EVIDENCE OF CHARACTER
Evidence of the Accused’s Good
Character (common law)
• At common law the accused may adduce evidence of
his general reputation by giving evidence of it himself,
or via examination in chief of his own witnesses or via
cross-examination of other witnesses
•Strictly, specific examples of his good character are
not admissible (though the rule is not always applied
strictly)
[Note: CJA 2003 s.118 preserves the common law rule
which permits the court to treat evidence of reputation as
probative of good or (where admissible) bad character,
the rule not being abolished by s.99.]
Good Character-Directing the Jury
•If the accused testifies he is entitled to a direction as
to the relevance of his good character both to credibility
and to guilt
•If he does not testify he is only entitled to a direction
as to the relevance of his good character to guilt (unless
he relies upon exculpatory parts of a mixed statement
which he made out of court—e.g. a confession which he
made to the police)
•Judge may decide not to give/to modify good character
direction where the accused has convictions/bad
character (the matter is one for the judge’s discretion but
the jury should not be misled)
Good Character—Bad Character
of Co-Accused
•Accused is entitled to good character
direction even though co-accused has bad
character (though it may be necessary to
direct jury not to regard lack of evidence of
co-accused’s good character as evidence
against co-accused)
Good character-duty of judge and defence
counsel
• The judge is not under a duty to direct the jury
concerning the accused’s good character where
the accused fails to adduce evidence thereof
• It seems, however, that defence counsel is under a
duty to raise the accused’s good character, that, in
appropriate circumstances, his failure to do so may
render a trial unsafe and that where it is not clear
whether the accused is relying on his good
character it is good practice for the judge to raise
this with defence counsel.
D is charged with rape. D is happily married and has
worked as a civil servant for 20 years. D once found a
girl lost in a wood and returned her to her mother. D
has a previous conviction for speeding (he pleaded
guilty by post).
Which of (i) or (ii) is/are true?
(i) D may adduce evidence concerning his family life
and employment but, strictly, should not adduce
evidence concerning the girl in the wood
(ii) If D adduces evidence concerning his family life and
employment, D’s good character will not be relevant to
his credibility or likelihood of guilt because D has a
speeding conviction.
(i) is true
Evidence of The Accused’s
Bad Character (CJA 2003)
Common Law Rules
• CJA 2003 s.99 abolished the common law rules that
formerly governed the admissibility of evidence of bad
character in criminal proceedings.
• The admissibility of evidence of bad character in
criminal proceedings is now governed by provisions
of the 2003 Act.
• S.99 did not abolish the common law rule that permits
evidence of general reputation to be relied upon to
prove bad character (though it seems that this rule
merely provides a means of proving bad character in
circumstances in which the accused’s bad character
is admissible under the 2003 Act).
Evidence of bad Character-meaning
(s.98)
• Evidence of bad character is evidence of misconduct
or disposition towards misconduct
• Misconduct is the commission of an offence or other
reprehensible behaviour (s.112)
• Evidence of bad character does not include
evidence which has to do with the alleged facts of the
offence with which the accused is charged
• Evidence of bad character does not include
evidence of misconduct in connection with the
investigation or prosecution of the offence with which
the accused is charged
Admissibility of evidence of misconduct
which does not amount to evidence of
bad character
• Where evidence of misconduct does not
amount to evidence of bad character (see
previous slide) its admissibility seems to
depend upon the common law test of
relevance plus (if tendered by the
prosecution) the exercise of the court’s
PACE s.78 and common law exclusionary
discretion
Bad Character and Multi-Count
Indictments
• Where the accused is charged with 2 or more offences
the character provisions of the 2003 Act (except
section 101(3), which is considered below) apply as
though each was charged in separate proceedings
(s.112(2)), thus where D is charged with two counts,
evidence of the alleged facts of count 1 is not evidence
of the accused’s bad character in relation to count 1
but is evidence of the accused’s bad character in
relation to count 2, and vice versa (unless, of course,
the counts are based on the same alleged facts, in
which case evidence of the alleged facts of count 1 will
not amount to evidence of bad character in relation to
count 2).
Arshad is charged with the theft of Jason’s wallet.
The prosecution intend to call Paul who will testify
that he saw Arshad steal the wallet. During crossexamination counsel for the prosecution intends to
ask Arshad whether the alibi that he gave to the
police when questioned about the theft was false.
Which of (i) or (ii) is/are true
(i) Paul’s evidence is evidence of Arshad’s bad
character
(ii) Evidence that the alibi was false is evidence of
Arshad’s bad character
They are both false
Alan is charged with the murder of Doug, the
prosecution alleging that Alan planted a
bomb in Doug’s car.
Is the following proposition true or false?
Evidence that the bomb destroyed Doug’s
car is evidence of Alan’s bad character
False
Adam has recently been released from prison,
having been sentenced to five years imprisonment
for robbery. Adam has now been charged with
possessing a firearm having been sentenced to
imprisonment for a term of three years or more,
contrary to section 21(1),(4) of the Firearms Act
1968.
Is the following proposition true or false?
Evidence that Adam was sentenced to
imprisonment for five years for robbery is
evidence of his bad character.
False
Jim is charged with robbery, the prosecution alleging
that he committed the offence whilst dressed as a
police officer and carrying a shotgun. An imitation
police uniform and a shotgun were found in the boot of
Jim’s car.
Which of (i), (ii) or (iii) is/are true?
(i) Evidence of the possession of the shotgun definitely
is not evidence of Jim’s bad character
(ii) Evidence of the possession of the uniform definitely
is evidence of Jim’s bad character
(iii) If evidence of the possession of the uniform is not
evidence of Jim’s bad character, it will (subject to
exclusionary discretion) be admissible if it is relevant
(iii) is true
Sue is charged with two counts of robbery. She has
previous convictions for theft, she was once
cautioned for criminal damage, there is evidence
that she once committed a burglary but was never
charged and she was once tried for and acquitted of
blackmailing C.
Which of (i) to (vi) below are not evidence of Sue’s
bad character in the context of robbery count 1.
(i) Evidence of the theft convictions; (ii) evidence of
the caution; (iii) evidence that Sue committed the
burglary; (iv) evidence that did blackmail D; (v)
evidence of the alleged facts of robbery count 1; (vi)
evidence of the alleged facts of robbery count 2
(v) only.
Dan is charged with stealing a diamond
necklace. Colin is a police officer who is to be
called as a witness for the prosecution at
Dan’s trial. During cross-examination, defence
counsel intends to ask Colin whether he
planted the necklace in Dan’s flat.
Is the following proposition true or false?
Evidence that Colin planted the necklace in
Dan’s flat is evidence of Colin’s bad character
False
The accused’s bad Character--admissibility
under the s.101 “gateways”
Evidence of accused’s bad character is admissible
under any of seven section 101 “gateways”
• by agreement of the parties (s.101(1)(a));
• where the accused adduces the evidence or
intentionally elicits it via cross-examination
(s.101(1)(b)); or
• where it is important explanatory evidence
(s.101(1)(c)); or
• where it is relevant to an important matter in issue
between the accused and the prosecution
(s.101(1)(d)); or
The accused’s bad Character--admissibility
under the s.101 “gateways” continued
The seven “gateways” (continued):
• where it has substantial probative value in relation
to an important matter in issue between accused
and co-accused (s.101(1)(e)); or
• where it is evidence to correct false impression
given by the accused (s.101(1)(f)); or
• where the accused has attacked another person’s
character (s.101(1)(g))
Horace is charged with committing a murder in
Newcastle. Horace wishes to adduce
evidence to prove that at the time when the
murder was committed he was committing a
robbery in London.
Which one is true?
[a] The evidence is evidence of Horace’s bad
character but is admissible in Horace’s
defence
[b] The evidence is not evidence of Horace’s
bad character and is admissible in Horace’s
defence
[a] is true
Important Explanatory Evidence
-meaning (s.102)
Evidence is important explanatory evidence for the
purposes of section 101(1)(c) if:
• the court or jury would find it impossible or difficult to
properly understand other evidence without it and
• it has substantial value for understanding the case as
a whole.
[Note: the better view seems to be that where
evidence of the accused’s bad character is tendered
by the prosecution under s.101(1)(c) its admissibility is
subject to the exercise of the court’s PACE s.78 or
common law exclusionary discretion.]
Oscar regularly severely beats Amy, his wife,
when he has been drinking. Oscar’s brother, Ken,
is aware of this. One day Amy is found beaten to
death in her home. Oscar claims that he has
never beaten Amy, and denies her murder.
Which is/are true?
(i) Ken’s evidence is evidence of Oscar’s bad
character.
(ii) Ken’s evidence may be admissible as
important explanatory evidence.
They are both true
Evidence which is relevant to an
important matter in issue between the
accused and the prosecution
(s.101(1)(d)
• Only prosecution evidence is admissible
under section 101(1)(d) (s.103)
• “Important matter”: one of substantial
importance in the context of the case as a
whole (s.112)
Matters in issue for the purposes of section 101(1)(d)
include (s.103(1)):
• the accused’s propensity to commit offences of the
kind with which he is charged (unless his having
such a propensity makes his guilt no more likely);
and
• the question whether he has a propensity to be
untruthful (unless it is not suggested that his case
is untruthful) [Note: this does not mean propensity
to be dishonest. Thus the mere fact that D has
dishonesty convictions does not necessarily
establish propensity to be untruthful.]
S.101(1)(d) (continued)
Establishing propensity to commit offences of the kind
with which the accused is charged for the purposes
of s.101(1)(d) (s.103(2))
Without prejudice to other methods of establishing
propensity to commit such offences, it may be
established under s.103(2) by evidence of the
accused’s conviction of:
• an offence of the same description (i.e. where the
statement of offence in the indictment would be the
same); or
• an offence of the same category (i.e. where they both
belong to the same category prescribed by the
Secretary of State)
S.101(1)(d) (continued)
• Currently we have the “theft category” and the
“sexual offences (persons under the age of 16)
category”.
• Having an offence of the same description/category
will not automatically establish propensity to
commit offences of the relevant kind (it might be
said to give rise to a “presumption” in favour of
admissibility)
• Propensity may not be proved under s.103(2) if the
judge considers that this would be unjust (either
because of the length of time since the conviction
or for any other reason) (s.103(3))
S.101(1)(d) (continued)
• Convictions for offences not of the same
description/category may still be admitted as
evidence of propensity to commit offences of
the kind with which the is charged (as, it
seems, may evidence of bad character
which did not result in a conviction)
S.101(1)(d) and s.101(3)
• Evidence is not admissible under section 101(1)(d)
(or under s.101(1)(g)) if, on application by the
defence, it appears to the court (taking into account,
in particular, the length of time between the matters to
which the evidence relates and those which the
charge concerns) that it would have such an adverse
effect on the fairness of the proceedings that it ought
not to be admitted (s.101(3)).
• Under s.101(3) one important factor appears to be
the balance between the probative value of a
conviction and its prejudicial effect
• What is fair under 101(3) may depend upon whether
evidence is tendered under gateway (d) or gateway
(g).
s.101(3) and 103(2)
• Factors of relevance when deciding (under s.101(3)
and 103(2) whether adducing evidence of bad
character is unfair or unjust may include the degree of
similarity between the facts of the offence charged and
those of the previous conviction, the relative gravity of
the offence charged and the previous offence and the
strength of the prosecution case (as evidence of bad
character should not be relied upon merely to
bolster a weak case or prejudice the jury against
the accused)
• Admitting old convictions may be unfair unless they
share special features with the facts of the offence
charged or demonstrate a continuing propensity
Mahendra is charged with theft and assault. He has
several theft convictions, several for assault and two for
perjury.
Which of (i) to (iv) below is/are true?
(i) The theft convictions may be admissible under CJA
2003 s.101(1)(d).
(ii) The assault convictions may be admissible under
CJA 2003 s.101(1)(d).
(iii) The perjury convictions may be admissible under
CJA 2003 s.101(1)(d).
(iv) The theft, assault and perjury convictions clearly
establish Jim’s propensity and so the judge must admit
them.
(i), (ii) and (iii) are true.
Evidence which has substantial probative value
in relation to an important matter in issue
between accused and co-accused (s.101(1)(e)
• Evidence which is relevant to the question of
whether the accused has a propensity to be
untruthful is only admissible under s.101(1)(e) if
the nature or conduct of the accused’s defence is
such as to undermine his co-accused’s defence
(s.104). [Note that s.101(1)(e) does not merely
admit evidence which is relevant to the accused’s
propensity to be untruthful but also, for example,
admits evidence which is relevant to his propensity
to commit offences of the type he is charged with.]
S.101(1)(e) (continued)
• Evidence is only admissible under s.101(1)(e) if
either adduced by the co-accused or elicited
via cross-examination by the co-accused
(s.104) (I.e. the prosecution cannot use
s.101(1)(e)).
• Important matter means one of substantial
importance in the context of the case as a
whole (s.112)
S.101(1)(e) (continued)
• To be admissible under s.101(1)(e) the evidence
must have substantial probative value in relation to
an important matter in issue and, thus, the mere fact
that the defence tender evidence under s.101(1)(e)
does not require the judge to admit it, though where
evidence is admissible under s.101(1)(e), the judge
does not possess discretion to exclude it.
• Whilst it has been held in the context of prosecution
applications to adduce evidence of the accused’s
bad character that untruthfulness and dishonesty to
not equate, the court may be more generous in
admitting evidence of previous convictions as
evidence of credibility for the defence under gateway
(e) (or under s.100, which is seen below)
Sean and Fred are charged with burglary. Each asserts
that the burglary was committed by the other. Sean has
several previous convictions for burglary and two for
obtaining property by deception.
Which is/are true?
(i) The burglary convictions may be admissible under
CJA 2003 s 101(1)(e).
(ii) The convictions for obtaining by deception may be
admissible under CJA 2003 s 101(1)(e).
(iii) The judge may be required to exclude the convictions
under CJA 2003 s.101(3).
(iv) The judge may be entitled to exclude the convictions
under PACE s.78
(i) and (ii) are true.
Andrew and Victor are charged with burglary.
Victor has two convictions for perjury. In his
defence Andrew asserts that at the time of the
burglary he was in a theatre with his wife several
miles away from the location of the burglary. In his
defence Victor asserts that at the time of the
burglary he was at home with his wife several
miles away from the location of the burglary.
True/false.
Victor’s perjury convictions appear to be
admissible under CJA 2003 s.101(1)(e).
False
Evidence to correct a false impression
given by the accused (s.101(1)(f))
• Only prosecution evidence admissible under
s.101(1)(f) (s.105(7))
• Evidence only admissible under s.101(1)(f) if it goes
no further than is necessary to correct the false
impression (s.105(6))
• Accused gives a false impression if he is responsible
for the making of an express or implied assertion
which is apt to give the court or jury a false or
misleading impression about him (s.105(1))
• Evidence to correct a false impression is evidence
which has probative value in correcting it (s.105(1))
(S.101(1)(f) (continued)
•
•
•
•
•
Accused (under s.105(2)) is treated as responsible for
making an assertion if:
Made by the accused (whether or not in evidence) in
the proceedings; or
Made by the accused whilst being questioned under
caution about the offence or on being charged with it
or officially informed that he might be prosecuted;
Made by a witness called by the accused; or
Made during cross-examination in response to a
question by the accused which was intended or likely
to elicit it; or
Made by a person out of court and the accused
adduces evidence of it
S.101(1)(f) (continued)
• Accused will not be treated as responsible for
making an assertion if/ to the extent to which he
withdraws it/ disassociates himself from it
(s.105(3)
• Where it appears just, the court may, where the
accused appears by his conduct (including his
appearance or dress) to be seeking to give a
false or misleading impression about himself,
treat the accused as being responsible for making
an assertion which is apt to give the relevant
impression (s.105(4))
S.101(1)(f) (continued)
[Note: the better view seems to be that where
evidence of the accused’s bad character is
tendered by the prosecution under s.101(1)(f)
its admissibility is subject to the exercise of the
court’s PACE s.78 or common law exclusionary
discretion.]
Jim, who has previous convictions for theft and sexual
assault, is charged with theft. Jim intends to call
character witnesses to give evidence of his general
reputation for honesty.
Which of (i) to 9iv) is/are true?
(i) The theft convictions may be admissible under CJA
2003 s.101(1)(f).
(ii) The sexual assault conviction will be admissible
under CJA 2003 s.101(1)(f).
(iii) The judge may be required to exclude the
convictions under CJA 2003 s.101(3)
(iv) The judge may be entitled to exclude the
convictions under PACE s.78.
(i) and (iv) are true
Sid, whilst being interviewed by the police under
caution concerning a burglary, tells the police that he is
well known as an honest man who would never steal
anything. Sid has several theft convictions.
Which of (i) to (iii) is/are true?
(i) The theft convictions may be admissible under CJA
2003 s.101(1)(f).
(ii) The theft convictions may be admissible under CJA
2003 s.101(1)(d).
(iii) The theft convictions will not be admissible under
CJA 2003 ss. 101(1)(d) or (f) if Sid withdraws the
assertion that he made at the police station.
(i) and (ii) are true
Where the accused has attacked another
person’s character S.101(1)(g) (continued)
Under s.106, the accused attacks another person’s
character where:
• He adduces evidence attacking the other person’s
character; or
• He asks questions during cross-examination which are
intended or likely to elicit evidence of the other
person’s character; or
• Evidence is given of an imputation made by the
accused about the other person either when he was
questioned under caution about the offence or when he
was charged/officially informed that he might be
prosecuted
(S.101(1)(g) (continued)
Evidence attacking another person’s character
means:
• Evidence to the effect that he has committed an
offence (whether or not the one with which the
accused is charged);
• Evidence to the effect that he has behaved in a
reprehensible way, or is disposed to do so
(s.106(2))
An imputation about another person is an assertion to
the above effect (s.106(2))
• Only prosecution evidence admissible under
s.101(1)(g) (s.106)
S.101(1)(g) and s.101(3)
• Evidence not admissible under s.101(1)(g)
if, on application by the defence, it appears
to the court (taking into account, in
particular, the length of time between the
matters to which the evidence relates and
those which the charge concerns) that it
would have such an adverse effect on the
fairness of the proceedings that it ought not
to be admitted (s.101(3)).
S.101(1)(g) and s.101(3) continued)
• Under s.101(3) one important factor appears
to be the balance between the probative
value of a conviction and its prejudicial effect
• What is fair under 101(1)(3) may depend
upon whether evidence is tendered under
gateway (d) or (g).
S.101(1)(g) continued)
• It may be that if an imputation is made in a
wholly exculpatory statement and the
prosecution seek to adduce this to activate
gateway (g), the court should exclude the
evidence of the police station interview
• It will be unusual for evidence to be admitted
under gateway (g) where the person whose
character is attacked is neither a witness nor
the victim of the offence
Stan is charged with burglary. Stan has convictions
for burglary and assault.When Stan’s counsel crossexamines Brenda, a prosecution witness Stan’s
counsel asserts that it was Brenda’s husband,
Harry, who is not called as a witness in the
proceedings, who committed the burglary.
Which of (i) to (iii) is/are true?
(i) The burglary convictions may be admissible
under CJA 2003 s.101(1)(g).
(ii) The assault convictions may be admissible
under CJA 2003 s.101(1)(g).
(iii) The judge may be required to exclude the
convictions under CJA 2003 s.101(3)
They are all true
Ivan, who has several previous convictions for
sexual offences and does not intend to testify in his
defence, is charged with rape. When interviewed
under caution, Ivan asserted that Sue, the
complainant, consented to intercourse with him.
When testifying at his trial, Ivan asserted that Ivan
asserted that PC Jones, the arresting officer, swore
at him once in the police car when he was taking
him back to the station. Is the following proposition
True or false?
Ivan’s previous convictions will clearly be admissible
under CJA 2003 s.101(1)(g)
False
Multi-count indictments
• Where D is charged with several counts that are not
based on the same alleged facts, it seems that
evidence relating to one count may be admissible in
relation to another count under a s.101 “gateway” (i.e.
under s.101(1)(d))
• Where evidence relating to one count is not
admissible in relation to another under a gateway, this
does not require the judge to sever the indictment,
though the jury must be given an appropriate
direction if the counts are tried together
• Where counts are severed this does not prevent
evidence relating to one from subsequently being
admitted at the trial of the other under s.101(1)(d).
Relevance and probative value (s.109)
• For the purposes of the character provisions of the
2003 Act, the court (e.g. in the context of a multicount indictment) must assume that evidence is
true when assessing its relevance or probative
value unless no court or jury could reasonably find
it to be true
• Thus, where it is asserted that witnesses (e.g. two
complainants in the context of a multi-count
indictment) have colluded, the question of
collusion will normally be one for the jury.
D is charged with sexually assaulting A and B. A and
B allege that, on separate occasions, D took them
individually on picnics and sexually assaulted them
by touching their breasts through their clothes. D
asserts that A and B have colluded to fabricate false
allegations against him.
Which of (i) or (ii) is/are true?
(i) The evidence of each girl may be admissible to
prove that D sexually assaulted the other
(ii) The judge must not admit the evidence of either
girl to prove that D sexually assaulted the other
unless he is sure that they did not collude
(i) is true.
Stopping the case (s.107)
• Where evidence of the accused’s bad
character is admitted under section
101(1)(c)-(g), then, if the court is satisfied at
any time after the close of the prosecution
case that the evidence is contaminated and
the contamination is such that considering
the importance of the evidence the
accused’s conviction would be unsafe, the
judge must either direct an acquittal or order
a retrial.
Stopping the case (s.107)
• Contamination may result from deliberate
collusion or improper pressure but also
innocently/inadvertently
• If the defence allege collusion at the start of
the trial it will normally better for the judge
to postpone his decision under s.109 until
the evidence has been examined at the trial
Reasons for rulings (s.110)
Section 110 requires the judge to give reasons
in open court or magistrates to enter reasons
in the register of its proceedings where it
gives a ruling on:
• whether evidence is evidence of a person’s
bad character;
• the admissibility of evidence of bad
character; under section 100 or section 101
or
• whether the trial should be stopped or a
retrial ordered under section 107.
Directing the Jury
It appears that where evidence of the accused’s previous
convictions is admitted under CJA 2003 s.101
•the jury should not place undue reliance upon previous
convictions (which cannot prove guilt by themselves);
and
•the use to which the evidence may be put once it is
admitted will depend upon its relevance rather than upon
the “gateway” under which it is admitted (it seems that
relevance will depend primarily, but not exclusively, on
the gateway under which it is admitted); and
•the mere fact that the accused has convictions does not
automatically mean that he is guilty or untruthful; and
Directing the Jury (continued)
•the fact that the accused has propensity to commit
offences of the relevant kind and/or to be untruthful does
not mean that he was guilty/untruthful on this occasion;
and
•the jury should take into account what the accused said
about his convictions; and
•where the accused’s propensity is established the jury
are entitled to take it into account when deciding
whether he is guilty but it is only one factor and its
significance must be assessed in the context of the
evidence as a whole; and
•(as was indicated above) propensity to be untruthful
does not mean propensity to be dishonest (i.e.
dishonesty convictions do not necessarily establish
propensity to be untruthful) and
Directing the Jury (continued)
• where evidence of the accused’s bad character is
admitted but has limited weight (including where such
evidence is admitted for the prosecution but turns out to
have little weight or where the judge is required to admit
elderly convictions for a co-accused under s.101(1)(e)) ,
it seems that the judge’s directions to the jury should
reflect this; and
•where evidence of the accused’s bad character is
admitted for a co-accused under s.101(1)(e) but is not
admissible for the prosecution, it seems that the judge’s
directions to the jury should make clear that they cannot
rely upon the accused’s bad character when considering
the prosecution case against the accused.
Human Rights
•Revealing the accused’s previous
convictions to the jury in
accordance with English Law
does not appear to give rise to a
violation of Article 6 of the
Convention.
Bad Character of Persons Other than
the Accused (CJA 2003) (s.100)
Only admissible if it:
•is important explanatory evidence (s.100(1)(a); or
•has substantial probative value in relation to a matter
in issue which is of substantial importance in the
context of the case as a whole (s.100(1)(b)); or
•by agreement between the parties (s.100(1)(c))
and, other than in the third of these three situations,
the leave of the court is required (s.100(4))
Important Explanatory Evidence
(s.100(2))
Evidence is important explanatory evidence
for the purposes of section 100(1)(a) if:
•the court or jury would find it impossible or
difficult to properly understand other evidence
without it and
•it has substantial value for understanding the
case as a whole.
John is charged with robbery and relies upon the
defence of duress, John claiming that he committed
the robbery in consequence of threats of violence
made to him by Ken. John wishes to give evidence of
several occasions in the past when Ken has savagely
beaten him.
Which of (i) to (iii) is/are true?
(i) The evidence is evidence of Ken’s bad character
(ii) The evidence may be admissible under CJA 2003
s.100(1)(a) as important explanatory evidence.
(iii) The evidence will not be admissible without the
leave of the court unless the parties agree to admit it.
They are all true.
Probative Value (s.100(3))
When assessing the probative value of evidence for
the purposes of s.100(1)(b) (which requires that the
evidence have substantial probative value in
relation to a matter in issue which is of substantial
importance in the context of the case as a whole)
the court should, as well as other relevant factors,
consider
•the nature and number of events/things to which it
relates; and
•when they allegedly happened/existed; and
Probative Value (s.100(3)) (continued)
•where it is suggested that evidence of misconduct
has probative value in consequence of its similarity
with other alleged misconduct, the nature and
extent of the similarities/dissimilarities; and
where it is suggested that the person also
committed the misconduct with which the accused
is charged and the identity of the person
responsible is disputed, the extent to which it shows
or tends to show that the same person was
responsible each time
Tahir is charged with the sexual assault of Arlene.
Tahir’s counsel intends to cross-examine Arlene
concerning two false sexual offence complaints she has
made in the past and about her previous convictions for
perjury.
Which of (i) or (ii) is/are true?
(i) The evidence of the perjury convictions and the false
complaints may be admissible under CJA 2003
s.100(1)(b) as having substantial probative value in
relation to a matter in issue which is of substantial
importance in the context of the case as a whole
(ii) The evidence will not be admissible without the leave
of the court unless the parties agree to admit it.
They are both true
Jim is charged with rape. The rapist allegedly was
dressed in a monkey costume. Jim asserts that the
rapist was Fred, a prosecution witness, and wishes to
adduce evidence to prove that Fred has a conviction
for rape, Fred having committed the offence of which
he was convicted whilst wearing a monkey costume.
Which one of [a] or [b] is true?
[a] Evidence of Fred’s conviction may be admissible
under CJA 2003 s.100.
[b] Evidence of Fred’s conviction may not be
admissible under CJA 2003 s.100 unless it is relevant
to prove that Fred has a propensity to be untruthful.
[a] is true.
Rules of Court (CrimPR part 35)
•Party who wants to adduce evidence under s.100
applies in prescribed form within specified time limits
and other parties have 14 days to oppose application.
•Party who wants to adduce evidence under s.101 gives
notice in prescribed form within specified time limits and
accused has 14 days to apply to exclude the evidence.
•Court may vary requirements of CrimPR Part 35 (e.g.
form of application or time limits) and party may waive
entitlement to receive notice
•Failure to give notice is relevant re costs (s.114) and,
presumably, re s,101(3) and/or PACE s.78 discretion
S.27(3) Theft Act 1968
•S.27(3) applies when the accused is charged only
with handling stolen goods provided that evidence
has been given of his having or arranging to have
the goods in his possession or of his undertaking or
assisting in, or arranging to undertake or assist in,
the retention, removal realisation or disposition of
the goods.
• Where it applies, s.27(3) makes provision for the
admissibility of evidence of the the accused’s bad
character or previous convictions as evidence of his
knowledge or belief that goods were stolen.
S.27(3) Theft Act 1968 (continued)
The evidence which the section makes admissible is:
• evidence that the accused has had goods in his
possession which were stolen not earlier than twelve
months before the offence with which he is charged or
has undertaken or assisted in the retention, removal,
disposition or realisation of such goods; and
•(if he is given 7 days written notice) evidence that he
has been convicted of theft or handling within 5 years
preceding the date of the offence with which he is
charged
•Where evidence is admissible under s.27(3) the court
may still exclude it in the exercise of its exclusionary
discretion
Fred is charged with handling stolen goods
and has a previous conviction for theft.
Which of (i) or (ii) is/are true?
(i) The conviction may be admissible under
CJA 2003 s.101
(ii) The conviction may be admissible under
TA 1968, s.27(3).
They are both true