DEFENDANT’S GOOD CHARACTER

An accused’s previous good character will always be relevant at trial, although whether the propensity limb or both limbs will depend on whether the defendant
puts forward evidence
 Accused is entitled to adduce evidence of their own good character with the aim of persuading the jury that a person with that character is unlikely to
have committed the alleged offence

2 LIMBS

CREDIBILITY LIMB PROPENSITY LIMB

Previous good character is only relevant to the accused's credibility as a Previous good character makes it less likely that the accused
witness committed the offence

 If the defendant does not give evidence in the case and has not made  Even if the defendant does not give evidence, the second limb
any statements before trial (such as at the police station), then the will always apply
limb will not apply  Judge should give the second limb every time, as long as the
defendant has previous good character

ACCUSED HAS SPENT CONVICTIONS

WHAT IS GOOD CHARACTER?
Evidence is admissible of general reputation of
good character, not of individual opinion – R v
Rowton
 Inadmissible if evidence refers to specific
events, rather than general reputation – R v
Redgrave
Trial judge retains a direction to administer a good
character direction – R v O’Shea
 Direction: the defendant is a man of good
GOOD CHARACTER character with no relevant convictions
CONSIDERATION  Although there is a discretion, the jury
should not be misled – cannot be told the
accused has no previous convictions

PREVIOUS CONVICTIONS

Should be considered when considering person’s previous record and character evidence – R v Aziz
 Where the defendant has previous cautions, propensity limb should not apply (i.e. they still have the
propensity to commit the offence) – R v Martin (judge refused to give the second limb of a good
character direction under Vye)
 Only defendants with good character or those with effective good character were entitled to such
good character direction – R v Hunter
 VYE DIRECTION

Given if a defendant has previous good character and gives evidence in the case at trial – R v Vye
 Judge should inform the jury of the relevance of the defendant’s good character, as seen by the lack of previous convictions

EXCULPATORY STATEMENTS SEPARATE TRIAL

Evidence that is favourable to the defendant in a
criminal trial that exonerates or tends to exonerate
the defendant of guilt
 Where a defendant of good character had
not given evidence but relied on
exculpatory statements made to the police
or others, the judge should direct the jury to
have regards to the defendant’s good
character when considering the credibility
of those statements
JUDGE’S DISCRETION
PROPENSITY LIMB
None of this meant that there should
With regard to the "second limb" direction as now be a rule in favour of separate
to good character making it less likely that trials for defendants of good and bad
they had committed the crime. character
DEFENDANTS JOINTLY-TRIES
Where defendant A had a good character and they were jointly tried with defendant B who
had bad character.
 Where defendant A had a good character, he was entitled to have the judge direct the
jury as to its relevance in its case, even if he was jointly tried with defendant B who
had bad character (but whose character had not come out at the trial)

Provided that it covers the relevant limbs – R v Miah

JUDGE FAILING TO GIVE GOOD CHARACTER DIRECTION

Judge’s direction that “People without previous convictions, are they less likely to commit offences?” was wholly inappropriate – R v Lloyd

R v PD – ‘It may be possible to envisage such a case where the character of the appellant casts no light upon the defendant's guilt or innocence. But this is not such a case.
Ultimately, the dispute turned on the complainant's word against that of this appellant. This court has said on a number of occasions …… that the character directions are of
particular importance where the verdict turns on whether a complainant or a defendant is believed.’
GOOD CHARACTER OF SOMEONE ELSE
A good character direction is not usually allowed in relation to any other witnesses, including the alleged victim.

OATH-HELPING
Good character evidence / testimony allowed in respect of somebody other than the defendant
 From social worker that victim was an honest and trustful person amounted to oath-helping (should not have been allowed and served no useful
purpose) – R v Beard
 From victim’s mother that her daughter was polite and brought up to respect others was of minimal assistance and was allowed – R v Tobin
DEFENDANT’S BAD CHARACTER
Chapter 1, Part 11 of the Criminal Justice Act 2003 – admissibility of evidence of bad character of defendants and other witnesses.

MEANING OF BAD CHARACTER

s.98 CJA 2003 MISCONDUCT

Evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct s.112 CJA 2003
on his part, other than evidence which— Commission of an offence or other reprehensible behaviour – R v
(a) has to do with the alleged facts of the offence with which the defendant is charged, or Renda
(b) is evidence of misconduct in connection with the investigation or prosecution of that
offence.  Evidence not related to the criminal proceedings may
amount to misconduct – R v Saleem
 E.g. evidence that a person has a sexual interest in children
(R v Manister) or is a racist (R v Norris)

APPLICATION STATUTORY RULES If defendant has no previous convictions but admits other
reprehensible conduct which is relied on by the prosecution, judge is
s.98(a) CJA 2003 required to deliver a bad character direction

Has to be related to evidence where some nexus or close connection in time between the offence
charged and the evidence the prosecution sought to adduce – R v Tirnaveanu

 If no connection in time, bad character evidence is only admissible if it falls within one of
the gateways

JUDGE’S DIRECTION FOR BAD CHARACTER

s.98(b) CJA 2003
Must give a clear direction to jury as to how the bad
Do not apply to matters connected to the offence charged character evidence is to be treated (i.e. whether it goes to
 Any matters connected to the offence charge will be admissible, without considering whether credibility, propensity or both) – R v Edwards
it satisfies the test of admissibility
o E.g. evidence that somebody used a stolen car for an offence or lied during a police
investigation are both examples of bad character, but fall outside the scope of the rules,
so will generally be admissible

 Evidence related to the circumstances/alleged facts of the case (i.e. complainant was a drug
dealer) should be admitted – R v Machado
 Earlier threats of violence were admissible, provided they were related to alleged facts of the case
– R v McNeill (Tracy) (threats of violence occurred 2 days after charged with offence)
7 GATEWAYS
s.101(1) CJA 2003

Evidence of defendant’s bad character is admissible if covered by one of the following gateways:

(a) all parties agree, NOT CONTENTIOUS ALL PARTIES AGREE

If defence do not object, evidence can be admitted

(b) the defendant himself or in a question asked by him in cross-examination gives evidence of his own bad character, NOT CONTENTIOUS

GIVE EVIDENCE OF HIS OWN BAD CHARACTER

Defendant may suspect that their misconduct may be revealed by prosecution, so raises the matter themselves in
the hope of appearing more honest to the jury – R v Speed

(c) it is important explanatory evidence,

IMPORTANT EXPLANATORY EVIDENCE

s.102 CJA 2003

Evidence without which the court or jury could find it impossible or difficult properly to understand other evidence in the case (must be more than merely
background evidence)

 Prosecution permitted to use allegations of bad character under s.101(1)(c) to prevent the jury being misled by an incomplete picture of the
defendant – R v Haigh
 Evidence of stormy relationship is admissible as part of the continuing background of the relationship – R v Phillips
 Admissibility under this gateway is precluded if it is sought to use the evidence to contradict the defendant’s case – R v Davies

R v Osbourne - the accused had been charged with murdering a close family friend. The Court of Appeal took the view that evidence of the defendant's
tendency to become aggressive and shout at his partner in relation to the care of their young child (when he had not taken his medication for schizophrenia)
had been wrongly admitted as important explanatory evidence, under this gateway, nor could it even be regarded as reprehensible behaviour.
 (d) it is relevant to an important matter in issue between the defendant and the prosecution,

IMPORTANT MATTER IN ISSUE

s.101(1)(d) CJA 2003

To help determine either of the following:

1. Whether the defendant has a propensity to commit offences of the kind with which they are charged,
2. Whether the defendant has a propensity to be untruthful.

SAME DESCRIPTION OR CATEGORY

s.103(2) CJA 2003

Propensity may be established by proof that the defendant has been convicted of an offence of the same
description or category

 E.g. an accused s charged with an offence of affray contrary to s.3 Public Order Act 1986. The PROPENSITY TO BE UNTRUTHFUL
fact that he has three previous convictions for affray means that these are likely to be admissible
under this gateway on the basis that they are offences of the same description.

A single or small number of convictions will not necessarily show propensity, old convictions could affect
the fairness of proceedings – R v Hanson, R v Gilmore, R v Pickstone

CATEGORIES OF OFFENCE FACTUAL SIMILARITY

If offences are not of the same description or

(1) Sexual offences category, they may still be admissible under
These include all sexual offences. s.103(2) if they bear factual similarities with
the offence charged – R v Brima
(2) Theft category
This category includes theft, robbery, burglary, taking a conveyance  Dissimilar offences may have
without consent, handling stolen goods, going equipped, making off prejudicial effect and bind the jury –
without payment and attempting any of the above. R v Benabbou
When an accused has put forward false representations

 Convictions for perjury or other offences involving deception and dishonesty which are inherently relevant to the issue of the accused’s credibility

o Untruthfulness is not the same as dishonesty, conviction would only be admissible if the defendant’s untruthfulness was relevant to the case – R v Hanson
(pleaded not guilty and not believed by jury)
o Judge should warn jury that deception in previous offences does not prove untruthfulness in current testimony – R v Ellis

 Where the accused has been convicted having pleaded not guilty and given evidence on oath at his trial

o The fact that the accused had not been believed on oath would then have an impact on his subsequent credibility

 Does not include oath

Hanson Direction – where bad character is admitted under this gateway, direction must be given to jury
 Must not conclude a defendant is guilty merely because of previous convictions
 Whether defendant’s bad character evidence helps to establish propensity is for the jury

(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

SUBSTANTIAL PROBATIVE VALUE

s. 112 CJA 2003

An important matter is a matter of substantial importance in the content of the case as a whole

Allows for evidence for both propensity and credibility, must be more than merely relevant

 Cut-throat defence (denies responsibility and blames the other) – R v Musone

 Each co-defendant blaming each other – R v Johnson
 Blaming other co-defendant has a tendency to ‘fly off the handle’ – R v Hesse and another
(f) it is evidence to correct a false impression given by the defendant, or

CORRACT A FALSE IMPRESSION

s.105(1)(a) CJA 2003

Can be express or implied assertions

s.105(4) CJA 2003

Can be conduct, which includes appearance or dress

s.105(3) CJA 2003

Defendant can dissociate themselves from the false impression created

 Adducing evidence that defendant has previous inappropriate relationships with children was admissible to correct impression that he
had no sexual interest in children – R v Sutton

 Adducing evidence that the defendant had suffered injuries as a result of being a serving member of the Armed Forces in a way that was
misleading was admissible – R v Renda

 Adducing evidence of previous convictions were inadmissible in view of the defendant being the victim of crime and leading a
responsible life since – R v Garrett

(g) the defendant has made an attack on another person’s character.

AN ATTACK ON ANOTHER’S CHARACTER

s. 106(2) CJA 2003

Means evidence that the other person has:

 Committed an offence (could be different from the one which defendant is charged with)
 Behaved, or is disposed to behave, in a reprehensive way

Evidence adduced of defendant calling another person ‘a slang’ – R v Ball

Evidence adduced of defendant and complainant smoking crack cocaine was admissible – R v Singh (James Paul)
 SAFETY VALVE

s.101(3) CJA 2003

Allows the court not to admit such evidence of bad character where the admission of the evidence would have such an adverse effect on the fairness of the proceedings
that the court ought not admit it – R v Highton

 Safeguard for defendant – R v Eastlake

 Similar to s.78 PACE, but no discretion where admission of the evidence could be said to have such as adverse effect on the fairness of proceedings

s.103(3) CJA 2003

Judge has discretion to exclude evidence if, by reason of the length of time since the conviction, it would be unjust to apply it to the defendant’s case – R v Dhoppler

s.104 CJA 2003

Strict requirement for leave from the court before such bad character evidence of a non-defendant may be admitted
NON-DEFENDANT’S BAD CHARACTER
s.100(1) CJA 2003 – Evidence of a witnesses’ bad character is admissible if:

ALL PARTIES TO THE PROCEEDINGS AGREE

IMPORTANT EXPLANATORY EVIDENCE s.100(4) CJA 2003

s.100(2) CJA 2003 Strict requirement for leave from the court before bad character evidence may be admitted

Evidence if, without it, the court would find it difficult

or impossible to properly understand other evidence in
the case and its value for understanding the case as a
whole is substantial

R v Lee

SUBSTANTIAL PROBATIVE VALUE

Has substantial probative value in relation to a matter in issue in the proceedings, and is of substantial importance in the context of the case as a
whole

s.100(1)(b) CJA 2003

Evidence which helps to prove an issue in dispute between the parties one way or another

R v Brewstar – Test for reliability of testimony from a non-defendant

a) Whether the creditworthiness of the non-defendant was a matter of substantial importance
b) Whether the bad character relied upon was of substantial probative value

R v Hester – where credibility is an issue in relation to an important witness, evidence that a witness has previous convictions for dishonesty may
be admissible as being relevant to the issue of credibility

R v Bovell – as to the two earlier convictions, the court took the view that these were too old to be of substantial probative value and substantial
importance