#13785 - Character Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Character Evidence

When to raise Character Directions?

• You consider character witnesses at the start. For example, if D1 has bad character against him, but D2 and D3 are both of good character, they'll get good character directions, and D1 won't. D1 should seek separate trials on basis of "prejudiced or embarassed" by his BC. Unlikely to succeed due to R v Grondowski.

• At the end of evidence, but before closing speeches so you know what to say!

Good Character

• There can only be general character evidence, not of specific incidents or personal opinions.

• R v Vye - Good character can prove:

  • Credibility (Mandatory if D give any evidence - interview, statements, testifies)

  • Lack of Propensity (Always mandatory, whether or not D gives evidence)

• If D is of 'blemished character', a GC direction should be given even if:

  • Minor or long pat convictions;

  • No convictions but admits other criminality (eg: as alternative charge);

  • D has no convictions but is charged on multiple offences, and pleads G to a lesser one.

Bad Character

• s98 CJA 2003 - "Evidence of, or disposition towards misconduct" other than that:

  • To do with the "facts of the offence"

  • To do with the "investigation or trial"

• s112 CJA - Misconduct is "Commission of an offence or other reprehensible behaviour" ot

  • Legitimate behaviour cannot be "reprehensible" however peculiar it is - EG: In R v Weir attraction to young girls was not reprehensible.

  • This includes past acquittals because acquittal is procedural bar, not conclusive proof of innocence per R v Z and R v Renda.

• If it falls outside of this definition, it is admissible.

Defendant's Bad Character

Offences Committed when under 14

s108 CJA 2003 - Where D is 21yo+, and P wants to adduce offence committed when D was <14yo, it is only admissible if both offences are triable only on indictment and the interests of justice require admission.

Evidence of D's bad character is admissible if, but only if:

Leave of Court NOT required:

1. s101(1)(a) - Agreement of All Parties (P, D and co-D's).

2. s101(1)(b) - Blurts it Out - Evidence adduced by D

   1. D may wish to adduce it:

   2. To come clean about an 'old' conviction to get a good character direction;

   3. To demonstrate D has never been convicted of a 'similar' offence for a good character direction;

   4. To put forward that he has an alibi for the offence charged because he was in custody for another offence.

Leave of Court IS required:

3. s101(1)(c) - Context - Important Explanatory Evidence

   1. s102 defines it as "important explanatory evidence" if

      1. Without it the court/jury would find it impossible or difficult to properly understand other evidence in the case; and;

      2. Its value for understanding the case as a whole is substantial.

   2. E.G.: In a "fleeting glanse" case, W recognised D running past because D was W's drug dealer per R v Edwards (Karl).

4. s101(1)(d) - Done it before Gateway - Important Matter in issue between P and D

   1. The principal matter in issue in criminal proceedings is whether D did the act or omission charged against him, and if he did whether he did so with the relevant state of mind (intentionally, recklessly, knowingly, wilfully, dishonestly, with fraudulent intent, etc.) or whether he did so by mistake, by accident, through inadvertence, or even in a state of automatism. If this is satisfied, must then turn to defences - Whether D did the act with the requisite intention but was acting in self-defence, duress, necessity, provocation (murder) or diminished responsibility (murder)

   2. s103 defines "important matter in issue" as including:

(a) 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;

(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

R v Hanson, P, Gilmour - Propensity to be untruthful is distinct from dishonesty. Thus, only when D pleads NG, but then jury disbelieve is this untruthful.

(2) Where subsection (1)(a) applies, a defendant’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.

CJA 2003 (Categories of Offences) Order 2004:

Offences related of a sexual nature (under 16s)

Offences related to theft

R v Weir - D charged with sexual assault on child under 13. Properly admitted caution for taking indecent photographs of a child even though not included in the Order. - This is because it "may (without prejudice to any other way of doing so)...

NB: These have fallen out of favour, in favour of description test!

(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4) For the purposes of subsection (2)—

(a) two 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;

(b) two 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 Secretary of State.

(5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6) Only prosecution evidence is admissible under section 101(1)(d).

• Propensity to Commit KIND of offences charged

  1. R v Hanson established the following criteria:

     1. Does D's PNC establish a propensity to commit KIND of offences charged, and does that make it more likely D committed the offence charged?

     2. Where convictions are of same description or category, would it be unjust to rely on them?

     3. If admitted, would the proceedings be unfair to D?

  2. The fact they are in the same category is not of itself sufficient - There must be a degree of similarity between the offences.

• Propensity to be Untruthful

5. s101(1)(e) - "E Did it" Provision - Important Matter in Issue between D1 and D2'

   1. Co-Defendant is someone charged in the same proceedings per s112 CJA.

   2. This is the "cut throat" defence gateway. It does not go to propensity, only credibility!!!

   3. It is admissible if and only if it has substantial probative value in relation to a matter in issue between D1 and D2.

s104 CJA - 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 codefendant’s defence.

(2) Only evidence—

(a) which is to be (or has been) adduced by the co-defendant, or

(b) 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).

6. s101(1)(f) - False Impression - By P to correct a False Impression by D

   • Only available to P. (So Co-defendants only have one gateway - s101(1)(e))

   • A false impression is defined in s105 CJA.

   • It includes express and implied assertions. It also includes conduct, which includes the Defendant's dress. It includes false impressions given when questioned under caution, on charge, made by a D's witness in EiC or any witness in XX by D, any statement made out of court. Regardless of whether D gives evidence.

   • D will not be treated as responsible for making an assertion if he withdraws it, or disassociates himself from it per s100(3).

   • R v Nye - If D has spent convictions, D is not as of right entitled to treat himself as good character - It is one of discretion for the trial judge having regard to the nature of the spent conviction and the time that has elapsed.

7. s101(1)(g) - Gets at the Witness - Attack by D on another's character

   • Only available to P.

   • s106 defines what is an attack on another's character. Includes EiC, XX by D or counsel, and imputatons about others given when D is questioned under caution, or on being charged.

   • The attack means that someone else has committed the offence, or someone has behaved or is disposed to behave in a reprehesible way per s106(3).

   • In cases of rape, D can allege consent without placing himself in peril of XX per R v Sheean. D is not accusing anyone of an offence, merely denying one of the constituent elements of rape (absence of consent) But in Renda judge can admit it for his disparaging attack on complainant's evidence.

   • It does include self-defence as it's accusing another of an offence per R v Lamaletie & Royce.

   • It includes attacks on police in the nature of their investigation (eg: making up the allegations) per R v Tanner. There is a distinction between an emphatic denial of guilt and alleging that a P witness is a liar (not an attack), and alleging serious miconduct on the police (is an attack).

   • An emphatic denial of the charge is not regarded as an imputation (R v Rouse)

   • Putting to a man he was intoxicated and swearing is not an imputation per R v McLean.

   • Evidence given in D's XX by P is part of P's case, and thus cannot amount to imputations by D in his case - Otherwise counsel would trick D into admitting his own bad character.

   • Judge ought to exercise...