#15434 - Character Evidence - BPC Criminal Evidence

Syllabus 15: Character Evidence

Evidence of good character is admissible as of right to show

• That accused is less likely to have committed the offence because he lacks the propensity to do so

• That accused is more likely to be truthful than a person who is not of good character

Key case is Hunter [2015] EWCA Crim 631

• The matter of directions (if any) to give in respect of D who are no longer entitled to a full direction is regarded in Hunter as a matter for the trial judge’s general discretion, based on need to ensure a fair trial

CA rejected the notion that mere fact that no evidence of bad character was tendered was of itself a reason for giving a good character direction

CA noted that following the liberalisation of what can be admitted as evidence of bad character, the law has moved on

• Previously under Aziz [1996], it is sufficient to establish good character that D had no previous convictions

• Now, accused who does not have previous convictions may nevertheless have bad character by reference to his other misconduct or a disposition towards misconduct

• Hunter created three types of direction: absolute, mandatory effective, and discretionary effect

Accused entitled to full good character directions if

• He has ‘absolute good character’, i.e. no previous convictions and no other reprehensible conduct is alleged, admitted or proven

• He has ‘effective good character’

  • Requires a judicial decision

  • Judge may modify directions to the extent that necessary to reflect matters that preclude accused of being of absolute good character, and to ensure that jury is not misled

  • Judge should have regard to all circumstances of the offence and offender, and decide what fairness to all dictates

  • A person cannot automatically expect to be treated of effective good character on the ground that his convictions or cautions have no relevance, or are old, or are minor instances of offending

  • While each decision is fact-specific, most likely that minor offending or misconduct that has no relevance to credibility or propensity would seem unlikely to prevent effective good character

Where the effective good character is not as ‘effective’, i.e. not as minor convictions, or not as old or previous conviction is not spent

• A modified good character direction may, in the judge’s discretion, be given, especially if fairness suggests it is appropriate (an ‘open textured’ direction)

Accused who has no previous convictions or cautions, but whose other misconduct is relied on by P as part of their case, will attract a direction based on the use that may be made of the bad character evidence

• Trial judge has a discretion to weave into the direction relevant observations about D’s residual good character, where to do so would not render the totality of the direction an absurdity

• ‘Principle of absurdity’ derives from Lord Steyn’s speech in Aziz: judge should never be obliged to give a ‘meaningless or absurd’ direction

• Lord Steyn: ‘fairness requires judge should to direct jury about good character because it is evidence of probative significance’

Form of the direction

• Standard two-limb direction:

  • Direction on credibility

  • Direction on propensity

• Hunter: what weight is to be given to each limb is a matter for the jury

  • CA stressed the importance of judge tailoring the terms of direction to the case

• A first limb direction should not be implied from a direction on the second limb

• Good character evidence of witness cannot be adduced (oath-helping) unless the evidence becomes relevant (Lodge); but good character evidence of D can be brought

Under CJA 2003, Parliament’s intention is that ‘evidence of bad character would be put before juries more frequently than had hitherto been the case’ (Edwards [2006] 1 WLR 1524)

CJA 2003, s.101: evidence of bad character of an accused is admissible if it falls within a specific statutory permission in s.101(1)(a) - (g)

• Other evidence which does not constitute evidence of bad character but shows accused in a bad light admitted on normal principles of relevance

CJA 2003, s.98 defines ‘bad character’

• Evidence of misconduct

  • ‘Misconduct’ defined in s.112(1): commission of an offence or other reprehensible behaviour

  • Any evidence suggesting guilt of an offence is potentially evidence of misconduct, regardless of whether accused has been charged/convicted of it

  • Clarke [2015] 2 Cr App R 74: evidence that implies bad character not subjected to s.101 if relied upon by P for an independent reason that does not relate to bad character, but this must be consistent throughout the case (i.e. if XX makes reference to implied bad character, evidence excluded)

• Exceptions:

  • Evidence related to alleged facts of the offence with which D is charged

  • Evidence of misconduct in connection with the investigation or prosecution of that offence

Convictions

• Previous convictions are the most commonly used evidence of misconduct

• Humphris [2005]: where convictions are relied upon, the value of the evidence will depend on the proof of the circumstances of the offence, not merely upon the actual previous conviction and the matter formally established thereby, and such circumstances will require to be properly proved

• Where there circumstances of the offence are of the essence, there is an obligation on the party relying upon them to be specific

  • Good practice for details to be available if required

• Offences occurring subsequent to the offence charged may be admissible

• Evidence of propensity exhibited after the offence may be admissible, provided the propensity is expected to be continuing

• A conviction resulting from a guilty plea during the instant investigation is also a conviction for these purposes

• Convictions before a foreign court may be adduced as evidence of bad character under CJA 2003, s.103(7) - (11)

Reprehensible

• Renda [2006] 2 All ER 553 (CA): connotes some element of culpability or blameworthiness

  • Unfit to plead is not enough to extinguish culpability, unless there is direct evidence to the contrary

• Morally lax conduct is not necessarily reprehensible

• Distinguish from irritating, inconvenient or upsetting to another

• e.g. gang membership, writing violent rap lyrics (in the context of pseudo-gang beating)

s.99(2): a person’s reputation is admissible for the purposes of proving his bad character

‘Has to do with’ alleged facts

• Loose phrase that is broad enough to cover alleged offences that form part of the sequence of facts for which the accused is charged of

  • E.g. the fact that an offence of rape follows on from an assault that is not made the subject of any separate charge is not bad character, and can be admitted if relevant

• Green [2009] EWCA Crim 1688: in drugs cases, ‘lifestyle’ evidence may be received to support an inference that the accused’s income must be derived from drugs

‘Misconduct in connection with the investigation’

• Not limited to conduct by the prosecuting authorities

• Question of purpose is not relevant to the question of admissibility under s.98(b)

Crim PR Part 21 sets out the rules of notification that applies to all parties wishing to adduce evidence of bad character, and to accused’s application to exclude bad character evidence

• Gives effect to CJA 2003, s.111(2)

• Accused may waive entitlement to notice

• Court has power to allow notices to be given in a different form or time, if in the interests of justice

Crim PR r 21.2: General requirement

• (1) A party who wants to introduce evidence of bad character must

(a) if evidence of non-D’s bad character, make application under r 21.3

(b) if evidence of D’s bad character, make application under r 21.4

• (2) Application or notice must

  • Set out the facts of misconduct on which the party relies

  • Explain how that party will prove those facts, if another party disputes them, and

  • Explain why evidence is admissible

Crim PR r 21.3: Requirements for non-D’s bad character

• (2) Serve application on court officer and other party

• (3) Serve application as soon as reasonably practicable, and not more 14 days after P discloses material on which application is based

• (4) Party who objects must

  • Serve notice on court officer and the other party not more than 14 days after service of application

  • Explain (where applicable): which fact is admitted and disputed; why evidence is not admissible; any other objection

• (5) (b) Court must not determine application unless each party there than the application is present or has had at least 14 days in which to serve a notice of objection

• (5) (c) Court may adjourn application

Crim PR r 21.4: Requirements for D’s bad character

• (2) Serve application on court officer and other party

• (3) P who wants to introduce such evidence must service notice no more than

  • (a) 28 days after D pleads NG in Magistrates’ Court

  • (b) 14 days after D pleads NG in Crown Court

• (4) Co-D who wants to introduce such evidence must serve application as soon as reasonably practicable, and not more 14 days after P discloses material on which application is based

• (5) Party who objects must

  • Serve notice on court officer and the other party not more than 14 days after service of application

  • Explain (where applicable): which fact is admitted and disputed; why evidence is not admissible; any other objection

• (6) (b) Court must not determine application...