Bad Character

Question 1

If something is not BC, what are the rules for admitting the evidence?

Answer 1

Relevancy, subject to S78 PACE

Question 2

How does S78 CJA define BC?

Answer 2

Evidence of, or disposition towards, misconduct, other than which is to do with the facts of the case or in connection with the investigation

Question 3

How is misconduct defined?

Answer 3

Commission of offence or reprehensible behaviour

Question 4

What did Clarke 2015 say about misconduct D intend to rely on for reasons independent of the actual misconduct i.e prisoner officer IDing defendant?

Answer 4

This does not count as BC, although may be worthwhile making a S101 application in case the circumstances do come out in evidence

Question 5

What did Norris 2013 say about misconduct subsequent to a previous offence i.e racially motivated assault showing tendency to harbour racist views?

Answer 5

This does count as BC

Question 6

What is the test for foreign convictions to be used as BC?

Answer 6

Is there a corresponding offence in the UK?

Question 7

Can a jury use a defendants multiple charges on one indictment as evidence for the other charges?

Answer 7

No, unless a statutory gateway is used then the Judge MUST direct the jury not to do this

Question 8

While acquittals and decisions not to prosecute can be used as BC in some circumstances (Z 2000), what must pros be careful not to do?

Answer 8

Punish D for offences he has been acquitted of (Alexander 2024)

Question 9

How is reprehensible behaviour defined?

Answer 9

Some element of culpability or blameworthy

Question 10

Which one of the following constitutes reprehensible behaviour?
a) Morally Lax (Old man sleeping w 16 yo)
b) Inconvenient and upsetting behaviour
c) violent rap lyrics

Answer 10

c) violent rap lyrics

Question 11

What is S100 and S101 of CJA

Answer 11

Statutory gateways to admitting BC for witness and accused respectively

Question 12

Is there a statutory gateway that allows police misconduct to be admitted as BC?

Answer 12

Yes, S100

Question 13

What are the 3 ways in which BC can be admitted under S100 (1)?

Answer 13

a) It is important explanatory evidence
b) It is substantive probative value
c) All parties agree to it being admitted

Question 14

For the 3 ways in which BC can be admitted under S100, which ONE does not require approval from the Court?

Answer 14

c) BC admitted by agreement

Question 15

Does S100 apply to anyone or only witnesses giving evidence?

Answer 15

S100 applies regardless of whether a witness is called to give evidence

Question 16

Is the S100 probative value test the same for witnesses, co-accused and accused?

Answer 16

There is a different test for Pros to admit BC against D

Question 17

Does Judge have discretion to refuse an application under S100(1)?

Answer 17

Where the conditions of S100 are met, no Judge does not have discretion, they only have Judgement.

Question 18

In what way can Judge say to have discretion over a S100(1) application?

Answer 18

S78 PACE still applies to BC, therefore Judge must exercise discretion here.

Question 19

What test must Judge apply when deciding whether to admit BC under S100(1)(a) of CJA?

Answer 19

1) w/o would jury find it very difficult or impossible to understand the case
AND
2) is it’s value for understanding the case as a whole substantial

Question 20

What meaning does the court give to the word substantive?

Answer 20

Ordinary

Question 21

What are the two matters in which probative value may relate to for an application under S100(1)(b)?

Answer 21

i) an issue in proceedings, or
ii) a substantive issue for the case as a whole

Question 22

What question does court have to consider when hearing an application under S100(1)(b)?

Answer 22

Does BC show propensity to do what D says they did (this is not tested to criminal standard or balance of probabilities). Must ADD value, not reiterate something already known.

Question 23

What 4 things must court have regard to when considering whether to admit BC due to it’s probative value under S100(1)(b)?

Answer 23

i) nature, age and number of events
ii) similarity between BC misconduct and alleged misconduct
iii) nature and extent of dissimilarities
iv) where there is an accusation that it was actually the witness who committed the offence, what other evidence is there to suggest this?

Question 24

What additional considerations are there for admitting BC under S100(1)(b) where the issue is self-defence?

Answer 24

• Did D know of BC at the time?
• Evidence of drug use may be admissible as it goes to unreliability and unpredictability
• Once propensity demonstrated, no need to give more ammunition than needed to the jury

Question 25

What is an example of when to be careful not to admit BC based on stereotypes?

Answer 25

A V might still spend time with/rely on her rapist

Question 26

What 2 ways can BC add substantial probative value to the narrative of uncredibility?

Answer 26

1) evidence that goes directly to unreliability 2) indirect evidence that suggests witness is not to be trusted

Question 27

What is the test for whether to admit BC on the basis of substantive probative value in relation to witnesses credibility?

Answer 27

Is BC capable of assisting a fair minded jury as to whether the evidence is worthy of belief

Question 28

Can evidence admitted under S100(1)(c) be appealled?

Answer 28

Unlikely

Question 29

When should a Judge be informed of parties' intention to admit BC under S100(1)(c)?

Answer 29

At start of the trial in line w/ BCM

Question 30

When is BC admissible under S101?

Answer 30

a) all parties agree b) BC is adduced by D in EIC/XX (and he intended as such) c) it is important explanatory evidence d) it is relevant to an important fact in issue e) it has substantive probative value for co-accused f) it correct false impression given by D g) D has attacked another's character

Question 31

In which of the 7 gateways of admissibility under S101 can D apply to keep BC excluded on the basis of adverse effects on fairness of trial [S101(3)]?

Answer 31

d (relevance to important fact or issue) or g (attack on another's character). Judge should consider length of time passed and nature of alleged offence. MAY be possible for (c) & (f), but may not be therefore Judge should be extra cautious before allowing BC to be admitted through these gateways (and gateways d & g should be preferred for this reason)

Question 32

Why would D adduce BC against himself via gateway S101(1)(b)?

Answer 32

So that D may receive a modified good character direction (i.e D has never done anything THIS serious in the past) however this can backfire, as Judge entitled to point out to jury ways in which BC hurts Ds case too.

Question 33

Can D complain/appeal decision to adduce BC about himself?

Answer 33

Not where he goes against advice of Counsel in doing so

Question 34

What should the Judge do if the basis/truth of the BC is disputed between parties?

Answer 34

Judge should consider it's probative value and relevance on the basis that it is true, unless no jury could ever consider it true

Question 35

Does Judge have discretion as to whether exclude BC, that would otherwise be admissible under S101(1)(d) or (g) on the basis that is would effect fairness of trial?

Answer 35

No, except where S78 need also be considered.

Question 36

What is likely to be needed to accompany evidence admitted under (c) [explanatory evidence]?

Answer 36

A careful direction.

Question 37

What four things should a Judge take into account before admitting BC under S101(1)(d) [relevance to important issue in case]?

Answer 37

i) does it show propensity to same kind of offending? ii) does it show propensity to untruthfulness (where untruthfulness is issue in case) iii) how much time has passed? iv) is it same category of offending (as defined by SoS)?

Question 38

How is BC test for probative value different for pros admitting BC against Defs vs BC against witnesses or Ds against co-Ds

Answer 38

The bar is lower for admitting BC against Ds. Does not need to be of substantive probative value but just needs to go to important issues in the case. CoA unlikely to rule against admission of BC against D unless it is 'plainly wrong'

Question 39

What is the test in Hanson 2005 for whether evidence shows a propensity to commit the alleged offence (limb (d) of S101(1))

Answer 39

1) is this misconduct of a similar kind? 2) Does this propensity make it more likely that D is guilty? 3) were convictions in the same category and would it be unfair to admit?

Question 40

Is a single incident likely to be probative?

Answer 40

Yes, if it is sufficiently probative i.e sexual assault or arson

Question 41

What is signature evidence?

Answer 41

Where there is some unusual feature of D's past offending that also appears in alleged offending and therefore helps to ID Def.

Question 42

Can jury convict wholly or substantially on signature evidence?

Answer 42

Yes! One of the likely instances where they can do so

Question 43

Who can admit evidence via gateway S101(1)(f)?

Answer 43

Prosecution alone

Question 44

What is the test as to whether BC is admissible to correct a false impression created by D?

Answer 44

Would the correction be of probative value, and is the BC no more than enough to correct false impression?

Question 45

Where D creates false impression of himself in interview, should it be edited out?

Answer 45

No, pros should be allowed to correct this false impression in front of jury

Question 46

If Pros use BC to correct a false impression, but that BC is later quashed on appeal, what happens to D's conviction?

Answer 46

It is unsafe

Question 47

Who can admit evidence via gateway S101(1)(g)?

Answer 47

Prosecution alone.

Question 48

Do questions asked by police or P csl that reveal a witness' BC give rise to the gateway S101(1)(g)?

Answer 48

Qs asked by Police do, but questions asked by pros csl do not.

Question 49

Can P csl provoke D to reveal BC about witness so that they can access S101(1)(g) gateway?

Answer 49

No!

Question 50

If D suggested they were acting in self-defence against witness, would this constitute an attack on witness' character for the purposes of S101(1)(g)?

Answer 50

No

Question 51

If D suggested witness had perverted the course of justice, would this constitute an attack on witness' character for the purposes of S101(1)(g)?

Answer 51

Yes

Question 52

If D made general accusation that witness was lying, would this constitute an attack on witness' character for the purposes of S101(1)(g)?

Answer 52

No

Question 53

If D implicitly mounts defence that other person did the crime, even if this is the only other explanation, would this constitute an attack on witness' character for the purposes of S101(1)(g)?

Answer 53

Yes

Question 54

Does S101(1) gateway (g) apply to people who are not witnesses?

Answer 54

No, unless accusation is super grave

Question 55

Does BC admitted under S101(1) gateway (g) need have any probative value?

Answer 55

No, must only allow jury to help make a decision on whether to believe D's attack on witness' character

Question 56

When must P/D give notice that they wish to apply to adduce/exclude BC?

Answer 56

Asap but at least before evidence is given

Question 57

Can late BC apps be made?

Answer 57

Yes, judge has discretion to allow last minute apps and this is not limited to exceptional cases. However, judge must reach decision based on fairness and not as a punitive measure

Question 58

How can proof of pre-con be obtained for purposes of bad character?

Answer 58

S73 certificate under PACE, h/e ultimately a question of fact for the jury to decide

Question 59

What process does a Judge go through when deciding to admit ANY and ALL BC (Edwards 2005)?

Answer 59

1) Can it be admitted under a gateway? 2) Should it be excluded under S101/101(3) or S78 PACE? 3) While question of what weight to put on BC is for jury, Judge should (a) direct as to use evidence should be put (why evidence has been admitted) and (b) stop any contaminated evidence 4) If ground of evidence has shifted since the start of the trial, may be necessary to tell the jury that BC is of little weight

Question 60

What does Vye 1993 say about how a Judge should direct a jury as to BC?

Answer 60

1) J should give warning as to relying on pre-cons 2) J should stress that BC cannot be used to bolster a weak case 3) Emphasize that jury should not just infer guilt from pre-cons

Question 61

When should good character directions be given in relation to D?

Answer 61

When D is of absolutely good character, although failure to give one would not render a conviction unsafe. Judge MAY give good character direction when D is of partial/effective good character.

Question 62

When should a good character direction be given in relation to a witness?

Answer 62

When it goes directly to a trial issue i.e rebutting argument of provoked attack

Question 63

What should Judges be careful of when giving a direction of partial good character?

Answer 63

Not to give impression of full good character

Question 64

Is there an expectation of effective good character where offending is old and irrelevant?

Answer 64

No!

Question 65

Do PNDs or warning letters inhibit good character?

Answer 65

No - no admission of guilt

Question 66

Do cautions or foreign convictions inhibit good character?

Answer 66

Yes - wherever there is an admission of guilt

Question 67

Can a D opt out of Judge giving partial direction?

Answer 67

Yes! They may want to do so as it may accidentally paint them in a worse light

Question 68

While Judge has broad discretion as to whether to give partial good character, particularly where there is no pre-cons but there is other BC, what is the one rule?

Answer 68

No directions that are meaningless or absurd!

Question 69

What must Judge do when D disputes BC took place?

Answer 69

Be extra careful with direction!

Question 70

What is the standard good character direction (Vye 1993)?

Answer 70

1) Credibility (given where D relies on exculpatory stmt) 2) Propsensity (d given to all accused with good character)

Question 71

Is J obliged to give good character direction on credibility where D does not testify at trial but has given previous exculpatory stmts?

Answer 71

Yes

Question 72

Why should S101(1)(f) be used carefully?

Answer 72

Gateway (g) should not be overused and requires careful analysis of the specific assertion the accused has made that is alleged to be false (Ullah [2006] EWCA Crim 2003. The BC must also have probative value in correcting a false impression

Question 73

Who is gateway e of S101(1) available to?

Answer 73

csl for Co-D only

Question 74

What does Campbell tell us about how a jury can interpret BC once admitted?

Answer 74

Once BC admitted through relevant gateway, the jury do not need to be directed to only consider in relation to that specific gateway. It is up to the jury how they wish to consider the evidence.