Character Evidence

Question 1

What is bad-character evidence?

Answer 1

issues of the defendants character (involving previous convictions) which are raised during trial.

the law permits evidence of a defendants bad character to be admitted in a limited range of circumstances known as the seven gateways under section 101(1) of the CJA 2003.

Question 2

What is ‘Good character evidence’

Answer 2

overall moral standing and reputation of the defendant

• includes factors such as absence of criminal record, adherence to the law, and engagement in positive and praiseworthy activities.

Question 3

What is absolute good character ?

Answer 3

recognition of participation in admirable actions eg military service, public service, charitable acts

Question 4

what is ‘effective good character’?

Answer 4

where D has previous convictions - but they are outdated or irrelevant.

Question 5

What are the usual methods of confirming the defendants good character

Answer 5

defence advocates asks the police officer who gives evidence of verifying the record of the interview in the police station]

defendant can also confirm their good character when they start to give evidence in the witness box

Question 6

what direction is a defendant who has no prior convictions given?

Answer 6

propensity - this means that the defendant is considered less likely to have committed the offence due to their history of good character.

given regardless of whether D produces evidence at trial

Question 7

When will a defendant with no convictions be given a direction regarding their credibility ?

Answer 7

if they asserted their innocence either during their time at the police station or by giving evidence under oath during the trial

Question 9

What happens if the trial judge in the CC fails to provide instructions to the jury in accordance with good character

Answer 9

Serves as a basis for the defendant to appeal their conviction.

Question 10

in what cases does the court have discretion in regards to good character evidence

Answer 10

where the defendant has a prior conviction for a minor offence or an offence that was committed a long time ago.

Question 11

What is the definition of bad character

Answer 11

evidence of or a disposition towards, misconduct on his part

Question 12

To what forms of misconduct does Bad character evidence NOT apply?

Answer 12

misconduct which
a) has to do with the alleged facts of the offence with which the defendant is charged
b) is evidence of misconduct in connection with the investigation or prosecution of that offence ‘

Question 13

what types of bad character evidence could be submitted

Answer 13

• the defendant’s previous convictions
• an offence with which the defendant was charged and acquitted and or not convicted
• the defendant’s reprehensible behaviour that does not amount to criminal conduct

Question 14

What is the purpose of the seven gateways

Answer 14

allows for the admission of evidence regarding a defendants bad character without leave of the court

Question 16

What is Bad character gateway A

Answer 16

permits evidence of the defendants bad character to be admitted where the prosecution and defence agree to it

Question 17

What is Gateway B?

Answer 17

evidence of bad character given voluntarily by the defendant - done to enhance alibi or enhance credibility by coming clean about their criminal past

Question 18

What Is Gateway C

Answer 18

admitting the defendants bad character as Important Explanatory Evidence

Question 19

Can the defence use Gateway C (important explanatory evidence)?

Answer 19

No - only available to prosecution

Question 20

When does bad character evidence amount to ‘ important explanatory evidence ‘

Answer 20

a) without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case
b) its value for understanding the case as a whole is substantial

Question 21

what is gateway d

Answer 21

important issue between defendant and the prosecution

gateway d may be used by the prosecution to show that the defendants bad character is relevant to proving their guilt for the present offence + the defence has the propensity to be truthful

Question 22

Who is able to use gateway D

Answer 22

only the prosecution

Question 23

For gateway D - how would a defendant’s propensity to commit offences of the kind with which he is charged be established ? section 101( 2)CJA 2003

Answer 23

By demonstrating evidence that he has been convicted of
a) an offence of the same description as the one with which he is charged
b) an offence of the same category with which he is charged

Question 24

In what situations does Section 101(2) CJA 2003 not apply

Answer 24

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 this case

Question 25

When will two offences be deemed to be of the same description as each other

Answer 25

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

Question 26

When will two offences be deemed to be in the same category as each other

Answer 26

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 27

Apart from previous convictions how else can propensity be proved under gateway D

Answer 27

- proof of reprehensible conduct although it does not amount to a criminal offence - unproven past allegations (even which resulted in acquittal - defendants convictions in a foreign jurisdiction- provided the convictions would have been admissible in England and Wales -

Question 28

What is Gateway E

Answer 28

Evidence of a defendants bad character has substantive probative value in relation to an important matter in issue between the defendant and a co-defendant.

Question 29

To what situations does Gateway E apply?

Answer 29

Where there is more than one defendant in the case?- to the co-defendants only NOT prosecution only if the nature or conduct of the co-defendants defence is such as to undermine the other co-defendant's defence

Question 30

What is Gateway F

Answer 30

Evidence of the Defendant's Bad Character to correct a false impression given by the defendant

Question 31

To whom is Gateway F available

Answer 31

Prosecution only

Question 32

When does a defendant make a false impression

Answer 32

When they make a statement that misleads or deceives the court about their character

Question 33

How can disclosure of the defendants bad character be avoided under gateway F

Answer 33

if defendant retracts their statement / disassociates from statements made

Question 34

How can evidence admitted under Gateway F be challenged

Answer 34

Under s78 PACE 1984 for unfairness Discretionary powers preserved by section 2(3) PACE1984

Question 35

What is Gateway G

Answer 35

Admitting Evidence of the Defendant's Bad character where the defendant has made an attack on another persons character

Question 36

To whom is Gateway G available

Answer 36

Prosecution only

Question 37

What constitutes an attack on a persons character

Answer 37

- making an allegation that a prosecution witness is biased -making an allegation that the police have fabricated evidence -cross examining a prosecution witness about any past convictions they may have - accusing a prosecution witness of perjury -accusing the investigating officers of intentionally disregarding PACE 1984 Codes of Practice

Question 38

How can the defence exclude evidence under Gateway G

Answer 38

apply to have the defendant's bad character evidence admitted under gateway g to be excluded on the basis of unfairness under section 101(3) CJA 2003

Question 39

who is responsible for initiating bad character applications?

Answer 39

Prosecution. Except in the cases of a,b and e

Question 40

What is the police's role once an application is made?

Answer 40

the police will present evidence of the defendant's prior criminal behaviour from the Police National Computer (PNC).

Question 41

What rules explain procedure for applying to adduce bad character evidence ?

Answer 41

Crim PR, Part 21

Question 42

Once antecedents have been received from the PNC - who should prosecution serve notice on

Answer 42

Court officer and each other party

Question 43

What is the time frame for serving notice of bad character evidence ?

Answer 43

not more than 20 business days after defendant pleads guilty in the magistrates court ] not more than 10 business days after the defendant pleads not guilty in the Crown Court.

Question 44

Are the time frame requirements for serving a notice of bad character strict ?

Answer 44

No. An application can be made orally and out of time where interests of justice require it

Question 45

What action must a party who objects to the admission of the bad character evidence take ?

Answer 45

Apply to the court to determine the objection not more than 10 business days after service of the notice

Question 46

When does the judge usually review the bad -character application in the Crown Court ?

Answer 46

during the Plea and Trial Preparation Hearing

Question 47

What is submitted during the PTPH review of bad character applications?

Answer 47

A skeleton argument from the prosecution and the defence solicitors supporting their arguments

Question 48

When is an application for bad character reviewed in the magistrate's court

Answer 48

A contested application is typically scheduled for review during the pre-trial hearing. A district judge or magistrates will hear a legal argument and issue a binding ruling

Question 49

What must the court provide when giving a binding ruling ?

Answer 49

the court must provide reasons for its decision

Question 50

What is the task of the defence while bad character evidence is being admitted ?

Answer 50

- be prepared to vigorously persuade the court that either the criteria for admitting bad character evidence is not met - argue for the court to exercise its exclusionary discretion under s78 PACE 1984 or s101(1)(3) CJA 2003n

Question 51

What does section 101 (1)(3) CJA 2003 stipulate

Answer 51

the court must not admit evidence under subsection 1(d) or (g) if, on 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 i

Question 52

Who decides the weight to be attached to bad character evidence

Answer 52

the jury

Question 53

What is the effect of a decision that evidence submitted under gateways c and g are 'contaminated' ?

Answer 53

- conviction deemed 'unsafe' - court must direct jury to acquit defendant - where retrial needed - order that the jury be discharged

Question 54

When will a defendant's evidence be held to be contaminated ?

Answer 54

- evidence is false/misleading in any respect / different from what it would have otherwise been - evidence arises: a) as a result go an agreement or understanding between that person or one or more others b) as a result of the person being aware of anything alleged by one or more other persons whose evidence may be , or has been, given in the proceedings

Question 55

To what form of trials does contamination of evidence apply

Answer 55

trials on indictment only , NOT summary trials

Question 56

Under what gateways may evidence be adduced against non-defendants

Answer 56

a) the evidence is important explanatory evidence (Section 100(1)(a) (2) of CJA 2003 b) the evidence has substantial probative value about a matter which has been raised in the proceedings and is of substantial importance in the context of the case c) all parties to the proceedings agree to the evidence being admissible

Question 57

Can bad character evidence be admitted without the court's permission (non-defendant)

Answer 57

No. unless all parties consented already

Question 58

Does the judge have discretion to exclude evidence of non-defendant bad character ?

Answer 58

No.