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Character Evidence - Coggle Diagram

- - - - Matters in Issue: Propensity, Credibility and Other Issues-
      - Issue to which the evidence relates will usually, though not always, be either the propensity or the credibility of the person of bad character
      - Requiring the prosecution to prove propensity to the criminal standard, have no application to evidence adduced on behalf of the defence
      - It is submitted that it would equally be inconsistent with principle to impose a burden on the defence on a balance of probabilities , although there is no clear authority on the point
      - The credibility of a witness is capable of being an issue of substantial importance in relation to the case as a whole just because a witness has convictions does not mean that the opposing party is entitled to attack the witness's credibility'
      - The character of the deceased in a murder case may also be the subject of an application
      - Evidence that he had been cautioned for possession of a knife was already before the jury; the additional evidence added nothing of value
      - Evidence of bad character might be relevant where D was permitted to adduce evidence to demonstrate that V had been beaten not by D as alleged but by drug dealers to whom he owed money
      - Evidence of V's previous convictions for knife crimes were excluded on a charge of wounding with intent where D's defence was based on a suggestion that V had been set upon by a different group while D was unconscious
    - - The efforts of a complainant to contact a friend of D despite police warnings to desist were regarded as falling short of 'reprehensible' conduct, but were also lacking in relevance and were therefore inadmissible)
- - - - Courts power to vary requirements
      - The court may shorten or extend even after it has expired the time limit
      - The court may allow an application or notice to be in different form to one issued or to be made or given orally
      - And dispense with a requirement for notice to introduce evidence of a defendants bad character
      - A party who wants an extension of time limit must apply when serving the application or notice for which it is needed and explain the delay
  - - - If the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
        
        Evidence to correct such an impression is evidence which has probative value in correcting it
        
        105.—
        
        Applications by one co-accused to adduce evidence of bad character against another fall to be dealt with under s. 101(e)
        
        Evidence admitted under gateway (f) is limited to evidence correcting the false impression (s. 105(6)
        
        Evidence to Correct a False Impression
        
        Section 101(1)(f) of the CJA 2003 permits evidence of bad character to be adduced by the prosecution to correct a false or misleading impression given by a defendant about him or herself. Only prosecution evidence is admissible via this gateway
        
        The provisions of s. 101(3), which exclude evidence having an adverse effect on the fairness of the proceedings, do not apply to evidence tendered under s. 101(1)(f) but such evidence may be excluded using the PACE 1984, s. 78
        
        Explanatory Evidence and Evidence of Propensity
        
        Particular caution is required in applying gateway (c) where evidence tendered as explanatory is also evidence of propensity
        
        That gateway should not be deployed to 'slide in' evidence of propensity under the guise of explanatory evidence where the former would not be admissible, or would be subject to additional safeguards
        
        The importance of distinguishing between explanatory evidence and evidence of propensity was stressed
        
        The decision is based on common-law authorities and does not deal directly with the CJA 2003,
        
        The courts should be cautious about 'claims by prosecutors that the evidence is necessary to understanding of the case, or, as is sometimes asserted, to discourage the jury from wondering about the context in which the events discussed occurred'
      - A caution for excessive chastisement was admitted by agreement and relied on by both prosecution and defence: by the defence to support a claim that D had learned his lesson, and by the prosecution as part of an alleged history of cruelty to the children in his care
        
        Evidence admitted 'without demur' by skilled counsel may be said to have been admitted by 'tacit' agreement
      - Agreement
      - Makes it clear that evidence of bad character may be admissible by general consensus of the parties
      - In the interests of good trial management
      - The court should be informed of any agreement to admit bad character evidence at the beginning of the trial
      - The mere fact of agreement, though sufficient to overcome an objection based on bad character did not justify putting in evidence documents subject to public interest immunity disclosed for the purpose of cross-examination of prosecution witnesses, for which a further order would have been required
      - Where there are multiple defendants, the gateway clearly requires that the consent of all must be secured, bearing in mind that they may have very different interests
    - - Such evidence is admissible only in restricted circumstances, and, except where all parties agree to the evidence being admissible, the leave of the court is required
- - - - Substantial Probative Value
        
        The assessment of substantial probative value relates to the force of the evidence
        
        The judgment to be made, which is highly fact-sensitive, must take account of the context of the case as a whole
        
        Thus it may be appropriate to consider whether it adds significantly to other more probative evidence in the case
        
        This is a consideration of particular importance where the evidence consists of unproven allegations going to a witness's credibility where it has already been decided that the jury will be told of that person's previous convictions under s. 100
        
        Matters Relevant to Assessment of Probative Value
        
        Evidence of Bad Character Adduced by Prosecution to Prove Guilt or Untruthfulness Criminal Justice Act 2003: Admissibility under s. 101(1)(d)
        
        Evidence of the defendant's bad character is admissible if, but only if…
        
        It is relevant to an important matter in issue between the defendant and the prosecution
        
        The matters in issue between the defendant and the prosecution include—
        
        The question whether the defendant 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;
        
        Hanson and Admitting Propensity Evidence
        
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        Attack on Another Person's Character'
        
        The CJA 2003, s. 101(1)(g), permits the prosecution to adduce evidence of bad character to counter an attack on another person
        
        Like gateway (f) it applies only to evidence adduced by the prosecution
        
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        Section 101(1)(g) is supplemented by s. 106, which details the circumstances in which such an attack occurs
        
        An accused may apply to exclude evidence the admission of which under s. 101(1)(g) would have an unfair effect on the fairness of the proceedings (s. 101(3)
        
        The CJA 2003, s. 100(3), sets out a list of factors to which the court must have regard in assessing the probative value of the evidence
        
        The list is non-exhaustive and the court must also have regard to any other factors it considers to be relevant
        
        Criminal Justice Act 2003, s. 100
        
        In assessing the probative value of evidence, the court must have regard to the following factors (and to any others it considers relevant)—
        
        the nature and number of the events, or other things, to which the evidence relates;
        
        when those events or things are alleged to have happened or existed;
        
        where— the evidence is evidence of a person's misconduct, and
        
        it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
        
        the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct
        
        Evidence to Correct a False Impression
        
        Section 101(1)(f) of the CJA 2003 permits evidence of bad character to be adduced by the prosecution to correct a false or misleading impression given by a defendant about him or herself. Only prosecution evidence is admissible via this gateway
        
        Applications by one co-accused to adduce evidence of bad character against another fall to be dealt with under s. 101(e)
        
        Evidence admitted under gateway (f) is limited to evidence correcting the false impression (s. 105(6)
        
        The provisions of s. 101(3), which exclude evidence having an adverse effect on the fairness of the proceedings, do not apply to evidence tendered under s. 101(1)(f) but such evidence may be excluded using the PACE 1984, s. 78
- - - - The accused can elect to tender evidence of his or her own bad character
        
        A common reason for doing so is to lay a foundation so that the accused may argue never to have been previously convicted of an offence similar to that charged
        
        Such a direction will inevitably be tailored to the specific facts
        
        Relevance to Important Matter
        
        The prosecution are required to show that evidence of bad character is relevant to an 'important matter in issue' between prosecution and defence
        
        'Important matter' means 'a matter of substantial importance in the context of the case
        
        While the issue must be of substantial importance, however, it is not necessary for the evidence of bad character to be of substantial probative value
        
        Were it thus, the inclusion in s. 103(1)(a) of evidence of propensity as a matter in issue between the parties would be of very limited effect
        
        The effect is that the threshold for admitting an accused's bad character is satisfied if the evidence is merely relevant to an important issue between the prosecution and the defence
        
        Provided the evidence is so relevant, the court's power to exclude evidence under s. 101(3) becomes the focal point of cases where evidence of bad character is tendered under s. 101(1)(d) and objected to by the defence
        
        Where evidence is admitted, the accused's protection from unfairness lies in the direction to be given by the trial judge
        
        Impression 'given by the defendant'
        
        Gateway (f) looks to whether the defendant is 'responsible for the making of an express or implied assertion which is apt to give the jury a false or misleading impression'
        
        The impression may be conveyed in any of the ways in s. 105(2): by the accused in the proceedings, in interview, or on being charged; by a defence witness; by a question put by the defence to any witness intended or likely to elicit it, or by any person out of court, if the defendant adduces evidence of it
        
        Section 105(4) creates a further possibility of a false impression created by conduct
        
        It is clear that a false impression may be held to have been created whether or not witnesses are specifically called as to good character, and whether or not the accused elects to give evidence
        
        For example, D gave no evidence, but a question was put by D's counsel in cross-examination of a co-defendant that led to the correction of the impression thus created that D's limited intellectual function made him unlikely to have committed the offence
        
        For example, was an error by defence counsel in his closing speech that created the false impression that D's marketing activities had never previously led to concerns being expressed by Trading Standards, resulting in evidence of a previous investigation being admitted to rectify the false impression thus created
        
        For example, Statements made by D in interview that he had never acted dishonestly and that he had been meticulous in his business dealings, resulted in the admission of D's previous convictions for deception-related offences under gateway (f)
        
        Notice Requirements
        
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        The requirements apply equally where it is sought to rely on the cross-admissibility of accusations
        
        The Criminal Procedure (Amendment) Rules 2016 makes provision for the accused who wishes to introduce evidence of his or her own bad character to give notice, in writing or orally, as soon as reasonably practicable and in any event before the evidence is introduced
        
        The Court of Appeal specifically discouraged the practice of 'informal' applications to admit bad character evidence
        
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        Evidence Adduced by Defendant
        
        In Hunter [2015] the Court of Appeal reformulated the rules governing the presentation of an accused as a person of good character, with the result that anyone with a subsisting and relevant conviction is unlikely to receive a full 'good character' direction
        
        Nevertheless, the argument that an accused's convictions are of a different type may still be relevant, for example where the accused contends that any previous offending is relatively low-level and nothing like as serious as the offences charged
        
        Hunter permits a modified good character direction in the judge's discretion
      - The test for admissibility There are four important features of the test for admissibility under s. 100
        
        The test of 'substantial probative value' is not the same as the test for gateway (d) of s. 101 where evidence of the bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance
        
        It is, however, the same as the test that appears in gateway (e) where evidence is tendered by one co-accused against another.
        
        If the conditions of s. 100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence
        
        Except where the parties agree to admit the evidence, the leave of the court is always required
        
        Rulings by the judge in the absence of agreement between the parties require the exercise of judgment, rather than of discretion
        
        Substantial Probative Value in Relation to Credibility
        
        The credibility of a witness is clearly capable of being a matter in issue of substantial importance in the context of the case as a whole
        
        The evidence of bad character that might qualify as being of substantial probative value in relation to credit was of two types:
        
        Evidence that bears upon credit directly, as providing a reason for doubting the truth of the evidence of the witness in the particular case, and evidence that does so only indirectly, as providing a general reason for suggesting that the witness was a person not to be trusted
        
        In Brewster the complainant in a case of alleged kidnapping had, amongst other convictions, a previous conviction for manslaughter of a client while working as a sex worker, in circumstances that were in certain respects similar to the version of events of the kidnapping put forward by the defence
        
        The appropriate test was to ask whether the evidence was 'reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief '
        
        Evidence which is insufficiently probative for one purpose may be relevant and admissible for another: the mere fact that a witness was under investigation for fraud would not have provided a strong enough indication of untruthfulness , but was of substantial importance in demonstrating that her testimony might have been tainted by her desire to avoid prosecution
        
        Explanatory Evidence
        
        The CJA 2003, s. 101(1)(c), makes special provision for the admission of 'explanatory' evidence
        
        Which is evidence without which it would be 'impossible or difficult to understand other evidence in the case' — provided that its value for understanding the case as a whole is substantial
        
        In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—
        
        it is important explanatory evidence;
        
        Evidence is important explanatory evidence if—
        
        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
        
        Application to introduce evidence of a non-defendants bad character
        
        It applies where a party wants to introduce evidence of the bad character of a person other than the defendant
        
        The party must serve an application to do so on the court officer and each other party
        
        The applicant must serve the application as soon as reasonably practicable and in any event not more than 10 business days after the prosecutor discloses the material on which the application is based- if the prosecutor is not the applicant
        
        Notice to introduce evidence of a defendants bad character
        
        A prosecutor or co-defendant who wants to introduce such evidence must serve notice on the court officer, and each other party
        
        A prosecutor must serve any such notice not more than 20 business days after the defendant pleads not guilty in a magistrates court or
        
        10 business days after the defendant pleads not guilty in the Crown Court
        
        A co- defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable and in any event not more than 10 business days after the prosecutor discloses material on which the notice is based
      - That there is no discretion to exclude defence evidence under s. 100 on grounds of fairness
      - Evidence tendered by the prosecution is of course subject to exclusion under the PACE 1984, s. 78
      - It may be unlikely, once the high standard of probative value required by s. 100 is found to have been met, that it will be unfair to admit the evidence, but it is not impossible
      - Evidence of a non-defendant's bad character tendered by an accused could be excluded because of prejudice to a co-accused is incorrect
- - - - Criminal Justice Act 2003, s. 100: Gateways to Admissibility
        
        In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
        
        Powers of Exclusion
        
        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 principal mechanism by which the court can ensure that an accused is not prejudiced by revelations of evidence under s. 101(1)(d) or (g) is the exclusionary power under s. 101(3): that 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
        
        Establishing Relevance of Propensity
        
        'The fact that section 103(1) seems also to have the effect of always potentially including the “question of” propensity among the “matters in issue” should not be overstated to the extent that sight is lost of the need for relevance: the bad character must still be relevant to an “important” issue'
        
        For example, D's long history for offences of violence was relevant to the anticipated defence of self-defence to murder but, when D admitted manslaughter and relied on his intoxication in relation to the murder, the propensity either no longer made it more likely that D committed the offence charged or, if it did, it would have been unfair to rely on convictions that did not throw any light on the sole remaining issue of intention
        
        In determining the relevance of propensity, a trial judge is not to be restricted by the detail of individual eyewitness accounts but should assess the evidence globally
        
        Where propensity is relevant, no additional hurdle is imposed requiring other evidence to support the matter, though the absence of such evidence may bear on the question of discretionary exclusion
        
        Discretion
        
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        Section 101(3) of the CJA 2003 places the court under a duty to exclude evidence where to admit it under s. 101(1)(g) would have such an adverse effect on the fairness of the proceedings that the court ought not to do so
        
        The prosecution to demonstrate that evidence of bad character, to be relevant to credibility, demonstrates an underlying propensity to untruthfulness
        
        The purpose of s. 101(1)(g) is to 'provide the jury with information relevant to the question whether the defendant's attack on another person's character is worthy of belief'
        
        There is no requirement that the evidence thus admitted should reach any particular threshold of probative value, or that the creditworthiness of the defendant should be an issue of substantial importance in the case
        
        The concept is of the general credit of the accused rather than the narrower concept of propensity to untruthfulness arising in relation
        
        A jury should be permitted recourse to material bearing on the whole of the accused's bad character, not merely those parts that relate specifically to veracity
        
        it is important explanatory evidence,
        
        it has substantial probative value in relation to a matter which—
        
        is a matter in issue in the proceedings, and
        
        is of substantial importance in the context of the case as a whole, or
        
        all parties to the proceedings agree to the evidence being admissible
        
        Except evidence of the bad character of a person other than the defendant must not be given without leave of the court
      - Section 100 regulates all aspects of the use of the bad character of a person other than the accused, in chief or in cross-examination whether or not the person appears as a witness
      - Thus, it covers the character of a person whose statement is admitted under an exception to the hearsay rule and the character of the deceased in a trial for murder
    - - Important Explanatory Evidence
      - Criminal Justice Act 2003, s. 100
      - Evidence is important explanatory evidence if—
        
        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
      - It also applied to bad character of the accused
      - Explanatory evidence is received because it provides necessary background or context to the understanding of other evidence
      - For example, if an assault is said to have occurred between serving prisoners, in the cell they shared, it might be impossible or difficult to present the case without reference to this context, though the offences for which they were imprisoned may have nothing to with the issues to be decided
      - In relation to D's bad character, care should be taken to ensure that evidence which is being relied on for its probative value is not improperly admitted via the explanatory gateway, thus avoiding a scrutiny of whether the probative value of the evidence satisfies the criteria in s. 100(1)(b)
      - Evidence of a history of violence between D's family and another family was excluded as explanatory evidence where the prosecution had shown CCTV footage establishing that the other family had engaged head-on in a violent confrontation and had taken up weapons, so that D's claim of self-defence could be understood without the need for the history
      - The prior convictions of D's opponents were inadmissible
      - Bad character evidence that exposes a key witness's motive to lie would be capable of being important explanatory evidence, but as such evidence would require to have probative value in relation to credibility, it is argued that s. 100(1) would be the more appropriate route
      - Explanatory evidence must satisfy the further condition in s. 100(1)(b) that its value for understanding the case as a whole is 'substantial'
- - - - Violent rap lyrics written by D were regarded as reprehensible behaviour
      - The aggressive, shouting behaviour of one partner towards another over the care of a young child did not constitute reprehensible behaviour
      - It would be if the shouting to be reprehensible but at the same time not probative in relation to the charge
      - Where D had threatened a neighbour who had touched his car, behaving in a 'terrifying way'
        
        This was rightly regarded as reprehensible conduct, but was admissible because of its bearing on the question of D's intentions towards a prospective burglar he was alleged to have murdered
      - Evidence 'to do with' the Facts of the Offence or in Connection with its Investigation or Prosecution
        
        The common-law rules continue to operate insofar as they permit evidence to be adduced which, 'has to do with the alleged facts of the offence' or, 'is evidence of misconduct in connection with the investigation or prosecution of that offence'
        
        Thus, for example, if evidence of misconduct tendered to prove the bias or partiality of a witness fell within s. 98(b), it could, because it is not evidence of 'bad character', be admitted at common law and without the need to apply the provisions
        
        Evidence of misconduct in other investigations would seem to be admissible, if at all
        
        Explanatory Evidence and Directions
        
        Explanatory evidence once admitted may require a particularly careful direction to the jury
        
        For example, evidence was admitted to support an identification of D as a robber from a person who recognised him from the many occasions on which she had sold him drugs
        
        The separate functions of this explanatory evidence and other evidence of D's record which went to his propensity were rightly maintained in the judge's direction
        
        It is equally possible that evidence of a previous offence which is closely connected to the crime charged may be admissible propensity evidence without being necessary explanatory evidence or that evidence may be admissible via both gateways for different purposes
        
        Where a previous conviction for child abduction and a subsequent warning notice were evidence of D's mens rea on the subsequent occasion under gateway (d) and also, under gateway (c), necessary to explain the context of the relationship between D and the teenage girl he sheltered in his home)
  - - - Substantial Probative Value where Self-defence is the Matter in Issue
        
        Relationship with Gateway (a)
        
        Where explanatory evidence is admitted, it may be fairest to present it in the form of an agreed statement of facts, for the avoidance of prejudice and to prevent the distraction of the jury
        
        For example, where the previous misconduct was admitted by agreement under s. 101(1)(a): but would otherwise have been clearly admissible under gateway (c)
        
        Evidence of Bad Character Adduced by Prosecution to Prove Guilt or Untruthfulness Criminal Justice Act 2003: Admissibility under s. 101(1)(d)
        
        Evidence of the defendant's bad character is admissible if, but only if…
        
        It is relevant to an important matter in issue between the defendant and the prosecution
        
        The matters in issue between the defendant and the prosecution include—
        
        The question whether the defendant 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;
        
        Process of Reasoning: 'Signature' Evidence
        
        An important function of evidence of bad character is to identify the accused as the perpetrator of an offence
        
        The connection may be arrived at via an inference from propensity or by any other relevant inference drawn under gateway (d) : the process of reasoning will need to be reflected in the summing-up
        
        For example, evidence of a large number of similar examples of arson affecting D's family were rightly admitted in support of an argument that it would have been an amazing coincidence had D not been the author of all of them
        
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        In only one count was there the direct evidence of identification that would have supported an inference of propensity that could have been brought to bear on the question of who started the other fires
        
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      - Substantial probative value may be established where, for example, an accused is charged with an offence of violence and claims self-defence, and there is a previous instance of violence by V towards D using a weapon
      - D was unable to rely on V's convictions to show a propensity for violence which 'could not really have helped' the jury to decide whether D believed that V posed a continuing threat, V having at that point desisted
      - Substantial Probative Value in Relation to Other Defences
        
        Where D contended that the complainant might have been subjected to violence by other persons as a result of her involvement with drug dealing
        
        However the evidence he proposed to give was merely that these were the types of activities which often lead to violence, and the application was rightly rejected
        
        It might have been different if the evidence had been of particular incidents of violence arising from the complainant's activities
        
        The prosecution may adduce evidence of the convictions of another where D's knowledge of them has probative value
        
        For example a mother's knowledge of her son's previous convictions for violence using a weapon was relevant to the question whether she knew, having driven him to the scene of a murder, what it was he intended to do there
- - - - Misconduct that 'has to do' with Facts or is 'connected with' Investigation and Therefore is Not 'bad character'
      - 'Has to do with' Alleged Facts Is admissible subject to relevance and any other exclusionary rule of evidence, is evidence of misconduct which 'has to do with the alleged facts' of the offence charged
      - It must be read with an understanding of the type of evidence that is only admissible under the 'gateways': in a broad sense all evidence, including evidence of bad character, 'has to do with' the facts, but this cannot be the meaning intended
      - An argument taking place between D and the complainant 14 hours after he was alleged to have raped her was not admissible the 'facts of the offence' could not possibly bear such a wide construction
        
        The purpose of that gateway is 'to provide an appropriate level of protection for the person against whom bad character evidence is sought to be adduced by a co-accused'
        
        That protection would be eroded if it were to be construed too widely
        
        Similar considerations apply to the avoidance of the erosion of the protection provided by other gateways
      - Explanatory Evidence
        
        Where an offence is alleged it may be necessary to give evidence of the background against which the offence is committed, even though to do so will reveal facts showing the accused in a discreditable light
        
        The accused's bad character may constitute a relevant part of the background
        
        For example, evidence of sexual abuse and domination of the complainant by D during her childhood was necessary to explain why her apparent compliance in a sexual relationship with him after her sixteenth birthday should not be regarded as indicating her genuine consent
        
        The necessity to admit evidence for its explanatory as distinct from its probative value, was well accepted at common law in a line of authorities that continue to be relevant under the CJA 2003
        
        Important Matter in Issue
        
        “Important matter” means a matter of substantial importance in the context of the case as a whole'
        
        The mere denial by a co-accused of participation in a crime does not meet the terms of s. 101 but, if it is a necessary implication of the denial that another accused has committed the offence, s. 101(1)(e) comes into play between them
        
        For example, where D1 and D2 were charged with cheating the revenue Although neither was directly arguing that the other had committed the offence, both were impliedly doing so because the only logical conclusion was that the offence must have been committed by the other defendant
        
        Evidence Going to Issue of Untruthfulness between Accused and Co-accused
        
        Section 101(1)(e) renders admissible evidence that has 'substantial probative value' in relation to an important matter in issue between co-accused
        
        'Important matter' means 'a matter of substantial importance in the context of the case as a whole'
        
        Where the evidence adduced is of one defendant's 'propensity to untruthfulness', s. 101(1)(e) is further restricted in its operation by s. 104 to cases where the nature or conduct of his or her defence is such as to undermine that of the other defendant
        
        Note that only defence evidence is admissible under this provision (s. 104(2)
        
        What Constitutes an Attack
        
        The CJA 2003, s. 106(2), creates a link back to the definition of bad character in s. 98 and in particular to the concept of misconduct as the commission of an offence or other reprehensible behaviour
        
        The gateway may be satisfied by evidence that the other person has committed an offence (whether the offence with which D is charged or a different one) or has behaved, or is disposed to behave, in a reprehensible way
        
        A defence which suggests that another person is more likely than D to have committed the offence will be an attack, even if the circumstances are such that one of them must have committed it
        
        For example, D was charged with assault by penetration of a baby left in his care by the mother, R. On the facts, either D or R must have been responsible.
        
        'Another Person's Character'
        
        Section 101(1)(g) of the CJA 2003, appears to contemplate an attack on a specific person
        
        It would not therefore be sufficient, where a crime has clearly been committed by someone, for the accused to say that he or she has not done it and to lay the blame on some unknown individual
        
        Where a specific attack is made, however, it does not matter that the person attacked is not a witness in the case
        
        It was suggested that it would be unusual for evidence of an accused's bad character to be admitted where the only basis for doing so was an attack on a non-witness who is also a non-victim
        
        On the facts of that case, however, the person whose character was attacked was alleged to have been conspiring with a prosecution witness, which provided a proper foundation for gateway (g)
        
        Proof of Convictions and Acquittals
        
        The PACE 1984, s. 73, provides for the proof of convictions and acquittals in the UK 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
        
        Although it is for the judge 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
- - - - The Court of Appeal noted that the late decision also rendered it impossible for the proposed direction to be discussed before counsel's closing speeches
    - - Purpose and Relationship with other Evidential Rules Purpose and Scope of s. 100
      - It covers the statutory scheme for the introduction of evidence of the bad character of persons other than the accused contained in the CJA 2003, s. 100
        
        Such evidence is admissible only in restricted circumstances, and, except where all parties agree to the evidence being admissible, the leave of the court is required
      - The purpose of s. 100 is to remove from the criminal trial the right to introduce by cross-examination old, irrelevant or trivial behaviour in an attempt unfairly to diminish the standing of the witness in the eyes of the tribunal of fact, or to permit unsubstantiated attacks on credit
      - Evidence 'to do with' the Facts of the Offence or in Connection with its Investigation or Prosecution
        
        The common-law rules continue to operate insofar as they permit evidence to be adduced which, 'has to do with the alleged facts of the offence' or, 'is evidence of misconduct in connection with the investigation or prosecution of that offence'
        
        Thus, for example, if evidence of misconduct tendered to prove the bias or partiality of a witness fell within s. 98(b), it could, because it is not evidence of 'bad character', be admitted at common law and without the need to apply the provisions
        
        Evidence of misconduct in other investigations would seem to be admissible, if at all
        
        Meaning of 'Substantial'
        
        The trial judge must consider two essential questions:
        
        Whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole
        
        Whether the evidence had substantial probative value in relation to a matter in issue in the proceedings
        
        'Substantial' bears its ordinary meaning, rather than the technical meaning found in other legal contexts of 'more than trivial 'where it is also said that the word should not be glossed
        
        Other leading cases have equated 'substantial' probative value with 'an enhanced capability' of proving or disproving a matter in issue in order to emphasise the point
        
        Evidence of Bad Character Adduced by a Co-Accused
        
        Evidence of the defendant's bad character is admissible if, but only if—
        
        It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
        
        Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence
        
        Only evidence—
        
        Which is to be (or has been) adduced by the co-defendant, or
        
        Which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,
        
        is admissible under section 101(1)(e)
        
        Section 104(1) is primarily relevant to the cut-throat defence where the evidence of propensity is directed more towards establishing lack of veracity than to the issue of guilt
        
        The restriction applied by s. 104(1) does not bite where the evidence of propensity is not directed to untruthfulness but to the issue of commission of the offence (Daly [2014]
        
        In such cases, s. 101(1)(e) permits propensity evidence to be adduced against an accused by a co-accused whatever the nature of the defence, provided that it is of 'substantial probative value' in relation to an issue between them — though this will frequently occur because one blames the other
        
        Criminal Justice Act 2003, s. 104
        
        Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence.
        
        Only evidence—
        
        Which is to be (or has been) adduced by the co-defendant, or
        
        Which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,
        
        is admissible under section 101(1)(e)
        
        Admissible only where 'Impossible' or 'Difficult' to Understand Other Evidence and Value for Understanding Case as a Whole is 'Substantial'
        
        If the court or jury would find it 'impossible or difficult' to understand the other evidence in the case without it, provided also that its value for understanding the case as a whole is substantial
        
        Just saying that evidence is helpful is not enough to render it explanatory, nor is it sufficient that the jury might wonder about a gap in the evidence that the bad character evidence might fill
        
        To say that the evidence fills out the picture is not the same as saying that the picture is impossible or difficult to see without it
        
        For example, it was held that evidence of the circumstances in which D had been disqualified from driving was explanatory evidence where D referenced the fact of his disqualification in order to explain why he had initially falsely claimed not to have been driving a vehicle that had been driven at V
        
        This would seem to fall short of the statutory requirement that other evidence in the case was 'impossible or difficult' to understand without it
      - Weight of Character Evidence and Judicial Direction
        
        The key stages in interpreting the bad character provisions of the CJA 2003 are as set out
        
        The judge determines admissibility under the relevant statutory gateway(s).
        
        Where it is raised, the judge also determines any question of exclusion in respect of prosecution evidence, for example, under s. 101(3) or 103(3) of the CJA 2003, or s. 78 of the PACE 1984.
        
        Once evidence of bad character is admitted, questions of weight are for the jury, subject to the judge's power to stop the case where the evidence is contaminated (under s. 107 and the judge's direction as to the use to which the evidence may be put
        
        The direction on the evidence is of paramount importance. If the ground of the trial has shifted since the evidence was admitted, it may be necessary to tell the jury that it is of little weight
        
        The Court of Appeal also expressed the view that, if evidence of marginal relevance was tendered under s. 101, it was potentially difficult for the judge to deal with in summing-up, and this should be borne in mind by the parties
        
        This reflects observations in the earlier case of Hanson [2005] , which was approved in Edwards, where the Court stated that the purpose of the legislation was 'to assist in the evidence-based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice'
- - - - Statutory 'Gateways'
        
        Criminal Justice Act 2003, s. 101
        
        Evidence of the defendant's bad character is admissible ALLOWED if, but only if—
        
        (a) all parties to the proceedings agree to the evidence being admissible,
        
        (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,
        
        (c) it is important explanatory evidence,
        
        (d) it is relevant to an important matter in issue between the defendant and the prosecution,
        
        (e) it has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant,
        
        (f) it is evidence to correct a false impression given by the defendant, or
        
        (g) the defendant has made an attack on another person's character.
        
        The court must not admit evidence 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
        
        On an application to exclude evidence 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
        
        Overview of Gateways (c) to (g)
        
        Section 101(1)(c) broadly reflects the common law on 'background' evidence, and is dealt with
        
        Section 101(1)(d), admits bad character evidence that is merely 'relevant' to an important issue between the accused and the prosecution
        
        This includes, but is not limited to, evidence showing the accused's propensity, or to demonstrate untruthfulness
        
        The risk of prejudice is dealt with by s.101(3) whereby evidence is to be excluded if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
        
        Section 101(1)(e) permits a co-accused to adduce evidence of the accused's bad character where it has substantial value in relation to an important issue between them
        
        Section 101(1)(f) (evidence to correct a false impression)
        
        s. 101(1)(g) (evidence to meet an attack on another person) this gateway also attracts the exclusionary power in s. 101(3)
        
        Where the evidence of bad character is disputed, it requires the court to consider its relevance and probative value on the assumption that it is true, unless it appears that no court or jury could reasonably find it to be true
        
        The significance of the purpose of admissibility in relation in particular to gateways (d) and (g) may be somewhat diminished once the evidence is before the jury
        
        Propensity as an Issue Propensity
        
        To commit offences 'of the kind charged' is taken to be an issue between the defence and the prosecution except where the propensity makes it no more likely that the accused is guilty (CJA 2003, s. 103(1)(a)), and propensity to untruthfulness is to be so taken unless it is not suggested that the accused's case is untruthful in any respect (s. 103(1)(b))
        
        This appears to be a 'deeming' provision, given that propensity is not an issue in the normal sense so much as a means of proving what is in issue
        
        Finding of Effective Good Character a Fact-specific Decision
        
        It is not possible to be explicit as to what manner of minor blemishes an accused may now have and still be 'deemed' to be a person of effective good character under Hunter as interpreted in Morgans
        
        The thrust of Hunter is that all decisions are fact-specific so that one case is unlikely to provide much guidance to another
        
        Minor offending or misconduct that has no relevance to credibility or propensity would seem unlikely to provide an impediment to a finding of effective good character, for example where the charge is serious sexual assault and the accused has a minor motoring conviction
        
        More difficult are cases of old convictions or cautions that are relevant either to credibility or propensity, but of little weight
        
        A caution for shoplifting when D was a teenager was considered to be no bar to a good character direction in light of the strong evidence of her positive good character ever since
        
        Direction on Credibility where Accused Does Not Testify
        
        In Vye [1993] the Court of Appeal further decided that where the accused has not given evidence at trial but relies on admissible exculpatory statements made to the police or others
        
        The judge should direct the jury to have regard to the accused's good character when considering the credibility of those statements
        
        The Court thought it 'logical' that such evidence should be taken into account, but drew attention also to the judge's entitlement to make observations about the weight to be given to such exculpatory statements in contrast to evidence on oath
        
        This 'clearcut' rule in Vye represented the best policy
        
        False Impression and Corrective Evidence
        
        There is no definition of what constitutes a 'false' impression
        
        Gateway (f) was intended to perpetuate, and improve on, previous legislation allowing evidence of bad character to be given where D put his or her character in issue
        
        The purpose of gateway (f) is to set the record straight where D would otherwise obtain the 'undeserved advantage' of a favourable but false impression
        
        The judge should also consider whether the accused has attempted to mislead the jury in a way that goes beyond denying the offence, because, if that were the basis for admitting bad character through the gateway, it would apply to virtually every defendant
        
        For example, where D's claim in interview to have been no more than a loving uncle to his niece was to be regarded as a mere denial, and the evidence of his unhealthy interest in young girls was admissible only via gateway (d) and, because of an attack on the niece's character, gateway (g))
        
        Convictions as Evidence of Facts on Which Based
        
        The convictions of one person were not admissible as evidence of the facts on which they were based at the subsequent trial of another
        
        One person's conviction for theft inadmissible as evidence of such theft at the trial of another charged with handling the stolen goods);
        
        The PACE 1984, s. 74(1), reversed the common-law rule, and s. 74(2) created a persuasive presumption: the person (other than the accused) convicted of an offence in any court in the UK or by a Service court outside the UK shall be taken to have committed that offence unless the contrary is proved
        
        The legal burden is borne by the party against whom the presumption operates; and if borne by the accused, may be discharged by proof on a balance of probabilities
        
        Section 74(3) creates a similar presumption in the case of the previous convictions of the accused, provided that evidence is admissible of the fact that the accused has committed the offence in respect of which he or she has been convicted
    - - The Court of Appeal noted that the common-law restrictions with regard to evidence resulting in an acquittal had never applied to evidence relevant to the defence of an accused person
    - - Criminal Justice Act 2003, s. 100: Gateways to Admissibility
        
        In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—
        
        it is important explanatory evidence,
        
        it has substantial probative value in relation to a matter which—
        
        is a matter in issue in the proceedings, and
        
        is of substantial importance in the context of the case as a whole, or
        
        all parties to the proceedings agree to the evidence being admissible
        
        Except evidence of the bad character of a person other than the defendant must not be given without leave of the court
      - Section 100 regulates all aspects of the use of the bad character of a person other than the accused, in chief or in cross-examination whether or not the person appears as a witness
      - Thus, it covers the character of a person whose statement is admitted under an exception to the hearsay rule and the character of the deceased in a trial for murder