DR WS15
Evidence
Bad Character Evidence
Previous convictions = Bad character evidence
“Bad Character” ‘Evidence of, or a disposition towards, misconduct’, other than evidence connected with the
s98 Criminal Justice offence for which the defendant has been charged
Act 2003 Previous convictions show disposition towards misconduct – this is the STARTING point
“Misconduct” ‘The commission of an offence or other reprehensible behaviour’
s112 CJA 2003 Previous conviction = Offence
If the alleged misconduct by the defendant is connected to the offence with which he has been charged, this will
not fall within the definition of bad character in s98, and will therefore be admissible in evidence without
needing to consider whether it satisfies the test for admissibility of bad character evidence set out in the CJA
2003.
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.
Presenting evidence of previous convictions
Evidence of a defendant’s previous convictions is only admissible under one of 7 gateways under s101(1)(a
– g) of the CJA 2003 - we only look at gateways (g) on the LPC.
s101(1): (1) In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if:
Gateway (d):
It is relevant to an important matter in issue between the defendant and the prosecution.
Gateway (d)
s101(1)(d) CJA 2003
It is relevant to an important matter in issue between the defendant and the prosecution
Evidence will be admissible if it is “relevant to an important matter in issue between the defendant and the
prosecution” s101(1)(d) CJA 2003 – First define important matter
THEN Two requirements. s103(1) The evidence will only admissible if it shows that:
(a) The defendant has a propensity to commit offences of the kind with which he is charged; OR
(a) The defendant has a propensity to be untruthful
What is an “An important matter” is defined as “a matter of substantial importance in the context of the
“important case as a whole” CJA 2003, s112(1).
matter”? Evidence will be admissible if it is “relevant to an important matter in issue
between the defendant and the prosecution”
1 s103(1)(a) s103(2) CJA 2003 - This may be established by evidence that the defendant has been
Propensity/likeliness convicted of: (Previous convictions that are….)
to commit offences “of
SAME DESCRIPTION
the same kind” s103(2)(a) an offence of the same description as the one with which he is charged.
s103(4)(a) defines as in the same terms of charge sheet
E.g. a previous offence which is the same as the current one. The facts of the
earlier conviction must be the same, even if the offence was described
1
, DR WS15
differently.
Do previous convictions E.g. a previous conviction for theft committed on premises whilst the
demonstrate relevant defendant was a trespasser fits the current description of burglary, so
propensity? these two offences would be the “same” for the purposes of; if
convicted of ABH and previous conviction of GBH wouldn’t satisfy
s103(2)(a).
SAME CATEGORY : Only 2:
s103(2)(b) an offence of the same category as the one with which he is charged
s103(4)(b) defines as if they belong to same category of offences
Only relevant for:
Sexual Offences (don’t deal with this on course)
Theft Offences – all of the following are in the same “category”
prescribed by the Secretary of State:
o Theft; Robbery; Burglary; Aggravated burglary; Handling stolen
goods; Going equipped for stealing; Making off without payment
FACTUALLY SIMILAR
s103(2) Offences which are ‘factually similar’ – “without prejudice to any other way
of doing so”
Re Brima: You can use factually similar previous convictions to show propensity
to commit offences of the same kind
Previous convictions will be admissible if there are significant factual
similarities between them e.g. if previous offences similarly involved the
defendant getting drunk and committing a violent crime such as assault, GBH,
criminal damage.
R v Hanson: Three questions to ask: Want to say yes to them
Does the defendant’s history of offending show a propensity to commit
offences?
If so, does that propensity make it more likely that the defendant committed
the current offence?
If so, is it just to rely on convictions of the same description or category, having
in mind the overriding principle that proceedings must be fair?
2 s103(1)(b) R v Hanson, Gilmore & Pickstone [2005]: Propensity to be untruthful will be shown if:
Propensity for the The defendant has pleaded not-guilty to the offence and was found guilty.
defendant to be The defendant was found guilty of an offence involving the telling of lies e.g.
untruthful fraud, perjury etc. – dishonest offences (like theft) do not satisfy this
3 Defences Are there are significant differences between the facts of the previous offences and
the current offence which means it ought not to be admissible?
If relevant propensity is E.g. circumstances of offence
made out consider the E.g. if damage against property versus damage against person
rounds on which the E.g. threatening behaviour versus physical violence
defendant solicitor might
argue the relevant R v Hanson Three questions to ask Want to counteract them here – say no
propensity has NOT been Does the defendant’s history of offending show a propensity to commit
made out? offences?
If so, does that propensity make it more likely that the defendant
committed the current offence?
If so, is it just to rely on convictions of the same description or category,
having in mind the overriding principle that proceedings must be fair?
Would it be unjust rely on the convictions given the time which has elapsed since they
occurred? (s103(3)).
Significant amount of time (e.g. over ten years ago), young, reformed etc.,
only mention spent for the next section
2
Evidence
Bad Character Evidence
Previous convictions = Bad character evidence
“Bad Character” ‘Evidence of, or a disposition towards, misconduct’, other than evidence connected with the
s98 Criminal Justice offence for which the defendant has been charged
Act 2003 Previous convictions show disposition towards misconduct – this is the STARTING point
“Misconduct” ‘The commission of an offence or other reprehensible behaviour’
s112 CJA 2003 Previous conviction = Offence
If the alleged misconduct by the defendant is connected to the offence with which he has been charged, this will
not fall within the definition of bad character in s98, and will therefore be admissible in evidence without
needing to consider whether it satisfies the test for admissibility of bad character evidence set out in the CJA
2003.
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.
Presenting evidence of previous convictions
Evidence of a defendant’s previous convictions is only admissible under one of 7 gateways under s101(1)(a
– g) of the CJA 2003 - we only look at gateways (g) on the LPC.
s101(1): (1) In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if:
Gateway (d):
It is relevant to an important matter in issue between the defendant and the prosecution.
Gateway (d)
s101(1)(d) CJA 2003
It is relevant to an important matter in issue between the defendant and the prosecution
Evidence will be admissible if it is “relevant to an important matter in issue between the defendant and the
prosecution” s101(1)(d) CJA 2003 – First define important matter
THEN Two requirements. s103(1) The evidence will only admissible if it shows that:
(a) The defendant has a propensity to commit offences of the kind with which he is charged; OR
(a) The defendant has a propensity to be untruthful
What is an “An important matter” is defined as “a matter of substantial importance in the context of the
“important case as a whole” CJA 2003, s112(1).
matter”? Evidence will be admissible if it is “relevant to an important matter in issue
between the defendant and the prosecution”
1 s103(1)(a) s103(2) CJA 2003 - This may be established by evidence that the defendant has been
Propensity/likeliness convicted of: (Previous convictions that are….)
to commit offences “of
SAME DESCRIPTION
the same kind” s103(2)(a) an offence of the same description as the one with which he is charged.
s103(4)(a) defines as in the same terms of charge sheet
E.g. a previous offence which is the same as the current one. The facts of the
earlier conviction must be the same, even if the offence was described
1
, DR WS15
differently.
Do previous convictions E.g. a previous conviction for theft committed on premises whilst the
demonstrate relevant defendant was a trespasser fits the current description of burglary, so
propensity? these two offences would be the “same” for the purposes of; if
convicted of ABH and previous conviction of GBH wouldn’t satisfy
s103(2)(a).
SAME CATEGORY : Only 2:
s103(2)(b) an offence of the same category as the one with which he is charged
s103(4)(b) defines as if they belong to same category of offences
Only relevant for:
Sexual Offences (don’t deal with this on course)
Theft Offences – all of the following are in the same “category”
prescribed by the Secretary of State:
o Theft; Robbery; Burglary; Aggravated burglary; Handling stolen
goods; Going equipped for stealing; Making off without payment
FACTUALLY SIMILAR
s103(2) Offences which are ‘factually similar’ – “without prejudice to any other way
of doing so”
Re Brima: You can use factually similar previous convictions to show propensity
to commit offences of the same kind
Previous convictions will be admissible if there are significant factual
similarities between them e.g. if previous offences similarly involved the
defendant getting drunk and committing a violent crime such as assault, GBH,
criminal damage.
R v Hanson: Three questions to ask: Want to say yes to them
Does the defendant’s history of offending show a propensity to commit
offences?
If so, does that propensity make it more likely that the defendant committed
the current offence?
If so, is it just to rely on convictions of the same description or category, having
in mind the overriding principle that proceedings must be fair?
2 s103(1)(b) R v Hanson, Gilmore & Pickstone [2005]: Propensity to be untruthful will be shown if:
Propensity for the The defendant has pleaded not-guilty to the offence and was found guilty.
defendant to be The defendant was found guilty of an offence involving the telling of lies e.g.
untruthful fraud, perjury etc. – dishonest offences (like theft) do not satisfy this
3 Defences Are there are significant differences between the facts of the previous offences and
the current offence which means it ought not to be admissible?
If relevant propensity is E.g. circumstances of offence
made out consider the E.g. if damage against property versus damage against person
rounds on which the E.g. threatening behaviour versus physical violence
defendant solicitor might
argue the relevant R v Hanson Three questions to ask Want to counteract them here – say no
propensity has NOT been Does the defendant’s history of offending show a propensity to commit
made out? offences?
If so, does that propensity make it more likely that the defendant
committed the current offence?
If so, is it just to rely on convictions of the same description or category,
having in mind the overriding principle that proceedings must be fair?
Would it be unjust rely on the convictions given the time which has elapsed since they
occurred? (s103(3)).
Significant amount of time (e.g. over ten years ago), young, reformed etc.,
only mention spent for the next section
2
