Character Evidence Flashcards
Bad character definition
Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 thus:
‘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) 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.’
‘Misconduct’ is defined in s.112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’.
‘Reprehensible behaviour’ is not further defined in the Act, though there is case law on the issue. ‘Reprehensible’ connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered in law bad character. It is well established that evidence of membership of a gang is evidence of reprehensible behaviour.
Sources of bad character evidence
Bad character may be shown by any of the following:
- Previous convictions in the UK
- Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
- Cautions
- Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted
- Agreed facts that amount to reprehensible behaviour
- Witness evidence of a reputation for reprehensible behaviour
Acquittals and previous convictions
Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted.
The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences.
Z [2000] 2 AC 483
In this case (a rape case where the defence was consent) it was permissible for the prosecution to rely on four previous rape allegations where the same defence was advanced, three of which resulted in acquittals, to show that Z had a propensity to rape and to assert that consensual intercourse had taken place. All four 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.
The logical corollary of this position is that evidence of a previous conviction is in law a rebuttable presumption that the defendant committed the said offence thus the defendant is entitled to adduce evidence tending to show they were wrongly convicted.
Conduct which falls outside s.98
Section 98 CJA 2003 specifically excludes evidence of misconduct which:
(a) Has to do with the alleged facts of the offence with which the defendant is charged; or
(b) Is committed in connection with the investigation or prosecution of that offence.
Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character).
If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b).
Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant or another, evidence of that conduct will fall outside s.98.
Examples are offences of driving while disqualified where the prosecution will have to prove that the defendant committed an earlier offence and was disqualified as a result.
Attempts at jury tampering or witness intimidation are examples of misconduct connected with the investigation or prosecution of the offence, so evidence of those matters is not bad character evidence.
The decided cases seem to accept that evidence of the motive of the accused to commit the offence is evidence that has to do with the alleged facts of the offence.
Gateways for admissibility of defendant bad character evidence
a) Agreement
b) Blurts it out
c) Context
d) Done it before
e) ‘E did it
f) False impression
g) Gets at the witness
Agreement of the parties
‘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’
There is no need to make an application to the court for leave to adduce evidence through this gateway.
There are no formal requirements as to the recording of the agreement or how it is reached. A tacit agreement is enough.
Section 101(1)(b): Evidence adduced by the defendant
This allows defendants to introduce evidence of their own bad character.
‘Section 101(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”.’
There are a number of reasons why D may wish to do so. Reasons include:
- To come clean about an old conviction in order to receive a modified good character direction
- To show that D has never been convicted of an offence of the type with which D is now charged
- To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
- To show why police officers might have a bias against D
Leave of the court is not required to adduce evidence through this gateway.
Section 101(1)(c): Important explanatory evidence
Section 101(1)(c): ‘it is important explanatory evidence’. ‘Important explanatory evidence’ is defined in s.102 CJA 2003 thus:
‘(a) For the purposes of section 101(1)(c) 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.’
This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial.
Often the evidence will be to show the previous relationship between people involved in the trial without which it would not be possible to understand the narrative put forward by the prosecution.
Leave of the court is required to adduce evidence through this gateway.
Section 101(1)(d): Important matter in issue between the defendant and the prosecution
Section 101(1)(d): ‘it is relevant to an important matter in issue between the defendant and the prosecution’.
Section 112 says that ‘important matter’ means a matter of substantial importance in the context of the case as a whole.
Section 103 further explains the meaning of s.101(1)(d):
‘(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.
(2) Where subsection (1)(a) applies, 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—
(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.
(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.
(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 prescribed for the purposes of this section by an order made by the Secretary of State.
(5) Only prosecution evidence is admissible under section 101(1)(d).’
Section 101(3) provides that:
‘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.’
Propensity to commit offences of the kind with which D is charged
R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:
- Does the defendant’s history establish a propensity to commit offences of the kind charged?
- Does that propensity make it more likely that the defendant committed the offence charged?
- Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them (s.103(3))?
- In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))?
Propensity
In the same case, the court held that the following principles apply:
- There is no minimum number of previous convictions required to establish a propensity. The fewer the number of previous convictions, the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category as the offence charged might show propensity where it shows a tendency towards unusual behaviour.
- The strength of the prosecution case should be considered. It is unlikely to be just to admit bad character evidence where there is no or little other evidence against the defendant.
While propensity is usually shown by evidence of conduct before the alleged offence, it can be demonstrated by evidence of the existence of the propensity after the offence, provided that it is likely that the propensity is ongoing. For example, propensity to be involved in a racist murder can be shown by evidence of the expression by the accused of racist beliefs after the commission of the offence. It is for the jury to decide whether the accused’s racism is a recently-acquired character trait.
Important matters in issue
It is important to remember that while gateway d is often described as the “propensity gateway”, it is in fact concerned with all manner of important matters in issue between the prosecution and defence. An example of an issue other than propensity in a trial is that of identity. In such trials the prosecution may seek to adduce bad character evidence to support their case on identification.
Where the facts of previous convictions are so unusual as to constitute a “signature” of the offender’s mode of offending, the propensity itself is likely to be very powerful evidence against the defendant. In the pre-2003 case law these were termed “striking similarity” cases and based on the principle of “similar fact evidence”.
Straffen [1952] 2 QB 911
An example of striking similarity. Where in a trial for murdering a young girl by strangulation evidence was adduced that the defendant had previously been convicted of two similar offences. All three offences had the unusual feature that there had been no attempt at sexual assault and no attempt to conceal the body. In that case the only additional evidence against the defendant was that he was in the area and he had recently been released from Broadmoor secure psychiatric hospital. In such a case it is not necessary for the judge to give the usual warning not to convict solely or mainly on evidence of bad character.
Propensity to be untruthful
Also in R v Hanson the court held that a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a propensity where:
- There was a plea of not guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved; or
- The way in which the offence was committed involved being untruthful, e.g. fraud by false representation.
In practice this means that while burglary is categorised as a dishonesty offence, it does not logically follow that each and every burglar is untruthful. A person can commit a burglary and go onto admit it in interview and plead guilty, in such circumstances, it would incorrect to describe their behaviour as general untruthful.
Cross-admissibility
Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. Therefore a gateway is required to allow cross-admissibility of evidence of one offence as evidence of the other. The most likely gateway to fulfil this function is s.101(1)(d).
For example, where a man is accused of sexual assaults on both of his stepdaughters (A and B), evidence from A that she was assaulted is only evidence that the defendant committed offences against her unless it is admissible through gateway (d) to show a propensity to commit offences of the kind alleged, in which case it also becomes evidence against the defendant when the jury are considering the allegations made by B. In such a case, if a jury were sure that the defendant was guilty in respect of A and they were further sure that that conviction established a propensity to offend in a manner relevant to B’s case, the evidence can be lawfully deployed in that way.
Functions of the judge and jury
The judge is to determine whether evidence is capable of establishing a propensity.
If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show the propensity that is asserted.
Leave of the court is required to admit evidence through this gateway.
Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
Section 101(1)(e): ‘it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’.
Section 104 CJA 2003 states:
‘1 Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.
2 Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).’
Note that the fairness test in s.101(3) CJA 2003 does not apply to s.101(1)(e). Also, because by definition evidence that comes in through this gateway is not prosecution evidence, s.78 PACE Act 1984 does not apply to it. Therefore it is very hard for a defendant (D1) to exclude evidence of D1’s bad character where it is a co-defendant rather than the prosecution that seeks to adduce it.
While the propensity of the co-accused to commit offences of the type charged is not itself an issue between the co-defendants, evidence of such a propensity becomes admissible where one of them asserts that they have no such propensity, in which case the other defendant can adduce evidence of a propensity.
The effect of s.104 is that evidence of the co-defendant’s propensity to be untruthful is only admissible where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence.
Leave of the court is required to admit evidence through this gateway.
