Bad character evidence - defendant Flashcards
(15 cards)
what is the definition of character evidence?
evidence of misconduct (inc. offences + reprehensible behaviour) not connected to the offence in question
what is the legislative provision re: bad character evidence of D?
s101(1)(a)-(g) Criminal Justice Act 2003
what must P do before seeking to rely on bad character evidence?
P must adduce other evidence before this. Bad character alone does not prove guilt.
when is bad character evidence admissible? What are the gateways?
Bad character evidence admissible if it satisfies one of the 7 gateways:
a) Parties agree
b) The evidence is adduced by D or given in D’s x-examination
c) It is important explanatory evidence
d) It is relevant to an important matter in issue between D & P
e) Substantial probative value on an important matter in issue between D & co-D
f) Correct a false impression
g) D attacks another’s character
o When D makes an attack on anyone at any time but it must relate to an offence/reprehensible behaviour. Examples:
D calling V a ‘slag’ = YES | D saying V fabricated story = NO
D saying police ‘conspired to set D up’ = YES | D saying account of officers untrue = NO
why might D introduce bad character evidence about themselves and under what gateway?
b) The evidence is adduced by D or given in D’s x-examination (NB: this can be used by D only)
D might introduce if they have minor pre-cons or plead G to an earlier offence but NG now
re: gateway C - it is important explanatory evidence
when will evidence be ‘important explanatory evidence? Which party can rely on this gateway?
Evidence will be ‘important explanatory evidence if:
1) If case difficult to understand without it +
2) Substantial to understand case as a whole
used by P
re: gateway D - it is relevant to an important matter in issue between D & P
when will the evidence be relevant to ‘an important matter in issue’? Which party can rely on this gateway?
the evidence will be relevant to an important matter in issue if the pre-cons show D has a propensity to:
1) Commit offences of the same kind; or
2) Be untruthful
re: gateway D - it is relevant to an important matter in issue between D & P
explain ‘D has a propensity to commit offences of the same kind’
Same kind = same crime/same category (prescribed by SOS: sexual offences + theft offences)/similar facts
Can be refused if unjust due to time elapsed or another reason
fewer pre-cons = less of a propensity (unless distinguishing factors i.e. child abuse)
the evidence must make it more likely D committed current offence
re: gateway D - it is relevant to an important matter in issue between D & P
explain ‘D has a propensity to be untruthful’
Untruthful = pre-con is untruthful (i.e. perjury) or D plead NG to an earlier offence but convicted (any offence)
Cannot be used if no suggestion of untruth in current case
re: gateway e - substantial probative value on an important matter in issue between D & co-D
when is this gateway used and by whom?
Both D’s pleading NG and blaming each other + D adduces evidence of co-D’s pre-con
used by D/co-D
re: gateway e - substantial probative value on an important matter in issue between D & co-D
when will the pre-cons have substantive probative value to an important matter in issue?
The pre-cons will have substantial probative value to an important matter in issue when they show the co-D has a propensity to:
1) Commit offences of the same kind; or
2) Be untruthful
re: gateway e - substantial probative value on an important matter in issue between D & co-D
in relation to ‘D has a propensity to commit offences of the same kind’, what offences can be used? Give an example.
Offence must be relevant to issue in case
Example: D + co-D charged with GBH. Co-D had pre-con for assault. D made an application for this to be adduced under gateway E on the basis it demonstrated co-D had a propensity to commit offences of the same kind. Application granted & upheld by CoA because where there is a cutthroat defence and one has a pre-con for violence and the other doesn’t, this has substantial probative value to an issue (i.e. which one committed the offence)
re: gateway e - substantial probative value on an important matter in issue between D & co-D
explain ‘D has a propensity to be untruthful’
Untruthful = pre-con is untruthful (i.e. perjury) or D plead NG to an earlier offence but was convicted (any offence)
NB: the legislation does not say there needs to be a suggestion of untruth in the current case, but it does in relation to gateway D
re: gateway f - correct a false impression
who can rely on this and when?
used by P
the correct an express/implied false impression by:
D in proceedings (i.e. interview, defence statement, trial);
A witness; or
Any person out of court and D adduces evidence of this
re: gateway g - attack another’s character
who can rely on this and when? in what circumstances is this gateway not triggered?
Give examples.
used by P
available when D makes an attack on anyone at any time but it must relate to an offence/reprehensible behaviour.
case law establishes that the mere denial of the prosecution case will not be sufficient to trigger this gateway and a defendant must go further
Examples:
D calling V a ‘slag’ = YES | D saying V fabricated story = NO
D saying police ‘conspired to set D up’ = YES | D saying account of officers untrue = NO
