Tutorial 06: 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. 3236 (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
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?
Even though BC evidence may have strong probative value, it can have
a strong prejudicial effect on minds of jury
knowledge of prior convictions makes conviction more likely
Law Comm: reasoning prejudice + moral prejudice

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3. What were the rules governing the (in)admissibility of Ds bad character

prior to the Criminal Justice Act 2003
BC evidence = inadmissible whether for propensity or credibility
(Maxwell v DPP 1935)
Exceptions (COMMON LAW): similar fact evidence (Striking
Similarity)
i. D put his character in issue
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
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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?
I.
too exceptional cases where Ds BC can be introduced
II.
Striking similarities (DPP v Boardman 1975: too narrow)
III.
Balancing probative value and prejudicial effect: P (1991); H
(1995)
IV. 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?
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)
The juries represent the people and they should be trusted with more
BC evidence, however not all BC evidence should be admitted
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?
i. s.98-113 since December 2004
ii. defined BC: s 98
iii.
7 gateways: s.101
7. What criteria are laid down 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.

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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.
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8. What safeguards exist to ensure that the prejudicial effect of admitting

evidence of Ds BC does not outweigh its probative value?
i.
s.103(1b): Ds propensity must be relevant to the issues
ii.
judicial discretion (s.101(3) G4: exclude, like s.78 PACE)
iii.
exclusionary discretion: broader under s.101(4): G4
iv. Judge directing jury: summing up (Hanson [18] judge must warn jury very
clearly on placing undue reliance on previous convictions)
a. 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 coDefendants 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?

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

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.
Intro: define BC statute or generally at CL: want to adduce previous to suggest that D
is liable to behave in a certain way: can be relevant
CL: developing exceptions and it was considered to have arbitrary between propensity
and credibility = distinction is unworkable = lead to CJA 2003
CJA aim to make clear and consistent way of approaching BC

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I: CJA helps in the evidence based conviction of the guilty

set out argument: peoples character doesn't change over time, more likely to commit
what they've done before
Statue: gateways, s.101(a)-(g): how have they assisted: allowing important matters
between P and D
& propensity and credibility s.103
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Propensity is established, involves offence of same description or category +

sufficient ___ * trying to adduce it in other ways
Hanson:
Credibility: have to be shown to be lying, difference between dishonesty & lying,
actively lied (hanson)
II Conviction by prejudice
directions that are set out, Campbell & Hanson, all the specific things to ensure jury
don't attach too much weight
exclusionary discretions
s.101(3): MUST v. s.78
Manson: not just one offence
Hanson: very fact sensitive: depends on circumstances
Against: Roberts & Zuckerman argument
They consider that s.101(e) and (g) have gone too far: encourages fighting fire with
fire
In attacking another persons character = unfair because Victims are not facing
punishment = too balanced towards victims (i.e.; witnesses)
Reprehensible behaviour = applied inconsistently and uncertain = create unfair
situation with D and depending on who judge is
Conclusion: weigh
Yes, have helped, regime to introduce and some protection for D but arguably gone
too far
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.
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.
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.

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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.
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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.
a) Advise Prosecution on the evidential issues
b) Advise D1 and D2 on the evidential issues.
1. does it fall within BC definition under s.98: how he behaves in this investigation is
not BC (would be relevant) only previous is BC
2. if Yes: gateways for admissibility s.101(a)-(g)
3. If no: if relevant, admitted anyway: Manister
4. Should J exclude under s.103(3) or (4)
5. advising D: Judge (Hanson, Campbell) has direct jury
Advising prosecution:
Will want to admit any previous BC, how can they adduce if they cant later
BC under s.98? Yes it does, not connected to current offence, shows previous
Which gateway?
D2: previous convictions for GBH: suggest this BC propensity or credibility
Under s.101(d): G4
s.103: whether D has propensity to commit offence or propensity to be untruthful
Relevant issue: propensity to commit offences of the same kind: s.103(2)
s.103 (2): offence of same description of same description or category
Not same offence (same terms on indictment, GBH and robbery = not)
Same category: statutory instrument: not same category
we CAN admit, without prejudice to any other way of doing so: s.103 ***
Hanson:
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?
number
of
previous incidents: M = one not enough to establish propensity
- similarity and degree of similarity between offences: Duggan, Nygun: violent
offences, where you have an offence involving violence will establish a propensity
to commit another - Judge to determine
- gravity criteria: gravity of offence, more serious the more likely they'll admit it
regardless of time
103(3) must: judge to err on side of caution = judges discretion to admit Prosecution
evidence

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Prosecution and D2
P wants to adduce obtaining property with deception
a charge, not convicted, Z(2004): HL you can rely on D's acquittal, or that hes
only been charged
Establish propensity? Too different, no commonality
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but would be able to get it through in relation to credibility = s.103(b) = in order

to adduce this, some aspect of D's account is untruthful (D2 lying about duress)
Untruthful: prosecution can't adduce theft to show untruthful: Campbell, it is confined
to charges/offences where lying is an element of offence = telling lies
here, this would probably go through and P can adduce the theft
unless judge decides to exclude it under s.103(3): possible that he would,
because it is only a charge

Advising D1 & D2
Cut throat defences, could try and exclude, but if they are going to run cut throat it is
likely that both of their BC will go in
D1 want to adduce D2's obtaining property with deception: propensity to be
untruthful, undermine D2's defence of duress
D2 want to adduce D1 GBH and convictions to show he has a propensity to commit
these kinds of defence, support defence because it would show that D1 is violent and
threat more likely
Gateway 5: s.101(e): when it has a substantial matter of issue between D and Co-D
can judge exclude, same discretion? NO: once it has been established that it has
substantive probative value to go through G5, judge can't exclude it: Missoni +
loburn, D has a right to run there defence how they will
Missoni: wouldn't define substantive probative value, but Home Office
explanatory notes: will be considered to have substantive value unless it is of
marginal value
Cut throat defence: quite relevant to important matter: both D1 and D2
considered substantive probative value
D1 adduces property of deception: whereas with P (Campbell) lying must be element
of offence,
Lawson (2005): broader definition of truthfulness than with P, with defendants not the
case, a wide range can be adduced: likely that D1 can adduce this
Advising: would it be wise for a cut throat defence?
Attacking another persons character: s.101(g): opens up your previous BC to be
admitted
However; they already have there BC admitted, they might has well run a cut throat
defence
Also:
D1- attacks P's witness, W1: grudge, he also attacks W2 regular drug user = open
himself up to s.101(g): can happen at any time of process: Ball (2008): all BC can go
in at trial even if attack is pre-trial
D2 asserts his own GC: opens up to s.101(f): to correct the false impression he put
forth
motive for attacking BC doesn't matter, even if you are attacking character for
essential part of defence, or as course of explanation, regardless of intention as soon
as you suggest, you open yourself up: Dowds (2007)
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Direction: ensure that judge gives proper direction: Hanson & Campbell (guidance on
direction):
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Hanson: judge to warn jury not to place any undue reliance, even if it does show
propensity, doesn't mean that he did this offence
Campbell: judge should not just recite gateways but relate them to facts
Wednesbury Unreasonableness: high standard for appeal
D2 false alibi then changes it: does this relate to BC?
s.98: not BC because it is connection with current investigation and s.98, must be
about previous
go to relevancy principles in CL: considered relevant that he changed his alibi
** Lucas Lies: P adducing evidence that D lied about where he was, can include it
to corroborate the case against him, but judge must direct jury that people can lie
for various reasons,
must be a deliberate intent to deceive: D2 could have lied because he was
nervous because he has had other dealings
doesn't apply to D1 because regular between P and D
ID issue: W1 'fleeting glimpse' advise D on the fact that if thats all the offence is
based upon = weak

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Conclusion: either way there BC evidence would find its way into court proceedings