Week 16 Materials Flashcards Preview

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Flashcards in Week 16 Materials Deck (52):
1

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?

[3 marks]

• 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)

2

(b) What is the legal test in determining whether Michael Powell has failed to surrender?

[2 marks]

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)

3

(c) If the failure to surrender is proved against Michael Powell, what are the possible consequences?

[2 marks]

• 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)

4

(d) When the CPS representative tells you about the new statement that has not been disclosed previously, what should you do and why?

[3 marks]

• 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)

5

QUESTION 2:
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?
[2 marks]

• 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)

6

(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)

7

(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

8

(d) At this stage in proceedings, what options are available in order to apply for bail and to challenge any refusal of bail?
[5 marks]

A bail application can be made at the next hearing in the magistrates court after which bail is refused (1 mark); Jessie can therefore make a further application for bail at the plea before venue hearing (1 mark); the application can be supported by the same argument as to fact or law as was argued previously (1 mark)
Once Jessie has applied for and been refused bail in the magistrates’ court, she can apply to the Crown Court for bail (1 mark); she can make a second application in the magistrates’ court before going to the Crown Court (1 mark) or she can go directly to the Crown Court after making her first application for bail in the magistrates’ court (1 mark); she can make exactly the same arguments in the Crown Court as she did in the magistrates’ court (1 mark); before going to the Crown Court Jessie must obtain a certificate of full argument (1 mark)

9

R v Vye [1993] 1 WLR 471.

Where someone is of good character they should be given a direction comprised of two limbs. For the meaning of good character: see R v Hunter [2015] 2 Cr App 9. It means absolute or effective good character (considered in the next question).

The first limb relates to credibility- the fact that the defendant is of good character is a positive feature which should be taken into account in relation to credibility.

The second limb relates to propensity- the fact that the defendant is of good character may make it less likely that he committed the offence alleged.

The weight to be given to good character is a matter for the jury.

10

Key Q 1 SGS 9 Character Evidence

If the defendant remains silent and there are no mixed pre-trial statements adduced, the judge should not give the credibility limb of the direction- there is nothing upon which the jury may make an assessment.

If the defendant remains silent, but a prior wholly exculpatory statement is adduced, again no credibility should be given. This is because such statements are not admissible as evidence of matters stated, so no issue as to their truthfulness arises.

Where there is a co accused, jointly charged, who is not of good character, this does not prevent the accused of good character from receiving a direction

11

Key Q 1 cont

See BCrimP F 13.16-13.21. See R v Vye [1993] 1 WLR 471.

Where someone is of good character they should be given a direction comprised of two limbs. For the meaning of good character: see R v Hunter [2015] 2 Cr App 9. It means absolute or effective good character (considered in the next question).

The first limb relates to credibility- the fact that the defendant is of good character is a positive feature which should be taken into account in relation to credibility.

The second limb relates to propensity- the fact that the defendant is of good character may make it less likely that he committed the offence alleged.

The weight to be given to good character is a matter for the jury.

If the defendant remains silent and there are no mixed pre-trial statements adduced, the judge should not give the credibility limb of the direction- there is nothing upon which the jury may make an assessment.

If the defendant remains silent, but a prior wholly exculpatory statement is adduced, again no credibility should be given. This is because such statements are not admissible as evidence of matters stated, so no issue as to their truthfulness arises.

Where there is a co accused, jointly charged, who is not of good character, this does not prevent the accused of good character from receiving a direction

12

Key Q 2

See BCrimP F 13.1-13.21.See guidance is given in R v Aziz [1996] AC 41, which has been interpreted in R v Hunter [2015] 2 Cr App R 9. Key points from Hunter follow:
• Good character means ‘absolute good character’ or ‘effective good
character’.
• Absolute good character: 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, 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.
Effective good character refers: an accused who has previous convictions or cautions recorded which are old, minor and have no relevance to the charge. Judge will make a judgement, in the exercise of discretion, about whether to treat the accused as someone who is of effective good character.

13

Key Q 2 cont

The discretion as to whether to treat an accused as a person of effective good character is an ‘open textured’ discretion.

• 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.

Aziz: where a defendant without convictions admits misconduct it was held that the judge has a narrowly circumscribed discretion withhold a good character direction where it would be an insult to common sense. However, must now be seen in the light or R v Hunter: the discretion is no longer to be considered as a ‘narrowly circumscribed discretion’ to withhold, but is more in the nature of an open textured discretion to as to whether to give the direction, and in what form the direction should be given.

14

Key Q 3

See BCrimP F12.4. See CJA 2003, s 98

“References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.”

15

Key Q 4

“101 Defendant’s bad character 
(1)In criminal proceedings evidence of the defendant’s bad character is admissible if,
but only if—…
(c) it is important explanatory evidence...
 
S 102
“Important explanatory evidence
For the purposes of section 101(1)(c) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other
evidence in the case, and
(b) its value for understanding the case as a whole is substantial.”

16

Key Q 5

Attack on the character of another.

See BCrimP F 12.91-12.96. See CJA 2003, Ss 101(1)(g) and 106

Attack is evidence another person has committed an offence or behaved in a reprehensible way

The attack may be made by an imputation, ie an assertion

The attack may be made by D in evidence or by him or his legal representative asking questions designed to make an imputation

The attack may also be made during questioning under caution before charge or upon officially being charged.

17

5 cont

False impression
See BCrimP F12.83-12.90. See also Ss 101(1)(f) and 105.

D responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression
Evidence to correct the impression is evidence which has probative value in correcting it.
Assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
Assertion was made by the defendant on being questioned under caution, before charge, or on being charged with the offence or officially informed that he might be prosecuted for it,
Evidence of the assertion is given in the proceedings

Assertion is made by a witness called by the defendant
Assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
Assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
Defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.
Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression


18

Key Q 6

Exclusionary discretion and explanatory evidence. See PACE 1984, s 78.
“78…Exclusion of unfair evidence.
(1)In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, 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.
(2)Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.”
 
Note that the common law discretion is also available to exclude evidence on the basis that its prejudicial effect outweighs its probative value.

19

6 Cont

Exclusionary discretion and attack on the character of another. See CJA, s 101(3), which applies to ss 101(1)(d) and 101(1)(g)

“...(3)The court must not admit evidence under subsection (1)(d) or (g) if, on an 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.
(4)On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.”

20

Key Q 7



Exclusionary discretion and evidence correcting a false impression. See PACE 1984, s 78 and common law.

Note that s 78 applies to any prosecution evidence.


21

PQ 1

(a)Rajiv is of good character and gives evidence. He will receive a full
good character direction i.e., first limb credibility and second limb
propensity (R v Vye (1993) 1 WLR 471, CA). We can assume he is of
‘absolute good character’ as per R v Hunter [2015] 2 Cr App R 9

Rajiv of good character and does not give evidence. Assume also,
not mixed statements are adduced. He will receive a 2nd limb propensity direction only.

Note: if pre trial mixed statement adduced in evidence
full direction should be given, even if D doesn’t give
evidence. See R v Aziz [1995] 3 All ER 149, HL; R v Patel
[2010] EWCA 976, CA.

22

PQ 1 cont

Evidence of Rajiv’s mixed statement adduced- entitled
to full direction. Re first limb for mixed statements, see above at (b) R v Aziz [1995] 3 All ER 149, HL; R v Patel [2010] EWCA 976, CA

(d) Rajiv of good character but Co-D not. Rajiv is still entitled
to a full good character direction. See R v Vye (1993) 1 WLR 471, CA

Rajiv has previous conviction for common assault in 1995. He is not
entitled to a direction as of right unless the judge decides by the
exercise of discretion to treat him as being of effective good character.
If the judge does decide to treat him as being of effective good
character (likely as the conviction is old and irrelevant), he will be
entitled to full direction, but it may be modified as appropriate to ensure
the jury are not misled.

23

PQ 2

Definition of ‘Bad character’- CJA 2003, s98 (a) & (b).

Evidence of or a disposition towards misconduct, excluding
evidence of
misconduct which has to do with the alleged facts and/or
(b) misconduct in connection with the investigation or prosecution of offence.

s.112 (an ‘interpretation’ section) adds the gloss that misconduct means
the commission of an offence or other reprehensible behaviour.

24

PQ 2

S101(1)(a)-(g)- 7 gateways for admissibility of Ds bad character evidence.
All parties agree;
Given by the defendant himself;
(c) Important explanatory evidence;
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;
(f) Corrects a false impression given by D;
(g) Defendant has attacked another person's character.

25

PQ 2 cont

Ss.101(1)(c) &102- important explanatory evidence.

without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

Draws on common law: R v Pettman, 2 May 1985

26

PQ 2 final

Q: What is the issue in the case?
A: whether she was ‘sounding off’ and what was said was not intended to be taken seriously.

Q: On the facts is the evidence important explanatory evidence?
A: Probably- the statement to Donal, a day later. Unless judge decides it is misconduct to do with the facts of the offence, but there is quite a gap in time between the statement to Donal and the threats which are the subject matter of the charge. Possibly might also be propensity evidence admissible under s 101(1)(d).

Q: Is there a statutory discretion to exclude evidence that satisfies the test in s.101(1)(c)?
A: PACE 1984, s 78.

27

Problem question 3Evidence to rebut an attack on another’s character; Evidence to correct a false impression under CJA 2003

S101(1)(a)-(g)- 7 gateways.
All parties agree;
Given by the defendant himself;
(c) Important explanatory evidence;
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;
(f) Corrects a false impression given by D;
(g) Defendant has attacked another person's character.

28

PQ 3 continued

Q: In respect of bad character, what is the issue in this case?
A: Whether Eric has made an attack on another’s character
Q: Is the caution bad character?
A: No, as it does not seem to have been in respect of reprehensible behaviour and seems to have been wrongly administered (see L v CPS [2008] 1 Cr App R 13).
Q: Is the statement made by Eric about Mark in interview admissible?
A: Possibly under s 101(1)(g), as it is quite a trenchant attack. Note the discretion to exclude under s 101(3), but unlikely to apply in this case.
Q: Does it make any difference that the attack was not made whilst giving oral evidence?
A: No- see s 106(1)(c)
Q: Does the statement by Eric made under XX create a false impression?
A: Certainly. It is an express assertion apt to give a false impression (see s 101(1)(f) and s 105(1) and (2)).

29

Week 20 materials
What gateways under the CJA 2003 are open to the prosecution?

Important explanatory evidence (SGS9)
Relevant to an important matter in issue between the D and P (SGS 10)
Correct a false impression by D (SGS9)
D attacks another person’s character (SGS9)
Which gateway will the prosecution rely on in relation to Jamie Matthews in Q1?
101 (1) (d) CJA 2003

30

In respect of CJA 2003 s.101(1) (d), what may constitute an important matter in issue between the prosecution and defence?

= what is the s.101 (1) (d) threshold test?
It depends only on relevance to ‘an important matter in issue
(meaning according to s.112 ‘a matter of substantial importance in the context of the case as a whole’.
Substantial = not trivial.
If the evidence is relevant to an issue in the case it passes the threshold test for admissibility. The evidence DOES NOT have to have substantial probative value.


31

Gateway (d)

Why is s.103 CJA 2003 important?
What are offences of the same description?
What are the prescribed categories of offences which are ‘of the same type’ for use as an indicator that D has a propensity to commit offences of a certain type?
What is the common theme of offences listed in the theft category?
What about other types of offending?

32

What are the 3 questions that Hanson suggests should be asked when considering whether previous behaviour shows a propensity to commit offences of the kind charged?

Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
Does the propensity make it more likely that D committed the offences charged?
Is it unjust to rely on the conviction(s) of the same description or category; and in any event, will the proceedings be unfair if they are admitted?
F12.39

33

What is the guidance in both Hanson and Campbell on the extent to which ‘propensity to be untruthful’ may be an important matter in issue between the prosecution and defence?

In relation to evidence of propensity to show untruthfulness, Hanson [2005] 1 WLR 3169 requires a distinction to be drawn between offences of dishonesty, which may or may not display a propensity to untruthfulness, and evidence which does display such a propensity. The latter category might, for example, include an offence involving lying or making false representations, or the putting forward by the accused of an account in his own defence which can be shown to have been disbelieved.
F12.39

34

Norris

Hanson was also applied in Norris [2014]
CA noted but did not follow the narrower approach to the statute in Campbell [2007] where admissibility was thought to be limited to offences in which lying was an element of a crime of which the accused had been convicted, preferring the broader approach in Jarvis [2008].
In Campbell [2007] CA held that evidence of propensity to be untruthful is rarely admissible.
Following Norris this is now considered to be too restrictive.

35

Safeguards?

s.103 (3) CJA 2003
s. 101 (3) CJA 2003
s. 107 CJA 2003
s.110 CJA 2003

s.78 PACE 1984

36

What general principle applies when it comes to directing a jury where they have heard evidence of a defendant’s bad character?

Hanson outlines the content of a direction on bad character which, though couched in terms of a case involving evidence of propensity, is of more general relevance.
A proper direction should:
(1) give the jury a clear warning against the dangers of placing undue reliance on previous convictions;
(2) stress that evidence of bad character cannot be used to bolster a weak case, or to prejudice a jury against the defendant;
(3) emphasise that the jury should not infer guilt from the existence of convictions.
F12.23

37

What is the procedure to be followed by the prosecution when seeking to admit evidence of a defendant’s bad character?

See Crim PR 2015, r 21 for notice requirements which must be met by prosecution;
See Crim PR 2015, r 21 for notice requirements to be met by co-defendant;
See Crim PR 2015, r 21 for notice requirements on the defence to exclude evidence of bad character.
F12.3 + BCP Supp R-191

38

What exclusionary discretion applies where the prosecution seek to admit evidence of a defendant’s bad character because it is relevant to an important matter in issue?

Criminal Justice Act 2003, s. 101
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an 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.
The power comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it.
F12.19

39

Where a defendant and a co-defendant charged in the same proceedings run cut-throat defences, what is the test for the admissibility of the defendant’s bad character at the instance of the co-defendant?

s.101(1)(e) CJA 2003 threshold test
Evidence of a D’s bad character is admissible if it has ‘substantive probative value in relation to an important matter in issue’ between D and Co-D.
Philips [2011] 2 questions for the judge to assess:
Is the evidence of BC of Co-D of substantial probative value (enhanced capacity to prove or disprove a FII.
Separately from probative value, whether the issue upon which the BC evidence is substantially probative is also of substantial importance in the context of the case as a whole.
Covers where D not only undermines the Co-D’s defence but it is also inconsistent with that being run by the Co-D.
F12.67

40

By reference to the Police and Criminal Evidence Act 1984, s 74, (i) how may a defendant’s conviction be proved; and (ii) if evidence is offered to prove a conviction, may the defendant seek to disprove it?

(i) s. 73 PACE 1984, provides for the proof of convictions and acquittals in the UK and other EU Member States by a certificate of conviction or acquittal, together with proof that the person named in the certificate is the person whose conviction or acquittal is in issue
J to decide whether there is prima facie evidence fit for the jury's consideration, ultimately it is a question of fact for the jury to decide.
(ii) s. 74(2) PACE ‘84 has created a persuasive presumption: the person (other than the accused) convicted of an offence in any court in the UK or any other EU Member State or by a Service court outside the UK shall be taken to have committed that offence unless the contrary is proved.
F11.1 + 11.6

41

What is the sequence to be followed in court when handling bad character issues?


Submissions from P and D or Co-D and D
J decides admissibility
J decides whether the evidence should nevertheless be excluded under s. 101 (3) CJA 2003 (gateway (d) or (g)) or s.78 PACE ‘84
J gives reasons under s.110 CJA 2003. In open court, in public, in absence of jury. Reasons for decision to admit evidence of bad character or to refuse to do so
J where appropriate decides whether case should be stopped because case is contaminated under s.107 CJA 2003
J discusses with the advocates at the close of the evidence for what purposes the ‘bad character’ evidence may be considered by the jury. Discussion even if evidence was admitted by agreement.
J directs jury in summing up upon relevance and limitations of the evidence.
Jury decides on weight and value of the evidence in determining the issue of relevance and, depending upon the centrality of the issue, guilt.

42

Q1 Jamie Mathews

Which gateway will the prosecution rely on in relation to Jamie Matthews?
s.101 (1) (d) CJA 2003
What is the s.101 (1) (d) CJA 2003 threshold test?
Relevant to an important matter in issue between the P and D
s.112 CJA 2003 – a matter of substantial importance in the context of the case as a whole.
NOT trivial

43

Q2 a

s. 74 PACE 1984

Relevant to show that an offence was committed

Not evidence against co-defendants

Judge will direct the jury to this effect

F11.6-7




44

Gateway open to Co Dss.101 (1) (e) CJA 2003

What is the threshold test?
Is there a discretion to exclude?
What is a cut throat defence?
Any egs of matters that might be in issue between D and Co-D?
What if D seeks to adduce Co-D’s bad character on the grounds that Co-D has a propensity to be untruthful?
What if D seeks to adduce Cs-D’s bad character on the grounds that Co-D has a propensity to commit offences of the kind with which he is charged?

45

s.101(1) (e) CJA 2003 threshold test

permits evidence of bad character of Co-D to be admitted on an application by D ONLY if the evidence has “substantial probative value in relation to an important matter in issue between” D & Co-D
Usually where cut throat defence
S.101(e) is NOT limited to evidence of propensity to be untruthful but if it is it will only be admissible (s.104(1) if the nature/conduct of Co-D’s case undermines D’s defence.

46

s.101(1) (e) CJA 2003 threshold test cont

Once the threshold test is passed the judge has no discretion to exclude the evidence.
CA has given a wide interpretation to the scope of s.101(1)(e).
Previous convictions may be admissible even if not capable of establishing propensity to be untruthful.
It is enough if
The issue between D and Co-D is important and
The evidence of bad character is of substantial probative value in consideration of that issue.

47

Q2(b) admissibility of David’s arson conviction

What is the issue to which bad character evidence is relevant?
Running cut-throat defence so issue is one of the credibility
of Ds

Has David undermined Tanvir’s defence (s.104(1)) CJA 2003?

Clearly. (Note R v Kirkpatrick [1998] Crim LR 63: D will not undermine co-Ds defence where he has provided him with an alternative defence which, if believed would result in Co-D’s acquittal).

48

Q2(b) admissibility of David’s arson conviction

Does his conviction have a substantial probative value in relation to his credibility?
Previous convictions which did not involve an offence of untruthfulness could have substantial probative value in relation to the credibility of a defendant who had given evidence undermining the defence of a co-defendant. (R v Lawson [2007]
A. On the facts hard to see how. However, might well be admitted by the judge on the basis that Tanvir is entitled to say to the jury, “believe me, not David, as I have no previous convictions and he has.” Note that past convictions do not have to be offences involving lies or dishonesty in order to be admissible under s101(1)(e) CJA 2003 and a broad brush approach taken to the admissibility of evidence relevant to credibility of defendants in a cut-throat.

49

2(b)- Propensity

Q. Does David’s conviction for arson have substantial probative value in relation to his propensity to commit offences of the kind with which he is charged?
A. No- arson is an offence against property, GBH with intent is an offence against the person.
HOWEVER
If the offence was aggravated arson, the position might be different. Tanvir could argue that David had previously put someone’s life at risk with fire and this meant that David was less worthy of belief than he was.

50

Is there any statutory discretion to exclude evidence of bad character of the defendant where the co-defendant seeks to adduce it?

No. s 101(3) CJA 2003 does not apply to gateway (e) and s.78 PACE ’84 only applies to evidence being adduced by the prosecution.

51

Q 2(b) admissibility of David’s caution

Has David undermined Tanvir’s defence?

A. As above under 2(a)- yes.

If so, does David’s caution have substantial
probative value in relation to his credibility?

A caution for common assault does not have substantial probative value in showing Tanvir is less worthy of belief.
Unlikely that a caution (in which guilt is accepted) would have substantial probative value in relation to his credibility.

52

Q 2(c) Is certificate of conviction conclusive proof D committed offence to which cert. relates?

ss.73 – 75 PACE ‘84
R v C [2010] EWCA Crim 2971
Absolute right to prove/seek to prove innocence of earlier conviction
Right subject to overriding objective in Crim PR 2015
Right to challenge conviction under s.74(3) PACE ‘84 had to be subject to judicial control and case management but the overriding objective was not capable of nullifying right under s.74(3) PACE ’84
F11.1 + F11.6