Adrian Keane and Paul Mckeown, the Modern Law of Evidence, 13Th Edition Update: October 2020

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020

Chapter 19: Evidence of character: evidence of bad character in criminal cases

Introduction

Bad character defined

Misconduct

Pages 557-558

‘Acquittals’ include acquittals in circumstances where the prosecution offers no evidence and the judge directs the jury to enter a verdict of ‘not guilty’: see R v Halliday [2019] EWCA Crim 1457.

Other reprehensible behaviour

558-559

See also R v Palmer [2016] EWCA Crim 2237: what constitutes reprehensible behaviour is fact specific.

In R v Sepulvida-Gomez [2019] EWCA Crim 2174, the court was prepared to assume, but just for the purposes of the appeal, that sexual innuendos by the accused to the complainant and boasts of sexual adventures made in the hope of entering into sexual relations with the complainant, were bad character. But in the circumstances of the case it was, in effect, admitted by agreement and so no application had been needed to admit it.

The admissibility of evidence of bad character ‘to do with’ the facts of the offence or in connection with its investigation or prosecution

Evidence to ‘to do with’ the alleged facts

Nexus in time?

Page 561

Footnote 48

See also R v Murray [2019] EWCA (Crim) 1535: evidence of a threat by the accused while in prison, made to a new girlfriend who was visiting him, was ‘to do with’ the facts of a shooting he was alleged to have taken part in, which occurred over one year previously. The prosecution said the shooting was motivated by a grudge the accused held against a man who had begun a relationship with the accused’s then girlfriend while he (the accused) was in prison. The threat he made to the new girlfriend was

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 relevant to the motive for the shooting because the accused effectively said that he would do the same thing to any person who might begin a relationship with her.

Being relevant to motive, the evidence of the threat it was ‘to do with’ the alleged facts of the shooting. Accordingly, it was not bad character and no bad character direction was called for. The judge had correctly explained the relevance of the evidence of the threat to the jury and that its weight was a matter for them. See [29] – [30].

Evidence of the bad character of a person other than the defendant

Section 100 of the Criminal Justice Act 2003

Threshold conditions for admissibility

Evidence of substantial probative value

Page 565

Footnote 75

See also R v Shaid [2019] EWCA Crim 412 for an example of evidence of the bad character of a deceased victim which did not have probative value, let alone substantial probative value. The evidence did not add anything to the picture, there being a ‘plethora’ of other evidence on the in issue in question (at [45]). Where the evidence of bad character has the status of hearsay, the Criminal Justice Act 2003, s. 126(1)(b) may come into play (a provision which permits the exclusion of superfluous hearsay: see Ch 12 Hearsay in criminal cases, Discretion to exclude, p 401- 403).

See also R v Umo [2020] EWCA Crim 284: in assessing the probative value of allegations, the court must have regard for the Criminal Justice Act, s 109.

Section 109(1)-(2) states that in assessing the probative value of evidence sought to be admitted under s 100 or 101, the courts must operate on the assumption that the evidence is true unless no court or jury could reasonably find it to be true (see the coverage of s 109 at pp 621-622 of the text). In the present case, the judge had erred in finding that a witness’s blackmail threat to report false allegations (in a telephone conversation and a text message), was not ‘evidence’ of a false complaint (see [31]- [35]).

See also R v Luckett [2015] EWCA Crim 1050: the fact that the only basis for allegations against a witness comes from the accused himself or herself is not of itself a reason for excluding the evidence considering the starting point for bad character evidence is the assumption of truth (at [25]-[27], cited in the judgment in R v Umo at [35]).

Nature and number of events etc

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020

Page 567

Where both an accused and a witness for the accused are sexual offenders, and the case against the accused involves sexual offences, evidence of the of the witness’s sexual offences is likely to be admitted as relevant to his credibility. In R v Murphy [2020] EWCA Crim 137, the Court of Appeal seemed to accept that such witnesses are in a special category because they may regard sexual offending differently and may be more sympathetic to another person charged with sexual offences.

In R v Murphy, the accused, who had a history of sexual offending, was tried for rape and other serious sexual offences. The Court of Appeal held that the trial judge was correct in allowing the prosecution to admit evidence of the bad character of the accused’s witness, the bad character being the witness’s own history of sexual offending. The evidence was of substantial probative value in relation to the important issue of the witness’s credibility because, “… the jury might properly take the view that someone who had committed serious sexual crimes in the past might regard a sexual crime committed by the appellant differently to most members of society, and might therefore be susceptible to being approached after the commission of such a crime in order to assist the appellant, and be prepared to make a statement supporting his defence. Such behaviour might be more than the act of a public-spirited acquaintance giving dispassionate evidence” (at [38]). The court was unpersuaded by the argument that sexual offenders were no more likely to ‘stick together’ than any other class of offender (the argument is mentioned at [29]).

Footnote 82

See also R v McChleery [2019] EWCA Crim 2100: in a sexual offences case, the bad character of the complainant had no probative value at all and if used it would have amounted to no more than a general attack on character. It would have simply involved undermining the compainant’s credibility with evidence that would not have assisted the jury in determining whether the complainant was telling the truth. See [23].

Satellite litigation

Page 568

Footnote 93

See also R v Shaid [2019] EWCA Crim 412, concerning evidence of unproven allegations which were likely to give rise to side issues and satellite litigation (at [45]).

The requirement of leave where evidence is not agreed

Page 569

For an example of evidence where the admissibility of evidence under Youth Justice and Criminal Evidence Act 1999, s 41 was complex, but the evidence was admissible as bad character evidence under s 100(1)(b), see R v Gabbai [2020] 4 WLR 65, CA.

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 The evidence concerned the complainant’s own previous complaints of rape and sexual assault, which the defence said were false because she misdescribed them or doubted that rape occurred, saying that she might have consented and referring to herself using the words ‘attention seeker’ and ‘liar’. The context of the complaints was that she engaged in high risk sexual activity including sexual encounters with strangers and sadomasochistic sexual activity where she had been ambiguous about consent.

See further coverage of this case in the update for Chapter 7.

Discretion to exclude

Page 570

In R v Murphy [2020] EWCA Crim 137, the discretion to exclude under the Police and Criminal Evidence Act 1984, s 78 was available in respect of evidence of the bad character of a defence witness sought to be admitted by the prosecution under s 100(1)(b). However, the question whether the evidence would have such an adverse effect on the fairness of the trial that it ought not to be admitted, is fact sensitive and it is for the trial judge to make the necessary judgment. In R v Murphy, the judge was entitled to conclude that it was not unfair to admit evidence of the witness’s sexual offending history in a way which restricted and confined what could be said about it.

An application may be made under s 78 to exclude prosecution evidence of bad character otherwise admissible under s 100(1)(b) (R v Boxall [2020] EWCA Crim 1021). However, the chances of such an application succeeding are likely to be remote, given that under s 100(1)(b) the evidence must have ‘substantial probative value’, and any potential prejudicial effect of admitting the evidence, eg a jury’s improper assumption of guilt by association, can be countered by an appropriate judicial direction. The likelihood of exclusion under s 78 is further weakened where the case against the accused, without the bad character evidence, is strong.

Evidence of the bad character of the defendant

Section 101(1)(a)- evidence admitted by agreement of all the parties

Page 577

Footnote 149

See R v Sepulvida-Gomez [2019] EWCA Crim 2174: evidence of sexual innuendos by the accused and boasts of sexual adventures made to the complainant in the hope of entering into sexual relations with her, if it was bad character, would have been admitted by agreement under s 101(1)(a). This was because it was part of the defence case to show that the accused was addicted to having consensual sexual encounters in order to explain why he went into the complainant’s bedroom uninvited, even though, ultimately, he always respected ‘boundaries’.

Section 101(1)(c)- important explanatory evidence

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 Admissibility as evidence relevant to important matters in issue and as evidence ‘to do with the facts of the offence’

Page 581

Footnote 167

See also R v Rashid [2019] EWCA crim 2018 where gang affiliation evidence of YouTube drill videos and from a police officer who was an expert, was held to have been properly admitted under s 101(1)(d) and s 98. It is submitted that the evidence could equally have been admitted under s 101(1)(c).

Section 101(1)(d) – prosecution evidence relevant to an important matter in issue between the defendant and the prosecution

Important matters in issue

Page 583

For an example of gang affiliation evidence held to have been properly admitted under s 101(1)(d) as relevant to intention and the accused’s relationships to co-accused and a gang, and connections with firearms, see R v Rashid [2019] EWCA Crim 2018. The judge ruled that the evidence was also admissible under s 98. It is submitted that, it was equally admissible under s 101(1)(c).

The admissibility of evidence showing a propensity to offend

Page 588, para 3 When deciding whether evidence of a single old conviction has probative value in showing propensity to commit the offence charged, a systematic approach may be followed by the judge whereby similarities and dissimilarities are carefully considered. The cumulative effect of similarities when added together may constitute a ‘very special and distinctive’ feature. This may be so despite some dissimilarities. See R v Day [209] EWCA Crim 935 at [53].

Page 588

Footnotes 208 and 211

In respect of both footnotes, see also R v Khan [2020] EWCA Crim 163. A single conviction for attempting to supply drugs in 2007, although not so remote in time as to make it unfair to admit it for that reason, should not have been admitted

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 as evidence of propensity to commit the offence of possession with intent to supply drugs. The circumstances of the conviction were markedly different from the instant offence: the accused had gained access to Class A drugs and attempted to supply them to his brother. He was not someone who could, by virtue of the 2007 conviction, be properly described as someone who was ‘steeped in the culture’ of supplying class A drugs. See [22].

And see also R v Gillings [2019] EWCA Crim 1834, concerning evidence of the just the fact of extremely old convictions which, absent any evidence of their circumstances and similarities, did not have the capacity to show ongoing propensity to commit the offences charged.

Page 589

Where the prosecution relies simply on the fact of a conviction, it may be possible to identify similarities from the description of the offence: R v Hanson [2005] 1 WLR 3169 at [17]. See also R v Gillings [2019] EWCA Crim 1834: concerning evidence of the just the fact of a number of extremely old convictions, similarities with the offence charged could not be identified from the descriptions of any, apart from one. All but one involved propensity of a very general and basic nature which did not have the capacity to show an ongoing propensity to commit the offences charged, and it was unfairly prejudicial to have admitted them.

Misconduct other than convictions

Page 591

Footnote 225

See also R v Halliday [2019] EWCA Crim 1457 (and above in this update under pages 557-558)

Footnote 227

For an example of facts related to different counts which were “too widely distinct for cross-admissibility”, see R v Gabbai [2020] 4 WLR 65, CA.

In R v Gabbai, the Court of Appeal also emphasised that where the prosecution wishes to cross-admit bad character evidence, there is a requirement to provide a bad character notice. This requirement is not merely technical and in the present case, if it had been met, it would have led to conclusive argument on the issue of cross- admissibility, before speeches were made to the jury.

Misconduct with similar facts

Pages 593-594

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 It is incumbent on the judge to direct the jury as to whether or not, and if so, how, evidence may be cross-admissible between counts on the same indictment in respect of propensity or the rebuttal of an innocent explanation of coincidence, or both. In R v Adams [2019] EWCA Crim 1363, the accused’s convictions for a number of historic sexual offences were quashed because the judge had failed to direct the jury whether evidence from different counts could or could not be used when considering the case against the accused on a particular count (see [19]). The court noted that the cross-admissibility of evidence of different complainants in respect of different counts ‘was potentially of great significance to jurors’ decisions’ (at [23]). In R v Adams [2019] EWCA Crim 1363, the prosecution had given no notice of an intention to admit evidence from different counts as evidence of bad character (apart from one piece of evidence), nor had it sought a ruling on this or otherwise sought to rely on evidence from different counts in this way. This meant that, unless the procedure for admitting evidence of bad character was ‘to be treated as a dead letter’, the evidence was inadmissible as between counts. The direction of the judge – a standard direction that the jury should consider the case against and for the defendant on each count separately - did not go far enough. There was a clear danger that the jury might still seek to use the evidence from one count as evidence of guilt in respect of others, and proper assistance was required. In respect of the importance of clear directions, the court made the following general observations (at [22]).

“Looking at the matter more broadly, the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way. But we have not yet reached the point where evidence of a defendant's bad character can be left as a free for all. The particular ways in which evidence that a person has committed one offence may or may not be relevant in deciding whether that person is guilty of another offence are not always immediately obvious even to legal professionals and have had to be worked out by the courts in a number of cases. Lay jurors are entitled to assistance on these questions and cannot be expected to work out the approach which the courts regard as proper for themselves. It therefore seems to us to be essential that, in a case of this kind, the jury should be given clear directions on whether, and if so how, evidence relating to one count may be taken into account in deciding guilt on another count.”

The Judicial College’s guidance on cross-admissibility directions is contained in the Crown Court Compendium (July 2019), Part 1, 13; see also R v Adams [2019] EWCA Crim 1363 at [14]-[15] and [18]-[19]; R v Freeman [2009] 1 WLR 723 and R v H [2011] EWCA Crim 2344 at [24].

In respect of the provision which allows for cross-admissibility, see the Criminal Justice Act 2003, s 112(2), covered in this chapter of the text under Misconduct other than convictions, pp 590-591.

Section 101(1)(f)- prosecution evidence to correct a false impression given by the defendant

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 Page 609

Under s 105(2)(b)(i), the accused can make an assertion apt to give a false or misleading impression when he is being questioned under caution and evidence of the assertion is given in the proceedings. However, where it is said that the accused has made such an assertion in interview, the assertion, express or implied, will have to be identified. The judge will need to determine what it is that the accused is addressing in the assertion, in order to establish whether or not a false impression has been given.

In R v Khan [2020] EWCA Crim 163, the Court of Appeal held that the accused’s assertions in interview about not supplying drugs in a hostel or anywhere else, were made to address a specific accusation about low level supply to people living in the hostel, and, in a particular, to a man who had died. In this respect his assertion was that he possessed drugs but only as a drugs user. In its specificity, the assertion was not apt to give a false impression. To avoid any potential problems that might have been caused by evidence of the assertions being given at trial, the transcript of the interview should have been edited and the assertions removed. See [19] – [20].

False impression by express or implied assertions, or assertions by conduct

Page 610

An assertion which is literally and technically correct may still give a false impression, depending on what might it might imply. For example, an assertion by an accused that he never supplied drugs might be literally correct if he had only ever attempted to supply them, but it might imply that he was not the type of person who would ever supply drugs, which may be false. See R v Khan [2020] EWCA Crim 163, at [21].

Section 101(1)(g)- prosecution evidence where the defendant has made an attack on another person’s character

An attack on another person’s character

Page 614

As to the timing of a judge’s decision concerning an application under s 101(1)(g), a judge may defer his decision and it “…should always be open to the parties and the judge to revisit the matter afresh in the light of emerging and evolving evidence and circumstances.” See R v Thomas [2020] EWCA Crim 4 at [26].

Where a complainant’s credibility is in issue and the accused has called it into question in a prepared statement to the police, there is nothing unfair about the judge indicating that if the accused gives evidence, his bad character will be admissible under s 101(1)(g) as relevant to his credibility and the effect is that the accused does not give evidence. In R v Thomas [2020] EWCA Crim 4, the Court of Appeal observed (at [26]):

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 “Insofar as the appellant was unfairly placed upon the horns of a dilemma, this would merely be the consequence of the relevant gateway having been passed through by virtue of his attack upon the complainant’s credibility. If this affected the decision whether to give evidence on the part of the appellant that was an inevitable consequence of the prior decision of the defence to launch that attack. The dilemma that this strategy then produced for the appellant was always on the cards and resulted from a forensic decision taken by the defence team that, on balance, this was in the appellant’s best interest. There was nothing unfair in this.”

General

The right of an accused to challenge evidence of a conviction

Page 626

In R v Reece [2020] EWCA Crim 44, the accused offered an explanation in respect of a previous conviction which suggested that he might not have been guilty of the offence to which the conviction related. However, he then clarified that he accepted the conviction. Notwithstanding the explanation, no issue of the accused attempting to challenge the conviction and rebut the presumption under s 74(3) arose, and a direction concerning the explanation was not required.

In R v Reece [2020] EWCA Crim 44, the accused was tried for large scale drugs importation. During the trial, the prosecution admitted as propensity evidence, his conviction under Belgian law, for an offence of possessing cocaine and cannabis. The drugs had been found by Belgian police in two hold-all bags in the van he had been driving. When giving evidence about the Belgian conviction, the accused offered an explanation to the effect that he did not know drugs were in the bag. However, when asked by the judge whether he was disputing the conviction or accepting it, he clarified that he had to accept it (the conviction). The Court of Appeal rejected an argument that the judge should have directed the jury as to the accused’s explanation in respect of the Belgian conviction, namely that he had no knowledge of the drugs, and that if they were satisfied of this on the balance of probabilities then propensity had not been established and the evidence should be disregarded (see the argument at [33]). The court held that ‘the reality on the facts’ was that the accused had not challenged his guilt at all. The issue was not raised when the prosecution applied to admit the evidence, and no request for a direction under s 74(3) was sought when the judge gave his split summing-up. The most that could be said was that the accused had raised a possible question mark about his guilt during his evidence, which led to the judge’s intervention asking the accused to clarify the position, which he did, and then everyone then moved on (see [42]-[43]).

Evidence admitted through inadvertence

Page 627

Adrian Keane and Paul McKeown, The Modern Law of Evidence, 13th Edition Update: October 2020 Footnote 443

In addition to evidence admitted though inadvertence, problems may arise because of what is said about the evidence by the prosecution in its opening speech to the jury. Such an issue arose in R v Halliday [2019] EWCA Crim 1457. The judge had ruled that the prosecution could admit evidence of the accused’s acquittal of a different offence of rape in a different trial. The jury in that trial had been directed to acquit after the prosecution had offered no evidence. In the present trial, after ruling that the evidence of the acquittal was admissible, the judge expressly forbade the prosecution, when opening its case, from mentioning any reason why no evidence had been offered. (Different reasons as to why had been put before the judge and the picture was not clear). However, contrary to the judge’s instruction, the prosecution, when opening its case, proceeded to tell the jury that the reason why no evidence had been offered in the previous trial was because the complainant had been too traumatised by what the accused had done to her and could not give evidence. The court held that the judge was right to refuse a defence application to discharge the jury. While the conduct of the prosecutor was to be deprecated, the discretion to discharge a jury was not an exercise of punitive jurisdiction against the prosecuting advocate (at [25]). The question was whether what had been said gave rise to unfair prejudice, such as to necessitate the discharge of the jury. In the present case, any prejudice to the accused could be mitigated by the fact that the complainant could be cross-examined as to her reasons for not wishing to give evidence and the jury could form their own view as to her reliability (at [24]).

______

General note: references in this chapter to, “the Crown Court Compendium (July 2019), Part 1”, should now read, “the Crown Court Compendium (December 2020), Part 1”