CLP 4 - bad character

Question 1

What is the definition of ‘Bad Character’? S.98

Answer 1

“evidence of, or a disposition towards, misconduct on his part, other than evidence which:-

• a) has to do with alleged facts of the offence, or
• b) evidence of misconduct in connection with the investigation or prosecution of the offence

(Misconduct means reprehensible behaviour)

Question 2

How can bad character be shown?

Answer 2

• Criminal record,
• Agreed facts that amount to reprehensible behaviour
• Witness evidence of a reputation for reprehensible behaviour

Question 3

Can previous acquittals be used as evidence of bad behaviour?

Answer 3

Yes

Question 4

What are the gateways under s.101 for bad character evidence?

Answer 4

Agreement - all parties agree to the evidence being admissible
Blurts it out - evidence provided by D himself
Context - required to understand the case and value is substantial*
Done it before - propensity to commit similar offences of be untruthful*
‘E did it - co-defendant’s evidence*
False impression - evidence to correct a false impression given by D*
Gets at a witness - defendant makes an attack on another person’s character*

*Leave of court required

Question 5

When will the court not admit “Done it before” evidence of bad character?

Answer 5

If, on an APPLICATION BY THE DEFENDANT to exclude it, it appears to the court that the admission of evidence would have such an ADVERSE EFFECT on the FAIRNESS of the proceedings that the COURT OUGHT NOT TO admit it.

Question 6

What is the leading case for “Done it before” evidence of bad character?

Answer 6

R v Hanson & others

Question 7

What is the test for “Done it before” evidence of bad character in Hanson?

Answer 7

• Does the defendant’s history establish a propensity to commit offences of the kind charged?
• Does that propensity make it more likely that D committed the offence charged?
• Would it be unjust to rely on the previous offenses?
• In any event, would the proceedings be unfair if the evidence were to be admitted?
• no minimum number of convictions.
• Strength of prosecution should be considered
• can include evidence after the offence

Question 8

What is the test for “E done it” evidence of bad character?

Answer 8

Evidence provided by a co-defendant as to the bad behaviour of the defendant.

NOTE: no fairness test.

Question 9

What is the test for “False Impressions” evidence of bad character ?

Answer 9

• the defendant (or a witness called/questioned by/or relied on by him that he has not disassociated from) has given a false impression.
• evidence to correct such an impression has a probative value in correcting it.

Only applies to prosecution evidence.

Question 10

What is the test for “Gets at witness” evidence of bad character ?

Answer 10

Defendant:
- provides evidence attacking someone else’s’ character
- asks questions in cross-examination which are intended to attack,
- defendant attacks someone else’s character

Includes evidence that:
- the other person has committed an offence
- the other person has behaved in a reprehensible way

Only applies to prosecution evidence and fairness test applies

Question 11

What directions are given to the jury in respect of ‘bad character’?

Answer 11

• they should not conclude that D was guilty or untruthful merely because has previous convictions.
• a propensity is not enough to show that D committed the offence

Question 12

What are the s.101(3) safeguards?

Answer 12

• The court must not admit evidence under (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 it.

for example passage of time since conviction.

Question 13

What are the s.107 safeguards?

Answer 13

Gives court discretion to stop the case if the bad character evidence has been contaminated such that a conviction would be unsafe.

Question 14

What are the s.110 safeguards?

Answer 14

Court must give reasons in open court for any rulings on bad character.

Question 15

What happens if there is a dispute over a previous conviction / acquittal?

Answer 15

If UK or EU ,may be proved by providing certificate of conviction. Once certificate provided, burden of proof falls on D to show that there was no conviction.

Question 16

What are the time limits for giving notice if bad character evidence is to be adduced for prosecution evidence?

Answer 16

Prosecution evidence:
- Magistrates not more than 28 days after D pleads not guilty,
- Crown Court not more than 14 business days after the defendant pleads not guilty

Question 17

Defendant bad character:
What are the time limits for giving notice if bad character evidence is to be adduced for Co-Defendant’s evidence?

Answer 17

• Not more than 14 days after prosecutor discloses material on which the notice is based.
  AND
• as soon as reasonably practicable.

Question 18

Defendant bad character:
What is included in the notice?

Answer 18

• facts of misconduct
• how they will prove those facts
• explain why the evidence is admissible

Question 19

Defendant bad character:
What are the time limits for giving a RESPONSE if bad character evidence has been notified?

Answer 19

Not more than 14 days after service of notice.

Question 20

Defendant bad character:
What is included in the response?

Answer 20

• disputed facts
• what facts should be admitted
• why the evidence is not admissible
• why it would be unfair to admit the evidence
• any other objection.

Question 21

Non-Defendant bad character:
What are the time limits for giving notice if bad character evidence is to be adduced for Co-Defendant’s evidence?

Answer 21

• Not more than 14 days after prosecutor discloses material on which the application is based.
  AND
• as soon as reasonably practicable.

Question 22

Non-Defendant bad character:
What is included in the application?

Answer 22

• facts of misconduct
• how they will prove those facts
• explain why the evidence is admissible

Question 23

Non-Defendant bad character:
What are the time limits for giving a RESPONSE if bad character evidence has been notified?

Answer 23

Not more than 14 days after service of application.

Question 24

Non-Defendant bad character:
How can the Court deal with an application?

Answer 24

• with or without a public hearing in public or private.
• Decision must be announced in public, but in absence of jury.
• Can extend time limits

Question 25

Pre-trail matters 2

Answer 25

These concern applications and hearings that may be made.

Question 26

Pre-trail matters 2: What application would be made if: - the defence wants to exclude evidence under s.78 - either party wants to introduce bad character or hearsay evidence?

Answer 26

An evidence application

Question 27

When is the most common time to deal with an application to exclude evidence or introduce inadmissible evidence?

Answer 27

On the day of the trial

Question 28

Pre-trail matters 2 What special measure could be put in place for a minor?

Answer 28

- Screens - TV link - Giving evidence in private - Removing wigs and gowns - Video recording evidence - Pre-recording cross-examination and re-examination - Questioning via an intermediary - Aids to communication

Question 29

Pre-trail matters 2 What are the eligibility criteria for special measure to be put in place?

Answer 29

- under 18 automatic - mental disorder - fear and distress and evidence won't be diminished - adult complainants of sexual offences - modern slavery adults - Witnesses in homicide, firearms and knife cases

Question 30

Pre-trail matters 2 When can vulnerable defendants appear by live link?

Answer 30

- the accused is under 18 AND ability to participate is compromised by their intellectual ability. - the accused is 18 or over and has a significant mental disorder

Question 31

Pre-trail matters 2 When can a witness summons be issued demanding a witness appear at court or provide a written statement.

Answer 31

- the witness is likely to be able to give material evidence; AND - it is in the interests of justice to issue the summons

Question 32

Pre-trail matters 2 Can D change his plea from 'not guilty' to 'guilty'?

Answer 32

Yes, at any time before the jury return their verdict.

Question 33

Pre-trail matters 2 Can D change his plea from 'guilty' to 'not guilty'?

Answer 33

They can apply to the court and then its for the judges discretion (but v. rare will allow). Court will reject where D has been represented properly.

Question 34

Pre-trail matters 2 When D is trying to change his plea from 'guilty' to 'not guilty' what does advised properly mean?

Answer 34

- proper advice has been given, - no undue influence - plea was unequivocal e.g. the prosecution has no evidence of an essential ingredient of the offence.