Bad Character Evidence PDF

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Law of Evidence Lecture Notes prepared after lecture, book and wider reading. Sufficient for preparation of exams....

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Bad Character Evidence Pre-CJA 2003: Common law rule Bad character evidence of the defendant was inadmissible as it's prejudicial effect outweighed it's probative value. Exceptions • Strikingly similar facts capable of proving propensity to behave in the manner alleged ◦ DPP v Boardman [1975] ▪ Lord Hailsham: In a sex case, while a repeated homosexual act by itself might be quite insufficient to admit the evidence as confirmatory of identity or design, the fact that it was alleged to have been performed wearing the ceremonial headdress of an Indian chief might well in appropriate circumstances suffice. • If D testified it could be admitted to undermine D's credibility where necessary to correct misleading impression or where D attacked character of prosecution witness • To inform the fact-finder of the essential background to the allegations against a D Dangers of CL rule Evidence of the accused's extraneous misconduct is particularly frowned upon as being unfairly prejudicial. • Prejudicial reasoning ◦ Faulty inferential logic which detracts from accurate factfinding, whereby fact-finders give too much weight to bad character evidence. ◦ Jury may become distracted in placing weight upon the truth of allegations of extraneous misconduct. • Moral prejudice ◦ Jury's inclination to abandon its oath to return a verdict according to the evidence, and instead to declare the accused guilty not withstanding the absence of proof beyond reasonable doubt. • Intrusion of privacy ◦ Incompatible with respecting the accused's personal and moral autonomy ◦ Empowering the authorities to require the accused to answer at large for his entire existence and moral character would not be compatible with liberal conceptions of limited government.

Reforming the common law Law Commission • General rule on bad character is a haphazard mixture of statute and common law rules which produce inconsistent and unpredictable results, in crucial respects distorts the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the fact-finders whilst often exposing witnesses to gratuitous and humiliating exposure of long forgotten misconduct. Criminal Justice Act 2003 CPS Code for Crown Prosecutors • CJA 2003 introduces a radical new approach in relation to admissibility of bad character evidence relating to nondefendants and defendants. • 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. ◦ Effect of these provisions will mean that non-defendants will be better protected from attacks on their character than previously, as defendant's bad character is likely to play a greater part in the investigation process. [Criminal Justice Act 2003] s.98: Bad character is evidence of, or a disposition towards, misconduct other than evidence which: (a) has to do with the alleged facts of the offence with which defendant charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. • s.112: Misconduct defined as the commission of an offence or other reprehensible behaviour. • Renda [2005] ◦ 'Reprehensible' carries with it some element of culpability or blameworthiness. • Malone [2006]: Evidence which has to do with the alleged facts of the offence will not be of bad character as stated in s.98(a) ◦ Concerned a murder of D's wife, and he gave her a forged detective report. CA held that this was evidence of their matrimonial difficulties, and his actions showed build up to a situation which led to him killing her and as such it was capable of being evidence to do with the alleged facts, thus not bad character. s.101: The gateways

s.101(1): Evidence of the defendant's bad character is admissible if: (a) All parties to the proceedings agree to the evidence being admissible (b) 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 (c) It is important explanatory evidence (See s.102) (d) It is relevant to an important matter in issue between the defendant and the prosecution (See s.103) (f) It is evidence to correct a false impression given by the defendant (see s.105) (g) The defendant has made an attack on another person's character (see s.106) s.101(3): The court must not admit evidence under gateways (d) or (g) if, on an application by the defendant to exclude it, it appears to the court 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. • It is a rule, not a discretionary exclusion • Effectively turns gateway (d) into a PV >PE similar facts rule s.101(4): On an application to exclude evidence under (3) the court must have regard to the length of time between matters. Tirnaveanu [2007]: 6 questions to structure inquiries into the admissibility of bad character evidence • Is the evidence relevant? • Is it 'bad character' evidence within s.98 and s.112? • Is the evidence to do with the alleged facts of the offence? If yes, falls into s.98 exception • Is the evidence admissible under one of the s.101 gateways? • Would the evidence have such an adverse effect on the fairness of the proceedings that it ought not to be admitted? (Under s.101(3), or s.78 PACE) • Does the jury need help in summing-up as to how to use this evidence? Gateway (c): Important explanatory evidence s.102: For purposes of s.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

Nature of gateway C • Deals with the 'background evidence' • Pronick [2006]: Evidence must be necessary and important material ◦ D attempted to rape his partner, C. C's bad character evidence relating to earlier assault and rape of D's was admitted under s.101(1)(c). Held that unless C was allowed to give her account of the nature of the relationship, the jury would not be able to make a proper assessment of the respective evidence of the protagonists. It was accordingly necessary material for the jury's consideration, and its importance for the jury was likely to be substantial. • R v Dolan [2003]: Exception to gateway C if evidence irrelevant ◦ D had been convicted of murdering his three and a half month old son. D argued that incidents showing that he had a bad temper should not have been admitted as background evidence since they only demonstrated his violence towards inanimate objects at times which were not proximate to the killing. D appealed against his conviction. Held, allowing the appeal, that it was proper, where necessary, to place before the jury evidence of part of a continual background of history relevant to the offence, without which the account put to the jury would be incomplete, but however, background evidence could be used as a vehicle for smuggling in otherwise inadmissible evidence for less than adequate reasons. In the instant case the evidence of D's tendency to violence towards inanimate objects was irrelevant. Gateway (d): Matter in issue between the defendant and the prosecution s.103(1): For purposes of s.101(1)(d), the matters in issue between the defendant and the prosecution include: (a) Question whether 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) Question whether defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect. s.103(2): Where (a) applies, a defendant's propensity to commit offences of the kind may be established on previous convictions of: (a) Offence of the same description

(b) Offence of the same category s.103(3): (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. • Does not have to be length of time, can be another reason Nature of gateway D • The 'similar facts' gateway, allowing for previous convictions to be admitted as bad character evidence if it fulfils the conditions in s.103 • s.101(3): Court must exclude bad character evidence from gateway D if admitting it would have such an adverse effect on the fairness of proceedings. • R v Hanson & Gilmore & Pickstone [2005]: Where gateway D is used, judge must give warning to jury on dangers ◦ Hanson: H accused of stealing money on the grounds that H was the only one in the area who could have stolen the money and there was only one method of doing so through the stairs which H had access to. H defended that he did not go up the stairs and that there were other methods of going into the bedroom, and witness evidence from another should be disregarded as the witness and H do not have a good relationship. Held that application to admit previous convictions on the basis that the defendant had a propensity to be untruthful would be refused as it would have an affect on the fairness of the proceedings, but that the admissibility of the defendant bad character under s.101(d) would not have such an adverse effect on the fairness of the proceedings. ◦ Gilmore: G accused of stealing property from complainant knowing that it belonged to someone else. G argued that they thought it was abandoned rubbish. Evidence was admitted of G's 3 previous convictions of shoplifting. Held that the previous convictions were plainly relevant to the issue of whether his possession of the goods, in those circumstances, was innocent or criminal. They established a recent, persistent propensity to steal under gateway d s.103(1)(a), and that propensity increased the likelihood of guilt. ◦ Pickstone: P accused of indecent assault and rape of his stepdaughter, P arguing in defence stating that the stepdaughter is making these allegations up to kick P out of

the family. Crown sought to admit evidence of P's previous conviction in 1993 under (d) (f) and (g) gateways, and succeeded in doing so except for (f), success due to reasoning that passage of time was not here sufficient to make the admission of the evidence unjust, it had significant probative value, and its admission would not adversely affect the fairness of the proceedings. He therefore admitted the evidence under (d). Also admitted it under (g) on the basis that what the defendant had said in interview was a false allegation giving rise to an attack on the complainant's character. ◦ Rose LJ: Ruled that a single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged, e.g. child sexual abuse or fire setting. Furthermore, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful, the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions. ▪ Jury should be direct that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions, that although the convictions may show a propensity this does not mean that he has committed this offence or has been untruthful in this case, that propensity is only one relevant factor and they must assess its significance in light of all the other evidence in the case. ◦ Continued: Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered: ▪ Does the history of conviction(s) establish a propensity to commit offences of the kind charged? ▪ Does that propensity make it more likely that the defendant committed the offence charged? ▪ Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted? • Untruthfulness as an 'important issue'

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R v Campbell [2007]: Propensity to be untruthful is important issue if offence contains untruthfulness C accused of assault and false imprisonment of the complainant, who was C's girlfriend. C argued in his defence stating that they were crack cocaine smokers and that the allegations were invented by the complainant, as C made no attempt to assault or imprison the complainant. C had many previous convictions, and the prosecution sought to adduce two previous convictions of actual bodily harm and battery on an ex-girlfriend and the current complainant. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to section 101(1)(d). C appealed that the two previous convictions did not prove a propensity to tell the truth. Held that the only circumstance in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies/untruthful is where telling lies/untruthful is an element of the offence charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under section 103(1)(a). The reality in this case was that the defendant's previous convictions for violence to women of a similar nature to that spoken to by the complainant gave cogent support to her evidence, thus appeal dismissed. Alobaydi [2007]: Issue of consent - previous convictions displayed untruthful propensity - admissible Rape of a woman in car, and defendant's defence was that the sexual activity was instigated by C, being an issue of consent. Judge admitted evidence that D had been convicted of aggravated burglary, damaging property making threats to kill and assault as D had not pleaded guilty and had given evidence that had been disbelieved by the jury, thus being admissible under gateway D as an important matter regard D's propensity to be untruthful regarding the issue of consent.

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Belogun [2008] D was charged with drug supply and argued a defence of duress. The sole issue for the jury was whether the defence was truthful. A previous conviction for perverting the course of justice was admissible under gateway D by virtue of propensity to be untruthful being an important matter.

Gateway (f): Evidence to correct a false impression s.105(1): For purposes of s.101(1)(f): (a) Defendant gives a false impression if he is responsible for the making of an express/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. Nature of gateway F • Counsel are not normally allowed to lead evidence bolstering the credit of their own witnesses. • False impressions can be given by conduct as well as through testimony. • R v Renda [2005] ◦ R accused of assaulting C for not giving R money, and R argues in his defence that he was simply going home from the pub and that C attacked R instead. R sought to enhance his credibility by stating that he had been a serving soldier and whilst employed suffered a serious head injury resulting in long-term brain damage. However, it was found that R sustained the head injuries through another method. R appealed. ◦ Held that for the purposes of s.101(1)(f) the question whether the defendant has given a “false impression” about himself, and whether there is evidence which may properly serve to correct such a false impression within s 105(1)(a) and (b), is fact-specific. In the present case the defendant was plainly seeking to convey that he was a man of positive good character. There is a significant difference between the defendant who makes a specific and positive decision to correct a false impression for which he is responsible, or to disassociate himself with false impressions conveyed by the assertions of others, and the defendant who in the process of cross-examination is obliged to concede that he

has been misleading the jury, which the defendant in this case was doing. Appeal dismissed. Gateway (g): Attack on another person's character s.106(1): For purposes of s.101(1)(g), a defendant makes an attack on 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 (i) on being questioned under caution/before charge about the offence, or (ii) on being charged with the offence s.106(2): Evidence attacking the other person's character means evidence to the effect that the other person has: (a) committed an offence, or (b) has behaved or is disposed to behave in a reprehensible way. s.106(3): Only prosecution evidence is admissible under gateway G. Nature of gateway G • The rationales ◦ Tit-for-tat: If the accused decides to attack a witness, he deserves to have the same treatment meted out to him. ◦ Evidential completeness and transparency of proof: Jury should be informed of the character of a person making an imputation in order to assess the merits of that person's attack on the credit of another witness. • Also allows for previous convictions to be admitted as bad character evidence. • s.101(3): Court must exclude bad character evidence from gateway G if admitting it would have such an adverse effect on the fairness of proceedings. • R v Hanson (Pickstone) [2005] ◦ Accused claimed that his step-daughter C had maliciously concocted allegations of rape and sexual assault against him, and CA ruled that this defence easily satisfied gateway G, notwithstanding the passage of time since the accused's 1993 conviction of indecent assault on another minor. • R v Highton & Carp [2005] ◦ Highton: H accused of kidnapping, threatening and robbing two victims. H argued in his defence that the two victims were lying and were merely buying drugs and used H as a scapegoat. H had previous convictions of dishonesty and

violence, including robbery, in 2002, which was admitted. H appealed on grounds that judge wrongly admitted previous convictions under s.101(g) and failed to direct jury as to significance of previous convictions. Held, dismissing the appeal, that H's previous convictions, which included convictions for offences of violence and for the possession of offensive weapons, did provide evidence of a propensity to commit offences of the kind with which he was charged. In addition, the judge did direct the jury carefully as to the limits of the value of character evidence ◦ Carp: C accused of assaulting the complainant twice, C argued in his defence that he acted in self-defence. Defence applied under s.100 to cross-examine complainant's violent background, and also ruled that a number of previous convictions of C could be admitted under s.101(1)(g), including offences of violence, theft and deception. C appealed against conviction, held appeal dismissed as since the appellant had attacked the character of the complainant, evidence of his bad character became admissible under s.101(1)(g), subject only to the judge's duty to exclude it under s.101(3) if he considered that to admit it would render the proceedings unfair. ◦ Here the convictions which were relied on did not occur so long ago that it could be said that in the circumstances the evidence was so prejudicial that it must have been wrong for the evidence to be admitted. The evidence could be used to show a propensity on his part to commit the sort of assaults with which he was charged, subject to the question of relevance and the evidence not being unduly prejudicial. • R v Singh [2007]: Jury ought to know what sort of source the allegations came form ◦ S charged with robbery and assault of the complainant, first by supposedly threatening ...