Unit 12: Character Evidence

Question 1

S101 CJA: evidence of D’s bad character is admissible if but only if…

Answer 1

…it falls within a specific statutory permission/gateway.

Question 2

Evidence which does not constitute evidence of bad character under CJA, but may show D in a bad light, may be admissible on…

Answer 2

…normal principles of relevance, subject to s78 PACE.

Question 3

S98 CJA 2003 says bad character evidence is that showing a disposition towards misconduct OTHER than evidence…

Answer 3

(a) to do with the alleged facts of the charged offence;

(b) evidence of misconduct in connection with the investigation or proescution of that offence.

Question 4

Can convictions be used as evidence of bad character?

Answer 4

Yes.

Question 5

Can cautions be used as evidence of bad character?

Answer 5

Yes.

Question 6

Can reprehensible behaviour be used as evidence of bad character?

Answer 6

Yes.

Question 7

TRUE or FALSE. Reprehensible conduct equals what is irritating, inconvenient or upsetting to another.

Answer 7

FALSE. It must be distinguished from that (Scott [2009])

Question 8

Section 98 CJA requires a nexus between…

Answer 8

…the evidence of misconduct and the alleged offending.

Question 9

Is a ‘gateway’ necessary to admit the telling of lies in an interview?

Answer 9

Probably not - this is likely to be misconduct in connection with the investigation/prosecution of the offence.

Question 10

What does s100 CJA cover?

Answer 10

Introducing bad character evidence of persons other than the accused.

Question 11

What does Brewster [2010] say is the purpose of s100 CJA?

Answer 11

Remove the right to introduce, through XX, irrelevant or trivial behaviour in an attempt to diminish the standing of the witness.

Question 12

Evidence of bad character under s98 can only be admitted if it…

Answer 12

…satisfies the further conditions of s100 (non-D’s BC) or s101 (D’s BC)

Question 13

Common law rules of admitting BC evidence continue to operate insofar as they permit evidence to be adduced which…

Answer 13

“has to do with the alleged facts of the offence” [s98(a)]

or

“is evidence of misconduct in connection with the investigation or prosecution of that offence.” [s98(b)]

Question 14

In relation to the actions of the police, “evidence of misconduct in connection with the investigation or prosecution of that offence.” [s98(b)] would likely cover:

Answer 14

Evidence that during the investigation the police obtained evidence unlawfully or unfairly;

Evidence that during interview the police told lies;

Evidence that during investigation someone tried to intimidate potential witnesses.

Question 15

Under s100, evidence of non-D’s BC is only admissible if:

Answer 15

It is important explanatory evidence;

It has substantial probative value which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole, or

All parties agree to it being admissible.

Question 16

Is leave of the corut required to give BC evidence under s100 CJA?

Answer 16

Yes, unless parties consent.

Question 17

TRUE or FALSE. Section 100 CJA only covers evidence given orally as a witness.

Answer 17

FALSE. It covers statements admitted, for example.

Question 18

Braithwaite [2010] says there are four important features of the test for admissibility under s100 CJA.

Answer 18

1. “Substantial probative value” is not the same as the test for s101(d) where BC evidence is tendered by P, and where test is simply one of relevance. It is the same as s101(e)
2. If s100 is met, there is no discretion to refuse to admit the evidence.
3. Leave of court required unless parties all consent to admission.
4. Rulings of judge in absence of agreement require exercise of judgment rather than discretion.

Question 19

Should gateways be interpreted loosely or strictly?

Answer 19

Strictly - Phillips [2011]

Question 20

Section 100(2) CJA 2003: evidence if important explanatory evidence:

Answer 20

If without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and

Its value for understanding the case as a whole is substantial.

Question 21

The issue to which evidence relates, in section 100(1)(b), is usually…

Answer 21

Propensity or credibility of the person of bad character

Question 22

Section 100(3) sets out…

Answer 22

…a list of factors to which the court must have regard in assessing the probative value of the evidence.

Question 23

Accoridng to Brewster, what is the appropriate test for determining whether evidence is of ‘substantial probative value’?

Answer 23

Is the evidence reasonably capable of assisting a fair-minded jury to reach a view whether the witness’s evidence is, or is not, worthy of belief.

Question 24

S101 CJA: Evidence of D’s bad character is admissible if, but only if…

Answer 24

(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 a 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 25

Section 101(3) CJA: The court must not admit evidence under (d) - (g) if, on an application by D, it appears to the court that…

Answer 25

…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 26

Under s102 CJA, evidence is important explanatory evidence under s101(1)(c) if…

Answer 26

Without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

Its value for understanding the case as a whole is substantial.

Question 27

S103(1) CJA says the matters in issue between D and prosecution include:

Answer 27

(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.

Question 28

S103(2): When section 103(1)(a) applies, 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:

S103(2) does not apply where:

Answer 28

(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.

It does not apply where 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 29

For the purposes of s103(2), two offences are of the same description as each other if

Answer 29

the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

Question 30

For the purposes of s103(2), two offences are of the same category as each other if

Answer 30

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 31

Hanson spells out the steps to be followed when determining the use to be made of evidence of propensity consisting of convictions under s101(1)(d) CJA

Answer 31

(1) Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

(2) If so, does the propensity make it more likely that the defendant committed the crime charged?

(3) Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))? Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence?

Question 32

What is a ‘signature case’?

Answer 32

Where an offence contains a feature deemed to be the equivalent of a signature, bearing striking similarity with offences previously committed by D.

E.g. a series of murders with a particular calling-card.

Question 33

Can gang membership by deployed under s101(1)(d)?

Answer 33

Yes to link D to commission of a specific offence.

Question 34

The probative value of multiple accusations depends upon:

Answer 34

Their similarity;

The unlikely prospect that the same person would be falsely accused on different occasions by different and independent individuals.

Question 35

TRUE or FALSE. The court has no discretion to refuse admission of evidence when tendered on behalf of one accused against the other.

Answer 35

TRUE.

Question 36

Crim PR notice requirements apply to which parties?

Answer 36

All parties wishing to adduce evidence of bad character

An accused’s application to exclude bad character evidence.

Question 37

Can the accused waive their entitlement to notice of bad character app?

Answer 37

Yes.

Question 38

WHen Crim PR has not been complied with, what should the court consider?

Answer 38

WHether the vary the notice requirements using Crim PR 21.6

Question 39

A bad character application or notice must:

Answer 39

(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 40

What does s74 PACE do?

Answer 40

Creates a presumption that a person convicted of an offence in a UK/EU court shall be taken to have committed that offence unless the contrary is proved.

Question 41

Edwards [2005] sets out the key stages for admissibiliy of evidence of bad character

Answer 41

(1) The judge determines admissibility under the relevant statutory gateway(s).

(2) Where it is raised, the judge also determines any question of exclusion in respect of prosecution evidence, for example, under s. 101(3) or 103(3) of the CJA 2003, or s. 78 of the PACE 1984.

(3) Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge’s power to stop the case where the evidence is contaminated (under s. 107 at F13.62) and the judge’s direction as to the use to which the evidence may be put.

(4) The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight.

Question 42

Hanson says the purpose of s101 CJA was to:

Answer 42

Assist in the evidence-based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice

Question 43

Hanson says a proper direction on bad character shoud:

Answer 43

(1) give the jury a clear warning against the dangers of placing undue reliance on previous convictions;

(2) stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;

(3) emphasise that the jury should not infer guilt from the existence of convictions.

Question 44

What are the main purposes of good character evidence?

Answer 44

Show that person who lacks a propensity to do wrong is less likely to have committed the offence;

Show that a person of good character is more likely to be telling the truth.

Question 45

Hunter concerns:

Answer 45

Directions to give re good character evidence.

Question 46

TRUE or FALSE. A lack of bad character evidence is itself a reason to give a good character direction.

Answer 46

FALSE - Hunter. Only defendants with absolute good character are entitled to a judicial direction on the matter.

Question 47

Give examples of bad character evidence other than previous convictions

Answer 47

Misconduct

Disposition towards misconduct

Question 48

What entitles D to ‘absolute good character’ direction?

Answer 48

No previous convictions

No other reprehensible conduct

Question 49

What is ‘effective good character’?

Answer 49

Direction which is modified to the extent necessary to reflect the matters that preclude them being of absolute good character.

Question 50

TRUE or FALSE. A person can expect to be treated as of effective good character on the grounds that their previous convictions or cautions have no relevance to the charge.

Answer 50

FALSE. This is so even when old/minor instances of offending.

Question 51

Can cautions be ignored in the calculation of effective good character?

Answer 51

No.

Question 52

Is there an explicit list of the manner of minor blemishes that D may have yet still be deemed of effective good character?

Answer 52

No - fact specific (Hunter)

Question 53

Can the defendant adduce evidence of their bad character?

Answer 53

Yes.