#10523 - Character Evidence - Criminal Procedure and Evidence

1. Credibility

2. Propensity

Often assumed that those who are dishonest in criminal acts are untruthful in testimony – there have been studies to show the two aren’t so easily linked.

Evidence relating to character of own witness:

• General rule that you cannot call evidence to reinforce the credibility of your own witnesses.

• Robinson: Prosecution called educational psychologist to testify the accused was not suggestible or overly imaginative, this was not allowed.

  • Cf. DS where it was normal to bring up profession of witness as a Church of England clergyman.

Disclosure of witness’ BC

• Crown must disclose information on witnesses’ BC to defence.

• Failure to disclose can lead to quashing where credibility was key issue in the case

  • Vasilou: quashed bc realistic prospect that the outcome might have been different if jury had known of the BC evidence.

  • Weigh w/ case evidence.

Impugning character of opponent’s witness

• Either s100 CJA

• Or cross-exam directed at bringing out previous convictions/disreputable behaviour/bias/lack of veracity. This is generally allowed so long as relevant o witness’ credibility and so long as not conducted unfairly or oppressively.

• Crim Pr Act 1965 s6 – witness can be asked about ‘any…misdemeanour’ – unclear whether this means anything…even offences not related to dishonesty.

Rehabilitation of Offenders Act 1974

• Limits range of previous convictions that can be introduced into evidence. Crim Practice Directions require crim courts to respect to policy underlying it.

• Spent convictions should not be referenced when that can be avoided + no reference w/o authority of judge which should only be given in the interests of justice.

• If the issue of good character is raised then the judge will have to give a Vye direction indicating how the jury should use the information.

What constitutes admissible character evidence?

• Rowton: R indicted for indecent assault and evidence was given from pros witness that, in the witness’ opinion, R was capable of gross indecency and immoral acts.

  • This was not allowed – was evidence of opinion rather than of general reputation.

• Redgrave: R wanted to adduce evidence of love letters he received showing disposition toward heterosexual rather than homosexual relationships after he was charged with harassing someone. CA ruled it inadmissible – common law restriction that the defence and prosecution cannot adduce evidence of disposition.

When will D be considered of good character?

• Anyone testifying to Ds good name and reputation, or D testifying to that effect.

• Wider approach in case law though

  • If no criminal record can = good character

  • Courts might look over discreditable conduct on Ds part when determining whether he merits a good character.

• Examples:

  • Durbin: D lorry driver appealed against conviction for importing 2.5m cannabis into the UK. He had 2 previous dishonesty offences both of which were spent. He admitted that he had told lies but that he had been engaged in smuggling computer parts rather than drugs. CA held there should have been good character direction.

  • Aziz: charge of income tax and VAT fraud of A, T and Y – A had no criminal record. Y also relied on lack of crim record but admitted to knowingly making false mortgage app and lying to customs officers. T had no previous convictions but acknowledged he had not declared full income and had not made employees declare full income.

    • Held that they should all get good character directions.

• Where they will be refused

  • Lord Steyn in Aziz: where they commit serious criminal behaviour similar to indictable offence.

  • Shaw: Good character direction would have been more qualified so as to do more harm than good – S had dealt drugs and been member of gang.

Form of the Direction

• D must raise good character issue by giving/calling evidence of good character or eliciting it from witnesses in cross-exam

  • Up to d counsel to ensure direction is delivered where D entitled.

• Judge must deliver a direction to the jury instructing them of the evidentiary significance of good character – the Vye direction

  • Say that good character is no defence to criminal charge

  • First direction: propensity – jury must be told that, by virtue of his good character, the accused might be less likely than otherwise to have committed the charged offence.

    • Always give propensity!

  • Second direction: credibility – where D gives evidence or does not give evidence + prosecution put a ‘mixed statement’ into evidence, the jury must be told they can take his good character into account in deciding whether to believe his evidence or the statement.

    • Give credibility when relevant to a matter in issue

• Where Co-Ds, still give good character even if other D doesn’t have such a direction.

• Qualified judicial directions:

  • Aziz: judge can convey a fair and balanced picture by adding words of qualification concerning any other proved or possible criminal conduct of the accused which might have emerged during the trial.

  • Doncaster: Where there is both good and bad character, you give both but alter them – a full good character direction doesn’t make sense where evidence of bad character was admitted. So giv BC direction to take account of lack of criminal record, for example (Rix LJ).

• When a good character direction isn’t properly given:

  • Appellate court will take into account but usually not enough to render unsafe by itself

  • Exceptional circumstance in Lloyd where the credibility of D and V were central to the case, V was of bad character, and the incident was 24 years before trial. Here, it was important to give conventional Vye direction = unsafe.

  • Brown v State of Trinidad and Tobago: Lord Brown said that, as a rule of thumb if there is a clash between the alleged truthfulness of the witnesses on each side, there should be a good character direction.

    • So not auto fatal to the conviction but should ask whether credibility is a central issue.

    • This is a pretty strong approach – doubted in Sealey PC.

  • NOTE – they are more strict in the PC cases because they have the death penalty in Trinidad and Tobago – much more cautious.

• Those who have committed an offence have tendency to reoffend.

• Offender profiling – courts not receptive to it.

• Lord Sumner in Thompson: “There is all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man”.

• Law Com studies that juries more likely to convict when told of previous similar convictions.

• Prejudice

  • Jurors inferring guilt from previous conviction

  • Moral prejudice in treating burden more lightly where it is thought D has less to lose.

Note: if BC evidence inadvertently revealed during the course of the trial, judge would have to consider the risk of prejudice to the accused and whether new trial necessary.

The old common law and statutory mix of rules criticised by Law Commission and Auld’s Review – produced inconsistency and unpredictable results, made tactical considerations of parties paramount and inhibited the defence. Auld: “It is not an honest system in that it does not do what it is claimed to do”.

• CJA 2003 effects a blank slate though s99 (abolishes all CL rules)

• S118(1) – rule about reputation still stands.

Structure of BC problems:

• Is it relevant?

• Is the evidence of bad character?

• Can you get it through the gateway?

• Should the evidence be excluded?

s.98 definition: “evidence of, or of a disposition towards misconduct on his part”

2 exceptions in s.98(a) and (b)

1. the evidence has to do with the alleged facts of the offence with which D is charged

   • Malone: prosecution allowed to adduce evidence of forged report by agent M hired to watch wife. Crown succeeded in arguing that it was within s98(a) so was not BC evidence – ‘to do with alleged facts of the offence’ because Crown’s case was circumstantial and based on marital difficulties.

   • Temporal relevance – Machado, ‘events contemporaneous with the alleged facts’.

     • Cf. Sule where they said temporal association is not necessary – wording extends to things giving motive for main offence (here, previous shootings suggesting killing was due to on-going feud).

   • Sometimes widely interpreted – McNeill: trial judge held that M breaching bail conditions and threatening housing officer was to do w/ alleged facts of offence of threat to kill she was on trial for.

     • This seems to be propensity though, so is questionable.

   • Limits in that Crown usually cant adduce evidence showing particular bad character propensity – Benguit, 2 witnesses could not testify in Ds trial for carrying weapon that he usually did. The point of that would not be to show he had a knife on the day but that he was the sort of person who carried one.

2. it is evidence of misconduct in connection with the investigation or prosecution of the offence

• E.g if accused sought to intimidate prosecution witnesses or bribe police.

“Evidence of, or of a disposition towards, misconduct”

• s.112 defines misconduct as the commission of an offence or other reprehensible behaviour.

• “Commission of an offence”

  • Formal cautions are within the meaning of BC (given to those who acknowledge guilt) but fixed penalty notices are not (Hamer).

• “Reprehensible behaviour”

  • Minor misbehaving will not be BC evidence.

  • Weir: appellants had been arrested on suspicion of assault but released without charge – not reprehensible. Also, Ws r/s with younger girl not per se reprehensible behaviour (no undue influence etc). So all admissible.

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