Unit 12 - Character Evidence (unit 15 BSB) Flashcards
1
Q
Bad Character
The CJA 2003, s. 101, provides that evidence of the bad character of an accused is admissible IF:
A
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
2
Q
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—
A
(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.
3
Q
‘Misconduct’ means
A
the commission of an offence; OR
other reprehensible behaviour
4
Q
Independent reason
A
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
5
Q
Independent reasons
it may not be possible to rely on such evidence without the bad character coming to light
A
Therefore requiring the application of s. 101 may be better
6
Q
Where D has been convicted of an offence that is admitted to show bad character, guilt of that offence is =
A
presumed unless the contrary is proved
7
Q
Where D has not been convicted, and disputes the evidence alleged to demonstrate bad character, =
A
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
8
Q
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
A
9
Q
The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence and, as to evidence to show propensity.
A
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
10
Q
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 ?
A
NO!
THIS WAS HELD TO BE AN inappropriate way to settle a dispute between P and D
11
Q
does the provisions of CJA 2003, 101 apply to cautions?
A
YES!
12
Q
Does offences occurring subsequent to the offence charged be admissible?
A
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.
13
Q
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
A
Correspondence is assessed by looking for an equivalent offence in domestic law at the time of the trial for the current offence.
14
Q
SO bad character may be shown by any of the following
A
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
15
Q
“Misconduct” defined in s112: the ‘
(a) commission of an offence OR
(b) other reprehensible behaviour’.
Reprehensible Behaviour =
from case-law
A
“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.
16
Q
‘Has to do with’ Alleged Facts
A
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’.
17
Q
‘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.
A
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).
18
Q
‘Has to do with’ Alleged Facts: does this apply to the actus reus?
A
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.
19
Q
Link between misconduct and alleged facts: ‘Has to do with’ Alleged Facts
A
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).
20
Q
the court should not permit a matter to be raised unless it is demonstrably relevant.
A
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
21
Q
Evidence of a previous acquittal is unlikely to be of relevance
EXCEPT:
A
where it is contended that the accused committed the offence, in which case it is likely to be objectionable on grounds of unfairness.
22
Q
SEVEN gateways through which D bad character evidence can be admissible.
In s101(1)(a-g) CJA 2003.
A
23
Q
MNEMONIC to help remember the gateways
A
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
24
Q
CRIMINAL JUSTICE ACT 2003, s. 100: GATEWAYS TO ADMISSIBILITY
[THE LAW]
A
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.
25
Section 100 regulates all aspects of the use of the bad character of a person other than the accused
SO NON-DEFENDANT
Only admissible in restricted circumstances.
Leave of court required unless all parties agree.
26
S100: there are four important features of the test for admissibility under s. 100
(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
27
That there is no discretion to exclude defence evidence under s. 100 on grounds of fairness
(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
28
S.100
Important Explanatory Evidence
- 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’
29
S.100
Important Explanatory Evidence
Examples of substantial
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
30
Meaning of ‘Substantial’
Under the CJA 2003, s. 100(1)(b)
the trial judge must consider two essential questions:
(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.
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’
32
Meaning of ‘Substantial’
Under the CJA 2003, s. 100(1)(b)
the trial judge must consider two essential questions:
(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.
33
In applications under s. 100(1)(b) =
the issue to which the evidence relates will usually, though not always, be either:
the propensity, or credibility, of the person of bad character
34
S100
Where evidence of propensity is adduced by the defence, this does not entail proof of that propensity to the criminal standard.
- 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
35
s,100
The inclusion of the word “substantial” probative value:
(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.
36
Matters Relevant to Assessment of Probative Value
List of factors which court must have regard to; non-exhaustive list:
[CASE LAW]
(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
37
s100
Whether convictions have probative value depends principally on:
their nature, number and age.
The more serious the misconduct; and the greater the number of instances =
likely stronger probative value.
38
evidence of misconduct occurring many years ago is usually likely to have less probative value than more recent misconduct =
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.
39
s100
Factors in (c) and (d) are most likely relevant where:
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
40
s100
Where it is alleged that the non-defendant committed the offence charged =
the similarity of the past misconduct to the facts of the current offence will be important.
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
- 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
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]
- 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 injuries
Similar 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
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
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
44
SEVEN gateways through which D bad character evidence can be admissible.
In s101(1)(a-g) CJA 2003.
45
s101(1)(a) AGREEMENT of the parties
[[‘Agreement’]]
S101(1)(a): all parties to the proceedings agree to the evidence being admissible
46
s101(1)(a) AGREEMENT of the parties
How is the agreement done?
There are no formal requirements as to the recording of the agreement or how it is reached.
47
s101(1)(a) AGREEMENT of the parties
When should the court be informed?
the court should be informed of any agreement to admit bad character evidence
!at the beginning of the trial!
48
s101(1)(a) Agreement
Where there are multiple defendants, is consent from one sufficient?
NO!
consent of all must be secured
48
s101(1)(a) AGREEMENT of the parties: what about in a case of public interest immunity?
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.
49
s101(1)(b): Evidence adduced by the Defendant
‘Blurts it out’
[the law]
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’
50
s101(1)(b): Evidence adduced by the Defendant
This is where
D elects to tender evidence of his own bad character
51
s101(1)(b): Evidence adduced by the Defendant
Why would D want to do this?
(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
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
=
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.
53
s101(1)(b): Evidence adduced by the Defendant
Is the leave of the court required to adduce evidence through this gateway?
NO!
54
s101(1)(c) Important explanatory evidence
defined in s102=
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.
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
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.
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?
gateway (c) will not apply. i.e. if the issue is entirely comprehensible without evidence of bad character, it is not admissible.
57
s101(1)(c) Important explanatory evidence
The bad character evidence may be incidental to the offence charged
o Eg, where offence was arson of a hostel for offenders; the explanatory evidence showed that D was an inmate.
58
s101(1)(c) Important explanatory evidence
The bad character evidence may constitute a relevant part of the background of the offence
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.
59
s101(1)(c) Important explanatory evidence
explanatory value IS NOT probative value
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)).
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.
61
s101(1)(c) Important explanatory evidence
If admitted, explanatory evidence may require a particularly careful direction
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.
62
s101(1)
Where explanatory evidence is admitted, it may be fairest ..
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
63
s101(1)(d) Important matter in issue between the Defendant and Prosecution
What is the definition of “Important matter”?
= a matter of substantial importance in the
context of the case as a whole.
64
Criminal Justice Act 2003: Admissibility under s. 101(1)(d)
[THE LAW]
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.
65
(1) For the purposes of s101(1)(d) the ‘matters in issue’ between D and P include:
(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.
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:
(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
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
68
Which party evidence is admissible under
s101(1)(d)?
ONLY PROSECUTION EVIDENCE
69
s101(1)(d): threshold for admitting an accused’s bad character is satisfied if the evidence is =
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.
70
s101(1)(d):
is a foreign conviction admissible?
YES
71
S101(1)(d): can acquittals be used as evidence?
NO!
RARELY acquittals could be used as evidence by prosecution where P contends that D was guilty despite acquittal.
72
s101(1)(d)
Where evidence is admitted=
(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
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...
where it makes it no more likely that the accused is guilty
74
s101(1)(d)
propensity to untruthfulness is to be so taken unless ...
it is not suggested that the accused’s case is untruthful in any respect
75
the bad character must still be relevant to an “important” issue’! [CASE LAW]
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).
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
77
Propensity
The nature of the defence may be such as to render propensity evidence admissible
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).
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:
(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?
79
Demonstrating Propensity (Hanson):
Principles
(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
80
- In cases where a jury may have difficulty disentangling the relevance of the evidence, a careful direction will be needed
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)
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.
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
82
Bad character evidence can support Identification without necessarily amounting to ‘signature evidence’:
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.
83
101(1)(d) Gangs
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
84
Bad character may also be relevant (and therefore admissible) to support identification without any similarity between the past and present offences
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.
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.
- 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
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
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
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))
(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
88
(s100(1)(d))
- use of evidence of acquittal
was at one time thought to be objectionable under the double jeopardy rule, until the decision of the House of Lords in Z [2000]
89
use of evidence of acquittal for bad character
what for P need to show?
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
90
What can D do when P is trying to adduce evidence of acquittal for bad character?
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).
91
Case of Z: acquittal used for evidence of bad character
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.
92
S101(1)(e): Substantial probative value re important matter in issue between the defendant and a co-defendant [“ ‘E Done it “]
Allows a co-accused to adduce evidence of D’s bad character where it has substantial value re an important issue between them.
93
What is the test?
S101(1)(e)
S101(1)(e): ‘it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’
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
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
95
s101(1)(e) Otherwise (where the evidence of propensity is not directed to untruthfulness), but instead to the commission of the offence
=
(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).
96
s101(e)
“Important matter in issue”
of substantial importance in the context of
the case as a whole (s112).
97
S101(1)(e) – is denial of participation by a co-accused enough?
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
98
Case law about denial – s101(1)(e)
- 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.
99
Where defendants are not facing a joint charge and there is not a cut-throat defence
Held to be be particularly important to ascertain the fact in issue between the defendants and that it is truly an important one
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
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).
101
S101(1)(f): Correcting a false impression
‘it is evidence to correct a false impression given by the Defendant’.
102
(1) For the purposes of s101(1)(f)
(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
103
s101(1)(f)
(2) A D is treated as being ‘responsible’ for the making of an assertion IF:
(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.
104
s101(1)(f)
(2) A D is treated as being ‘responsible’ for the making of an assertion IF:
(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.
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 =
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.
106
s101(1)(f)
(5) In (4), “Conduct” includes appearance or dress.
107
s101(1)(f)
(6) Evidence is admissible under 101(1)(f) ONLY IF it goes no further...
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).
108
(7) ONLY PROSECUTION evidence is admissible under (f).
[i.e. doesn’t apply for co-accused adducing evidence, that would be gateway (e)
109
s101(1)(f) - is the leave of court required?
YES
LEAVE OF THE COURT is required to admit evidence through (f)
110
By s. 105(1)(a) an impression may be false for this purpose if it is misleading, notwithstanding that it is also true
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
111
Under ss. 101(1)(f ) and 105, evidence of bad character is admissible provided only that it has =
'probative value’ in correcting the false impression
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
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.
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 =
these constitute ‘assertions’ for purposes of (f) and may result in use of evidence to correct any false impression given.
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
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.
115
101(1)(f)
Re s105(3)whether accused has withdrawn or dissociated himself from a false impression =
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.
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.
116
The CJA 2003, s. 101(1)(g)
‘Attack on Another Person’s Character’
‘The Defendant has made an attack on another person’s character'
117
S106:
(1) for purposes of 101(1)(g), A D ‘makes an attack on another person’s character’ IF:
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.
118
S101(1)(g)
(2) In subsection (1), ‘evidence attacking the other person’s character’ MEANS: evidence to the effect that the other person:
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.
119
S101(1)(g)
which party can adduce such evidence?
ONLY PROSECUTION EVIDENCE is admissible under (g)
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):
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
121
g) is triggered where an attack is made on any person, living or dead.
o It is NOT relevant whether the person whose character has been attacked is or is not a witness in the case.
122
s101(1)(g)- is the leave of the court required?
YES!
123
S101(1)(g)
“ATTACK” =
s106(2): evidence attacking the other person’s character’ MEANS:
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.
124
s101(1)(g)
‘On another person’s character’
(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
125
The ‘fairness’ discretion test (s101(3) APPLIES: 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 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.
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.
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.
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.
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.
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
but, if necessary (eg to protect an unrepresented accused), an application could be prompted by the court.
129
Procedural requirements re a party wishing to adduce bad character evidence (Part 21, CPR)
Who does it apply to?
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
130
Provision for accused who wishes to introduce evidence of his own bad character
should =
to give notice, in writing or orally, as soon as reasonably practicable; and in any event before the evidence is introduced.
131
Part 21 - which court does it apply to?
CC + MC
132
R21.2: requires that a party wishing to adduce bad character evidence MUST:
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.
133
An application or notice must:
Part 21
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.
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]
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!!
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.
A defendant who objects then applies to the court objecting = then court determines whether admissible.
136
o CF, non-defendant bad character evidence, 21.3 the party adducing must make an APPLICATION (cf notice for 21.4).
137
(1) Defendant bad character evidence
Notice under r21.4
* 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
138
(1) Defendant bad character evidence
The Prosecutor or Co-Defendant who wants to introduce such evidence must serve notice on
o (a) the court officer; and
o (b) every other party.
139
(1) Defendant bad character evidence
A prosecutor must serve any such notice not more than:
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;
140
(1) Defendant bad character evidence
A co-defendant who wants to introduce such evidence must serve the notice:
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
141
A party who objects to the admission of the evidence must:
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.
142
The COURT:
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]
143
A party entitled to receive such a notice may WAIVE that entitlement by so informing:
(a) the party who would have served it; and
(b) the court
144
Where a Defendant wants to introduce evidence of his own bad character,
he must:
(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]
145
Non-defendant bad character evidence
= Make Application under r21.3
Applications & Responses must be served on:
o the court officer;
o and on all other parties
146
Non-defendant bad character evidence
The applicant must serve the application:
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).
147
Non-defendant bad character evidence
A party who objects to the admission of evidence must serve a notice (response) on:
o The court officer;
o And each other party;
o Not more than 10 business days after service of the application
148
Non-defendant bad character evidence
o The notice in response must explain:
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; and
iv. Any other objection to the notice.
149
Non-defendant bad character evidence
Application: The COURT:
(a) may determine an application
(i) at a hearing, in public or in private; OR
(ii) without a hearing.
150
Non-defendant bad character evidence
Application: The COURT:
(b) must NOT determine the application UNLESS each party otherthan the applicant:
(i) is present; OR
(ii) has had at least 10 business days in which to serve a notice of objection
151
Non-defendant bad character evidence
Application: The COURT:
(options avaiable to the court)
(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]
152
The court’s powers/decisions (re both types, defendant and non-defendant bad character evidence
Court can determine an application with or without a hearing in public or in private.
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:
(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]
154
Court’s power to VARY REQUIREMENTS (21.6)
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
155
A party who wants an extension of time must:
- Apply when serving the application or notice for which it is needed; AND
- Explain the delay.
156
the court has power to allow notices to be given in a different form or different
time, where =
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.
157
can EOT limit be granted after time limit has expired?
YES
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.
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
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
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].
In some cases, the power to vary can properly be deployed to prevent substantial unfairness that cannot be cured by an adjournment.
161
Proof of convictions
The PACE 1984, s. 73, provides for the proof of convictions and acquittals in the UK by =
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.
162
convictions as evidence of facts of which based
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).
163
The PACE 1984, s. 74(1), reversed the common-law rule, and s. 74(2) created a persuasive presumption:
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,)
164
Bad character directions
The key stages are now as set out in Edwards
(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.
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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:
(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.
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Judge should tailor the terms of the direction to the case;
but should follow
the standard direction endorsed by the Judicial College (and in Crown Court
Compendium).
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Absolute Good Character
An accused is entitled to a good character direction on the ground of ‘absolute good character’ if the accused =
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.
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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
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.
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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.
=
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.
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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.
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A person of effective good character is entitled to BOTH parts of good character direction (re propensity and credibility):
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)
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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.
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.
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Effective Good character
Minor offending/misconduct which no relevant to credibility OR propensity
is unlikely to impede a finding of effective good character (eg minor motoring conviction irrelevant where charged with sexual assault).
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Effective good character
More difficult: cases of old convictions/cautions, 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.
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Effective good character
Cautions
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.
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Effective good character: what about foreign convictions?
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
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Effective good character: what about when warning is issued by foreign authority?
Where a warning has been issued by a foreign authority
- essential that the court understands its status before determining its effect.
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Effective good character: what about when warning is issued by foreign authority?
Where a warning has been issued by a foreign authority
- essential that the court understands its status before determining its effect.
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Effective good character: what about the issuing of a Penalty Notice for disorder (PND) ?
(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.
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Effective good character: what about the warning letter for harassment?
- 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*
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Effective good character: Re an old binding-over order:
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).
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Effective good character
Is part of prosecution’s onus of proof to establish the impediment to the direction to which accused is otherwise entitled.
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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
(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.
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Accused Who are Not of Good Character Admissibility for Defence of Evidence of Convictions/Cautions of Defendant who is Not of Effective Good Character
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)
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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,
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’.
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Where evidence of previous misconduct is so adduced by the defence, and is not relied on by Prosecution as evidence of guilt =
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.
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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
* 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.
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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).
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.
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Good character:
Form of the Direction
Standard Two-limb
Evidence of good character is admissible as of right; both to show that:
(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
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Good character: Rule that fairness requires judge to give the jury specific directions on
relevance of evidence of good character = Vye.
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Good character directions:
The impact of Hunter (2015, CA) & unmeritorious claims:
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.
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Does the failure to give a direction where one is required automatically lead to quashing of conviction as unsafe?
Failure to give a direction where one is required = NOT automaticallylead to quashing of conviction as unsafe.
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Terminology
SUMMARY
OF GOOD CHARACTER
* “(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.
