Unit 12 - Character Evidence (unit 15 BSB)

Question 1

Bad Character

The CJA 2003, s. 101, provides that evidence of the bad character of an accused is admissible IF:

Answer 1

o ‘if but only if’ it falls within a specific statutory permission, or a ‘gateway’ as the courts commonly say, in s. 101(a) to (g).

o Other evidence which does not constitute evidence of bad character within the meaning of the Act, but which nevertheless shows the accused in a bad light, may be admitted on normal principles of relevance, subject to the application of the PACE 1984, s. 78

Question 2

CJA 2003

s. 98 References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

Answer 2

(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

Question 3

‘Misconduct’ means

Answer 3

the commission of an offence; OR

other reprehensible behaviour

Question 4

Independent reason

Answer 4

Clarke: evidence that implies bad character does not have to be the subject of an application under s. 101 if P rely on it for independent reasons

Question 5

Independent reasons

it may not be possible to rely on such evidence without the bad character coming to light

Answer 5

Therefore requiring the application of s. 101 may be better

Question 6

Where D has been convicted of an offence that is admitted to show bad character, guilt of that offence is =

Answer 6

presumed unless the contrary is proved

Question 7

Where D has not been convicted, and disputes the evidence alleged to demonstrate bad character, =

Answer 7

the jury should be directed that they should not reason from the proposition that D is of bad character unless the character is proved to the criminal standard

Question 8

Particularly careful directions will therefore be required in all cases where the character evidence is in dispute, although a failure to give a specific direction does not necessarily render a conviction unsafe

Question 9

The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence and, as to evidence to show propensity.

Answer 9

Where convictions are relied upon, it is likely that the value of the evidence will depend on the proof of the circumstances of the offence, not merely upon the actual previous conviction and the matters formally established thereby, and such circumstances will require to be properly proved

Question 10

Can evidence of previous convictions just be shown through the giving of evidence by a police officer based on data held on the Police National Computer ?

Answer 10

NO!

THIS WAS HELD TO BE AN inappropriate way to settle a dispute between P and D

Question 11

does the provisions of CJA 2003, 101 apply to cautions?

Answer 11

YES!

Question 12

Does offences occurring subsequent to the offence charged be admissible?

Answer 12

yes

previous convictions include this

THIS ALSO INCLUDES = evidence of propensity exhibited after the offence, provided that the propensity is one that might be expected to be continuing.

Question 13

Convictions before a foreign court may be adduced as evidence of bad character under the CJA 2003 if a corresponding offence in England and Wales would be so treated

Answer 13

Correspondence is assessed by looking for an equivalent offence in domestic law at the time of the trial for the current offence.

Question 14

SO bad character may be shown by any of the following

Answer 14

a) pre-cons in the UK

b) pre-cons in foreign court

c) cautions

d) acquittals, where P contends that in fact D was guilty of previous offence of which he was acquitted

e) agreed facts that amount to reprehensible behaviour

f) witness evidence of a reputation for reprehensible behaviour

Question 15

“Misconduct” defined in s112: the ‘
(a) commission of an offence OR
(b) other reprehensible behaviour’.

Reprehensible Behaviour =

from case-law

Answer 15

“Some degree of moral blameworthiness or culpability”.

Behaviour is not necessarily reprehensible just because it is morally lax.

Whether behaviour is reprehensible is fact-specific.

Eg, instigation of a sexual relationship by a man in his 30s with a 16-yr-old girl was not ‘reprehensible’. Was relevant so was admissible

What is ‘reprehensible’ is to be distinguished from what is irritating/inconvenient/upsetting to another

Violent rap lyrics written by D were regarded as ‘reprehensible’.

o Evidence of membership of a gang = evidence of reprehensible behaviour.

Question 16

‘Has to do with’ Alleged Facts

Answer 16

Cannot be given an entirely literal construction, as in a broad sense all evidence (including bad character) ‘has to do with’ the facts.

S98 clearly anticipates a ‘nexus’ between the evidence of misconduct and the alleged offending.

Where it is necessary as part of the prosecution case to prove criminal conduct by D or another, evidence of that conduct will fall outside s98.

McNeill: ‘anything directly relevant to the offence charged’, which is ‘contemporaneous with and closely associated with its alleged facts’.

Question 17

‘Has to do with’ Alleged Facts

The Commission of a difference offence that occurs at or about the time/as part of the same incident of the offence charged may fall
within this clause.

Answer 17

Eg, Brand: B retried for kidnap and rape; his conviction at first trial for stealing the handbag of the victim as part of the same incident was admissible under s98(a).

Question 18

‘Has to do with’ Alleged Facts: does this apply to the actus reus?

Answer 18

The words ‘has to do with’ the offence charged does not apply to the Actus Reus of the offence.
o EGs: offences of driving while disqualified where prosecution will have to prove that D committed an earlier offence and was
disqualified as a result.
o Eg, cases of riot or violent disorder, where Pros has to prove that a minimum number of persons were involved = proof that others
were involved is not bad character evidence, as it relates to those
persons.

Question 19

Link between misconduct and alleged facts: ‘Has to do with’ Alleged Facts

Answer 19

Must be some connection (‘nexus’) between the misconduct and the alleged offence: the nexus could be a temporal connection, but
could be a different nexus. There is not necessarily a temporal requirement of being contemporaneous.

o Eg A’s convictions re attempted murder of other members of the rival gang in the period leading up to the murder  admissible
under s98(a).

o Eg a gang murder, conviction of 1 participant for carrying a knife at time of an earlier killing was admissible under s98(a).

Question 20

the court should not permit a matter to be raised unless it is demonstrably relevant.

Answer 20

The mere fact that an allegation has been made, without supporting evidence, will not normally be relevant either to guilt or to the credibility of the accused as a witness

Question 21

Evidence of a previous acquittal is unlikely to be of relevance

EXCEPT:

Answer 21

where it is contended that the accused committed the offence, in which case it is likely to be objectionable on grounds of unfairness.

Question 22

SEVEN gateways through which D bad character evidence can be admissible.
In s101(1)(a-g) CJA 2003.

Question 23

MNEMONIC to help remember the gateways

Answer 23

a) Agreement
b) Blurts it out
c) Context
d) Done it before (or after)
e) ‘E done it
f) False Impression
g) Gets at the witness

Question 24

CRIMINAL JUSTICE ACT 2003, s. 100: GATEWAYS TO ADMISSIBILITY

[THE LAW]

Answer 24

Criminal Justice Act 2003, s. 100
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
c) all parties to the proceedings agree to the evidence being admissible. … (4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.

Question 25

Section 100 regulates all aspects of the use of the bad character of a person other than the accused

SO NON-DEFENDANT

Answer 25

Only admissible in restricted circumstances.

Leave of court required unless all parties agree.

Question 26

S100: there are four important features of the test for admissibility under s. 100

Answer 26

(1) The test of ‘substantial probative value’ is not the same as the test for gateway (d) of s. 101 where evidence of the bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance. It is, however, the same as the test that appears in gateway (e) where evidence is tendered by one co-accused against another.

(2) If the conditions of s. 100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence.

(3) Except where the parties agree to admit the evidence, the leave of the court is always required.

(4) Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion

Question 27

That there is no discretion to exclude defence evidence under s. 100 on grounds of fairness

Answer 27

(1) Evidence tendered by the prosecution is of course subject to exclusion under the PACE 1984, s. 78

(2) may be unlikely, once the high standard of probative value required by s. 100 is found to have been met, that it will be unfair to admit the evidence, but it is not impossible

Question 28

S.100

Important Explanatory Evidence

Answer 28

• A similar gateway for explanatory evidence is to be found also in relation to the bad character of the accused (s. 101(1)(c))
• the gateway is inapplicable if the evidence is readily understandable without evidence of bad character and the jury require no ‘footnote or lexicon’

+ must also satisfy the further condition in s. 100(1)(b) that its value for understanding the case as a whole must be ‘substantial’

Question 29

S.100

Important Explanatory Evidence
Examples of substantial

Answer 29

EXAMPLES:

(1) a case involving the abuse by one person of another over a long period of time. ‘For the jury to understand properly the victim’s account of the offending and why they did not seek help from, for example, a parent or other guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person’

(2) Miller
where it was said that bad character evidence that might expose a key witness’s motive to lie would be capable of being important explanatory evidence

Question 30

Meaning of ‘Substantial’

Under the CJA 2003, s. 100(1)(b)

the trial judge must consider two essential questions:

Answer 30

(1) whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, AND

(2) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings.

Question 31

S.100

Important Explanatory Evidence needs

(1) Evidence should NOT be readily understandable without evidence of bad character and the jury require no ‘footnote or lexicon’

(2) must be ‘substantial’

Question 32

Meaning of ‘Substantial’

Under the CJA 2003, s. 100(1)(b)

the trial judge must consider two essential questions:

Answer 32

(1) whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, AND

(2) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings.

Question 33

In applications under s. 100(1)(b) =

Answer 33

the issue to which the evidence relates will usually, though not always, be either:

the propensity, or credibility, of the person of bad character

Question 34

S100

Where evidence of propensity is adduced by the defence, this does not entail proof of that propensity to the criminal standard.

Answer 34

• In Labinjo-Halcrow:
• D claimed to have no recollection of killing V, but relied on self-defence based on V’s previous violence towards her.
• The jury were incorrectly directed that it was for D to make them ‘sure’ of V’s previous misconduct

Question 35

s,100
The inclusion of the word “substantial” probative value:

Answer 35

(1) The assessment of this relates to the force of the evidence

(2) Is a highly fact-sensitive question; it must take into account the context of the case as a whole.

(3) may be appropriate to consider whether it adds significantly to other more probative evidence in the case

(4) Particularly where the evidence consists of unproven allegations going to a witness’s credibility where it has already been decided that the jury will be told of his pre-cons under s100.

Question 36

Matters Relevant to Assessment of Probative Value

List of factors which court must have regard to; non-exhaustive list:

[CASE LAW]

Answer 36

(a) the nature and number of the events, or other things, to which the evidence relates;

(b) when those events/things are alleged to have happened or existed;

(c) where:

(i) the evidence is evidence of a person’s misconduct; AND

(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct;
= the nature and extent of the similarities and
dissimilarities between each of the alleged instances of misconduct;

(d) where:

(i) the evidence is evidence of a person’s misconduct;
(ii) it is suggested that that person is also responsible for the misconduct charged; AND

(iii) the identity of the person responsible for misconducted charged is disputed

= the extent to which the evidence shows, or tends to show, that the same person was responsible each time

Question 37

s100
Whether convictions have probative value depends principally on:

Answer 37

their nature, number and age.

The more serious the misconduct; and the greater the number of instances =
likely stronger probative value.

Question 38

evidence of misconduct occurring many years ago is usually likely to have less probative value than more recent misconduct =

Answer 38

although very serious misconduct in the past may well have a stronger probative force than recent but comparatively minor misconduct

Recent misconduct is likely to have greater probative value than misconduct long ago.

Question 39

s100

Factors in (c) and (d) are most likely relevant where:

Answer 39

the bad character evidence is said to be of probative value having regard to the similarity of the offence charged, in support of an argument that a person other than the
accused committed the offence charged.

[case law]

• One such case was Mohammed [2021] EWCA Crim 201, in which the sexual assaults of which D had been convicted were said to have been perpetrated by a third party who had committed other similar assaults in the vicinity. A mobile phone had been found at the scene of one of the offences of which D was convicted, which V thought might have been used in the assault to simulate a metal weapon. DNA on the phone was later matched to S, who fitted the description of the attacker, and the Court of Appeal admitted this as fresh evidence together with evidence of S’s bad character. Although the latter related only to a caution for an act outraging public decency, there were links to the sexual offences that helped to rebut the coincidence that S had innocently dropped his mobile phone at the scene for it to be put to use by D. Although S’s caution was not of itself determinative of his guilt, it was of substantial probative value and further ‘grist to the mill’ of the appeal.
• As to the relevance of the criteria in s. 100 to applications made under the similarly worded

Question 40

s100
Where it is alleged that the non-defendant committed the offence charged =

Answer 40

the similarity of the past misconduct to the facts of the current offence will be important.

Question 41

s100
Substantial Probative Value in Relation to Issues Other than Credibility

A frequently recurring issue in the case law concerns the admissibility of bad character evidence to support a defence that either the victim or a third party was the aggressor in a crime of violence

Answer 41

• Substantial probative value may be established where, for example, an accused is charged with an offence of violence and claims self-defence, and there is a previous instance of violence by the complainant towards the accused using a weapon
• Similar issues arise where an accused suggests that a complainant’s injuries may have been caused by a third party

Question 42

s100
Substantial Probative Value in Relation to Issues Other than Credibility

A frequently recurring issue in the case law concerns the admissibility of bad character evidence to support a defence that either the victim or a third party was the aggressor in a crime of violence
[CASE LAW]

Answer 42

• In Francis:
• the old conviction of one complainant for street-fighting and a warning for assault given to another were properly excluded in relation to the issue of whether they were the aggressors in the cas
• in Khan (Idres)
• where the defence to unlawful wounding included self-defence,
• COA held that the trial judge was ‘quite right’ to reject as evidence under s. 100 a statement by a person who was not called to testify that V was a trouble-maker and a drunk.
• In Paine
• it was accepted that an alleged victim’s previous violence might in principle be admissible even if the only issue is D’s intention, for example where the defence is one of instinctive reaction to V’s aggression
• In AB
• evidence that the deceased was a regular cannabis user was admitted at D’s trial for stabbing him to death, and it appears to have been relevant both in relation to D’s claim that he was acting in self-defence and as a matter affecting the credibility of the deceased’s statements as to the cause of his injuriesSimilar issues arise where an accused suggests that a complainant’s injuries may have been caused by a third party
• In Alyson
• D contended that the complainant might have been subjected to violence by other persons as a result of her involvement with drug dealing
• D contended that the complainant might have been subjected to violence by other persons as a result of her involvement with drug dealing

Question 43

s100
Substantial Probative Value in Relation to Credibility

The creditworthiness of a witness is clearly capable of being a matter in issue of substantial importance in the context of the case as a whole

Answer 43

Brewster = COA considered that the evidence of bad character that might qualify as being of substantial probative value in relation to credit was of two types:

(1) evidence that is relevant directly, as providing a reason for doubting the truth of the evidence of the witness in the particular case; AND

(2) evidence which is relevant only indirectly, as providing a general reason for suggesting that the witness was a person not to be trusted

Question 44

SEVEN gateways through which D bad character evidence can be admissible.

In s101(1)(a-g) CJA 2003.

Question 45

s101(1)(a) AGREEMENT of the parties

[[‘Agreement’]]

Answer 45

S101(1)(a): all parties to the proceedings agree to the evidence being admissible

Question 46

s101(1)(a) AGREEMENT of the parties

How is the agreement done?

Answer 46

There are no formal requirements as to the recording of the agreement or how it is reached.

Question 47

s101(1)(a) AGREEMENT of the parties

When should the court be informed?

Answer 47

the court should be informed of any agreement to admit bad character evidence

!at the beginning of the trial!

Question 48

s101(1)(a) Agreement

Where there are multiple defendants, is consent from one sufficient?

Answer 48

NO!

consent of all must be secured

Question 48

s101(1)(a) AGREEMENT of the parties: what about in a case of public interest immunity?

Answer 48

the mere fact of agreement, though sufficient to overcome an objection based on bad character did not justify putting in evidence documents subject to public interest immunity disclosed for the purpose of cross-examination of prosecution witnesses, for which a further order would have been required.

Question 49

s101(1)(b): Evidence adduced by the Defendant

‘Blurts it out’

[the law]

Answer 49

S101(1)(b): The evidence is adduced by the Defendant himself or is given in
answer to a question asked by him in cross-examination and intended to
elicit it’

Question 50

s101(1)(b): Evidence adduced by the Defendant

This is where

Answer 50

D elects to tender evidence of his own bad character

Question 51

s101(1)(b): Evidence adduced by the Defendant

Why would D want to do this?

Answer 51

(1) To come clean about an old conviction in order to receive a modified good character direction.

(2) To show that he has never been convicted of an offence of the type with which he is now charged
- NB, Hunter: rules re good character; anyone with a subsisting and relevant conviction is unlikely to receive a full good character direction.

However, the argument that an accused’s conviction are of a different type may still be relevant;
- And may contend that where he has previously pleaded guilty and admitted liability, D’s decision to contest the instant
charge may be some evidence of his innocence.
- Hunter permits a modified good character direction (weaved with bad character direction) in the judge’s discretion in
such cases, which will be tailored to the specific facts.
- So can get a mixed direction from judge, referencing the negative impact on credibility of D’s record.

(3) To put forward a defence (eg that he was in prison at the time of the
alleged offence)

(4) To show why police officers might have a bias against him

Question 52

s101(1)(b): Evidence adduced by the Defendant

Where evidence of relatively minor bad character is tendered to prevent the jury from speculating that it is worse than it is

=

Answer 52

Judge should direct that the evidence has been admitted only so that they know of the whole background and, if appropriate, that the evidence does not make it more or
less likely that D committed the offence.

Question 53

s101(1)(b): Evidence adduced by the Defendant

Is the leave of the court required to adduce evidence through this gateway?

Answer 53

NO!

Question 54

s101(1)(c) Important explanatory evidence

defined in s102=

Answer 54

For purposes of s101(1)(c), evidence is important explanatory evidence IF:

o (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; AND

o (b) its value for understanding the case as a whole is substantial.

Question 55

s101(1)(c) Important explanatory evidence

It may be necessary to give evidence of the background against which the offence charged is committed, even though to do so will reveal facts showing D in a discreditable light

Answer 55

i.e. where necessary to understand the
offence/provide background/context.

Where it would be impossible or difficult for the jury to understand the other evidence without the background info.

Question 56

s101(1)(c) Important explanatory evidence

What about where the evidence requires no ‘footnote or lexicon’ but is readily understandable without evidence of bad character?

Answer 56

gateway (c) will not apply. i.e. if the issue is entirely comprehensible without evidence of bad character, it is not admissible.

Question 57

s101(1)(c) Important explanatory evidence

The bad character evidence may be incidental to the offence charged

Answer 57

o Eg, where offence was arson of a hostel for offenders; the explanatory evidence showed that D was an inmate.

Question 58

s101(1)(c) Important explanatory evidence

The bad character evidence may constitute a relevant part of the background of the offence

Answer 58

eg evidence of sexual abuse and domination of the complainant by D during her childhood was necessary to explain why her apparent compliance in a sexual relationship with him after her sixteenth birthday should not be regarded as indicating her genuine consent.

Question 59

s101(1)(c) Important explanatory evidence

explanatory value IS NOT probative value

Answer 59

Explanatory evidence should be carefully scrutinised to ensure it does not
become a backdoor method of smuggling in prejudicial evidence of propensity: relevant propensity evidence should be admitted through s101(1)(d)

So important to distinguish between explanatory evidence (gateway (c)); and evidence of propensity (gateway (d)).

Question 60

s101(1)(c) Important explanatory evidence

Often, the evidence will be to show the previous relationship between people involved in the trial, without which it would be impossible to understand the narrative put forward by the prosecution.

Question 61

s101(1)(c) Important explanatory evidence

If admitted, explanatory evidence may require a particularly careful direction

Answer 61

eg to highlight separate functions of background evidence, and other evidence of accused’s record which went to propensity.

o Evidence may be admissible under gateway (c) and (d).

o Directions should make clear how jury should focus their attention on the use they make of admitted bad character evidence.

o Same evidence could be admissible as ‘explanatory’ evidence under (c) and as evidence of propensity under (d). Directions should be given.

Question 62

s101(1)

Where explanatory evidence is admitted, it may be fairest ..

Answer 62

to present it in the form of an agreed statement of facts, for the avoidance of prejudice and to prevent the distraction of the jury

Question 63

s101(1)(d) Important matter in issue between the Defendant and Prosecution

What is the definition of “Important matter”?

Answer 63

= a matter of substantial importance in the
context of the case as a whole.

Question 64

Criminal Justice Act 2003: Admissibility under s. 101(1)(d)
[THE LAW]

Answer 64

Criminal Justice Act 2003, s. 101
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— …
(d) it is relevant to an important matter in issue between the defendant and the prosecution

• The key provision in s. 101(1)(d) is supplemented by s. 103, which fleshes out both the issues to which the provision may apply and the type of evidence that may be rendered admissible thereunder.

Question 65

(1) For the purposes of s101(1)(d) the ‘matters in issue’ between D and P include:

Answer 65

(a) the question whether D has a PROPENSITY TO COMMIT offences of the KIND with which he is charged,

EXCEPT where his having such a propensity makes it no more likely that he is guilty of the offence;

(b) The question whether D has a PROPENSITY TO BE UNTRUTHFUL, EXCEPT where it is not suggested that D’s case is untruthful in any respect.

Question 66

(1) For the purposes of s101(1)(d)

(2) Where (1)(a) applies, a D’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other
way of doing so) be established by evidence that he has been convicted of:

Answer 66

(a) an offence of the SAME DESCRIPTION as the one with which he is charged; OR

(b) an offence of the SAME CATEGORY as the one with which he is charged

Question 67

(1) For the purposes of s101(1)(d)

o (3) Subsection (2) [pre-cons of same description/category] does not apply in the case of a particular defendant if the court is satisfied, by the reason of the length of time since the conviction or for any other reason, that it would be UNJUST for it to apply in his case.

(4) For the purposes of subsection (2):

 (a) two offences are of the same description as each other IF the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b) Two offences are of the same category as each other if they belong to the same category of offences for the purposes of this
section by an order made by the Secretary of State

Question 68

Which party evidence is admissible under
s101(1)(d)?

Answer 68

ONLY PROSECUTION EVIDENCE

Question 69

s101(1)(d): threshold for admitting an accused’s bad character is satisfied if the evidence is =

Answer 69

merely relevant to an important issue between the prosecution and the defence

Provided the evidence is so relevant, the court’s power to exclude evidence under s. 101(3) is now the focal point of cases where evidence of bad character is tendered under s. 101(1)(d) and objected to by the defence.

Question 70

s101(1)(d):

is a foreign conviction admissible?

Answer 70

YES

Question 71

S101(1)(d): can acquittals be used as evidence?

Answer 71

NO!
RARELY acquittals could be used as evidence by prosecution where P contends that D was guilty despite acquittal.

Question 72

s101(1)(d)

Where evidence is admitted=

Answer 72

(1) the accused’s protection from unfairness lies in the direction to be given by the trial judge

(2) An appeal court is unlikely to interfere unless the judge’s judgement as to the capacity of prior events to establish propensity is plainly wrong or the judge’s discretion has been exercised unreasonably in the Wednesbury sense

Question 73

s101(1)(d)

Propensity as an Issue

Propensity to commit offences ‘of the kind charged’ is taken to be an issue between the defence and the prosecution except…

Answer 73

where it makes it no more likely that the accused is guilty

Question 74

s101(1)(d)

propensity to untruthfulness is to be so taken unless …

Answer 74

it is not suggested that the accused’s case is untruthful in any respect

Question 75

the bad character must still be relevant to an “important” issue’! [CASE LAW]

Answer 75

In Bullen,
- D’s long history for offences of violence was relevant to the anticipated defence of self-defence to murder
- but, when D admitted manslaughter and relied on his intoxication in relation to the murder, the propensity either no longer made it more likely that D committed the offence charged or, if it did,
- it would have been unfair to rely on convictions that did not throw any light on the sole remaining issue of intention.

In Goddard [2012]
-in which prejudicial evidence of their sexual interest in young boys was admitted at the trial of the two accused, despite the fact that the interest had been clearly admitted, and there was no adequate consideration of the relevance of the evidence to any disputed issue; it was held that the evidence should have been excluded.

In Samuel
- the prosecution needed to prove a specific intent on the part of the intoxicated D to commit really serious injury on his much smaller partner by punching her.
- D’s conviction was upheld, but the Court of Appeal held that his previous beatings of her should not have been admitted, because the force used was not such as to demonstrate an intent to cause serious injury, so they lacked the necessary relevance.

• In determining the relevance of propensity, a trial judge is not to be restricted by the detail of individual eyewitness accounts but should assess the evidence globally (CN [2020] in which D,
• charged with murder as a secondary party,
• challenged the relevance of previous convictions for carrying a knife on the basis that no eyewitness had attested to seeing anyone other than the principal offender using one during the murder,
• but there was scientific evidence to support the use of more than one knife and the judge was entitled to have regard to that when ruling on admissibility).

Question 76

Where propensity is relevant, no additional hurdle is imposed requiring other evidence to support the matter, though the absence of such evidence may bear on the question of discretionary exclusioN

Question 77

Propensity
The nature of the defence may be such as to render propensity evidence admissible

Answer 77

eg
evidence of propensity to use excessive violence against family members ADMITTED to rebut D’s suggestion/defence that he had not behaved unreasonably (re ‘reasonable chastisement’ defence).

Question 78

R v Hanson & others: whether evidence of bad character does establish propensity to commit offences of the kind. The following questions should be posed when an application to admit bad character to show propensity is made:

The steps which must be followed by the trial judge in determining the use which may be made of evidence of propensity consisting of convictions under s. 101(1)(d) were spelled out in detail in Hanson [2005]

In brief these flow as follows:

Answer 78

(1) Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
(2) If so, does the propensity make it more likely that the defendant committed the crime charged?
(3) Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))?

Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence?

Question 79

Demonstrating Propensity (Hanson):

Principles

Answer 79

(1) one previous event if sufficiently probative, as, for example, where the behaviour is ‘strikingly similar’

(2) Where the probative value of a range of convictions is properly evaluated by the judge, there is no reason why they cannot be tendered for their cumulative effect

(3) Factors re whether establishes propensity to commit offences of the same kind: how similar/dissimilar the circumstances; any
distinctive shared features; type of offence etc

Question 80

• In cases where a jury may have difficulty disentangling the relevance of the evidence, a careful direction will be needed

Answer 80

Norris [2013], where the judge provided very clear guidance to the jury that propensity evidence pointing to D’s racist attitudes was relevant only once they had concluded, in reliance on the scientific evidence in the case, that he had been correctly identified as a participant in a murder: at that point, it was relevant to his own state of mind and his awareness of the intentions of others in the group)

Question 81

Signature evidence:

Where the facts of pre-cons are so unusual as to constitute a ‘signature’ of the offender’s mode of offending (unusual features/striking similarity): the propensity itself is likely to be very powerful evidence against D. In such cases, the bad character evidence may
support a conviction with very little other evidence to convince of guilt.

Answer 81

If strikingly similar, a single pre-con might be enough to show propensity.

o In pre-2003 case law these were termed “striking similarity” cases:

o eg Straffen: trial for murder of a young girl by strangulation; evidence adduced of 2 previous convictions of similar offences; all three offences had unusual feature of no attempt at sexual assault and no attempt to conceal the body. The only additional evidence against D was that he was in the area and he had recently been released from
Broadmoor psychiatric hospital.

o Eg Mullen: M’s distinctive use of a blow-torch to crack glass to enter and burgle premises.

o In such a case (evidence amounts to a signature/hallmark) = it is NOT necessary for judge to give the usual warning not to convict
solely or mainly on evidence of bad character

Question 82

Bad character evidence can support Identification without necessarily amounting to ‘signature evidence’:

Answer 82

o Eg propensity to commit such type of offences could support disputed Identifications.

Eg if a strange coincidence that they had been wrongly identified.

o Eg evidence making it more likely that D was a member of a group prepared to use guns.

o Eg identifying property (eg guns & drugs ) belonging to an accused; could adduce evidence showing that D was a member of a
local criminal gung which carried firearms and were involved in drug crime.

Question 83

101(1)(d) Gangs

Answer 83

Evidence going to show gang membership or affiliation is frequently deployed as evidence under s. 101(1)(d) to link the accused to the commission of a specific offence

Case example:

In Smith (Dean Martin)
- ‘compelling’ evidence that D was part of a gang who had shot four men, killing one of them, was supplemented by evidence of his conviction for attempted murder by shooting. - This was held to make it more likely that he was a member of a group prepared to use guns.

• Smith was applied to the identification of property as belonging to an accused in Elliott [2010]
• Guns and drugs were found in a store cupboard outside D’s home. To rebut a suggestion that the items were deposited by others, the prosecution adduced evidence to show that D was a member of a local criminal gang, which was involved in drug crime and the carrying or use of firearms.
• The Court of Appeal held that the evidence ‘was plainly capable’ of assisting the jury in resolving the disputed issue

Question 84

Bad character may also be relevant (and therefore admissible) to support identification without any similarity between the past and present offences

Answer 84

Case:

where the fact that a robber, identified as D, had asked for ‘coke’ was sufficient to admit D’s previous convictions for cocaine-related offences.

Question 85

s101(1)(d)

Section 112(2) of the CJA 2003 provides that, where an accused faces multiple charges in the same proceedings, the ‘bad character’ provisions apply as if each was charged in separate proceedings: in other words a ‘gateway’ is required to facilitate cross-admissibility between charges in the same proceedings in exactly the same way as where only one offence is charged.

Answer 85

• Where an accused faces more than one charge of a similar nature or where evidence of similar allegations is tendered in support of one charge, the evidence of one accuser may be admissible to support the evidence of another.
• Where no application to make use of the evidence in this way is made, the accused is entitled to have the case decided on the ground that the evidence is inadmissible, and the judge should direct the jury to that effect, and it was said to be unlikely that the standard direction to treat allegations separately would suffice

Question 86

Multiple Charges and Accusations under the Criminal Justice Act 2003, s. 101(1)(d)

The principles to be applied to cases of this kind do not differ materially from those applicable where evidence of bad character is used to rebut an explanation otherwise open to the accused

Answer 86

indeed, the function of evidence of multiple accusers is often to rebut such an explanation.

Separate exposition is helpful, however, in order to bring out the special problems of collusion that have arisen under this heading.

The Act is also constructed in such a way as to anticipate the special problems arising out of contamination of evidence by matters other than collusion

Question 87

Acquittals: Special Considerations

On rare occasions the prosecution contend that D has been guilty of past relevant misconduct despite having been acquitted by another court in respect of that conduct.

(s100(1)(d))

Answer 87

(1) Under the CJA 2003, as at common law, the prosecution would be adducing evidence of ‘bad character’, despite the acquittal, because the contention is that the accused had been guilty of misconduct on the previous occasion, even though no attempt is made to impose any penalty for it

Question 88

(s100(1)(d))

• use of evidence of acquittal

Answer 88

was at one time thought to be objectionable under the double jeopardy rule, until the decision of the House of Lords in Z [2000]

Question 89

use of evidence of acquittal for bad character

what for P need to show?

Answer 89

The evidence would be admissible IF Pros
could show its relevant to an important issue under gateway (d)

=accused would then contend for the discretionary exclusion based on fairness in s101(3)

The double jeopardy rule is not transgressed as long as the prosecutor does not seek to have D punished for the previous offences

Question 90

What can D do when P is trying to adduce evidence of acquittal for bad character?

Answer 90

Defence may seek to exclude such evidence under s101(3) [Fairness test] or s78 PACE (if Pros is using a gateway other than (d or (g) where s101(3) does not apply).

Question 91

Case of Z: acquittal used for evidence of bad character

Answer 91

Z: (rape case, defence was consent); was permissible for Pros to rely on 4 previous rape allegations where the same defence was used, 3 of which resulted in acquittals, to show that Z had a propensity to rape and to assert that consensual intercourse had taken place. All 4 previous complainants were allowed to give evidence and the jury
were entitled to assess their credibility, regardless of the verdicts reached in the previous trials.

Question 92

S101(1)(e): Substantial probative value re important matter in issue between the defendant and a co-defendant [“ ‘E Done it “]

Answer 92

Allows a co-accused to adduce evidence of D’s bad character where it has substantial value re an important issue between them.

Question 93

What is the test?

S101(1)(e)

Answer 93

S101(1)(e): ‘it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’

Question 94

s101(1)(e)

Where the evidence is of one D’s propensity to be Untruthful:

= evidence can be adduced only if the nature/conduct of the defence is such as to
undermine the co-defendant’s defence

Answer 94

Effect of s104: evidence of the co-defendant’s propensity to be untruthful is only admissible where the nature of his defence is as
to undermine the defence of the co-defendant that seeks to adduce the evidence

Question 95

s101(1)(e) Otherwise (where the evidence of propensity is not directed to untruthfulness), but instead to the commission of the offence

=

Answer 95

(e) permits propensity evidence to be adduced against an accused by a co-accused whatever the nature of the defence, provided it is of ‘substantial probative value’ (this will
frequently occur because one blames the other).

Question 96

s101(e)
“Important matter in issue”

Answer 96

of substantial importance in the context of
the case as a whole (s112).

Question 97

S101(1)(e) – is denial of participation by a co-accused enough?

Answer 97

NO
The mere denial by a co-accused of participation in a crime does NOT meet the terms of s101

but, if it is a necessary implication of the denial that another accused has committed the offence, s. 101(1)(e) comes into play between them

Question 98

Case law about denial – s101(1)(e)

Answer 98

• In Phillips,
• D1 and his co-accused, D2, were charged with cheating the revenue.
• Although neither was directly arguing that the other had committed the offence, both were impliedly doing so because the only logical consequence was that the offence must have been committed by the other defendant.
• Fanta [2021]
• gateway (e) was applicable where the thrust of the defence advanced by both co-accused was that the other had acted alone in relation to the distraction burglary with which both were charged.
• This was enough to raise an important issue between them, even though it was a possible interpretation that they had been acting in concert as the prosecution alleged.

Question 99

Where defendants are not facing a joint charge and there is not a cut-throat defence

Answer 99

Held to be be particularly important to ascertain the fact in issue between the defendants and that it is truly an important one

Question 100

In relation to the CJA 2003, s. 101(1)(d), the matters in issue between the prosecution and defence are deemed to include the accused’s propensity

Answer 100

No such provision applies to gateway (e), therefore the propensity of the co-accused to commit an offence of the type charged can only become admissible if it is genuinely a fact in issue between them at the trial (Phillips; Daly).

Question 101

S101(1)(f): Correcting a false impression

Answer 101

‘it is evidence to correct a false impression given by the Defendant’.

Question 102

(1) For the purposes of s101(1)(f)

Answer 102

(a) the D gives a false impression IF he is “responsible for the making of an express or implied assertion” which is “apt to give the court or jury false or misleading impression” about D; o

(b) evidence to correct such an impression is evidence which has ‘probative value’ in correcting it

Question 103

s101(1)(f)

(2) A D is treated as being ‘responsible’ for the making of an assertion IF:

Answer 103

(a) the assertion is made by the D in the proceedings (whether or not in evidence given by him);
(b) the assertion was made by the D:
(i) on being questioned under caution, before charge, about the offence with which he is charged; OR
(ii) on being charged with the offence or officially informed that he might be prosecution for it; AND:
- evidence of the assertion is given in the proceedings.

(c) the assertion is made by a witness called by D;
(d) the assertion is made by any witness in XX in response to a question asked by D intended to elicit it, or is likely to do so;
(e) the assertion was made by any person out of court, and the D adduces evidence of it in the proceedings.

Question 104

s101(1)(f)

(2) A D is treated as being ‘responsible’ for the making of an assertion IF:

Answer 104

(a) the assertion is made by the D in the proceedings (whether or not in evidence given by him);
(b) the assertion was made by the D:
(i) on being questioned under caution, before charge, about the offence with which he is charged; OR
(ii) on being charged with the offence or officially informed that he might be prosecution for it; AND:
- evidence of the assertion is given in the proceedings.

(c) the assertion is made by a witness called by D;
(d) the assertion is made by any witness in XX in response to a question asked by D intended to elicit it, or is likely to do so;
(e) the assertion was made by any person out of court, and the D adduces evidence of it in the proceedings.

Question 105

s101(1)(f)

(4) Where it appears to the court that a D, by means of his conduct (other than giving of evidence) in the proceedings, is seeking to give the court/jury an impression about himself that is false/misleading =

Answer 105

the court MAY, if it appears just to do so, treat the D as being responsible for the making of an assertion which is apt to give that impression.

Question 106

s101(1)(f)

(5) In (4), “Conduct” includes appearance or dress.

Question 107

s101(1)(f)

(6) Evidence is admissible under 101(1)(f) ONLY IF it goes no further…

Answer 107

than necessary to correct the false impression (this goes against the general
doctrine that evidence, once admitted, is admissible for all purposes to which it is relevant).

Question 108

(7) ONLY PROSECUTION evidence is admissible under (f).

Answer 108

[i.e. doesn’t apply for co-accused adducing evidence, that would be gateway (e)

Question 109

s101(1)(f) - is the leave of court required?

Answer 109

YES

LEAVE OF THE COURT is required to admit evidence through (f)

Question 110

By s. 105(1)(a) an impression may be false for this purpose if it is misleading, notwithstanding that it is also true

Answer 110

Gateway (f ) should not be over-used, and requires careful analysis of the specific assertion the accused has made that is alleged to be false

Question 111

Under ss. 101(1)(f ) and 105, evidence of bad character is admissible provided only that it has =

Answer 111

‘probative value’ in correcting the false impression

Question 112

S.101(1)(f) - CJA applies irrespective of whether witnesses are specifically called as to
good character

+ whether or not the accused elects to give evidence on his own behalf

Answer 112

Evidence admitted under (f) potentially goes towards correcting the false impression in a manner indicative of guilt, not only the credit to be given to any testimony the accused gives.

Question 113

S105(2)(b) where the D made misleading assertions during questioning or when charged, and these are subsequently given in evidence in the proceedings =

Answer 113

these constitute ‘assertions’ for purposes of (f) and may result in use of evidence to correct any false impression given.

Question 114

It is possible for (f) to have effect even where it is the prosecution that adduces the evidence that creates a false impression;

where the P are responsible for placing the original assertion the court

Answer 114

o Eg where D says in his police interview ‘I have never acted dishonestly’, and Pros adduces evidence of what was said in the
interview =

(f) allows the prosecution to adduce evidence of pre-cons for offences of dishonesty to correct the false impression given in interview.

Question 115

101(1)(f)

Re s105(3)whether accused has withdrawn or dissociated himself from a false impression =

Answer 115

there is a difference between making a positive decision to correct such an impression; and being driven in XX to concede its falsity.

there is a difference between making a positive decision to correct such an impression; and being driven in XX to concede its falsity.

Question 115

101(1)(f)

An accused cannot expect that answers at questions to interview that are admissible to correct a false impression should be edited out to prevent unfairness.

Question 116

The CJA 2003, s. 101(1)(g)

‘Attack on Another Person’s Character’

Answer 116

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

Question 117

S106:

(1) for purposes of 101(1)(g), A D ‘makes an attack on another person’s character’ IF:

Answer 117

o (a) he adduces evidence attacking the other person’s character;

o (b) he asks questions in XX that are intended to elicit such evidence, or are likely to do so; OR

o (c) evidence is given of an imputation about the other person made by the Defendant:

(i) on being questioned under caution, before charge, about the offence with which he is charged; or

(ii) on being charged with the offence or officially informed that he might be prosecuted for it.

Question 118

S101(1)(g)

(2) In subsection (1), ‘evidence attacking the other person’s character’ MEANS: evidence to the effect that the other person:

Answer 118

o (a) has committed an offence (whether a different offence from the one with which D is charged or the some one); OR

o (b) has behaved, or is disposed to behave, in a reprehensible way;

o And “imputation about the person other” means an assertion to that effect.

Question 119

S101(1)(g)

which party can adduce such evidence?

Answer 119

ONLY PROSECUTION EVIDENCE is admissible under (g)

Question 120

this gateway can be used to admit evidence of ‘DISHONESTY’ (not just a propensity to be untruthful, as with (d), (d) does not allow evidence of dishonesty):

Answer 120

o Because:
o the purpose of (g) is to allow the jury to assess how likely it is that the attack on the other person’s character is true.

o In assessing this, the jury are entitled to know the character of the person who makes the allegation

Question 121

g) is triggered where an attack is made on any person, living or dead.

Answer 121

o It is NOT relevant whether the person whose character has been attacked is or is not a witness in the case.

Question 122

s101(1)(g)- is the leave of the court required?

Answer 122

YES!

Question 123

S101(1)(g)

“ATTACK” =

s106(2): evidence attacking the other person’s character’ MEANS:

Answer 123

evidence to the effect that the other person:

(a) has committed an offence (whether a different offence from the one with which D is charged or the some one); OR

(b) has behaved, or is disposed to behave, in a reprehensible way;

And “imputation about the person other” means an assertion to that effect.

• This creates a link back to the definition of ‘bad character’ in s98; and in particular to the concept of misconduct = the commission of
  an offence or other reprehensible behaviour.
• Mere denial of prosecution case would not of itself amount to an attack, even though it might carry an imputation that a witness was
  lying.
• But a suggestion that prosecution witnesses were attempting or conspiring to pervert the course of justice by concocting false
  allegations would amount to an ‘attack’.
• Questions asked of the accused on behalf of the Prosecution do not trigger the provision; although questioning at interview may have
  this effect.

Question 124

s101(1)(g)

‘On another person’s character’

Answer 124

(g) contemplates an attack on a specific person; does not apply where the accused says he has not done the crime and lays the
blame on some unknown individual.

o However, if a specific attack is made, is does not matter whether or not the person attacked is a witness in the case.

o Can be an attack on any victim (even if deceased), or on any non-witness or witness

o Although unlikely, (g) could cover an attack on a non-witness who is also a non-victim

Question 125

The ‘fairness’ discretion test (s101(3) APPLIES: S101(3): the court must NOT admit evidence under s101(1)(d) or (g) IF =

Answer 125

on an application by the Defendant to exclude it

= if appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the ought not to admit it.

(4) ON an application to exclude under (3), the court must have regard, in particular, to the length of time between the matters to
which the evidence relates and the matters which form the subject of the offence charged.

Question 126

There is no need for prosecution to demonstrate that the bad character evidence demonstrates an underlying propensity to untruthfulness, in order to be relevant to credibility:

the purpose of (g) is provide jury with info relevant to whether D’s attack on another person’s character is worthy of belief.

Answer 126

o There is no requirement that the evidence should reach any particular probative value; or that the creditworthiness of the D should be an issue of substantial importance in the case.

o The concept is of the general credit of the accused, rather than the narrower concept of propensity to be untruthful under (d)

o A jury should be permitted recourse to material bearing on the whole of the accused’s bad character, not merely those parts that related specifically to veracity.

o The evidence must reflect the character of the accused at the time of trial; so old convictions might be rejected.

Question 127

s101(3), Fairness test:, adverse effect on fairness re gateways (d) and (g) Fairness test:

S101(3): the court MUST NOT admit evidence under s101(1)(d) or (g) IF, on an application by the Defendant to exclude it, if appears to the court that 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.

Answer 127

o (4) ON an application to exclude under (3), the court must have regard, in particular, to the length of time between the matters to
which the evidence relates and the matters which form the subject of the offence charged.

Question 128

s101(3) - fairness test

This power only comes into play on application by the Defence to exclude the evidence; rather than on the prosecution application to admit it; so the power to exclude is not exercisable by the court of its own motion

Answer 128

but, if necessary (eg to protect an unrepresented accused), an application could be prompted by the court.

Question 129

Procedural requirements re a party wishing to adduce bad character evidence (Part 21, CPR)

Who does it apply to?

Answer 129

CrimPR part 21 applies to all parties wishing to adduce bad character evidence; AND to accused’s application to exclude such evidence.

+ D who wishes to accuse his own bad character

Question 130

Provision for accused who wishes to introduce evidence of his own bad character
should =

Answer 130

to give notice, in writing or orally, as soon as reasonably practicable; and in any event before the evidence is introduced.

Question 131

Part 21 - which court does it apply to?

Answer 131

CC + MC

Question 132

R21.2: requires that a party wishing to adduce bad character evidence MUST:

Answer 132

in the case of Defendant bad-character evidence, give notice under r21.4

in the case of non-Defendant bad-character evidence, make an application under r21.3.

Question 133

An application or notice must:

Part 21

Answer 133

o (a) set out the facts of the misconduct on which that parties relies;

o (b) explain how that party will prove those facts (whether by certification of conviction, other official record, or other evidence), if
another party disputes them; and

o (c) explain why that evidence is admissible.

Question 134

The accused may waive the entitlement to notice, and the court has power to allow notices to be given in a different form, or at a different time, where to do so is in the interests of justice

[CASE LAW]

Answer 134

Williams:

(1) the propensity of D to make an unprovoked attack might have been introduced in rebuttal of D’s defence that S, and not he, had committed the offence, but the prosecution held back in the interests of fairness, electing only to rely on the evidence when it became apparent that the alleged victim of D’s previous attack (his mother) was to give evidence that S (who did not give evidence) had confessed to her in what the prosecution regarded as a sustained attempt to pull the wool over the eyes of the jury.

(2) the propensity of D to make an unprovoked attack might have been introduced in rebuttal of D’s defence that S, and not he, had committed the offence, but the prosecution held back in the interests of fairness, electing only to rely on the evidence when it became apparent that the alleged victim of D’s previous attack (his mother) was to give evidence that S (who did not give evidence) had confessed to her in what the prosecution regarded as a sustained attempt to pull the wool over the eyes of the jury.

The power is unfettered, and is not limited to exceptional cases, though the court must bear in mind the importance of its casemanagement duties!!

Question 135

Re Defendant bad-character evidence, 21.4: the party adducing (prosecutor or co-defendant) need only serve notice, need not
APPLY to the court.

Answer 135

A defendant who objects then applies to the court objecting = then court determines whether admissible.

Question 136

o CF, non-defendant bad character evidence, 21.3 the party adducing must make an APPLICATION (cf notice for 21.4).

Question 137

(1) Defendant bad character evidence

Notice under r21.4

Answer 137

• Where a party wants to introduce evidence of the bad character of D.
• Notices & Responses must be served on the court; AND on each other party

Question 138

(1) Defendant bad character evidence

The Prosecutor or Co-Defendant who wants to introduce such evidence must serve notice on

Answer 138

o (a) the court officer; and
o (b) every other party.

Question 139

(1) Defendant bad character evidence

A prosecutor must serve any such notice not more than:

Answer 139

o (a) 20 business days after D pleads not guilty in M’Court

o (b) 10 business days after D pleads not guilty in Crown Court;

Question 140

(1) Defendant bad character evidence

A co-defendant who wants to introduce such evidence must serve the notice:

Answer 140

o As soon as reasonably practicable;

o and in any event not more than 10 business days after the prosecutor discloses material on which the application is based

Question 141

A party who objects to the admission of the evidence must:

Answer 141

o (a) APPLY to the court to determine the objection;

o (b) serve the (objection) application on:
- The court officer;
- And each other party;
- Not more than 10 business days after service of the notice

In the application, explain (as applicable):
i. Which, if any, facts of the misconduct set out in the notice that party disputes;

ii. What, if any, facts of the misconduct that party admits instead;

iii. Why the evidence is not admissible;

iv. Why it would be unfair to admit the evidence; and

v. Any other objection to the notice.

Question 142

The COURT:

Answer 142

o (a) may determine such an application (objecting to admission ofthe bad character evidence)

(i) at a hearing, in public or in private; OR
(ii) without a hearing.

(b) must NOT determine the application UNLESS each party other than the applicant:

(i) is present; OR
(ii) has had a reasonable opportunity to respond.

(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under:

(i) s8B MCA 1980 [ruling at pre-trial hearing in a magistrates’ court] or

(ii) s9 CJA 1987 or s31/40 Crim Procedure & Investigations Act 1996 [ruling at preparatory or other pre-trial hearing inCrown Court]

Question 143

A party entitled to receive such a notice may WAIVE that entitlement by so informing:

Answer 143

(a) the party who would have served it; and

(b) the court

Question 144

Where a Defendant wants to introduce evidence of his own bad character,
he must:

Answer 144

(a) give notice, in writing or orally:

(i) as soon as reasonably practicable, and in any event

(ii) and in any event before the evidence is introduced, either by the D or in reply to a question asked by the D of another
party’s witness in order to obtain that evidence;

(b) in the Crown Court, at the same time give notice (in writing or orally) of any direction about D’s character that D wants the court
to give the jury under r25.14 [directions] to the jury and taking the verdict]

Question 145

Non-defendant bad character evidence
= Make Application under r21.3

Applications & Responses must be served on:

Answer 145

o the court officer;
o and on all other parties

Question 146

Non-defendant bad character evidence

The applicant must serve the application:

Answer 146

o As soon as reasonably practicable;
o and in any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

Question 147

Non-defendant bad character evidence

A party who objects to the admission of evidence must serve a notice (response) on:

Answer 147

o The court officer;
o And each other party;
o Not more than 10 business days after service of the application

Question 148

Non-defendant bad character evidence

o The notice in response must explain:
i

Answer 148

. Which, if any, facts of the misconduct set out in the notice that party disputes;

ii. What, if any, facts of the misconduct that party admits instead;

iii. Why the evidence is not admissible; and

iv. Any other objection to the notice.

Question 149

Non-defendant bad character evidence

Application: The COURT:

(a) may determine an application

Answer 149

(i) at a hearing, in public or in private; OR

(ii) without a hearing.

Question 150

Non-defendant bad character evidence

Application: The COURT:

(b) must NOT determine the application UNLESS each party otherthan the applicant:

Answer 150

(i) is present; OR

(ii) has had at least 10 business days in which to serve a notice of objection

Question 151

Non-defendant bad character evidence

Application: The COURT:

(options avaiable to the court)

Answer 151

(c) may adjourn the application; and
o (d) may discharge or vary a determination where it can do so under:

(i) s8B MCA 1980 [ruling at pre-trial hearing in a magistrates’court] or

(ii) s9 CJA 1987 or s31/40 Crim Procedure &
Investigations Act 1996 [ruling at preparatory or other pre-trial hearing in Crown Court]

Question 152

The court’s powers/decisions (re both types, defendant and non-defendant bad character evidence

Answer 152

Court can determine an application with or without a hearing in public or in private.

Question 153

REASONS for decisions (21.5):

o The court must announce, in a public hearing; BUT in the absence of jury (if there is one), the reasons for a decision:

Answer 153

 (a) to admit evidence as evidence of bad character, or to refuse to do so; or

 (b) to direct an acquittal or a retrial under s107 CJA [stopping the case where evidence contaminated]

Question 154

Court’s power to VARY REQUIREMENTS (21.6)

Answer 154

The court may:

• Shorten or extend a time limit (even after it has expired)
• allow an application or notice to be in a different form, or to be made or given orally;
• dispense with a requirement for notice to introduce evidence of D’s bad character

Question 155

A party who wants an extension of time must:

Answer 155

• Apply when serving the application or notice for which it is needed; AND
• Explain the delay.

Question 156

the court has power to allow notices to be given in a different form or different
time, where =

Answer 156

TO do so is in interests of justice

Court has a discretion to shorten or extend the time limits; OR to allow an
application notice to be given in a different form.

Question 157

can EOT limit be granted after time limit has expired?

Answer 157

YES

Question 158

In practice:

written notices in the form required by the rules are usually served where the prosecution proposes to adduce through gateway (c) [important explanatory evidence] or (d) [important matter in issue between D and P]

o Evidence through the other gateways in s101 is likely to become admissible ‘on the hoof’ as a result of something said/done in the course of the trial = in those circumstances, application is likely to
be made orally.

Question 159

Where the rules have not been complied with

the court should consider whether to vary the notice requirements using Power in CrimPR 21.6

Answer 159

o The power is unfettered; and is not limited to exceptional cases;

o Though court must bear in mind the importance of its case-management duties

Question 160

Where rules are not complied with and Court does not exercise the power to vary the requirements = the evidence will be excluded [this should be regarded as a device to prevent unfairness, rather than a disciplinary sanction].

Answer 160

In some cases, the power to vary can properly be deployed to prevent substantial unfairness that cannot be cured by an adjournment.

Question 161

Proof of convictions

The PACE 1984, s. 73, provides for the proof of convictions and acquittals in the UK by =

Answer 161

o a certificate of conviction or acquittal,
o together with proof that the person named in the certificate is the person whose conviction or acquittal is in issue.

Question 162

convictions as evidence of facts of which based

Answer 162

At common law, the convictions of one person were not admissible as evidence of the facts on which they were based at the subsequent trial of another

eg - At common law, the convictions of one person were not admissible as evidence of the facts on which they were based at the subsequent trial of another)

• Eg Turner (1832) (one person’s conviction for theft inadmissible as evidence of such theft at the trial of another charged with handling the stolen goods);
• Hassan (a woman’s convictions for prostitution inadmissible as evidence of such prostitution at the trial of a man charged with living off her immoral earnings);
• and Spinks (a principal’s conviction of wounding inadmissible as evidence of such wounding at the subsequent trial of an alleged accessory).

Question 163

The PACE 1984, s. 74(1), reversed the common-law rule, and s. 74(2) created a persuasive presumption:

Answer 163

o the person (other than the accused) convicted of an offence in any court in the UK or by a Service court outside the UK shall be taken to have committed that offence unless the contrary is proved.
o The legal burden is borne by the party against whom the presumption operates; and if borne by the accused, may be discharged by proof on a balance of probabilities

(Section 74(3) creates a similar presumption in the case of the previous convictions of the accused, provided that evidence is admissible of the fact that the accused has committed the offence in respect of which he or she has been convicted. As to convictions in foreign countries, apart from those in Service courts outside the UK,)

Question 164

Bad character directions
The key stages are now as set out in Edwards

Answer 164

(1) The judge determines admissibility under the relevant statutory gateway(s).

(2) Where it is raised, the judge also determines any question of exclusion in respect of prosecution evidence, for example, under s. 101(3) or 103(3) of the CJA 2003, or s. 78 of the PACE 1984.

(3) Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated and the judge’s direction as to the use to which the evidence may be put.

(4) The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight.

Question 165

Hanson also outlines the content of a direction on bad character which, though couched in terms of a case involving evidence of propensity, is of more general relevance. A proper direction should:

Answer 165

(1) give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
(2) stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;
(3) emphasise that the jury should not infer guilt from the existence of convictions.

Question 166

Judge should tailor the terms of the direction to the case;

Answer 166

but should follow
the standard direction endorsed by the Judicial College (and in Crown Court
Compendium).

Question 167

Absolute Good Character

An accused is entitled to a good character direction on the ground of ‘absolute good character’ if the accused =

Answer 167

no previous convictions and no other reprehensible conduct is alleged, admitted or proven

It is not necessary for the accused to go further and prove evidence of positive good character

Entitled to both limbs of Vye direction, no discretion of judge to refuse.

Question 168

Effective Good Character

An accused who is judged to be of ‘effective good character’ is also entitled to the good character directions in full.

Where a D has convictions which are old/spent/unrelated to offences totally
different from the offence charge

= the judge must decide

Answer 168

whether he can be treated as a person of effective good character.

Where Defence claim effective good character
= the matter is one of law on which judgment is required; it is not sufficient to ask the jury whether they consider the accused to be of good character.

Question 169

If judge rules that D is of effective good character (question of law)
= he must give full good character direction, but appropriately modified to the extent necessary to reflect the matters that preclude the accused being of absolute good character.
=

Answer 169

i.e. jury must not be misled into thinking that D has no pre-cons; direction will be modified to allude to the existence of previous
offences.

Then the judge can give an appropriately modified good character direction; in which jury are told that they should treat the D as a man of effective good character.

Question 170

Effective good character

Where appropriate, judge can draw attention of jury to the length of time that has elapsed since the last conviction; and the accused’s good character during that period.

Question 171

A person of effective good character is entitled to BOTH parts of good character direction (re propensity and credibility):

Answer 171

o It follows that (from Hunter): a person who is not entitled to both parts of direction is NOT of effective good character = he falls into
categories of person who character will be dealt with in the discretion of the court

o (whereas before Hunter it was possible for D to be treated as entitled to either part of a good character direction but not the other)

Question 172

Deciding whether of effective good character = impact of previous offences:

Hunter - if pre-cons/cautious have no relevance, D cannot automatically be treated as of effective good character, even if the convictions/cautious are also old and minor instances of offending.

Answer 172

o Judge should consider all circumstances of the offence and offender; and decide what ‘fairness’ dictates.

o Rejection of notion that absence of relevant convictions = automatic good character

D not automatically entitled to be effective good character simply because previous offending is irrelevant.

o Factors whether pre-cons are old/minor/irrelevant.

Question 173

Effective Good character

Minor offending/misconduct which no relevant to credibility OR propensity

Answer 173

is unlikely to impede a finding of effective good character (eg minor motoring conviction irrelevant where charged with sexual assault).

Question 174

Effective good character

More difficult: cases of old convictions/cautions, which are relevant (either to credibility or propensity)

Answer 174

BUT of little weight: If old, and strong evidence of good character since, the old conviction/caution might not impede effective
good character.

Question 175

Effective good character

Cautions

Answer 175

EVEN minor ones - cannot be ignored

which are relevant (either to credibility or propensity)

BUT of little weight: If old, and strong evidence of good character since, the old conviction/caution might not impede effective good character.

Question 176

Effective good character: what about foreign convictions?

Answer 176

Accused cannot conceal the fact he has been found guilty by a foreign court where its findings are not regarded as ‘convictions’ until confirmed on appeal

Question 177

Effective good character: what about when warning is issued by foreign authority?

Answer 177

Where a warning has been issued by a foreign authority
- essential that the court understands its status before determining its effect.

Question 178

Effective good character: what about when warning is issued by foreign authority?

Answer 178

Where a warning has been issued by a foreign authority
- essential that the court understands its status before determining its effect.

Question 179

Effective good character: what about the issuing of a Penalty Notice for disorder (PND) ?

Answer 179

(1) should be kept from jury when giving a good character direction.

(2) Doesn’t involve either proof of the commission of a crime, nor admission that a crime has been committed.

Question 180

Effective good character: what about the warning letter for harassment?

Answer 180

• should be kept from jury when giving a good character direction

Where a warning has been issued by a foreign authority, it is essential that the court understands its status before determining its effect

Question 181

Effective good character: Re an old binding-over order:

Answer 181

an inquiry may need to be conducted before treating this as an impediment to a good character direction (as the significant of such order has changed over time, and might have been imposed without evidence of misconduct).

Question 182

Effective good character

Is part of prosecution’s onus of proof to establish the impediment to the direction to which accused is otherwise entitled.

Question 183

Effective good character

It is not possible to be explicit as to what manner of minor blemishes an accused may now have and still be ‘deemed’ to be a person of effective good character under Hunter as interpreted in Morgans

Answer 183

(1) Cannot be explicit re what minor blemishes an accused may have but still
be deemed effective good character.

• Hunter: all decisions are fact-specific
• Remember direction will be modified to allude to the existence of the previous offences; so jury are not misled.

Question 184

Accused Who are Not of Good Character Admissibility for Defence of Evidence of Convictions/Cautions of Defendant who is Not of Effective Good Character

Answer 184

An accused who is not judged to be of effective good character (see F14.8) and who has convictions or cautions is still entitled to adduce them under the CJA 2003, s. 101(1)(b)

Question 185

An accused judged not of effective good character; & who has convictions/cautions, is still entitled to adduce them himself under
s101(1)(b) CJA, where they are relevant,

Answer 185

eg to pave the way for an argument that he has no record for offences of the type charged.

Hunter -> discretion of judge to give a modified good character direction to such an accused; ‘fairness’ may well suggest that a direction would be appropriate but not necessarily’.

Question 186

Where evidence of previous misconduct is so adduced by the defence, and is not relied on by Prosecution as evidence of guilt =

Answer 186

it has been said to be wrong to direct a jury that the evidence can be used to provide support for the prosecution case. If correct, this rule must be based on fairness rather
than logic (if the evidence has a rational connection to guilt).

But it does not follow that the jury should be warned against drawing a rational inference, if it thinks the adduced misconduct might be relevant to the offence charged.

Notice required when bad character evidence is adduced by the Defence: CrimPR 21.4 = notice should be given as soon as reasonably practicable; and in any event before the evidence is introduced.

Question 187

Accused with no convictions/cautions whose other misconduct is relied on by the
prosecution (under s101 CJA)

• judge must give bad character direction; but
  discretion to weave with a modified good character direction, if not absurd

Answer 187

• Accused with no pre-cons/cautions, but other misconduct relied on by prosecution as part of their case = will attract a ‘bad character direction’

Where evidence of bad character has been heard by the jury = the judge is obliged to give a bad character direction in summing up

= Trial judge has a discretion to weave into the bad character direction, observations about D’s residual good character;
- The judge may consider that, as a matter of fairness, they should weave into the bad character direction a modified good character
direction, to take account of the fact that there are no pre-cons recorded against the Defendant.

Question 188

Accused with no convictions/cautions whose other misconduct is relied on by the
prosecution (under s101 CJA)

• judge must give bad character direction; but
  discretion to weave with a modified good character direction, if not absurd

UNLESS to do so would render the totality of the direction an ABSURDITY (the ‘absurdity principle’, Aziz).

Answer 188

o In some cases, giving both directions together would result in absurdity = in those cases, there is a broad discretion for judge to
decline to give a good character direction.

o Judge should never be obliged to give a ‘meaningless/absurd’ direction.

o Eg absurdity principle, no good character direction appropriate despite no pre-cons:

o Eg where an accused, with no pre-cons, is nonetheless shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged; in such a case, a good character direction would be a charade.

o Eg, significant admission of dishonesty in relation to the subject-matter of the charge;

o Eg where accused admitted being a member of an armed group that had sought to punish the victim but denied killing him;

o Where accused admitted lying to and grossly misleading the police.

Question 189

Good character:

Form of the Direction
Standard Two-limb

Evidence of good character is admissible as of right; both to show that:

Answer 189

(1) accused is less likely to have committed the offence because he lacks the PROPENSITY to do so; AND

o (2) (where CREDIBILITY is in issue) to show he is more likely to be
truthful than a person who is not of good character

Question 190

Good character: Rule that fairness requires judge to give the jury specific directions on
relevance of evidence of good character = Vye.

Question 191

Good character directions:
The impact of Hunter (2015, CA) & unmeritorious claims:

Answer 191

o Restored law to more principled basis

o CA: thoroughly reviewed good character directions;

o Said benefits of good character directions should not be extended to Ds who, because of their convictions/cautions/misconduct do not merit being treated as of good character. Had been over-extended following Vye and Aziz.

o The question of what directions (if any) to give re Ds who are no longer entitled to a full direction = a matter for trial judge’s general discretion, based on need to ensure a fair trial.

o CA, henceforth, ret he law: only necessary to refer to Hunter, Vye and Aziz.

o So Hunter now has set down the definitive law re good character

o Hunter was out of sympathy with the importance accorded to good character: CA nevertheless upheld the traditional entitlement to a direction; but its scepticism may result in more likely for CA to uphold
safety of a conviction despite failure of judge to direct properly re good character.

Question 192

Does the failure to give a direction where one is required automatically lead to quashing of conviction as unsafe?

Answer 192

Failure to give a direction where one is required = NOT automaticallylead to quashing of conviction as unsafe.

Question 193

Terminology

SUMMARY
OF GOOD CHARACTER

Answer 193

• “(Absolute) Good character” (aka ‘absolute good character’) = the D has no pre-cons & no other reprehensible conduct is alleged, admitted or proven.

o Is not necessary for D to go further and prove evidence of positive good character.

• “Effective good character” – D has pre-cons that are old, spent or related to offences of a totally different character from the offence charged; thus D can be treated as if he were of good character.
• “Positive good character”: D can go further than saying he is of good character and demonstrates positive good character by showing he has a reputation for it, eg charitable work.