Expert Legal Adviser MILTON FIRMAN asks: What is meant by BAD CHARACTER in a criminal trial?

Oct. 17, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

The admissibility of bad character evidence is set out in Sections 98 to 113 Criminal Justice Act 2003 which applies to all criminal proceedings begun on or after 4 April 2005. The common law rules governing the admissibility of bad character evidence are abolished with the exception of the following which are expressly preserved:

•Any rule of law under which in criminal proceedings evidence of reputation is admissible for the purpose of proving good character, but only so far as it allows the court to treat such evidence as proving the matter concerned;

•Evidence or cross examination about the complainant's sexual history in trials for sexual offences continues to be restricted by section 41 Youth Justice and Criminal Evidence Act 1999 in addition to section 112(3) (b) Criminal Justice Act 2003 where the behaviour is also "bad character" evidence. This means that in a trial for a sexual offence, to adduce evidence of a complainant's previous sexual behaviour which is also 'bad character' evidence, both tests will have to be satisfied.

"Bad character" in criminal proceedings means "evidence of or a disposition towards misconduct". Misconduct means the commission of an offence or other 'reprehensible conduct'.

This definition applies to both defendants and non-defendants.

This definition is wide enough to apply to conduct arising out of a conviction, or conduct where there has been an acquittal (R v Z [2000] 2 AC 483) and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings.

"Reprehensible conduct" should be looked at objectively taking account of whether the public would regard such conduct as reprehensible such as racism, bullying, a bad disciplinary record at work for misconduct; a parent who has had a child taken into care and of course minor pilfering from employers. Conduct that should not be regarded as reprehensible could include consensual sexual activity between adults of the same sex. The term 'reprehensible conduct' will avoid arguments about whether or not conduct alleged against a person amounted to an offence where this has not resulted in a charge or conviction.

Evidence of bad character expressly excludes:

•evidence which has to do with the alleged facts of the offence with which the defendant is charged; and

•evidence of misconduct in connection with the investigation or prosecution
of that offence. Evidence of misconduct in connection with the investigation or prosecution of the charge such as: evidence of resisting arrest by running away to imply an acknowledgement of guilt remains admissible outside the hearsay provisions.

The key test of whether evidence is admissible where the two exceptions apply is relevance. If the evidence goes to an issue in the case and tends to prove one of the elements of the offence then it is relevant and admissible.

"Criminal proceedings" means "criminal proceedings in relation to which the strict rules of evidence" applyand includes:

•A trial or Newton hearing (R v Bradley )

•A preparatory hearing, because when such a hearing is ordered, "the trial begins with that hearing" (section 30 Criminal Procedure and Investigation Act 1996 and R v H (2006)

•A hearing pursuant to section 4A Criminal Procedure (Insanity) Act 1964to determine whether the defendant did the act or made the omission charged (R v Chal [2007] EWCA Crim 2647);

•Committal proceedings (CPS v City of London Magistrates' Court [2006] EWHC 1153 (Admin);

There is a two stage test for admissibility:

1. The evidence must be admissible through one or more of the seven gateways set out in section 101 Criminal Justice Act 2003:

(a) all parties to the proceedings agree to the evidence being admissible;

(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it;

(c) it is important explanatory evidence;

(d) it is relevant to an important matter in issue between the defendant and the prosecution, which includes:

whether the defendant has a propensity to commit offences of the kind with which he is charged, except where such propensity makes it no more likely that he is guilty of the offence;

whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect;

(e) it has substantial probative value in relation to an important matter in issue between the defendant and the prosecution;

(f) it is evidence to correct a false impression given by the defendant; or

(g) the defendant has made an attack on another person's character.

2. The evidence is admissible if it falls within section 101(1) (a) (b) (c) (e) and (f) Criminal Justice Act 2003. Where the evidence falls with section 101(d) or (g) it is admissible unless, on application by a defendant, it has such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The court cannot exclude evidence of bad character of its own motion after the prosecution has served notice that it intends to adduce evidence of bad character.

The defence can apply to have the evidence excluded under section 101(3) where it is admissible under subsection (d) and subsection (g) (where the evidence is relevant to an issue in the case between the prosecution and the defendant or has become admissible because of the defendant's attack on another person).

In these two circumstances the court must not admit such evidence if it appears that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to admit it. In applying the test the court is directed to take account, in particular, of the amount of time that has elapsed since the previous events and the current charge. This is a stricter test than under section 78 Police and Criminal Evidence Act 1984 (PACE) which states that the court may refuse to admit the evidence, whereas section 101(3) states that the court must not admit the evidence if it would have such an adverse effect on the fairness of the proceedings.

The court has no power to exclude evidence of bad character which is admissible at the behest of a co defendant once it has passed the test in section 101(1)(e).

The power of the court to exclude evidence under section 78 PACE 1984 is preserved by section 112(3)(c) Criminal Justice Act 2003 which provides that:

In practice section 78 PACE 1984 will have a very limited application:

•It cannot apply where the defendant has agreed its admissibility or where the defendant has adduced the evidence himself (section 101(1)(a) and section 101(1)(b));

Where the evidence of bad character is admitted under section 101 paragraphs (c) to (g) and proves to be so contaminated that any resulting conviction would be unsafe, the court may direct an acquittal or discharge the jury at any time after the close of the prosecution case.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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