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Criminal Law and Practice > Evidence III (bad character evidence) > Flashcards

Evidence III (bad character evidence) Flashcards

1
Q

What is the general rule on bad character evidence?

A

It is inadmissible

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2
Q

What is bad character evidence? What 2 things does it not include?

A

Evidence of (a disposition towards) misconduct except for evidence which…

  • Is related to alleged facts of the offence; or
  • Is in connection with investigation/prosecution of offence
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3
Q

What is misconduct?

The word from the definition of bad character evidence

A

The commission of an offence/other reprehensible behaviour

Reprehensible behaviour not defined but case law says ‘reprehensible’ = some degree of moral blameworthiness e.g. racism, bullying, work misconduct, parent who has child taken into care

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4
Q

Will all morally wrong behaviour be reprehensible?

A

No e.g. having an affair will not be considered bad character evidence in law, but membership of a gang will

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5
Q

What are common sources of bad character evidence?

A
  • Previous convictions in UK
  • Cautions
  • Acquittals where prosecution contends that D was guilty of that offence
  • Agreed facts amounting to reprehensible behaviour
  • Witness evidence of a reputation for reprehensible behaviour
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6
Q

Where prosecution relies on evidence of previous acquittals, will this not infringe on double jeopardy rule?

A

Not if they do not seek to have D punished for previous offences i.e. can assert D did commit offence of which D was previously convicted

Z [2000] - rape case in which it was permissible for prosecution to rely on four previous rape allegations where same defence was advanced and three had resulted in acquittals; showed Z had propensity to rape and assert consensual intercourse had taken place

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7
Q

What falls under ‘has to do with alleged facts of offence’ and ‘in connection with investigation or prosecution’? What is the effect of these falling outside of s98 definition?

The conduct falling outside of s98 bad character evidence definition (and is therefore admissible)

A
  • Alleged facts = evidence of motive of accused to commit offence has to do with alleged facts
  • In connection with = jury tampering, witness intimidation etc.

As they fall outside the definition, they are automatically admissibe (without going through gateway)

If D tells demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b)

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8
Q

When is bad character evidence admissible? After it is admitted, what can it be used for?

A
  • Only admissible if it falls within one of the gateways
  • Once admitted, can be used for any purpose for which it is relevant
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9
Q

What are the 7 gateaways for admissibility of defendant bad character evidence under s101(1)?

A
  1. Agreement of the party
  2. Evidence adduced by D
  3. Important explanatory evidence
  4. Relevant to an important matter in issue between D and prosecution
  5. Relevant to matter in in issue between D and co-D
  6. Correcting a false impression
  7. Attack on another person’s character

Pnemonics:
1. Agreement
2. Blurts it out
3. Context
4. Done it before
5. ‘E’ did it
6. False impression
7. Gets at witness

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10
Q

What can bad character evidence not be used for?

A

Bolstering a weak case or prejudicing a jury against D

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11
Q

S101(1) GATEWAYS

If bad character admitted through agreement of parties s101(1)(a), what is not needed?

A

An application to court for leave to adduce evidence or formal recording of agreement (tacit agreement enought)

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12
Q

S101(1) GATEWAYS

What is permitted by evidence adduced by D s101(1)(b) and what is the rationale here?

A
  • Allows D to introduce evidence of own bad character
  • Rationale = come clean about old conviction, show bias against him from police, put forward defence (e.g. in prison at time)
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13
Q

S101(1) GATEWAYS

What type of evidence is permitted by important explanatory evidence s101(1)(c) and what is required for this gateway?

A
  • Prosecution can adduce evidence of past misconduct of D where needed to explain prosecution case in current trial
  • Leave of court required

E.g. to show previous relationship between people involved in trial (impossible to understand narrative of prosecution without)

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14
Q

S101(1) GATEWAYS

For relevant to an important matter in issue between D and prosecution s101(1)(d), what is required and what is the only evidence admissible?

A
  • Leave of court required
  • Only prosecution evidence admissible under this gateway
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15
Q

S101(1) GATEWAYS

What do matters in issue between D and prosecution include under s101(1)(d)? When will these not be matters in issue?

Per s103(1)

A
  • Whether D has propensity to commit offences of the kind he is charged with (except where having propensity makes guilt no more likely)
  • Whether D has propensity to be untruthful (except where not suggested D’s case is untruthful in any respect)
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16
Q

S101(1) GATEWAYS

With what evidence is ‘propensity to commit offences of kind he is charged with’ established under s101(1)(d)? Unless what?

A

With evidence he has been convicted of offence of same description/category as one he is now charged with unless court deems length of time since conviction too long

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17
Q

S101(1) GATEWAYS

What should be considered for ‘propensity to commit offences of kind he is charged with’ under s101(1)(d)?

R v Hanson + extra principles

A
  1. Does history of convictions establish propensity to commit offences of the kind charge?
  2. If so, does the propensity make it more likely that D committed the crime charged?
  3. Would it be unjust to rely on previous offences?
  • The strength of prosecution case (unlikely to be just to admit where little-no evidence against D)
  • Number of previous convictions (no minimum but fewer = weaker evidence of propensity)
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18
Q

S101(1) GATEWAYS

Can a ‘propensity to commit offences of kind he is charged with’ under s101(1)(d) only be established before the offence?

A

No - can be established after the offence e.g. propensity to be involved in racist murder shown by expression by accused of racist beliefs after commission of offence

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19
Q

S101(1) GATEWAYS

When are previous convictions likely to be capable of showing a ‘propensity to be untruthful’ under s101(1)(d)?

I.e. the only time

See example

A

Where…

  • There was a plea of not guilty to previous offence and D gave evidence at trial which jury must have disbelieved; or
  • The way the offence was committed involved being untruthful e.g. fraud by false representation
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20
Q

S101(1) GATEWAYS

What should the propensity to be untruthful under s101(1)(d) not be considered the same as? Why is this important?

A
  • The propensity to be dishonest
  • Important because e.g. while burglary is categorised as a dishonesty offence, a person can commit a burglary and go onto admit it in interview and plead guilty = would be incorrect to describe their behaviour as general untruthful
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21
Q

S101(1) GATEWAYS

What issue other than propensity (to commit offences of kind charged with/to be untruthful) will be considered under s101(1)(d)?

A

Identity - to support case of identification where facts of previous convictions are so unusual as to constitute a ‘signature’ of the offender’s mode of offending

E.g. Straffen
* Trial for murdering a young girl by strangulation - evidence was adduced that the D had previously been convicted of two similar offences - all three offences had the unusual feature that there had been no attempt at sexual assault and no attempt to conceal the body
* In that case the only additional evidence against the defendant was that he was in the area and he had recently been released from Broadmoor secure psychiatric hospital.
* In such a case it is not necessary for the judge to give the usual warning not to convict solely or mainly on evidence of bad character.

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22
Q

S101(1) GATEWAYS

When can court not admit evidence under s101(1)(d) or (g) because of s101(3) rule? What must D do?

A

Where it would have such an adverse effect on fairness of proceedings (D must apply) - the ‘fairness test’

THIS IS NOT THE SAME AS S78

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23
Q

S101(1) GATEWAYS

Where D faces multiple charges in the same proceedings, why is a gateway needed to allow cross-admissibility of one offence as evidence of the other? Why is s101(1)(d) important here?

A
  • Because bad character provisions apply as if each offence was charged in separate proceedings
  • S101(1)(d) is the most likely gateway to fulfil this function

E.g. man accused of sexual assault on both stepdaughters (A and B)

  • Evidence from A that she was assaulted is only evidence that the defendant committed offences against her unless it is admissible through gateway (d) to show a propensity to commit offences of the kind alleged (in which case it also becomes evidence against the defendant when the jury are considering the allegations made by B; vice versa)

In such a case, if…

  • a jury were sure that the defendant was guilty in respect of A and
  • they were further sure that that conviction established a propensity to offend in a manner relevant to B’s case,

the evidence can be lawfully deployed in that way

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24
Q

S101(1) GATEWAYS

What are the functions of the judge and jury under s101(1)(d)?

A
  • Judge - determines whether evidence capable of establishing propensity
  • Jury - decides whether it actually does show propensity
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25
Q

S101(1) GATEWAYS

When will matters in issue between D and co-D under s101(1)(e) include propensity to commit offences of type charged and to be untruthful like s101(d)?

A
  • Propensity = where one of them asserts they have no such propensity (in which case other D can adduce evidence of propensity)
  • Untruthful = where nature of defence is to undermine defence of co-D that seeks to adduce evidence
26
Q

S101(1) GATEWAYS

What is the only evidence amissible per matters in issue between D and co-D under s101(1)(e)?

A
  • Evidence adduced by a co-D
  • Evidence which a witness is invited to give in cross-examination by co-D
27
Q

S101(1) GATEWAYS

For relevant to matters in issue between D and co-D under s101(1)(e), what is required and what does not apply?

A
  • Leave of court required
  • S78 does not apply (only for prosecution evidence)
  • S101(3) fairness test does not apply
28
Q

S101(1) GATEWAYS

What is the only evidence admissible under correcting a false impression s101(1)(f) and what is required?

A
  • Only prosecution evidence
  • Leave of court required
29
Q

S101(1) GATEWAYS

When is D considered to have given a false impression which can allow prosecution to adduce s101(1)(f)?

A

If they are responsible for making of express/implied assertion which gives court/jury false or misleading impression of D

30
Q

S101(1) GATEWAYS

When is D treated as responsible for making an assertion (which gives false impression) under s101(1)(f)? When are they not treated as responsible?

A

Responsible when assertion made by…

  • D in proceedings/when being questioned or charged and evidence of this given in proceedings or by conduct (e.g. appearance of dress)
  • Witness called by D or in cross-examination in response to Q asked by D intended/or likely to elicit
  • Person out of court and D adduces evidence of it in proceedings

Not treated as responsible if he withdraws/disassociates from it

31
Q

S101(1) GATEWAYS

What is the limit of the evidence adduced by prosecution under s101(1)(f) when correcting a false impression?

A

Admissible only if it goes no further than correcting false impression

32
Q

S101(1) GATEWAYS

Can the prosecution adduce evidence which creates a false impression and then adduce bad character evidence under s101(1)(f) to correct it?

A

Yes! E.g. prosecution adduces assertion of D from police interview which creates false impression, can then adduce bad character evidence to correct it

33
Q

S101(1) GATEWAYS

What is the only evidence admissible under attack on another person’s character s101(1)(g) and what is required?

A
  • Only prosecution evidence admissible
  • Leave of court required
34
Q

S101(1) GATEWAYS

What evidence can be admitted under attack on another person’s character s101(1)(g)?

I.e. what is the rationale?

A

Evidence of dishonesty (not only untruthful like d) so jury can assess how likely that attack on another person’s character is true

Jury is entitled to know character of person making the allegation

35
Q

S101(1) GATEWAYS

When does D make an attack on another person’s character for the purposes of s101(1)(g)? Does the person attacked have to be alive?

A
  • Adduces evidence attacking other person’s character
  • Asks questions in X-examination intended to elicit
  • Evidence given of imputation about other person made by D on being Q’d under caution before charge or on being charged with offence

Attacked person does not have to be alive

36
Q

S101(1) GATEWAYS

What evidence is considered to be evidence that attacks other person’s character under s101(1)(g)?

A

Evidence to the effect that the attacked person has…

  • Committed offence (whether different/same one D is charged with)
  • Has behaved/is disposed to behave in reprehensible way
37
Q

S101(1) GATEWAYS

Which gateways are for prosecution evidence only?

A
  • S101(1)(d) important matter in issue between D and prosecution
  • S101(1)(f) correcting a false impression
  • S101(1)(g) attack on another person’s character
38
Q

S101(1) GATEWAYS

Which gateways require leave of the court?

A

All except agreement and evidence adduced by D

39
Q

What can bad character evidence not be used for?

A

Bolstering a weak case or prejudicing jury against D

40
Q

What should be made clear to jury about the weight placed on evidence of bad character and how it should be assessed?

A
  • That weight placed on it is a matter for them, but that they should not place too much reliance
  • Should be assessed in light of all the evidence in the case
41
Q

What directions should be given to the jury on previous convictions and propensity?

A
  • Should not conclude D was guilty/untruthful because of previous convictions alone
  • Propensity not enough to show D committed offence alleged in this case
42
Q

Where an allegation of conduct that did not result in a conviction is relied on as evidence of propensity and it is disputed, what should jury be directed?

A

That they should not rely on it unless they are sure it is true

43
Q

What are the 3 gateways for non-defendant bad character evidence? Is leave of the court always required?

E.g. D alleging non-D is one who committed offence

A
  1. Is important explanatory evidence
  2. It has substantial probative value re a matter in issue in proceedings and is of substantial importance in context of case as a whole
  3. All parties agree to evidence being admissible

Leave of the court is required unless all the parties agree

44
Q

What is the effect of the gateway substantive probative value re a matter of issue in proceedings and is of substantial importance in the context of case as a whole?

A

D can adduce evidence of another person’s propensity to commit offences of type charged to show that they, not D himself, committed offence

Because we know from other gateways that matters in issue can include propensity

45
Q

The inclusion of the word ‘substantial’ means that the non-D bad character evidence must be capable of what to be admissible?

A

(Evidence of misconduct must be) capable of having an impact on way in which jury could assess evidence of a witness/case as a whole i.e. nature, number and age of instances of misconduct

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

46
Q

What 4 factors should court have regard to in assessing the probative value of non-D bad character evidence?

Especially if:

  • Suggested that evidence has probative value by reason of similarity between misconduct and other alleged misconduct
  • Suggested that person is also responsible for misconduct charged
A
  • Nature and number of events to which evidence relates
  • When those events or things (are alleged to have) happened/existed
  • The nature/extent of similarities between each alleged instances of misconduct if suggested evidence has probative value by reason of similarity between that misconduct and other allegd misconduct
  • The extent to which evidence shows or tends to show that same person was responsible each time where it is suggested that person is also responsible for misconduct charged

Where it is alleged that the non-D committed the offence charged, the similarity of the past misconduct to the facts of the offence charged will be important.

47
Q

Which of the parties can adduce non-D bad character evidence?

A

Any

48
Q

What 5 exclusions/safeguards are available for bad character evidence?

A
  • S78 PACE - judge has discretion to exclude prosecution evidence if it would have such adverse effect on fairness of proceedings
  • S101(3) - adverse effect on fairness of proceedings
  • S101(1)(d)/103(3) - exclude if it would be unjust
  • S107 - stop case where satisfied that admitted bad character evidence has become contaminated
  • S110 - court gives reasons
49
Q

What is the difference between s78 PACE and s101(3) CJA?

Both concerned with adverse effect on fairness of proceedings

A
  • S78 PACE = ‘may exclude’; discretionary
  • S101(3) CJA = ‘must not admit’; compulsory (preferable for D to use)
50
Q

Why will bad character evidence adduced under s101(1)(d) be considered unjust and what can the court do with it per s103(3)?

Evidence of previous committed offence of same description/type

A

Exclude evidence if court satisfied it would be unjust to admit because of time elapsed or any other reason

51
Q

How contaminated must bad character evidence be for court to use discretion under s107 CJA? When must this happen?

A
  • Contamination is such that conviction of D would be unsafe
  • Happen after close of prosecution
52
Q

When and in what does s110 CJA require court to give reasons?

A

If it makes a ruling on issues of bad character, must give reasons in open court

53
Q

When there is a dispute over it, what must be produced to prove a conviction/acquittal in UK/EU MS, who must sign it and from where? What must accompany it?

S73

A
  • A certificate of conviction signed by proper officer of the court from where it took place
  • Must be accompanied by evidence that person named in it is person whose conviction/acquittal is an issue
54
Q

Where a person is proved to have been convicted of offence by any court in UK/EU MS, what is the consequence and can it be discharged?

S74

A

A person shall be taken to have committed the offence unless contrary is proved i.e. can be discharged by showing on a balance of probabilities that offence was not committed by that person

S75 makes various documents including the information, charge sheet and/or indictment admissible as evidence of the facts on which the conviction was based.

55
Q

When must the prosecution give notice to adduce bad character evidence after the D pleads not guilty? When must response be?

A
  • Magistrates’ - no more than 20 business days
  • Crown - no more than 10 business days

Response must be no more than 10 business days after service of notice

56
Q

When must a co-D give notice to adduce bad character evidence?

A

ASAReasonablyPracticable and no more than 10 business days after prosecutor discloses material on which notice is based

57
Q

What must be included in the contents of a notice to adduce bad character evidence? What must be included in the response?

A
  • In notice: facts of misconduct, how party will prove facts, and why evidence is admissible
  • In response: which facts the party disputes/admits, why evidence is not admissible, why it would be unfair to admit evidence

Contents of response is same for non-D bad character evidence

58
Q

When must an application be made to adduce non-D bad character evidence? When must response be?

A
  • Application made ASAReasonablyPractgicable and no more than 10 business days after prosecutor discloses material on which notice based
  • Response no more than 10 business days after service of notice
59
Q

Must the court’s determination and decision of application be with/without a hearing and public/private?

A
  • Can determine with or without a hearing in public or private
  • Decision must be announced at public hearing in absence of jury
60
Q

What discretion does the court have re application/notices of bad character evidence?

A

Can shorten/extend time limits (even after time limit expires)

61
Q

In practice, when will applications be written and when will they be oral?

A
  • Written - where prosecution proposes to adduce evidence through c or d gateways
  • Oral - as a result of something said or done in the course of trial

Criminal Law and Practice (21 decks)

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