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Bad Character Evidence Notes

LPC Law Notes > Criminal Litigation Notes

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A s.2 HSWA offence (Failure to ensure, so far as reasonably practicable, the health, safety and welfare of employees) carries at: Mag C = 6 month impri&/or
PS20,000 fine

Work Shop 3 Criminal Litigation

Bad Character EXAMPLEI

? Both the CPS and D who is adducing/challenging evidence of bad character must give notice of intention to do this both to the court and to the other parties in the case CrimPR r.35.4(1) and (2)).
? If either party wishes to adduce evidence in relation to a third party, court application.The court will impose time limits for the parties to serve any notice/make any application;
- D may oppose the introduction by application (time limits apply again). Magistrates & Crown Court
- CPS adducing D's bad character = notice no more than 28 days (MC) or 14 days (CC) after D pleaded not guilty CrimPR r.35.4(5) Procedur - D adducing Third party bad character including a Co-defendant = apply to court for permission as soon as reasonably practicable but no later than 14 days after CPS e disclosed the convictions of the Third party or Co-defendant CrimPR r.35.3(a) and P.420 (b)
- CPS adducing 3rd P bad character: apply to court for permission as soon as reasonably praCrimPR r.35.3(a)
- D orCPS applying to exclude the other P's application = 14 days after receiving the notice CrimPR r.35.4(5)
- Court may allow oral notice to be given at trial and extend or shorten any time limit if it would be in interests of justice to do so. Where an application is opposed the court will usually determine admissibility at a pretrial hearing; o Magistrates; case management hearing/pre-trial review/specific hearing; o Crown Court: plea & case management hearing/ specific pre-trial hearing

Step 1: Definitio n of Miscond uct?
Flowchar t P.424

Evidence of the suspect's bad character is admissible only if it is relevant to an important issue in the case, or unless the court rules otherwise.
? s.98 CJA: "bad character" means evidence of or disposition towards misconduct
? s.112 CJA: "misconduct" means the commission of an offence or other reprehensible behaviour (e.g. racism, arrests, bad disciplinary record at work)
? [if the alleged misconduct by D is connected to the offence with which D is being charged, it will not fall within the definition of bad character under s.98, and will therefore be admissible in evidence without needing to consider the test for admissibility of bad character]
? A Defendant's bad character cannot in itself prove guilt.

Apply to the facts: do all of D's previous convictions constitute misconduct?
Step 2: Prosecut ion adduces D's propensi ty To commit offences of the same kind and

Ds record of previous convictions is an important matter in issue between her and the prosecution. The previous convictions are an important matter because they are"Important matter" = a matter of substantial importance in case as a whole (s.112(1))"Substantial" = more than trivial or marginal (CJA Explanatory Notes) On the facts, the important matters in issue between the D and the Prosecution are:

1. Whether D has a propensity to commit offences of the kind that D is charged (s.103(1)(a) CJA); and

2. Whether D has a propensity to be untruthful (s.103(1)(b))

1. Propensity to Commit Offences of Same Kind with which D is chargedP.403D will be shown to have propensity to commit offences of the kind which she is

Work Shop 3 Criminal Litigation be untruthf ul under Gateway s.101(1) (d) P.403
Flowchar t P.426

charged if the previous convictions are: Of the same description as current(s.103(4)(a)): The previous conviction does not have to be described in identical terms. What matters is whether the facts of the earlier conviction would support the current charge in the same terms (e.g. P.403)?

The same category as currentunder s.103(4)(b): O r

If they belong to the same category of offences prescribed by the Secretary of State. (e.g. the "theft" category encompasses burglary, handling stolen goods, making without payment etcP.404

Earlier offences which are factually similar? (irrelevant if different description or category) (e.g a person has a tendency to be violent and use broken glass when he is drunk) Any other way of proving propensity to commit offences of the kind? (apart from offences)

R v Hanson, Gilmore &Pickstone'stest to consider when the CPS seeks to adduce evidence of a D'sprevious convictions in order to demonstrate his propensity to commit offences of the kind with which he is charged: (i) Does the D's history of offending show a propensity to commit offences?
(ii) If so, does that propensity make it more likely that the defendant committed thecurrent offence?
(iii) If so, is it just to rely on convictions of the same description or category, having inmind the overriding principle that proceedings must be fair?
Only if the answer to each of these questions is affirmative should the convictionsbe allowed in evidence.

? How many convictions does D have? (go through each to pick up the propensity elements)
? Are they of the same description or category?
? How many of those convictions show propensity to commit offences of the same kind?
? Are they factually similar?
? Are there other circumstances that show propensity to commit the type of crime?
? Would admitting the evidence have an adverse effect on the fairness of proceedings (s.101(3))?
? Have the circumstances changed so dramatically from the time when D committed those offences in the past that it would be unfair to use them in the current proceedings as they are more prejudicial than probative?e.g. rehabilitated addicts.
? Is the Conviction Spent? see below

2. Propensity to be UntruthfulP.406 The CPS may place before the court evidence of a D's previous convicitions to shw that the D has a propensity to be untruthful only if it is suggested that D's case is in any way untruthful s.103(1)(b) Which offences will demonstrate a propensity to be untruthful?R v HansonD will be shown to have a propensity to be untruthful if D's previous convictions involve: o Offences involving actively telling lies or untruthfulness (not dishonesty) o Offences where D was convicted at trial after having pled not guilty (this shows that the suspect has been disbelieved on oath in relation to any offence)Firstly, is there evidence to suggest that D pleaded not guilty to any of these offences? If D pleaded not guilty, and D was subsequently convicted of theses offences, then those convictions would be admissible through gateway s.101(1) (d)as a propensity to be untruthful(D pleaded not guilty but was found guilty).

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