CHARACTER OF THE DEFENDANT DEFENDANT'S GOOD CHARACTER Vye direction

(1) the credibility limb: direction as to relevance of D's good character to D's credibility only if (a) give if D has given evidence; OR (b) give if D does NOT give evidence but relies on own pre-trial mixed statements
/ answers

o N.B. wholly exculpatory statements do not entitle D to the credibility limb, as they are not admissible as truth of contents [?] jury has nothing to assess in terms of credibility

(2) the propensity limb: direction as to relevance of D's good character to the likelihood of him having committed the offence charged (always given) The Nye direction

? applies if: (a) D has pre-cons; AND (b) those pre-cons are irrelevant OR spent; AND (c) fairness demands that D be treated as if no pre-cons
? = modified Vye direction (CANNOT mislead jury into thinking D has no pre-cons)
? matter for judicial discretion Which direction will D get?

? Vye (a) (b) (c) (d)

D of good character D of positive good character (evidence of general reputation) D of good character, jointly tried with co-D of bad character D formally cautioned, no pre-cons - judge may decline to give propensity limb

? modified Vye (a) D charged with multiple offences pleads G to lesser alternative offence + is convicted on greater offence NOT entitled to direction if plead G to count that is NOT lesser offence

? Nye (a) D with irrelevant / spent pre-cons
? modified bad character direction (good character direction = affront to common sense) o give if D does NOT have pre cons OR relevant pre-cons BUT: (a) shown at trial to be G of criminal conduct; OR (b) evidence of bad character admitted under CJA 2003

DEFENDANT'S BAD CHARACTER (13-25 - 13-103) Relevance of bad character

? evidence of bad character may be relevant in following ways (a) character as a fact in issue: D's character itself is a fact in issue e.g. Firearms Act - offence for person imprisoned in past to carry firearm

(b) character relevant to a fact in issue: D's character probative of a fact in issue (c) character relevant to credit: D's character relevant to his credibility

Definition

? bad character (s98 CJA 2003) (a) evidence of misconduct (b) evidence of disposition towards misconduct (c) evidence of reputation for misconduct
? "misconduct" (s112 CJA 2003) (a) evidence of the commission of an offence: i. a pre-con ii. another count on the indictment (s101(d) CJA 2003) iii. an offence for which have been investigated but for which D has never been prosecuted

iv. an offence of which D has been acquitted (s101(d) CJA 2003) (b) other reprehensible behaviour (court decides what = reprehensible) i. an offence for which have been investigated but for which D has never been prosecuted

ii. an offence of which D has been acquitted - narrow (s101(d) CJA 2003) BAD CHARACTER NOT COVERED BY CJA 2003 (s98 CJA 2003)

? following governed by common law: (a) evidence that has to do with the facts of the offence with which D is charged (s98(a))

i. evidence must be admitted ii. "to do with" =
o commission of offence OR other offences OR other reprehensible behaviour

o test: is there a nexus in time between charged offence + misconduct?

(b) evidence of misconduct in connection with the investigation / prosecution (s98(a))

BAD CHARACTER UNDER CJA 2003 Offences committed when D was a child (s108)

? evidence of offences committed by D when under 14 are not admissible unless: (a) previous and current offence both indictment only offences; AND (b) court satisfied interests of justice require Assumption of truth re: relevance / probative value in seven gateways (s109)

? probative value / relevance of evidence operates on the assumption that it is true UNLESS no court / jury could reasonably find it to be true The seven gateways (s101(1) CJA 2003) section

gateway

admissibility

who can rely

exclusionary discretion

s101(1)(a)

all parties agree to the evidence being admissible

for agreed purpose only

s101(1)(b)

the evidence is adduced by D OR given in answer to a Q asked by D in XX and intended to illicit that evidence

any relevant purpose

usually D (tactical decision)s101(1)(c)

it is important explanatory evidence

for agreed purpose only

pros

s78 PACE

----AND----

---OR---

N.B. beware using as evidence of propensity (higher threshold test)

D

breach of notice requirement

it is relevant to an important matter in issue between D and pros

any relevant purpose (usually guilt +
credibility)

only pros

s101(3) - judge

s101(1)(d)

pros
----AND----D

---OR--s103(3) - defence
---OR--CL: prejudicial effect outweighs probative value

N.B. mere relevance

---OR--breach of notice requirement s101(1)(e)

s101(1)(f)

it has substantial probative value in relation to an important matter in issue between D and co-D

any relevant purpose

it is evidence to correct a false impression given by D

only to correct false impression

co-D

N.B. enhanced relevance cf s100(b)

only breach of notice requirement (N.B. s78 and CL can only be used to exclude pros evidence)

only pros

s78 PACE
---OR--CL: prejudicial effect outweighs probative value
---OR--breach of notice requirement

s101(1)(g)

D has made an attack on another person's character

any relevant purpose (usually credibility, as this was the only purpose under the CL equivalent of this limb)

only pros

s103(3) - defence
---OR--CL: prejudicial effect outweighs probative value
---OR--breach of notice requirement

(s101(1)(b)) - Evidence adduced or elicited by D

? how can evidence be admitted?
(a) as part of case; OR (b) as a result of XX if the Q is intended to elicit evidence of bad character
? when would the gateway be used?
(a) tactical decision by D: i. put pre-cons before jury to boost credibility AND get modified good character direction; OR

ii. D's evidence involves attack on credibility of another person (so pros will apply under s101(g) anyway) s101(1)(c), 102 - Important explanatory evidence

? the test (s102) o = important explanatory evidence if: (a) without it tribunal of fact would find it impossible OR difficult to properly understand other evidence in case; AND

(b) substantial value for understanding case as a whole
? impossible or difficult o ? fact the jury might wonder about a time lag in reporting an incident o ? evidence of motive to show that it is more probable that D committed the offence

? N.B. overlap with s98(a) ss101(d), 103 - Important matter in issue between D and pros

? basic test o admissible if: (a) important matter in issue= matter of substantial importance in context of case as a whole (s112(1))

----AND----

(b) relevant (probative value - mere relevance) to one or more matters in issue:

i. ii. iii. iv. v. vi.

D's ID AR of offence MR of offence any defences propensity to commit offences may be propensity to be untruthful may be

? similar fact evidence (CL) o still inform case law on CJA 2003 o evidence of bad character admissible if:probative force sufficiently great to make it just to admit it notwithstanding that it is prejudicial in tending to show D was guilty of another offence:

(a) on the indictment; OR

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