Procedure

P.420

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)
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 disclosed the convictions of the Third party or Co-defendant CrimPR r.35.3(a) and (b)
CPS adducing 3^rd 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 pre-trial hearing;

o Magistrates; case management hearing/pre-trial review/specific hearing;

o Crown Court: plea & case management hearing/ specific pre-trial hearing

Step 1:

Definition of Misconduct?

P.400

Flowchart

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:

Prosecution adduces D’s propensity

To commit offences of the same kind and be untruthful under

Gateway

s.101(1)(d)

P.403

Flowchart

P.426

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:

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

D will be shown to have propensity to commit offences of the kind which she is 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):

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:

Does the D’s history of offending show a propensity to commit offences?
If so, does that propensity make it more likely that the defendant committed thecurrent offence?
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:
- Offences involving actively telling lies or untruthfulness (not dishonesty)
- 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).

How many convictions does D have? (go through each to pick up the propensity elements)
Has D actively sought to deceive or mislead another person by making a false representation? (fraud, perjury, pleading not guilty and then found guilty)
A previous conviction of theft does not demonstrate propensity to be untruthful unless D actually sought to mislead or deceive. (D was dishonest but not untruthful)

R v Hanson 2005

Previous Convictions in fought cases where the D gave evidence, and his word was plainly disbelieved i.e. D pleaded not guilty and was proved guilty

R v Campbell 2007

D’s propensity to be untruthful will only be important where telling lies is an important element of the offence within which D is charged (e.g. perjury or fraud). But will NOT be an important matter in issue simply because D entered a non-guilty plea.

The two cases contradict each other, however, Campbell is highly criticised.

Step 3:

The Defence

Challenges the Admissibility

D’s solicitors will challenge the admissibility of these offences. In R v Hanson, the court stated that – for the bad character evidence to be admitted – the following three questions had to be answered in the affirmative:

Does D’s history of offending show a propensity to commit offences?

The fewer the convictions the D has, the less likely propensity is established
Although, Hanson suggests that simply one previous conviction will suffice
It is unlikely that the defence will be able to argue that propensity is not established because the prosecution will want to adduce x number of convictions (e.g. eight for theft; one for shoplifting)

Does that propensity make it more likely that the D committed the current offence?

argue that the factual circumstances between the current offence and the previous convictions differ
D stated that her previous convictions of theft stemmed from her addiction

It is just to rely on the previous convictions?

Have in mind the overriding principle that proceedings must be fair
The defence will argue that the convictions dated happened a significant time ago when D was addicted
The prejudicial effect of such evidence would be high and the probative value limited as it does not reflect favourably on the fact that D is not a reformed character
Try to argue even against recent convictions

Step 4:

Exclusion of Bad Character Evidence?

s.101(3) CJA

P.415

By s.78 PACE 1984 Even if the relevant propensity is established by the prosecution for those x number offences, the court must exclude the evidence if it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it (s.101(3)):

Are the convictions spent? (P.408)

The court will exclude all but the most recent convictions as the older ones are spent (spent = D is treated as never having been convicted of the spent offence)(s.101(3)). Rehabilitation of Offenders Act 1974:

absolute discharge

conditional discharge

fine/community sentence

custodial sentence up to 6 months

custodial sentence between 6 and 30 months

6 months

1 year or period of order

5 years

7 years

10 years

Offence punished by a custodial sentence exceeding 30months cannot become spent.

...

#10178 - Bad Character Evidence - Criminal Litigation

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