Character & Credibility

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.

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

Character & reputation are relevant

Defence of accident or false accusation may be plausible, but not on multiple occasions. 

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

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.

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)

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

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.

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

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

(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

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

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

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

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

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

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

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

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.

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

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'

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

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

S101(1)(d) Crim Justice Act 2003

Only pros can adduce under this gateway

• S103 Crim Justice Act 2003 - Matter in issue?

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

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

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

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

S101(1)(g) Crim Justice Act 2003

Pros witness can reveal D's bad character

S106(1) Crim Justice Act 2003

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

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

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

PACE S73 & 74

S109 & 107 Crim Justice Act 2003 - Credibility & Contamination