EVIDENCE OF CHARACTER

EVIDENCE OF CHARACTER

Evidence of the Accused’s Good Character (common law) At common law the accused may adduce evidence of his general reputation by giving evidence of it himself, or via examination in chief of his own witnessesor via cross-examination of other witnesses Strictly, specific examples of his good character are not admissible (though the rule is not always applied strictly) [Note: CJA 2003 s.118 preserves the common law rule which permits the court to treat evidence of reputation as probative of good or (where admissible) bad character, the rule not being abolished by s.99.]

Good Character-Directing the Jury If the accused testifies he is entitled to a direction as to the relevance of his good character both to credibility and to guilt If he does not testify he is only entitled to a direction as to the relevance of his good character to guilt (unless he relies upon exculpatory parts of a mixed statement which he made out of court—e.g. a confession which he made to the police) Judge may decide not to give/to modify good character direction where the accused has convictions/bad character (the matter is one for the judge’s discretion but the jury should not be misled)

Good Character—Bad Character of Co-Accused Accused is entitled to good character direction even though co-accused has bad character (though it may be necessary to direct jury not to regard lack of evidence of co-accused’s good character as evidence against co-accused)

Good character-duty of judge and defence counsel • The judge is not under a duty to direct the jury concerning the accused’s good character where the accused fails to adduce evidence thereof • It seems, however, that defence counsel is under a duty to raise the accused’s good character, that, in appropriate circumstances, his failure to do so may render a trial unsafe and that where it is not clear whether the accused is relying on his good character it is good practice for the judge to raise this with defence counsel.

D is charged with rape. D is happily married and has worked as a civil servant for 20 years. D once found a girl lost in a wood and returned her to her mother. D has a previous conviction for speeding (he pleaded guilty by post). Which of (i) or (ii) is/are true? (i) D may adduce evidence concerning his family life and employment but, strictly, should not adduce evidence concerning the girl in the wood (ii) If D adduces evidence concerning his family life and employment, D’s good character will not be relevant to his credibility or likelihood of guilt because D has a speeding conviction. (i) is true

Evidence of The Accused’s Bad Character (CJA 2003)

Common Law Rules • CJA 2003 s.99 abolished the common law rules that formerly governed the admissibility of evidence of bad character in criminal proceedings. • The admissibility of evidence of bad character in criminal proceedings is now governed by provisions of the 2003 Act. • S.99 did not abolish the common law rule that permits evidence of general reputation to be relied upon to prove bad character (though it seems that this rule merely provides a means of proving bad character in circumstances in which the accused’s bad character is admissible under the 2003 Act).

Evidence of bad Character-meaning (s.98) • Evidence of bad character is evidence of misconduct or disposition towards misconduct • Misconduct is the commission of an offenceorother reprehensible behaviour (s.112) • Evidence of bad character does not include evidence which has to do with the alleged facts of the offence with which the accused is charged • Evidence of bad character does not includeevidence of misconduct in connection with the investigation or prosecution of the offence with which the accused is charged

Admissibility of evidence of misconduct which does not amount to evidence of bad character • Where evidence of misconduct does not amount to evidence of bad character (see previous slide) its admissibility seems to depend upon the common law test of relevance plus (if tendered by the prosecution) the exercise of the court’s PACE s.78 and common law exclusionary discretion

Bad Character and Multi-Count Indictments • Where the accused is charged with 2 or more offences the character provisions of the 2003 Act (except section 101(3), which is considered below) apply as though each was charged in separate proceedings (s.112(2)), thus where D is charged with two counts, evidence of the alleged facts of count 1 is not evidence of the accused’s bad character in relation to count 1 but is evidence of the accused’s bad character in relation to count 2, and vice versa (unless, of course, the counts are based on the same alleged facts, in which case evidence of the alleged facts of count 1 will not amount to evidence of bad character in relation to count 2).

Arshad is charged with the theft of Jason’s wallet. The prosecution intend to call Paul who will testify that he saw Arshad steal the wallet. During cross-examination counsel for the prosecution intends to ask Arshad whether the alibi that he gave to the police when questioned about the theft was false. Which of (i) or (ii) is/are true (i) Paul’s evidence is evidence of Arshad’s bad character (ii) Evidence that the alibi was false is evidence of Arshad’s bad character They are both false

Alan is charged with the murder of Doug, the prosecution alleging that Alan planted a bomb in Doug’s car. Is the following proposition true or false? Evidence that the bomb destroyed Doug’s car is evidence of Alan’s bad character False

Adam has recently been released from prison, having been sentenced to five years imprisonment for robbery. Adam has now been charged with possessing a firearm having been sentenced to imprisonment for a term of three years or more, contrary to section 21(1),(4) of the Firearms Act 1968. Is the following proposition true or false? Evidence that Adam was sentenced to imprisonment for five years for robbery is evidence of his bad character. False

Jim is charged with robbery, the prosecution alleging that he committed the offence whilst dressed as a police officer and carrying a shotgun. An imitation police uniform and a shotgun were found in the boot of Jim’s car. Which of (i), (ii) or (iii) is/are true? (i) Evidence of the possession of the shotgun definitely is not evidence of Jim’s bad character (ii) Evidence of the possession of the uniform definitely is evidence of Jim’s bad character (iii) If evidence of the possession of the uniform is not evidence of Jim’s bad character, it will (subject to exclusionary discretion) be admissible if it is relevant (iii) is true

Sue is charged with two counts of robbery. She has previous convictions for theft, she was once cautioned for criminal damage, there is evidence that she once committed a burglary but was never charged and she was once tried for and acquitted of blackmailing C. Which of (i) to (vi) below are not evidence of Sue’s bad character in the context of robbery count 1. (i) Evidence of the theft convictions; (ii) evidence of the caution; (iii) evidence that Sue committed the burglary; (iv) evidence that did blackmail D; (v) evidence of the alleged facts of robbery count 1; (vi) evidence of the alleged facts of robbery count 2 (v) only.

Dan is charged with stealing a diamond necklace. Colin is a police officer who is to be called as a witness for the prosecution at Dan’s trial. During cross-examination, defence counsel intends to ask Colin whether he planted the necklace in Dan’s flat. Is the following proposition true or false? Evidence that Colin planted the necklace in Dan’s flat is evidence of Colin’s bad character False

The accused’s bad Character--admissibility under the s.101 “gateways” Evidence of accused’s bad character is admissible under any of seven section 101 “gateways” • by agreement of the parties (s.101(1)(a)); • where the accused adduces the evidence or intentionally elicits it via cross-examination (s.101(1)(b)); or • where it is important explanatory evidence (s.101(1)(c)); or • where it is relevant to an important matter in issue between the accused and the prosecution (s.101(1)(d)); or

The accused’s bad Character--admissibility under the s.101 “gateways” continued The seven “gateways” (continued): • where it has substantial probative value in relation to an important matter in issue between accused and co-accused (s.101(1)(e)); or • where it is evidence to correct false impression given by the accused (s.101(1)(f)); or • where the accused has attacked another person’s character (s.101(1)(g))

Horace is charged with committing a murder in Newcastle. Horace wishes to adduce evidence to prove that at the time when the murder was committed he was committing a robbery in London. Which one is true? [a] The evidence is evidence of Horace’s bad character but is admissible in Horace’s defence [b] The evidence is not evidence of Horace’s bad character and is admissible in Horace’s defence [a] is true

Important Explanatory Evidence-meaning (s.102) Evidence is important explanatory evidence for the purposes of section 101(1)(c) if: • the court or jury would find it impossible or difficult to properly understand other evidence without it and • it has substantial value for understanding the case as a whole. [Note: the better view seems to be that where evidence of the accused’s bad character is tendered by the prosecution under s.101(1)(c) its admissibility is subject to the exercise of the court’s PACE s.78 or common law exclusionary discretion.]

Oscar regularly severely beats Amy, his wife, when he has been drinking. Oscar’s brother, Ken, is aware of this. One day Amy is found beaten to death in her home. Oscar claims that he has never beaten Amy, and denies her murder. Which is/are true? (i) Ken’s evidence is evidence of Oscar’s bad character. (ii) Ken’s evidence may be admissible as important explanatory evidence. They are both true

Evidence which is relevant to an important matter in issue between the accused and the prosecution (s.101(1)(d) • Only prosecution evidence is admissible under section 101(1)(d) (s.103) • “Important matter”: one of substantial importance in the context of the case as a whole (s.112)

Matters in issue for the purposes of section 101(1)(d) include (s.103(1)): • the accused’s propensity to commit offences of the kind with which he is charged (unless his having such a propensity makes his guilt no more likely); and • the question whether he has a propensity to be untruthful (unless it is not suggested that his case is untruthful) [Note: this does not mean propensity to be dishonest. Thus the mere fact that D has dishonesty convictions does not necessarily establish propensity to be untruthful.]

S.101(1)(d) (continued) Establishing propensity to commit offences of the kind with which the accused is charged for the purposes of s.101(1)(d) (s.103(2)) Without prejudice to other methods of establishing propensity to commit such offences, it may be established under s.103(2) by evidence of the accused’s conviction of: • an offence of the same description (i.e. where the statement of offence in the indictment would be the same); or • an offence of the same category (i.e. where they both belong to the same category prescribed by the Secretary of State)

S.101(1)(d) (continued) • Currently we have the “theft category” and the “sexual offences (persons under the age of 16) category”. • Having an offence of the same description/category will not automatically establish propensity to commit offences of the relevant kind (it might be said to give rise to a “presumption” in favour of admissibility) • Propensity may not be proved under s.103(2) if the judge considers that this would be unjust (either because of the length of time since the conviction or for any other reason) (s.103(3))

S.101(1)(d) (continued) • Convictions for offences not of the same description/category may still be admitted as evidence of propensity to commit offences of the kind with which the is charged (as, it seems, may evidence of bad character which did not result in a conviction)

S.101(1)(d) and s.101(3) • Evidence is not admissible under section 101(1)(d) (or under s.101(1)(g)) if, on application by the defence, it appears to the court (taking into account, in particular, the length of time between the matters to which the evidence relates and those which the charge concerns) that it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (s.101(3)). • Under s.101(3) one important factor appears to be the balance between the probative value of a conviction and its prejudicial effect • What is fair under 101(3) may depend upon whether evidence is tendered under gateway (d) or gateway (g).

s.101(3) and 103(2) • Factors of relevance when deciding (under s.101(3) and 103(2) whether adducing evidence of bad character is unfair or unjust may include the degree of similarity between the facts of the offence charged and those of the previous conviction, the relative gravity of the offence charged and the previous offence and the strength of the prosecution case (as evidence of bad character should not be relied upon merely to bolster a weak case or prejudice the jury against the accused) • Admitting old convictions may be unfair unless they share special features with the facts of the offence charged or demonstrate a continuing propensity

Mahendra is charged with theft and assault. He has several theft convictions, several for assault and two for perjury. Which of (i) to (iv) below is/are true? (i) The theft convictions may be admissible under CJA 2003 s.101(1)(d). (ii) The assault convictions may be admissible under CJA 2003 s.101(1)(d). (iii) The perjury convictions may be admissible under CJA 2003 s.101(1)(d). (iv) The theft, assault and perjury convictions clearly establish Jim’s propensity and so the judge must admit them. (i), (ii) and (iii) are true.

Evidence which has substantial probative value in relation to an important matter in issue between accused and co-accused (s.101(1)(e) • Evidence which is relevant to the question of whether the accused has a propensity to be untruthful is only admissible under s.101(1)(e) if the nature or conduct of the accused’s defence is such as to undermine his co-accused’s defence (s.104). [Note that s.101(1)(e) does not merely admit evidence which is relevant to the accused’s propensity to be untruthful but also, for example, admits evidence which is relevant to his propensity to commit offences of the type he is charged with.]

S.101(1)(e) (continued) • Evidence is only admissible under s.101(1)(e) if either adduced by the co-accused or elicited via cross-examination by the co-accused (s.104) (I.e. the prosecution cannot use s.101(1)(e)). • Important matter means one of substantial importance in the context of the case as a whole (s.112)

S.101(1)(e) (continued) • To be admissible under s.101(1)(e) the evidence must have substantial probative value in relation to an important matter in issue and, thus, the mere fact that the defence tender evidence under s.101(1)(e) does not require the judge to admit it, though where evidence is admissible under s.101(1)(e), the judge does not possess discretion to exclude it. • Whilst it has been held in the context of prosecution applications to adduce evidence of the accused’s bad character that untruthfulness and dishonesty to not equate, the court may be more generous in admitting evidence of previous convictions as evidence of credibility for the defence under gateway (e) (or under s.100, which is seen below)

Sean and Fred are charged with burglary. Each asserts that the burglary was committed by the other. Sean has several previous convictions for burglary and two for obtaining property by deception. Which is/are true? (i) The burglary convictions may be admissible under CJA 2003 s 101(1)(e). (ii) The convictions for obtaining by deception may be admissible under CJA 2003 s 101(1)(e). (iii) The judge may be required to exclude the convictions under CJA 2003 s.101(3). (iv) The judge may be entitled to exclude the convictions under PACE s.78 (i) and (ii) are true.

Andrew and Victor are charged with burglary. Victor has two convictions for perjury. In his defence Andrew asserts that at the time of the burglary he was in a theatre with his wife several miles away from the location of the burglary. In his defence Victor asserts that at the time of the burglary he was at home with his wife several miles away from the location of the burglary.True/false. Victor’s perjury convictions appear to be admissible under CJA 2003 s.101(1)(e). False

Evidence to correct a false impression given by the accused(s.101(1)(f)) • Only prosecution evidence admissible under s.101(1)(f) (s.105(7)) • Evidence only admissible under s.101(1)(f) if it goes no further than is necessary to correct the false impression (s.105(6)) • Accused 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 him (s.105(1)) • Evidence to correct a false impression is evidence which has probative value in correcting it (s.105(1))

(S.101(1)(f) (continued) Accused (under s.105(2)) is treated as responsible for making an assertion if: • Made by the accused (whether or not in evidence) in the proceedings; or • Made by the accused whilst being questioned under caution about the offence or on being charged with it or officially informed that he might be prosecuted; • Made by a witness called by the accused; or • Made during cross-examination in response to a question by the accused which was intended or likely to elicit it; or • Made by a person out of court and the accused adduces evidence of it

S.101(1)(f) (continued) • Accused will not be treated as responsible for making an assertion if/ to the extent to which he withdraws it/ disassociates himself from it (s.105(3) • Where it appears just, the court may, where the accused appears by his conduct (including his appearance or dress) to be seeking to give a false or misleading impression about himself, treat the accused as being responsible for making an assertion which is apt to give the relevant impression (s.105(4))

S.101(1)(f) (continued) [Note: the better view seems to be that where evidence of the accused’s bad character is tendered by the prosecution under s.101(1)(f) its admissibility is subject to the exercise of the court’s PACE s.78 or common law exclusionary discretion.]

Jim, who has previous convictions for theft and sexual assault, is charged with theft. Jim intends to call character witnesses to give evidence of his general reputation for honesty. Which of (i) to 9iv) is/are true? (i) The theft convictions may be admissible under CJA 2003 s.101(1)(f). (ii) The sexual assault conviction will be admissible under CJA 2003 s.101(1)(f). (iii) The judge may be required to exclude the convictions under CJA 2003 s.101(3) (iv) The judge may be entitled to exclude the convictions under PACE s.78. (i) and (iv) are true

Sid, whilst being interviewed by the police under caution concerning a burglary, tells the police that he is well known as an honest man who would never steal anything. Sid has several theft convictions. Which of (i) to (iii) is/are true? (i) The theft convictions may be admissible under CJA 2003 s.101(1)(f). (ii) The theft convictions may be admissible under CJA 2003 s.101(1)(d). (iii) The theft convictions will not be admissible under CJA 2003 ss. 101(1)(d) or (f) if Sid withdraws the assertion that he made at the police station. (i) and (ii) are true

Where the accused has attacked another person’s character S.101(1)(g) (continued) Under s.106, the accused attacks another person’s character where: • He adduces evidence attacking the other person’s character; or • He asks questions during cross-examination which are intended or likely to elicit evidence of the other person’s character; or • Evidence is given of an imputation made by the accused about the other person either when he was questioned under caution about the offence or when he was charged/officially informed that he might be prosecuted

(S.101(1)(g) (continued) Evidence attacking another person’s character means: • Evidence to the effect that he has committed an offence (whether or not the one with which the accused is charged); • Evidence to the effect that he has behaved in a reprehensible way, or is disposed to do so (s.106(2)) An imputation about another person is an assertion to the above effect (s.106(2)) • Only prosecution evidence admissible under s.101(1)(g) (s.106)

S.101(1)(g) and s.101(3) • Evidence not admissible under s.101(1)(g) if, on application by the defence, it appears to the court (taking into account, in particular, the length of time between the matters to which the evidence relates and those which the charge concerns) that it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (s.101(3)).

S.101(1)(g) and s.101(3) continued) • Under s.101(3) one important factor appears to be the balance between the probative value of a conviction and its prejudicial effect • What is fair under 101(1)(3) may depend upon whether evidence is tendered under gateway (d) or (g).

S.101(1)(g) continued) • It may be that if an imputation is made in a wholly exculpatory statement and the prosecution seek to adduce this to activate gateway (g), the court should exclude the evidence of the police station interview • It will be unusual for evidence to be admitted under gateway (g) where the person whose character is attacked is neither a witness nor the victim of the offence

Stan is charged with burglary. Stan has convictions for burglary and assault.When Stan’s counsel cross-examines Brenda, a prosecution witness Stan’s counsel asserts that it was Brenda’s husband, Harry, who is not called as a witness in the proceedings, who committed the burglary. Which of (i) to (iii) is/are true? (i) The burglary convictions may be admissible under CJA 2003 s.101(1)(g). (ii) The assault convictions may be admissible under CJA 2003 s.101(1)(g). (iii) The judge may be required to exclude the convictions under CJA 2003 s.101(3) They are all true

Ivan, who has several previous convictions for sexual offences and does not intend to testify in his defence, is charged with rape. When interviewed under caution, Ivan asserted that Sue, the complainant, consented to intercourse with him. When testifying at his trial, Ivan asserted that Ivan asserted that PC Jones, the arresting officer, swore at him once in the police car when he was taking him back to the station. Is the following proposition True or false? Ivan’s previous convictions will clearly be admissible under CJA 2003 s.101(1)(g) False

Multi-count indictments • Where D is charged with several counts that are not based on the same alleged facts, it seems that evidence relating to one count may be admissible in relation to another count under a s.101 “gateway” (i.e. under s.101(1)(d)) • Where evidence relating to one count is not admissible in relation to another under a gateway, this does not require the judge to sever the indictment, though the jury must be given an appropriate direction if the counts are tried together • Where counts are severed this does not prevent evidence relating to one from subsequently being admitted at the trial of the other under s.101(1)(d).

Relevance and probative value (s.109) • For the purposes of the character provisions of the 2003 Act, the court (e.g. in the context of a multi-count indictment) must assume that evidence is true when assessing its relevance or probative value unless no court or jury could reasonably find it to be true • Thus, where it is asserted that witnesses (e.g. two complainants in the context of a multi-count indictment) have colluded, the question of collusion will normally be one for the jury.

EVIDENCE OF CHARACTER