Character & Credibility
- Created by: racheljohnstone
- Created on: 04-05-18 20:33
Issue & Credit
Evidence serves as an indicator of whether or not someone is a truthful witness.
Ev of bad character = more propensity to commit offence
Ev is admitted on account of relevance to the principle issue
DPP V BOARDMAN [1975]
Facts: Appellant - Headmaster boys boarding school - charged buggery of S & inciting H to commit buggery on him.
Held - Ev admissible as corrobative on account relating to H.
Ev of crim acts on part of the accused will be admissible due to similarity with other acts in question.
Legal Framework
Good character - common law
Bad character - Criminal Justice Act 2003
Ev of sexual history & bad character - S41 Youth Justice Criminal Evidence Act 1999
Hanson [2005]
Facts: D pleaded guilty - one count of theft alternative to burglary.
Held: Ev of bad character admitted under s101(1)(d) CJA
Bringing out character of parties & witnesses
Character & reputation are relevant
Defence of accident or false accusation may be plausible, but not on multiple occasions.
Evidence relating to character of ones own witness
ROBINSONS (1994)
Facts: Ev of W's mental abormality
Held: Admissible only in restricted circumstances - abnormality rendering ev suspicious
Ev implying a party is trustworthy...
DS [1999]
Facts: Complainant - Church of England clergyman
Held: It is normal practice to state profession of W - allowed
Disclosure of witness's bad character
Pros under no duty to reveal bad character to Defence.
VASILOU [2000]
Facts: V not informed three pros witnesses had bad character
Held: Conviction quashed - matters that would proceed different if jury knew of this.
S v DPP (2006)
Facts: S denied assault on son N - claimed self defence - N's credibility critical - N had no previous convictions, awaiting affray trial - S asked pros to supply details of this - application under S100 CJA. Details not supplied - refused adjournment
Held: Adj must be granted unless no prejudice caused to D in proceedings
UNDERWOOD [2003]
Facts: D remained ignorant of pros 45 prev convictions - W's ev did not relate to main facts in case
Held: CA - conviction not unsafe.
Good character of witnesses and third parties
Party calling W may not call ev to establish good character.
Expert witness = exceptions
Ev relating to character of opponent witness
Party may impugn credibility of opponent witness.
Cross-examination questions (prev convictions, bias, corruption)
Previous convictions
CLIFFORD V CLIFFORD [1961]
Principle: Conviction for any offence to put witness by cross-exam - not dishonesty.
Courts should give effect to Parliament intention - Rehabilitation Offenders Act 1974
SWEET-ESCOTT (1971)
Principle: Matters questioned in cross-exam: must relate to issue tried for.
HARRIS V TIPPETT (1811)
Principle: Permissible to put Q's to W - improper conduct may be guilty of
ONLY matters if could impair W credibility
Evidence of defendant's good character
AZIZ [1996]
Principle: Good character of accused is relevant to credibility & likelihood of committing offence in trial.
Good character of D = advantage to D
Can't be prevented from making point of good character
Few old convictions does not prevent good character
- D may have them proved against him - but does not mean he cannot claim good character.
What constitutes as admissible character evidence?
In form of evidence of reputation
ROWTON (1865)
Facts: Ev wrongly received by pros - said R was capable of gross indecency & immorality
Held: Inadmissible - Ev was pros opinion - not matter of fact.
MUST NOT give personal opinion of D
REDGRAVE (1982)
Facts: R sought to adduce ev of love letters - received in heterosexual relationship - not homosexual
Held: Inadmissible
When will D be considered of good character?
If D calls W to testify good name:
(1) No crim record
(2) Discretion to overlook discreditable conduct
ANDERSON [1990]
Facts: Officer admitted sexual intercourse with woman - on duty - denied ****
Held: wrongly denied good character direction
MAYE V R [2008]
Facts: M carrying knife - provided no explanation
Held: Good character direction ought to be given as an advantage to his provocation defence
(3) If D has minor prev convictions, may be overlooked
HUNTER [2015]
Principle: D of absolute good character entitled to direction.
- Old previous convictions - effective good character
Proving good character
(1) D may cross-exam pros witness to establish D's good character
(2) Defence may elicit ev from own witness
(3) D may give own ev of good character
AZIZ [1996]
Principle: good character of accused is relevant to credibility & likelihood he would commit offence
D may choose to not call ev, but request good character direction
Direction to D's good character
D must prove good character by giving ev in one of above 3 ways.
Judge must direct jury to relevance of D's good character (lack of crim propensity)
Failure to give direction - retrial
A Vye direction
VYE [1993]
Jurors must be given 2 directions:
(1) Direction on good character & credibility
Jury take into account D's good character to decide whether they believe evidence
(2) Direction on good character & propensity
if D has good character, may be less likely to commit offence
When is D entitled to a good character direction?
HUNTER [2015]
Principle: Only D's with proven good character/effective good character are entitled to a direction.
Absolute good character - no prev convictions/cautions
- Entitled to both Vye limbs
Effective good character - Minor, irrelevant prev convictions
- Not obliged to direction but still a possibility - judge's discretion
D has no prev convictions but admits reprehensible conduct (not relied upon) = judge's discretion
D has no prev convictions but ev of other misconduct - MUST give bad character direction
Co-defendants - if D1 has good character & D2 has crim record, D1 still entitled to good character direction
Evidence of D's bad character
Bad character - ev of actual misconduct or disposition toward misconduct, other than ev which:
(a) has to do with alleged facts of offence D is charged
(b) ev of misconduct in connection with investigation of the offence
- S98 Crim Justice Act 2003
Misconduct - commission of an offence or other 'reprehensible behaviour' whether or not it resulted in conviction
- S112 Crim Justice Act 2003
The 'commission of the offence'
S (STEPHEN PAUL) [2006]
Held: formal conviction was bad character evidence
Cautions given by police acknowledge guilt of offence that would otherwise have crim proceedings
HAMER (2011)
Held: fixed penalty cautions not convictions - no guilt or proof of crime
Evidence of 'reprehensible behaviour'
Reprehensible behaviour - behaviour that is scandalous, disgraceful or improper - does not need to be criminal
- May inc. sexual misconduct, racial beliefs, perverted sexual interests, etc.
FOX [2009]
Facts: ISSUE: whether dirty notebook - evidence of bad character?
Held: book was not a criminal offence, content was thoughts not deeds
Courts assess whether something is reprehensible in context of charges against D.
OSBOURNE [2007]
Facts: O fatally stabbed friend - evidence he was prone to shout at partner when he had not taken meds
Held: not reprehensible conduct
Evidence of 'reprehensible behaviour' (2)
SAINT [2010]
Held: Ev that S, charged with sexual assaults had interest in dogging & swingers was reprehensible.
S98&112(1) Crim Justice Act 2003 - ONLY concerned with ev of bad character
HUSSAIN [2008]
Facts: H & M jointly charged - attempted robbery - H claimed duress from M - not allowed to adduce ev of M's possible murder conviction
Held: This was a complete different matter
Bad character if persons other than defendants
Ev of bad character of someone other than D is admissible if:
(a) It is important explanatory evidence
(b) It has substantive probative value in relation to matter in issue in proceedings
(c) All parties to proceedings agree to ev being admissible
Gateway (a) - Identical to S101(C)
Gateway (b) - More restrictive - twice uses 'substantial'
Gateway (c) - Requires agreement of all parties
HUSSAIN [2015]
Facts: D & complainant - different stories about whether sex - consensual or ****
Held: C's prev convictions were of substantive probative value of whether accusation was believable.
Criminal Procedure Act (1865) - S3
Bad character of defendants
Ev of D's bad character is admissible if requirements of ONE gateway is satisfied.
- S101 Crim Justice Act 2003
HIGHTON [2005]
Principle: once ev admitted under a gateway it can be used for any relevant purpose.
Ev is not to be admitted via (d) or (g) if admission of ev would affect fairness of proceedings.
- S101(3) Crim Justice Act 2003
The following cards will discuss each gateway in turn.
Gateway (a) All parties agree to evidence being ad
S101(1)(a) Crim Justice Act 2003
D will rarely agree to bad character being adduced.
See Hanson [2005]
Meaning of 'agree'
WILLIAMS V VOSA (2008)
Principle: Depending on circumstances, agreement might be inferred from P's acquesence in the evidence being led
MARSH [2009]
Held: M's bad character admitted - agreement between parties that ev was relevant & admissible
D may only agree because they cannot stop ev being admitted by other gateways
Gateway (b) Ev is adduced by D himself
S101(1)(b) Crim Justice Act 2003
If D appreciates his bad character will emerge, it may suit D to admit it himself to give honest impression rather than prosecution
SPEED (2013)
Facts: S charged eposing himself to child - introduced his own crim record - no sexual offences
BRACEWELL (1979)
Facts: 1/2 men accused murder in burglary - described himself as 'professional burglar' - 'never commit such a stupid act'
Gateway (c) It is important explanatory evidence
S101(1)(c)/S102 Crim Justice Act 2003
Important explanatory evidence - if without it jury would find it impossible to understand other ev in case
- S102 Crim Justice Act 2003
PETTMAN [1985]
Principle: when necessar to place before jury ev of a contingual background relevant to offence, the fact that the account involves ev establishing commission of offence of which D is not charged is not grounds to exclude ev
TM [2000]
Facts: Sexual abuse case - 43 counts against 9 D's
Held: admitted background ev - parents gradually introduced eldest son to sexual abuse of sister
Background evidence
PRONICK [2006]
Facts: P convicted - attempted **** of parnter - admitted ev of P's conviction
Held: Unless C was allowed to give account of nature of relationship, jury would not be able to make proper assessment of evidence
Facts that help make sense of crime = 'have to do with', not ev of bad character
LUNKULU [2015]
Held: ev of D's prev gand related violence not bad character - part of a long-standing feud between gangs
Gateway (d) It is relevant to important matter in
S101(1)(d) Crim Justice Act 2003
Only pros can adduce under this gateway
- S103 Crim Justice Act 2003 - Matter in issue?
Propensity to commit offences
Established by ev that D has been convicted of offence of same nature or category.
MUST be 'live important matter in issue' between parties
WHITEHEAD [2007]
Facts: W charged - death by dangerous driving
Held: Pros allowed to adduce ev of prev conviction for speeding - shows propensity
Propensity to be untruthful
S101(1)(d) Crim Justice Act 2003
S109 Crim Justice Act 2003
HANSON [2005]
Principle: prev convictions only likely to show propensity where truthfulness is an issue
S103(1)(b) & (a) Crim Justice Act 2003
Gateway (e) It has substantive probative value to
S101(1)(e) Crim Justice Act 2003
Matter of substantial importance
Where D adduces ev of Co-D's bad character, it must be to resolve matter of significance in case
Cut-throat offences: Where one D is blaming the other
KHAN [2015]
Facts: 4 men attaacked other group - 2 stabbed, 1 fatally - crown could not conclude who caused fatal wound - joint enterprise
Held: Successfully applied under gateway to show K had caused wounding - prev convictions inc carrying offensive weapon - substantive probative value
Gateway (f) Ev to correct false impression given b
S101(1)(f) Crim Justice Act 2003
Only pros can use this gateway
If D does something to create false impression of good character, pros can adduce ev to correct it
MARSH [1994]
Facts: D charged GBH - wanted to assert 'clean' crim record
Held: this would create false impression, concerning bad disciplinary record at rugby games
KIERNAN [2008]
Facts: D claimed to paid his debt to society - did not mention abscorning instead of serving sentence
Held: he was saying he was reformed, but had not done his time & was on the run
S105 Crim Justice Act 2003
Gateway (G) D has attacked another's character
S101(1)(g) Crim Justice Act 2003
Pros witness can reveal D's bad character
S106(1) Crim Justice Act 2003
Contaminated evidence
S107 Crim Justice Act 2003
Ev is false/misleading or different from what it should have been
Court must stop case based on...
(1) Ev is contaminated, or
(2) It would make conviction unsafe
DZ & JZ [2012]
Facts: cases where W has 'heard from the street' & discussed before trial
Principle: Judge MUST stop case
C [2006]
Facts: C charged sexual assault on child - ev that complainant mother had told him what to say - child gained more info than he possessed
Held: S107 established & C's prev convictions for sexual assault excluded
S110 Crim Justice Act 2003
Jointly charged offences treated as separate proce
S112(2) Crim Justice Act 2003
WALLACE [2008]
Facts: Case depended on circumstantial ev - crown contended that each had similar facts - D was party to each of them
Held: Conviction upheld - ev was sufficient
Judicial discretion to exclude admissible evidence
S101(3) Crim Justice Act 2003
MATTHEWS [2013]
Principle: Court must not admit ev under (g) if it would have adverse effect on fairness of proceedings
Other legislation
PACE S73 & 74
S109 & 107 Crim Justice Act 2003 - Credibility & Contamination
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