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Bad Character evidence

CJA s101: 7 gateways


a)
b)
c)
d)
e)
f)
g)

All parties agree


Evidence given by D
Important explanatory evi
Relevant to important matter in issue b/w d&p
Substantial probative value in matter b/w d & Co D
Correct false impression
D made attack on another person character

S102 106 further explains c-g


-

A & B only avail w/ D consent


E used by CoD
D F G used by pros
Safeguards included s.101(3)--(4) protect D from evidence under D G

A)
- R v Kalu: both D&P wished to rely on same evidence. D previously given caution for hitting child. In trial for
cruelty to person under 16 D wanted to admit to show he had learnt lesson. P wanted to show alleged history of
cruelty.
B)
- Useful in raising alibi in prison whilst offence committed. While own character bad less likely to indicate guilt.
- must give consent, CoD need not give consent. Evid inadmi if did not intent to elicit evid
C) applied restrictively after fears it would be used too much.
- Necess to understand other evidence or substantial value for understanding case as a whole. S102
Explanatory rather than probative - Dolan
R v Edwards: evidence admitted under c to support ID of D as bank robber. Wit identified in ID. She recognised
the bank robber because he had been her heroin dealer the year before. w/o extre info jury wouldnt have
understood why she recognised D
C does not appl where ev easily understandable w/o ev if BC Beverley
R v Davis: evidence about D relationship w/ girlf 20yrs previously NOT C as jury understood case without extra
info of him being jealous,manipulative. Jury already had great deal of evi about relations w/ wife
Court warned about using C when it should be D
purpose of C = inform jury that D has propensity for violence not explanatory evidence, it is evid of propensity.
Evid under C should not be for propensity
Admission under D where it is disputed, court needs to consider effect on fairness. This does not apply to C
because legitimacy is established by ref to its purpose jury to understand
D)
-

Simple relevance/probative value to disputed facts


No requirement of enhanced relev/substantial pro
Relevant to important mater IMPORTANT. If relevant to an issue in case passes threshld
Facts in issue = neccess by law to establish offence/defence. Facts rele are those which directly/ind
prove/disproce

S103(1)(a) propensity to commit offences of the kind with which he is charged


Must go to issue of guilt
Must be issues of disputed fact
Irrelevance:
R v Harwood: one of the issues = whether actions of PC harwood caused death of ian Tomlinson. It
Not disputed that he used baton to strike Ian to ground. However, initial post mortem said that Ian an alcoholic
died of natural causes. 2 further exams: internal bleeding by fall to ground after push. Whether PC cause death.
Matter of medical evidence not propensity to act in certain way.
Where no dispute about facts of the case and question is whether those facts constitute an offence. Evid of
propensity not admissible. Has no effect (section 103(3)).
Offences of the ind which he is charged
s.103(2) & (4) define offences considered relevant

- offence od same description i.e. written charge/indictment is the same


Offence of same category in an order made by sec of state
2 categ have so far been created under s103(4): Theft and Sexual offences ( persons under 16)
Just because offence in same category doesnt mean that it will show propensity to commit. R v Hanson: D
charged w/ burglary. Held that convictions for handling stolen goods/aggravated vehicle taking although within
theft categ did NOT prove propensity to burgle. D did have no of convictions for burgarlary though = admis
Even where an offence not in prescribed/same categ may still show propensity R v D: 3 D charged for rape/so
against children. Previous convictions for child porn. Admissibile under D)
R v Hanson: CoA formulated test to determine whether BCE should be admitted to show Propensity:
1.
2.
3.

Does history of conviction establish propensity to commit offences of kind charged


Does propensity make it more likely D committed offence
Is it unjust to rely on convic of same descript/cate. Will proceedings be unfair if admitted?
S103(2) not exhaustive of types of convic that may be relied on. Nor necces to show prop that convic
must be of same descip/cat

No min munber of events necc to show prop BUT the fewer the no of covic. Weaker is evid of propensity
Single previous Con unlikely to show P unless it has signif features shared by offence charged or
demonstates tendency toward unique/unusual behaviour
Old convic w/ no special feature likely to affect fairness unless can be shown that continuing propensity
Judge myst always consider strength of pros case. If no/little evid against d. unlikely to be just to admit
Previous convic whatever they are
Eviden of prop may relate to events after offence charged R v Adenusi

S103(1)(b) propensity to be untruthful explanatory notes explain


When is it relevant:
Some jurists say nearly always wish to know who is more likely to tell truth
Some say PC fro dishonesty should only be revealed where telling lies element of offence
Cps: always relevant Crime control view
Keane most important matter as direct conflict b/w evid of D and Pros
R v Campbell
Q of whether D has a propens untruthful will not normally be capable of being described important matter in
issue b/w d&p. Will not, of itself, go very far.saying to jury that D more likely to lie doesnt help them.
Common sense that if D did crime, more likely to lie even if he has no propensity. Innocent more likely to tell
truth even if they have propens to lie. so only likely to help when dishonesty part of offence
Can evidence be admitted under gateway D be used to show both propens to commit crime and untruthful?
YES:
R v Campbell: D pleaded Not guilty to false imprison/assault on partner. Has PC for violence and dishonesty.
Pros obtained permission to use evid of only 2 previous convic for violence. 1st ABH to girlfriend 2nd battery for
current girlfriend. Judge also directed jury to take into account prop to be untruthful but court said wrong to
direct. Instead held that once evid had been admitted through gateway. Open to jury to attach signif in any
respect in which it was relevant, but cant direct to use it for this purpose.
.
E)
If it has substantial probative value in relation to a important matter in issue b/w D and CoD
S112 important matter = substantial importance to case as a whole.
Matters in issue = propensity to commit and propens to be untruthful
Adduce evidence to show propensity if to matter of substantial importance not marginal value
Dilemma is balancing rights of CoD who might be running cut throat Defences blame each other
Current provision is broader than CEA 1998
Explicitly to be used by co-D Pros cannot apply
R v Passos-Carr: 2 men charged with GBH. D said V started fight, acted in Self-defence. CoD actually caused
injuries. CoD admitted to punching in SD did not say that D was responsible. CoD had 3 convictions for
assaulting police officer/common assault. D argued that CoD convictions showed propensity to violence.
Who attacked = imp matter in issue. Disagreed that CoD convictions had substantive probative value. Not a case
where cut-throat Def
R v Musone: Men charged with murder of inmate. Both men saud te other stabbed the inmate. One man charged
w/ murder had been tried for another murder 12 yrs ago but acquitted. Other man wanted to adduce evid that
chaudry confessed to committed murder 12yrs ago.

D1 can only admit evidence of D2 propensity to be untruthful if D2 is trying to undermine D1 Defence.


R v Lawson: evidence of a Co-D previous convic not relevant to issue of propensity to commit offence
but relevant to issure of credibility.
Criticised for treating conv for violence as relev to testimonial credibility Roberts & Zucherman,
Controversial because CoA: previous conv which were not for dishonesty/untruthfulness could be used
to undermine a CoD credibility.
Having a history of crim behaviour/misconduct = showing a CoD to be unscrupulous and unreliable
However, CoA made distinction b/w degree of caution to be applied when admitting evid used by pros in
this respect compared with admitting evidence by CoD. More cautious when adduced by pros use to
discredit D.

F)
- D may create False impression through what they say, expressly or impliedly (s.105(1)-(2)), or through conduct
(s.105(4)-(5)).
D responsible for false impression made by an assertion by a defence witness (s. 105(2)(c)) or proswitness if
the defendant has asked a question f the witness in cross-examination intended to elicit it (s. 105(d)).
If false impression, BCE admitted to correct
court will only treat the defendant as having created a false impression if it would be just to do so (s. 105(4))
evidence admissible through gateway (f) is permitted only to correct (s.105(6)).
Only pros evid
S105 should not coverthe case of the plumber or plasterer who appears in court in his best suit.
R v Kiernan: D charged w/ offences relating to property/mortgage frauds. Previous conviction for mortgage
fraud. Judge ruled that evid of previous conviction admissible under (d).
However, judge rejected pros further application to admit evid of fact that Kiernan had absconded on the day of
his conviction and remained at large until arrest for the later/current offences.
However, whilst Kiernan was being cross-exam by pros about whether he was dishonest he gave jury a FI that
he had served time for previous offence. Judge made following observations:
- he said, 'I did things in 1992 and I have paid for it'... 'I broke the law in 1992 and paid my debt to society'.
D was seeking to give impression that he learned lesson before events. He had a past record, but was entitled to
put it behind him
The judge reversed his earlier ruling in light of the answers given by Kiernan in cross-exam and the Court of
Appeal upheld the trial judges decision:
He was nothing of the sort. He had by no means served his time. He had been on the run & would have
remained so. Judge was quite right to allow cross-exam of [Kiernans] absconding as "evidence to correct a
false impression given by the D"
R v Somanathan: D a priest charged w/ 2 rape against female member of congregation. D denied, said he never
had any problems at previous temple, was a conspiracy to give temple bad name and he never acted inapprop
before. But 2 women also made corrobative statements
Founder of previous temple able to give evid about how D acted in previous job
Judge allowed BCE under F for 3 witness because:
Although simple denial cannot = use of F D put himself forward as man who had not previ convic,
enjoyed rep of GC in past job, he was V of conspiracy = opened F for past temple evid. To fully correct
FI judge allowed pros to use full account of why contract ended.
evidence of 3 witnesses admissible under (d) because there was an important matter in issue i.e. the
credibility of C on one hand and D on other BCE relevant to ds propensity to be untruthful
R v Renda D charged with attempted robbery. D said that V attacked him. He had sustained head injury causing
LT brain damaged whilst in military and was in regular employment as security guard. In fact pros had evid that
he was in ST employment, head injury incurred on holiday. In Cross-exam, D forced to concede that employment
was checking passes and injury occurred on holiday. But still said he had not been dismissed from last job. HELD
that D was trying to convery GC/misleading impression. Forced to concede did not amount to
withdrawing/disassociating himself from assertions.
Sig diff b/w person who makes specific/positive decision to correct FI and person forced to concede truth.
D must take initiative to unequivocally correct FI to take advantage of safeguard otherwise BCE admitted.
Even if FI corrected damage credibility still
Discretionary exclusion applies to gateway (f) evidence
Section 78 PACE 1984/common law discretion relevant to (f): R v Highton & Anor
(G):

3 three ways under s. 106(1):


(a) adduces evidence attacking the other person's character,
(b) he asks questions in cross- examination that are intended to elicit such evid/likely to do so,
(c) evidence is given of an imputation about the other person made by D-(i) on being questioned under caution,
(ii) on being charged with the offence
-

attacking = broadly defined


only pros evid admissible

Any persons character is protected by an attack from the defendant, living or dead: R v Hanson
In R v Ball: d charged w/ rape. Police interview said V sexually promiscuous = attack so G) used.
-

Specific exclusion of gateway (g) evidence under s. 103(3)-(4)


R v Nelson: unfair under s. 101(3)-(4) to admit evidence of Ds bad character where D had attacked a
non-witness character.
RB : Considered unfair to admit for comments made that were irrelevant to the issues in case.

EXCLUSION

CJA 2003 101 Defendant's bad character


3) admission of the evidence would = adverse effect
(4) Regard to length of time between the matters to which evidence relates and the matters which form subject of
the offence charged.

PACE S78
admission of the evidence would have such an adverse effect on the fairness of the proceedings that
the court ought not to admit it.

CJA s. 101(3)-(4) stronger than discretionary PACE 1984 s.78(1) because former uses words must not admit
and latter uses may refuse to allow. Parl intention: courts to apply in the same way.
PROCEDURE
The prosecution and defence do not require leave/permission before evidence can be admitted under the
gateways.
Prosecution must give notice to defence if they intend to use (c), (d), (f) and (g) (s. 111).
D must give notice to their CoD if intend to use (e)
Purpose of giving notice is to give the defence an opportunity to challenge the admissibility of the evidence so
judge can rule, whether admissible or not.
Bad character direction
R v Campbell: must explain reason why evidence admitted and why it may be relevant with ref to parti facts of
case
Reciting stat wording = unhelpful
Jury warned about concluding D guilty because of BC