Bad Character Evidence PDF

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Summary

Bad Character EvidenceIntroduction - What inferences could be made from the fact that D has previous convictions or has engaged in other forms of reprehensible conduct in the past? - What is the actual value of such evidence? - Should there be restrictions on the admission of character evidence at t...

Description

Bad Character Evidence

Introduction •

What inferences could be made from the fact that D has previous convictions or has engaged in other forms of reprehensible conduct in the past?

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What is the actual value of such evidence?

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Should there be restrictions on the admission of character evidence at trial?

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What tensions exist in this area?

Topic overview •

Focus on rules in Criminal Justice Act 2003

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Outline situation pre-2003

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The 2003 Act and regulation of Bad Character Evidence of Ds and NonDs (eg other witnesses) at trial

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Prohibits any evidence that falls inside scope of definition of BCE, but then provides a number of gateways to admit that evidence; there are also specific protections available

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Structure (similar to Hearsay and SBE): •

Is it BCE (see definition in statute and cases)

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If is = BCE, find a GW to admit •

NonD – nonD gateway (3)

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D – D gateway (7)

Bad Character Evidence a. Probative Value v Prejudicial Effect Law Comm, CP No. 141 (1996): Reasoning Prejudice Moral Prejudice

BCE: Law Pre-2003 i.

BCE of Defendant •

Exclusionary rule - not admissible because the prejudice created > probative value

Bond [1906] KB 389 (CCCR), 398: Nothing can so certainly be counted upon to make a prejudice against an accused upon his trial as the disclosure to the jury of other misconduct of a kind similar to that which is the subject of the indictment, and, indeed, when the crime alleged is one of a revolting character … and the hearer is a person who has not been trained to think judicially, the prejudice must sometime be almost insurmountable”. But Exceptions: 1. SIMILAR FACT EVIDENCE - Makin v AG for NSW [1894] AC 57 (PC); - Boardman [1974] 3 WLR 673; - DPP v P [1991] 3 WLR 161, HL where the CL test was set out by Ld Mackay (p1701): the essential feature of the evidence which is to be admitted is that its probative force in support of the allegation that the accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. 2. CROSS EXAMINATION OF D UNDER CE Act 1898 Section 1(3) D given a shield against x-exam about BC. But this could be lost in certain circumstances: i. Where D asserts his good character ii. Where nature or conduct of D’s defence involved an imputation on character of P witness, deceased V iii. Where D gave evidence against co-accused ii. BCE of Non-D Common law general rule was that a non-D could be cross-examined about their previous misconduct in order to impugn credibility There was no restriction except that the questioning re credibility: “must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence”, Sweet-Escott (1971) 55 Cr App R 316, 320, per Lawton J.

CJA 2003 ss98-112 •

1995-2005: reports and proposals re reform: LC, Previous Misconduct of a D (1996); Auld Report: Review of the Criminal Courts of E and W (2001); LC, Evidence of BC in Criminal Proceedings (2001); Justice for All (2002) 1996, Consultation Paper

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Rationale: evidence-based conviction of guilty and to protect non-D’s

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Also to clarify the law – old law complex, “riddled with anomalies”

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Repeals above: s.99 – The CL rules governing the admiss of BCE are abolished; subject to exception in section 99(2)

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Law on BCE of D and non-D is now governed by these statutory provisions

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BCE is defined in the legislation

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Anything falling inside that definition is inadmissible unless: •

it falls into one of the specified gateways (note first it would have to be relevant evidence, and then would need to establish admissibility via a gateway);

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anything falling outside the definition is prima facie admissible, subject to other rules on admiss of evidence (i.e. that it is relevant and not excluded for any other reason, e.g. another rule (such as SBE) or judicial discretion)

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Different gateways for D [easier to admit] and non-D [harder to admit]

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Additional protection in place for D with respect to certain gateways

Approach 1. Is it relevant evidence – if not, it is inadmissible. If yes, then move to next stage. 2. Is it bad character evidence – s98 3. If is not bad character evidence, then if you found it was relevant, and if no other reason to exclude, it is admissible 4. If it is BCE, then you also need to find a gateway to admit and satisfy the requirement for that gateway; you may also need to consider particular exclusionary rules. Overview of provisions: •

S. 99 - CL abolished

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S.98 (and s112(1)) – definition of BCE

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S100 – non D BCE [3 gateways to admit]

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S101-108-D’s BCE

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S101(1)(a-g) – the 7 gateways of admissibility – these are further defined etc in ss. 101-106

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S101(3)&(4) – Protection for D for gateways D and G

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S.107 – Contamination

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S112 – definitions

BCE Defined s.98:…evidence of, or a disposition towards, misconduct* on his part, other than evidence which –

(a) has to do with the alleged facts of the offence charged (b) is evidence of misconduct in connection with the investigation or prosecution of the offence * Defined in section 112(1) as meaning: the commission of an offence or other reprehensible behaviour •

Same definition applies for D and non-D

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Misconduct that has occurred [e.g fact that D committed a previous theft]

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A disposition towards misconduct, even if the misconduct didn’t occur [e.g. a statement of intention to commit an offence, or preparation for an offence that didn’t constitute any crime – i.e. fell short of the offence itself or an attempted offence]

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Misconduct may be criminal or non-criminal (explored below)

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Misconduct before or after the offence at hand

What misconduct falls within scope of restriction? Only certain kinds of misconduct fall within scope of BCE: •

Any ‘evidence of/disposition towards misconduct’ that ‘has to do with the alleged facts of the offence charged’ or is connected with the investigation/prosecution is not BCE and so is admissible providing it is relevant – no restriction applies

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Extraneous misconduct only: Any evidence of/disposition towards misconduct that falls outside scope of above (i.e. is extraneous to the alleged facts of the offence/investigation/prosecution) is BCE and is subject to restriction and a gateway must be found

Misconduct that is not BCE – i.e. because not extraneous (a) ‘Has to do with’ the alleged facts of the offence charged (not BCE and no gateway needed) Evidence of/disposition towards misconduct that has to do with the AR or MR of the offence is not BCE: Mullings [2010] EWCA Crim 2820 Professor J R Spencer, QC in Evidence of Bad Character at paragraph 2.23 suggested that: •

it clearly covered acts which the defendant committed at the same time and place as the main offence and presumably covered acts by way of preparation for the main offence and an earlier criminal act which was the reason for the main crime.

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E.g. that D at the time of the robbery used a knife; or in committing a burglary caused criminal damage when gaining entry

‘has to do with’ - some cases have said that there must be a contemporaneous connection – i.e. the other misconduct should be connected in time with the facts of the offence (if not connected in this way then the misconduct = BCE) •

Tirnaveanu [2007] EWCA Crim 1239: there must be ‘some nexus in time’ between the other misconduct and the facts of the offence charged

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Saleem [2007] All ER 439: here there was ‘insufficient connection in time with the facts of the offence’

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Machado [2006] EWCA Crim 837: ‘All the matters were in effect contemporaneous to and closely associated with the alleged facts of the offence…. They were, therefore, not bad character evidence’.

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Mullings [2010] EWCA Crim 2820

But in some cases the courts have not required a nexus in time: •

Sule [2012] EWCA Crim 1130: where the evidence was being relied upon to show motive, then no need for a temporal connection. Thus here previous gun attacks ‘had to do with the alleged facts’ of the offence involving a shooting because showed motive

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Stewart [2016] EWCA Crim 447 (following Sule)

[Note for below – one of the gateways – (c) ‘important explanatory evidence’ overlaps to some extent with this exception – i.e. sometimes it will be unclear whether the evidence is misconduct that is not BCE because it ‘has to do with’ the facts of the offence; or whether it is misconduct that is BCE, but is admissible through gateway (c) as ‘important explanatory evidence’. (b) It is misconduct connected with the investigation/prosecution of the case (not BCE) Key points on definition so far… •

The same definition for BCE applies to both D and NonD BCE

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It is extraneous BCE – if it “has to do with” the offence or is connected to the investigation or prosecution it does not fall within the scope of the prohibition in 2003 Act and is admissible as normal

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So it is evidence of or a disposition towards (extraneous) misconduct

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Misconduct is defined as: evidence of the commission of an offence OR other reprehensible behaviour

Unproven allegations - risks •

If an unproven allegation is admitted as BCE – may require satellite trial to establish the facts before the allegation can be considered by the jury:

o Lowe [2007] EWCA Crim 3047: the jury c/n take the allegations of previous misconduct into account unless they are sure BRD that D actually committed the misconduct o Hanson [2005] 1 WLR 3169: risk of having to conduct a satellite trial is a relevant consideration when deciding whether or not to admit an unproven allegation as BCE o McKenzie [2008] EWCA Crim 758: length of trial/costs/complicates things/ risk of losing focus means that application to adduce unproven misconduct should be treated cautiously

Reprehensible behaviour •

The definition of BCE is not limited to criminal behaviour – whether proven or unproven (e.g. convictions, acquittals, cautions etc.)

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It also includes “other reprehensible behaviour”

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But what is other (non criminal) reprehensible behaviour?

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There are no hard and fast rules. Very much a case by case basis. So we look to the case law for guidance…

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Note the term “reprehensible behaviour” comes up twice in the statute:

1. in relation to definition of BCE for both D and NonD(misconduct = evidence of commission of offence or other reprehensible behaviour) 2. In relation to Gateway G for purposes of D having attacked another’s character. D will be said to have attacked another’s character if alleges they have behaved reprehensibly (and this can be where alleged behaviour is to do with the offence or the investigation/prosecution – so it is not limited to attack on extraneous BC) •

Some of the cases are deciding whether behaviour is “reprehensible” in context of whether it constitutes BCE; in others it is in context of deciding whether D had attacked another’s character.

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As a result decisions on what is reprehensible may seem strange. In the Gateway G attacking another’s character situation, the court is not explicitly saying that the evidence could be BCE, but that can be implied.

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Hanson (P) [2005] 1 WLR 3169 [GW G – making a false allegation]

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Renda [2006] 1 WLR 2948 [GW G being a “bag” or a “slag”/promiscuous]

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Renda (Ball) [2006] 1 WLR 2948 [conditional discharge following unfitness to plead is not reprehensible; but if the assault showed culpability that was reprehensible]

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Weir (Somanathan) [2006] 1 WLR 1885 [a priest making sexual advances to members of congregation at their homes = reprehensible (BCE); a member of congregation making sexual advances to priest is reprehensible (GW G)]

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Malone [2006] EWCA Crim 1860 [BCE – forging/engineering a document = reprehensible behaviour]

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Littlechild [2006] EWCA Crim 2126 [GW G – accusing someone of a crime out of a personal grudge = reprehensible]

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Sutton [2007] EWCA Crim 1387 [BCE – developing unhealthy relationships with children with elements of grooming = reprehensible]

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Saleem: [2007] EWCA Crim 1923 [BCE – disturbing rap lyrics/altered = reprehensible behaviour; possessing images of assault victims = reprehensible behaviour]

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Anderson [2008] EWCA Crim 837: [BCE – possession of Mannitol (a lawful substance that can be used to cut cocaine = reprehensible behaviour]

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Haigh [2010] EWCA Crim 90: [BCE – a mother’s uncaring attitude to child, rejecting him, swearing at him, going out a lot and leaving him to be cared for by people she didn’t know very well = reprehensible]

Not Reprehensible behaviour •

Weir(Manister) [2006] 1 WLR 1885: [BCE – 34 year old maintaining sexual relationship with 16 year old girl; and making sexual comment to 15 year old girl not reprehensible]

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Weir(He) [2006] 1 WLR 1885 [BCE: failure to make witness statement, and being arrested for offence where no evidence to support not reprehensible]

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R v V [2006] EWCA Crim 1901; [deliberately miscontructing/embellishing an event not reprehensible]

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Osbourne [2007] EWCA Crim 481 [BCE - shouting at partner and child not reprehensible]

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Fox [2009] EWCA Crim 653 [BCE – keeping a notebook with sexual references about young girls because it is only evidence of his thoughts is not reprehensible]

Question: How would you approach the following? D is charged with rape of C. C claims she met D in a nightclub and that after plying her with alcoholic drinks he took her outside and had sexual intercourse with her while she was in a very intoxicated state. She claims she did not consent. P want to adduce the following evidence: D has a previous conviction for rape D has a previous acquittal for sexual assault D frequents nightclubs and buys girls drinks in order to get them intoxicated and therefore lower their sexual inhibitions

D visits prostitutes Pornographic imagines on his computer depicting various rape scenarios D became aggressive during police interview D had secretly filmed C on his phone at the same nightclub the previous week The D was seen inside the club behaving aggressively towards C

Admission of BCE at trial •

If captured by the definition of BCE in s98, it is inadmissible unless falls into a gateway

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Non-D – s100 – 3 gateways

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D – s101-106 -7 gateways

Non-D BCE •

Evidence that is not BCE is governed by CL: R v Hall-Chung [2007] EWCA Crim 3429

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Evidence that is BCE, is governed by s100. E.G.Voller [2006] EWCA Crim 1901

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S100(4) – unless the evidence is admitted by agreement of the parties, leave of court is required before it can be admitted

Are three options for admitting: s100(1) (a) it is important explanatory evidence [important explanatory evidence] – leave required (b) it has substantial probative value in relation to a matter which – [substantial probative value to a matter in issue and is of substantial importance in context of case] – leave required 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) the parties to the proceedings agree to the evidence being admitted. [by agreement] – leave not required

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(a) Important explanatory evidence: Section 100(2) provides that evidence is important explanatory evidence if w/o it the court or jury would find it impossible or difficult to properly understand other evidence in the case, and its value for understanding the case as a whole is substantial.

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EG: R v Riley [2006] EWCA Crim 2030 [on claim on self defence, wanted to adduce evidence of V’s previous attack on him (D) as background evidence]

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R v Miller [2010] EWCA Crim 1153 [BCE that would reveal W’s motive for giving false evidence in favour of D – it would be difficult for jury to understand why W would lie for D without knowing about fact that W had convictions and was facing lengthy jail time]

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Basically it explains other evidence in the case; but it must have enhanced relevance in this regard

(b) The BCE is of substantial probative value to a matter which is a matter in issue and which is of substantial importance in the context of the case as a whole. Requirements: •

Is the nonD BCE relevant to matter in issue

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Is that matter in issue of substantial importance in the context of the case

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Does the BCE have substantial probative value to that issue •

The test if one of enhanced relevance: King [2015] EWCA Crim 1631

Substantial probative value: s100(3): Matters to which court must have regard when determining probative value: (nonexhaustive) •

nature and number of the events …

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When those events or things are alleged to have happened or existed

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Where the evidence if of a person’s misconduct, and it is suggested that it has probative value by reason of similarity between the misconduct and other alleged misconduct, the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct

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Where the evidence is of a person’s misconduct, it is suggested that that person is also responsible for the misconduct charged, and the id 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

An Important Matter in Issue includes matters in issue in direct sense (facts in issue) – e.g. whether D committed the crime; whether the offence occurred at all. But it also includes collateral matters such as credibility of W, providing W’s credibility is important in the context of that case:

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Weir [Yaxley-Lennon] [2005] EWCA Crim 2866; R v S [2007] 1 WLR 63 – a matter in issue includes the credibility of the witness

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Note in order for nonD BCE to be admissible to target the credibility of that person, their credibility would need to be of substantial importance in the case, and the BCE must be likely to undermine their credibility to a significant degree

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What kind of BCE can be admitted to show lack of credibility? •

Stephenson [2006] EWCA Crim 2325 – previous convictions whi...