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Character Evidence Notes

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CHARACTER EVIDENCE

1. Credibility

2. Propensity
? Often assumed that those who are dishonest in criminal acts are untruthful in testimony - there have been studies to show the two aren't so easily linked. Evidence relating to character of own witness:
- General rule that you cannot call evidence to reinforce the credibility of your own witnesses.
- Robinson: Prosecution called educational psychologist to testify the accused was not suggestible or overly imaginative, this was not allowed. o Cf. DS where it was normal to bring up profession of witness as a Church of England clergyman. Disclosure of witness' BC
- Crown must disclose information on witnesses' BC to defence.
- Failure to disclose can lead to quashing where credibility was key issue in the case o Vasilou: quashed bc realistic prospect that the outcome might have been different if jury had known of the BC evidence. o Weigh w/ case evidence. Impugning character of opponent's witness
- Either s100 CJA
- Or cross-exam directed at bringing out previous convictions/disreputable behaviour/bias/lack of veracity. This is generally allowed so long as relevant o witness' credibility and so long as not conducted unfairly or oppressively.
- Crim Pr Act 1965 s6 - witness can be asked about 'any...misdemeanour' - unclear whether this means anything...even offences not related to dishonesty. Rehabilitation of Offenders Act 1974
- Limits range of previous convictions that can be introduced into evidence. Crim Practice Directions require crim courts to respect to policy underlying it.
- Spent convictions should not be referenced when that can be avoided + no reference w/o authority of judge which should only be given in the interests of justice.

EVIDENCE OF D'S GOOD CHARACTERIf the issue of good character is raised then the judge will have to give a Vye direction indicating how the jury should use the information.

What constitutes admissible character evidence?

?Rowton: R indicted for indecent assault and evidence was given from pros witness that, in the witness' opinion, R was capable of gross indecency and immoral acts. o This was not allowed - was evidence of opinion rather than of general reputation. Redgrave: R wanted to adduce evidence of love letters he received showing disposition toward heterosexual rather than homosexual relationships after he was charged with harassing someone. CA ruled it inadmissible - common law restriction that the defence and prosecution cannot adduce evidence of disposition.

When will D be considered of good character???

Anyone testifying to Ds good name and reputation, or D testifying to that effect. Wider approach in case law though o If no criminal record can = good character o Courts might look over discreditable conduct on Ds part when determining whether he merits a good character. Examples: o Durbin: D lorry driver appealed against conviction for importing PS2.5m cannabis into the UK. He had 2 previous dishonesty offences both of which were spent. He admitted that he had told lies but that he had been engaged in smuggling computer parts rather than drugs. CA held there should have been good character direction. o Aziz: charge of income tax and VAT fraud of A, T and Y - A had no criminal record. Y also relied on lack of crim record but admitted to knowingly making false mortgage app and lying to customs officers. T had no previous convictions but acknowledged he had not declared full income and had not made employees declare full income.
? Held that they should all get good character directions. Where they will be refused o Lord Steyn in Aziz: where they commit serious criminal behaviour similar to indictable offence. o Shaw: Good character direction would have been more qualified so as to do more harm than good - S had dealt drugs and been member of gang.

Form of the Direction?

D must raise good character issue by giving/calling evidence of good character or eliciting it from witnesses in cross-exam o Up to d counsel to ensure direction is delivered where D entitled. Judge must deliver a direction to the jury instructing them of the evidentiary significance of good character - the Vye direction o Say that good character is no defence to criminal charge o First direction: propensity - jury must be told that, by virtue of his good character, the accused might be less likely than otherwise to have committed the charged offence.
? Always give propensity!
o Second direction: credibility - where D gives evidence or does not give evidence + prosecution put a 'mixed statement' into evidence, the jury must be told they can take his good character into account in deciding whether to believe his evidence or the statement.
? Give credibility when relevant to a matter in issue

??

Where Co-Ds, still give good character even if other D doesn't have such a direction. Qualified judicial directions: o Aziz: judge can convey a fair and balanced picture by adding words of qualification concerning any other proved or possible criminal conduct of the accused which might have emerged during the trial. o Doncaster: Where there is both good and bad character, you give both but alter them - a full good character direction doesn't make sense where evidence of bad character was admitted. So giv BC direction to take account of lack of criminal record, for example (Rix LJ). When a good character direction isn't properly given: o Appellate court will take into account but usually not enough to render unsafe by itself o Exceptional circumstance in Lloyd where the credibility of D and V were central to the case, V was of bad character, and the incident was 24 years before trial. Here, it was important to give conventional Vye direction =
unsafe. o Brown v State of Trinidad and Tobago: Lord Brown said that, as a rule of thumb if there is a clash between the alleged truthfulness of the witnesses on each side, there should be a good character direction.
? So not auto fatal to the conviction but should ask whether credibility is a central issue.
? This is a pretty strong approach - doubted in Sealey PC. o NOTE - they are more strict in the PC cases because they have the death penalty in Trinidad and Tobago - much more cautious.

DEFENDANT'S BAD CHARACTERThose who have committed an offence have tendency to reoffend. Offender profiling - courts not receptive to it. Lord Sumner in Thompson: "There is all the difference in the world between evidence proving that the accused is a bad man and evidence proving that he is the man". Law Com studies that juries more likely to convict when told of previous similar convictions. Prejudice o Jurors inferring guilt from previous conviction o Moral prejudice in treating burden more lightly where it is thought D has less to lose.

Note: if BC evidence inadvertently revealed during the course of the trial, judge would have to consider the risk of prejudice to the accused and whether new trial necessary. The old common law and statutory mix of rules criticised by Law Commission and Auld's Review - produced inconsistency and unpredictable results, made tactical considerations of parties paramount and inhibited the defence. Auld: "It is not an honest system in that it does not do what it is claimed to do".CJA 2003 effects a blank slate though s99 (abolishes all CL rules) S118(1) - rule about reputation still stands.

Structure of BC problems:
- Is it relevant?
- Is the evidence of bad character?
- Can you get it through the gateway?
- Should the evidence be excluded?

Is the evidence of bad character?
s.98 definition: "evidence of, or of a disposition towards misconduct on his part" 2 exceptions in s.98(a) and (b) (a) the evidence has to do with the alleged facts of the offence with which D is charged o Malone: prosecution allowed to adduce evidence of forged report by agent M hired to watch wife. Crown succeeded in arguing that it was within s98(a) so was not BC evidence - 'to do with alleged facts of the offence' because Crown's case was circumstantial and based on marital difficulties. o Temporal relevance - Machado, 'events contemporaneous with the alleged facts'.
? Cf. Sule where they said temporal association is not necessary - wording extends to things giving motive for main offence (here, previous shootings suggesting killing was due to on-going feud). o Sometimes widely interpreted - McNeill: trial judge held that M breaching bail conditions and threatening housing officer was to do w/ alleged facts of offence of threat to kill she was on trial for.
? This seems to be propensity though, so is questionable. o Limits in that Crown usually cant adduce evidence showing particular bad character propensity - Benguit, 2 witnesses could not testify in Ds trial for carrying weapon that he usually did. The point of that would not be to show he had a knife on the day but that he was the sort of person who carried one. (b) it is evidence of misconduct in connection with the investigation or prosecution of the offence o E.g if accused sought to intimidate prosecution witnesses or bribe police. "Evidence of, or of a disposition towards, misconduct"
? s.112 defines misconduct as the commission of an offence or other reprehensible behaviour.
? "Commission of an offence" o Formal cautions are within the meaning of BC (given to those who acknowledge guilt) but fixed penalty notices are not (Hamer).
? "Reprehensible behaviour" o Minor misbehaving will not be BC evidence. o Weir: appellants had been arrested on suspicion of assault but released without charge - not reprehensible. Also, Ws r/s with younger girl not per se reprehensible behaviour (no undue influence etc). So all admissible. o Osbourne - court looked at whether reprehensible within context of charges against D. o Saint: interest in dogging reprehensible in context of sexual assault charge.

DISCRETION TO EXCLUDE s.99 abolishes all CL rules but does not affect CL discretion and s78 power to exclude unfair evidence.
- s.101(3) CJA 2003 restricted statement of s78 rule - no admission of BC evidence through gateways where it would have 'such an adverse effect on the fairness of proceedings that the court ought not to admit it'.
- Courts haven't really shown what the position of s78 is - have suggested judges should still apply all of the discretions + the discretions in the 2003 statute. o Highton.

Acquittals may be admissible as 'evidence of bad character' Z: HL decided that Z's previous 3 acquittals for rape could be admitted as bad character evidence provided they were sufficiently relevant. Harrison: H acquitted 4 times of attempted strangle. Persistent pattern of conduct here made it admissible. Barney: 1 acquittal for homosexual rape was relevant in a homosexual rape case. Did not matter it was only 1 because the nature of the allegations were so specific. Makes sense because acquittal just means the jury had reasonable doubt as to guilt.

When is evidence of a defendant's bad character admissible under the 2003 Act?
s.101: Bad character evidence is inadmissible unless it falls within one of the 7 statutory gateways outlined in s.101(1)(a)-(g).

a) All parties agree b) Evidence adduced by D himself asked by him in cross-exam and intended to elicit it

c) Important explanatory evidence ? 102 d) Relevant to an important matter in issue between D and P ? 103 e) Substantial probative value in relation to an important matter in issue between D and co-D ? 104

f) Evidence to correct a false impression given by D ? 105 g) D has made attack on another person's character ? 106 Judicial discretion to exclude Under s.101(3) if D applies to exclude the evidence, and it appears the admission of the evidence will have such an adverse effect on the fairness of proceedings that the court not out to admit it, the court must not admit under 101(1)(d) and (g).
- s.78 but it must not be admitted and D has onus to bring it up.

-

s.101(4) - where D is objecting court must have regard to the length of time between matters to which evidence relates and matters forming subject of offence charged. o Hanson - dates from date of commission rather than conviction.

THE SEVEN STATUTORY

GATEWAYS

- S101

Gateway (a): When 'all parties to the proceedings agree to the evidence being admissible' - s101(1)(a)
- Defendants rarely agree to bad character being introduced in evidence.
- Can infer agreement from acquiescence - Williams. Gateway (b): When 'the evidence is adduced by the defendant himself or is given in an answer to a question asked by him in cross-examination and intended to elicit it' (s101(1)(b))Might be something positive in the defence volunteering his own bad character evidence rather than the prosecution or co-accused to introduce it dramatically. So can be tactical for D to introduce evidence himself - 'stealing sunshine'

Gateway (c): When 'it is important explanatory evidence' (s101(1)(c)) s.101(1)(c) further defined in s.102 - will be 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??

Pronick: evidence of Ps conviction of assault + complainant's evidence relating to several previous occasions of assault by P. Latham LJ said unless complainant could give account of nature of r/s then jury could not assess. o Cf. Beverley: here, the evidence was clear w/o the bad character provisions and Gateway C was not available. o And Saint: could not admit interest in swinging and dogging in rape charge - jury would not have found it impossible to understand case w/o it. Needs to be genuinely vital according to latter two cases. As under old law, there needs to be careful directions to juries in which the facts are outlined in a way that doesn't distract them from the key elements. Don't use C if you can use other gateways - o In Davies admitted under C but this was wrong, couldn't say jury would not have understood evidence w/o BC evidence or that the value of the evidence for understanding the case was substantial, as required by s102(a) and (b)
? By admitting under C rather than D, judge deprived D of protections from D (discretions in s101(3) and (4)).

Gateway (d): When 'it is relevant to an important matter in issue between the defendant and the prosecution'

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