Bad Character

Question 1

What are some example sources of bad character?

Answer 1

• previous convictions in UK
• previous convictions abroad that have a domestic equivalent
• cautions
• acquittals where Pros. contends D was actually guilty
• Reprehensible behaviour (i.e membership of gang)
• Witness evidence of reputation for reprehensible behaviour
• NOT blasphemy or affair

Question 2

What counts as bad character evidence?

Answer 2

Evidence of, or disposition towards, misconduct on the part of the accused.

Misconduct = commission of an offence or other reprehensible behaviour, some element of moral blameworthiness, i.e D in a gang, drinks to excess and takes drugs.

EXCEPT evidence to do with the alleged facts of the offence D is charged with or evidence of misconduct in connection with the investigation or prosecution of that offence (i.e lying to police, tamperting with evidence, previous convictions relevant to current offence e.g showing D driving whilst disqualified).

Question 3

What are the 7 gateaways through which bad character can be admitted? Do they require court permission?

Answer 3

A = agreement (no permission)
B = Blurts it out (no permission)
C = context
D = Done it Before
E = E Did It
F = False Impression
G = gets at witness

Question 4

What is agreement of the parties?

Answer 4

Where all of the parties agree to the character evidence being admissible, no formal requirements to record agreement.

D might do this to demonstrate they haven’t committed offence of kind charged before.

Question 5

What is “Blurts it Out”?

Answer 5

Where the bad character evidence is adduced by D himself or given in an answer to a question asked by him in cross-examination and intended to elicit it.

Question 6

What is important explanatory evidence?

Answer 6

Can only be used where prosecution trying to admit evidence.

• Without BCE, court or jury would find it impossible or difficult to properly understand other evidence in the case +
• BCE has substantial value for understanding the case as a whole

Often used to explain relationship between D and co-D or victim (e.g members of same gang).

Question 7

What is “Done it Before”?

Answer 7

Can only be used where prosecution trying to admit evidence.

• BCE is an important matter (i.e matter of substantial importance in context of whole case) in issue between the Defendant and the prosecution.

Question 8

When will something be considered to be “an important matter in issue between D and the prosecution” for s.101(1)(d)?

Answer 8

Where D has a propensity to:

1. Commit offences of the kind of which he is charged (except where propensity makes guilty no more likely);
2. Be untruthful
3. Offend in a particular way.

Question 9

When might D have a propensity to commit offences of the kind charged?

Answer 9

1. Same offence
2. Of same type (i.e theft, offences against the person)

R v Hanson:
(a) Does the history of convictions establish propensity to commit offences of kind charged?
(b) Does propoensity make it more likely that D committed the crime?
(c) If so, would it be unjust to admit the evidence because of time elapsed (s.103(3))? Would it be adverse to the fairness of the proceedings (s.78 PACE)?

No minimum number needed to establish propensity but fewer = weaker. However, single may be enough if it shows unusual behaviour.
* Strength of prosecution case = if strong, more likely to be admitted

Question 10

What might establish propensity to be untruthful?

Answer 10

• Not the same as propensity to be dishonest
• Might be that D gave evidence at previous trial that jury disbelieved or way offence committed involved being untruthful (e.g fraud by false representation, perjury).
• Not necessarily satisfied by dishonesty offences if they admit it and plead guilty.

Question 11

Which safeguard exists for s.101(1)(d) and (g)?

Answer 11

The court must not admit evidence via this gateway if, on application by D to exclude it, it appears to the court that the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it (s.101(3)).

Question 12

Which safeguard exists for s.101(1)(d) only?

Answer 12

Court has discretion to exclude evidence of propensity to commit offences of the same description or type if satisfied that, by reason of the time elapsed since the conviction or for any other reason, it would be unjust to admit the evidence.

Question 13

Which general safeguards apply to BCE?

Answer 13

• s.78 PACE 1984
• s.107 CJA 2003: court has discretion to stop case after close of prosecution case if satisfied that BCE is contaminated and contamination makes conviction unsafe.

Question 14

What is “‘E Did It”?

Answer 14

An important matter in issue between the defendant and co-defendant where the co-defendant is seeking to admit BCE about D.

• Admissible if it has substantial probative value in relation to an important matter in issue between co-D and D.
• Evidence of Ds propensity to be untruthful only admissible where D has sought to undermine co-Ds defence
• Only evidence adduced by co-D or which witness invited to give in cross-examination by co-D is admissible.

Question 15

What is “false impression”?

Answer 15

Only where the prosecution is seeking to admit BCE.

BCE is admissible to correct a false express / implied assertion which D is responsible for making and which is false or misleading - by words or conduct.

Responsible for Making where assertion is made:
* by D in proceedings
* by D on questioning under caution before charge for relevant offence
* By D on being charged or officially informed of possible prosecution
* By witness called by D
* By witness in cross-exam in response to question asked by D which was intended to elicit it or likely to do so
* Made by any person out of court + D adduces it in proceedings
* NOT where D withdraws and associates himself from it.

Question 16

What is “Gets at the Witness”?

Answer 16

BCE admissible if D:
* adduces evidence attacking another person’s character;
* asks questions in cross-exam likely to elicit such evidence or likely to do so;

on being questioned under caution, before charge, about offence or on charge.

Can be used to admit evidence of dishonesty. Attack on any person, living or dead.

Question 17

If BCE is admitted, what direction should the judge give the jury?

Answer 17

• Not to rely too heavily + cannot bolster weak case
• Not to conclude on guilt or untruthfulness merely due to past conviction
• Propensity is not enough to show guilt

No need to give this warning if BCE demonstrates D commits crimes in an unusual way.

Question 18

When can BCE which does not relate to the defendant be admitted?

Answer 18

1. Agreement
2. Context
3. Substantial probative value in relation to matter in issue in proceedings + of substantial importance to case as a whole.

“Probative Value” = similarity between offences / misconduct or suggested same person responsible. Nature and number of events.

Question 19

How can convictions and acquittals be proved for the purpose of BCE?

Answer 19

• Produce certificate of conviction signed by officer of relevant court + proof of identity.

Person presumed to have committed offence if convicted unless otherwise proved by D on balance of probabilities.

Question 20

What is the procedure for giving notice of BCE?

Answer 20

1. Prosecution give max 20 BD notice (mags) or 10 BD notice (Crown) after D pleads NG.
2. Co-D gives notice max 10 BD after prosecutor discloses material on which notice based.

Response max 10 BD after notice served.

Applications for 101(1)(c) and (d) usually in writing and orally on spot for other gateways.

Question 21

What powers does the court have in relation to dealing with BCE applications?

Answer 21

1. Determine with or without hearing
2. Announce decision at public hearing in absence of jury
3. Discretion to shorten or extend time limits or allow application in different form