3.7 Bad character - procedure

Question 1

Which statutory provision gives the court a general power to exclude evidence?

Answer 1

Section 78 PACE - fairness
The court has a general discretion to exclude evidence on which the prosecution proposes to rely … if 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 2

Which provisions in the Criminal Justice Act 2003 provide safeguards for bad character evidence?

Answer 2

1. Section 101(3) - don’t pass through Gateways D or G if on application from D it would be unfair.
2. Section 103(3) - Don’t pass through Gateway D if the passage of time makes it unfair
3. Section 107 - stop the trial if bad character evidence is contaminated
4. Section 110 - the court must give reasons for any ruling it makes on the admissibility of bad character evidence.

Question 3

What is the difference between the general fairness safeguard in Section 78 PACE and the fairness safeguard in Section 101(3) CJA?

Answer 3

Section 78 is discretionary.

Section 101(3) is obligatory.

Question 4

When does the Section 101(3) CJA safeguard apply?

Answer 4

Gateway D - Done it before

Gateway G - Going after the other guy

Question 5

How are previous convictions or acquittals to be proved if disputed by one side?

Answer 5

Section 73(1) PACE

1. producing a certificate of conviction or, as the case may be, of acquittal relating to that offence, and
2. proving that the person named in the certificate as having been convicted or acquitted of the offence is the person whose conviction or acquittal of the offence is to be proved.

Question 6

How can a defendant disprove a past conviction?

Answer 6

Section 74(3) PACE
By proving her innocence (to the civil standard).

Question 7

Which provision sets out the documents that can be used to prove the facts on which a previous conviction was based?

Answer 7

Section 75 PACE

Question 8

Where are the procedural rules for bad character evidence?

Answer 8

CrimPR 21

Question 9

Which Rule sets out the procedure for applying to admit bad character evidence against a non-defendant?

Answer 9

CrimPR 21.3

Question 10

Which Rule sets out the procedure for applying to admit bad character evidence against the defendant?

Answer 10

CrimPR 21.4

Question 11

What must an application or notice to adduce bad character evidence contain?

Answer 11

CrimPR 21.2
An application or notice must—
(a) set out the facts of the [past] misconduct on which that party relies,
(b) explain how that party will prove those facts … if another party disputes them, and
(c) explain why the evidence is admissible.

Question 12

When must the prosecutor serve notice that it intends to adduce evidence of the defendant’s bad character in the Magistrates Court?

Answer 12

CrimPR 21.4(a)
… not more than—
20 business days after the defendant pleads not guilty, in a magistrates’ court;

Question 13

When must the prosecutor serve notice that it intends to adduce evidence of the defendant’s bad character in the Crown Court?

Answer 13

CrimPR 21.4(3)(b)
… not more than—
10 business days after the defendant pleads not guilty, in the Crown Court.

Question 14

By when must a co-defendant serve notice that it intends to adduce evidence of a defendant’s bad character?

Answer 14

CrimPR 21.4(4)
(a)
as soon as reasonably practicable; and in any event
(b)
not more than 10 business days after the prosecutor discloses material on which the notice is based.

Question 15

What must a party do if it objects to bad character evidence?

Answer 15

CrimPR 21.4(5)
(a) 
apply to the court to determine the objection;
(b)
 serve the application on—
(i)  the court officer, and
(ii)  each other party
not more than 10 business days after service of the notice

Question 16

How long does a party have to raise an objection to bad character evidence?

Answer 16

CrimPR 21.4(5)(b)

10 business days

Question 17

What must the defendant’s objection to bad character evidence contain?

Answer 17

CrimPR 21.4(5)(c)

(i) which, if any, facts of the misconduct set out in the notice that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible,
(iv) why it would be unfair to admit the evidence, and
(v) any other objection to the notice.

Question 18

What must an application or notice to adduce evidence of bad character contain?

Answer 18

CrimPR 21.2(2)
(a)
set out the facts of the misconduct on which that party relies,
(b)
explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and
(c)
explain why the evidence is admissible.

Question 19

When must a party apply for permission adduce evidence of a non-defendant’s bad character?

Answer 19

CrimPR 21.3(3)
(a)
as soon as reasonably practicable; and in any event
(b)
not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant).

Question 20

What is the deadline for filing an objection to adducing evidence of a non-defendant’s bad character?

Answer 20

CrimPR 21.3(4)(a)

… not more than 10 business days after service of the application; and

Question 21

What must a party do to object to the introduction of evidence of a non-defendant’s bad character?

Answer 21

CrimPR 21.3(4)(a)
serve notice on—
(i)  the court officer, and
(ii)  each other party
 not more than 10 business days after service of the application

Question 22

What must a party’s objection notice to the introduction of evidence of a non-defendant’s bad character contain?

Answer 22

CrimPR 21.3(4)(b)

(i) which, if any, facts of the misconduct set out in the application that party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible, and
(iv) any other objection to the application.

Question 23

What are the court’s powers with regard to hearing applications to adduce evidence of bad character?

Answer 23

CrimPR 21.3(5) and 21.4(6)
The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury.

The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired.

Question 24

Are applications to adduce evidence of bad character usually made orally or in writing?

Answer 24

Gateways D and G: in writing.

All other gateways: usually orally.

Question 25

What happens if bad character evidence is contaminated?

Answer 25

Section 107(1) Criminal Justice Act 2003
(b)
the court is satisfied at any time after the close of the case for the prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evidence to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.

Question 26

Which Gateways does the Section 107 Criminal Justice Act 2003 safeguard apply to?

Answer 26

Section 107(1)(a) Criminal Justice Act 2003
If evidence of his bad character has been admitted under any of paragraphs (c) to (g) of section 101(1),