Flashcards in Evidence LG 6 Deck (49):
What is evidence of ‘character’?
As a legal general concept- evidence of conduct, disposition or propensity- good or bad;
Evidence of bad character has been given a statutory definition- ‘misconduct’, see CJA 2003, s 98. Further defined as ‘commission of an offence or other reprehensible behaviour’, see CJA 2003, s112(1). This will be explored in more depth shortly.
Evidence of good character: absence of previous convictions or reprehensible acts which don’t result in convictions and, possibly extending to evidence of creditable acts. This is absolute good character. There is also, in respect of good character evidence, the concept of effective good character and this will be explored later when considering the guideline case of R v Hunter  2 Cr App R 9
Why a party may seek to admit character evidence
May be to do with alleged facts of the offence (which, as we shall see falls outside the definition of bad character under CJA 2003, s 98).
Generally, may be relevant to credibility – can D or a witness be believed?
Generally, may be relevant to guilt – did D commit the offence charged?
Character to do with the alleged facts of the offence
Examples of character as a fact in issue.
D charged with possession of a firearm within 5 years of release from prison sentence of not less than 3 months or more than 3 years contrary to the Firearms Act 1968, s. 21(2)
D charged with offence of driving whilst disqualified contrary to the Road Traffic Act 1988, s.103. See, DPP v Agyemang  EWHC 1542, CA.
Note CJA 2003, s 98(a)- places such evidence outside the scope of the definition of bad character. Considered shortly.
Credibility and guilt
CJA 2003 – Key Provisions
Section 98: definition - ‘misconduct’
Section 99: common law rules abolished
Section 100: admission of bad character of a person other than D
Section 101(1)(a)-(g): admission of D’s bad character
Section 101(3): exclusion of where the admission of the evidence would be unfairly prejudicial
Section 107: stopping the case where evidence is contaminated
Section 111 in conjunction with Criminal Procedure Rules 2015, Part 21
Definition of bad character
S 98: ‘misconduct’ other than misconduct which is to do with the investigation or facts of the offence. So if the evidence is to do with the facts of the offence charged, it falls outside the definition and will be admissible if relevant and not excluded by another rule or discretion. Could be evidence which is a fact in issue or closely associated with the commission of the offence that it is bound up with it.
In relation to misconduct to do with the investigation, that could be witness intimidation, withholding evidence, interference with jury.
Definition of bad character
S112: ‘misconduct’ is the ‘commission of an offence or other reprehensible behaviour’. So, not confined to convictions. Very broad.
Admissibility of evidence of the defendant’s bad character
D’s bad Character- 7 gateways, s.101(1)(a)-(d)
All parties agree
Given by the defendant
Important explanatory evidence
(d) Relevant to an important matter in issue
between D and P
(e) Substantial probative value in relation to an
important matter in issue between D and Co-D
Corrects a false impression given by D
(g) Defendant has attacked another person's character
First two gateways- ss.101(1)(a) & (b)
S 101(1)(a): all parties agree. See R v Hussain  EWCA Crim 1117, CA where, in a cut-throat, evidence of dishonesty was admitted by agreement since realistically it was bound to have been admitted without agreement.
S 101(1)(b): D admits the evidence. For example, minor misconduct admitted to avoid juries thinking the worst in the absence of a good character direction, or where it is old and irrelevant and D is going to ask the judge to treat him as someone who is of ‘effective good character’ to gain a good character direction, or where attack another is planned & his character might be adduced anyway under another gateway because of the planned attack.
Third gateway: s 101(1)(c) Important explanatory evidence
S 101(1)(c): without it jury would find it impossible or difficult to understand other evidence in the case and its value for understanding the case as a whole is substantial.
See R v Saint  EWCA Crim 1924. Applying s 101(1)(c) properly, D’s interest in observing ‘dogging’ activity whilst a park warden in 1993 was not explanatory evidence in respect of an offence of rape in and around a car park by a Marina in 1989.
Fourth gateway- s 101(1)(d)
Relevant to an important matter in issue between D and P
An important matter in issue can be any matter of importance. See s 112(1)- ‘…a matter of substantial importance in the context of the case as a whole’.
S 103(1) states that, ‘ matter in issue’ includes:
propensity to commit offences (s103(1)(a))
propensity to be untruthful (s103(1)(b))
S 103(2): propensity may be established by a conviction of the same description or in the same category as the offence charged
S103(3): for the purposes of s 103(2), propensity is not established if by reason of the length of time since the conviction or for any other reason, it would be unjust
R v Hanson  2 Cr App R 21
Propensity to commit offences
Factors for assessing probative value of the evidence in showing propensity the fewer the number of convictions, the less likely they show propensity;
the older the convictions, the less likely they show propensity;
A single previous conviction in the same category (eg Theft Category) or of the same description of the offence charged, may establish propensity if it shows a tendency to unusual behaviour
An old conviction with no special features is likely to affect the fairness of the trial.
Propensity to be untruthful
Untruthfulness is not the same as dishonesty; past misconduct must involve deception or lies ie untruthfulness must be an element
Conviction after trial where D has given evidence may show propensity to be untruthful.
R v N  EWCA Crim 419
A decision in R v Campbell  1 WLR 2798, CA in which it was held that evidence of propensity to be untruthful is rarely admissible, is too restrictive.
Where credibility is a central issue in the case, evidence of a defendant’s lies may be admissible, which can include, as per R v Hanson, evidence that D gave oral evidence in his defence at a previous trial and he was disbelieved. It may also include evidence of offending which involved lies as part of the commission of the offence.
In R v N, which was a historic sex case, D defence was a denial and C was fabricating. Evidence of untruthfulness was admitted that a jury in a previous case rejected his account and that he had lied to his barrister to strengthen mitigation when was being sentenced sentencing.
Evidence supporting one count in an indictment may be admissible to support another count in the same indictment.
As an example, see R v Chopra  1 Cr App R 225.
Gateway 5- s.101(1)(e). Defendant’s bad character admitted by a co-defendant
Evidence must have substantial probative value in relation to an important matter in issue between the defendant and the co-defendant.
Where important matter in issue is propensity to be untruthful, the nature or conduct of D’s defence must first undermine Co-D's defence.
R v Kirkpatrick  Crim LR 63, CA: D has not undermined Co-D’s defence if s/he is providing an alternative defence which, if believed, would result in Co-D’s acquittal.
Open to Co-D only (not prosecution).
No discretion to exclude.
Admissible if relevant to any matter which is an important matter in issue, eg. propensity to offend and propensity to be untruthful.
‘Propensity to be untruthful’ interpreted broadly: see R v Lawson  1 WLR 1191. Really, ‘credibility’.
Applies whether or not D gives evidence
R v Lawson  1 WLR 1191, CA
A less cautious test for admissibility is appropriate under s 101(1)(e)
than under s 101(1)(d) (per Hughes LJ).
But see also R v Phillips  1 Cr App R 25
‘Substantial probative value’ in s 101(1)(e) means enhanced
capability to prove or disprove a fact in issue and the threshold is not
to be understated.
Gateway 6- s101(1)(f)- evidence to correct a false impression
S101(1)(f): evidence of bad character may be admissible to correct a false impression.
S105: where D is responsible for making an express or implied assertion apt to give a false or misleading impression about his character, evidence of bad character may be called which goes no further than to correct the false impression. An assertion made in police interview after caution can open the gateway (see s 105(2)(b)).
Gateway 7- S 101(1)(g)
S101(1)(g): evidence of bad character may be admitted where D has made an attack on another’s character.
See s106: D adduces evidence attacking another person’s character or evidence is given that he impugned another person’s character upon being questioned under caution or upon being charged. Where this occurs, evidence of D’s bad character may be called to counter D’s attack.
Offences when a child
See s 108
Where D is over 21, past offences alleged to have been committed when he was under the age of 14 are not admissible unless both offences are triable only on indictment and the court is satisfied that it is in the interests of justice to admit them
Past offences include offences for which D has been convicted under the law of any country outside England and Wales, but would have constituted an offence under the law of England and Wales if committed at the time of the proceedings for the offence with which D is now charged.
Proof of convictions and acquittals, and foreign convictions
See PACE 1984, ss 73 & 74: covers accused and persons other than accused
S 73(1): Convictions and acquittals in UK or any EU Member States may be proved by a certificate of conviction or acquittal and proving the name of the person in the certificate is the person whose conviction or acquittal is to be proved.
S74(1): the fact that a person had been convicted of an offence in a UK court or a court in a member state is admissible as evidence of the fact that the person committed the offence and evidence of facts on which it is based.
S 74(2): the person is taken to have committed the offence unless the contrary is proved. Rebuttable persuasive presumption imposing a legal burden on the party against whom the presumption operates.
Convictions outside EU
Not covered by PACE 1984, s 74.
May be admissible as bad character under the bad character provisions of CJA 2003.
If admissible may be proved under Evidence Act 1851
If conviction was a result of a trial to which ordinary standards of fairness would not apply, judge may exclude under CJA 2003, s 101(3) or PACE 1984, s 78
Crim PR 2015, exclusion, power to stop a case where evidence is contaminated, judicial directions
Criminal Procedure Rules 2015, Part 21- compliance with notice requirements- see content of notice (21.2), time limits (21.4- admission, 21 days of not guilty plea in mags court,14 in Cr Ct, objection, 14 days from receiving notice to admit), determination (21.4 para 6: at a hearing in public or private, without a hearing, but must not determine the application unless party who served the notice has a reasonable opportunity to respond). See also, R v Ramirez  EWCA Crim 1721: robust approach to a party who introduces character without notice.
S.101(3) CJA 2003: evidence must be excluded if admission would have such an adverse effect on fairness that it ought not to be admitted. But applies to s101(1)(d) and (g) only
S.78 PACE 1984: discretion to exclude. Mirrors s. 101(3)), only difference, use of word ‘may’ rather than ‘must’.
S.82(3) PACE 1984: common law
Safeguards- exclusion under s 101(3)Examples
R v M (Michael)  EWCA Crim 3408
D tried for possession of firearm with intent to endanger life & criminal damage x 2. Crown case: D fired at 2 cars belonging to a car salesmen from whom he had earlier bought a van.
Judge wrongly admitted a single 20 year old conviction for possession of a firearm (namely a sawn-off shotgun).
R v Eyidah  EWCA Crim 987
In D’s trial for passport forgery offences, the jury were ‘deluged’ by
irrelevant and prejudicial material including parking fines, rent arrears letters and
overdue council tax demands, letters from a bank manager and bail warrant.
Safeguards- CJA 2003, s 107
S.107 CJA 2003: after bad character evidence is admitted and at any time after the close of the prosecution case, the judge may stop the case if s/he is satisfied that the evidence is contaminated and, considering its importance, any conviction would be unsafe.
Must direct the jury to acquit, or discharge the jury if s/he considers there ought to be a retrial (eg. in sexual abuse cases with multiple complainants where there is evidence of collusion or collaboration)
Safeguards- judicial directions
Crown Court Bench Book: judicial directions to juries on purpose and limits of bad character evidence. Key element- bad character alone cannot prove guilt.
See also, R v Hanson  2 Cr App R 21
- clear warning against the dangers of placing undue reliance on past convictions
- stress that evidence of bad character cannot be used to bolster
a weak case or prejudice the jury against the defendant
- emphasise that the jury should not infer guilt from the existence of convictions.
Evidence of the bad character of a person other than the defendant
Non-D’s Bad Character: s.100 CJA 2003
All parties agree
Important explanatory evidence
Substantial probative value in relation to a matter which is a matter in issue, and is of substantial importance in the context of the case as a whole
NB- leave required unless all parties agree. May facilitate consistency
with the leave requirement of YJCEA 1999, s 41 where sexual history
evidence is also bad character.
However, see R v Scott  EWCA Crim 2457, obiter.
Leave requirement adds little to judge’s discretion to admit non- D’s bad
Approach to admissibility under s. 100 where D makes the application
“The same degree of caution which is applied to the Crown application when considering relevance and discretion does not fall to be applied when what is at stake is an accused’s right to deploy relevant material to defend himself against a criminal charge…” (Hughes LJ R v Stephenson  EWCA Crim 2325).
However, each case will turn on its own facts and the question will be whether a fair-minded tribunal would regard the convictions has having an impact on the worth of the witness’s evidence (R v Brewster  1 WLR 601, CA).
D’s Good Character- full ‘Vye’ direction
First limb, credibility: less likely to have lied where he testifies or has made a pre trial mixed statement which is admitted in evidence (first limb, R v Vye  1 WLR 471, CA; on mixed statement, see R v Aziz  2 Cr App R 478, HL).
Second limb, propensity/guilt: less likely to have committed the offence (second limb R v Vye  1 WLR 471, CA).
Good character direction- an affirmative statement in D’s favour.
Judge’s should avoid watering down with words and phrases like: “you are entitled to take good character into account”; “the defence ask you to consider…” (R v Gbajabiamila  EWCA Crim 734); ‘”put good character into the scales” (R v Boyson  Crim LR 274); “good character ‘might assist’ on credibility” (R v Gray  2 Cr App R 498).
R v Hunter  2 Cr App R 9
Good character means ‘absolute good character’ or ‘effective good character’
Absolute good character refers to a person with no previous convictions or cautions and no other reprehensible conduct has been admitted, proved or alleged.
Under the principles in Vye and Aziz  AC 41, a person who is guilty of past misconduct has no entitlement as of right to a good character direction, unless the judge decides in his discretion, to treat him as a person who is of effective good character.
R v Hunter  2 Cr App R 9
Effective good character refers to an accused who has previous convictions or cautions recorded which are old, minor and have no relevance to the charge. In this situation the judge must make a judgement on whether to treat the accused as someone who is of effective good character.
The discretion is an ‘open textured’ discretion as to whether to treat an accused as a person of effective good character.
If the judge does decide to treat the defendant as being of effective good character, both limbs should be given, but modified as necessary to take matters into account and ensure the jury or not misled.
R v Hunter  2 Cr App R 9- good character directions and the ‘absurdity principle’
Under Aziz, where an accused has no previous convictions but has admitted other reprehensible conduct and the judge considers it would be an insult to common sense to give directions in accordance with Vye, the judge has a ‘narrowly circumscribed’ discretion to decline to give a good character direction. Under Hunter, the discretion is ‘open textured’.
Example might be where D adduces evidence of old and irrelevant reprehensible behaviour himself under s 101(1)(b) in order to come clean to the jury, but the judge takes the view, given the nature of the bad character, it would be an insult to common sense to give the direction.
Non-D’s good character
Non-D’s good character inadmissible (R v Turner  QB 834, CA), unless to rebut an attack by D.
Afiza who is of good character, is tried for ABH, along with Celia , who is of bad character.
Afiza remains silent during questioning under caution in the course of her police interview, and does not give evidence at trial. However, evidence that Afiza may have acted in self defence is given by another witness.
Concerning the judge’s direction as to Afiza’s character, which ONE of the following answers is CORRECT?
[A] The judge should give a direction that Afiza’s good character
means that a defence of self-defence is more worthy of belief and Afiza is less
likely to have committed the offence;
[B] The judge should give a direction that Afiza’s good character is relevant to
her propensity to commit offences only;
[C] The judge should withhold a direction because to give a direction would
[D] The judge should withhold a direction as it would be contrary to common
sense. The reason why it would be contrary to common sense is because the
jury have heard evidence that Afiza is of bad character, the prosecution having
adduced evidence that she committed the offence.
The judge need only direct the jury on propensity. As Afiza has not said anything in evidence, and no statement by Afiza is in evidence, issues about whether she is capable of belief do not arise.
As to [D]- evidence to do with the facts of the offence is not evidence of bad character. See CJA 2003, s 98
Steve, Ali and David are charged with manslaughter. It is alleged that at a reservoir, they pushed Mark, who has learning difficulties, into the water and he drowned. Steve, who took the most prominent role in the offence, pleads guilty.
David says that all three had initially planned to push Mark in, but that he (David) and Ali backed out completely, and Steve acted alone.
Ali says there was no real plan and Steve pushed Mark in of his own volition, and he (Ali) and David weren’t involved at all. Ali’s position is that in relation to his (Ali’s) defence, there is now an issue of David’s credibility.
Ali is of good character, but David has a previous conviction for fraud.
Which ONE of the following answers is CORRECT?
[A] The judge has no discretion to exclude and therefore David’s conviction for
fraud is automatically admissible by Ali as evidence which is relevant to show David
has a propensity to be untruthful.
[B] David’s conviction for fraud can only be admissible by Ali as evidence of
propensity to untruthfulness if David has given evidence and was convicted after
[C] David’s conviction for fraud will not be admissible by Ali if the judge excludes it
on the grounds that it would have such an adverse effect on the fairness of the trial
that it ought not to be admitted.
[D] David’s conviction for fraud will not be admissible by Ali to show a propensity to
be untruthful as David has not undermined Ali’s defence.
[A] Wrong- David has not undermined Ali’s defence so the evidence is not admissible on this basis
[B] Wrong- the wrong basis for asserting the evidence is inadmissible, plus this type offence shows untruthfulness. Evidence of lies under oath is a separate type of untruthfulness evidence.
[C] Wrong- exclusionary discretion does not apply to s 101(1)(e).
[D] Correct- see s 104(1) and R v Kirkpatrick  Crim LR 63, CA.
Tim and Lara are jointly charged with shoplifting. It is alleged that Tim took items from the shelves of a shop, whilst Lara caused a distraction. Tim has ten previous convictions for shoplifting between 2013 and 2015 and one previous conviction in 2007 for common assault. Lara is of good character.
The main prosecution witness is Jem, the security guard who allegedly saw Tim and Lara commit the offences. He has two convictions for fraud in 2010. Tim’s defence is that Jem has maliciously planted items in his bag. He says that Jem had stopped him in the shop on previous occasions and on one occasion said, “I know what you’re up to ‘smack-head’ [a derogatory term for a person who is drug-dependent]… you’ll get yours”.
The prosecution and defence are not in agreement as to the admissibility of any of the evidence of bad character.
a) Explain the basis upon which Tim’s previous convictions for shoplifting might be admitted at the instance of the prosecution.
a) Relevant to an important matter in issue between the prosecution and the defence (s101(1)(d)) [1 mark]; relevant to propensity to commit offences [1 mark]; the offences of the same description [1 mark]; there are a large number of offences and recent [1 mark]; Tim has made an attack on character of another (101(1)(g)) [1 mark]
Maximum of 2 marks
b) Explain the basis upon which his previous conviction for common assault might be inadmissible at the instance of the prosecution.
b) Does not show a propensity to commit theft [1 mark]; not relevant to an important matter in issue between the prosecution and the defence [1 mark]; it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (s101(3)) [1 mark]; s.78 PACE 1984 [1 mark]; it is old and dissimilar (s101(4)) [1 mark]
Maximum of 2 marks
c) Explain the basis upon which Tim might seek to admit the two previous convictions of the security guard, Jem?
c) S100, substantial probative value in relation to a matter of substantial importance [1 mark]; credibility in issue [1 mark]; fraud conviction very relevant to credibility [1 mark]
Maximum of 2 marks
d) Lara remains silent in police interview, does not give evidence at trial and no evidence is adduced of any pre-trial mixed statement by Lara. What direction should the judge give in respect of her good character and explain why?
d) Lara would not receive the first limb of the Vye direction (credibility) [1 mark]; she would receive a propensity limb only [1 mark]; as there is no evidence of Lara saying anything in relation to the offence, her credibility is not an issue; accordingly a first limb would be meaningless [1 mark].
Maximum of 2 marks
e) How would the judge’s direction in respect of Lara’s good character differ if evidence was admitted by the prosecution that Lara had said in interview that
she was in the shop for innocent reasons and had not stolen anything?
e) She would be entitled to a full Vye direction [1 mark]; there will be evidence of a mixed statement by Lara before the jury and so an issue arises as to the credibility of what she says- credibility limb justified [1 mark].
Maximum of 1 mark
f) If Lara gave evidence in her own defence and had a conviction in 2005 for criminal damage, what approach might the judge take to the giving of a favourable direction about her character?
f) The judge might decide to treat her as someone of ‘effective good character’ [1mark].
Maximum of 1 mark
You are instructed for the prosecution in R v Powell. Michael Powell appears in a magistrates’ court accused of Handling Stolen Goods. He was witnessed by PC Richardson doing a deal in the local pub. The trial date was fixed at a hearing at which Michael Powell was present. It is now the day of trial, but when the case is called on, Michael Powell fails to attend.
During your submissions to the District Judge about Michael Powell’s non-attendance, the usher tells you that he has just arrived. He is one hour late. He should have been at court at 9.30 am.
The trial starts. Half way through the evidence of the first prosecution witness, PC Richardson, a representative from the Crown Prosecution Service runs into court. The representative tells you that shortly after the incident, a statement was taken from someone at a neighbouring table, but it was not served as evidence relied on by the prosecution nor was it referred to on the MG6C schedule of unused material.
(a) At the point at which you are making your submissions to the court about Michael Powell’s non-attendance, what options are open to the District Judge?
• Proceed in his absence unless it is contrary to the interests of justice (1 mark)
• Issue a warrant for Powell’s arrest (1 mark)
• Adjourn and extend his bail (1 mark), but this is only likely if there is a good reason for his non-attendance (1 mark)
[Maximum of 3 marks – marks can be gained by stating any of the points listed above]
See BCP D5.43; D22.13/Syllabus Section 8
See BCP D7.98/Syllabus Section 3
(b) What is the legal test in determining whether Michael Powell has failed to surrender?
The judge will have to decide whether on the balance of probabilities/burden on the defendant (1 mark – either way of expressing the point will gain the mark) Powell has reasonable cause for failing to surrender (1 mark)
See BCP D7.110 (in BCP 2015 this was D7.111, but the content appears at D7.110 in BCP 2016)
Syllabus Section 3
(c) If the failure to surrender is proved against Michael Powell, what are the possible consequences?
• Powell faces a separate punishment for failing to surrender (1 mark).
• It will appear on his previous convictions as a separate offence (1 mark)
• It will affect his chances of being granted bail in the future (1 mark)
See BCP D7.111/Syllabus Section 3 (in BCP 2015 this was D7.112, but the content appears at D7.111 in BCP 2016)
See BCP D7.16/Syllabus Section 3
(d) When the CPS representative tells you about the new statement that has not been disclosed previously, what should you do and why?
• You must read it so that you can exercise a judgment about whether it should be disclosed (1 mark)
• Decide whether the prosecution will rely on it as part of its case (1 mark) and, if relying on it, disclose it on that basis (1 mark)
• If not relying on it, the prosecution must consider whether the statement should be disclosed as unused/under s.3, CPIA 1996 (1 mark – need not quote the statute to gain the mark, but the mark can be gained for using the term ‘unused’ or by quoting the statute); the prosecution must disclose material in its possession upon which it does not rely, but which might reasonably be capable of undermining its case or assisting that of the defendant (1 mark)
• The duty to review disclosure is a continuing duty (s.7, CPIA 1996) (1 mark – the statute does not need to be quoted to gain the mark)
[Maximum 3 marks]
See BCP D9.2; D9.15; D9.20; D9.24
Syllabus Section 5
You represent Jessie at her plea before venue hearing in the magistrates’ court. She is charged with Unlawful Wounding, contrary to s.20, Offences Against the Person Act 1861. The prosecution alleges that Jessie cut Ozil’s arm three times with a kitchen knife, each cut requiring five stitches.
Jessie intends to plead not guilty.
Before the case is called on the prosecutor tells you that the prosecution will be arguing that the case is more suitable for trial on indictment. Jessie wants to be tried in the magistrates’ court.
Jessie appears in custody at the plea before venue hearing, bail having been refused at the previous hearing when she first appeared before the magistrates.
(a) What factors must the court consider when deciding where the trial will take place?
• Whether powers of magistrates to punish are adequate (1 mark)
• Any representations made by the prosecution or defence (1 mark)
• The allocation guidelines issued by the Sentencing Council (1 mark)
[Maximum 2 marks – marks can be gained for stating any of the above points]
See BCP D6.8
Syllabus Section 4
(b) In what circumstances will the trial take place in the Crown Court? [2 marks]
• If the magistrates decline jurisdiction (1 mark)
• If the magistrates accept jurisdiction, but Jessie elects trial in the Crown Court (1 mark)
See BCP D6.8
Syllabus Section 4
(c) In what circumstances will the trial take place in the magistrates’ court? [1 mark]
If the magistrates accept jurisdiction and Jessie agrees to trial in the magistrates’ court
See BCP D6.8
Syllabus Section 4