#10408 - Character Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

CHARACTER OF THE DEFENDANT

DEFENDANT'S GOOD CHARACTER

Vye direction

1. the credibility limb: direction as to relevance of D's good character to D's credibility only if

   1. give if D has given evidence; OR

   2. give if D does NOT give evidence but relies on own pre-trial mixed statements / answers

      • N.B. wholly exculpatory statements do not entitle D to the credibility limb, as they are not admissible as truth of contents jury has nothing to assess in terms of credibility

2. the propensity limb: direction as to relevance of D's good character to the likelihood of him having committed the offence charged (always given)

The Nye direction

• applies if:

1. D has pre-cons; AND

2. those pre-cons are irrelevant OR spent; AND

3. fairness demands that D be treated as if no pre-cons

• = modified Vye direction (CANNOT mislead jury into thinking D has no pre-cons)

• matter for judicial discretion

Which direction will D get?

• Vye

1. D of good character

2. D of positive good character (evidence of general reputation)

3. D of good character, jointly tried with co-D of bad character

4. D formally cautioned, no pre-cons - judge may decline to give propensity limb

• modified Vye

1. D charged with multiple offences pleads G to lesser alternative offence + is convicted on greater offence

NOT entitled to direction if plead G to count that is NOT lesser offence

• Nye

1. D with irrelevant / spent pre-cons

• modified bad character direction (good character direction = affront to common sense)

  • give if D does NOT have pre cons OR relevant pre-cons BUT:

1. shown at trial to be G of criminal conduct; OR

2. evidence of bad character admitted under CJA 2003

DEFENDANT'S BAD CHARACTER (13-25 - 13-103)

Relevance of bad character

• evidence of bad character may be relevant in following ways

1. character as a fact in issue: D's character itself is a fact in issue

e.g. Firearms Act - offence for person imprisoned in past to carry firearm

2. character relevant to a fact in issue: D's character probative of a fact in issue

3. character relevant to credit: D's character relevant to his credibility

Definition

• bad character (s98 CJA 2003)

1. evidence of misconduct

2. evidence of disposition towards misconduct

3. evidence of reputation for misconduct

• "misconduct" (s112 CJA 2003)

1. evidence of the commission of an offence:

   1. a pre-con

   2. another count on the indictment (s101(d) CJA 2003)

   3. an offence for which have been investigated but for which D has never been prosecuted

   4. an offence of which D has been acquitted (s101(d) CJA 2003)

2. other reprehensible behaviour (court decides what = reprehensible)

1. an offence for which have been investigated but for which D has never been prosecuted

2. an offence of which D has been acquitted - narrow (s101(d) CJA 2003)

BAD CHARACTER NOT COVERED BY CJA 2003 (s98 CJA 2003)

• following governed by common law:

1. evidence that has to do with the facts of the offence with which D is charged (s98(a))

1. evidence must be admitted

2. "to do with" =

   • commission of offence OR other offences OR other reprehensible behaviour

   • test: is there a nexus in time between charged offence + misconduct?

2. evidence of misconduct in connection with the investigation / prosecution (s98(a))

BAD CHARACTER UNDER CJA 2003

Offences committed when D was a child (s108)

• evidence of offences committed by D when under 14 are not admissible unless:

1. previous and current offence both indictment only offences; AND

2. court satisfied interests of justice require

Assumption of truth re: relevance / probative value in seven gateways (s109)

• probative value / relevance of evidence operates on the assumption that it is true UNLESS no court / jury could reasonably find it to be true

The seven gateways (s101(1) CJA 2003)

(s101(1)(b)) - Evidence adduced or elicited by D

• how can evidence be admitted?

1. as part of case; OR

2. as a result of XX if the Q is intended to elicit evidence of bad character

• when would the gateway be used?

1. tactical decision by D:

   1. put pre-cons before jury to boost credibility AND get modified good character direction; OR

   2. D's evidence involves attack on credibility of another person (so pros will apply under s101(g) anyway)

s101(1)(c), 102 - Important explanatory evidence

• the test (s102)

  • = important explanatory evidence if:

1. without it tribunal of fact would find it impossible OR difficult to properly understand other evidence in case; AND

2. substantial value for understanding case as a whole

• impossible or difficult

  • fact the jury might wonder about a time lag in reporting an incident

  • evidence of motive to show that it is more probable that D committed the offence

• N.B. overlap with s98(a)

ss101(d), 103 - Important matter in issue between D and pros

• basic test

  • admissible if:

1. important matter in issue

   • = matter of substantial importance in context of case as a whole (s112(1))

----AND----

2. relevant (probative value - mere relevance) to one or more matters in issue:

   1. D's ID

   2. AR of offence

   3. MR of offence

   4. any defences

   5. propensity to commit offences may be

   6. propensity to be untruthful may be

• similar fact evidence (CL)

  • still inform case law on CJA 2003

  • evidence of bad character admissible if:

    • probative force sufficiently great to make it just to admit it notwithstanding that it is prejudicial in tending to show D was guilty of another offence:

1. on the indictment; OR

2. NOT on the indictment only if it is strikingly similar

• propensity to offend

  • INadmissible if propensity makes it no more likely D is G of charged offence (s103(1))

  • evidence of pre-cons

    • propensity to offend can be established by (NOT automatic):

1. offences of same description as that charged (s103(2)(a))

   • statement of offence in written charge / indictment = in same terms

2. offences of same category as that charged (s103(2)(a))

   1. theft category: theft, robbery, burglary, making off without payment etc.

   2. U16 sexual offences category: sexual offences where C under 16 when offence committed

3. other pre-cons ("without prejudice to any other way" - s103(2))

N.B. applies to offences committed after charged offence

• evidence of other reprehensible behaviour

("without prejudice to any other way" - s103(2))

• propensity to offend can be established by misconduct:

1. that is the subject of another count on the indictment

2. for which D has never been prosecuted

3. of which D has been acquitted

4. misconduct criminal offence

evidence admissible even if D disputes facts - must be sufficient evidence for it to be possible to find D G, then jury decides if true

• determining admissibility of evidence of propensity to offend (R v Hanson)

1. 3 Qs:

   1. does the history of convictions establish a propensity to commit offences of the kind charged?

   2. does that propensity make it more likely that D committed the offence charged?

   3. is it unjust to rely on the evidence of misconduct AND in any event, will the proceedings be unfair if they are admitted?

2. no minimum number of events required BUT the fewer, the more probative force required e.g. greater degree of similarilty

3. old convictions likely to be unfair, unless demonstrate continuing propensity

4. if D has multiple convictions each conviction should be examined in turn

5. sentence probative OR admissible

6. if pros relying on a pre-con:

1. decide when give notice to rely on fact of conviction alone OR fact + circumstances

2. fact = enough if offences identical

3. fact + circumstances - need to support with statement / first-hand evidence from V

• propensity to be untruthful

  • INadmissible if propensity makes it no more likely D's case untruthful in any respect (s103(1))

  • admissibility (R v Campbell)

    • only admissible under s101(1)(b) if:

1. telling lies is an essential element of the offence charged; AND

2. the lying is in the context of committing criminal offences (in which case evidence likely to be admissible under s103(1)(a))

• admissibility of bad character for guilt AND credibility (R v Campbell)

  • if propensity...