Character Evidence.docx

*[Character Evidence -- 5 Q's ]* The following are the specific statutory provisions with which students should be familiar (and able to refer to by section number): **sections 98, 100, 101(1)(a) -(g) and 101(3) Criminal Justice Act 2003** (gateways for admissibility of defendant bad character). The following are the specific leading case authorities with which students should be familiar (and should be able to refer to by name): **Hanson, Vye, Hunter**. *[What is Bad Character? ]* The CJA 2003, s. 101, provides that evidence of the bad character of an accused is admissible **'if but only if' it falls within a specific statutory permission**, or a 'gateway' as the courts commonly say, in ***[s. 101(a) to (g).]*** - Other evidence, which is not bad character, but shows a defendant in a bad light may be allowed in the normal principles of relevance subject to s78. ***[Definition of Bad Character s.98 -- ]*** Evidence of a person's 'bad character' are to evidence of, or of a disposition towards, **misconduct on his part**, **other than evidence which---** a. **has to do with the alleged facts** of the offence with which the defendant is charged, or b. **is evidence of misconduct in connection with the investigation or prosecution** of that offence. 'Misconduct' means the commission of an offence or other reprehensible behaviour. - Thus, any **evidence suggesting guilt of an offence** is potentially evidence of misconduct, whether or not the accused has been charged with or convicted of it. Evidence that **implies bad character** does not have to be the subject of an application under s. 101 if the prosecution rely on it for an independent reason: in that case the evidence was of identification by a prison officer based on a prison sentence served by the accused, and was adduced, following a ruling by the judge, without reference being made in chief to the circumstances of the acquaintance. - The problem is that **it may not be possible to rely on such evidence without the bad character coming to light (in Clarke this was eventually brought out by the cross-examination of the witness) and therefore it might be better to regard all such evidence as requiring the application of s. 101** (and therefore the service of notice: see F13.3) even if the prosecution, in the interests of fairness, elect not to make reference to it. **Where D has been convicted** of an offence that is admitted showing bad character, guilt of that offence is presumed unless the contrary is proved. **Where D has not been convicted**, and disputes the evidence alleged to demonstrate bad character, **the jury should be directed that they should not reason from the proposition that D is of bad character unless the character is proved to the criminal standard.** Particularly careful directions will therefore be required in all cases where the character evidence is in dispute, although a failure to give a specific direction does not necessarily render a conviction unsafe. ***[Convictions -- ]*** - The proof of a conviction creates a rebuttable presumption that the person convicted committed the offence. - Where **convictions are relied upon, it is likely that the value of the evidence will depend on the proof of the circumstances of the offence, not merely upon the actual previous conviction and the matters formally established thereby**, and such circumstances will require to be properly proved. The **giving of evidence by a police officer based on data held on the Police National Computer was held to be an inappropriate way to settle a dispute between prosecution and defence as to the facts of the previous convictions**. - It was also observed that the **remedy suggested in Humphris --- procuring a statement by, or evidence from, the victim of an allegedly similar offence --- would not be appropriate in cases where the accused had been dealt with on a plea offered on a different factual basis.** The court drew attention to the **need for caution and to avoid 'satellite issues' about what did, or did not, happen previously**. Where the circumstances of the offence are of the essence, there is an obligation on the party relying upon them to be specific Similar **considerations apply to the use of cautions and the facts on which they are based**. - A caution had been admitted by agreement at trial, but it was subsequently challenged and deleted. **It was held that because the facts on which the caution was based would in any event have been relevant and admissible at the trial under the provisions of the CJA 2003, s. 101, the deletion of the caution itself did not render D's conviction unsafe.** Offences occurring subsequent to the offence charged may be admissible - Evidence of propensity exhibited after the offence, provided that the propensity is one that might be expected to be continuing. **Evidence tending to show that D harboured racist views was admitted to connect him with a racially motivated murder although the evidence was gathered 20 months later**; it was **open to the jury to draw an inference that D's attitudes were not a recent acquisition**. - A **conviction resulting from a plea of guilty during the instant investigation is also a conviction for these purposes where the plea was to an old offence, D having avoided prosecution.** If a reference is to be made to the plea in these commonly occurring circumstances it would appear **crucial to balance it with the clearest direction that the intention for the lesser offence does not establish the ulterior intent for the greater crime**. **Convictions before a foreign court may be adduced as evidence of bad character** under the CJA 2003 if a corresponding offence in England and Wales would be so treated (s. 103(7)). Correspondence is assessed by looking for an equivalent offence in domestic law at the time of the trial for the current offence. *[What is reprehensible behaviour? ]* - **Decisions as to what is capable of constituting reprehensible behaviour are fact specific.** In that case, the issue concerned text messages apparently expressing D's desire to stab her partner. To the extent that they had the meaning contended for, the **messages were rightly treated as demonstrating reprehensible behaviour at D's trial for murdering him.** - Although D contended that the messages were not to be taken seriously, this was a matter for the jury. Opinion might **legitimately differ as to whether conduct at the outer limits of the category is 'reprehensible'.** In that case the **Court was prepared to assume (but did not decide) that D's use of sexual innuendo and his reporting of his own sexual adventures was reprehensible.** The evidence was relevant to the way the defence was run, and had been admitted by agreement, so it made no difference to the outcome. Prosecution relied on evidence of **D's involvement in a 'game' to sleep with as many women as possible** to show that **he was indifferent to whether V was consenting to sexual activity with him when he found her sleeping in the bed of a friend who was also involved in the game.** The evidence was regarded as evidence of bad character, and was held to be admissible, on the unusual facts, as either explanatory evidence or evidence going to whether D held a genuine belief in V's consent. The word '**reprehensible' connoted some element of culpability or blameworthiness**. In that case, the fact that **D had been found unfit to plead to an incident that involved gratuitous violence was not such as to extinguish the element of culpability**. ***[Conduct is not necessarily 'reprehensible' under s. 98 simply because it is morally lax. ]*** It was held **wrong to regard the instigation of a sexual relationship by a man in his thirties with a girl of 16 as 'reprehensible'**. As it was relevant, the result was that the evidence was admissible. **Court of Appeal doubted whether the keeping by D of a notebook containing his 'dirty thoughts' could fall within the provision** but concluded that in any event its prejudicial effect outweighed its probative value. What is reprehensible is to be distinguished from what is irritating, inconvenient or upsetting to another. The Court of Appeal cautioned against the inclusion in applications to admit evidence under s. 101 of matters which, on proper analysis, did not disclose bad character (in that case the possession of an antique firearm lawfully held by D). Court of Appeal regarded as 'quixotic' (impractical) the suggestion that having been shot could be evidence of bad character but, **as the shooting had the characteristics of a difference of opinion between gangs, it might have been preferable to treat it as such**. 'in the context' of a charge of murder, the aggressive, shouting behaviour of one partner towards another over the care of a young child did not constitute reprehensible behaviour. It would, it is submitted, have been preferable to take a more generalised view of what constitutes reprehensible behaviour, and to hold the shouting to be reprehensible but at the same time not relevant to the charge faced by D (of murdering a drug dealer). A context-specific test for what is reprehensible will render decision-making unnecessarily complex. Violent rap lyrics written by D were regarded as reprehensible behavior. **Gang membership as evidence of bad character** ***[What is "has to do with relevant facts"?]*** - Excluded from the definition of bad character, and therefore admissible subject to relevance, is evidence of misconduct which 'has to do with the alleged facts' of the offence charged, or which is evidence in connection with the investigation or prosecution of that offence. Must be **read with an understanding of the type of evidence that is only admissible under the 'gateways'**: in a broad sense all evidence, including evidence of bad character, 'has to do with' the facts, but this cannot be the meaning intended by s. 98. - A broad submission that evidence 'has to do' with the facts if it is central to the prosecution case that the accused was the person who committed the offences was rightly rejected. Charges concerned conspiracy to defraud by a company, and **D's co-accused sought to rely on evidence related to D's misconduct in relation to a different company to show his knowledge of relevant matters.** Holding that the evidence lacked the nexus required by s. 98, and that its admissibility therefore fell to be determined according to the provisions of the gateway in s. s.101(1)(e) (see F13.66), the Court of Appeal specifically noted **that the purpose of that gateway is 'to provide an appropriate level of protection for the person against whom bad character evidence is sought to be adduced by a co-accused'. That protection would be eroded if s. 98 were to be construed too widely.** One possible interpretation of the **nexus required by s. 98 that it permits 'anything directly relevant to the offence charged',** adding the proviso that the evidence should be 'contemporaneous with and closely associated with its alleged facts'. Evidence admitted consisted of a statement made two days after the alleged offence of making a threat to kill, in which D reiterated to a third party her threat to kill the same individual. D was retried for kidnap and rape; the **jury having failed to agree; his conviction at the first trial for stealing the handbag of the victim as part of the same incident was admissible under s. 98(a) and was 'plainly relevant evidence'.** D was **tried for dangerous driving by speeding away from police officers attempting to stop his car.** He **denied that the driving was dangerous and claimed to be unaware that the men trying to stop him were police officers**. Evidence was admitted that **the context for the stop was the officers' suspicion that a drug deal was being conducted in the car**. The temporal principle was held to extend to the **discovery of ammunition as a result of an immediate search of premises consequent upon the finding of the firearm that was the subject of the charge**; however, had it been treated as bad character evidence, it would still have been admissible **Use of search terms employed by D when downloading indecent images was received and the Court of Appeal thought (at \[16\]) that it was 'difficult to imagine anything more "to do with" the offence of downloading an indecent image than the evidence of the search terms habitually used in order to obtain such images in the first place'**. In that case there was no need to exclude older searches that may not have been linked with the particular images in issue: that would be to approach the issue in 'too narrow a way'. Apparent requirement in McNeill for a temporal connection now appears to have been modified to the extent that a temporal connection is only one way of supplying the necessary nexus to the facts. Evidence that **a killing by D was a reprisal as part of a feud between gangs suggested misconduct over a period of months but was not thereby rendered inadmissible under s. 98.** Stanley Burnton LJ commented that 'where the evidence is reasonably relied upon for motive, it would be irrational to introduce a temporal requirement'. Prosecution **were held to be entitled under s. 98 to rely on the convictions of D2, D1's co-accused and the alleged mastermind of a murder which D1 was said to have committed. D2's convictions concerned the attempted murder of other members of the rival gang in the period leading up to the murder,** and were admissible to show his leading position within his gang and the likelihood of his involvement in the commission of the murder. use of cocaine by D, a solicitor, was rightly admitted at D's trial for doing acts tending and intended to pervert the course of justice by, inter alia, passing on information about police drugs operations to his supplier. Prosecution evidence of D's own affiliation with a rival gang, and of a long-running feud arising out of a previous murder, was admitted under s. 98 as providing evidence of motive. The Court of Appeal noted that overlap between s. 98 and the bad character provisions was not unusual in such cases. Prosecution relied on evidence that D had suffered gunshot wounds some months before and after the murder with which he was charged. The former was said to suggest D's likely motive of revenge linked to gang activity, and the latter that D himself was the target of revenge for the murder. Where a **gang-related killing was alleged to have been carried out in revenge for an earlier murder, and the conviction of one of the participants for carrying a knife at the time of the earlier killing was 'highly relevant' to the facts of the instant case**, applying s. 98. However, the evidence was also admissible under s. 101(1)(c) and (d). Another case where **evidence of gang affiliation was held to 'have to do with' the alleged facts, that evidence indicated that what might otherwise have been regarded as a random shooting was linked to an ongoing feud between gangs**. It did not matter that there was not alleged to be a timeline with a specific 'trigger event' to which the shooting was a response: this would matter only if the prosecution specifically made such an event part of their case, which they did not. **the words 'has to do with' relate only to the actus reus of the offence, were disapproved**, where the correct approach was said to be one of 'direct relevance', which must be correct A similar approach was taken in Morris \[2019\] EWCA Crim 147, in which e**vidence in support of a count which should not have been before the jury was held to 'have to do with' another more serious count for which D was properly tried**, it being material to, and 'part of the history' of that count. ***[What about previous allegations as evidence of bad character? ]*** - It does not appear that the CJA 2003, s. 98, conveys any necessary protection against the revelation of a mere charge (either in the sense of 'charged in court', as in Stirland v DPP \[1944\] AC 315 , or in the sense of having been previously suspected) **unless the suggestion is that the accused committed the offence with which he or she was charged**, so that the allegation becomes one of the commission of an offence However, the court should not permit a matter to be raised unless it is demonstrably relevant. The **mere fact that an allegation has been made, without supporting evidence, will not normally be relevant either to guilt or to the credibility of the accused as a witness.** Where it is relevant, it may be admitted where the purpose is not to show bad character. Evidence of a previous acquittal is unlikely to be of relevance, except where it is contended that the accused committed the offence, in which case it is likely to be objectionable on grounds of unfairness. ***[S100 -- Evidence of bad character other than the accused -- ]*** This section covers the statutory scheme for the introduction of evidence of the bad character of persons other than the accused contained in the CJA 2003, s. 100. Such evidence is admissible only in restricted circumstances, and, **except where all parties agree to the evidence being admissible, the leave of the court is required.** - The purpose of s. 100 is to r**emove from the criminal trial the right to introduce by cross-examination old, irrelevant or trivial behaviour in an attempt unfairly to diminish the standing of the witness in the eyes of the tribunal of fact**, or to permit unsubstantiated attacks on credit. ***[Meaning of Bad Character -- ]*** - Wide definition of **bad character in the CJA 2003, s. 98 applies equally to evidence of the bad character of a person other than the accused**. Evidence of bad character **can be admitted only if it satisfies the further conditions of admissibility in s. 100 (non-defendant's bad character) or s. 101 (defendant's bad character).** **Evidence which, though it may show a person in a bad light, is not evidence of bad character within the meaning of the CJA 2003, s. 98, may be given provided it is relevant** Evidence of a medical condition which is said to affect the credibility or propensity of a witness does not constitute evidence of bad character. Common-law rules continue to operate insofar as they **permit evidence to be adduced which, looking to the wording of s. 98(a), 'has to do with the alleged facts of the offence' or, looking to the wording of s. 98(b), 'is evidence of misconduct in connection with the investigation or prosecution of that offence'.** Thus, for example, if evidence of misconduct tendered to prove the **bias or partiality of a witness fell within s. 98(b), it could, because it is not evidence of 'bad character', be admitted at common law and without the need to apply the provisions of s. 100.** The **trial judge applied the s. 100 safeguards to evidence he had ruled admissible under s. 98 of hostile animus on the part of an investigator conducting a test-purchase**. The Court of Appeal did not question this process, but the case turned ultimately on the point that animus was not relevant, as there was objective verification of the investigator's conduct. **Had it been relevant, there is a risk that application of the s. 100 safeguards deprives the defence of evidence which s. 98 intended to be admissible**. where evidence tending to show the alleged victim of a robbery had taken drugs was held to be within the words 'has to do with the alleged facts of the offence' (so not under s100), as providing support for the defence explanation of his sudden collapse (the prosecution having alleged that D pushed him over). A plea of guilty by a co-accused to participation in an offence jointly charged against the accused 'has to do with' the offence charged and is not evidence of the co-accused's bad character. **Section 98(b) of the CJA 2003 would seem apt to cover, for example, evidence that during the investigation the police obtained evidence unlawfully or unfairly** (e.g., by fabricating a confession or planting evidence); evidence that during interview the police told lies; and evidence that during the investigation or proceedings the police, or someone on behalf of either the police or accused, had sought to intimidate potential witnesses. **Evidence of misconduct in other investigations would seem to be admissible, if at all, only if s. 100 applies.** ***[S100 Gateways for admissibility of character evidence of parties other than the accused-- ]*** In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if--- a. it is important **explanatory evidence**, 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. Section 100 regulates all aspects of the use of the bad character of a person other than the accused, in chief or in cross-examination - whether or not the person appears as a witness. Thus, it covers the character of a person whose statement is admitted under an exception to the hearsay rule. - and the character of the deceased in a trial for murder **D denied committing a sexual assault on his former sister-in-law, and wished to bring evidence of violence by his former wife during their marriage**, which lent colour to his defence that **her family had a motivation to bring a false complaint against him in light of the ongoing dispute over custody of his son. The** CJA 2003, s. 100, is not specifically mentioned but it was held that, **although the wife did not testify, the material should have been admitted as it would have provided 'some significant support' for the suggestion of a motive to fabricate.** *[General principles -- ]* four important features of the test for admissibility under s. 100 -- 1. The **test of 'substantial probative value' is not the same as the test for gateway (d) of s. 101** (see F13.36) **where evidence of the bad character of an accused is tendered by the prosecution, and where the test is simply one of relevance**. **It is, however, the same as the test that appears in gateway (e) (see F13.66) where evidence is tendered by one co-accused against another.** 2. If the **conditions of s. 100 are met, there is no residual statutory discretion whereby the judge can refuse to admit the evidence.** 3. **Except where the parties agree to admit the evidence, the leave of the court is always required.** 4. Rulings by the judge in the **absence of agreement between the parties** require the **exercise of judgment, rather than of discretion**. It may be unlikely, once the high standard of probative value required by s. 100 is found to have been met, that it will be unfair to admit the evidence, but it is not impossible. Evidence tendered by the prosecution is of course subject to exclusion under the PACE 1984, s. 78. Evidence of a non-defendant's bad character tendered by an accused could be excluded because of prejudice to a co-accused is incorrect. The Court of Appeal noted that both s. 101(1)(e) and s. 100(1) 'have the capacity to change the landscape of a trial' and it was suggested that a strict reading of the gateways was required in order to ensure fairness and prevent unnecessary issues. - s\. 100(1)(a) and (b) impose a higher threshold to admissibility than mere relevance. *[What is important explanatory evidence? ]* S100 -- \(2) For the purposes of subsection (1)(a) **evidence is important explanatory evidence if---** a. **without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case**, and b. its **value for understanding the case as a whole is substantial**. Explanatory evidence admissible under s. 100 must also satisfy the further condition in s. 100(1)(b) that its value for understanding the case as a whole must be 'substantial'. 'Substantial' in s. 100 bears its natural meaning. Gateway is inapplicable if the evidence is readily understandable without evidence of bad character and the jury require no 'footnote or lexicon'. A case involving the abuse by one person of another over a long period of time. - 'For the jury to **understand properly the victim's account of the offending and why they did not seek help from, for example, a parent or other guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person'** Bad character evidence that might expose a key witness's motive to lie would be capable of being important explanatory evidence. Evidence of V's previous convictions for violence were not admissible in relation to D's claim to have acted in reasonable self-defence in circumstances where the incident was recorded on CCTV and had been observed by witnesses. The evidence and the issues were straightforward, and the jury were well able to assess them. *[What is evidence of substantive probative value? ]* - s\. 100(1)(b), the **trial judge must consider two essential questions: (1) whether the issue to which the evidence goes is of substantial importance in the context of the case as a whole, and (2) whether the evidence had substantial probative value in relation to a matter in issue in the proceedings**. 'Substantial' bears its ordinary meaning Equated 'substantial' probative value with 'an enhanced capability' of proving or disproving a matter in issue in order to emphasise the point. In applications under s. 100(1)(b) the issue to which the evidence relates will usually, though not always, be either the **propensity, or credibility, of the person of bad character.** Where evidence of propensity is adduced by the defence, this does not entail proof of that propensity to the criminal standard. D claimed to have no recollection of killing V but relied on self-defence based on V\'s previous violence towards her. The jury were incorrectly directed that it was for D to make them \'sure\' of V\'s previous misconduct. \[j\]ust because a witness has convictions does not mean that the opposing party is entitled to attack the witness's credibility'. The Court of Appeal regarded **as speculative the attempt to discredit the deceased in a case of murder by reference to weapons and rap lyrics discovered during a search of a room he shared with his brother, and which could not be proved to be his.** Evidence that he had been cautioned for possession of a knife was already before the jury; the additional evidence added nothing of value. D was permitted to adduce evidence to demonstrate that V had been beaten not by D as alleged but by drug dealers to whom he owed money. Evidence of V\'s previous convictions for knife crimes were excluded on a charge of **wounding with intent where D\'s defence was based on a suggestion that V had been set on by a different group while D was unconscious**. In that context, V\'s offences did not go to an issue of substantial importance. D claimed to be an innocent passenger in a car that had hunted down a member of a rival gang in a revenge attack, and to have had no knowledge of the impending attack or the principal\'s intentions towards V. **This was rebutted by evidence that D\'s brother H, who lived with him, was a member of the gang responsible for the attack, and that H had a close association with one of the attackers, B. Evidence of H\'s affiliation helped to show that D would have been aware of the plan, especially as D had been involved in drug dealing for B.** **The assessment of substantial probative value relates to the force of the evidence. The judgment to be made, which is highly fact-sensitive, must take account of the context of the case as a whole.** Thus, it may be appropriate to consider whether it adds significantly to other more probative evidence in the case. This is a consideration of particular importance where the evidence consists of unproven allegations going to a witness's credibility where it has already been decided that the jury will be told of that person's previous convictions under s. 100. ***[What are the matters relevant in the assessment of probative value? ]*** **The CJA 2003, s. 100(3), sets out a list of factors to which the court must have regard in assessing the probative value of the evidence**. The list is non-exhaustive and the court must also have regard to any other factors it considers to be relevant. The nature and number of the events, or other things, to which the evidence relates When those events or things are alleged to have happened or existed Where--- i. the evidence is evidence of a person's misconduct, and ii. it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct Where--- i. the evidence is evidence of a person's misconduct, ii. it is suggested that that person is also responsible for the misconduct charged, and iii. the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time. Whether convictions have persuasive value depends principally on their nature, number and age. As to **s. 100(3)(a), the more serious the misconduct, and the greater the number of instances of misconduct,** the stronger the likely probative value. As **to s. 100(3)(b), evidence of misconduct occurring many years ago is usually likely to have less probative value than more recent misconduct**, although very serious misconduct in the past may well have a stronger probative force than recent but comparatively minor misconduct. The **factors listed in (c) and (d) are most likely to be relevant where the bad character evidence is said to be of probative value having regard to its similarity to the offence charged, in support of an argument that a person other than the accused committed the offence charged.** The **sexual assaults of which D had been convicted were said to have been perpetrated by a third party who had committed other similar assaults in the vicinity**. A **mobile phone had been found at the scene of one of the offences of which D was convicted, which V thought might have been used in the assault to simulate a metal weapon**. DNA on the phone was later matched to S, who fitted the description of the attacker, and the Court of Appeal **admitted this as fresh evidence together with evidence of S's bad character**. Although the latter **related only to a caution for an act outraging public decency, there were links to the sexual offences that helped to rebut the coincidence that S had innocently dropped his mobile phone at the scene for it to be put to use by D**. Although S's caution was not of itself determinative of his guilt, it was of substantial probative value and further 'grist to the mill' of the appeal. ***[What is substantive probative value in relation to issues other than credibility?]*** Old conviction of one complainant for street-fighting and a warning for assault given to another were properly excluded in relation to the issue of whether they were the aggressors in the case. The defence to unlawful wounding included self-defence, the Court of Appeal held that the trial judge was 'quite right' to reject as evidence under s. 100 a statement by a person who was not called to testify that V was a trouble-maker and a drunk. Substantial probative value may be established where, for example, an accused is charged with an offence of violence and claims self-defence, and there is a previous instance of violence by the complainant towards the accused using a weapon. D was unable to rely on the previous convictions for violence of V which 'could not really have helped' the jury to decide whether there was a continuing threat to D and his friends or whether V had at that point desisted. an alleged victim's previous violence might in principle be admissible even if the only issue is D's intention, for example where the defence is one of instinctive reaction to V's aggression. Evidence that the deceased was a regular cannabis user was admitted at D's trial for stabbing him to death, and it appears to have been relevant both in relation to D's claim that he was acting in self-defence and as a matter affecting the credibility of the deceased's statements as to the cause of his injuries. D contended that the complainant might have been subjected to violence by other persons as a result of her involvement with drug dealing. However the evidence he proposed to give was merely that these were the types of activities which often lead to violence, and the application was rightly rejected. It might have been different if the evidence had been of particular incidents of violence arising from the complainant's activities. ***[What is substantive probative value in relation to credibility?]*** - The creditworthiness of a witness is clearly capable of being a matter in issue of substantial importance in the context of the case as a whole. The evidence of bad character that might qualify as being of substantial probative value in relation to credit was of two types: - Evidence that is **relevant directly, as providing a reason for doubting the truth of the evidence of the witness** in the particular case, and - Evidence which is relevant only indirectly, **as providing a general reason for suggesting that the witness was a person not to be trusted** The complainant in a case of alleged kidnapping had, amongst other convictions, a previous conviction for manslaughter of a client while working as a prostitute, **in circumstances that were in certain respects similar to the version of events of the kidnapping put forward by the defence**. It was held that the conviction was of direct relevance to the case and ought not to have been excluded. The appropriate test was to ask whether the evidence was 'reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief'. D's defence to violent sexual assaults against V was consent. D had previously been released from a life sentence for similar offences. He had made friends with K in a bail hostel. K gave evidence supporting D's defence that D and V had formed a clandestine relationship behind V's partner's back. Evidence of K's previous convictions for serious sexual offences were held to have been correctly admitted as a jury could properly take the view that K 'might regard a sexual crime committed by the appellant differently to most members of society, and might therefore be susceptible to being approached after the commission of such a crime in order to assist the appellant and be prepared to make a statement supporting his defence'. ***[S101-- Gateways for admissibility of Evidence of bad character of the Defendant-- ]*** In criminal proceedings evidence of the defendant's bad character is admissible if, but only if--- a. **all parties to the proceedings agree** to the evidence being admissible, b. the **evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,** c. it is important **explanatory evidence**, d. it is relevant to **an important matter in issue between the defendant and the prosecution**, e. it **has substantial probative value in relation to an important matter in issue between a defendant and a co-defendan**t, f. it is **evidence to correct a false impression given by the defendant**, or g. the **defendant has made an attack on another person's character**. The court **must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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.** On an application to exclude evidence under subsection (3) the court must have regard, in particular, **to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged**. S101 (a) -- - A caution for excessive chastisement was admitted by agreement and relied on by both prosecution and defence: by the defence to support a claim that D had learned his lesson, and by the prosecution as part of an alleged history of cruelty to the children in his care. - Evidence admitted 'without demur' by skilled counsel may be said to have been admitted by 'tacit' agreement. - The mere fact of agreement, though sufficient to overcome an objection based on bad character (or hearsay: as to which, see F17.6) **did not justify putting in evidence documents subject to public interest immunity** disclosed for the purpose of cross-examination of prosecution witnesses, for which a further order would have been required. - There are multiple defendants, the gateway clearly requires that the consent of all must be secured, bearing in mind that they may have very different interests. Section 101(1)(b) -- - retains the rule that the accused can elect to tender evidence of his or her own bad character. A common reason for doing so is to lay a foundation so that the accused may argue never to have been previously convicted of an offence similar to that charged. ***[Hunter -- ]*** The Court of Appeal reformulated the rules governing the presentation of an accused as a person of good character, with the result that anyone with a subsisting and relevant conviction is unlikely to receive a full 'good character' direction. The argument that an accused's convictions are of a different type may still be relevant, for example where the accused contends that any previous offending is relatively low-level and nothing like as serious as the offences charged or where the accused has previously pleaded guilty and admitted liability, so that the decision to contest the instant charge may be some evidence of the accused's innocence. D chose to adduce his previous convictions for property and drug-related offences to show that he had no propensity for sexual offending, but admitted to telling lies and to pleading not guilty to offences he had committed. The judge's balanced direction, which made reference to the negative impact on credibility of D's record, was approved, the Court of Appeal stating, 'it would be inappropriate in a gateway (b) situation for a defendant to have carte blanche to make such points as he wishes about his criminal record, without facing the possibility that his record does him no favours as far as credibility is concerned'. Where evidence of relatively minor bad character is tendered to prevent the jury from speculating that it is worse than it is, the Crown Court Compendium, ch. 12-4, states that the judge should direct that the evidence has been admitted 'only so that they know of the whole background and, if appropriate, that the evidence does not make it more or less likely that D committed the offence'. ***[101 (1) (c) -- ]*** - special provision is made for the admission of 'explanatory' evidence --- evidence without which it would be 'impossible or difficult to understand other evidence in the case' --- provided that its value for understanding the case as a whole is substantial. It follows that, where the evidence requires no 'footnote or lexicon' but is readily understandable without evidence of bad character, s. 101(1)(c) does not apply. - Operation of the statutory provision is not confined to prosecution evidence. For the purposes of section 101(1)(c) evidence is important explanatory evidence if--- a. without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and b. its value for understanding the case as a whole is substantial. Where an offence is alleged, it may be necessary to give evidence of the background against which the offence is committed, even though to do so will reveal facts showing the accused in a discreditable light. **The bad character thus revealed is frequently incidental to the offence charged.** - Where the offence was arson of a hostel for offenders and the explanatory evidence showed that D was an inmate. **The accused's bad character may constitute a relevant part of the background.** - Evidence of sexual abuse and domination of the complainant by D during her childhood was necessary to explain why her apparent compliance in a sexual relationship with him after her sixteenth birthday should not be regarded as indicating her genuine consent. *"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence."* To say that the evidence fills out the picture is not the same as saying that the picture is impossible or difficult to see without it Evidence of the circumstances in which D had been disqualified from driving were correctly admitted as explanatory evidence, in order to prevent the jury speculating about them, in a case where D was said to have driven his car at V and then referenced his disqualification in order to explain why he had initially falsely claimed not to have been driving. - This would seem to fall short of the statutory requirement that other evidence in the case was 'impossible or difficult' to understand without it. Floorplan of a house drawn by D1 was found concealed at the home of his cousin D2, and the prosecution case was that D1 had drawn the plan to enable D2 to burgle the property and steal firearms. At the trial of D2 and D1 for conspiracy to burgle, D1's defence was that he had drawn the plan for innocent reasons and must have dropped it at D2's house. Evidence of D2's previous convictions was admitted as explanatory evidence showing that D2 was part of an active and serious organised crime group that was in the habit of committing burglaries to 'tool up' for robberies. On the facts it would have been 'impossible or difficult' for the jury to understand the true significance of the prosecution evidence without knowing of D2's gang's campaign of burglary and robbery. It is submitted that the decision might have been better based on the CJA 2003, s. 101(1)(d) (see F13.36), given that the latter is specifically subject to constraints of fairness which do not apply to explanatory evidence. The Court of Appeal agreed that this would have provided an alternative ground for admitting the evidence. Where evidence of a 'background of violence' in D's relationship with his partner was not strictly necessary in the sense required by gateway (c), but was of sufficient relevance to demonstrate propensity under (d)). Where evidence tendered as explanatory is also evidence of propensity, particular caution is required in applying gateway (c). That gateway should not be deployed to 'slide in' evidence of propensity under the guise of explanatory evidence where the former would not be admissible, or would be subject to additional safeguards It is 'only where the evidence truly adds something, beyond mere propensity, which may assist the jury to resolve one or more issues in the case, or is the unavoidable incident of admissible material, as distinct from interesting background or context, that the justification exists' for admitting the evidence as 'background' or explanatory evidence. Explanatory evidence once admitted may require a particularly careful direction. - Evidence was admitted to support an identification of D as a robber from a person who recognised him from the many occasions on which she had sold him drugs. The separate functions of this background evidence and other evidence of D's record which went to his propensity were rightly maintained in the judge's direction It was the complainant's discovery that D had a recent conviction for sexual offending that had led to her revelation of serious offences against her many years before. As the trial judge had carefully considered the risk of prejudice and made clear in his direction that the conviction was not evidence of propensity, it was held that the evidence was rightly admitted. It is equally possible that evidence of a previous offence which is closely connected to the crime charged may be admissible propensity evidence without being necessary explanatory evidence or that evidence may be admissible via both gateways for different purposes. where a previous conviction for child abduction and a subsequent warning notice were evidence of D's mens rea on the subsequent occasion under gateway (d) and also, under gateway (c), necessary to explain the context of the relationship between D and the teenage girl he sheltered in his home. a gang-related killing that was alleged to have been carried out in revenge for an earlier murder, **the conviction of one of the participants for carrying a knife at the time of the earlier killing was 'highly relevant', applying s. 98, as evidence 'having to do with' the revenge attack (and therefore not as evidence of bad character at all**: see F13.10), but was **also admissible as 'explanatory' evidence of bad character evidence under s. 101(1)(c) to show the motivations of the accused, and as evidence under s. 101(1)(d) of his propensity to engage in gang-related violence knowing that others had a propensity to use knives to lethal effect.** Where explanatory evidence is admitted, it may be fairest to **present it in the form of an agreed statement of facts, for the avoidance of prejudice and to prevent the distraction of the jury.** ***[Section 101(1)(d) -- ]*** - cuts across much of the thinking of the old law by regarding as admissible evidence that is merely 'relevant' to an important issue between the accused and the prosecution. - CJA 2003 'completely reverses the pre-existing general rule' and that the 'one-stage test which balanced probative value against prejudicial effect is obsolete'. - The most radical aspect of the change brought about by s. 101(1)(d) in combination with s. 103 is that an accused's propensity becomes a matter towards which relevant prosecution evidence may be directed. - Has the additional function of admitting evidence to show the untruthfulness of an accused person. ***[S103 -- ]*** For the purposes of **section 101(1)(d) the matters in issue between the defendant and the prosecution include---** a. the **question whether the defendant has a propensity to commit offences 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** b. the question whether the defendant has a **propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.** \(2) Where subsection (1)(a) applies, **a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of---** a. **an offence of the same description as the one with which he is charged**, or b. an **offence of the same category as the one with which he is charged**. \(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, **by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.** \(4) For the purposes of subsection (2)--- a. **two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;** b. **two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.** \(5) A **category prescribed by an order under subsection (4)(b) must consist of offences of the same type.** \(6) **Only prosecution evidence is admissible under section 101(1)(d).** The broad effect of the amendments is that the foreign conviction is treated as being admissible if the corresponding offence in England and Wales would be so treated. **'Important matter'** means 'a matter of substantial importance in the context of the case as a whole' While **the issue must be of substantial importance, however, it is not necessary for the evidence of bad character to be of substantial probative value**. Provided the evidence is so relevant, the court's power to exclude evidence under s. 101(3) is now the focal point of cases where evidence of bad character is tendered under s. 101(1)(d) and objected to by the defence. Where evidence is admitted, **the accused's protection from unfairness lies in the direction to be given by the trial judge** (see F13.22). An **appeal court is unlikely to interfere unless** the judge's judgement as to the capacity of prior events to establish propensity is plainly wrong or the judge's discretion has been exercised unreasonably in the Wednesbury sense. ***[Propensity as an issue -- ]*** Propensity to commit offences -- taken as an issue -- unless it is not more likely that he is guilty. - Propensity to untruthfulness is an issue -- unless it is not suggested that the accused's case is untruthful in any sense. - Propensity is not an issue in the normal sense so much as a means of proving what is in issue. - The bad character must still be relevant to an "important" issue' D's long history for offences of violence was relevant to the anticipated defence of self-defence to murder but, **when D admitted manslaughter and relied on his intoxication in relation to the murder, the propensity either no longer made it more likely that D committed the offence charged or, if it did, it would have been unfair to rely on convictions that did not throw any light on the sole remaining issue of intention**. Prejudicial evidence of their sexual interest in young boys was admitted at the trial of the two accused, despite the fact that the interest had been clearly admitted, and there was no adequate consideration of the relevance of the evidence to any disputed issue; it was held that the evidence should have been excluded. D's conviction was upheld, but the Court of Appeal held that his previous beatings of her should not have been admitted, because the force used was not such as to demonstrate an intent to cause serious injury, so they lacked the necessary relevance. In determining the relevance of propensity, a trial judge is not to be restricted by the detail of individual eyewitness accounts but should assess the evidence globally. which D, charged with murder as a secondary party, challenged the relevance of previous convictions for carrying a knife on the basis that no eyewitness had attested to seeing anyone other than the principal offender using one during the murder, but there was scientific evidence to support the use of more than one knife and the judge was entitled to have regard to that when ruling on admissibility. Where propensity is relevant, no additional hurdle is imposed requiring other evidence to support the matter, though the absence of such evidence may bear on the question of discretionary exclusion. D was charged with various sexual offences and offences of cruelty against his children. He contended that, though he was a strict disciplinarian in the home, he had not behaved unreasonably. Evidence of his violent behaviour towards his wife was rightly admitted to rebut this suggestion by demonstrating a propensity to use excessive violence against members of his family which could not possibly be explained or excused as 'reasonable chastisement'. Steps which must be followed by the trial judge in determining the use which may be made of evidence of propensity consisting of convictions under s. 101(1)(d) were spelled out in detail in ***[Hanson -- ]*** 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? 2. If so, does the propensity make it more likely that the defendant committed the crime charged? 3. Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))? Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence? ***[How to demonstrate propensity? ]*** ***[Hanson -- ]*** - Propensity can be demonstrated by one previous event if sufficiently probative, as, for example, where the behaviour is 'strikingly similar'. Where the offence establishing propensity was committed many years before but was of a similar nature and might well have been 'striking'. Where the previous offence showed that the teenage defendant had 'not grown out of' a propensity to groom girls for sexual activity, without their consent if necessary; and, where the single offence of rape, though not strikingly similar, showed a propensity to abuse power over a young victim). A single previous rape of a strikingly similar nature A rape if not strikingly similar had very special and distinctive nature such as to render it admissible. A single rape and related offences of violence and harassment showed a propensity towards using sexual and violent behaviour to control a partner. However, it does not follow that a single conviction for rape will inevitably be admissible where the conviction was old and the circumstances dissimilar. Where an old conviction for buggery that appeared to have been consensual, and might not have constituted an offence at all under the current law, should not have been admitted to show propensity where the charge concerned violent paedophile behaviour against a non-consenting child in the company of a group of other men. Similar considerations apply to a previous offence of non-sexual violence A single recent conviction for handling heroin was admissible where the defence to a charge of conspiracy involving heroin was that D believed he was dealing with counterfeit clothes. A single, somewhat old, conviction for joint possession of a firearm was held admissible in relation to the issue whether D had brought a gun to the scene of a crime or, as he claimed, had wrestled it from an opponent. Where there were no special features and the Court observed that the judge was 'not clearly wrong' to admit the conviction for possession of drugs (which was also clearly admissible to show knowledge). D's previous convictions for shoplifting were of little value in indicating a propensity towards street robbery. '\[**p\]oints which are devoid of content as legitimate bad character evidence cannot acquire such a status simply by heaping them together with other points which themselves also have no proper claim to admissibility** as bad character evidence under the requirements of the 2003 Act'. Where the probative value of a range of convictions is properly evaluated by the judge, however, there is no reason why they cannot be tendered for their cumulative effect - mixture of drugs-related offences including trafficking and false passports The judge provided very clear guidance to the jury that **propensity evidence pointing to D's racist attitudes was relevant only once they had concluded, in reliance on the scientific evidence in the case, that he had been correctly identified as a participant in a murder**: at that point, it was relevant to his own state of mind and his awareness of the intentions of others in the group. Although some latitude is permitted in making a judgement about relevance, a ruling may be interfered with on appeal where a judge has 'plainly erred'. evidence of a previous wounding with intent by D when 16 and to which he had pleaded guilty was not admissible in relation to the murder by strangulation of a transsexual prostitute; there were few similarities, the probative value of the conviction was slight and its prejudicial effect considerable in a prosecution where the remaining evidence was circumstantial. the propensity of a person charged with sexual offences against a child to view **pornographic images of children, while it did not of itself make it likely that he would act out the activity displayed**, might be **admissible in support of a child complainant's evidence**, on the basis of the **unlikelihood of the complainant having by coincidence falsely accused a person with such an unusual propensity**. Different considerations were said to apply where the photographs showed the child complainants in indecent poses and were consistent with the prosecution case as to how the abuse, culminating in rape of one of the children, was said to have occurred. Although, taking account of D, the judge was wrong to treat the photographs as strong evidence of propensity, the relevance of the evidence as confirming the testimony of the complainants meant that it was rightly admitted. proper direction on the cross-admissibility of propensity evidence in such circumstances required the careful grouping of counts so that the jury would not be left with the sense that all propensity evidence was equally cross-admissible and that they were invited to answer whether it happened or didn't happen. Where D's obsession with watching others have sex in a park where the alleged rape took place should have been excluded, either because it was of insufficient relevance (there being no evidence that a voyeur committed the rape) or because its prejudicial effect vastly outweighed its probative value. D's previous convictions for violence were held to have been rightly admitted at his trial for rape, on the issue of which of the parties had behaved aggressively a girl's previous convictions for assault and robbery were held admissible to connect her to a joint enterprise that had violence or the fear of violence as its object Identification of D as the perpetrator of a street robbery was supported by evidence of a similar 'casual opportunistic public offence' of robbery committed with the same co-defendant, and of an incident involving similar violence in the same neighbourhood but not involving robbery. The Court of Appeal stressed the importance of the factual connections rather than the legal dissimilarities, relying on Hanson. D was accused of indecent assaults against two young sisters in 1972. When arrested in 2015 he was found to have indecent images of children on his computer, and to have conducted internet searches for such material. The Court accepted that the evidence showed that D had a sexual interest in children in 2015, which in turn was capable of showing that he had such an interest in 1972. ***[Identifying the accused by evidence of bad character -- ]*** An important function of evidence of bad character is to identify the accused as the perpetrator of an offence. The connection may be arrived at **via an inference from propensity** (see F13.39) or by **any other relevant inference drawn under gateway (d).** Evidence of **a large number of similar examples of arson affecting D's family were rightly admitted in support of an argument that it would have been an amazing coincidence had D not been the author of all of them**. But these fires were not evidence of propensity until the point where the jury had concluded that D was indeed the cause of them all and should not have been presented as such. In only one count was there the direct evidence of identification that would have supported an inference of propensity that could have been brought to bear on the question of who started the other fires. **The dominant direction to the jury, therefore, needed to be grounded in the unlikelihood of coincidence rather than in propensity.** Where a feature is said to be the equivalent of a signature, it is an acknowledgement that it possesses to a very high degree the unusual features associated with 'striking similarity' at common law. The murder of a young girl who was found strangled was considered unusual in that no attempt had been made to assault her sexually or to conceal the body. **D came under immediate suspicion because he had previously strangled two other girls, each murder having the same peculiar features, and because he was in the neighbourhood at the time, having just escaped from Broadmoor**. Under these circumstances, very little other evidence was required to convict D of the third murder: it bore his 'fingerprints'. **D's conviction on a plea of guilty to a 'strikingly similar' nightclub assault was admissible to confirm his identification by a victim of an assault nine days later.** Where evidence amounts to a signature or 'hallmark' and is directly relevant to the issue, the Crown Court Compendium, ch. 12-6, notes that the normal direction not to convict wholly or mainly on evidence of bad character would be inappropriate but stresses that this is likely to be a rare factual scenario. Evidence of misconduct may go to support identification without necessarily amounting to 'signature evidence'. - Two brothers were charged with an offence of street violence. Their propensity (jointly and separately) to commit such offences was admissible to support their disputed identifications, particularly in light of the brothers' defence that they spent the evening together, which strengthened the argument that it would have been a strange coincidence if they had been wrongly identified. where one of the convictions was for a different offence in similar circumstances and the other for the same offence in slightly different circumstances but in the same area, and with the same co-accused. where the previous offences were for the same crime (burglary) but were factually distinct where two thefts were committed by a man posing as an employee to deceive delivery men, and the identification of D from CCTV footage in respect of one offence was capable of linking him to the other crime. 'compelling' evidence that D was part of a gang who had shot four men, killing one of them, was supplemented by evidence of his conviction for attempted murder by shooting. This was held to make it more likely that he was a member of a group prepared to use guns. **Guns and drugs were found in a store cupboard outside D's home. To rebut a suggestion that the items were deposited by others, the prosecution adduced evidence to show that D was a member of a local criminal gang, which was involved in drug crime and the carrying or use of firearms**. The Court of Appeal held that the **evidence 'was plainly capable' of assisting the jury in resolving the disputed issue**. Rejecting a subsidiary argument that the evidence should have been rejected as prejudicial because it consisted of a broad treatment of numerous circumstances suggesting gang membership and thus distracted the jury's attention from the key issue, the Court noted (at \[31\]) that circumstantial evidence of gang membership was likely to be of this sort: '**Violent gangs, which provide no social amenity and exist for criminal purposes, are unlikely to issue membership cards, and so proof of membership will almost inevitably involve the prosecution in putting forward evidence of a number of circumstances from which gang membership could be inferred'**. The evidence served not only to identify those taking part in a riot, but also to provide evidence of common purpose and to rebut innocent presence; as in Elliott, the Court of Appeal paid careful attention to the risk of prejudice arising from evidence of membership. Where **a police officer is permitted to give expert evidence as to the behaviour of gangs under the CJA 2003, s. 101(1)(d), it is imperative that the jury be correctly directed as to the use to which it can be put**. In that case, proof that the defendants were gang members was relevant in two ways: it rebutted innocent presence and association with the vehicle in which weapons were found, and it went to the question of whether the appellants, either personally or jointly, were people who had an interest in, links to or access to firearms with criminal intent. circumstantial evidence linking D to a car used in a murder, and to another alleged participant, **was supplemented by evidence of his appearance in videos and in other postings suggesting links to the gang alleged to be responsible.** The Court noted that such evidence was **not conclusive of membership but was capable of giving rise to an inference, and that if D wished to do so he could provide evidence in rebuttal.** **Bad character may also be relevant (and therefore admissible) to support identification without any similarity between the past and present offences**, where the fact that a robber, identified as D, had asked for 'coke' was sufficient to admit D's previous convictions for cocaine-related offences. ***[What about multiple charges and accusations? ]*** Where **an accused faces multiple charges in the same proceedings, the 'bad character' provisions apply as if each was charged in separate proceedings: in other words a 'gateway' is required to facilitate cross-admissibility between charges in the same proceedings** in exactly the same way as where only one offence is charged. Where an accused faces **more than one charge of a similar nature or where evidence of similar allegations is tendered in support of one charge, the evidence of one accuser may be admissible to support the evidence of another**. Where **no application to make use of the evidence in this way is made, the accused is entitled to have the case decided on the ground that the evidence is inadmissible**, and the judge should direct the jury to that effect, and it was said to be unlikely that the standard direction to treat allegations separately would suffice. **where the prosecution had not given notice and the judge's intention to leave cross-admissibility to the jury only emerged during the first day of summing-up. The** Court of Appeal noted that the **late decision also rendered it impossible for the proposed direction to be discussed before counsel's closing speeches**. The principles to be applied to cases of this kind do not differ materially from those applicable where evidence of bad character is used to rebut an explanation otherwise open to the accused: indeed, the function of evidence of multiple accusers is often to rebut such an explanation. ***[What special regards need to be given to acquittals? ]*** The prosecution would be adducing evidence of 'bad character', despite the acquittal, because the contention is that the accused had been guilty of misconduct on the previous occasion, even though no attempt is made to impose any penalty for it. The evidence would be admissible if the prosecution could show its relevance to an important issue under s. 101(1)(d), leaving the accused to contend for the exercise of the specific statutory discretion in s. 101(3). D was charged with the rape of C, and his defence was consent. On four separate occasions D had been tried for the rape of other women, and on three occasions acquitted. The prosecution contended that evidence from all four previous complainants was admissible to rebut the defence put forward in respect of C. It was conceded that the evidence of the four, taken cumulatively, possessed the degree of probative value required for admissibility at common law. The House of Lords held that evidence may be adduced to prove the guilt of the accused in relation to the offence being tried notwithstanding that it shows the commission of other offences of which the accused has been acquitted. **Provided that the prosecutor does not seek in any way to punish the accused for the other offences, the double jeopardy rule is not infringed.** It remained open for the **judge to exercise discretion to prevent the unfair use of such evidence.** An obvious vehicle for exclusion under the Act would be s. 101(3) or, in the unlikely case that the 'gateway' is not one to which s. 101(3) applies, the PACE 1984, s. 78. where the prosecution had offered no evidence at D's trial for the rape of P but her evidence was admitted at D's trial for the very similar rape of V. Some **30 years had passed since the original acquittals for sexual offences**. A challenge based on the fact that there no longer existed relevant material that would have assisted the jury in assessing the reliability of the evidence was dismissed. On the facts, **it appears that the portions of the evidence that were significant in the later prosecution (for a series of serious sexual offences together with the murder of one victim) were supported by statements of the accused including what amounted to an admission of one rape.** The lapse of time, which might in other circumstances have proved critical, did not appear to provide a genuine impediment to challenging the relevant parts of the evidence of the two complainants. D was tried for rapes against V, a girl aged ten. The prosecution sought to adduce bad character evidence in the form of D's previous conviction for a child pornography offence. He had pleaded guilty and been sentenced on the basis that he had accidentally downloaded an explicit 49-minute child-sex video**, but the jury in the rape trial were entitled to regard this as evidence of an inappropriate sexual interest in young girls and were not bound to accept the truth of the explanation he gave at the time.** ***[Section 101(1)(e) -- ]*** - Permits a co-accused to adduce evidence of the accused's bad character where it has substantial value in relation to an **important issue between them** **Supplemented by 104.---** - **Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence**. Only evidence--- a. **which is to be (or has been) adduced by the co-defendant**, or b. **which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,** is admissible under section 101(1)(e). Where the evidence adduced is of one defendant's 'propensity to untruthfulness', s. 101(1)(e) is further restricted in its operation by s. 104 to cases where the nature or conduct of his or her defence is such as to undermine that of the other defendant**. Note that only defence evidence is admissible under this provision (s. 104(2)).** Where the **evidence of bad character is disputed**, s. 109 **requires the court to consider its relevance and probative value on the assumption that it is true**, unless it appears that no court or jury could reasonably find it to be true. The **proliferation of satellite issues that may arise in settling the dispute may be a relevant consideration in the ultimate determination** of its probative value. Campbell champions a broader mandate for common sense at the risk of rendering meaningless the impact of the distinction within the CJA 2003 itself. So, there must not be a sense of the separation of the function of evidence going to the issue and that going to credit. A co-accused may adduce evidence of an accused's bad character where the conditions of the CJA 2003, s. 101(1)(e) (see F13.66), are satisfied notwithstanding the latter's acquittal. The Court of Appeal noted that the common-law restrictions with regard to evidence resulting in an acquittal had never applied to evidence relevant to the defence of an accused person. **Section 104(1) is primarily relevant to the cut-throat defence** where the evidence of propensity is directed more towards establishing lack of veracity than to the issue of guilt. **The restriction applied by s. 104(1) does not bite where the evidence of propensity is not directed to untruthfulness but to the issue of commission of the offence.** In such cases, s. 101(1)(e) permits propensity evidence to be adduced against an accused by a co-accused whatever the nature of the defence, provided that it is of 'substantial probative value' in relation to an issue between them --- though this will frequently occur because one blames the other. ***[What is the important matter in issue? ]*** - "Important matter" means a matter of substantial importance in the context of the case as a whole' (CJA 2003, s. 112(1)). The mere denial by a co-accused of participation in a crime does not meet the terms of s. 101 but, if it is a necessary implication of the denial that another accused has committed the offence, s. 101(1)(e) comes into play between them. D1 and his co-accused, D2, were charged with cheating the revenue. Although neither was directly arguing that the other had committed the offence, both were impliedly doing so because the only logical consequence was that the offence must have been committed by the other defendant. Where defendants are not facing a joint charge and there is not a cut-throat defence, it was held in Obeng \[2016\] EWCA Crim 1797 to be particularly important to ascertain the fact in issue between the defendants and that it is truly an important one. - The Court of Appeal doubted whether the issue between D1 and his co-accused D2 (whether certain injuries to a victim, V, had been caused during the first or the second kidnapping) could be said to be important when neither man gave evidence or advanced a positive case as to it. In relation to the **CJA 2003, s. 101(1)(d) (see F13.36), the matters in issue between the prosecution and defence are deemed to include the accused's propensity**. No such provision applies to gateway (e), **therefore the propensity of the co-accused to commit an offence of the type charged can only become admissible if it is genuinely a fact in issue between them at the trial**. ***[S101 (1) (f) -- Evidence to correct a false impression given by the defendant -- ]*** Section 101(1)(f) of the CJA 2003 permits evidence of bad character to be adduced by the prosecution to correct a false impression given by the accused about him or herself. Closer attention to the provision in s. 105(7) that s. 101(1)(f) admits prosecution evidence only. Applications by one co-accused to adduce evidence of bad character against another fall to be dealt with under s. 101(e). The provision is supplemented by s. 105, which lays down the circumstances in which the accused is regarded as having given such an impression. By s. 105(1)(a) an impression may be false for this purpose if it is misleading, notwithstanding that it is also true. Evidence admitted under gateway (f) is limited to evidence correcting the false impression (s. 105(6)) so that the general doctrine that evidence, once admitted, is admissible for all purposes to which it is relevant (see F13.24), is excluded. The provisions of s. 101(3), which exclude evidence having an adverse effect on the fairness of the proceedings, do not apply to evidence tendered under s. 101(1)(f) (see F13.19) but evidence may be excluded using the PACE 1984, s. 78. ***[S105 -- ]*** \(1) For the purposes of section 101(1)(f)--- a. the **defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant** b. **evidence to correct such an impression is evidence which has probative value in correcting it.** A defendant is treated as being responsible for the making of an assertion if--- a. the assertion is made by the defendant in the proceedings (whether or not in evidence given by him), b. the **assertion was made by the defendant**--- - **on being questioned under caution, before charge, about the offence with which he is charged**, or - **on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings**, c. the **assertion is made by a witness called by the defendant**, d. the **assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so**, or e. the **assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings**. A **defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself** from it. Where it appears to the court that a defendant, **by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion** which is apt to give that impression. In subsection (4) **'conduct' includes appearance or dress.** Evidence is admissible under section 101(1)(f) **only if it goes no further than is necessary to correct the false impression.** **Only prosecution evidence** is admissible under section 101(1)(f). - Gateway (f) should not be over-used and requires careful analysis of the specific assertion the accused has made that is alleged to be false. Where in context D's assertion that he had never **sold** or **supplied** heroin was a rebuttal of an **allegation** that he had supplied to fellow inmates of a hostel and was not therefore false despite a **conviction for attempting to supply to his brother**. The court should also consider whether the accused has attempted to mislead the jury in a way that goes beyond denying the offence. Particular care should be taken where an answer given in cross-examination is equivocal and may not amount to a false impression. The power under s. 78 of the PACE 1984, while not specifically preserved in relation to cases not covered by the specific power of exclusion of evidence of bad character in s. 101(3) of the CJA 2003, could be invoked to provide any further protection the courts may regard as necessary. Section 78 was regarded as potentially applicable a false impression was created in response to a question put in cross-examination about D's occupation**, to which he gave an unnecessarily long and detailed answer showing himself in a good light as a carer for his disabled grandson**. Having regard to the way in which the evidence came out on the spur of the moment, **the Court of Appeal disagreed with the trial judge's exercise of discretion to admit a conviction for fraud against the elderly and vulnerable.** The **CJA 2003 provisions apply irrespective of whether witnesses are specifically called as to good character, and whether or not the accused elects to give evidence on his or her own behalf.** Evidence admitted under the provision **potentially goes towards correcting the false impression in a manner indicative of guilt, not merely of the credit to be given to any testimony the accused gives.** **D stated in interview that he had never acted dishonestly and that he had been meticulous in his business dealings**. The CJA 2003 clarifies the position where the accused, as in Ullah, **makes misleading assertions during questioning or when charged and these are subsequently given in evidence in the proceedings. These constitute assertions for the purposes of the provision (s. 105(2)(b)) and so they may result in the use of evidence to correct any false impression given, even where the prosecution are responsible** for placing the original assertion before the court. D's previous convictions for deception-related offences were admitted. In such cases, the accused would do well to disown the assertion, if it is not necessary for the defence relying on s. 105(3). In some cases the prosecution ought not to present the original assertion at all. Where the **matter in response to which the assertion had been made had already been edited out of the interview that was presented at trial, the Court of Appeal considered that there was no reason why D's response could not also have been edited out, relying on s. 105(6).** There was no risk that the assertion would be repeated in evidence. There is a difference between making a positive decision to correct such an impression and being driven in cross-examination to concede its falsity. In the latter case, the accused could derive no benefit from s. 105(3). Nor can an accused expect that answers to questions at interview that are admissible to correct a false impression should be edited out to prevent unfairness: 'if an accused lies in interview and the consequences ... are unfortunate, the answer is not to edit out those lies' where D responded to questions about whether he found children sexually arousing by saying, 'No, it makes me feel sick'. Unknown to the interviewer, D had convictions for sexual assault, including one on a child, which became admissible in consequence. ***[101 (1) (g) What about attack on another person\'s character? ]*** The CJA 2003, s. 101(1)(g), permits the prosecution to adduce evidence of bad character to counter an attack on another person. Court of Appeal drew attention to s. 106(3), which limits the admissibility of bad character evidence under s. 101(1)(g) to prosecution evidence. Applications by one co-accused to adduce evidence of bad character against another fall to be dealt with under s. 101(1)(e) An accused may apply to exclude evidence the admission of which under s. 101(1)(g) would have an unfair effect on the fairness of the proceedings (s. 101(3)). ***[S106 -- ]*** For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if--- a. he **adduces evidence attacking the other person's character**, b. he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 to cross-examine a witness in his interests) **asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or** c. **evidence is given of an imputation about the other person made by the defendant**--- - **on being questioned** under caution, before charge, about the offence with which he is charged, or - **on being charged** with the offence or officially informed that he might be prosecuted for it. In subsection (1) 'evidence attacking the other person's character' means evidence to the effect that the other person--- a. **has committed an offence** (whether a different offence from the one with which the defendant is charged or the same one), or b. **has behaved, or is disposed to behave, in a reprehensible way**; and 'imputation about the other person' **means an assertion to that effect**. Only prosecution evidence is admissible under section 101(1)(g). ***[What is an attack? ]*** The CJA 2003, s. 106(2), creates a link back to the definition of bad character in s. 98, and in particular to the concept of misconduct as the commission of an offence or other reprehensible behaviour. - an allegation that the complainant had started the fight in which he was injured by D would probably be an allegation of 'reprehensible conduct' under the CJA 2003, whatever the position under the old law. D's defence of self-defence was rebutted by evidence of propensity for violence because his defence included an allegation that the complainant had verbally abused and attacked him. The **Court of Appeal considered that the evidence was wrongly admitted as D should have been entitled to raise self-defence without risking the admission** of his previous convictions. Court of Appeal accepted that a **mere denial of the prosecution case, while it might carry an imputation that a witness was lying, would not of itself amount to an attack**, but a suggestion that prosecution witnesses were attempting or conspiring to pervert the course of justice by concocting false allegations would do so. D was charged with assault by penetration of a baby left in his care by the mother, R. On the facts, either D or R must have been responsible for the assault. A defence application was made under the **CJA 2003, s. 100 (see F15), to admit evidence of R's bad character, including her substantial record for dishonesty. The prosecution made clear that if the defence pursued the admission of such evidence it would in turn make an application under s. 101(1)(g) to adduce D's own bad character**. Although the mere suggestion that R caused the injuries would constitute an 'attack' under s. 106, the prosecution may see fit to invoke it only where the defence make an issue of the other person's bad character. **Court of Appeal rejected an argument that D had to be the 'author' of the attack**. A police officer who had led the investigation into violent incidents involving a group of men had given evidence of identification of D based on many hours of observation of CCTV images. In cross-examination it was suggested that she had not made a dispassionate and impartial assessment of the evidence; that she had not told the truth about the time she had spent viewing the footage; and that she did not care whether she had made a correct identification because she was so invested in the case that she simply wanted a result. 'In summary, the suggestion was that she was intent on getting a conviction and keeping her reputation intact' (at \[9\]). Although D's previous offences related to previous incidents of violence, evidence of them provided context to the allegations against the police officer and they were not so prejudicial as to require the exercise of the judge's discretion under s. 101(3). **Questions asked of the accused on behalf of the prosecution do not trigger the provision** (cf. Jones (Richard) (1909) 3 Cr App R 67), although it appears that questioning at interview may have this effect (s. 106(1)(c)). ***[What is evidence proving an attack? ]*** - **As with s. 101(1)(f), the attack may be made in an out-of-court statement**, including an interview in which the accused casts an imputation (s. 106(1)(c)). Again, there is no requirement that the evidence of the attack is adduced by the defence. D was charged with rape and in the course of interview referred to the complainant as 'a slag', criticising her promiscuity in 'very disparaging terms'. His defence at trial was that she was lying and perhaps motivated by a wish for vengeance for past slights. **The trial judge's decision to admit evidence of D's bad character on the strength of the specific slights in the interview which had been adduced as part of the prosecution case was supported by the Court of Appeal as a proper exercise of his discretion.** Section 106, unlike s. 105 (which supplements s. 101(1)(f)), does not contain a provision permitting the accused to disassociate him or herself from the imputation. However, the court's discretion to disallow the admission of evidence of bad character could be invoked where the defence do not seek to maintain the attack. Court of Appeal questioned the relevance of statements at interview adduced by the prosecution and expressed the view that such evidence should not be adduced simply to provide a basis for gateway (g). Evidence **given in the course of an abuse application should not be relied on when considering whether an 'attack'** had been made on a prosecution witness for the purpose of the CJA 2003, s. 101(1)(g). **What was said in the absence of the jury could be used only to provide a focus for what was said in their presence, not as evidence**. ***[What does 'on another person\'s character mean'? ]*** It **would not therefore be sufficient, where a crime has clearly been committed by someone, for the accused to say that he or she has not done it and to lay the blame on some unknown individual**. Where a specific attack is made, however, it does not matter that the person attacked is not a witness in the case. **An attack on any victim may trigger s. 101(1)(g),** as may an **attack on any other non-witness.** Nor is it necessary, for the same reason, to consider **whether a person whose hearsay statement is before the court and who is the subject of an attack by the defence is a 'witness': whether the person is or not, the attack still triggers the provision.** it was, however, suggested that it would be unusual for evidence of an accused's bad character to be admitted where the only basis for doing so was an attack on a non-witness who is also a non-victim. the person whose character was attacked was alleged to have been conspiring with a prosecution witness, which provided a proper foundation for gateway (g). The **attack took the form of a suggestion that S had both committed and confessed to the murder with which D was charged, using a knife supplied by TW**. Neither S nor TW gave evidence, **but the jury had heard statements from both**. In those circumstances, as the attack on the character of the absent persons was extremely grave, **it was appropriate for the jury to hear the character of D (as the person making the allegations), and there was no basis on which the discretion under s. 101(3), should have been exercised** against the prosecution. ***[Disclosure to exclude attack evidence under 101 (3) -- ]*** There is no need for the prosecution to demonstrate that evidence of bad character, to be relevant to credibility, demonstrates an underlying propensity to untruthfulness. The purpose of s. 101(1)(g) is to 'provide the jury with information relevant to the question whether the defendant's attack on another person's character is worthy of belief'. - No requirement that the evidence thus admitted should reach any particular threshold of probative value, or that the creditworthiness of the defendant should be an issue of substantial importance in the case **Concept is of the general credit of the accused rather than the narrower concept of propensity to untruthfulness arising in relation to s. 101(1)(d).** **Court of Appeal had rejected evidence of texts suggesting D was a drug dealer** in relation to **an attack by him consisting of an allegation that the complainant of the offence was a user of drugs who owed money to others**. Chrysostomou appeared to suggest that the **test to be applied was that the bad character evidence had to do more than 'blacken the character' of the accused and by doing so to 'dent his credibility generally'**. It was **important that the evidence adduced should reflect the character of the accused at the time of trial**, so that, for example, **some old convictions might properly be rejected, particularly those demonstrating propensity to commit the offence charged**. Note that the evidence in Chrysostomou **did not involve clear proof of offending: this might be an alternative reason for exercising the discretion against the use of the text evidence concerned.** **D had been permitted, under the CJA 2003, s. 100 (see F15), to adduce evidence of V's aggressive and volatile disposition to support D's defences of accident, self-defence and the lack of intent to cause serious injury**. The Court of Appeal **rejected a submission that D's convictions for robbery should not have been admitted in response**. Under gateway (g), **all convictions are potentially relevant to assist the jury in determining the character of the person making the attack**. However **it is not generally necessary for detailed facts about the nature and circumstances of convictions to be adduced for this purpose.** A further submission, that the **purpose of s. 101(1)(g) was limited to cases where the person whose character is attacked gives evidence, was also rejected**. **Court of Appeal observed that judges should be careful to ensure that gateway (g) is not invoked too lightly where a police officer's conduct of an investigation is the subject of cross-examination, in order not to inhibit a legitimate line of questioning.** 'A gentle hint should be sufficient to alert trial counsel of the potential dangers of pursuing a particular course'. ***[When to exclude evidence falling in these gateways? ]*** **101 (3)** -- The court **must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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.** The power, it should be noted, **comes into play on application by the defence to exclude the evidence rather than on the prosecution application to admit it**. The power under s. 101(3) **does not appear to be exercisable by the court of its own motion**. If necessary (e.g., to protect an unrepresented accused), an application could be prompted by the court. ***[Hanson -- ]*** - **Drew attention to the wording 'must not admit', in s. 101(3),** with the comment that **this was a stronger formula than the one in use in the PACE 1984, s. 78** ('may refuse to allow'). His lordship also expressed the **hope that prosecutors would not routinely apply to use evidence of the accused's convictions but would take into account the particular circumstances of each case.** **but the currently preferred view is to regard the two provisions as being on all fours in that a court has no discretion under s. 78 once the conditions for exclusion are satisfied.** ***[What are the procedures for adducing and opposing bad character evidence? ]*** ***[Notice Requirements -- ]*** - The requirements apply equally where it is sought to rely on the cross-admissibility of accusations. - r\. 21.4 to make provision for the accused who wishes to introduce evidence of his or her own bad character to give notice, in writing or orally, as soon as reasonably practicable and in any event before the evidence is introduced - Court of Appeal specifically discouraged the practice of 'informal' applications to admit bad character evidence. All applications should be made in accordance with CrimPR Part 21. The proper course should be to make a written application (or at least undertake promptly to make such an application), and for a judge to rule on the point, however briefly, as the circumstances may require. - Where a defence witness denied that D had pressured her to give false evidence, prosecuting counsel asked whether he had been violent towards her in the past and she spoke of an incident some years before. No application had been made to adduce this evidence, and had it been, it would have been refused. The Court of Appeal noted that it was unfortunate that the question had been put, but it did not go to a central issue and such prejudice as it may have occasioned was corrected by a strong direction from the trial judge. The accused may waive the entitlement to notice, and the court has power to allow notices to be given in a different form, or at a different time, where to do so is in the interests of justice. the **propensity of D to make an unprovoked attack might have been introduced in rebuttal of D's defence that S, and not he, had committed the offence, but the prosecution held back in the interests of fairness**, electing only to rely on the evidence when it became apparent that the **alleged victim of D's previous attack (his mother) was to give evidence that S (who did not give evidence) had confessed to her in what the prosecution regarded as a sustained attempt to pull the wool over the eyes** of the jury. - Late oral application to admit the evidence was held to be acceptable as D had not been prejudiced; the prosecution had made the defence aware of their intention to rely on this material, and any 'satellite' issues to which it might give rise could have been dealt with through the mother's evidence or if necessary by recalling D. Where the **rules have not been complied with, the court should consider whether to vary the notice requirements using the power in CrimPR 21.6. The power is unfettered**, and is not limited to exceptional cases, though the court must bear in mind the importance of its case-management duties Where the power is not exercised, the evidence will be excluded. - There will be cases where the power can properly be deployed to prevent substantial unfairness that cannot be cured by an adjournment ***[What is the content of application or notice? ]*** A party who wants to introduce evidence of bad character must--- a. make an application under rule 21.3, where it is evidence of a non-defendant's bad character b. give notice under rule 21.4, where it is evidence of a defendant's bad character. An application or notice must--- a. set out the facts of the misconduct on which that party relies, b. explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them, and c. explain why the evidence is admissible. *[Notice to include a non-defendant's bad character -- ]* That party must serve an application to do so on--- a. the court officer; and b. each other party. The applicant **must serve** the application--- a. as soon as reasonably practicable; and in any event b. not more than **10 business days after the prosecutor discloses material** on which the application is based (if the prosecutor is not the applicant). A party **who objects to the introduction of the evidence** must--- a. serve notice on--- - the court officer, and - each **other party not more than 10 business days after service of the application; and** in the notice explain, as applicable--- i. which, if any, facts of the misconduct set out in the application that party disputes, ii. what, if any, facts of the misconduct that party admits instead, iii. why the evidence is not admissible, and iv. any other objection to the application. The court--- a. may determine an application--- - at a hearing, in public or in private, or - without a hearing; b. **must not determine the application** unless each party other than **the applicant---**

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