3.7 Bad character - defendant

Question 1

How many gateways are there to adducing evidence of bad character against a defendant?

Answer 1

Section 101 Criminal Justice Act 2003

Seven

Question 2

Where are the gateways to adducing evidence of bad character against a defendant to be found?

Answer 2

Section 101 Criminal Justice Act 2003

Question 3

What are the gateways to adducing evidence of bad character against the defendant?

Answer 3

Section 101(1) Criminal Justice Act 2003
(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 the defendant and the prosecution,
(e)
it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
(f)
it is evidence to correct a false impression given by the defendant, or
(g)
the defendant has made an attack on another person’s character.

Question 4

What is the BPP shorthand to remember the seven gateways to adducing evidence of bad character against the defendant?

Answer 4

Section 101(1) Criminal Justice Act 2003
(a)
Agreement
(b)
Blurts it out
(c)
Context
(d)
Done it before
(e)
E did it (not me)
(f)
False impression
(g)
Going for the witness or co-defendant

Question 5

What are the formal requirements of adducing bad character evidence through gateway A?

Answer 5

Agreement

None. The parties just have to agree.

Question 6

What are the formal requirements of adducing bad character evidence through gateway B?

Answer 6

Blurts it out

None.

Question 7

Why might the defendant want to adduce evidence through Gateway B?

Answer 7

Blurts it out

1. To obtain an effective good character reference.
2. To show that D’s previous conviction is old, minor or irrelevant.
3. To put forward a defence, eg, that D was in prison at the time of the alleged offence.
4. To show why police officers might have a bias against D.

Question 8

Where is “important explanatory evidence” defined for the purposes of Gateway C?

Answer 8

Section 102 Criminal Justice Act 2003

Question 9

What is “important explanatory evidence” for the purposes of Gateway C (Section 101(1)(c) Criminal Justice Act 2003)?

Answer 9

Context
Section 102 Criminal Justice Act 2003
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.

Question 10

Why is Gateway C important?

Answer 10

Context

It can help to make sense of the narrative, eg, by showing the past history of the relationship between D and C.

Question 11

Where is “important matter” defined for the purposes of Gateway D (Section 101(1)(d) CJA)?

Answer 11

Section 112(1) Criminal Justice Act 2003

Question 12

What does “important matter” mean for the purposes of Gateway D (Section 101(1)(d) CJA)?

Answer 12

Section 112(1) Criminal Justice Act 2003
“important matter” means a matter of substantial importance in the context of the case as a whole

Question 13

Where is “matter in issue” defined for the purposes of Gateway D (Section 101(1)(d) CJA)?

Answer 13

Section 103(1) Criminal Justice Act 2003

Question 14

What does “matter in issue” mean for the purposes of Gateway D (Section 101(1)(d) CJA)?

Answer 14

Section 103(1) Criminal Justice Act 2003
… the matters in issue … include—
(a) [propensity]
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) [credibility]
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.

Question 15

Which provision sets out how propensity is used to access Gateway D?

Answer 15

Section 103(2) Criminal Justice Act 2003

Question 16

How is propensity used to gain access to Gateway D?

Answer 16

Section 103(2) Criminal Justice Act 2003
[Propensity may] be established by evidence that he has been convicted of—
(a) [same offence]
an offence of the same description as the one with which he is charged, or
(b) [same category of offence]
an offence of the same category as the one with which he is charged.

Question 17

How can the defendant avoid letting the prosecution use propensity to access Gateway D?

Answer 17

Section 103(3) Criminal Justice Act 2003
[Unjust, eg, time]
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.

Question 18

How can we know if two offences are of the same description for the purposes of accessing Gateway D via propensity?

Answer 18

Section 103(4)(a) Criminal Justice Act 2003
[T]wo 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;

Question 19

How can we know if two offences are of the same category for the purposes of accessing Gateway D via propensity?

Answer 19

Section 103(4)(b) Criminal Justice Act 2003
[T]wo 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.

Question 20

Who can adduce evidence through Gateway D?

Answer 20

Section 103(6) Criminal Justice Act 2003
Only prosecution evidence is admissible under section 101(1)(d).

Question 21

When must the court refuse to admit evidence via Gateway D or G?

Answer 21

Section 101(3) Criminal Justice Act 2003
[adverse impact on the fairness of proceedings]
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.

Question 22

What is the leading case on how courts should decide whether bad character evidence should be admitted because it shows a propensity to commit offences of the kind with which D is charged?

Answer 22

R v Hanson [2005] EWCA Crim 824

Question 23

What guidance does Hanson give to the courts when deciding whether to admit bad character evidence?

Answer 23

R v Hanson [2005] EWCA Crim 824

When deciding whether evidence of bad character is admissible, the court should have regard to:

1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
2. Does that propensity make it more likely that the defendant committed the offence charged?
3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted? [It’s unjust to use bad character to bolster an otherwise weak case.]

Question 24

What directions should the court give to juries who have heard bad character evidence?

Answer 24

R v Hanson [2005] EWCA Crim 824
The court should direct the jury that
1. they should not conclude that a defendant was guilty or untruthful merely because he had the convictions adduced, and
2. that propensity is just one factor to consider.

Question 25

What is the minimum number of convictions required to show propensity for Gateway D?

Answer 25

R v Hanson [2005] EWCA Crim 824
There is no minimum number of convictions required to show propensity.

However, a single conviction is unlikely to show propensity unless it is for some unusual offence, such as child sex abuse or arson.

Question 26

What role should the strength of the prosecution case play in deciding whether bad character evidence is admissible?

Answer 26

R v Hanson [2005] EWCA Crim 824
Bad character evidence should not be allowed to bolster an otherwise weak case.

Where there is little other evidence against the defendant, admitting bad character evidence may be unfair.

Question 27

Must evidence of propensity precede the alleged offence?

Answer 27

No.

Eg, if D is accused of a racist murder and subsequently says racist things on record.

Question 28

Are “matters in issue” for the purposes of Gateway D always about propensity and credibility, as per s.103(1)?

Answer 28

No.

Matters in issue can also include the identity of D, eg, where the charged offence strongly resembles D’s past offences in some striking and unusual way.

Before the CJA 2003 this used to be known as the “striking similarity” doctrine.

Eg, Straffen [1952] 2 QB 911 - strangulation with no sexual assault or attempt to hide the body. No directions were needed to the effect that the jury should not convict based solely on previous bad character.

Question 29

What kinds of previous offences show a propensity to be untruthful?

Answer 29

R v Hanson [2005] EWCA Crim 824

1. Where D pleaded not guilty but the jury convicted her and must have disbelieved her;
2. Where telling an untruth was part of the offence.

[Dishonesty is not the same as untruthfulness. eg, fraud is untruthful but burglary probably is not.]

Question 30

What is cross-admissibility?

Answer 30

Cross-admissibility is the principle that where the defendant is charged with multiple offences, each piece of bad character evidence must pass separately through the relevant gateway for each offence on the charge sheet.

Question 31

Which provision sets out how to access Gateway E?

Answer 31

Section 104 Criminal Justice Act 2003

Question 32

What is Gateway E used for?

Answer 32

E did it! - undermining a co-defendant’s credibility.

Section 104(1) Criminal Justice Act 2003
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.

Question 33

When can a defendant get evidence admitted through Gateway E?

Answer 33

Section 104(1) Criminal Justice Act 2003
...only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.

Question 34

Who can access Gateway E?

Answer 34

Section 104(2) Criminal Justice Act 2003
[Only a co-defendant]
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).

Question 35

How can a defendant exclude her co-defendant’s Gateway E evidence which shows the defendant has propensity?

Answer 35

Section 101(3) CJA and Section 78 PACE do not apply, so D cannot exclude Gateway E evidence on the basis of fairness.

However, D1’s propensity only becomes an issue between DD when D1 claims not to have propensity - evidence of propensity therefore undermines D1’s case so D2 can ask the court for leave to admit it.

Question 36

Which provision clarifies Gateway F?

Answer 36

False impressions / Fibs

Section 105 Criminal Justice Act 2003

Question 37

What is the definition of a “false impression” for the purposes of Gateway F (Section 101(1)(f) CJA)?

Answer 37

Section 105(1)(a) Criminal Justice Act 2003
the defendant gives 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;

Question 38

What evidence will lead D to be treated as responsible for creating a false impression (Gateway F)?

Answer 38

Section 105(2) Criminal Justice Act 2003
(a) [D said it to court]
the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) [D said it to police]
the assertion was made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,
(c) [D’s witness said it]
the assertion is made by a witness called by the defendant,
(d) [D elicited it]
the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
(e) [D said someone else said it]
the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.

Question 39

When is a defendant not responsible for creating a false impression even though the requirements of s.105(2) CJA are satisfied?

Answer 39

Section 105(3) Criminal Justice Act 2003
... if, or to the extent that, he withdraws it or disassociates himself from it.

Question 40

When can the court treat D as responsible for creating a false impression on the basis of her conduct?

Answer 40

Section 105 Criminal Justice Act 2003
(4) [Conduct]
Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
(5) [includes clothes]
In subsection (4) “conduct” includes appearance or dress.

Question 41

What limits are there on adducing evidence through Gateway F?

Answer 41

Section 105(6) Criminal Justice Act 2003
Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.

Question 42

Who can adduce evidence through Gateway F?

Answer 42

Section 105(7) Criminal Justice Act 2003
Only prosecution evidence is admissible under section 101(1)(f).

Question 43

What must the prosecution do to adduce evidence through Gateway F?

Answer 43

Obtain the leave of the court.

Question 44

Can the prosecution adduce evidence through F even though the false impression which it seeks to correct was created by evidence adduced by the prosecution?

Answer 44

Yes, eg, if the prosecution adduces interview evidence of D denying ever committing theft, but the PNC shows that D has committed theft in the past. D is still responsible because D lied to the police.

Question 45

Which provision clarifies Gateway G under Section 101(1)(g) CJA?

Answer 45

Section 106 Criminal Justice Act 2003

[Going after the witness / co-defendant]

Question 46

What forms of evidence can pass through Gateway G?

Answer 46

Section 106(1) Criminal Justice Act 2003
if—
(a) [evidence adduced]
he adduces evidence attacking the other person’s character,
(b) [cross-examination]
he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c) [talking to police]
evidence is given of an imputation about the other person made by the defendant—
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it.

Question 47

What does “attacking another person’s character” mean for the purposes of Gateway G?

Answer 47

Section 106(2) Criminal Justice Act 2003
[E]vidence to the effect that the other person—
(a) [past offence]
has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) [reprehensible behaviour]
has behaved, or is disposed to behave, in a reprehensible way;
and “imputation about the other person” means an assertion to that effect.

Question 48

Who can adduce evidence through Gateway G?

Answer 48

Section 106(3) Criminal Justice Act 2003
Only prosecution evidence is admissible under section 101(1)(g).

Question 49

How should the jury be directed as to bad character evidence?

Answer 49

R v Hanson [2005] EWCA Crim 824

1. It is up to the jury to decide how much weight to place on bad character evidence;
2. Do not rely too much on bad character evidence or use it to bolster a weak case;
3. Do not conclude D is guilty just because she has past convictions;
4. A propensity alone is not enough to show guilt;
5. The jury should only rely on alleged offences of which D has been acquitted if they are sure D was guilty.

Question 50

Which gateways do not require an application to the court for leave to adduce bad character evidence?

Answer 50

Gateway A - Agree

Gateway B - Blurts it out

Question 51

Which gateways do require an application to the court for leave to adduce bad character evidence?

Answer 51

Gateways
C - Context
D - Done it before
E - E did it
F - False impression
G - Get at the witness

Question 52

Which provisions set out the procedure for making an application to adduce evidence of bad character?

Answer 52

CrimPR 21