Flash-Caselist-Character.txt

• good character- rule is that only evidence of general reputation is admissible as evidence of good character. Evidence of the opinions of specific persons, or evidence of specific acts performed by the accused, is inadmissible. Rowton indicated that some flexibility was, in practice, shown in admitting evidence of good character.
• R v Redgrave (1981) But the practice is not reliable, as appears

• court recognised two �limbs� in any direction about good character:
• 1- relevance of good character to credibility
• �2- relevance of good character to the question whether the defendant was likely to have behaved as alleged by the prosecution.

credibility restrictive view.The bad character provisions under the CJA 03 do not require a ?�striking similarity� to be established before past convictions become admissible. Under s.103(2) CJA 03 evidence of propensity to commit an offence of the type charged could be established by evidence of conviction for an offence of the same description or category. However s.103 (2) was not exhaustive of the types of previous conviction that might be relied on to show evidence of propensity to commit offences of the type charged. In a consideration of gateway (d) and its companion provision, s.103, held that not all previous convictions show �a propensity to be untruthful� for the purposes of s.103(1)(b). Previous convictions are likely to show such a propensity only where: (1) the earlier trials had been contested and the defendant had given evidence that the jury must have disbelieved; or, (2) the way in which the previous offences were committed showed a propensity to be untruthful (for example by making false representations). There is no justification for restricting evidence of a propensity to be untruthful to evidence of past untruthfulness as a witness in court. This case, which is fundamental to the interpretation of the bad character provisions affecting a defendant, should be carefully studied and noted. It is recommended that you should work initially from a full report of the case and then read the Commentary in Crim LR. Some of the cases below show the Hanson principles the court set out some factors which should be taken into account in assessing fairness:(a) The degree of similarity between the previous conviction(s) and the offence charged, although striking similarity is not required.53 (b) The gravity of the respective offences.54 It is submit Inted that this must mea it was held thatn the extent to which they are of similar or dissimilar gravity. (c) If the Crown case depends entirely on the bad character evidence, or if there is little other evidence against the defendant, then it would be unlikely to be just to admit the bad character evidence.55 (d) The older the previous conviction, the less likely it will be fair to admit it, all the more so when the features of similarity are less.56 It seems, therefore, that these factors compound one another.

good character, the House of Lords said that a person with no previous convictions was generally to be treated as being of good character, but not an absolute rt. they qualified it by confirming obiter, if D�s claim was spurious it would be an insult to common sense to give a Vye direction.

-If a witness or a defendant has a history of untruthful dealing with other people, that can be admitted.

it was held that just one conviction even 20 years earlier might be relevant to propensity, but such cases would be rare, and with the ones where the earlier conviction showed some very special and distinctive feature. Where they were less distinctive features in common, they would have to be some evidence of the propensity manifesting itself during the intervening period in order to make the earlier evidence admissible as evidence of continuing propensity.

-Where a d has no previous convictions but evidence of bad character has been given under the CJA 2003, a modified direction should be given

good character, the Court of Appeal summarised where the previous conviction can only be regarded as irrelevant in relation to the offence charged, discretion ought to be exercised in favour of treating the defendant as of good character. Further, where a defendant of previous good character, �whether absolute or, we would suggest, effective�, has been shown at trial to be guilty of some criminal conduct, though not that charged, the prima facie rule of practice is to deal with this by giving a qualified Vye direction rather than no direction at all.

• propensity to be untruthful,s.103(1)(b),CA said that the only circumstance in which there is likely to be an �important� issue as to whether a defendant has a propensity to be untruthful, so as to bring gateway (d) into play, is where telling lies is an element of the offence charged. Even then, the propensity to be untruthful is likely to be significant only if it was in the context of committing earlier offences, in which case the evidence is likely to be admissible under s.103(1)(a) because the previous convictions show a propensity to commit offences of the kind with which the defendant is currently charged. The implications of Campbell have not been fully worked out. Mirfield (2008) argues that it is likely to make s.103(1)(b) a dead letter.
• -CA-authorities that predate the Act ‘are unhelpful and should not be cited’.
• -woman testified that Campbell had assaulted and imprisoned her. Campbell testified that nothing of the kind had happened. The judge admitted evidence of two of his previous convictions for violence against women, as relevant to the issue. To consider those convictions in terms of relevance to whether or not he was telling the truth might simply seem pointless and diverting. The jury had the stories of the two, and they knew that Campbell had a record of violence to women. In fact, Campbell also had convictions for dishonesty and criminal damage, but these were not adduced at trial, even though, by contesting the woman's account, Campbell would seem to have opened up gateway (g). In the circumstances, the prosecution's decision not to invoke that gateway was understandable, for those convictions would not have helped the jury in its task. There may be thought to be implicit support for the legal good sense of that decision in Lord Phillips C.J.'s view of issue and credit, once the case went to appeal. In a retrial there was no unfairness to a defendant where the judge allowed evidence of his previous convictions to be admitted under the bad character provisions of the CJA 03, even though the defendant had originally been tried before the CJA 03 came into force. D gave evidence but was nevertheless convicted, generally admissible to show a propensity for untruthfulness. Mirfield-a case casting doubt upon the very foundations of English law's traditional approach to the relevance of previous bad character, and previous convictions in particular, to the credibility of the person whose word is at issue. If it is correct, not even a previous conviction for perjury will have sufficient probative worth to be admissible against a defendant, by reference to ss.101(1)(d) and 103(1)(b).

- credibility- admissibility of a conviction to show a propensity for violence does not automatically permit use to show a propensity to be untruthful-Although a single previous conviction can be sufficient to establish propensity, great care must be exercised before admitting it-judge had been right to allow evidence to be adduced of convictions for robbery and assault, where the charges were of the same offences, but it allowed the appeal, on the basis that he should not have told the jury that they might also use those convictions for their relevance to credibility.

- Propensity to commit offences of the kind with which the defendant is charged is as important where the defence is a complete denial of what is alleged as where the defendant gives an innocent explanation for actions which he admits.

�Character, Credibility and Truthfulness� [2008] LQR 1

statutory tests for gateways (c) and (d) are different. In particular, s.101(4) requires a court dealing with gateway (d) to consider the effect on the fairness of the proceedings of any lapse of time between the matters relied on as evidence of bad character and the date of the current offence. This consideration does not apply to gateway (c). Accordingly, gateway (c) should not be used as a substitute for gateway (d) to show propensity. However, the Court noted that evidence can be admitted under more than one gateway and evidence admitted under the more stringent conditions of gateway (d) might thereafter be available for more general purposes.

credibility-defendant, who was alleged to have robbed the complainant of various items, gave a version of events wholly at odds with the complainant's. � � judging the complainant's credibility against that of the accused. The attack having been made, it was entitled to have regard to the source from which came the accusations which might affect the jury's judgment of the complainant� . He went on to say that it was a matter of � ordinary human experience� that the word of persons of bad character may be worth less than that of those who have led exemplary lives. gateway (g) would be redundant if it did not allow of a wider concept of relevance to credibility than does gateway (d)

credibility similar effect. The convictions in question there dated back 20 years or more, though the report fails to reveal what they were for. The judge's decision to allow them in evidence was not challenged on appeal, yet the court went out of its way to endorse the ruling below. The defendant having alleged that the police had tampered with his mobile telephone, Rix L.J. described it as unarguable that the convictions should not have been before the jury.

• lapse of time has to be considered from two perspectives:
• (1) the effect of the passage of time on the probative value of the earlier offence;(2) how difficult it is likely to be for a defendant to explain the circumstances of the previous offence in view of the time that has elapsed.

• counts of kidnapping, robbery and theft-There is a distinction between the use and admissibility of bad character evidence. The use to which the evidence is put depends upon its relevance, not the gateway under which it is admitted
• Crim. L.R. 2006, Apr, 300-318-Highton is an important decision because it set out to define the deep structure of the bad character provisions. In this, it has not been an unqualified success. More worryingly, because the Court of Appeal asked itself the inverted question, � Why should evidence of a propensity to commit offences of the kind charged only be admissible via gateway (d)?� it succeeded in begging the big question: � What exactly is the purpose of gateway (g)?� Nevertheless, it is apparent from the foregoing that even if the Court of Appeal was correct in its conclusion that evidence admitted via gateway (g) may sometimes be used to show a propensity to commit offences of the kind charged, its reasoning cannot be easily supported.

• misapplication of gateway (d)-smack addict convicted for cultivating controlled drug-the issue was whether N was engaged in the cultivation of the plants. The Crown had successfully claimed that evidence that N was a user of heroin and methadone was admissible evidence of propensity via gateway (d) because it was � relevant to an important matter in issue between the defendant and the prosecution� , as required by s.101(1)(d)
• Held: Heroin abuse was unlikely seriously to have assisted in � understanding the issues in the case.� But more significantly, this evidence of bad character was flatly inadmissible under s.101 Once the appellant had admitted that he knew the plants were controlled drug of some sort, it did not matter for the purpose of approving the offenses whether he knew it was cannabis or not. The only issue was whether he was involved in growing them. Thus the evidence of the appellants' heroin addiction was irrelevant to an issue between the defendant and the prosecution and the judge had been wrong to render it as admissible under S. 101-1-D. Further, a warning of the Limited relevance of the evidence in question did not appear in the summing up and therefore the conviction was unsafe. The appeal was therefore allowed. Comment this case the show unfortunately that evidence of bad character is not always used in the appropriate manner and that somehow the jury can attach far too much weight to the existence of a previous conviction or history of bad character. However, in this case the court found that not only had the evidence being used in the wrong way, but that it had in fact been improperly admitted as well as it was irrelevant to any issue between the prosecution and the defendant.

• evidence was admitted of the victim's statement-res gestae.
• the victim, who subsequently died, was stabbed by two men
• in his own home; neighbours called the police within minutes, they arrived promptly, and the victim identified his attackers to them;

Bad character evidence that is comprehensible without additional explanatory evidence is inadmissible-violence against inanimate objects cannot be equated to violence against animate objects i.e. in this case, his infant son. D was charged with murder - probably by shaking his infant son. The prosecution adduced evidence of his violence during the course of a previous relationship towards inanimate objects. The Court of Appeal quashed the conviction because the evidence should not have been admitted. It could not be said that the case was incomplete or incomprehensible without the admission of the evidence.

• The court issued the following general guidance in relation to the admission of evidence of bad character:
• 1. The first enquiry by the court is often whether it is necessary to go through the bad character gateways at all. This requires consideration of s98 CJA 03 which excludes from the definition of bad character evidence which has to do with:
• o the alleged facts of the offence;
• o evidence of misconduct in connection with the investigation or prosecution of that offence.
• 2. While there may be difficult considerations in deciding whether evidence of background or motive is admitted under s98, or requires consideration under s101(1)(c), it does not follow that merely because the evidence fails to come within the s.101(1)(c) gateway it will be inadmissible. Where the exclusions in s98 CJA 03 are applicable, the evidence will be admissible.
• 3. Applications to admit bad character evidence commonly arise at an early stage, causing real difficulty for the trial judge. Some applications, for example under s.101(1)(b), cannot be refused. Others, for instance brought under s.101(1)(e), may be difficult to refuse. There could be difficulties for the judge in summing up when bad character evidence that has been admitted turns out to have only marginal relevance to the
• issues before the jury. To avoid this, parties should reflect at the time of the application, as to the use to which such evidence is likely to be put.
• 4. The CJA provisions made it clear that Parliament intended that evidence of bad character would be put before juries more frequently than had previously been the case. The judge's role is to determine admissibility under the statutory gateways and any questions of exclusion. Once evidence of bad character is admitted questions of weight are for the jury, subject to:
• 5. the judge's powers under s107, and
• 6. the judge's direction as to relevance and to other matters, see R v Hanson (2005) EWCA Crim 824 and R v Highton (2005) 1 WLR 3472.
• 7. Where evidence of bad character is admitted, the judge's direction is likely to be of the first importance. It will need to cover the matters canvassed in Hanson and Highton. In an appropriate case, the judge's direction might need to underline that given the course taken by the trial, the evidence of bad character is by then of very little weight.
• 8. Simply because an application to admit evidence of bad character is made by a co-defendant, the judge was not bound to admit it. The gateway in s.101(1)(e) must be gone through. Ss 101(1)(d) and (e) give rise to different considerations. In determining an application under s.101(1)(e), fine analysis is unlikely to be helpful as it is the overall context of the case that matters. S112 CJA 03 makes this clear by its definition of what amounts to an important matter in issue.
• 9. The gateways under ss101(1)(d) and (e) are not open to co-defendants because only prosecution evidence is admissible.
• 10. When considering the effect of s109 in relation to an issue under s.101(1)(d), the mere making of an allegation is capable of being evidence within s100(1), R v Bovell (2005) EWCA Crim 1091 considered.
• 11. Admissibility and use give rise to different questions. The feel of the trial judge is very important and there should only be interference where the conviction is unsafe.

“by endeavoring to control the admissibility of bad character evidence and by guiding the jury .... the courts may have found a way to ensure that a perfect balance is achieved ... to ensure that everyone receives a fair trial. Therefore, the admission of evidence no longer rests upon the defendant’s decision whether or not to give evidence, but upon the decision of the court on application by the Crown.

Held: Where a defendant became liable under s 1 of the Criminal Evidence Act 1898 to be cross-examined as to his previous convictions if he gave evidence, a judge was nevertheless entitled, if the D then decided not to give evidence, to give the jury a direction under s 35 of the Criminal Justice and Public Order Act 1994 that they could infer that the only sensible reason for the defendant's failure to give evidence was because he could not give answers to or explanations for the Crown evidence, or none that would have stood up to cross-examination.

• directions under s.35 Criminal Justice and Public Order Act 1994/ 2 out of 3 D�s wanted to avoid cross examination about previous convictions. Jury directed via s.35-argued unfair due to reasons that may be consistent of innocence. CA rejectedThe direction in accordance with Cowan is mandatory whenever a jury is entitled to draw inferences under s.35 CJPOA. Lord Taylor CJ said: 'The effect of section 35 is that the ... jury may regard the inference from failure to testify as, in effect, a further evidential factor in support of the prosecution case.
• 'In Murray v UK at page 60, paragraph 47, the ECtHR spoke of the accused's silence being ' ... taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.' In the latter case, the Court was considering both the accused's failure to give evidence (section 35) and his failure to answer questions (section 34).This passage has been drafted to reflect the authorities that an adverse inference can be drawn only if the jury finds 'a case to answer' (R v Cowan at page 7E) or a case 'sufficiently compelling to call for an answer by him'

• 1-the judge will have told the jury that the burden of proof remains upon the prosecution throughout.
• 2-the jury is told that the defendant is entitled to his right to remain silent.
• 3-the silence itself cannot on its own prove guilt.
• 4-before any inferences can be drawn the jury must be satisfied that the prosecution has established a case to answer despite any unreliable witnesses.
• 5-if the jury is satisfied in the absence of such evidence that to explain the silence can only be attributed to the defendant's having no answer, then, they may draw an adverse inference.

where an appeal was allowed because of an inadequate direction under s.34 and Telfner v Austria, where the European Court of Human Rights acknowledged that inferences can be drawn from silence, provided -the evidence adduced amounts to a convincing prima facie case and is such that the only common-sense inference to be drawn is that the accused has no answer to the case against him.

where silence at an interview is said to be on legal advice, the judge must make it plain to the jury that they can draw inferences only if they are sure that the failure to mention facts subsequently relied on was because the defendant had not at that stage any explanation to offer, or none that he believed would stand up to questioning or investigation, so that the solicitor�s advice was no more than a convenient shield behind which to hide. But see also R v Howell (2003). The Court of Appeal has adopted an increasingly restrictive approach to s.34. In addition to tightening up the directions to be given to a jury under this section, the concept of a fact relied on in a defence has been narrowly construed.

-old test-Stepdad raped daughters, it was clear that admissibility in criminal trials was determined by asking, in each case, whether the probative worth of such evidence outweighed any improper prejudicial effect that it might have on the jury. Subsection (1)(d) sweeps away the test in DPP v P and depends only on relevance to 'an important matter in issue' - meaning in the context of the case as a whole. Deciding what is a matter in issue it includes (a) whether a defendant has a propensity to commit crimes of the kind with which he is charged except where his having such a propensity makes it no more likely that he is guilty of the offence and (b) whether a defendant has a propensity to be untruthful except where it is not suggested that the defendant's case is untruthful in any respect

-definition of bad character-wide enough to apply to conduct arising out of a conviction, or conduct where there has been an acquittal and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings.

• DOGE-(a) Degree of similarity between the previous conviction(s) and the offence charged, with striking similarity is not required.
• (b) Gravity of the respective offences i.e. the extent to which they are of similar or dissimilar gravity.
• (c) If the crown case depends Entirely on the bad character evidence, or if there is little other evidence against the defendant, then it would be unlikely to be just to admit the bad character evidence.
• (d) The Older the previous conviction, the less likely it will be fair to admit it, and more so when the similarity features are less.

bad character-co-defendant's "cut-throat" defence where two defendants are charged and their defence is that the other was responsible. includes cases where the defence not only undermines the co-defendant's defence but also inconsistent with that being run by the co-defendant. no such discretion was available to disallow questions about faintly relevant convictions (or other bad character), on the basis that their prejudicial effect outweighed their probative value.