Character Evidence

Question 1

What is the definition of bad character under s98 CJA 2003

Answer 1

evidence of, or disposition towards, misconduct other than evidence which has to do with alleged facts of the charged offence or is evidence of misconduct in connection with the investigation or prosecution of that offence

Question 2

what does misconduct mean?

Answer 2

commission of an offence or other reprehensible behaviour - any evidence suggesting guilt whether or not charged

Question 3

must the misconduct be previous to commission of current offence?

Answer 3

no can be subsequent - drawn from any point before or during investigation/trial

Question 4

What previous convictions can be relied upon?

Answer 4

any convictions in UK or other EU member state - whether before their membership of EU or after
consider they may be excluded if it can be shown that verdict might be unsafe e.g not understanding meaning of offence even though they pleaded guilty

Question 5

What must party seeking to rely on previous conviction be ready to provide if neccesary

Answer 5

details and circumstances of previous offence

Question 6

What is the principle of cross-admissibility of bad character to multiple charges

Answer 6

a gateway must exist for consideration of bad character for every individual offence - application must be made - failure may mean D entitled to have case decided as if inadmissible

Question 7

what makes behaviour reprehensible?

Answer 7

fact specific - relevant to the facts of the case
e.g extra-martial affair in ABH charge not relevant
messages detailing desire to stab or gang membership generally yes

Question 8

What does s100 CJA 2003 provide

Answer 8

stat scheme for introduction of evidence of bad character - leave of court needed for all apart from party agreement

Question 9

Give examples of what s98(b) could be used to admit (D perspective)

Answer 9

evidence of police lying in interview, fabricating evidence, unlawfully obtaining evidence, intimidating witnesses etc.

Question 10

What are the 3 headings under s100 CJA 2003 for admissibility of bad character evidence

Answer 10

importance explanatory evidence
substantial probative value in relation to a matter in issue and is of substantial importance in the context of the case as a whole OR
all parties agree

Question 11

What is application of s100

Answer 11

all aspects of use of bad character other than the accused in XIC or XX whether or not appearing as a witness
e.g statement admitted under hearsay or character of the deceased in murder trial

Question 12

What is important explanatory evidence?

Answer 12

without it - court would find it impossible or difficult to properly understand other evidence in the case
its value for understanding the case as a whole is substantial (in context of other evidence)

Question 13

what is the meaning of substantial?

Answer 13

1 - importance in the context of the case as a whole
2 - probative value in relation to the matters in issue

Question 14

what matters are relevant to probative value?

Answer 14

nature and number of events or things
when the events or things are alleged to have happened
nature and extent of similarities where it suggested that its value lies in similarity OR
extent to which evidence shows or tends to show that the same person is responsible each time where ID of person responsbile is disputed and it is suggested another may be responsible

Question 15

What two types of evidence of bad character were defined in brewter

Answer 15

direct and indirect
direct - reason to doubt truth of witness
indirect - general reason for suggesting witness not to be trusted

Question 16

what common law rule is preserved by s99(2) CJA

Answer 16

proving bad character via repuatation

Question 17

When need a court not assume evidence is true?

Answer 17

if it appears on the basis of material before the court than no court or jury could reasonably find it to be true

Question 18

what must a court do if they find evidence to be contaminated to extent verdict would be unsafe?

Answer 18

direct acquittal or discharge jury if retrial required

Question 19

what is the meaning of contaminated?

Answer 19

as a result or agreement or understanding, or as a result of being aware of anything alleged - the evidence is false or misleading, or different to what it would otherwise have been

Question 20

What is the effect of s101(1)(b) (blurts it out)

Answer 20

D may adduce evidence of own character - e.g criminal record iot lay out blank or dissimilarity
judge should direct jury accordingly - HUnter

Question 21

what are the 8 gateways?

Answer 21

a - agreement
b - blurts it out - D may adduce
c - context of case
d - done it before - pre-cons propensity etc relevant to important issue
e - ‘e done it - co-accused/other
f - false impression - correct
g - gets at the witness - attack on another

Question 22

What mandatory power is contained in s101(3)

Answer 22

Court MUST not admit evidence under ss(1)(d) or (g) if on app by D it appears to the court that the admission of this evidence would have such an adverse effect on fairness that court ought not to admit it
D must apply - not court of own motion

Question 23

Where evidence is admitted under one gateway - what should court properly do to protect fairness if not relevant to others?

Answer 23

direct that this evidence be considered only in relation to one aspect.
careful of this being artificial - is possible that evidence can be doubly relevant

Question 24

what is the result of judge failure to give direction to jury on handling of bad character evidence?

Answer 24

not automatically ground for appeal as does not necessarily render the verdict unsafe - but judges should not assume juries have same common sense and so summing up is preferred

Question 25

what evidence is admissible under s101(1)(c)

Answer 25

context - explanatory evidence
evidence without which it would be impossible or difficult to understand the evidence in the case - provided value for understanding is substantial

Question 26

what are prosecution required to show of evidence seeking to admit it under s101((1)(d) (done it before0

Answer 26

relevant to an important matter in issue between prosecution and defence
important = substantial in context of case as a whole
probative value of no matter

Question 27

what categories to prescribed offences to show propensity fall into?

Answer 27

theft (dishonesty)
sexual offences - persons under the age of 16
other ways of showing propesnsity exist

Question 28

how does pre-trial disclosure aid parties making applications to adduce evidence under s101(1)(d)

Answer 28

can identify relevant matters in issue
if doubt- ruling on admissiblity should be delayed

Question 29

what is the impact of multiple accusations?

Answer 29

more likely to be true than just one
gateway required to faciliate cross-admissibilit

Question 30

when can evidence be adduced under s101(1)(e) ‘e done it - co-accused

Answer 30

where it has substantial probative value in relation to an important issue

Question 31

what evidence can be adduced under gateway e

Answer 31

evidencence of propensity not directly suggestive of untruthfulness admissible for all relevant pruposed including credibliity

Question 32

what constraints are there on a gateway e app

Answer 32

no statutory discretion to restrain co-accused from adducing evidence of bad character but power to disallow a late application where target would be unable to deal with if effectively

Question 33

when can gateway f be used?

Answer 33

by prosection only
correcting a false impression - where that is created by D or another witness in XIC or XX

Question 34

what creates false impression

Answer 34

issue of fact - even an accused who makes admissions of ‘full history’ warts and all may be concealing further reprehsnible behaviourl

Question 35

ideally when should false impression be corrected

Answer 35

as and when it arises - rather than at close of D case

Question 36

what are the grounds under s101(1)(g) (attacks on another person’s character)

Answer 36

counter attack an attack on another person
attack = adducing evidence directly/trhough questioning of another committing an offence or behaving in a reprehensible way

Question 37

what is proof of conviction under s73 PACE 1984

Answer 37

certificate of conviction or acquittal accompanied by proof that the person named on the certificate is the person who’s conviction/acquittal is in issue

Question 38

are convictions of one person admisisble at the trial of another

Answer 38

yes under s74(1) PACE
with the presumption that they are correct - burden on the party against whom the presumption operates to prove otherwise and if that is the D then must do so on balanace of probs

Question 39

how should a court handle evidence adduced under s98(a) - to do with alleged facts

Answer 39

consider the fine line between this and gateway evidence - must always give a direction for how jury should consider this kind of evidence

Question 40

when should an accused who wishes to adduce evidence of their own bad character notify the court and parties

Answer 40

notice in writing or orally asap and in any event before evidence introduced

Question 41

what guideline governs bad character application and how should it be used

Answer 41

crim PR part 21 - written application or undertake to do this promptly, judge ruling

Question 42

when might an accused waive notice or court allow notice in different form?

Answer 42

where it is in the interests of justice to do so

Question 43

what should court consider when rules have not been complied with?

Answer 43

consider exercising their power to vary notice requirements - depending on fairness

Question 44

what must an application notice for D bad character include

Answer 44

facts of misconduct on which party relies
explain how these will be proven if another party disputes them
explain why evidence is admissible

Question 45

when must an application for non-D bad character be made and how can it be objected to?

Answer 45

not more than 10 business days after disclosure of relevant material
object not more than 10 business days after application inlcuding:
which facts are disputed/admitted
why evidence inadmissible
any other objections

Question 46

what powers does the court have in determining an application for non-D bad character

Answer 46

hearing/private/no hearing
no determination without presence of parties other than applicant and 10 business days to object have elapsed
may adjourn or discharge application

Question 47

when must a prosecutor serve an application for Ds bad character

Answer 47

20 business days after D pleads NG in mags
10 business days after D pleads NG in CC

Question 48

when must a co-D serve notice

Answer 48

ASAP and in any event NLT 10 business days after material on which it is based is disclosed

Question 49

how can a party object to bad character app

Answer 49

apply to the court to determine the objection not more than 10 business days after receipt
facts admitted/disputed
why evidence inadmissible
why it would be unfair to admit it
any other objection

Question 50

what is the common law principle of good character

Answer 50

entitled to a direction of good character as of right if absolute (vye)

Question 51

in what limited circs might a good character direction be available for someone other than the accused?

Answer 51

where directly relevant to an issue - eg non-violent tendencies of the deceased in determining who was the aggressor

Question 52

what was the impact of Hunter?

Answer 52

benefit of good character direction had been wrongfully extended - new principles for application and discretion for modified direction if at all
not giving one where potentially entitled does not render conviction unsafe

Question 53

what is the true rule in Hunter as to who is entitled to a good character direction

Answer 53

Only Ds with absolute good character or who are deemed to be of effective good character are entitled to any judicial direction

Question 54

what is absolute good character?

Answer 54

no previous convictions
no other reprehensible conduct alleged, admitted or proven

Question 55

what direction should be given when it is judged that a D is of effective good character?

Answer 55

entitled to the full direction but should be modified to make jury aware of things which mean they are not of absolute good character

Question 56

is it possible to be entitled to only part of the good character direction (propensity and credibility)

Answer 56

technically yes, although Hunter argues that if not entitled to one part cant be of effective good character - the court has discretion here

Question 57

what should be taken into account when assessing precons for effective good character

Answer 57

age, frequency, type - not exhaustive and overall fairness should be considered by judge in deciding whether to give any/partial/full direction

Question 58

what is consequence of D adducing bad character evidence that prosecution do not rely on

Answer 58

jury entitled to draw same inferences as the court without direction necessary

Question 59

what is the hunter absurdity principle

Answer 59

an accused who has no precons but misconduct is relied upon by prosecution - trial judge has discretion to weave into bad character direction some good character but not insofar as it would be absurd to do so (meaningless)

Question 60

what are the components of a good character direction (hunter)

Answer 60

first limb - positive - credibility of D
second limb - negative - less likely to have committed offence (propensity)
weight to be given to each is matter for jury

Question 61

When might a Vye direction be used

Answer 61

where accused of good character does not give evidence but relies on exculpatory statements direction should be made as to how to give weight to these as opposed to evidence given under oath
where no previous statement made or relied upon 1st limb can be dispensed with entirely as no issue of credibility arises

Question 62

what are the 4 questions in hanson RE propensity

Answer 62

• does Ds history establish propensity to commit offences of the kind charged
• does that propensity make it more likely that D committed the offence charged
  -where previous offences are of the same description or category would it be unjust to admit
• in any event, wouldproceedings be unfair if evidence admitted

Question 63

when might acquittals be taken into account as evidence of bad character?

Answer 63

e.g 3 previous acquittals for sexual assault/rape - evidence of complainants taken together , despite acquittal, makes probative value significant - still subject to exclusionary rules

Question 64

define reprehensible behaviour

Answer 64

culpability or blameworthiness , not just morally lax