#15002 - Character Evidence - Criminal Procedure and Evidence

Supervision 6 – Character Evidence

Evidence of the defendant’s good character

• A defendant may call witnesses to testify to his good character or cross-examine the Crown’s witnesses (Rowton).

• If good character is raised, judge has to deliver a Vye direction to the jury.

  • Direction on credibility and propensity.

    • Credibility only required if D gave evidence.

• Character witnesses may not give their personal opinion of the defendant.

  • Must be given as evidence of reputation (Rowton).

• Aziz suggests that if no similar previous convictions, good character direction warranted.

  • Can be given if previous offences are old and irrelevant (Timson).

  • No direction if it is an affront to common sense.

  • Lawson reigns in expansive approach to good character.

  • Direction tailored to facts of the case. Can be qualified if D has aspects of bad character as well (Doncaster).

• Hunter differentiates between absolute and effective good character.

  • Effective good character – previous convictions are old, minor and have no relevance to the charge.

• Defendant has to raise the issue of good character.

  • Defence counsel has duty to ensure issue is raised (Thompson).

• In joint trials, if D1 has good character but D2 does not, single direction has to be given about D1 (Vye).

• Differing authority as to how serious to treat failure to give direction:

  • Seriously (MacDonald).

  • Not necessarily quash conviction (Jagdeo Singh).

• If defendant introduces evidence of good character, prosecution may call evidence in rebuttal (e.g. Rowton).

Introducing a non-defendant’s bad character

• S.100(1) allows bad character evidence of a non-defendant when:

  1. It is important explanatory evidence, or

  2. It has substantial probative value in relation to a matter which –

     1. Is a matter in issue in the proceedings, and

     2. Is of substantial importance in the context of the case as a whole, or

  3. All parties to the proceedings agree to the evidence being admissible.

  • Unless all parties consent, the leave of the court must be sought before any such evidence may be admitted (s.100(4)).

• Cross-examination undermining a witness’s credibility may be permissible if one of the three conditions under s.100(1) have been met.

• ‘Important explanatory evidence’ defined in s.100(2): ‘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’.

• Substantial probative value explained in s.100(3).

  • Question is whether fair-minded jury would regard the evidence as affecting the worth of the witness’s evidence (Brewster).

    • Credibility needs to be an important issue in proceedings (Yaxley).

• Evidence will not be admitted if risk of satellite litigation (McAllister).

  • S.109 requires court to assume that bad character evidence is true.

• If judge has resolved that evidence satisfies s.100(1), he has no residual discretion to exclude the evidence (Brewster).

• Propensity evidence is admissible under s.100(1)(b)(i) (H / S (Andrew)).

• Evidence can be raised alleging a third party is the true culprit if s.100(3)(d) satisfied.

Evidence of the defendant’s bad character

• S.98, which opens Pt11 CJA 2003, provides for two situations in which the bad character rules described in the following paragraphs will not apply:

  1. Evidence which has to do with the alleged facts of the offence with which the defendant is charged, or

     • What has to do with alleged facts of offence will be judged temporally (Tirnaveanu).

     • Sometimes interpreted widely (e.g. McNeill – propensity?).

  2. Is evidence of misconduct in connection with the investigation or prosecution of that offence

• S.99 does not abolish discretion that courts generally enjoy to exclude prejudicial evidence under PACE, s.78.

• Bad character is ‘evidence of, or of a disposition towards … the commission of an offence or other reprehensible behaviour’ (s.98 and 112 CJA 2003).

  • Formal caution sufficient (S).

  • Fixed penalty notices not an ‘offence’ (Hamer).

  • Acquittals may be admissible as evidence of bad character (e.g. Z).

    • Under old law, one previous acquittal sufficient (Barney).

• Bad character evidence does not need to be heard at start of trial (Hewlett).

• Potential overlap with s.27(3) Theft Act 1968 if D charged with handling.

  • Convictions may be admitted under s.27(3)(b) to show guilty knowledge or s.101(1)(d).

• Prosecution must give advance notice if they intend to adduce bad character evidence (s.111(2)).

The seven gateways

• Seven situations in which bad character evidence may be admitted (s.101(1)):

  1. All parties to the proceedings agree to the evidence being admissible,

  2. 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,

  3. It is important explanatory evidence,

     • Important explanatory evidence defined in s.102.

     • This gateway is restrictive (Beverly / Saint).

  4. It is relevant to an important matter in issue between the defendant and the prosecution,

     • Evidence going towards credibility can get in through this gateway if it would be fair to admit it (s.101(3)).

     • BUT credibility needs to be in issue.

  5. It has substantial probative value in relation to an important matter in issue between the defendant and co-defendant,

     • Prosecution cannot use this gateway (s.101(1)(e)).

     • Arises where cut-throat defences are used (e.g. De Vos).

     • One co-accused can show that the other is likely to be untruthful if his defence has been undermined (s.104(1)).

     • Judge has no discretion to exclude evidence admitted via gateway (e) (Randall).

  6. It is evidence to correct a false impression given by the defendant, or

     • E.g. claiming untruthfully that he had always led a ‘good, clean life’ (Maxwell) or asserting falsely that he had no criminal record (Marsh).

     • Circumstances in which D will be responsible for an assertion found in s.105(2).

     • D can retract statement (s.105(3)).

     • Crown cannot trap D into making assertions (B (Richard)).

  7. The defendant made an attack on another person’s character.

• Court must state reasons for rulings on matters affecting bad character (s.110).

• Prosecution must give advance notice to D if they attend to adduce bad character evidence (s.111(2)).

  • Exceptionally, this can exclude evidence (e.g. Musone – under (e)).

  • Courts will be slow to interfere with failure to give notice, provided that judges had directed themselves correctly (Hanson).

• Example of judicial direction in Norris.

• Court made clear in Hanson that it did not wish to be confronted by floods of appeals against trial court rulings on the admission of bad character.

Gateway (d)

• There needs to be a live ‘important matter in issue’ between the parties (Whitehead). Defined in s.112.

• Matters in issue, according to s.103(1), fall into two types:

  1. 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;

     • Evidence must make it more likely that D is guilty (Explanatory Notes).

  2. 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.

• ‘Propensity to commit offences’ defined in s.103(2): A defendant’s propensity to commit offences of the kind with which he is charged may be established by evidence that he has been convicted of -

  1. An offence of the same description as the one with which he is charged, or

     • ‘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’ (s.103(4)(a)).

  2. An offence of the same category as the one with which he is charged.

     • ‘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’ (s.103(4)(b)).

       • Criminal Justice Act 2003 (Categories of Offences) Order 2004 established ‘theft’ and ‘sexual offences to those underage’ category.

       • Hanson – circumstances demonstrating probative force not confined to those sharing striking similarity. Modus operandi must have significant features shared by offence charged. USE THE HANSON TEST for credibility.

• Automatically assume propensity if s.103(2) satisfied. If not satisfied, use Hanson (e.g. lying is not part of offence).

• No minimum number, but the fewer the number of offences, the weaker the evidence of propensity (Hanson).

  • Imwinkelried criticises cases of ‘single act propensity’ (lecture).

• Propensity evidence cannot be admitted if, by reason of time, it would be unjust (s.103(3)). Disapply s.103(2).

• Three stage test in Hanson:

  • Does the history of conviction establish a propensity to commit offences of the kind charged?

  • Does that propensity make it more likely that the defendant committed the offence charged?

    • Depends on what is being contested in the case.

  • Is it unjust to rely on the conviction of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

    • Conflates discretions in s.101(3) and 103(3).

• Irrelevant if past offences are unpleasant (Smith).

• Offences committed afterwards fine (Adenusi).

• Foreign convictions fine (Kordanski).

  • Must be authenticated in accordance with Crime (International Co-operation) Act 2003.

• Uncharged conduct can be used if jury is persuaded beyond reasonable doubt that it took place (Ngyuen / Edwards and Rowlands).

  • But risk...