Character Evidence

Why use character evidence?

 Credibility – who should the jury believe?
 The defence may wish to show that they are a person of good
character so should be believed.
 The defence may wish to challenge the credibility of a prosecution
witness by showing that they have convictions for dishonesty.
 The defence might wish to bring evidence that a co-accused has
committed similar offences in the past to support a suggestion that it
was the co-accused who committed the offence.
 The prosecution may wish to bring evidence that the defendant has
committed similar offences in the past to support the suggestion that he
committed the current offence – propensity. This would enable them to
put his character before the jury as part of the prosecution case.
Good Character of the defendant
R v Vye (1993) 97 Cr App R 134.
 "(1) A direction as to the relevance of his good character to a defendant's
credibility is to be given where he has testified or made pre-trial answers or
statements. (This can include statements made in the police interview etc)
 (2) A direction as to the relevance of his good character to the likelihood of his
having committed the offence charged is to be given……. (demonstrates the
absence of a propensity to commit the offence with which he is charged)
 The effect of Vye was to change the common law of England and Wales to a
position where directions as to the relevance of good character to credibility
and/or propensity are mandatory in every case in which the judge concludes, or
ought to have concluded, that the defendant is entitled to be treated as a
person of good character.
 Any defendant with no criminal convictions or other alleged misconduct is
entitled to a good character direction.
The Legal framework under the Criminal Justice Act 2003

 “Bad character” evidence is defined in section 98 of the Act which provides that:
 “References in this Chapter to evidence of a person’s ‘bad character’ are to
evidence of, or of a disposition towards, misconduct on his part, other than
evidence which –
1. Has to do with the alleged facts of the offence with which the defendant is
charged, or
2. Is evidence of misconduct in connection with the investigation or prosecution of
that offence”.
 “Misconduct’ is defined in section 112 of the Act as “the commission of an
offence or of other reprehensible behaviour”. What is capable of constituting
reprehensible behaviour will be fact specific and has been held to include;
• Drinking to excess and taking illegal drugs - R v M [2014] EWCA Crim 1457
• Membership of a violent gang - R v Lewis [2014] EWCA Crim 48
S98 CJA 2003
 It is of crucial importance to identify what evidence “has to do” with the alleged
facts of an offence because if it does relate to the alleged facts, it will not be
subject to the statutory regime of gateways and safeguards provided by the Act.
 EXAMPLE
 Adrian is charged with the murder of Frank, his father.
 The CPS alleges that Adrian fabricated a will in Frank’s name, leaving all
Frank’s assets to Adrian, and that Adrian then murdered Frank so that he could
take these assets. The allegation that Adrian fabricated Frank’s will is an
allegation of misconduct on the part of Adrian. It will not fall within s 98 of the
CJA 2003, however, because it is connected to the subsequent murder of
Frank.
 Evidence of the fabrication of the will is therefore admissible without needing to
consider whether it satisfies the test for admissibility of bad character evidence
set out in the CJA 2003.
Character evidence – persons other than
the defendant
 Section 100 CJA 2003 sets out the circumstances in which, outside the alleged
facts of the offence and its investigation and prosecution, evidence can be
given of the previous misconduct of a person other than a defendant in the
proceedings. This might be a witness in the case or a victim but extends to any
other person as well.
 Evidence of their bad character is not to be given without the permission of the
court - Section 100(4) - and can only be given if it meets one of three
conditions.
 In respect of non-defendants, evidence of bad character is most likely to be
probative where a question is raised about the credibility of a witness. The
evidence might, however be probative in other ways. One example would be to
support a suggestion by the defendant that another person was responsible for
the offence.
Section 100 CJA 2003
 Non-defendant’s bad character
 (1)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.

 (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.
Section 100(1)(a) – it is important explanatory
evidence
 Example:
 John is charged with arson by starting a fire in a hostel for resettling
young offenders in which he was living at the time of the alleged
offence. He denies the offence.
 Paul testifies that on the day of the offence he saw John storing
containers of barbecue fuel and firelighters under his bed.
 In providing the court with the background facts of the arson offence,
the CPS will refer to the fact that Paul was residing at the hostel. This
will obviously imply that he has a criminal record. They will not be
required to disclose full details of the criminal record.
Section 100(1)(b) – it has substantial probative value in relation to an
important matter in issue in the proceedings
 Although this ground may apply to any person other than the defendant (and so
may apply to a witness for the defence as well as to a witness for the
prosecution), it is most likely to arise when the defendant seeks to adduce
evidence of the previous convictions of a witness for the prosecution in order to
support an allegation that the witness is either:
 (a) lying or has fabricated evidence against the defendant; or
 (b) is himself either guilty of the offence with which the defendant has been
charged, or has engaged in misconduct in connection with the alleged offence.
 Back to the earlier example:
 John accuses Paul of lying regarding the storage of the containers. If Paul’s
convictions relate to theft and burglary, they would arguably assume the
necessary substantial probative value as they cast Paul’s credibility as a witness
in a different light.
 Alternatively, if John denies the offence and says Paul is responsible and Paul
has convictions for arson then adducing these convictions will substantiate John’s
defence as it will show Paul has a propensity to commit offences of causing
damage by fire.
R v Weir and Others [2005] EWCA Crim 2866

 In R v Weir and Others [2005] EWCA Crim 2866, the Court of Appeal held that
in assessing the probative value of the evidence of another person’s previous
convictions, the court must have regard to:
 (a) the nature and number of the events, or other things, to which the
evidence relates; and
 (b) when those events or things are alleged to have happened or to have
existed (s 100(3)).
 The term ‘substantial’ is likely to be construed by the courts as meaning more
than merely marginal or trivial.

 Section 100(1)(c) – all parties to the proceedings agree to the evidence being
 admissible
 If all parties to the case are in agreement, evidence of the bad character of a
person other than the defendant will always be admissible.
The character of the defendant

 At present evidence of a defendant’s bad character is generally inadmissible,

subject to a number of restricted common law and statutory exceptions.
 Sections 101 to 108 set out the circumstances in which such evidence is
admissible. In summary, these provide an inclusionary approach to a
defendant’s previous convictions and other misconduct or disposition, under
which relevant evidence is admissible but can be excluded in certain
circumstances if the court considers that the adverse affect that it would have
on the fairness of the proceedings requires this.
 Section 101 sets out the gateways through which this evidence can be
admitted, whilst Sections 102 to 106 provide additional definitional material.
Section 101 Defendant’s bad character;

 A defendant’s bad character cannot of itself prove guilt. The prosecution must adduce
other
 evidence to substantiate their case before the jury or magistrates are permitted to take
his bad character into account
 (1)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 the defendant and a co-defendant,
 (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.
S101 CJA 2003 gateways:
 Gateway (a) – all parties to the proceedings agree to the evidence being
 admissible
 If the CPS and the defendant are in agreement that the evidence is admissible, it may be
 admitted under this gateway.
 Gateway (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
 This gateway allows a defendant to introduce evidence of his own bad character. A defendant
 may do this if he has only very minor previous convictions and does not want the jury or
 magistrates to think that, because he is not adducing evidence of his own good character, he
 may have extensive previous convictions. Another example of when a defendant may do this is
 if he has pleaded guilty on previous occasions but is pleading not guilty to the current matter.
 The defendant may use such convictions to say to the jury that he accepts his guilt when he
 has committed an offence, but on this occasion he is pleading not guilty because he genuinely
 has not committed the offence charged.
The Gateways:
 Gateway (c) – it is important explanatory evidence
 Only the prosecution may adduce evidence of the defendant’s bad character under gateway
(c). The gateway is, however, likely to be used only in limited circumstances. It is similar to
the one under s100 CJA 2003.
 Gateway (d) – it is relevant to an important matter in issue between the defendant and
the prosecution
 ‘An important matter’ is defined as ‘a matter of substantial importance in the context of the
case as a whole’ (CJA 2003, s 112(1)).
 Only the prosecution may adduce evidence of a defendant’s bad character under gateway
(d).
 S 103 states that important matters in issue between the defendant and 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 propensity makes it no more likely that
he is
 guilty of the offence); and
 (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)
Propensity to commit offences of the kind with
which he is charged
 S103(2) … a defendant’s propensity to commit offences of the kind with which he is
charged may…. 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 …. 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.
 EXAMPLE
 Peter is on trial for common assault. Peter has a previous conviction for common
assault. This conviction occurred 10 years ago. Peter’s solicitor will argue that this
previous conviction should not be admitted in evidence at Peter’s trial to show that Peter
has a propensity to commit this type of offence. Given the amount of time that has
elapsed since Peter’s previous conviction, he will argue under s 103(3) that it would be
unjust for this conviction to be used in this present case.
Offences of the same description
 Two offences will be of the same description as each other if the statement of
the offence in a written charge or an indictment would, in each case, be in the
same terms (CJA 2003, s 103(4)(a)).
 EXAMPLE
 Stephen is charged with assault occasioning actual bodily harm. He pleads not
guilty on the basis that he was acting in reasonable self-defence. He has two
previous convictions for the same offence. These will be offences of the same
description because they would be described in the same way in a written
charge or an indictment. The CPS may therefore attempt to raise these
convictions at trial to show that Stephen has a propensity to commit offences of
this type.
Offences of the same category
 Two offences will be of the same category as each other if they belong to the same category of offences
prescribed by the Secretary of State (CJA 2003, s 103(4)(b)). The Secretary of State has so far prescribed two
categories of offences which are in the same category:
 (a) the sexual offences category, which specifies a number of sexual offences committed against children
under 16 years of age; and
 (b) the theft category, which includes the following offences:
 (i) theft;
 (ii) robbery;
 (iii) burglary;
 (iv) aggravated burglary;
 (v) taking a motor vehicle or conveyance without authority;
 (vi) aggravated vehicle taking;
 (vii) handling stolen goods;
 (viii) going equipped for stealing;
 (ix) making off without payment;
 (x) any attempt to commit any of the above substantive offences;
 (xi) aiding, abetting, counselling, procuring or inciting the commission of any of the
 above offences.
R v Hanson, R v Gilmore, R v Pickstone [2005] EWCA Crim
824
 Three unrelated cases were heard together by the Court of Appeal in 2005
because they raised the same point of law regarding the issue of propensity.
 “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?”
R v Hanson, R v Gilmore, R v Pickstone
[2005] EWCA Crim 824
 Hanson was accused of taking money from accommodation above a public house -
burglary. The evidence was not strong but the prosecution successfully applied to put
all his convictions for offences under the Theft Acts before the jury as they fell into the
theft category. His convictions effectively strengthened a weak prosecution case.
 The Court of Appeal suggested that a more selective approach would be preferred:
 “Convictions for handling and aggravated vehicle taking, although within the theft
category, do not, in our judgment, show, without more pertinent information,
propensity to burgle as indicted or to steal, to which the applicant pleaded guilty. The
applicant's robbery conviction, albeit also within the theft category, might, had it been
analysed, have been regarded as being so prejudicial as to adversely affect the
fairness of the proceedings in relation to the offence charged. But the applicant had a
considerable number of convictions for burglary and theft from dwellings, which were
plainly properly admissible to show propensity to commit an offence of the kind here
charged.”
 R v Hanson, R v Gilmore, R v Pickstone
[2005] EWCA Crim 824
 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 propensity.
 A single previous conviction for an offence of the same description or
category will often not show propensity. But it may do so where, for
example, it shows a tendency to unusual behaviour or where its
circumstances demonstrate probative force in relation to the offence
charged.
 Child sexual abuse or fire setting are comparatively clear examples of such
unusual behaviour but we attempt no exhaustive list.
 Circumstances demonstrating probative force are not confined to those
sharing striking similarity. So, a single conviction for shoplifting, will not,
without more, be admissible to show propensity to steal. But if the modus
operandi has significant features shared by the offence charged it may
show propensity …
R v M [2006] EWCA Crim 3408
If only a single conviction is being relied upon to show propensity
(something not impossible as both Hanson and the instant case
concede), it might be thought that the older the conviction is, the
less likely it will be capable of demonstrating propensity.
 As a general proposition that might be true in the majority of cases,
but even an old conviction might satisfy the requirement, especially if
it reveals something akin to the element of 'uniqueness' or
'signature'. In cases without this hallmark feature, then more recent
behaviour evidencing propensity would usually be necessary.
 Here the Court of Appeal indicated that the decision of the trial judge
to admit a 20 year old conviction for possession of a firearm without
a certificate, when the defendant was accused of possession of a
firearm with intent to cause fear, was plainly wrong.
Propensity to be untruthful?
 Previous convictions showing a propensity to be untruthful will be convictions
for specific offences where a lie has been told (eg, fraud by false
representation or perjury), or offences where the defendant pleaded not
guilty but was convicted following a trial. Offences of dishonesty (such as
theft) will not generally show a propensity to be untruthful.
 “Thus previous convictions, whether for offences of dishonesty or
otherwise, are therefore only likely to be capable of showing a
propensity to be untruthful where, in the present case, truthfulness is an
issue and, in the earlier case, either there was a plea of not guilty and
the defendant gave an account, on arrest, in interview, or in evidence,
which the jury must have disbelieved, or the way in which the offence
was committed shows a propensity for untruthfulness, for example, by
the making of false representations.”
 R v Hanson, R v Gilmore, R v Pickstone
[2005] EWCA Crim 824
Examples from the CLP manual
 EXAMPLE
 Duleep is charged with common assault. The CPS alleges that he punched his victim in the
 face for no reason. Duleep denies the charge, claiming that he was initially attacked by his
 victim and that he was acting only in self-defence. Duleep’s alleged victim refutes this.
 Duleep has previous convictions for perjury and fraud by false representation. These are
 offences which the CPS may attempt to raise in evidence to demonstrate that Duleep has a
 propensity to be untruthful.
 EXAMPLE
 Kathy is charged with common assault. She is pleading not guilty and will raise the
 defence of alibi at trial. Kathy has several previous convictions for various offences. On
 each occasion she pleaded not guilty and raised the defence of alibi, but was convicted
 following a trial in which her alibi was disbelieved. The CPS may attempt to raise these
 previous convictions in evidence to show that Kathy has a propensity to be untruthful.
Safeguard
 S101(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.
 (d)it is relevant to an important matter in issue between the defendant and the
prosecution,
 (g)the defendant has made an attack on another person’s character.
 Arguments that may be raised include:
 (i) Would the convictions be more prejudicial than probative? Is there a danger that
 the defendant would be convicted on the basis of his previous convictions alone,
 due to the extent or the nature of such convictions?
 (ii) Are the convictions being used to support a prosecution case that is otherwise
 weak?
 (iii) Are the previous convictions spent?
 Spent Criminal Offences
 The Rehabilitation of Offenders Act 1974 provides that after a prescribed period of time, certain convictions are spent.
 This means that, for most purposes (such as completing an application form for a job), the convicted person is to be
treated as never having been convicted of the spent offence. The rehabilitation period varies with the sentence, as
follows:
 Absolute discharge: none
 Conditional discharge: none
 Fine: 1 year from date of conviction
 Community Order: 1 year from completion of the order
 Custodial sentence up to 6 months: 2 years
 Custodial sentence between 6 and 30 months: 4 years
 Custodial sentence between 30 months and 4 years: 7 years
 Custodial sentence over 4 years: never spent
 Criminal Procedure Rules

 21A.1 The effect of section 4(1) of the Rehabilitation of Offenders Act 1974 is that a person who has become a
rehabilitated person for the purpose of the Act in respect of a conviction (known as a ‘spent’ conviction) shall be treated
for all purposes in law as a person who has not committed, or been charged with or prosecuted for, or convicted of or
sentenced for, the offence or offences which were the subject of that conviction.

 21A.2 Section 4(1) of the 1974 Act does not apply, however, to evidence given in criminal proceedings: section 7(2)(a).
During the trial of a criminal charge, reference to previous convictions (and therefore to spent convictions) can arise in a
number of ways. The most common is when a bad character application is made under the Criminal Justice Act 2003.
When considering bad character applications under the 2003 Act, regard should always be had to the general principles
of the Rehabilitation of Offenders Act 1974.
Gateway (e) – it has substantial probative value in relation to an important matter in issue between the defendant and a co-
defendant

 This gateway may be used by one defendant to admit evidence of another defendant’s bad
character. It cannot be used by the CPS.
 A co-defendant is likely to want to admit evidence of defendant’s bad character to demonstrate
that the defendant has a propensity to be untruthful (and thus to undermine the credibility of
the evidence given by the defendant), or to show that the defendant has a propensity to commit
the kind of offence with which they have both been charged (thereby suggesting that it is the
defendant, rather than the co-defendant, who committed the offence).
 EXAMPLE
 Albert and Harold are jointly charged with the burglary of a warehouse. Each pleads not guilty,
alleging that the other was solely responsible for carrying out the burglary. Albert has several
previous convictions for offences of obtaining property by deception. As Albert’s defence (that
Harold carried out the burglary) will clearly undermine Harold’s own defence, at trial Harold will
seek to adduce evidence of Albert’s previous convictions to show that Albert has a propensity to
be untruthful, and to undermine the credibility of the evidence that Albert gives.
 Alternatively, if Harold has previous convictions for burglary then Albert may wish for these to be
adduced to show that Harold has a propensity to commit the kind of offence with which they
have both been charged supporting his defence above that Harold was solely responsible for
committing the burglary.
Gateway (f ) – it is evidence to correct a false impression given by the
defendant
 Only the prosecution may adduce evidence of a defendant’s bad character under
gateway (f ). A defendant will give 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’.
 A defendant will be treated as being responsible for making such an assertion if the
assertion is:
 (a) made by the defendant in the proceedings (for example, when giving evidence in
the
 witness box, or in a defence statement served on the CPS);
 (b) made by the defendant when being questioned under caution by the police before
 charge, or on being charged;
 (c) made by a witness called by the defendant;
 (d) made by any witness in cross-examination in response to a question asked by the
 defendant that is intended to elicit it; or
 (e) made by any person out of court, and the defendant adduces evidence of it in the
 proceedings (CJA 2003, s 105(2)).
Gateway (g) – the defendant has made an attack on another person’s
character
 Only the prosecution may adduce evidence of a defendant’s previous
convictions under gateway (g).
 What constitutes an attack on another person’s character?
 (a) alleged that a prosecution witness had committed the offence with which
he (the defendant) was charged;
 (b) alleged that a witness for the prosecution had a specific reason for telling
lies (such as an allegation that the witness was biased or had a grudge against
him);
 (c) alleged that the police had acted improperly either by purposely
breaching PACE 1984 or the Codes of Practice, or by fabricating evidence; or
 (d) cross-examined a witness for the prosecution about that witness’s
previous convictions

 However the court may be persuaded to exercise its power under s 101(3)
– see earlier slide.
Procedure for admitting bad character
 If the CPS wishes to adduce at trial evidence of the defendant’s bad character,
notice of this intention must be given both to the court and to the other parties in
the case.
 If either the CPS or the defendant wishes to adduce at trial evidence of the bad
character of a non-defendant (usually a witness), an application must be made
to the court for permission to do this, with the application also being sent to the
other parties
 In both of the above cases a prescribed form must be used and attached to that
must be a copy of the relevant previous convctions.
 If a defendant opposes the introduction of evidence of his bad character at trial,
he must apply to the court for such evidence to be excluded. The application
must be sent both to the court and to the other parties in the case.
 If either the CPS or the defendant opposes an application to introduce the bad
character of a non-defendant at trial, notice to this effect must be given both to
the court and to the other parties in the case.
 Bad character applications are usually conducted in a pre trial hearing so as not
prejudice the adjudicating body.
Excluding bad character evidence
 In R v Hanson, Gilmore & Pickstone [2005] Crim LR 787 the Court of Appeal
took the opportunity to lay down general guidelines for dealing with evidence of a
defendant’s bad character under the CJA 2003:
 (a) Prosecution applications to adduce evidence of the defendant’s bad
character should not be made as a matter of routine. Such applications should
be carefully balanced, depending on the facts of the case.
 (b) Where the evidence against the defendant is otherwise weak, it may be
unfair to admit evidence of the defendant’s previous convictions to bolster this
evidence or to prejudice the minds of the jury against the defendant.
 (c) Each individual previous conviction needs to be examined separately, rather
than the court simply applying a broad-brush approach and deciding that all
previous convictions should be admissible.
 As well as addressing the above points the defence should also refer the court
to Article 6 when opposing a prosecution application to put the character of the
defendant before the jury, or when making an application to put the character of
any other person before the jury as part of their defence.