#3231 - Evidential Issues & Bad Character

Criminal Litigation

Evidential Issues & Bad Character

Evidential Issues

1. Plea and Case Management Hearing [PCMH form]

Advocates Questionnaire

Evidential burden: Prosecution must satisfy otherwise D can argue there is no case to answer.
Evidence must be: Relevant and admissible!
Burden of Proof – CPS have the legal burden [to prove facts of the case – i.e. Actus Reus and Mens Rea].
Standard of proof for prosecution = beyond reasonable doubt.

2. Issue of evidence that is improperly obtained.

S.78 PACE

If the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

[e.g. breach of Code C / PACE]

S.76 (2) PACE

Confessions which are obtained as a result of violence or threats

Oppression; or

Something said or done which in the circumstances makes it unreliable.

3. Procedure for challenging admissibility of evidence:

Crown court = admissibility is decided by judge, in absence of the jury in the Voir Dire [takes place before trial]. If evidence is excluded, jury will never know about its existence.
Magistrates court = admissibility decided by magistrates, either:

Pre-trial review

At a trial

Following D’s submissions of no case to answer at end of P case; or

At end of trial.

Bad character

General rule under Crime and Justice Act 2003: evidence of previous convictions is not admissible.

S.101 CJA 2003: provides seven gateways through which evidence of a defendant’s bad character can be admitted.

101(a)	Agreement between parties that it is admissible
101(b)	Evidence is adduced by D himself or given in an answer in the cross- examination.
101(1)(c)	It is necessary to explain something relevant in the case
S.101(1)(d)	Adducing evidence is relevant to important matter in issue between D and the prosecution. S.103: Does D have the propensity to commit the offence with which he is charged. [prosecution will try to admit previous convictions as evidence that this is the case]. What to look for: Evidence that D has been convicted of: (a) The same offence [e.g. murder for murder; ABH for ABH etc] (b) The same category – which is prescribed by order of the Secretary of State e.g. theft / sexual offences (c) The offence is of the same general type – e.g. some linking factor of the offences. Prosecution should take note R v Hanson – the court urged restraint by prosecutors not to make bad character applications as a matter of routine to bolster an otherwise weak evidential case’.
101(1)(e)	It has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant.
101(1)(f)	To correct a false impression given by D
101(1)(g)	D makes an attack on somebody else’s character – e.g. “he is a drunk”

If excluding evidence under S.101(d) or S.101(g):

Admitting evidence is subject to exclusionary discretion based on fairness of admitting the evidence which is triggered by the defence:

S.101(3) CJA 2003: “Court must not admit evidence …. if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”.

Document: Notice to introduce evidence of D’s bad character [filled by prosecution]

Theme of violence
Pre-mediated attack
The D is a person who has no compunction about using violence. [i.e. proving the...

#3231 - Evidential Issues & Bad Character - Criminal Litigation

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