Character evidence

Question 3

What is the definition of bad character under the Criminal Justice Act 2003?

Answer 3

Evidence of, or of a disposition towards, misconduct on his part, other than evidence that relates to the alleged facts of the offence or misconduct in connection with the investigation or prosecution of that offence.

This definition is found in s.98 of the Criminal Justice Act 2003.

Question 4

How is misconduct defined in the Criminal Justice Act 2003?

Answer 4

The commission of an offence or other reprehensible behaviour.

This definition is provided in s.112 of the Criminal Justice Act 2003.

Question 5

What does ‘reprehensible behaviour’ indicate?

Answer 5

Some degree of moral blameworthiness.

The term is not further defined in the Act, but case law provides context.

Question 6

What are some sources of bad character evidence?

Answer 6

• Previous convictions in the UK
• Previous convictions in a foreign court with a domestic equivalent
• Cautions
• Acquittals where the prosecution contends guilt
• Agreed facts amounting to reprehensible behaviour
• Witness evidence of a reputation for reprehensible behaviour

Question 7

Is evidence of previous acquittals admissible in proving bad character?

Answer 7

Yes, the prosecution can assert that the defendant committed the offence(s) of which they were acquitted.

This is subject to the double jeopardy rule not being transgressed.

Question 8

Which conduct is excluded from the definition of bad character in s.98?

Answer 8

• Evidence related to the alleged facts of the offence
• Evidence committed in connection with the investigation or prosecution of that offence

Question 9

What is the mnemonic to remember the seven gateways of admissibility for defendant bad character evidence?

Answer 9

• Agreement
• Blurting it out
• Context
• Done it before
• ‘E did it
• False impression
• Gets at the witness

Question 10

What does Section 101(1)(a) of the CJA 2003 state regarding bad character evidence?

Answer 10

Evidence is admissible if all parties to the proceedings agree to it being admissible.

Question 11

What is the significance of Section 101(1)(b) regarding evidence adduced by the defendant?

Answer 11

It allows defendants to introduce their own bad character evidence without needing court leave.

Question 12

What constitutes ‘important explanatory evidence’ under Section 101(1)(c)?

Answer 12

Evidence necessary for the court or jury to properly understand other evidence in the case.

Defined in s.102 CJA 2003.

Question 13

What is an ‘important matter in issue’ as per Section 101(1)(d)?

Answer 13

It is relevant to a substantial matter in the context of the case, such as the defendant’s propensity to commit offences of the kind charged.

Question 14

What does the court consider when determining the admissibility of bad character evidence to show propensity?

Answer 14

• Does the defendant’s history establish a propensity?
• Does that propensity make it more likely they committed the charged offence?
• Would it be unjust to rely on previous offences?
• Would proceedings be unfair if the evidence is admitted?

Question 15

Is there a minimum number of previous convictions required to establish a propensity?

Answer 15

No minimum number is required, but fewer previous convictions weaken the evidence of propensity.

Question 16

What is the role of the judge regarding evidence of propensity?

Answer 16

The judge determines whether the evidence is capable of establishing a propensity.

Question 17

What does Section 101(1)(e) state about evidence relevant to co-defendants?

Answer 17

It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.

Question 18

What is the significance of ‘cross-admissibility’ in bad character provisions?

Answer 18

Bad character provisions apply as if each offence were charged in separate proceedings, requiring a gateway for cross-admissibility.

Question 19

What is meant by ‘propensity to be untruthful’ in R v Hanson?

Answer 19

It is not the same as propensity to be dishonest; previous convictions show untruthfulness only if they involved being untruthful in the commission of the crime.

Question 20

What is the substantial probative value in relation to?

Answer 20

An important matter in issue between the defendant and a co-defendant.

This relates to the admissibility of evidence under Section 104 CJA 2003.

Question 21

Under what condition is evidence of a defendant’s propensity to be untruthful admissible?

Answer 21

Only if the nature or conduct of his defence undermines the co-defendant’s defence.

This is outlined in Section 104 CJA 2003.

Question 22

What types of evidence are admissible under Section 101(1)(e)?

Answer 22

• Evidence adduced by the co-defendant
• Witness testimony invited by the co-defendant in cross-examination

This is specified in Section 104 CJA 2003.

Question 23

Does the fairness test in s.101(3) CJA 2003 apply to s.101(1)(e)?

Answer 23

No.

Evidence coming in through this gateway is not prosecution evidence, thus the fairness test does not apply.

Question 24

What is the effect of s.104 regarding co-defendant’s propensity to be untruthful?

Answer 24

Admissible only if the defence undermines the co-defendant’s defence that seeks to adduce the evidence.

Leave of the court is required to admit evidence through this gateway.

Question 25

What does Section 101(1)(f) focus on?

Answer 25

Correcting a false impression given by the defendant. ## Footnote This section allows for the introduction of evidence to clarify misleading assertions.

Question 26

What constitutes a 'false impression' according to Section 105?

Answer 26

An express or implied assertion that gives a false or misleading impression about the defendant. ## Footnote Section 105 provides the definition and context for this term.

Question 27

What are the conditions under which a defendant is responsible for an assertion?

Answer 27

* Assertion made by the defendant in proceedings * Assertion made during questioning under caution * Assertion made by a witness called by the defendant * Assertion made during cross-examination by the defendant * Assertion made out of court and introduced by the defendant ## Footnote These conditions are outlined in Section 105.

Question 28

What is required for evidence to be admissible under Section 101(1)(f)?

Answer 28

It must go no further than necessary to correct the false impression. ## Footnote Only prosecution evidence is admissible under this section.

Question 29

What triggers Section 101(1)(g)?

Answer 29

The defendant makes an attack on another person's character. ## Footnote This includes adduced evidence or questions in cross-examination aimed at discrediting another person.

Question 30

What is meant by 'important explanatory evidence' under Section 100?

Answer 30

Evidence that is essential for understanding other evidence in the case. ## Footnote Without it, the court or jury would find it difficult to comprehend the case.

Question 31

What factors must the court consider in assessing the probative value of evidence under Section 100(1)(b)?

Answer 31

* Nature and number of events * Timing of those events * Similarities and dissimilarities in misconduct * Identity of the person responsible ## Footnote These factors help determine whether evidence is substantial and relevant.

Question 32

What is the significance of the word 'substantial' in Section 100(1)(b)?

Answer 32

Indicates that the evidence must have a significant impact on assessing a witness's credibility or the case as a whole. ## Footnote This highlights the importance of the evidence's relevance and impact.

Question 33

What is required for evidence of non-defendant bad character to be admissible?

Answer 33

Leave of the court unless all parties agree to its admission. ## Footnote This is outlined in Section 100 CJA 2003.

Question 34

What does Section 100(1)(c) state regarding evidence admissibility?

Answer 34

Evidence is admissible without leave of the court if all parties agree. ## Footnote This provides a pathway for the inclusion of evidence without the usual restrictions.

Question 35

What must the jury be directed regarding bad character evidence?

Answer 35

* Weight is a matter for the jury * Not to rely too much on bad character evidence * Previous convictions alone do not imply guilt * A propensity is not enough for conviction ## Footnote These directions help ensure fair consideration of evidence.

Question 36

What is the definition of 'bad character' under Section 98?

Answer 36

Misconduct or behavior that reflects poorly on a person's character. ## Footnote This term is crucial for understanding the admissibility of character evidence.

Question 37

What must the court find regarding evidence for it to be considered to have substantial probative value?

Answer 37

The evidence must have substantial importance in the context of the case as a whole and assist in understanding other evidence ## Footnote This is in reference to Section 100(1)(b), which also considers the credibility and disputed facts.

Question 38

What does 'matter in issue' refer to?

Answer 38

It can refer to either credibility or a disputed fact ## Footnote While propensity is not specifically mentioned, it can still be a matter in issue.

Question 39

How does recent misconduct compare to older misconduct in terms of probative value?

Answer 39

Recent misconduct is likely to have greater probative value than misconduct long ago.

Question 40

What are the three sections under which non-defendant bad character is defined?

Answer 40

* s.100(1)(a) - important explanatory evidence, court to give leave * s.100(1)(b) - substantial probative value, court to give leave * s.100(1)(c) - agreement of the parties, admissible without leave of the court.

Question 41

What does Section 78 PACE Act 1984 allow a judge to do?

Answer 41

It allows a judge discretion to exclude any evidence that would adversely affect the fairness of the proceedings.

Question 42

What is the key difference between Section 78 PACE and Section 101(3) CJA 2003?

Answer 42

Section 101(3) uses 'must' whereas Section 78 uses 'may', indicating a stricter requirement for exclusion of evidence.

Question 43

Under what circumstances can evidence of a defendant's bad character be excluded according to Sections 101(1)(d) and 103(3) CJA 2003?

Answer 43

If the court is satisfied that it would be unjust to admit the evidence due to the time elapsed since the earlier conviction or other reasons.

Question 44

What does Section 107 CJA 2003 allow the court to do regarding bad character evidence?

Answer 44

It allows the court to stop the case if the admitted bad character evidence is contaminated and makes the conviction unsafe.

Question 45

What does Section 110 CJA 2003 require from the court regarding bad character rulings?

Answer 45

It requires the court to give reasons in open court for any ruling made on the issue of bad character.

Question 46

What does Section 73 PACE Act 1984 state about proving convictions and acquittals?

Answer 46

It allows convictions or acquittals to be proved by the production of a certificate of conviction from the relevant court.

Question 47

What does Section 74 PACE Act 1984 state regarding convictions as evidence?

Answer 47

It states that a person proved to have been convicted shall be taken to have committed the offence unless the contrary is proved.

Question 48

What procedural rules must be followed to adduce bad character evidence?

Answer 48

The procedural rules are found in Part 21 of the Criminal Procedure Rules.

Question 49

What is the time limit for the prosecution to submit defendant bad character evidence in the Magistrates’ court?

Answer 49

Not more than 20 business days after the defendant pleads not guilty.

Question 50

What must be included in the contents of the notice for prosecution evidence regarding bad character?

Answer 50

* Facts of the misconduct * How those facts will be proved * Why the evidence is admissible.

Question 51

True or False: The court can decide an application for bad character evidence with or without a hearing.

Answer 51

True.

Question 52

What does the court have discretion to do regarding time limits for applications or notices?

Answer 52

The court can shorten or extend time limits or allow an application or notice to be given in a different form.

Question 53

What must the response to a notice of bad character evidence include?

Answer 53

* Disputed facts * Admitted facts * Reasons why the evidence is not admissible * Any other objections.