DRafting - application to exclude BCE

Question 1

What do you fill out in case details box?

Answer 1

Name is defendant, court, case Reference Number, charges including date e.g. unlawfully and maliciously wounding Joseph Smith, with intent to do him grievous bodily harm on date.

Question 2

What is the first box on application to exclude?

Answer 2

Fact of misconduct in dispute - the fact is disputed and the fact you admit instead.

Question 3

What goes in the box two on application to exclude?

Answer 3

Reasons for objecting the notice explaining: (a) why the bad character evidence is not admissible by reference to the provisions of the criminal justice act 2003 relied on in the notice to include them; (b) if you are the defendant named in the notice, why it would be unfair to admit the evidence; (c) what other objections you have to the notice.

Question 4

What goes in box 3?

Answer 4

Any reasons for any extension of time required or why the application is served late. May not apply.

Question 5

On what grounds is the BCE introduced on CPS application?

Answer 5

Criminal Justice Act 2003:

s101(1)(c) - important explanatory evidence
s101(1)(d) - relevant to important matter in dispute between D and P
s101(1)(e) - substantial probative value re matters in issue between D and Co-D
s101(1)(f) - correct false imp
s101(1)(g) - D made attack on character

Question 6

What are the two ways to challenge gateway (d) with the factors that can be applied?

Answer 6

1. Previous convictions put forward to not establish the relevant propensity so gateway D is not established and the evidence is not admissible
   a) number: 1 may not show prop
   b) same kind: do facts differ, or unjust to rely given time lapse (s.101(3))
   c) Untruthful: is there anything to suggest D is being untruthful, i.e. untruthful offence (not dishonesty) or prev pleaded NG and convicted (not if pleaded guilty)
2. If admissible, can the court be persuaded to exclude the evidence under s101(3) - must not admit if such adverse affect on fairness of proceedings:
   a) conviction is prejudicial > probative as D would be convicted on those facts alone;
   b) Pros case otherwise weak;
   c) offence spent (e.g. if already fined/CO, this would be spent after 1 year).

Question 7

What is the way to exclude evidence under gateway g?

Answer 7

If the evidence is admissible, can the court be persuaded to exclude it under mandatory power of s.101(3) where the evidence would have such an adverse effect on the fairness of the proceedings, e.g. because:
a) jury finding out about sexual assault offences would outweigh probative value of determining guilt of AOABH
or
Nature of previous convictions mean jury likely to convict D on the bases of these alone rather than examining other evidence

b) pros case otherwise weak

c) convictions spent