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Supervision 6 - Character Evidence Evidence of the defendant's good character
? A defendant may call witnesses to testify to his good character or cross-examine the Crown's witnesses (Rowton).
? If good character is raised, judge has to deliver a Vye direction to the jury. o Direction on credibility and propensity.
? Credibility only required if D gave evidence.
? Character witnesses may not give their personal opinion of the defendant. o Must be given as evidence of reputation (Rowton).
? Aziz suggests that if no similar previous convictions, good character direction warranted. o Can be given if previous offences are old and irrelevant (Timson). o No direction if it is an affront to common sense. o Lawson reigns in expansive approach to good character. o Direction tailored to facts of the case. Can be qualified if D has aspects of bad character as well (Doncaster).
? Hunter differentiates between absolute and effective good character. o Effective good character - previous convictions are old, minor and have no relevance to the charge.
? Defendant has to raise the issue of good character. o Defence counsel has duty to ensure issue is raised (Thompson).
? In joint trials, if D1 has good character but D2 does not, single direction has to be given about D1 (Vye).
? Differing authority as to how serious to treat failure to give direction: o Seriously (MacDonald). o Not necessarily quash conviction (Jagdeo Singh).
? If defendant introduces evidence of good character, prosecution may call evidence in rebuttal (e.g. Rowton). Introducing a non-defendant's bad character
? S.100(1) allows bad character evidence of a non-defendant when: a. It is important explanatory evidence, or b. It has substantial probative value in relation to a matter which - i. Is a matter in issue in the proceedings, and ii. Is of substantial importance in the context of the case as a whole, or c. All parties to the proceedings agree to the evidence being admissible. o Unless all parties consent, the leave of the court must be sought before any such evidence may be admitted (s.100(4)).
? Cross-examination undermining a witness's credibility may be permissible if one of the three conditions under s.100(1) have been met.
???'Important explanatory evidence' defined in s.100(2): 'without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and its value for understanding the case as a whole is substantial'. Substantial probative value explained in s.100(3). o Question is whether fair-minded jury would regard the evidence as affecting the worth of the witness's evidence (Brewster).
? Credibility needs to be an important issue in proceedings (Yaxley). Evidence will not be admitted if risk of satellite litigation (McAllister). o S.109 requires court to assume that bad character evidence is true. If judge has resolved that evidence satisfies s.100(1), he has no residual discretion to exclude the evidence (Brewster). Propensity evidence is admissible under s.100(1)(b)(i) (H / S (Andrew)). Evidence can be raised alleging a third party is the true culprit if s.100(3)(d) satisfied.
Evidence of the defendant's bad character
? S.98, which opens Pt11 CJA 2003, provides for two situations in which the bad character rules described in the following paragraphs will not apply: a) Evidence which has to do with the alleged facts of the offence with which the defendant is charged, or
? What has to do with alleged facts of offence will be judged temporally (Tirnaveanu).
? Sometimes interpreted widely (e.g. McNeill - propensity?). b) Is evidence of misconduct in connection with the investigation or prosecution of that offence
? S.99 does not abolish discretion that courts generally enjoy to exclude prejudicial evidence under PACE, s.78.
? Bad character is 'evidence of, or of a disposition towards ... the commission of an offence or other reprehensible behaviour' (s.98 and 112 CJA 2003). o Formal caution sufficient (S). o Fixed penalty notices not an 'offence' (Hamer). o Acquittals may be admissible as evidence of bad character (e.g. Z).
? Under old law, one previous acquittal sufficient (Barney).
? Bad character evidence does not need to be heard at start of trial (Hewlett).
? Potential overlap with s.27(3) Theft Act 1968 if D charged with handling. o Convictions may be admitted under s.27(3)(b) to show guilty knowledge or s.101(1)(d).
? Prosecution must give advance notice if they intend to adduce bad character evidence (s.111(2)).
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