commit offences of the kind with which the defendant is charged (ie a previous offence in the same category (ie previous theft and now charged with theft))
2. The Likelihood to be untruthful (such as evidence of fraud by false representation)

To be admitted on this ground, the Court will consider:

1. Whether the history of the previous conviction establishes a propensity to commit offences of the kind with which the defendant is charged
   i. If so, whether the propensity makes it more likely that the defendant committed the alleged offence.
2. The Number of Previous convictions (there is no minimum to establish propensity, but the fewer the weaker the evidence of propensity)
3. The Strength of the prosecution’s case (if little or no other evidence, likely unjust to admit the previous conviction)

4.The Individual Circumstances of each conviction rather than the name of the offence.

Question 8

When can Bad Character evidence be admitted under the ground that it has Substantial Probative Value in Relation to a matter between the Defendants and Co-Defendants

Answer 8

The defence may apply to admit the bad character of a co-defendant to demonstrate that the co-defendant has the propensity (likelihood) to be (1) untruthful or (2) to commit offences of the kind which they have both been charged. (to shift the blame to the co-defendant)

Question 9

What is the gateway that allows defendants bad evidence to be addmited where that D has made an attack on another persons character?

(ONLY PROSECUTION CAN USE THIS GATEWAY)

Answer 9

The prosecution can adduce the defendants bad character evidence if the defendant has asserted that someone involved in the proceedings has committed an offence or behaved in a reprehensible way.

Such imputation can be made before the charge when interviewed under caution, on being charged or advised that the prosecution will take place, or during questioning at trial.

Question 10

What are the 3 considerations when admitting bad character evidence?

Answer 10

1. Notice
2. Objections
3. Determing the Application

This is a ridgid framework.

Question 11

What 3 things must be included in Notice when admitting defendant bad character evidence?

Answer 11

Notice must be given to all parties that the evidence will be admitted unless opposed, and must contain the 3 key details:

1. The Facts
2. An explanation as to how those facts will be proved, and
3. A statement as to why the evidence is admissible

The notice must also been drafted and served within the correct time frame, which is different for when the prosecution is adducing the evidence v a co-defendant v a defendant inducing their own character evidence

Question 12

What is the time frames for brining defendant bad character evidence?

1. For Prosecution
2. For Co-defendants

Answer 12

1. Time Frame for Prosecution

Not more than:

20 Business days after a non-guilty PLEA in the Magistrates Court

OR

10 Business days after a non-guilty plea in the Crown Court

2. Time Frame for Co-defendant

Not more than:

10 Business days after the prosecution discloses material on which the notice is based

	And 

In any event, as soon as reasonably practicable

Question 13

What is the procedure for a defendant adducing their own bad character evidence?

Answer 13

1. Give notice either orally or in writting
2. As soon as reasonably practicable and, in any event, before the evidence is introduced
3. If in the crown court, give notice of any desired direction to be given to the jury at the same time notice is given of the defendants intention to introduce their bad character

Question 14

How can a party object to the introduction of Bad Character Evidence after being served Notice?

Answer 14

The application must be served on the Court Officer and all parties, not more than 10 days after the initial notice was served, and must state:

1. Which facts identified in the notice the defendant objects to
2. Which, if any, facts of the misconduct the party instead admits to
3. Whe is inadmissible
4. Why it would be unfair to admit the evidence
5. Any additional objections to the notice

Question 15

How will the Court determine an application for bad character evidence?

What can it not do?

What mut the Court do after deciding?

Answer 15

1. The Court may hear the application in public or private, without a hearing, or adjourn the application.
2. However, it is not permitted to determine the application without the party who made the application being present, unless it had the reasonable opportunity to respond.
3. Once decided, the Court Must announce the reason to admit, or refuse to admit, the evidence as bad character evidence.

Question 16

What happens if a Defendant is unrepresented, and the prosecution applies to introduce bad character evidence?

Answer 16

IF THE DEFENDANT IS UNREPRESENTED, THE COURT SUCH AN APPLICATION TO EXCLUDE (OBJECTION) IS PROMPTED BY THE COURT

Question 17

What must the Court consider when thinking to exclude a defendant bad character evidence that is in the form of previous convictions demonstrating propensity.

Answer 17

If the application to exclude the evidence bad character evidence in the form of previous convictions demonstrating propensity, the court must consider both the length of time which has passed and the facts which formed the subject of the previous convictions.

Question 18

When must the Court exclude defendant bad character evidence under s.101 Criminal Justice Act?

Answer 18

Where the admission of the bad character evidence would have ‘Such an Adverse effect on the fairness of proceedings that the court ought not to admit it’, the Court MUST exclude it.

This power arises when:

1. The defendant applies to admit the defendants bad character evidence
2. The defence makes an application to exclude the evidence

Question 19

What is a non-defendant for bad character evidence, and what section governs this?

Answer 19

Anyone other than the defendant, such as a witness.

S.100 Criminal Justice Act 2003

Question 20

What 3 gateways under S.100 CJA can allow for non defendant bad character evidence to be admitted?

Answer 20

1. Important Explanatory Evidence
2. Substantial Probative Value
3. All parties Agree

Question 21

What is important to remeber when attempting to admist a non-defendants bad character?

Answer 21

If a defendant attempts to admit a non-defendants bad character, it must be remebered that this is a gateway for allowing a defendants bad character to be admited and so may work against the defendant apply to use it.

Question 22

What is the 2 part test the court will use when determing whether to admit Non Defendant Bad Character evidence on the ground of it being of Substantial Probative Value?

Answer 22

The Court will consider how far the non-defendants bad character goes to proving a matter in issue (e.g credibility and reliability)

The trial judge must use a 2 part test:

1. Is the issue to which the bad character evidence relate one of substantial importance in the context of the case overall?
2. If so, does the bad character evidence have substantial probative value in relation to a matter in issue in the proceedings?

Question 23

What is the Procedure for Admitting Non Defendant Bad Character Evidence?

What must be included?

When must it be done by?

Answer 23

Notice Must be Served on the Court Officer and Each Party

It must set out the reason why the party wishes to introduce the evidence

It must be done as soon as reasonably practicable, and no more than 10 buiness days after the prosecution discloses information which the application is based.

Question 24

Who is Non Defendant Bad Character evidence usually used by?

Answer 24

It is normally used by the Defendant to discredit a witness

Question 25

How can an objection be made to the admitle of NON DEFENDANT BAD CHARACTER EVIDENCE?

Answer 25

Notice of Objections must be served on the court officer and each part not more than 10 business days after service of the initial application.

It must explain:

1. Which facts of the misconduct the party admits or disputes
2. Why the evidence is not admissible
3. Any other objection to the application

Question 26

Can the Court determine the application for admitting non defendant bad character evidence without the parties present?

Answer 26

No, all parties must be there (other than the applicant)

Question 27

Can the Court Exlude Non-Defendnat Bad Character Evidence?

Answer 27

There is no specific power for the Court to exclude if one of the gateways has been met.

At large, its important to remeber exclusion of evidence rules never apply to defendant evidence