Bad Character

July 2013 SSOS

Non defendant’s bad character evidence

Section 100

Overview – Non defendant’s character• Is it evidence of bad character? (s. 98)

Have all parties agreed to the use of the evidence? (s. 100(1)(c)) If not, leave required (s. 100(4))

Is the evidence important explanatory evidence? (ss. 100(1)(a))

orIs it of substantial probative value (s 100(1)(b)) and

has the court had regard to all the factors in s. 100(3)?

NB s 41 YJCEA 1999 might also apply.

Non- defendant’s bad character

• S 100(1)(b)• Substantial probative value• Matter in issue• Which is of substantial importance to the

case

• R v Miller [2010] EWCA Crim 1153– Section 100 prohibits kite flying and innuendo– Unproven allegations should rarely be put to W

Limits on what might be of substantial value?

• R v Braithwaite [2010] EWCA Crim 1082– CRIS reports, fixed penalty notices etc are unproven

allegations; convictions & cautions can be within s100

• R v Hamer [2010] EWCA Crim 2053– Fixed Penalty Notice does not deny D a good

character direction.– FPN is a punishment for suspected offending only

• R v Dalby [2012] EWCA Crim 701– Relying on unproven material in a harassment

warning is pushing the boundary!

When is evidence going only to witness’s credit of substantial probative

value? • R v Brewster [2010] EWCA Crim 1194

– If evidence against W goes to credit alone, it is admissible under s 100(1)(b) if sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of W’s creditworthiness.

• R v Simpson [2010] EWCA Crim 2266– D tried for rape occurring in 1989. V convicted of minor

public order offence in 1991... Not of substantial probative value!

• R v Barlow [2013] EWCA Crim 920– W’s truancy, cannabis smoking, keeping bad company and

swearing on Facebook were not sufficient .

Section 109 - evidence of bad character is to be regarded as true…

• R v Dizaei [2013] EWCA Crim 88

“the bare fact of an allegation (even if assumed to be true) is not necessarily conclusive of the question whether it constitutes substantial probative evidence or evidence of substantial importance in the context of the case as a whole. “

What to say to the jury?

• Identify the evidence

• Explain its potential significance

• The burden of proof – if D then may be true will suffice

• Identify what issue in the case it might assist them in deciding?

• Explain that it is for jury to decide whether it assists and if so how much

Good character of non defendant

• R v Lodge [2013] EWCA Crim 987

• In general evidence cannot be called to bolster a witness’s credibility. An exception to that general rule arises where the witness’s disposition is made an issue in the case. It is then permissible in rebuttal to adduce evidence relevant to the alleged disposition.

Section 101

Overview

An Overview• Notice and preparation

• Is it bad character? Section 98 and s 112

• Does it relate to D?

• If so does it fit within a “gateway” s 101 Parties agreed? (s. 101(1)(a)) Intentionally given / elicited by D? (s. 101(1)(b)) Important explanatory evidence? (s. 101(1)(c)) Important matter in issue between D and prosecution? -(s.101(1)(d)) Substantial probative value in relation to an important matter in issue

between D1 and D2? (s. 101(1)(e)) Correcting a false impression given by D about himself? (s. 101(1)(f)) D has made attack on another person's character? (s. 101(1)(g))

• Is there a discretion to exclude it?

• If admitted what uses can it be put to?

• What warnings must be given?

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Defendant’s b/c evidence

• What is the evidence?– Fact or detail?

• Is it evidence of bad character?

• Is it to do with the facts of the offence?

• Why is it being relied on?– Propensity? Knowledge? Credibility?

• Which gateway(s)?

• Discretion to exclude?

• What warning is needed?

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Requirement of specific directions

• R v SW [2011] EWCA Crim 2463– CA quash convictions. Insufficient guidance to

jury on use of b/c evidence.

• R v DF [2011] EWCA Crim 2168– HHJ gave inadequate guidance on bad character

evidence that was rightly admitted

• R v P [2012] 31/5/2012– D charged with abducting boy V, 15. D has DVD

collection including those of prepubescent naked boys

– Careful direction needed on what uses of DVDs for

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• “it is necessary to address separately the different possible gateways for the admission of bad character evidence …  It is, of course, true that if evidence is admissible through any gateway it may then be considered by the jury in any way to which it is legitimately relevant whether it has primarily been admitted on that basis or not – see R v. Highton

• That, however, does not relieve the court of the duty of establishing which gateway or gateways are applicable.  That exercise must be undertaken…. in order to ensure that bad character evidence is only admitted when the statute allows [and] … because the decision as to the relevant gateway or gateways will normally be of great help in identifying the way and ways in which the evidence can legitimately be used – that is to say the issues to which it is relevant. 

• …it is not law that once bad character evidence is admitted, having by definition passed at least one gateway, it can thereupon be used by the jury in any way the jury chooses.  On the contrary, it may be used in any issue to which it is legitimately relevant but not otherwise.”

Proving details of the conviction

• Does the previous detail need to be proved?– Lamaletie [2008] EWCA Crim 314

• Details of earlier offending?– By a statement by the complainant or live evidence from

the complainant: Woodhouse [2009] EWCA Crim 498. – Beware satellite litigation

• Can the detail be proved by hearsay?– reliance on s 117 : Hogart [2007] EWCA Crim 338– reliance on s 114 (1)(d): Steen [2007] EWCA Crim 335– Compliance with hearsay rules essential

D disputes conviction

• R v C [2010] EWCA Crim 2971 – D is entitled to disprove the conviction under s 74(3) of PACE,

but a mere denial by him that the conviction is accurate will not trigger an obligation on Crown to reprove.

• Olu [2010] EWCA Crim 2975– (i) as a matter of principle, evidence of the commission of a

previous offence contained in an admission, which is relied on as reprehensible conduct, can be challenged by D;

– (ii) any D who challenges the conviction or caution had to give notice to that under Crim PR 35.3(4)(b) ;

– (iii) there was considerable difference between a caution and a conviction.

– There was also a very considerable difference between an admission contained in a caution without legal advice having been given and an admission made in a caution after legal advice.

Overseas offences• Section 144 of the Coroners and

Justice Act 2009 and Sched 17 • Can admit under s.103 convictions of

offences from any country outside England and Wales

• To same extent as previous convictions in E &W

• Provided foreign offence would also be an offence in England and Wales if performed here at the time of the present trial

Dangers of satellite litigation• O’Dowd [2009] EWCA Crim 905• D charged with rape. Crown rely on evidence

from complainants to prove– Previous acquittal on similar allegations– Previous trial stayed for abuse on similar allegations– Previous conviction.

• CA quash conviction when trial lasted 6 months • Duration in part due to

– too much bad character – D repeatedly sacking legal team – D disputing everything and admitting nothing – D feigning illness.

What is bad character?

When is sex “evidence of bad character”?

• Misconduct or disposition towards misconduct

• "misconduct" means commission of an offence or other reprehensible behaviour

• as a matter of ordinary language, the word “reprehensible” carries with it some element of culpability or blameworthiness: Renda

• Cautions suffice: Woodhouse• Allegations against D stayed as abuse still

evidence of bad character: Smith• Allegations not prosecuted can suffice:

Ngyuen

Counter intuitive thinking

• 34 year old having sex with 16 year old not per se bad character: Manister

• If it is not bad character, evidence admissible without further ado.

• D less well protected by regarding his previous conduct as not reprehensible behaviour

Bad Character?• Reprehensible?

– Substance misuse : AJC – Being sexually promiscuous: Ball – Making a false complaint: Littlechild – Consenting to sexual cutting: Marsh– “Mouthing off” at teachers? : Larkin [2010] 2850– Loitering outside public toilets over period of weeks and

entering in pursuit of young boys. Rossi

• Not reprehensible– Suicide attempt: Hall Cheung (2007)– Being the victim of sexual abuse: AJC (2006)– Diary of sexual fantasy with pre-pubescent girls: Fox

(2009)– Sleeping bare-chested with a knife: Allen

Not bad character, but jury warning?• IJ [2011] EWCA Crim 2734

– H charged with sexual abuse on step sons– H left marital home for homosexual affair but returned– Is evidence of his homosexual affair admissible?– Is it bad character? Is it relevant?

• Bullas [2012] EWCA Crim 1659– D convicted of sexual offences on young boys– D denied and claimed homosexuality “made him sick”– D had had consensual homosexual relationship when

aged 17 with W1 aged 21– W2 testified that he went with D to a gay bar once

“Bad character” or s. 98• Evidence which has “to do with alleged facts” is

admissible under s 98(a) even if it would be “bad character” – To do with the offence implies nexus in time between

offence and other conduct: Tirnaveanu

– If the evidence is relied on to show motive there is no need for a temporal nexus: Sule [2012] EWCA Crim 1130

– Would evidence have been admissible under the common law outside the context of bad character or propensity, or as embracing anything directly relevant to the offence charged, if contemporaneous with and closely associated with its alleged facts: McNeill.

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Examples of s 98(a) • Brand – D charged with rape on retrial;

evidence of related theft conviction from first trial admitted

• McKintosh – V delayed reporting because D had previously shown her a gun

• Loftus – D’s rape of V “to do with” her encouraging his abuse of their children

• BEWARE – if counts are dropped from indictment!

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S 98(b)• Evidence is not bad character if it is

misconduct related to investigation

• R v S – the misconduct has to have “some closer link

with the actual investigation of the offences or with their actual prosecution” than just proximity in time.

• R v Apabhai [2011] EWCA Crim 917– s 98(b) renders admissible that which would

have been admissible at common law.

The gateways

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Section 101(1)(a)

“(a) all parties to the proceedings agree to the evidence being admissible”

• If bad character is agreed, compliance with court orders is still essential: R v Johnson [2008] EWCA Crim 1156

• Tacit agreement to admit will suffice: Marsh [2009] EWCA Crim 2696

• Beware of agreed facts being put before jury without having seen them: R v T (County Court proceedings wrongly admitted)

Section 101(1)(b)

• (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…

Section 101(1)(c)“(c) it is important explanatory evidence”

• D [2008] EWCA Crim 1156– Background evidence not to be overused to admit

prejudicial evidence which should really have to satisfy higher test under s 101(1)(d)

– … the statutory test for gateway (c) should be applied cautiously where it is argued to overlap with a submitted case of propensity. Alternatively, section 78 might well require such evidence to be excluded where it really amounts to evidence of propensity which would not be admitted as such…” [36]

Avoid overuse of s 101(1)(c) • R v Saint [2010] EWCA Crim 1924

– Evidence of D’s interest in dogging and swinging as important when D alleged to have committed rape in car park?

• R v Lee [2012] EWCA Crim 316– Evidence of D having planted a camera in V’s

bathroom when V aged 16 as important explanatory evidence as to why D left the home at V’s request. Charges he faced were from years before?

• R v Sheikh [2013] EWCA Crim 907– Evidence of rape to explain charges of breach of SOPO

Section 101(1)(d)

– Is it in issue – if D has admitted the relevant “trait” it is not relevant to propensity: Goddard [2012] EWCA Crim 1756.

– Child sex may well be propensity from sole old conviction or caution: Woodhouse

– Sentence on previous occasion usually irrelevant: Nelson (2012)

– Propensity can be based on events after alleged crime: A (2009); R v B (2011)

– Can use previous convictions to rebut denial : Montakhab [2012] EWCA Crim 2012

Single previous conviction?• Hanson [2005]

“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.”

• Applied in R v Miller [2010] EWCA Crim 1578

• Cf Bennabou [2012] EWCA Crim 3088

R v D (N) (2011) EWCA Crim 1474

• D is charged with the sexual abuse of a child • possession of indecent photos of children

capable of being admitted under s 101 to demonstrate a sexual interest in children.

• It does not necessarily follow that a person who enjoyed viewing such pictures would act out the activity undertaken in them by abusing a child.

• Evidence of possession was not evidence that D demonstrated the practice of committing sexual abuse or assault.

R v B [2011] EWCA Crim 1630• Viewing or collecting child pornography was

capable of being admitted under s101(1)(d).

• Bad character evidence pre-dating an offence can be admissible at trial.

• D’s interest in making, possessing or distributing images did not mean D would commit sexual offences.

• Caution was needed. The judge was not to determine whether there was 'propensity', but merely to determine if the evidence was capable of establishing propensity.

Cross admissibility

• The term ‘cross admissibility’ should be used only to describe an issue whether the evidence in support of one count in the indictment may be relevant in support another count in the same indictment.

• The term is not apt to describe an issue whether non-indicted bad character evidence is admissible in support of any count in the indictment. That way confusion lies.”[47]– Suleman [2012]EWCA Crim 1569

Freeman and Crawford [2008] EWCA Crim 1863

• Not always necessary to rely on propensity to render cross admissible

• Can be cross admissible to rebut coincidence: – If each of the allegations is capable of making

it more likely that the other allegations were true because of the similar nature of the evidence in each case.

– whether or not the incidents were capable of establishing a propensity, each may be admissible as evidence to support truth of the other allegations….

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• Some cases we invite jury to reason from propensity– D did this “kind of thing” to V1, has trait, more likely to

have done it to V2 – Sequential reasoning including reliance on D having trait– Only works if no collusion, & need propensity warning. – Propensity is part of reasoning process

• Case B - jury invited to reason to propensity– 3 complainants independently allege same conduct– Jury can reason cannot be explained as coincidence– Not sequential– Propensity not part of reasoning process that judge

polices; it is part of the conclusion only.

Cross admissibility - without propensityCross admissibility - without propensity

– R v H [2011] EWCA Crim 2344• “the reality is that independent people do not make

false allegations of a like nature against the same person, in the absence of collusion or contamination of their evidence.”[24].

– R v Nicholson [2012] EWCA Crim 1568• In some instances assistance might be necessary on

how unlikely the coincidence • Beware juries double counting by using evidence from

Ct 2 to rebut coincidence on ct 1 and then using guilt on ct 1 as evidence on ct 2.

NH [2011] EWCA Crim 730

• It will be in rare circumstances, if at all, that the jury might be directed to consider both these possibilities in the same case (although it is not so unusual for the jury to consider the effect of a relevant previous conviction as demonstrating a relevant propensity and the unlikelihood that similar but independent complaints are, as between themselves, coincidental or malicious).

Collusion and contamination • R v NH [2011] EWCA Crim 730

– exclude collusion or innocent contamination assessing how likely to be the product of coincidence.

• R v PR [2010] EWCA Crim 2741– What matters is collusion or contamination; that is

not to say that witnesses can never have spoken!

• R v Cross [2012] EWCA Crim 2277– Only of value in terms of coincidence if no

collusion or contamination between witnesses

• R v Coull [2011] EWCA Crim 2893

Section 101(1)(e)“(e) it has substantial probative value in relation to an

important matter in issue between the defendant and a co-defendant”

• Phillips [2011] EWCA Crim 2935– Substantial probative value – In relation to an important matter – In issue between the D and a co-defendant.– No discretion once admitted under s 101(1)(e)– Only D can rely on this gateway– If CoD’s b/c suggests that he would be prepared to lie if

necessary to defend himself, this gateway to admissibility may be triggered.

– No restriction on type of earlier offence admissible

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Section 101(1)(f) “(f) it is evidence to correct a false impression

given by the defendant”

– R v Wylie [2010] EWCA Crim 3110 – detail matters – difference between saying “never been in trouble” and “never been in trouble with police”

– R v Dixon [2012] EWCA Crim 2163 - D, in interview claimed that he had never been attracted to V or to any other child. At trial, D claimed that V was making the allegations because of her mother’s hostility towards him.

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• “ The evidence of what he had said when confronted by the allegations was relevant and admissible. If an accused lies in interview and the consequences for the appellant are unfortunate, the answer is not to edit out those lies. The answer is that the prosecution is entitled to rely upon those lies. Here the answers were freely given and the appellant was not lured into making his character admissible. Once the evidence was in, it was incumbent upon the judge to ensure that the jury were not misled. The evidence was therefore necessary to correct a false impression which went to the heart of the matter.” Per Hallett LJ at [17]

Section 101(1)(g)“(g) the defendant has made an attack on another

person's character.”

• "[I]mputation about the other person" means an assertion attacking the other person’s character.

• Direct attack in interview on rape complainant’s credibility could be enough: Ball

• Ought not to be triggered by an attack on the character of a person who is neither a witness nor an alleged victim: Nelson

• Once evidence admitted may also be propensity evidence: Highton

Good or bad character?• D has good character unless incident alleged to form part of the

bad character evidence in the present case is proved….

• Begin with good character direction (on the basis that D has never been convicted etc.) but then to say something like this:

“This is subject, depending on what you make of it, to the evidence about what is said to have happened in [alleged b/c]. I say “depending on what you make of it” because if you are not sure that what is said to have happened [ ] actually occurred, then you must take no account of it at all and you should take D’s good character into account in the ways which I have just explained without any regard to the evidence about the playground. If on the other hand you are sure that the incident did occur then this is something which you are entitled to take into account in deciding (a) what weight, if any, you should give to D’s otherwise good character and (b) whether or not you can be sure that D behaved as he is alleged to have done on this occasion. In this regard ......”{add propensity direction tailored to facts of the case}.