A more recent version of these Defendant's Bad Character notes – written by City Law School students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our Criminal Evidence Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
DEFENDANT'S BAD CHARACTER ADMISSIBILITY UNDER S101 CRIMINAL JUSTICE ACT 2003 Q1: Is the evidence "bad character" evidence?
"Bad Character" - s98 CJA 2003 Evidence of/disposition towards misconduct
"Misconduct" - commission of an offence or other reprehensible behaviour (s112)
Not "bad character" if the evidence:
has to do with the alleged facts of the offence charged, or
misconduct in connection with the investigation or prosecution of that offence s101(1) CJA 2003
s101 Defendant's bad character (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only 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, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person's character. s101(1)(c): Bad Character is Important Explanatory Evidence Prosecution or Co-Defendant may use this gateway Q: Is the Bad Character evidence "important explanatory evidence"?
Q: Would court/jury find it impossible/difficult to properly understand other evidence in the case without the evidence?
Q: Does the evidence have substantial value for understanding the case as a whole?
"Important explanatory evidence" - s102
Evidence without which, the court/jury would find it impossible or difficult to properly understand other evidence in the case, and
it has substantial value for understanding the case as a whole.
Impossible/Difficult to Properly understand other Evidence in the Case Includes: being able to understand significance of other evidence and context and circumstances of
evidence of an important matter-in-issue/offence. And being able to (properly understand the evidence in order to be able to) evaluate the evidence The Bad Character Evidence must go to understanding other evidence
not credibility/propensity - otherwise bypassing s101(3)-(4) safeguards
and its value to understanding the case must be substantial. Procedure for Admitting Prosecution and Defence should agree on statement of the facts (of Defendant's Bad Character) which are strictly necessary to enable the jury to understand the other evidence (without distracting from real issues in the case). Judge should give carefully-worded direction explaining the limited purpose for which the Bad Character evidence was admitted and instructing Jury not to use as evidence of Defendant's guilt. s101(1)(d): Relevant to an Important matter-in-issue Between Defendant and Prosecution Gateway only available to Prosecution "Important matter-in-issue" - of substantial importance in the context of the case as a whole Bad Character Evidence must have substantial probative value in relation to a matter-in-issue Q1: Is the Bad Character evidence relevant to an important matter in issue?
"Relevant" - Court must assume that the Bad Character evidence is true when assessing its relevance "Matter in issue" - Includes 2 types:
1. Issue: Did Defendant had propensity to commit offences of the type charged?
Unless having such propensity makes it no more likely he did commit the offence charged.
2. Issue: Does Defendant have the propensity to be untruthful?
Unless it is not suggested Defendant's case is untruthful.
"include" - may be other "matters in issue" which the evidence could be relevant to
Issue: Identity - may be able to adduce Defendant's Bad Character if supports Identity evidence.
Matter-in-issue must be "live" - cannot admit evidence of propensity when Defendant has confessed to committing the offence, or evidence of untruthfulness when Defendant's honesty is not in issue.
Matter-in-issue: Propensity to Commit Offences of the Type Charged To be relevant to propensity to commit offence of type charged, requires:
1. conviction is of an offence of the same description or type
2. that conviction is "relevant" to propensity to commit the current offence Conviction of Same "Type"/"Description" as offence charged Conviction of an offence of the same description or category as the offence charged. "same description" - if 2 offences would be described in same terms on the indictment "same category" - category defined by order of the Secretary of State
eg. "theft category" - theft, burglary robbery, or
"sexual offences (persons under 16) category" - rape, incest, indecent assault
Conviction is "relevant" to propensity to commit offence charged Must be "Relevant" - not too wide a definition Judge must focus on the particular case to determine whether the conviction truly demonstrates propensity to commit the offence charged. The conviction must be clearly directed at a specific issue/the charge.
Consider what the issue in the current case is
* Does the conviction go to that issue?
Consider the previous conviction in detail
Consider the number of similar previous convictions of that type/description
* more likely that convictions show propensity where more convictions
* single conviction may show propensity if show tendency towards unusual behaviour
Bad Character Evidence to Bolster Weak Cases Judge should consider timing of assessment of the admissibility of the conviction. Bad Character Evidence is intended to assist the Jury in evidence-based conviction but should not be used to obtain conviction by prejudicing mind of Jury against Defendant. Therefore, may be best for Judge to wait until Prosecution evidence adduced before considering the Bad Character evidence in order to assess the strength of the Prosecution evidence. Uncharged Criminal Misconduct Prosecution may adduced misconduct, which Defendant not convicted of, as Bad Character evidence of propensity if Tribunal of Fact satisfied that Defendant did it beyond all reasonable doubt "Reprehensible behaviour" - Where Prosecution seek to elicit evidence of Defendant's previous "reprehensible behaviour" as Bad Character evidence- must first prove that the behaviour actually happened. Cross-admissibility Where Defendant tried of 2+ similar offences - Jury may be directed that, if convict on one count,
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