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Rape and Sexual Offences:             Chapter 14: Bad Character

Contents:


Please see separate Legal Guidance on Bad Character 

  • The Criminal Justice Act 2003 sets out the statutory framework for admitting evidence of bad character.
  • The use of evidence of the defendant's bad character may be particularly relevant to prosecutions for rape or other serious sexual offence.
  • The Criminal Procedure Rules 2010 Part 35 sets out the procedure to be followed. Different rules apply to defendants and non defendants. 

What is bad character?

It is important to establish whether evidence satisfies the criteria for evidence of bad character or not. If it is, then the statutory rules apply but otherwise the general rules of evidence i.e. relevance will continue to apply.

The Act defines evidence of bad character as evidence of or a disposition towards misconduct on his part, other than evidence which:

  • Has to do with the alleged facts of the offence with which the defendant is charged;
  • or Is evidence of misconduct in connection with the investigation or prosecution or that offence (section 98)

Misconduct is defined as:

  • Commission of an offence;
  • or Other reprehensible behaviour (section 112)

Commission of an offence includes:

  • Previous convictions
  • Foreign convictions
  • Evidence relating to offences for which a person has been charged
  • Acquittals
    - R v Z (2000) AC 483
    - R v Smith reported in R Edwards and others [2005] EWCA Crim 3244

Reprehensible behaviour is undefined but:

  • It will be for the judge to decide whether it is reprehensible behaviour as this relates to an issue of admissibility.
  • "As a matter of ordinary language, the word "reprehensible" carries with it some element of culpability or blameworthiness" (R v Renda [2005] EWCA Crim 2826).

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Non defendants

Non defendants will include victims and prosecution witnesses. The Prosecutors Pledge requires prosecutors to "Protect victims from unwarranted or irrelevant attacks on their character and may seek the court's intervention where cross examination is considered to be inappropriate or oppressive."

Introducing evidence of bad character or questioning upon it now requires the permission of the court (section 100(4)) and the evidence is only admissible if:

  • It is important explanatory evidence (section 100(1)(a)) (i.e. evidence without which the court or jury would find it impossible or difficult properly to understand other evidence in the case (section 100(2)(a)) or,
  • It has substantial probative value in relation to a matter which-
    - Is in issue in the proceedings, and
    - Is of substantial importance in the context of the case as a whole (section 100(1)(b)), or
    - All parties to the proceedings agree (section 100(1)(c)).

Practical issues

Neither the prosecution nor a court can properly decide whether the character of a witness is admissible unless the issues in the case are identified. To this end a proper defence statement should be filed.

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Defendants

The bad character of a defendant is admissible only through one of the gateways in section 101 of the Act. Once admitted the evidence can be used for any purpose for which it is relevant - R v Highton, Van Nguyen and Carp [2005]EWCA Crim 1985.

The gateways include:

  • Agreement - section 101(1)(a);
  • Adduced by defendant or given in an answer to a question asked by him in cross examination - section 101(1)(b);
  • Important explanatory evidence section 101(1)(c);
  • Relevant to an important matter in issue between the defendant and the prosecution - section 101(1)(d);
  • Substantial probative value in relation to an important matter in issue between the defendant and a co-defendant - section101(1)(e);
  • Evidence to correct a false impression - section 101(1)(f);
  • Defendant has made an attack on another person's character - section 101(1)(g);

The prosecution are most likely to rely on the following gateways.

Important explanatory evidence - the test is the same as for non defendants i.e. evidence without which the court or jury would find it impossible or difficult properly to understand other evidence in the case section 102.

Relevant to an important matter in issue - this is likely to be the gateway most useful to prosecutors. A propensity to commit offences and or be untruthful is likely to be such an important matter in issue and is specifically provided for in the Act:

  • Propensity to commit offences of the kind with which he is charged section 103(1)(a)
    - MAY be proved if:
    • Convicted of an offence of the same description section 103(2)(a)
    • Convicted of an offence of the same category section 103(2)(b)
  • Propensity to be untruthful section 103(1)(b)

The relevant considerations in relation to establishing propensity were set out in R v Hanson Gilmore and P [2005] EWCA Crim 824

  • Consider each individual conviction and not rely on the name of the offence or the record as a whole;
  • A single previous conviction will often not show propensity
  • Three questions to be considered:
    - Does the history of convictions establish a propensity to commit offences of the kind charged?
    - Does the propensity make it more likely that the defendant committed the offence charged?
    - Is it unjust to rely on the convictions of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

Attack on character - An attack on character can be made by:

  • Adducing evidence (section 106(1)(a));
  • Asking questions in cross examination (section 106(1)(b);
  • Imputation about the other person on being questioned under caution or on being charged (section 106(1)(c));
    - E.g. calling rape complainant a 'slag' in interview (Ball [2005] EWCA Crim 2826 (reported with Renda and others)). 

Practical considerations

When dealing with multiple victims the evidence of one victim will generally amount to bad character evidence in relation to the counts against another victim. This evidence will be cross admissible but only if relevant to an important matter in issue. It will need to meet any of the criteria or gateways in section 101(1).

The question of cross admissibility was discussed by the Court of Appeal in R v Chopra [2007] 1 Cr App R 16. The Court in its judgement concentrated on the issue of propensity and this approach led to an assumption that a jury would need to be sure in relation to one count before relying on that count in relation to making a decision on the next count. In subsequent cases the Court of Appeal extended their deliberations to the wider remit of section 101(1)(d) thereby making it clear that it does not apply only to propensity.

The situation was clarified in the case of Freeman and Crawford [2009] Crim L.R. 104.Where admissibility relies on propensity the jury must be sure on one count before relying on it in relation to the next count. However where the evidence is relevant and admissible as evidence to support the truth of other allegations the Court of Appeal held the approach to be too restrictive. The jury, it was explained, is entitled to have regard to the evidence on any other count, or any bad character evidence, if it is admissible and relevant.

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