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(6.1) Character evidence - Coggle Diagram
(6.1) Character evidence
- Bad character - Defendant
S.101: Gateways for admissibility of D bad character evidence
- Evidence of bad character is admissible if (only if) it falls within one of the gateways. Once evidence is admitted through any one of the gateways, it can be used for any purpose for which is relevant
- (a) Agreement - all parties agree
- (b) D adduces it - or elicits it in cross-examination
- (c) Important explanatory evidence - needed to understand other evidence
- (d) Relevant to an important issue between prosecution and defence
- (e) Substantial probative value between co-Ds
- (f) False impression - to correct a misleading impression given by D
- (g) Attack on another's character by D
Mnemonic:
- a) (A) greement
- b) (B) lurts it out
- c) (C) ontext
- d) (D) one it before
- e) (E) did it
- f) (F) alse impression
- g) (G) ets at the witness
S.101(1)(a): Agreement of the parties:
- There's no need to make application other the court for leave to adduce evidence through this gateway
- There's no formal requirements as to the recording of the agreement or how its reached
- A tacit agreement is enough
S.101(1)(b): Evidence adduced by D:
- Allows Ds to introduce evidence of their own bad character
- Number of reasons why D may wish to do so:
- To come clean about an old conviction in order to receive a modified good character direction
- To show that D has never been convicted of an offence as serious or of the type with which D is now charge
- To prevent the jury from speculating that D's record is worse than it is
- To show he previously pleaded guilty and admitted liability
- To put forward a defence, e.g. to show that D was in prison at the time
- To show why police officers might be biased against D
- Leave of the court is not required to adduce evidence through this gateway
S.101(1)(c): Important explanatory evidence:
- S.101(1)(c) - 'its important explanatory evidence'. 'Important explanatory evidence' is defined in S.192CJA 2003 thus:
- (a) For the purposes of S.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
- Where an offence is alleged it may be required to adduce evidence of the background against which the offence is committed, even though to do it will reveal facts showing the accused in a discretitable light
- This gateway allows prosecution to adduce evidence of past misconduct of the D where its needed to explain the prosecution case in the current trial
- Often the evidence is used to show the previous relationship between the people involved in the trial without which it would not be possible to understand narrative put forward by prosecution
- Leave of court is required to adduce evidence through this gateway
Overlap between S.98, S.101(1)(c) and S.101(1)(d):
- Evidence admitted under one gateway sometimes becomes admissible on another basis:
- Okokono [2014]:
- a gang-related killing alleged to have been carried out in revenge for an earlier murder, the conviction of one of the Ds for carrying a knife at the time of the earlier killing was 'highly relevant', applying S.98 as evidence 'having to to with' the revenge attack (and therefore not as evidence of bad character at all), but was also admissible as 'explanatory' evidence of bad character under S.101(1)(c0 to show motive, and as evidence under S.101(1)(d) of his propensity to engage in gang-related violence
Important matters in issue:
- Gateway D is often described as the "propensity gateway", evidence of bad character can be admitted if its relevant to all manner of important matters in issue between the prosecution and defence
- Example of an issue other than propensity - identity
- In such cases the prosecution may seek to adduce bad character evidence to support their case on identification
Cross-admissibility:
- Where D faces multiple charges in the same proceedings, evidence relating to 1 count is not automatically evidence in respect of another count
- Each count must be considered separately and a statutory gateway is required to permit cross-admissibility of evidence of 1 offence as evidence of the other
- Gateway most commonly relied is S.101(1)(d) CJA 2003 where evidence is relevant to an important matter in issue (like propensity of the kind charged) or lack of innocent coincidence
- e.g. - where D is charged with sexual assaults against 2 stepdaughters, evidence of the alleged assault on A is evidence only relating to that count and will only be evidence that D assault B if admissible through a gateway
- The evidence may be admissible under gateway D either because evidence demonstrates a relevant propensity to commit such offences or because existence of multiple similar allegations reduces likelihood of an innocent coincidence
S.101(1)(d): relevant to an important matter in issue between the D and the prosecution:
- S.112 says that 'important matter' means a matter of substantial importance in the context of the case as a whole
- S.103 further explains the meaning of S.191(1)(d):
- Read alongside: S.103 and 101(3) CJA 2003
-
S.101(1)(e): Important matter in issue between the D and a co-D:
- S.101(1)(e): "it has substantial probative value in relation to an important matter in issue between the D and a co-D
- read alongside S.101 CJA 2003
Important matter in issue:
- Mere denial of participation by a co-accused does not give rise to an important matter in issue. But if its necessary by implication of a D's defence that another D committed the offence, S.101(1)(e) CJA 2003 may apply between them
- Per S.104, evidence of a co-D's propensity to be untruthful is admissible only where the nature of the defence advanced undermines the defence of the co-D who seeks to adduce the evidence
- Leave of the court is required to admit evidence through this gateway
- Fairness test in S.101(3) does not apply to S.101(1)(e) and S.78 PACE 1984 is also inapplicable because its difficult for D to exclude bad character evidence adduced by a co-D rather than prosecution
S.101(1)(f): Correcting a false impression
- S.101(1)(f): 'if its evidence to correct a false impression given by the D
- Read alongside: S.105
- Leave of the court is required to admit evidence through this gateway
- If its possible for S.101(1)(f) to have an effect even where its the prosecution that adduces the evidence that creates a false impression
S.101(1)(g): Attack on another person's character
- S.101(1)(g): 'D has made an attack on another person's character'
- S.106 says:
- (1) For the purposes of S.101(1)(g) a D makes an attack on another person's character if:
- (a) he adduces evidence attacking the other person's character
- (b) he... asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
- (c) evidence is given of an imputation about the other person made by the D -
- (i) o being questioned under caution, before charge, about the offence with which he is charged, or
- (ii) on being charged with the offence or officially informed that he might be prosecuted for it
- (2) In subsection 'evidence attacking the other person's character' means evidence to the effect that the other person:
- (a) has committed an offence (whether a different offence from the one with whcih the D is charged or the same one), or
- (b) has behaved, or is disposed to behave, in a reprehensible way
- an "imputation about the other person" means an assertion to that effect
- (3) Only prosecution evidence is admissible under S.101(1)(g)
Note:
- This gateway can be used to admit evidence of dishonesty, not just propensity to be untruthful as in the case where evidence is admitted through the S.101(1)(d) gateway
- Reason for S.101(1)(g): allow the jury to assess how likely it is that the attack on the other person's character is true. In assessing this, the jury are entitled to know the character of the person who makes the allegation
- This subsection is triggered when: an attack is made on any person, living or dead. Its also irrelevant whether the person whose character has been attacked is or is not a witness in the case
- Leave of the court is required to admit evidence through this gateway
- The fairness test in S.101(3) CJA 2003 applies to this gateway
S.103: matters in issue between the D and the prosecution:
- The matters in issue between the D and the prosecution mentioned in S.101(1)(d) include, but are not restricted to:
- (a) the question whether the D has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
- (b) the question whether the D has a propensity to be untruthful, except where its not suggested that D's case is untruthful to any respect
Description and Category:
- Where subsection (1)(a) applies a D's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of -
- (a) an offence of the same description as the one with which he is charged, or
- (b) an offence of the same category as the one with which he is charged
- Offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms
- 2 offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretory of State
- There's only 2 prescribed categories for the purposes of admitting bad character evidence under S.103(4)(b) outlined in CJA 2003 (Categories of Offences) Order 2004
- Sexual Offences Against Persons Under 16
- Theft Offences (Part 1 of the Schedule)
The Theft Category
- Includes the following offences:
- Theft
- Robbery
- Burglary (with intent to steal or actual theft
- Aggravated burglary
- Taking a vehicle without authority
- Aggravated vehicle-taking
- Handling stolen goods
- Going equipped for stealing
- Making off without payment
- Attempts or encouragement to commit any of the above offences
Propensity commit offences of the kind with which D is charged:
- R v Hanson and others [2005] - leading case on whether evidence of bad character does not establish a propensity to commit offences of the kind with which the D is charged
- The court formulated the following questions to ask when an application is made to admit bad character evidence to show propensity (whether the bad character is a conviction in the same category or description or not):
- (1) Does D's history establishes a propensity to commit offences of the kind charged?
- (2) Does that propensity make it more likely that the D committed the offence charged?
- (3) Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them S.103(3))?
- (4) In any event, would proceedings be unfair if the evidence were to be admitted (S.101(3))?
Propensity:
- Court held that the following principles apply:
- (1) There's no minimum number of previous convictions required to establish a propensity. Fewer number of previous convictions, the weaker is likely to be the evidence of propensity
- (2) Single previous conviction for an offence of the same description or category as the offence charged might show propensity provided it is sufficiently probative, e.g. where the behavior is 'strikingly similar'
- (3) Strength of prosecution case should be considered. Its unlikely to be just to admit bad character evidence if there is little or no evidence against the D
- Where the facts of previous convictions are so unusual as to constitute a "signature" of the offender's mode of offending, the propensity itself is likely to be very powerful evidence against D
Functions of the judge and jury - propensity:
- Judge is to determine whether evidence is capable of establishing a propensity
- if evidence is admitted to show propensity, its a matter for the jury whether it does actually show the propensity that is asserted
- Leave of the court is required to admit evidence through this gateway
Propensity to be untruthful:
- Also in R v Hanson in the court held that a propensity to be untruthful is not the same as a propensity to be dishonest
- Previous convictions are only likely to be capable of showing such propensity where:
- There was a plea of not guilty to the previous offence and the D gave evidence at trial which the jury must have disbelieved; or
- The way in which the offence was committed involved being untruthful, e.g. fraud by false representation
- In practice - this means that while burglary is categorised as a dishonesty, it will not logically follow that each and every burglar is untruthful
- In such situations it would be wrong to describe their behavior as generally untruthful
Directing the jury:
- The jury should be directed that the weight to be given to bad character evidence is a matter for them
- They must be warned not to place undue reliance on such evidence, which cannot be used to bolster a weak case or to prejudice the D
- The jury should not conclude that D is guilty/untruthful just because of previous convictions, and should be reminded that propensity alone is not enough to prove the offence charged
- Significance of any bad character evidence must be assessed in the light of all evidence
- Where disputed allegations not resulting in conviction are relied on, the jury should be directed not to rely on them unless they are sure they are true
- Bad character - Non-Defendant
S.100:
- read alongside S.100 CJA 2003
- Evidence under S.100 can be adduced by any party
- Leave of the court is required unless all parties agree to the admission of the evidence
S.100(1)(a): Important explanatory evidence:
- The definition of 'important explanatory evidence' (S.100(2)) is the same as the one given in S.102 in relation to defendant bad character evidence:
- without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
- its value for understanding the case as a whole is substantial
- The same considerations apply
S.100(1)(b): Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
- 'Matter in issue' can refer to either credibility or a disputed fact. Although there''s no specific reference to a propensity as a possible matter in issue (as seen in S.103), propensity can be a matter in issue for S.100
- The effect is that D can adduce evidence of another person's propensity to commit offences of the type charged to show that it was not that person and not the D itself who committed that offence (provided the evidence has substantial probative value, and the issue is genuinely whether the non-D committed that offence)
cont:
- Inclusion of word 'substantial: To be admissible, evidence must be capable of having an impact on the way in which jury can assess the evidence of a witness or the case as a whole
- Whether misconduct of a non-D has substantial value depends on nature, number and age of the instances of misconduct.
- So recent misconduct is likely to have greater probative value that misconduct long ago
- 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 is important
- Bad character - Procedure
Procedural requirements
Exclusion and safeguards:
- S.78 PACE Act 1984:
- This section allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted
- It has no application where 1 D seeks to adduce evidence against another
S.103(3) CJA 2003:
- This section allows the court to exclude convictions for an offence of the kind with which he is charged if the court is satisfied that, by reason of the time that has elapsed since the earlier conviction or for any other reason, it would be unjust to admit the evidence
S.107 CJA 2003:
- This section gives the court discretion to stop the case where its satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is contaminated, e.g. because of collusion with other or awareness of other allegations of evidence, it is false or misleading, and the contamination is such that the conviction of the D of the offence with which D is charged would be unsafe
S.110 CJA 2003:
- S.110 requires the court otherwise give reasons in open court for nay ruling it makes on the issue of bad character
S.101(3) CJA 2003:
- This subsection applies to evidence of the D's bad character that is to be admitted through gateways 101(1)(d) or (g)
- The wording is very similar to that of S.78 PACE Act 1984 with the exception that the word 'must' appears in S.101(3), whereas the word 'may' appears in S.78
- It's hard to see in what circumstances the difference in the wording would make a practical difference, but for the defence advocate it is obviously preferable to use S.101(3) because of stricter wording
Proving convictions under SS.73-75 PACE Act 1984:
- S.73: Proving convictions and acquittals:
- Were there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, S.73 provides that the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place
- The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue
S.74 and 75 PACE Act 1984:
- Using convictions as evidence that an offence was committed
- S.74
- provides that where a person is proved to have been convicted of an offence by any court int he UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved
- The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person
- S.75
- Makes various documents including the information, charge sheets and/or indictment admissible as evidence of the facts on which the conviction was based
Procedure for adducing and opposing bad character evidence
- The procedural rules to be followed when a party wishes to adduce bad character evidence are found in Part 21 of the CPR
- Notice, applications and responses - Rule 21.2 requires that a party wishes to adduce bad character evidence must, in the case of:
- non-D bad character evidence, make an application under rule 21.3 or
- D bad character, give notice under rule 21.4
Time Limit
Rule 21.2 and 21.4: Defendant bad character:
- Prosecution Application
- MC - written notice not more than 20 business days after the D pleads not guilty
- CC - written notice not more than 10 business days after the D pleads not guilty
- Co-D's application
- ASAP, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based
- Response
- Not more than 10 business days after service of the notice
Contents:
- Prosecution Evidence and Co-D's application:
- In the written notice set out the facts of the misconduct on which that party relies;
- Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
- Explain why the evidence is admissible
Contents
- Defendant Response
In the response explain:
- Which if any facts of the misconduct set out in the notice that party disputes
- What if any, facts of the misconduct that party admits instead
- Why the evidence is no admissible
- Why it would be unfair to admit the evidence and
- Any other objection to the notice
Court's powers
- Court can determine an application with or without hearing in public or in private. Decision must be announced at a hearing in public, but in the absence of the jury
- The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired
- In practice, written notices in the form required by rules are usually served where prosecution proposes to adduce evidence via S.101(1)(c) or (d) gateways
- Evidence that becomes admissible through the other gateways in S.101 is likely to do so as a result of something said or done in the course of the trial
- In those situations the applications is likely to be made orally