Evidence Tutorial

Defendants Bad Character

August 26, y

Defendants Bad Character

Learning outcomes: at the end of this tutorial you should be able to:
1.

Apply the rules under Criminal Justice Act 2003 regime for the admission of evidence of a
defendants bad character to a hypothetical fact situation.
Explain and evaluate the impact of the new regime.

2.

Preparation
*Remember that tutorials are constructed and delivered on the basis that each student
will do a minimum of 10 hours preparation for each cycle.

Revise your lecture notes and supplement and clarify them by reading your
preferred textbook
o
Durston, pp 160-214
o
Choo, chapter 10
o
Doak and McGourlay, chapter 11

Then read the following :

Hanson et al [2005] Hanson et al [2005] EWCA Crim 824, [2005] 2 Cr

App R 21

Morgan Harris Burrows LLP, Research into the Impact of bad Character
Provisions on the Courts, Ministry of Justice Research Series 5/09 (March
2009), summary and pp. 32-36 (available under Learning
Materials/Tutorial Materials/Character.

P Roberts and A Zuckerman Criminal Evidence (OUP, 2010) pp. 658-661

Ten questions to guide your reading and preparation for the tutorial activities

Page

1. Why might the Ds bad character be relevant to a criminal trial? What factors
might affect the probative value of such evidence?
a. For Prosecution: to show the factfinder that D is not trust worthy
(fraud/purgery cases), to show Propensity (the kind of person to this
kind of thing) or credibility (believability)
2. What dangers exist in admitting evidence of Ds BC?
b. Even though BC evidence may have strong probative value, it can have
a strong prejudicial effect on minds of jury
c. knowledge of prior convictions makes conviction more likely
d. Law Comm: reasoning prejudice + moral prejudice
3. What were the rules governing the (in)admissibility of Ds bad character prior
to the Criminal Justice Act 2003
e. BC evidence = inadmissible whether for propensity or credibility
(Maxwell v DPP 1935)
f. Exceptions (COMMON LAW): similar fact evidence (Striking
Similarity)

Evidence Tutorial

Defendants Bad Character

August 26, y

i. D put his character in issue

g. Statutory exceptions: Criminal Evidence Act 1898: Ds BC admitted if:
i. D attacks character of P witness (P can only adduce to Ds
creditability NOT propensity): s.1(f)(ii)
ii. D attacked character of co-D: P & other co-D can adduce only
credibility : s. 1(f)(iii)
iii. A asserted his own GC in witness box
4. What were the criticisms made of those rules and what were the legislatures
aims in introducing the bad character provisions in the CJA 2003?
h. too exceptional cases where Ds BC can be introduced
i. Striking similarities (DPP v Boardman 1975: too narrow)
j. Balancing probative value and prejudicial effect: P (1991); H (1995)
k. D in a better position to introduce evidence than W (more rules
governing, restricting W)
5. Do you feel the BC provisions of CJA 2003 have improved the law? Justify
your conclusion. Are there any aspects of the law which remain problematic?
l. I feel like BC evidence needed to be expanded because in the cases
where prior convictions, disposition or character is relevant to the
current case, but not strikingly similar, were not getting let into the
court and never considered (William Beggs 1989)
m. The juries represent the people and they should be trusted with more
BC evidence, however not all BC evidence should be admitted
n. The CJA03 decision to keep BC evidence as relevant to the current
case is possible is important because it curtails any extra BC evidence
non relevant. Relevance can establish propensity or tendencies of
defendants charged to establish a patter of behaviour.
6. What are the key statutory criteria under CJA 2003 for determining the
admissibility of Ds propensity to commit an offence of the kind with which
he is currently charged and his credibility as a witness?
o. s.98-113 since december 2004
p. defined BC: s 98
q. 7 gateways: s.101
7. What criteria are laid done in the case of Hanson for applying the statutory
criteria on propensity and credibility?
Where propensity to commit the offence is relied upon there are thus essentially
three questions to be considered:
1. Does the history of conviction(s) establish a propensity to commit offences
of the kind charged?
2. Does that propensity make it more likely that the defendant committed the
offence charged?
3. Is it unjust to rely on the conviction(s) of the same description or category;
and, in any event, will the proceedings be unfair if they are admitted?
In referring to offences of the same description or category, section 103(2) is not
exhaustive of the types of conviction which might be relied upon to show evidence of
propensity to commit offences of the kind charged. Nor, however, is it necessarily
sufficient, in order to show such propensity, that a conviction should be of the same
description or category as that charged.
Page

There is no minimum number of events necessary to demonstrate such a propensity.

The fewer the number of convictions the weaker is likely to be the evidence of

Evidence Tutorial

Defendants Bad Character

August 26, y

propensity. A single previous conviction for an offence of the same description or

category will often not show propensity.
8. What safeguards exist to ensure that the prejudicial effect of admitting
evidence of Ds BC does not outweigh its probative value?
r. s.103(1b): Ds propensity must be relevant to the issues
s. judicial discretion (s.101(3) G4: exclude, like s.78 PACE)
t. exclusionary discretion: broader under s.101(4): G4
u. Judge directing jury: summing up (Hanson [18] judge must warn jury
very clearly on placing undue reliance on previous convictions)
i. judge should (Campbell) relate gateways to facts rather than
reciting them: think about relevance carefully
v. lapse of time: s.103(3): unreasonable to allow such a length of time
between offences
9. What statutory criteria exist to determine the admissibility of a co-Defendants
BC on the application of D? What, if any, discretion does the Judge have to
refuse to admit such evidence to protect the co-Ds right to fair trial?
w. Gateway 5: s.101(e): if and only if it is substantial probative value in
relation to the important matter in issue BETWEEN D & Co-D
x. only available to co-defendants NOT prosecution: s.104(2) CJA03
10. What risks does D run in seeking to challenge the credibility of Prosecution
witnesses or in asserting his own credibility as a witness?
Tutorial Activities
1. Essay type question
Prepare a plan for the following essay type question. Be prepared to discuss it.
The starting point should be for judges and practitioners to bear in mind that
Parliaments purpose in the legislation, as we divine it from the terms of the Act, was
to assist in the evidence based conviction of the guilty, without putting those who are
not guilty at risk of conviction by prejudice. Per Rose LJ (VP) in Hanson et al
[2005]
Explain the way in which the Criminal Justice Act 2003 provisions on the defendants
bad character were intended to achieve these aims and evaluate the extent to which
they have done so.
2. Problem Question
D1 and D2 are jointly charged with robbing a bank. Each denies the offence and each
intends to give evidence at their trial.

Page

D1 has several previous convictions for causing grievous bodily harm with intent. D2
has no previous convictions. Last year D2 was charged with attempting to obtain
property by deception. However, the judge stopped the trial and discharged the jury
when a crucial prosecution witness failed to give evidence.

Evidence Tutorial

Defendants Bad Character

August 26, y

W1, who has a shop opposite the bank, claims to have seen two men running away
from the bank at the relevant time. He caught a glimpse of one as he removed a
stocking from his head and recognised the man as D1, whom he knew as a fellow
member of the local martial arts club.
W2, D1s cousin who lives with D1, told the police the D1 was not at home at the
relevant time.
When interviewed by the police in connection with the bank robbery, D2 initially told
them that was visiting a relative at the time. Subsequently he admitted that this was
untrue. He intends to explain in evidence at the trial that he had accompanied D1 to
the bank because D1 had threatened to beat him up if he did not help him. He will
explain that he had at first lied to the police because he had had previous dealings
with them. He will further say that it is unlikely that a person of his good character
would freely commit an offence, in contrast to D1 who has a reputation for violence.
D1 told the police that he was at home watching television at the relevant time. He
intends to say in evidence that W2 is a regular drug user who cannot be believed
because he spends most of his time in a drug induced stupor. He further intends to say
that W1 is lying because he has hated D1 ever since D1 beat W1 in a martial arts
competition.

Page

a) Advise Prosecution on the evidential issues

b) Advise D1 and D2 on the evidential issues.