Unit 15 Character Evidence Flashcards
What does “misconduct” mean in relation to the bad character definition?
‘Misconduct’ means the commission of an offence or other reprehensible behaviour (s. 112(1)). Thus any evidence suggesting guilt of an offence is potentially evidence of misconduct, whether or not the accused has been charged with or convicted of it.
(The use of evidence of criminal misconduct not resulting in proceedings may require special caution).
What does proof of a previous conviction create?
The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence.
What constitutues “reprehensibility?”
Fact-specific. Connotes some element of culpability or blameworthiness. Conduct is not necessarily ‘reprehensible’ under s. 98 simply because it is morally lax.
S98 Definition of bad character
evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
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.
Is admitting gang membership evidence of bad character?
Yes = reprehensible behaviour. As were violent rap lyrics about gang violence.
Purpose of s100 (bad character)?
S.100 contains the gateways for bad character evidence of non-Ds
Bad Character evidence is admissible only in restricted circumstances (gateways), and, except where all parties agree to the evidence being admissible, the leave of the court is required.
Which evidence of, or of a disposition towards, misconduct is NOT ‚bad character evidence‘?
evidence which ‘has to do with the alleged facts of the offence’ (s.98(a))
or,
looking to the wording of s. 98(b), ‘is evidence of misconduct in connection with the investigation or prosecution of that offence’
Under s100(1) “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.
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.
Whose bad character evidence does s100 cover?
Section 100 regulates all aspects of the use of the bad character of a person other than the accused, in chief or in cross-examination, whether or not the person appears as a witness. Thus, it covers the character of a person whose statement is admitted under an exception to the hearsay rule and the character of the deceased in a trial for murder.
Is there a discretion to exclude defence evidence under s100?
No.
That there is no discretion to exclude defence evidence under s. 100 on grounds of fairness was reaffirmed in Edwards [2018]. Evidence tendered by the prosecution is of course subject to exclusion under the PACE 1984, s. 78. It 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. A suggestion in Lee [2019] EWCA Crim 2052 that evidence of a non-defendant’s bad character tendered by an accused could be excluded because of prejudice to a co-accused is incorrect.
What is important explanatory evidence? (N.B. same definition for Ds and non-Ds)
(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
What does substantial mean under s100(1)(b)?
‘Substantial’ bears its ordinary meaning. Other leading cases have equated ‘substantial’ probative value with ‘an enhanced capability’ of proving or disproving a matter in issue in order to emphasise the point.
What matters are relevant to the assessment of probative value? (outlined at 100(3))
(3)In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—
a. the nature and number of the events, or other things, to which the evidence relates;
b. when those events or 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 the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.
Under s101(1) what are the gateways for a Defendant’s bad character to be adduced?
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
a. all parties to the proceedings agree to the evidence being admissible,
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,
c. it is important explanatory evidence,
d. it is relevant to an important matter in issue between the defendant and the prosecution,
e. it has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant,
f. it is evidence to correct a false impression given by the defendant, or
g. the defendant has made an attack on another person’s character.
Section 101(3) states the court must not admit evidence under two of the gateways in certain conditions, which ones and what is the test that the court applies in these cases?
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it 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.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
What does the case of Hunter permit in terms of character directions?
Hunter permits a modified good character direction in the judge’s discretion (e.g. previous offending is years old and of a different kind).
What should the judge do when evidence of relatively minor bad character is admitted?
Where evidence of relatively minor bad character is tendered to prevent the jury from speculating that it is worse than it is, the Crown Court Compendium (July 2020), ch. 12-4, states that the 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’.
What is the important change that s101(d) “relevant to an important matter in issue” brings about?
The most radical aspect of the change brought about by s.101(1)(d) in combination with s.103 is that an accused’s propensity becomes a matter towards which relevant prosecution evidence may be directed. Section 101(1)(d) has the additional function of admitting evidence to show the untruthfulness of an accused person.
What is the exclusionary power under s101(3)?
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it 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.
The principal mechanism by which the court can ensure that an accused is not prejudiced by revelations of evidence under s. 101(1)(d) or (g) is the exclusionary power under s. 101(3): that it 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.
The power, it should be noted, comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it.
How does the exclusionary power of 101(3) operate? (Bad character)
The power, it should be noted, comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it. (not allowing evidence under gateway d or g if adverse effect on fairness)
What is the difference, outlined in Hanson, between the exclusionary power of 101(3) and s 78 PACE?
S101(3) – “must not admit”
S78 PACE – “may refuse to allow”
What is the limitation on section 101(3) as an exclusionary power for bad character evidence?
Section 101(3) cannot be used to restrict any of the other five gateways, which appear to lead directly to admissibility. This raises no issues of difficulty in relation to (a) or (b), where the accused has control over the issue. It may be a source of difficulty in relation to (e), where it is the co-accused who is entitled to invoke the exception, but the rule that there is no discretion to restrain the co-accused in tendering relevant evidence is well-established and of general application. In relation to explanatory evidence admitted under s.101(1)(c), however, and evidence to correct a false impression under s.101(1)(f), it may be envisaged that there will be cases where the defence will seek to make an argument for exclusion based on unfairness.
For what purposes is gateway 101(1)(d) used?
103(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—
(a) the question whether the defendant 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 the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.
I.e. the gateway serves the purpose of allowing P to introduce evidence of D’s untruthfulness or D’s propensity to commit these kinds of crimes
How might a propensity to commit offences be shown? (101(d) explained in 103)
103(2) … a defendant’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—
• an offence of the same description as the one with which he is charged, or
• an offence of the same category as the one with which he is charged.
103(3)
Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by 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.
103(4) For the purposes of subsection (2)—
• 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;
• two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.
In short: D’s propensity can be established by adducing evidence of prior convictions of the same kind or in the same category (although nb it can also be established in other ways), unless the prior convictions are so long ago that it would be unjust to allow them as evidence of a propensity towards this kind of wrongdoing. This means that injustice/unfairness can come up twice under gateway (d) - once in determining whether the offences establish a propensity and once if D makes an application under s 101(3)
Is defence evidence allowed under gateway 101(1)(d)?
Only prosecution evidence is admissible under section 101(1)(d).
What does “important matter” mean in satisfying gateway 101(d)?
‘Important matter’ means ‘a matter of substantial importance in the context of the case as a whole.’ While the issue must be of substantial importance, however, it is not necessary for the evidence of bad character to be of substantial probative value.
What are the 3 steps outlined by Hanson as to whether a propensity to commit offences is shown?
- Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
- If so, does the propensity make it more likely that the defendant committed the crime charged?
- 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?
According to Hanson, how many previous events do you need to show to establish propensity?
Propensity can be demonstrated by one previous event if sufficiently probative, as, for example, where the behaviour is ‘strikingly similar’. Hanson made clear the requirement to consider the probative value of propensity evidence.
What gateway is 101(1)(f) for?
Permits evidence of bad character to be adduced by the prosecution to correct a false impression given by the accused about him or herself.
