Character Evidence

Question 1

What is the definition of ‘bad character?’

Answer 1

Bad character is defined as ‘evidence of, or a disposition towards, misconduct’ other than evidence of the current offence

Misconduct is ‘the commission of an offence or other reprehensible behaviour’ - not just previous convictions alone

Misconduct connected to the offence will be admissible without needing to satisfy the test for admissibility of bad character evidence

• Fabricated will prior to killing someone – the fabrication is connected

Question 2

What is a key point to remember about bad character evidence, when there is no other evidence available?

Answer 2

As with the drawing of adverse inferences, D’s bad character alone cannot prove guilt, so the prosecution needs to present other evidence

Question 3

Evidence of the defendant’s bad character may be raised through 1 or more of the 7 gateways. In summary, what are these 7 gateways?

Answer 3

• (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

Explain gateway (a) - all parties to the proceedings agree to the evidence being admissible

Answer 4

If the prosecution and defendant agree that the evidence is admissible, it may be admitted

Question 5

Explain gateway (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

Answer 5

D introduces evidence of their own bad character

• May be done to show they don’t have extensive previous convictions
• May be done where D has pleaded guilty to previous offences, but not this time, to profess their innocence

Question 6

Explain gateway (c) – it is important explanatory evidence

Answer 6

Only the prosecution can adduce evidence under this gateway, but it is rarely used

Evidence is important explanatory evidence if:

• (a) without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
• (b) the value of the evidence for understanding the case as a whole is substantial - ‘Substantial’ in this context is likely to mean more than merely trivial or marginal

Two key points:

• If the evidence is clearly understandable without evidence of bad character, it should not be admitted
• If P meets the test to admit evidence under this gateway, the court has no power under CJA 2003 to prevent admission, but they have the s78 PACE discretionary exclusionary power still

Question 7

Explain, broadly, gateway (d) – it is relevant to an important matter in issue between the defendant and the prosecution

Answer 7

Most important prosecution gateway and only P can adduce bad character evidence under this

Important matters in issue between D and P include:

• (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 propensity makes it no more likely that he is guilty of the offence); and
• (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 8

Under gateway (d), what is meant by a propensity to commit an offence of the kind charged?

Answer 8

P might place evidence of D’s previous convictions to show that D has a propensity to commit offences of the kind they are currently charged with

To do so, P must satisfy the court that establishing such propensity makes it more likely that D committed the offence

Propensity can be established by evidence that D has been convicted of:

• (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

Question 9

Under gateway (d), when will the ‘propensity to commit an offence of the kind charged’ subsection not apply?

Answer 9

The court must exclude evidence if satisfied it would unjust to admit it, due to passage of time or any other reason

Question 10

Under gateway (d) + propensity to commit, what is meant by offences of the same description?

Answer 10

2 offences are of the same description if they would be described in the same way/on same terms in a written charge or on indictment

• Example - Committed ABH before and charged with ABH now satisfies this

Question 11

Under gateway (d) + propensity to commit, what is meant by offences of the same category?

Answer 11

Satisfied if they belong to the same category, of which there are two:

• (1) Sexual offences category – offences against children under 16
• (2) Theft category – includes theft, robbery, burglary, taking a motor vehicle, handling stolen goods, making off without payment and attempts and assisting the commission of one of these
• (i) Example - Committed theft before and charged with burglary now

Question 12

Under gateway (d) + propensity to commit, other than offences of the same description/category, when can another offence be used to demonstrate this propensity?

Answer 12

If not the same description/category, but there are significant factual similarities between offences, evidence of earlier conviction may be admissible under this gateway

• Example - Committing an assault and robbery with a knife previously was admissible for a charge of murder, as they showed D had a propensity to commit violent offences using a knife

Question 13

Under gateway (d) + propensity to commit, what are the guidelines to be followed before allowing D’s prior convictions to be adduced?

Answer 13

1) If P wishes to adduce evidence of D’s bad character using this gateway, court must consider:

• (i) Does the defendant’s history of offending show a propensity to commit offences?
• (ii) If so, does that propensity make it more likely that the defendant committed the current offence?
• (iii) If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair?

2) Answer to all the above must be ‘Yes’ for prior convictions to be introduced as evidence

3) Fewer the prior convictions, the less likely it is that there will be a propensity, and a sole conviction is unlikely to satisfy the test, unless there are distinguishing circumstances

Question 14

Under gateway (d), what is meant by a propensity to be untruthful?

Answer 14

P may place evidence of D’s prior convictions to show D has a propensity to be untruthful, meaning their evidence in current trial may lack credibility

P can only do this if it is suggested that D’s case is in any way untruthful

D’s prior convictions won’t be admitted under this ground unless:

• (a) the manner in which the previous offence was committed demonstrates that D has such a propensity (because they had made false representations); or
• (b) D pleaded not guilty to the earlier offence but was convicted following a trial at which D testified and was not believed

Question 15

Under gateway (d) + propensity to be untruthful, what is meant by the manner in which the previous offence was committed?

Answer 15

Dishonesty distinct from untruthful, so only offences where D actively sought to mislead or deceive, such as perjury or fraud by false representation, would be relevant (not theft for example)

Question 16

Under gateway (d) + propensity to be untruthful, what is meant by convictions following a guilty plea?

Answer 16

Example – A has several previous convictions, where they always pleaded not guilty, with defence of alibi and were convicted regardless

Question 17

Under gateway (d), what is the broad test for when the court must exclude D’s bad character evidence?

Answer 17

Even if the relevant propensity is shown, court must not admit evidence if D wishes to exclude it and 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

Same test as s78 PACE, except that is discretionary + this is mandatory

Question 18

Under gateway (d), in what situations will the court exclude evidence of D’s bad character?

Answer 18

(a) when the jury are likely to convict based on the prior convictions alone without examining current evidence or previous conviction evidence is more prejudicial than probative

(b) when P seeks to adduce previous convictions to support an otherwise weak case

(c) when D’s convictions are ‘spent,’ meaning they are treated as though they were never convicted of the spent offence

Question 19

Under gateway (d), D’s bad character evidence will be excluded where convictions are ‘spent.’

What are the relevant time periods for convictions to become ‘spent?’

Answer 19

• Absolute discharge – none
• Conditional discharge – none
• Fine – 1 year
• Community order – 1 year
• Custodial sentence up to 6 months – 2 years
• Custodial sentence between 6 + 30 months – 4 years
• Custodial sentence between 30 months and 4 years – 7 years
• Custodial sentence over 4 years – never spent

Question 20

Explain, broadly, gateway (e) – it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant

Answer 20

Gateway can be used by D1 to admit evidence of D2’s bad character; cannot be used by the prosecution

D1 may claim that D2 has a propensity to be untruthful or a propensity to commit the same kind of offence, to undermine the credibility of their evidence or to suggest it was D2 who committed the offence, respectively

If D1 successfully gets evidence admitted under this gateway, the court has no power under CJA to prevent its admission

Question 21

Under gateway (e), what is required to prove a propensity to commit offences of the same kind?

Answer 21

D1 must demonstrate that D2’s previous convictions are relevant to an important manner in issue between D1 and D2 and that the relevance of the previous convictions is more than merely marginal or trivial

Question 22

Under gateway (e), when is propensity to be untruthful relevant and what is required?

Answer 22

Can only be used where D1’s defence is that they are not guilty and they blame D2 for the offence, therefore adducing prior convictions will undermine D2’s evidence

• Perjury, false representation and convictions following a not guilty plea are the most relevant here
• Example – A + B are jointly charged with burglary, and they say the other was solely responsible for the offence. A can adduce B’s previous convictions to undermine the credibility of their evidence

Question 23

Explain gateway (f) - it is evidence to correct a false impression given by the defendant

Answer 23

1) Only P can adduce evidence of D’s bad character under this gateway

2) D will give a false impression if are responsible for the making of an express or implied assertion which is apt to give the court a false or misleading impression about them

• Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.

3) D is treated as making such an assertion if the assertion is:

• Made by D in proceedings
• Made by D when being questioned by police under caution, before or on being charged
• Made by a witness called by D
• Made by any witness in cross-examination in response to a question asked by D that is intended to elicit it
• Made by any person out of court and D adduces evidence of it in the proceedings

Example – X has prior convictions for violent offences and is charged with assault. In the police station interview, X claims they would never do such a thing, so P can correct the false impression by adducing prior convictions

If P successfully gets evidence introduced under this gateway, the court has no power under CJA to prevent its admission, but retains the s78 PACE discretion

Question 24

Explain gateway (g) - the defendant has made an attack on another person’s character

Answer 24

1) Only the prosecution can adduce evidence under this gateway

2) Attack can be on a prosecution witness, someone who is dead or a person who the prosecution does not intend to call to give evidence (anyone)

3) Attack can take place at trial, during police station interview or in a defence statement served on the CPS

4) D attacks another person’s character if he gives evidence that the other person has:

• (a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or
• (b) behaved, or is disposed to behave, in a reprehensible way

Example - Calling someone a derogatory term would be an attack, but denying guilt and saying the allegation is a fabrication would not suffice

Question 25

Under gateway (g), what will not be an attack on someone's character?

Answer 25

Merely denying the prosecution case and going no further

Question 26

Under gateway (g), when **must** the court exclude evidence of D's bad character?

Answer 26

Court **must exclude** evidence, if on an application by D, 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 27

In general, explain the court's powers to exclude evidence of D's bad character

Answer 27

Court has no power to exclude bad character evidence admitted under any gateway **other than (d) and (g)** - all other gateways are automatically admissible, if the requirements are met They retain the **discretionary s78 PACE power** to exclude evidence on which **the *prosecution* proposes to rely**, if the admission of evidence would have such an **adverse effect on the fairness** of the proceedings that it ought not to be admitted * Could realistically only apply to (c) and (f) In CC, a judge can direct the jury to acquit D or order a retrial where evidence of D’s bad character is **contaminated**, which might mean witnesses have fabricated evidence of this * Does not apply to MC

Question 28

What is the procedure if the prosecution wishes to adduce evidence of D's bad character?

Answer 28

They must give **notice of this intention to both the court and to the other parties**, using a prescribed form + attaching a **written record of the prior convictions** they are seeking to adduce The standard directions will determine the time limits for serving notice, set out in Criminal Procedure Rules

Question 29

What is the procedure if the defendant challenges the introduction of bad character evidence?

Answer 29

They must send an application to court and the other parties for such evidence to be excluded Time limit set out in Criminal Procedure Rules

Question 30

Give an overview of the steps and issues for introducing bad character evidence of the **defendant**

Answer 30

1) Does the evidence constitute misconduct? 2) If yes, is the evidence connected with the offence charged? 2a) If yes, it will be admissible if relevant to the prosecution's case 3) If no, the evidence will only be admissible by coming within one of the 7 gateways 3a) Automatically admissible if gateway established * All parties agree * D adduces the evidence himself or is given in reply to cross-examination by him * Important explanatory evidence (prosecution only) - subject to s78 PACE discretionary exclusionary power * Substantial probative value in relation to an important matter in issue between the defendant and a co-defendant * To correct a false impression given by D - subject to s78 PACE discretionary exclusionary power 3b) Admissible if gateway established, but court must not admit evidence, if on an application by D, 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 * Relevant to an important matter in issue between the defendant and the prosecution (prosecution only) * D has made an attack on another person’s character (prosecution only) 4) Finally, under 'important matter in issue between D and P,' under the ‘propensity to commit offences of kind charged’ subsection, the court must exclude evidence if satisfied it would unjust to admit it, due to passage of time or any other reason

Question 31

Explain, broadly, when bad character evidence of **someone other than the defendant** can be admissible?

Answer 31

Evidence of anyone person's bad character will only be admissible if: (a) it is **important explanatory evidence**, (b) it has **substantial probative value** in relation to a matter which * (i) is a **matter in issue** in the proceedings, and * (ii) is of **substantial importance in the context** of the case as a whole, or (c) all **parties agree** to the evidence being admissible * If all parties agree, bad character evidence of this other person will **always be admissible** Commonly used by D when applying to adduce bad character evidence of the complainant, but can be relied on by D and P against any witness or non-witness

Question 32

Explain what is meant by 'important explanatory evidence' for the purposes of introducing bad character evidence of someone other than D

Answer 32

Similar to gateway (c) for D’s prior convictions Will only be 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 (**more than merely trivial or marginal**) **Leave of the court is required** for a party to adduce this evidence

Question 33

Explain, broadly, what is meant by evidence having 'substantial probative value in relation to an important matter in issue in the proceedings'

Answer 33

Usually used by D against a prosecution witness This ground can be used to show: * A witness lacks **credibility**, because they have a propensity to be untruthful * The witness engaged in **misconduct in connection** with the offence Court must have regard to: * (a) the nature and number of the events, or other things, to which the evidence relates; and * (b) when those events or things are alleged to have happened or to have existed **Leave of the court is required** for a party to adduce this evidence

Question 34

Under the 'substantive probative value' section of someone else's bad character evidence, when will evidence relate to someone's credibility as a witness?

Answer 34

Previous witness convictions which might undermine their credibility include: * Perjury, fraud by false representation * Witness pleaded not guilty, testified but was not believed + found guilty Where the **witness is important**, **dishonesty offences may be admissible too**, so this is a different approach than for proving D has a propensity to be untruthful Whether convictions are persuasive as to creditworthiness depends on **their nature, number and age**, and it was not necessary for the conviction to demonstrate a propensity to untruthfulness

Question 35

Under the 'substantive probative value' section of someone else's bad character evidence, when will evidence relate to 'misconduct in connection with the current offence?'

Answer 35

If there is a similarity between witness’ prior convictions and the alleged offence, the court will have regard to **the nature and extent of similarities and dissimilarities** between each alleged instance of misconduct Example – if B committed various assault offences whilst drunk and A is on trial for getting into an assault with B whilst drunk, the factual similarities might be adduced as evidence to suggest B was the aggressor instead

Question 36

Under the 'substantive probative value' section of someone else's bad character evidence, when will evidence relate to someone being potentially guilty of the current offence?'

Answer 36

Where it is suggested that the witness is responsible for having committed the offence with which D is charged, the court will have regard to the **extent to which the evidence shows that the same person was responsible each time** (when the previous convictions occurred) * Example – X (the accused) alleges that it was the witness Y that committed burglary, as they have 2 prior convictions for theft. The court will consider the similarities and dissimilarities between Y’s previous convictions and the current facts Where the **facts are very different**, the court **won’t allow D to raise the other person’s prior convictions**

Question 37

How does the 'substantive probative value' ground relate to witnesses who are not giving evidence?

Answer 37

This ground can be used to adduce evidence of prior convictions of someone who is not giving evidence, for example the deceased victim if they had prior convictions for handling offensive weapons and D is claiming self-defence against murder

Question 38

Give an overview of the steps and issues for introducing bad character evidence of **someone other than** the defendant

Answer 38

1) Does the evidence constitute misconduct? 2) If yes, is the evidence connected with the offence charged? 2a) If yes, the evidence will be admitted if relevant to the case 3) If no, the evidence is only admissible if it meets one of the 3 requirements: 3a) It is important explanatory evidence - leave of court **required** 3b) It has substantial probative value in relation to a matter which * (i) is a matter in issue in the proceedings, and * (ii) is of substantial importance in the context of the case as a whole - leave of court **required** 3c) All parties agree to the evidence being admissible - leave of court **not required**