Principles and procedures to admit and exclude evidence - Procedure for admitting bad character evidence

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Overview

Handling bad character evidence in criminal trials is a significant area of law that SQE1 FLK2 candidates need to grasp thoroughly. This article examines the principles, procedures, and strategies for admitting such evidence, as outlined in the Criminal Justice Act 2003 (CJA 2003) and related laws. A solid grasp of these ideas is essential for fair trials and effective legal practice.

Bad Character Evidence Explained

Bad character evidence includes information about a defendant's past misconduct or tendencies, not directly related to the current charges. The CJA 2003 established a clear framework for its admission, replacing old common law rules with a more organized approach.

The Seven Gateways to Admissibility

The CJA 2003 describes seven "gateways" for admitting bad character evidence:

  1. Agreement by All Parties (s.100(1)(a)): Prosecution and defense agree to admit the evidence.

  2. Evidence Introduced by Defendant (s.101(1)(b)): The defendant presents their own bad character evidence as a strategy.

  3. Important Explanatory Evidence (s.101(1)(c)): Evidence necessary for context or clarity in the case.

  4. Relevant to an Important Matter (s.101(1)(d)): Evidence directly relevant to a key trial issue, such as identity or intent.

  5. Substantial Probative Value for Co-Defendants (s.101(1)(e)): Evidence crucial for resolving issues between co-defendants.

  6. Correcting False Impressions (s.101(1)(f)): Evidence needed to challenge a false impression created by the defendant.

  7. Defendant's Attack on Another's Character (s.101(1)(g)): Evidence used to counter a defendant's attack on someone else's character.

Case Study: R v Hanson [2005] EWCA Crim 824

This case provided key guidance on using gateways (d) and (g), focusing on:

  1. Nature and number of past convictions
  2. Time since last conviction
  3. Similarity between past conduct and current allegations
  4. Other relevant circumstances

Procedure for Admission

Notification and Challenge

  1. Prosecution must inform the court and defense about the intention to use bad character evidence.
  2. Defense can challenge the evidence's admissibility.
  3. Challenges may be based on not meeting gateway criteria, lack of value, or excessive prejudice.

Judicial Decision-Making

Judges must evaluate the evidence by considering:

  1. Nature and seriousness of past conduct
  2. Relevance to the current offense
  3. Time since past conduct
  4. Propensity to commit offenses
  5. Balancing its value against potential prejudice

Judicial Discretion under PACE 1984

Section 78 of the Police and Criminal Evidence Act 1984 (PACE) allows judges to exclude evidence, even if it meets CJA 2003 criteria, to protect fair trial rights. This is particularly important where evidence might:

  1. Unfairly prejudice the defendant
  2. Impact the defendant's fair trial rights
  3. Disproportionately affect the case outcome

Example: R v Musone [2007] EWCA Crim 1237

Here, evidence of past convictions, though admissible, was deemed too prejudicial and excluded under s.78 of PACE.

Strategic Considerations for Legal Practitioners

Prosecution Strategy

  1. Select appropriate gateways carefully
  2. Consider timing of applications
  3. Clearly present the evidence's value

Defense Strategy

  1. Consider disclosing certain bad character evidence proactively
  2. Develop strong arguments against admission
  3. Evaluate possible tactical concessions

Ethical Considerations

Prosecution and defense must balance zealous advocacy with court duties, ensuring evidence is not misleading and objections are valid.

Conclusion

Understanding the rules for bad character evidence is vital for SQE1 FLK2 candidates and legal professionals. This area requires thorough knowledge of laws, case decisions, and practical application. Key points include:

  1. The seven gateways under the CJA 2003
  2. Balancing evidence value against prejudice
  3. Procedures for evidence notification and challenge
  4. Judicial discretion, especially under s.78 of PACE 1984
  5. Strategic and ethical considerations for legal teams

By fully understanding these aspects, legal practitioners can effectively handle bad character evidence, ensuring justice and fairness in trials.