Law of Evidence

Character Evidence

The basic rule: pre CJA 2003

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused... Makin v Attorney General for NSW [1894]

Criticism of old law

Technical criticism
Confusing

mix of statute and common law Accused treated more favourably than other witnesses (particularly sexual complainants)

Radical criticism
Not

unfair to assume bad character is relevant Jury should be trusted to weigh it in the mix

Law Commission Papers

Evidence in criminal proceedings: previous misconduct of a defendant. Law Commission Consultation Paper No. 141. Evidence of bad character in criminal proceedings, Law Com No. 273, October 2001 (Cm 5257).

View of law Commission

Accepted technical criticism Rejected radical criticism

The

effects on juries of hearing about the defendants previous criminal record: a simulation study, [2000] Criminal Law Review 734; for the second study, on magistrates, see Appendix A of the Law Commissions Report.

The new law : CJA 2003

Defined bad character section 98 Common law abolished Non accused bad character permitted only with leave on limited grounds s100 Defendants bad character 7 gateways section 101

Defendants character - gateways

(a) agreement (b) given by defendant himself (c) important explanatory evidence (d) relevant to important matter btwn pros and def (e) Substantial probative value in matter btwn def and co-accused (f) correct a false impression given by def (g) def attacked another persons character

Definition of Bad character

Section 98 References in this Chapter to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct* on his part, other than evidence which(a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.

*misconduct defined in section, 112 (1) , "misconduct" means the commission of an offence or other reprehensible behaviour.

Misconduct

Evidence of, or disposition towards, the commission of an an offence

Previous

convictions and cautions Previous offences for which he has not been tried Commission of an offence for which he was acquitted?? R v Z [200] 2 AC 483

Misconduct

Evidence of, or disposition towards, other reprehensible behaviour

What

is reprehensible behaviour? EOD reprehensible if it invites censure, rebuke or reprimand.

Following found not to be reprehensible

As a 34 year old man, maintaining a sexual relationship with a 16 year old girl As a 39 year old man, making sexually suggestive remarks to a 15 year old girl Refusing to make a statement to the police after having been the victim of a knife attack Being detained by police on suspicion of committing a violent assault Embellishing a schoolyard incident involving a teacher so as to suggest the teacher had committed an assault Lawfully possessing an antique firearm Shouting at ones partner and infant son Failing to take medication prescribed to ameliorate the symptoms of a mental illness Attacking a person while ones mental capacity is so diminished that one is not legally responsible for ones own actions Evidence that a witness had taken an overdose

The following have been found to be reprehensible behaviour

Attacking a person where one is legally responsible grooming young children Being sexually promiscuous Fabricating a complaint of sexual assault Deliberately identifying an innocent person as the perpetrator of a burglary and an assault Possessing images of assault victims I circumstances where such possession indicates a sadistic interest in brutality Possessing disturbing rap lyrics As a Hindu priest, making sexual advances towards female members of the congregation As a female member of a congregation, making sexual advances towards a Hindu priest

Evidence outside definition of bad character:

evidence which has to do with the alleged facts of the offence with which the defendant is charged or which is evidence of misconduct in connection with the investigation or prosecution of that offence. Admissible as of right (subject to relevance)

Non-defendants s100 CJA 2003

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if(a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which

(i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole,

Or (c) all parties to the proceedings agree to the evidence being admissible.

(a) Important explanatory evidence

Section 100 (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial

(b) Substantial Probative Value on a substantial matter in issue.

Matter in issue?
Facts

in issue - yes What about credibility? Yes

But

only with leave and where

the witness is giving evidence as to an important issue, and the bad character makes an major dent in the witnesss credibility.

Substantial probative value?

((3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)(a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where (i) the evidence is evidence of a person's misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (d) where (i) the evidence is evidence of a person's misconduct, (ii) it is suggested that that person is also responsible for the misconduct charged, and (iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.

Defendant section 101(1)

(a) agreement (b) given by defendant himself (c) important explanatory evidence (d) relevant to important matter btwn pros and def (e) Substantial probative value in matter btwn def and co-accused (f) correct a false impression given by def (g) def attacked another persons character

Gateway (c): important explanatory evidence

Section 102 For the purposes of section 101(1)(c) evidence is important explanatory evidence if(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial.

Gateway (d) in issue between D and P

defendants bad character is admissible where it is relevant to an important matter in issue between the defendant and the prosecution.

Gateway (d) in issue between D and P

S103 (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include(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.

Gateway (d) in issue between D and P

So what is included as an important issue between the P & D?

Matters in issue Clearly the facts in issue at trial are matters in issue.

to prove the identity of the defendant to prove that the defendant committed the actus reus to prove that the defendant possessed the relevant mens rea to disprove any defences that the defendant may raise

Gateway (d) in issue between D and P

So what is included as an important issue between the P & D?

Propensity

to commit offences of the kind charged s103(1)(a) Propensity to be untruthful S103(1)(b)

Gateway (d) in issue between D and P

"The important change is that whereas previously evidence of the defendant's propensity to offend in the manner now charged was prima facie inadmissible, now it is prima facie admissible Per Hughes LJ in Chopra

Gateway (d) in issue between D and P

Propensity to commit offences of the kind charged s103(1)(a)

How can we prove that? by showing he has previously committed an offence of the same description as this offence, or of the same category section103(2)-(5). Or other means (acquittals?)

Gateway (d) in issue between D and P

S103 (4) same description if statement of the offence in a written charge/indictment would be in the same terms
same category if specified as such by Order of Secretary of state
Theft

category and sexual offences category

Gateway (d) in issue between D and P

Where propensity to commit the offence is relied upon by section 101(1)(d) and section 103 (1)(a) there are essentially three questions to be considered: (i) whether the history of convictions establishes a propensity to commit offences of the kind charged (ii) whether that propensity makes it more likely that the defendant committed the offence charges and (iii) whether it is unjust to rely on the convictions of the same description or category and, in any event, whether the proceedings would be unfair if they are admitted

Hanson [2005]

Gateway (d) in issue between D and P

there is no particular number of convictions that would prove propensity the fewer the previous convictions the less likely they are to prove propensity. In principle a single conviction ought not to prove propensity but could do so by showing a tendency to unusual behaviour or by possessing strong probative force (eg modus operendi). Hanson

Gateway (d) in issue between D and P

Section 103(1)(b) Evidence of propensity to be untruthful Explanatory notes This is intended to enable the admission of a limited range of evidence such as convictions for perjury or other offences involving deception (for example, obtaining property by deception), as opposed to the wider range of evidence that will be admissible where the defendant puts his character in issue by for example, attacking the character of another person.

Gateway (d) in issue between D and P

Exclusionary rules affecting gateway (d)

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. Section 101(3) court has a discretion to exclude evidence otherwise admissible under gateway (d) if it believes that its admission would make the trial unfair.
Section103(3)

Gateway (e) issue between codefendants

101(1)(e), evidence of the defendants bad character is admissible where it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant S104 - 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 co-defendant's defence.

Gateway (f) correct a false impression given by defendant

section 105: (1) For the purposes of section 101(1)(f)(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant; (b) evidence to correct such an impression is evidence which has probative value in correcting it.

Gateway (f) correct a false impression given by defendant

S105 (2) A defendant is treated as being responsible for the making of an assertion if it is Made by D in proceedings Made by D on being questioned under caution, before charge, about the offence with which he is charged, or on being charged with the offence or officially informed that he might be prosecuted for it, AND evidence of the assertion is given in the proceedings, Made by a witness called by the defendant, Made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or Made by any person out of court, and the defendant adduces evidence of it in the proceedings.
UNLESS defendant disassociates himself with the assertion

Gateway (f) correct a false impression given by defendant

Section 105 (4)

Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

(5) In subsection (4) "conduct" includes appearance or dress.

Gateway (f) correct a false impression given by defendant

105 (6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression

Gateway (g) D attacks another persons character

Section 106 (1) D attacks another person's character if(a) he adduces evidence attacking the other person's character, (b) he asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or (c) evidence is given of an imputation about the other person made by the defendant on being questioned under caution, before charge, about the offence with which he is charged, or on being charged with the offence or officially informed that he might be prosecuted for it.

Gateway (g) D attacks another persons character

S106 (2) "evidence attacking the other person's character" means evidence to the effect that the other person(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or (b) has behaved, or is disposed to behave, in a reprehensible way; and "imputation about the other person" means an assertion to that effect.

Gateway (g) D attacks another persons character

Judicial discretion to exclude evidence under this gateway (g) Section 101(3) the court has power to exclude it where it believes that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.