CLP Evidence Flashcards
(124 cards)
1
Q
How is ‘bad character’ defined in law?
A
Misconduct or a disposition towards misconduct, except for conduct:
* relating to the alleged offence (s 98(a)), or
* connected to the investigation/prosecution (s 98(b)).
2
Q
What counts as ‘misconduct’ under s 112 CJA 2003?
A
The commission of an offence or other reprehensible behaviour.
3
Q
What are the two types of misconduct excluded by s 98?
A
- Facts that are part of the offence charged
- Conduct connected to the investigation or prosecution
4
Q
What does s 98(a) cover?
A
Misconduct that’s part of the alleged offence itself.
5
Q
What does s 98(b) cover?
A
Misconduct during investigation or trial.
5
Q
What’s the test for whether motive evidence is excluded from bad character rules?
A
Ask: Does the motive help prove the offence? If yes → s 98(a).
6
Q
What does ‘reprehensible’ mean legally?
A
Morally blameworthy. Not just immoral (e.g. an affair ≠ bad character), but conduct showing blame.
7
Q
A defendant lies in interview. Is that bad character? Why/why not?
A
No. It’s part of the investigation → s 98(b) → not bad character.
8
Q
When the prosecution has to prove a past offence to prove the current one (e.g. driving while disqualified), is that bad character?
A
No. It’s part of the offence facts → s 98(a).
9
Q
What types of evidence can show bad character under the CJA 2003?
A
Previous convictions in the UK
Previous convictions abroad, if there’s a UK equivalent offence
(⚠️ e.g. blasphemy may not count)
Cautions
Acquittals, where the prosecution says the defendant was actually guilty
(See Z [2000] for use of prior acquittals to show propensity)
Agreed facts showing reprehensible behaviour
Witness evidence of a reputation for reprehensible behaviour
10
Q
Can the prosecution rely on a previous acquittal as bad character evidence?
A
Yes, if they assert the defendant was actually guilty. But they can’t punish for it.
11
Q
What case allows prior acquittals to show propensity?
A
Z [2000] 2 AC 483 – allowed to use prior rape acquittals to show propensity to rape.
12
Q
Why didn’t using acquittals in Z breach double jeopardy?
A
Because the prosecution didn’t seek punishment—just to prove current guilt.
13
Q
When do you need a gateway to admit bad character evidence?
A
When the conduct is bad character (i.e. doesn’t fall under s 98).
14
Q
What are the two key gateway sections?
A
- s 100 – non-defendant bad character
- s 101 – defendant bad character
15
Q
What is required for bad character evidence to be admitted under s 101(1)(a)?
A
All parties to the proceedings must agree to it. No court application or formality needed.
16
Q
Does s 101(1)(a) require a written agreement?
A
No. Tacit agreement is enough.
17
Q
Who can object if there is no agreement to introduce s 101(1)(a)?
A
Any party. If one party objects, s 101(1)(a) does not apply – another gateway is needed.
18
Q
What’s the practical benefit of using s 101(1)(a) instead of another gateway?
A
No need for a court application or formal procedure. Saves time.
19
Q
What’s the key condition for Gateway (b) to apply?
A
The defendant must introduce the evidence themselves or ask a question designed to elicit it.
20
Q
Is court permission needed for Gateway (b)?
A
No. No leave of the court is required.
21
Q
Give 4 reasons why a defendant might choose to introduce their own bad character under s 101(1)(b)
A
To admit a past conviction up front and possibly get a modified good character direction
To show they’ve never been convicted of this type of offence
To support an alibi (e.g. “I was in prison at the time”)
To explain police bias (e.g. past dealings with officers)
22
Q
Give examples of reprehensible conduct
A
Excessive drinking, taking illegal drugs, and membership of a violent gang
23
Q
What must explanatory bad character evidence do to qualify under Gateway (c)?
A
Help the jury properly understand other evidence — it must have substantial explanatory value.
24
Can explanatory evidence under Gateway (c) be used to prove guilt or show propensity?
No. It's only to help the jury understand context — not to prove guilt.
25
Who can use Gateway (c)?
Only the prosecution.
26
Give an example of Gateway (c) in action.
Witness identifies D as a former drug dealer → explains recognition → admissible.
27
What does Gateway (d) allow?
Admission of bad character evidence relevant to an important matter between D and the prosecution.
28
What two matters are always presumed relevant under s 103(1)?
Propensity to commit offences of the kind charged (s 103(1)(a))
Propensity to be untruthful (s 103(1)(b))
29
How can the prosecution easily prove a propensity to commit offences of the kind charged?
Previous conviction for an offence of the same description (s 103(2)(a))
Previous conviction for an offence of the same category (s 103(2)(b))
30
What are the two categories of offences for s 103(2)(b)?
Theft-type offences
Sexual offences against persons under 16
31
What exception limits automatic admission of old convictions?
s 103(3): Court can disapply same-description/category rules if conviction is too old or unfair to admit.
32
What must be shown for a propensity to be untruthful?
Evidence of actual lying — not just dishonesty.
33
Apart from convictions, how else can propensity to lie be shown?
A not guilty plea in a previous case where D gave a false account that was disbelieved (at arrest, interview, or trial).
34
What does s 101(3) require the court to do?
Exclude bad character evidence if admitting it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
35
How is "important matter" defined?
s 112: a matter of substantial importance to the case as a whole.
36
What does "same description" mean under s 103(4)(a)?
Same wording in charge/indictment (e.g. burglary and burglary).
37
What types of convictions show a propensity to be untruthful?
Fraud, deception, perverting the course of justice.
38
What 4 questions must the court ask when deciding whether to admit evidence showing propensity (Hanson)?
Does D’s history show a propensity to commit offences of the kind charged?
Does that propensity make it more likely that D committed the current offence?
Are the previous offences of the same description or category — and, if so, would it still be unjust to rely on them? (s 103(3))
Would admitting the evidence make the proceedings unfair overall? (s 101(3))
39
Does Gateway (d) require a minimum number of convictions to show propensity?
No. A single conviction can be enough if it shows a pattern or unusual behaviour.
40
Should weak prosecution cases rely heavily on bad character?
No. Court must consider the strength of the case separately. Bad character should not be used to bolster a weak case.
41
Can evidence of a propensity arise after the charged offence?
Yes, if it helps show an ongoing tendency (e.g. racist expression after a racist assault).
42
Is Gateway (d) limited to propensity issues?
No. It can cover any important matter between prosecution and defence (e.g. identity).
43
What is an example where bad character helps prove identity?
Striking similarity cases (e.g. Straffen – repeated unusual method of offending).
44
What is "striking similarity" evidence?
Evidence showing such an unusual pattern of offending that it links D to the current offence.
45
What is cross-admissibility under Gateway (d)?
When evidence from one offence can be used to support the prosecution case on another offence in the same trial.
46
When evidence from one offence can be used to support the prosecution case on another offence in the same trial.
When D faces multiple charges and Gateway (d) is needed to admit evidence from one count as supporting evidence for another.
47
What must the court check when deciding cross-admissibility?
Whether the offences show a relevant propensity and whether admitting the evidence is fair.
48
Who decides if evidence is capable of showing propensity?
The judge
49
Who decides if propensity actually exists based on the evidence?
The jury
50
Is leave of the court needed to admit evidence under Gateway (d)?
Yes — especially when relying on important explanatory value or fairness concerns.
51
What does s 101(1)(e) allow?
A co-defendant (D1) can adduce evidence of another defendant's (D2’s) bad character if it has substantial probative value to an important matter in issue between them.
52
When is evidence admissible under s 104(1)?
Only if the nature or conduct of the other defendant’s case undermines the co-defendant’s defence.
53
54
What statutory section governs how s 101(1)(e) operates?
s 104 CJA 2003.
55
When is evidence admissible under s 104(1)?
Only if the nature or conduct of the other defendant’s case undermines the co-defendant’s defence.
56
What types of evidence can be used under Gateway (e)?
Evidence adduced by the co-defendant (s 104(2)(a))
Evidence from witnesses cross-examined by the co-defendant (s 104(2)(b))
57
Who can introduce evidence under Gateway (e)?
Only a co-defendant — not the prosecution.
58
What is meant by "substantial probative value"?
The evidence must have a significantly increased ability to prove or disprove an important fact.
59
Does the fairness test under s 101(3) apply to Gateway (e)?
No. s 101(3) fairness discretion does not apply to Gateway (e).
60
Does s 78 PACE 1984 apply to exclude evidence under Gateway (e)?
No. Because the evidence is not prosecution evidence, s 78 PACE does not apply.
61
Is it easy for D2 to exclude bad character evidence adduced against them by D1?
No. It’s very difficult because normal fairness safeguards do not apply.
62
Does leave of the court have to be obtained for Gateway (e)?
Yes. Leave of the court is required to admit evidence through this gateway.
63
Can a co-defendant rely on D2’s bad character simply to show propensity?
No — unless D2’s case asserts no such propensity, making it relevant.
64
What does s 104 say about evidence of propensity to be untruthful?
Only admissible if the nature of D2’s defence is such as to undermine D1’s defence.
65
Give an example where Gateway (e) might apply.
D1 says D2 committed the offence alone → D1 adduces evidence that D2 has past similar convictions to prove likelihood.
66
What is gateway (f)?
Evidence to correct a false impression given by the defendant
67
What is a "false impression" under s 105(1)(a)?
An express or implied assertion apt to give the court or jury a false or misleading impression about the defendant.
68
When is a defendant treated as responsible for a false impression?
They make the assertion themselves in proceedings
They made it when questioned under caution or when charged
A witness they called made the assertion
They elicited it during cross-examination
They adduced it through evidence outside of court
(s 105(2))
69
Can a defendant disassociate themselves from a false impression?
Yes. If the defendant clearly withdraws or disassociates, they are not treated as responsible. (s 105(3))
70
What counts as creating a false impression by "conduct"?
Appearance, dress, or behaviour (s 105(5)).
71
Can a false impression be created outside of giving oral evidence?
Yes — it can arise from behaviour, comments made earlier, or even statements made under caution.
72
What safeguard limits what the prosecution can adduce under Gateway (f)?
Evidence is admissible only to the extent necessary to correct the false impression (s 105(6)).
73
Does Gateway (f) require leave of the court?
es. Leave is required to admit evidence through this gateway.
74
Can Gateway (f) be triggered if the false impression was created by evidence already in the prosecution case?
Yes. Even if the prosecution created the situation, they can still use Gateway (f) to correct the impression.
75
Give an example of Gateway (f) in practice.
D says in police interview: “I have never acted dishonestly.”
In fact, D has convictions for fraud.
The prosecution can adduce those convictions under s 101(1)(f) to correct the false impression.
76
What does s 101(1)(g) allow?
If a defendant attacks another person's character, the prosecution can admit the defendant’s own bad character evidence.
77
What counts as an attack under s 106(1)?
Adducing evidence attacking another person’s character
Asking questions in cross-examination likely to elicit such evidence
Making imputations during interview, caution, or charge
78
What is meant by “attacking character” under s 106(2)?
Alleging that another person committed an offence (any offence)
Alleging that another person behaved, or is disposed to behave, in a reprehensible way
79
When can Gateway (g) be triggered?
In court (in evidence or cross-examination)
In interview under caution
Upon being charged
80
Can Gateway (g) apply even if the person attacked is not a witness?
Yes. It doesn’t matter whether the attacked person is a witness or even alive.
81
Who can use Gateway (g)?
Only the prosecution.
Leave of the court is required
82
Does leave of the court have to be obtained to admit evidence under Gateway (g)?
Yes. Leave is required.
83
Does the fairness test in s 101(3) apply to Gateway (g)?
Yes. The court must exclude the evidence if admitting it would have an adverse effect on the fairness of the proceedings.
84
Why does Gateway (g) exist?
To allow the jury to properly assess whether an attack made by D on another person is credible, by knowing D’s own character.
85
Can Gateway (g) be used to show dishonesty as well as propensity?
Yes. Evidence admitted through this gateway can be relevant to both dishonesty and general credibility.
86
Who decides what weight to place on bad character evidence?
The jury. It’s a matter for them.
87
What must the judge make clear to the jury about bad character evidence?
They must not place too much weight on it.
It cannot be used to bolster a weak case.
It cannot prejudice the jury against the defendant just because they have previous convictions.
88
What two warnings must the jury always be given?
They should not conclude the defendant is guilty or untruthful just because of previous convictions.
Propensity alone is not enough to prove guilt in the current charge.
89
How should the jury assess bad character evidence?
In the light of all the evidence in the case — not in isolation.
90
What should the judge say if bad character evidence relates to alleged misconduct that did not result in conviction?
If the misconduct is disputed, the jury should be warned:
→ They should not rely on it unless they are sure it is true.
91
When is bad character evidence about a non-defendant admissible under s 100(1)?
Only if:
(a) It is important explanatory evidence, or
(b) It has substantial probative value in relation to a matter in issue that is of substantial importance, or
(c) All parties agree to its admission.
92
What must be shown for non-defendant bad character to qualify as important explanatory evidence?
Without it, the jury would find it impossible or difficult to understand other evidence; and
Its value for understanding the case as a whole is substantial.
93
What factors must the court consider when deciding if non-defendant bad character evidence has substantial probative value under s 100(3)?
(a) Nature and number of the events or matters the evidence relates to
(b) When those events happened
(c) Similarity between alleged misconduct and the issue in the trial
(d) Where identity is in issue: how much the misconduct connects the person to the charge
94
What two specific situations does s 100(3)(c) and (d) highlight?
(c): Similarity between misconduct and other allegations (suggesting a pattern)
(d): Misconduct connecting the non-defendant to the offence charged (identity issue)
95
Which party or parties can adduce evidence of non-defendant bad character under s.100 Criminal Justice Act 2003?
Any party can adduce it
96
Is leave of the court required under s 100?
Yes, unless all parties agree to admit the evidence
97
Under s 100 CJA 2003, what happens if a party tries to admit non-defendant bad character evidence purely to attack a witness’s credibility?
The court must still strictly apply the s 100 gateways — it cannot admit bad character evidence just because it might affect credibility.
It must satisfy either important explanatory evidence, substantial probative value, or agreement.
98
Why does recent misconduct usually have greater probative value under s 100(1)(b)?
Because recent misconduct is more relevant and reliable than misconduct that happened long ago.
99
How does s 78 PACE 1984 apply to bad character evidence in criminal proceedings?
It gives the judge discretion to exclude prosecution evidence if admitting it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
100
Does s 78 PACE 1984 apply when a co-defendant adduces bad character evidence against another defendant?
No.
s 78 PACE only applies to prosecution evidence.
It has no application where one defendant adduces evidence against another.
101
Under s 101(3) CJA 2003, when must the court exclude bad character evidence?
When admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.
(Applies to evidence under Gateways (d) and (g)).
102
How does the wording of s 101(3) CJA 2003 differ from s 78 PACE 1984?
s 101(3): the court "must" exclude unfair evidence.
s 78 PACE: the court "may" exclude unfair evidence.
(Stricter under s 101(3))
103
What does s 103(3) CJA 2003 allow the court to do?
Exclude evidence of previous offences (same description/category) if the conviction is too old or unfair to admit.
104
What power does s 107 CJA 2003 give the court?
The court can stop the case if bad character evidence has contaminated the fairness of the trial to the point that a conviction would be unsafe.
105
What does s 110 CJA 2003 require regarding rulings on bad character?
The judge must give reasons in open court for any ruling they make on bad character.
106
How can a conviction or acquittal be proved under s 73 PACE 1984?
By producing a certificate of conviction or acquittal signed by the proper court officer, plus evidence showing the certificate refers to the correct person.
107
What does s 74 PACE 1984 provide about using convictions as evidence?
If a person has been convicted of an offence, they are presumed to have committed that offence unless they prove otherwise.
108
What documents are admissible under s 75 PACE 1984 to prove a conviction?
Documents like the information, charge sheet, and/or indictment used at the original proceedings.
109
Under which part of the Criminal Procedure Rules are procedural rules for bad character evidence found?
Part 21 of the Criminal Procedure Rules.
110
Under Rule 21.2 of the Criminal Procedure Rules, what must a party do if they wish to adduce non-defendant bad character evidence?
Make a formal application under Rule 21.3.
111
Under Rule 21.2 of the Criminal Procedure Rules, what must a party do if they wish to adduce defendant bad character evidence?
Give notice under Rule 21.4.
112
Under Rule 21.2 CPR, when must prosecution give notice to adduce defendant bad character evidence in the Magistrates' Court?
No more than 20 business days after the defendant pleads not guilty.
113
Under Rule 21.2 CPR, when must prosecution give notice to adduce defendant bad character evidence in the Crown Court?
No more than 10 business days after the defendant pleads not guilty.
114
Under Rule 21.2 CPR, when must a co-defendant give notice to adduce defendant bad character evidence against another defendant?
As soon as reasonably practicable and, in any event, no more than 10 business days after the prosecution discloses the material on which the notice is based.
115
Under Rule 21.2 CPR, how long does a party have to respond to a notice to adduce defendant bad character evidence?
Within 10 business days after service of the notice.
116
What must a notice to adduce defendant bad character evidence contain under Rule 21.4 CPR?
Set out the facts of the misconduct relied on
Explain how those facts will be proved (certificate, official record, or other evidence)
Explain why the evidence is admissible
117
What must a response contain to a notice about defendant bad character evidence under Rule 21.4 CPR?
Which facts are disputed
What facts are admitted
Why the evidence is not admissible
Why it would be unfair to admit it
Any other objection to the notice
118
Under Rule 21.2 CPR, when must a party apply to adduce non-defendant bad character evidence in the Magistrates’ or Crown Court?
As soon as reasonably practicable; and
In any event, no more than 10 business days after the prosecution discloses the material on which the application is based (if the prosecutor is not the applicant).
119
Under Rule 21.2 CPR, how long does a party have to respond to an application to adduce non-defendant bad character evidence?
Within 10 business days after service of the application.
120
What must an application to adduce non-defendant bad character evidence contain under Rule 21.3 CPR?
Set out the facts of the misconduct relied on
Explain how those facts will be proved (certificate, record, or other evidence)
Explain why the evidence is admissible
121
What must a response to an application about non-defendant bad character evidence explain under Rule 21.3 CPR?
Which facts of the misconduct are disputed, if any
What facts are admitted, if any
Why the evidence is not admissible
Any other objection to the application
122
What rules must be complied with to make a bad character application?
CrimPR Part 21
123
What are the two limbs of a good character direction in criminal trials?
Credibility limb – The jury should consider that a person of good character is more likely to tell the truth.
Only given if the defendant gives evidence, either in interview or at trial.
Propensity limb – The jury should consider that a person of good character is less likely to have committed the offence.
Can be given even if the defendant says nothing, as long as there are no relevant previous convictions.
