Specimen Direction from JSB (E&W) regarding Bad Character

24. Defendant's Character - Bad

Unusually, this specimen direction has been issued before the provisions to which it relates, namely sections 98 to 112 of the Criminal Justice Act 2003 have come into force, and thus before there has been any authoritative interpretation of them. This has been done in the belief that some guidance will be welcomed, given the fundamental changes brought about by the new provisions, and the frequency with which they are likely to arise in practice. The writers will keep under review the need for any amendments to reflect future practical experience and judicial development.

1. In this case you have heard evidence that the defendant has a bad character in the sense that he [has criminal convictions] [has otherwise mis-conducted himself]. It is important that you should understand why you have heard this evidence, and how you may use it. As I will explain in more detail later, you must not convict him only because he has a bad character (see Note 2).

2. You have heard of his bad character because (as appropriate - see Note 3):

        (a) all parties to the proceedings have agreed to it;

        (b) the defendant has told you about it [and/or] asked questions [by his barrister/solicitor] that brought it up;

        (c) it may help you to understand other evidence in the case [namely…] and the case as a whole (see Note 4);

        (d) it may help you to resolve an issue that has arisen between the defendant and the prosecution [namely…] (see Note         4);

        (e) it may help you to resolve an issue that has arisen between the defendant and his co-defendant [X] [namely…] (see         Note 4);

        (f) it may correct a false impression [said to have been] (see Note 5) given by the defendant [namely…];

        (g) the defendant has made an attack on the character of [Y] [namely…].

3. (Only if one or more of cases (c) to (f) above apply and, if case (f) applies, it is accepted that the defendant has given a false impression:) You may therefore use the evidence of the defendant’s bad character for the particular purpose[s] I have just indicated, if you find it helpful to do so (see Note 6).

4. (Only if case (f) alone applies, and it is disputed that the defendant has given a false impression:) If you are not sure that the defendant has given you that false impression, you should disregard the evidence of his bad character altogether. But if you are sure, you may use that evidence to correct the false impression, if you find it helpful to do so.

5. (In any case:) You may [also] use the evidence of the defendant’s bad character in the following ways:

(a) If you think it right, you may take it into account when deciding whether or not the defendant’s evidence to you was truthful (see Note 7). A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. [Indeed, the defendant argues that his character means that he is more likely to be telling the truth.] You must decide to what extent, if at all, his character helps you when judging his evidence.

(and/or)

(b) If you think it right, you may [also] take it into account when deciding whether or not the defendant committed the offence[s] with which he is now charged (see Note 7). (Here summarise any arguments that arise in this connection (see Note 8) and give any direction that may be appropriate where the prosecution rely on other similar offences or misbehaviour (see Notes 9 and 10)). You must decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty. But bear in mind that his bad character cannot by itself prove that he is guilty. It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character. [Indeed, the defendant argues that his character means that he is less likely to be guilty]. (See Note 11).

Notes

1. The section references in these Notes are to the Criminal Justice Act 2003.

2. In the rare case in which there is no direct evidence that the defendant committed the offence charged, and the prosecution rely solely on evidence of bad character in the form of evidence that the defendant has committed other similar offences (as in R v Straffen 36 Cr. App. R. 132) the final sentence of paragraph 1 should be omitted.

3. See s. 101(1).

4. The words ‘important’ in ss. 101(1)(c), (d) and (e) and ‘substantial’ in ss. 101(1)(e) and 102(b) have been omitted. The judge will have found these adjectives appropriate when deciding to admit the evidence; but it is then for the jury to make its own assessment of the importance and value of the issues and evidence.

5. The passage in square brackets should be omitted if it is not disputed that the defendant has given a false impression. The writers consider that if the judge rules that the evidence should be admitted under s.101(1)(f) in a disputed case, it will ultimately be for the jury to decide whether or not the defendant has given a false impression. The situation is similar to that in which the judge rules that a confession is admissible, but the jury ultimately decides whether or not it is voluntary and/or reliable. Hence the form of paragraphs 3 and 4 of this direction.

6. Should a case ever arise in which one or more of (c) to (e) apply and (f) also applies and it is disputed that the defendant has given a false impression, it is suggested that the following be added to paragraph 3: ‘But obviously you could not use the evidence to correct a false impression unless you were sure that the defendant had actually given a false impression.’

7. The writers’ view is that evidence of bad character may be admitted to impugn (or bolster) the credibility of a defendant, and/or to show that the defendant is more (or less) likely to be guilty, through any of the ‘gateways’ provided by section 101(1), depending of course on the evidence and issues in the particular case.

8. The prosecution may, for example, rely on the defendant’s propensity to commit offences of a certain kind as showing that he is more likely to be guilty. The defence may, for example, rely on points of distinction between his previous convictions and the offence charged as showing that he is less likely to be guilty.

9. In a case of the kind referred to in Note 2 above, a direction based on the specimen at page 20.2 of these Directions should be incorporated at this point and the passage from ‘But bear in mind…’ to ‘…just because of his bad character’ in paragraph 5(b) of this direction should be omitted.

10. If there is direct evidence that the defendant committed the offence charged from a witness or witnesses whose truthfulness is in issue, and the prosecution rely also on evidence of bad character in the form of evidence that the defendant committed other similar offences, a direction based on the specimen at page 20.3 of these Directions should be incorporated at this point.

11. This paragraph may need to be adapted suitably if a defendant introduces evidence of a co-defendant’s bad character pursuant to s.101(1)(e), with a view to establishing that the co-defendant is more likely to be guilty of an offence charged against both, and/or is less likely to be telling the truth.