Unit 4 – Character Evidence

Question 1

Evidence of a defendant’s bad character can be raised through one or more of the 7 gateways (s 101 (1) CJA)..

Answer 1

(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 D and the prosecution,

(e) It has substantial probative value in relation to an important matter in issue between D and a co-defendant,

(f) It is evidence to correct a false impression given by D, or;

(g) The defendant has made an attack on another person’s character.

Question 2

Gateway A –All parties to the proceedings agree to the evidence being admissible

Answer 2

• If the CPS and the defendant are in agreement that the evidence is admissible, it may be admitted under this gateway.

Question 3

Gateway 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.

Answer 3

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.

• Allows D to adduce evidence of their own bad character.
• Why? D may do this if they only have minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions.

– May do this where they pleaded guilty to previous convictions but are not pleading guilty to the current matter. D may use this to show when they have committed an offence, they plead guilty etc.

R v Paton – D raised evidence of his own bad character – tools in his car were for the burglary he committed earlier and not the alleged kidnapping.

Question 4

Gateway C – It is important explanatory evidence

Answer 4

• Only the prosecution may adduce evidence of D’s bad character under gateway C.

Evidence is important explanatory evidence if:

(a) Without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and

(b) The value of the evidence for understanding the case as a whole is substantial (‘substantial’ in this context is likely to mean more than merely trivial or marginal’).

– Where the evidence is clearly understandable without evidence of bad character, it should not be admitted.

– If prosecution establishes that the test for gateway C is satisfied, the court has no power under the CJA to prevent the admission of this evidence (they do, however, retain the discretionary power to exclude evidence under s 78 PACE).

Question 5

Gateway D – It is relevant to an important matter in issue between D and prosecution

Answer 5

Important matters in issue between D and the prosecution include:

(a) The question whether D has a propensity to commit offences of the kind with which he is charged (except where his having such propensity makes it no more likely that he is guilty of the offence); and

(b) The question whether D has a propensity to be untruthful (except where it is not suggested that D’s case is untruthful in any respect).

• Only the prosecution may adduce evidence of a D’s bad character under gateway (d).

Question 6

Gateway D – Subsection A) Propensity to commit the offence of the kind charged..

Answer 6

Test for propensity to commit the offence S 103(2) CJA:

D’s propensity to commit offences of the kind with which he is charged may 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.

Note – this does not apply in the case of a particular defendant if the court is satisfied that, as a result of the time which has passed since the conviction (or for any other reason), it would be unjust for it to be applied.

Question 7

“Offences of the same category”

Answer 7

a) Sexual offences category (sexual offences against children under 16 years)

b) Theft Category:

• Theft
• Robbery
• Burglary
• Aggravated burglary
• Taking a motor vehicle or conveyance without authority
• Aggravated vehicle taking
• Handling stolen goods
• Going equipped for stealing
• Making off without payment
• Any attempt to commit any of the above substantive offences
• Aiding, abetting, counselling, procuring or inciting the commission of any of the above offences

Question 8

“other offences” which demonstrate the propensity // same description …

Answer 8

• SIGNIFICANT FACTUAL SIMILARITIES – Where earlier offences do not sit within the same category as the current offence, if there are significant factual similarities between the offences, the evidence of D’s earlier conviction may still be admissible.

– E.g., in both crimes, D uses a knife, or kidnapped people, then this would mean a ‘significant factual similarity’.

Question 9

What are the Hanson guidelines for adducing evidence of D’s previous convictions to demonstrate propensity to commit offences of the same kind?

Answer 9

(a) Three questions need to be considered for gateway (d) to be used:

1. Does the defendant’s history of offending show a propensity to commit offences?
2. If so, does that propensity make it more likely that D committed the current offence?
3. If so, is it just to rely on convictions of the same description or category?

– Only if all of these are satisfied should the convictions be allowed in evidence.

Question 10

Gateway D – Subsection B) Propensity to be untruthful

Answer 10

• A D’s previous convictions will not be admissible to show D has a propensity to be untruthful unless:

(a) The manner in which the previous offence was committed demonstrates that D has such a propensity (because they had made false representations) or;

(b) The defendant pleaded not guilty to the earlier offence but was convicted following a trial at which D testified and was not believed – raises presumption of untruthfulness.

Question 11

Subsection b ) propensity to be untruthful …

Answer 11

Key distinction between “dishonest” and “propensity to be untruthful”.

Untruthful = D had actively sought to deceive or mislead another person by making false impressions. Key part is DECEPTION – includes previous convictions for perjury / offences involving deception of another (e.g., fraud / fraud by false representation).

Question 12

Does a conviction following a not guilty plea satisfy the propensity to be untruthful?

Answer 12

Yes.

Question 13

When is the court likely to exclude evidence under gateway D?

Answer 13

S 101(3) CJA = If the admission of the evidence would have an adverse effect on the fairness of the proceedings, the court ought not to admit it.

Courts likely to use this where:

(a) Nature of D’s previous convictions are likely to convince the jury to convict a defendant on the basis of these alone, rather than examining the other evidence placed before them, or where the evidence of previous convictions is more prejudicial than probative.

(b) When the prosecution seeks to adduce previous convictions to support a case which is otherwise weak.

(c) When D’s previous convictions are ‘spent’. (Rehabilitation of Offenders Act 1974 – provides that after a prescribed period of time, certain convictions are spent. I.e., the person is treated as having never been convicted).

– Act does not specifically prevent ‘spent’ convictions from being admissible in evidence in subsequent criminal proceedings, however, it is likely that the court will exercise its power under s 101(3).

– Court must have regard to the length of time between the matters to which that evidence relates and the matters which from the subject of the offence charged.

Question 14

Spent timings

Answer 14

Fine – 1 year
Community order – 1 year
Custodial sentence up to 6 months – 2 years
Custodial sentence between 6 and 30 months – 4 years
Custodial sentence between 30 months and 4 years – 7 years
Custodial sentence over 4 years – never spent.

Question 15

For the bad character evidence, what is the court’s ability to exclude it?

Answer 15

S 101(3) CJA = If the admission of the evidence would have an adverse effect on the fairness of the proceedings, the court ought not to admit it.

Question 16

Gateway E – It has substantial probative value in relation to an important matter in issue between D and co-defendant.

Answer 16

• This cannot be used by the prosecution.
• This gateway may be used by one defendant to admit evidence of another defendant’s bad character.

Question 17

What are the tests for gateway E?

Answer 17

1) Propensity to commit offences of same kind:

• A co-defendant who seeks to introduce evidence of a D’s previous convictions for this purpose will need to demonstrate:

a) that such convictions are relevant to an important matter in issue between himself and the defendant, and;

b) that the relevance of the convictions are more than merely marginal or trivial.

2) Propensity to be untruthful:

Relevant where the defendants enter into a “cut throat” defence.

• Cut throat defence = occurs where there are two or more Ds jointly charged with an offence, and each D blames the others for having committed the offence.
• Most relevant offences: false representation/statement, or where D has pleaded not guilty previously but was convicted anyhow.

Question 18

Can the court seek to exclude evidence under gateway E under the CJA?

Answer 18

No power under CJA – but may still use S 78 PACE.

Question 19

Gateway F – It is evidence to correct a false impression given by the defendant.

Answer 19

Only the prosecution can adduce evidence of a D’s bad character under gateway (f).

• A D will give a false impression ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’.
• A defendant will be treated as being responsible for making such an assertion if the assertion is:

(a) Made by the defendant in the proceedings (e.g., when giving evidence in the witness box, or in a defence statement served on CPS)

(b) Made by D when being questioned under caution by the police before charge, or on being charged;

(c) Made by a witness called by D;

(d) Made by any witness in cross-examination in response to a question asked by D that is intended to elicit it;

(e) Made by any person out of court, and D adduces evidence of it in the proceedings.

Question 20

Does the court have discretion under CJA to exclude evidence under gateway F?

Answer 20

No. But may still use S 78 PACE.

Question 21

Gateway G – D has made an attack on another person’s character.

Answer 21

• Only prosecution can adduce evidence of D’s previous convictions under gateway G.

“Attack on another person’s character”

• Attack does not necessarily need to be on the character of a witness for the prosecution who is attending court to give evidence.
• Can be an attack on the character of someone who is dead, of a person who the prosecution does not intend to call to give evidence.
• The attack does not need to take place at trial & may be made while D is being interviewed at police station, or in a defence statement which is served on the CPS.

Evidence attacking another person’s character is evidence to the effect that the other person has:

(a) Committed an offence (whether a different offence from the one which D is charged, or the same one); or

(b) Behaved, or is disposed to behave, in a reprehensible way.

Question 22

Does the CJA give the court power to exclude evidence under gateway G?

Answer 22

Yes.

Question 23

Summary – What are the court’s powers to exclude defendant’s bad character evidence?

Answer 23

CJA gives court power to exclude bad character evidence under gateway (d) and (g).

• CJA = bad character evidence under gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of them is satisfied.

Discretionary power: s 78 PACE

• Court retains a discretionary power under s 78 to exclude evidence which prosecution proposes to rely if the admission of the evidence would have an adverse effect on the fairness of the proceedings.
• Judges should apply the provisions of s 78 when making rulings as to the use of evidence of bad character, and exclude evidence where it would be appropriate to do so under s 78.

Question 24

Where evidence of D’s bad character is adduced and is “contaminated” what can the court do?

Answer 24

• S 107 CJA allows a judge in the Crown Court to:

(a) Direct the jury to acquit the defendant or;

(b) To order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’.

– “Contamination” = Contamination may occur if witnesses have colluded in order to fabricate evidence of D’s bad character.

– S 107 does not apply to trials in the magistrates’ court

Question 25

What are the formalities for adducing evidence of D’s bad character?

Answer 25

1) Notice of this intention to adduce bad character evidence must be given to both court and other parties.

2) Prescribed form must be used, with a written record of the previous convictions the party giving the notice or making the application is seeking to adduce being attached to the form.

Question 26

On what grounds can evidence of the bad character of a person other than a defendant be admissible?

Answer 26

(a) It is important explanatory evidence,

(b) It has substantial probative value in relation to a matter which –

1. Is a matter in issue in the proceedings, and
2. Is of substantial importance in the context of the case as a whole, or

(c) All parties agree to the evidence being admissible.

Question 27

a) Explanatory evidence

Answer 27

The evidence will be important explanatory evidence only 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;

“substantial” = more than merely trivial or marginal.

Note – If a party wishes to adduce evidence of bad character of a person other than D under subsection (a), then leave of the court is required.

Question 28

b) it has substantial probative value in relation to an important matter in issue in the proceedings

Answer 28

Most likely arises where D seeks to adduce evidence of the previous convictions of a witness for the prosecution to support an allegation that either:

– The witness is lying or has fabricated evidence against D; or

– The witness themselves is either guilty of the offence with which D has been charged or has engaged in misconduct in connection with the alleged offence.

R v Weir – Evidence of the bad character of a witness which is adduced under subsection (b) may be used to show that the witness engaged in misconduct in connection with the offence, or to show the evidence given by the witness lacks credibility because they have a propensity to be untruthful.

To assess the probative value of the evidence of another person’s previous convictions, court must regard:

– Nature, number of events, or other things to which the evidence related; and;

– When those events or things are alleged to have happened or to have existed (s 100(3).

“Substantial” = more than merely marginal or trivial.

Question 29

Can previous convictions of a witness be adduced?

Answer 29

Previous convictions of a witness for the prosecution which may be used to suggest that the evidence given by the witness lacks credibility may be:

(a) Convictions for offences where the witness has made a false statement or representation – E.g., perjury, fraud by false representation, theft where witness has lied to another person as part of the commission of the theft); or

(b) Convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events was disbelieved.

R v Stephenson – Previous convictions of a witness which demonstrated a propensity to be merely dishonest, as opposed to untruthful, may still be admissible to determine the credibility of the witness.

Question 30

What is required if a party wishes to adduce evidence of the bad character of a person other than D?

Answer 30

1) Leave of the court

2) If all parties to the case are in agreement, evidence of the bad character of a person other than D will always be admissible