A Presentation for Judicial College Serious Sexual Offences Seminar

1. Bad Character
July 2013 SSOS

2. Non defendant’s bad character
evidence
Section 100

3. Overview – Non defendant’s character
• Is it evidence of bad character? (s. 98)
Have all parties agreed to the use of the evidence?
(s. 100(1)(c)) If not, leave required (s. 100(4))
Is the evidence important explanatory evidence? (ss.
100(1)(a))
or
Is it of substantial probative value (s 100(1)(b)) and
has the court had regard to all the factors in s.
100(3)?
NB s 41 YJCEA 1999 might also apply.

4. Non- defendant’s bad character
• S 100(1)(b)
• Substantial probative value
• Matter in issue
• Which is of substantial importance to the case
• R v Miller [2010] EWCA Crim 1153
– Section 100 prohibits kite flying and innuendo
– Unproven allegations should rarely be put to W

5. Limits on what might be of
substantial value?
• R v Braithwaite [2010] EWCA Crim 1082
– CRIS reports, fixed penalty notices etc are unproven
allegations; convictions & cautions can be within
s100
• R v Hamer [2010] EWCA Crim 2053
– Fixed Penalty Notice does not deny D a good
character direction.
– FPN is a punishment for suspected offending only
• R v Dalby [2012] EWCA Crim 701
– Relying on unproven material in a harassment
warning is pushing the boundary!

6. When is evidence going only to
witness’s credit of substantial probative
value?
• R v Brewster [2010] EWCA Crim 1194
– If evidence against W goes to credit alone, it is admissible
under s 100(1)(b) if sufficiently persuasive to be worthy of
consideration by a fair minded tribunal upon the issue of
W’s creditworthiness.
• R v Simpson [2010] EWCA Crim 2266
– D tried for rape occurring in 1989. V convicted of minor
public order offence in 1991... Not of substantial probative
value!
• R v Barlow [2013] EWCA Crim 920
– W’s truancy, cannabis smoking, keeping bad company and
swearing on Facebook were not sufficient .

7. Section 109 - evidence of bad
character is to be regarded as true…
• R v Dizaei [2013] EWCA Crim 88
“the bare fact of an allegation (even if
assumed to be true) is not necessarily
conclusive of the question whether it
constitutes substantial probative evidence
or evidence of substantial importance in the
context of the case as a whole. “

8. What to say to the jury?
• Identify the evidence
• Explain its potential significance
• The burden of proof – if D then may be true
will suffice
• Identify what issue in the case it might
assist them in deciding?
• Explain that it is for jury to decide whether
it assists and if so how much

9. Good character of non defendant
• R v Lodge [2013] EWCA Crim 987
• In general evidence cannot be called to
bolster a witness’s credibility. An exception
to that general rule arises where the
witness’s disposition is made an issue in
the case. It is then permissible in rebuttal to
adduce evidence relevant to the alleged
disposition.

10. Section 101
Overview

11. An Overview• Notice and preparation
• Is it bad character? Section 98 and s 112
• Does it relate to D?
• If so does it fit within a “gateway” s 101
 Parties agreed? (s. 101(1)(a))
 Intentionally given / elicited by D? (s. 101(1)(b))
 Important explanatory evidence? (s. 101(1)(c))
 Important matter in issue between D and prosecution? -(s.101(1)(d))
 Substantial probative value in relation to an important matter in issue
between D1 and D2? (s. 101(1)(e))
 Correcting a false impression given by D about himself? (s. 101(1)(f))
 D has made attack on another person's character? (s. 101(1)(g))
• Is there a discretion to exclude it?
• If admitted what uses can it be put to?
• What warnings must be given?

12. 12
Defendant’s b/c evidence
• What is the evidence?
– Fact or detail?
• Is it evidence of bad character?
• Is it to do with the facts of the offence?
• Why is it being relied on?
– Propensity? Knowledge? Credibility?
• Which gateway(s)?
• Discretion to exclude?
• What warning is needed?

13. 13
Requirement of specific directions
• R v SW [2011] EWCA Crim 2463
– CA quash convictions. Insufficient guidance to
jury on use of b/c evidence.
• R v DF [2011] EWCA Crim 2168
– HHJ gave inadequate guidance on bad character
evidence that was rightly admitted
• R v P [2012] 31/5/2012
– D charged with abducting boy V, 15. D has DVD
collection including those of prepubescent naked
boys
– Careful direction needed on what uses of DVDs
for
13

14. • “it is necessary to address separately the different possible
gateways for the admission of bad character evidence … It is, of
course, true that if evidence is admissible through any gateway it
may then be considered by the jury in any way to which it is
legitimately relevant whether it has primarily been admitted on that
basis or not – see R v. Highton
• That, however, does not relieve the court of the duty of establishing
which gateway or gateways are applicable. That exercise must be
undertaken…. in order to ensure that bad character evidence is only
admitted when the statute allows [and] … because the decision as
to the relevant gateway or gateways will normally be of great help in
identifying the way and ways in which the evidence can legitimately
be used – that is to say the issues to which it is relevant.
• …it is not law that once bad character evidence is admitted, having
by definition passed at least one gateway, it can thereupon be used
by the jury in any way the jury chooses. On the contrary, it may be
used in any issue to which it is legitimately relevant but not
otherwise.”

15. Proving details of the conviction
• Does the previous detail need to be proved?
– Lamaletie [2008] EWCA Crim 314
• Details of earlier offending?
– By a statement by the complainant or live evidence from
the complainant: Woodhouse [2009] EWCA Crim 498.
– Beware satellite litigation
• Can the detail be proved by hearsay?
– reliance on s 117 : Hogart [2007] EWCA Crim 338
– reliance on s 114 (1)(d): Steen [2007] EWCA Crim 335
– Compliance with hearsay rules essential

16. D disputes conviction
• R v C [2010] EWCA Crim 2971
– D is entitled to disprove the conviction under s 74(3) of PACE,
but a mere denial by him that the conviction is accurate will
not trigger an obligation on Crown to reprove.
• Olu [2010] EWCA Crim 2975
– (i) as a matter of principle, evidence of the commission of a
previous offence contained in an admission, which is relied on as
reprehensible conduct, can be challenged by D;
– (ii) any D who challenges the conviction or caution had to give
notice to that under Crim PR 35.3(4)(b) ;
– (iii) there was considerable difference between a caution and a
conviction.
– There was also a very considerable difference between an
admission contained in a caution without legal advice having been
given and an admission made in a caution after legal advice.

17. Overseas offences
• Section 144 of the Coroners and Justice Act
2009 and Sched 17
• Can admit under s.103 convictions of
offences from any country outside England
and Wales
• To same extent as previous convictions in E
&W
• Provided foreign offence would also be an
offence in England and Wales if performed
here at the time of the present trial

18. Dangers of satellite litigation
• O’Dowd [2009] EWCA Crim 905
• D charged with rape. Crown rely on evidence
from complainants to prove
– Previous acquittal on similar allegations
– Previous trial stayed for abuse on similar allegations
– Previous conviction.
• CA quash conviction when trial lasted 6 months
• Duration in part due to
– too much bad character
– D repeatedly sacking legal team
– D disputing everything and admitting nothing
– D feigning illness.

19. What is bad character?

20. When is sex “evidence of bad character”?
• Misconduct or disposition towards misconduct
• "misconduct" means commission of an
offence or other reprehensible behaviour
• as a matter of ordinary language, the word
“reprehensible” carries with it some element of
culpability or blameworthiness: Renda
• Cautions suffice: Woodhouse
• Allegations against D stayed as abuse still
evidence of bad character: Smith
• Allegations not prosecuted can suffice:
Ngyuen

21. Counter intuitive thinking
• 34 year old having sex with 16 year old not
per se bad character: Manister
• If it is not bad character, evidence
admissible without further ado.
• D less well protected by regarding his
previous conduct as not reprehensible
behaviour

22. Bad Character?
• Reprehensible?
– Substance misuse : AJC
– Being sexually promiscuous: Ball
– Making a false complaint: Littlechild
– Consenting to sexual cutting: Marsh
– “Mouthing off” at teachers? : Larkin [2010] 2850
– Loitering outside public toilets over period of weeks and
entering in pursuit of young boys. Rossi
• Not reprehensible
– Suicide attempt: Hall Cheung (2007)
– Being the victim of sexual abuse: AJC (2006)
– Diary of sexual fantasy with pre-pubescent girls: Fox
(2009)
– Sleeping bare-chested with a knife: Allen

23. Not bad character, but jury warning?
• IJ [2011] EWCA Crim 2734
– H charged with sexual abuse on step sons
– H left marital home for homosexual affair but returned
– Is evidence of his homosexual affair admissible?
– Is it bad character? Is it relevant?
• Bullas [2012] EWCA Crim 1659
– D convicted of sexual offences on young boys
– D denied and claimed homosexuality “made him sick”
– D had had consensual homosexual relationship when
aged 17 with W1 aged 21
– W2 testified that he went with D to a gay bar once

24. “Bad character” or s. 98
• Evidence which has “to do with alleged facts” is
admissible under s 98(a) even if it would be “bad
character”
– To do with the offence implies nexus in time between
offence and other conduct: Tirnaveanu
– If the evidence is relied on to show motive there is
no need for a temporal nexus: Sule [2012] EWCA
Crim 1130
– Would evidence have been admissible under the
common law outside the context of bad character or
propensity, or as embracing anything directly
relevant to the offence charged, if contemporaneous
with and closely associated with its alleged facts:
McNeill.

25. 25
Examples of s 98(a)
• Brand – D charged with rape on retrial;
evidence of related theft conviction from
first trial admitted
• McKintosh – V delayed reporting because
D had previously shown her a gun
• Loftus – D’s rape of V “to do with” her
encouraging his abuse of their children
• BEWARE – if counts are dropped from
indictment!

26. 26
S 98(b)
• Evidence is not bad character if it is
misconduct related to investigation
• R v S
– the misconduct has to have “some closer link
with the actual investigation of the offences or
with their actual prosecution” than just
proximity in time.
• R v Apabhai [2011] EWCA Crim 917
– s 98(b) renders admissible that which would
have been admissible at common law.

27. The gateways

28. 28
Section 101(1)(a)
“(a) all parties to the proceedings agree to the
evidence being admissible”
• If bad character is agreed, compliance with
court orders is still essential: R v Johnson
[2008] EWCA Crim 1156
• Tacit agreement to admit will suffice: Marsh
[2009] EWCA Crim 2696
• Beware of agreed facts being put before jury
without having seen them: R v T (County Court
proceedings wrongly admitted)

29. Section 101(1)(b)
• (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…

30. Section 101(1)(c)
“(c) it is important explanatory evidence”
• D [2008] EWCA Crim 1156
– Background evidence not to be overused to admit
prejudicial evidence which should really have to satisfy
higher test under s 101(1)(d)
– … the statutory test for gateway (c) should be
applied cautiously where it is argued to overlap
with a submitted case of propensity.
Alternatively, section 78 might well require
such evidence to be excluded where it really
amounts to evidence of propensity which would
not be admitted as such…” [36]

31. Avoid overuse of s 101(1)(c)
• R v Saint [2010] EWCA Crim 1924
– Evidence of D’s interest in dogging and swinging as
important when D alleged to have committed rape in car
park?
• R v Lee [2012] EWCA Crim 316
– Evidence of D having planted a camera in V’s bathroom
when V aged 16 as important explanatory evidence as
to why D left the home at V’s request. Charges he faced
were from years before?
• R v Sheikh [2013] EWCA Crim 907
– Evidence of rape to explain charges of breach of SOPO

32. Section 101(1)(d)
– Is it in issue – if D has admitted the relevant “trait” it is
not relevant to propensity: Goddard [2012] EWCA Crim
1756.
– Child sex may well be propensity from sole old
conviction or caution: Woodhouse
– Sentence on previous occasion usually irrelevant:
Nelson (2012)
– Propensity can be based on events after alleged crime:
A (2009); R v B (2011)
– Can use previous convictions to rebut denial :
Montakhab [2012] EWCA Crim 2012

33. Single previous conviction?
• Hanson [2005]
“There is no minimum number of events necessary to
demonstrate such a propensity. The fewer the number of
convictions the weaker is likely to be the evidence of
propensity. A single previous conviction for an offence of the
same description or category will often not show propensity.
But it may do so where, for example, it shows a tendency to
unusual behaviour or where its circumstances demonstrate
probative force in relation to the offence charged … Child
sexual abuse or fire setting are comparatively clear examples
of such unusual behaviour but we attempt no exhaustive list.”
• Applied in R v Miller [2010] EWCA Crim 1578
• Cf Bennabou [2012] EWCA Crim 3088

34. R v D (N) (2011) EWCA Crim 1474
• D is charged with the sexual abuse of a child
• possession of indecent photos of children
capable of being admitted under s 101 to
demonstrate a sexual interest in children.
• It does not necessarily follow that a person
who enjoyed viewing such pictures would act
out the activity undertaken in them by abusing
a child.
• Evidence of possession was not evidence that
D demonstrated the practice of committing
sexual abuse or assault.

35. R v B [2011] EWCA Crim 1630
• Viewing or collecting child pornography was
capable of being admitted under s101(1)(d).
• Bad character evidence pre-dating an
offence can be admissible at trial.
• D’s interest in making, possessing or
distributing images did not mean D would
commit sexual offences.
• Caution was needed. The judge was not to
determine whether there was 'propensity',
but merely to determine if the evidence was
capable of establishing propensity.

36. Cross admissibility
• The term ‘cross admissibility’ should be used
only to describe an issue whether the evidence
in support of one count in the indictment may
be relevant in support another count in the
same indictment.
• The term is not apt to describe an issue
whether non-indicted bad character evidence is
admissible in support of any count in the
indictment. That way confusion lies.”[47]
– Suleman [2012]EWCA Crim 1569

37. Freeman and Crawford [2008] EWCA Crim
1863
• Not always necessary to rely on propensity
to render cross admissible
• Can be cross admissible to rebut
coincidence:
– If each of the allegations is capable of making
it more likely that the other allegations were
true because of the similar nature of the
evidence in each case.
– whether or not the incidents were capable of
establishing a propensity, each may be
admissible as evidence to support truth of the
other allegations….

38. 38
• Some cases we invite jury to reason from
propensity
– D did this “kind of thing” to V1, has trait, more likely to
have done it to V2
– Sequential reasoning including reliance on D having trait
– Only works if no collusion, & need propensity warning.
– Propensity is part of reasoning process
• Case B - jury invited to reason to propensity
– 3 complainants independently allege same conduct
– Jury can reason cannot be explained as coincidence
– Not sequential
– Propensity not part of reasoning process that judge
polices; it is part of the conclusion only.

39. Cross admissibility - without propensityCross admissibility - without propensity
– R v H [2011] EWCA Crim 2344
• “the reality is that independent people do not make
false allegations of a like nature against the same
person, in the absence of collusion or contamination of
their evidence.”[24].
– R v Nicholson [2012] EWCA Crim 1568
• In some instances assistance might be necessary on
how unlikely the coincidence
• Beware juries double counting by using evidence from
Ct 2 to rebut coincidence on ct 1 and then using guilt
on ct 1 as evidence on ct 2.

40. NH [2011] EWCA Crim 730
• It will be in rare circumstances, if at all, that
the jury might be directed to consider both
these possibilities in the same case
(although it is not so unusual for the jury to
consider the effect of a relevant previous
conviction as demonstrating a relevant
propensity and the unlikelihood that similar
but independent complaints are, as
between themselves, coincidental or
malicious).

41. Collusion and contamination
• R v NH [2011] EWCA Crim 730
– exclude collusion or innocent contamination
assessing how likely to be the product of
coincidence.
• R v PR [2010] EWCA Crim 2741
– What matters is collusion or contamination; that is
not to say that witnesses can never have spoken!
• R v Cross [2012] EWCA Crim 2277
– Only of value in terms of coincidence if no
collusion or contamination between witnesses
• R v Coull [2011] EWCA Crim 2893

42. Section 101(1)(e)
“(e) it has substantial probative value in relation to an
important matter in issue between the defendant and a
co-defendant”
• Phillips [2011] EWCA Crim 2935
– Substantial probative value
– In relation to an important matter
– In issue between the D and a co-defendant.
– No discretion once admitted under s 101(1)(e)
– Only D can rely on this gateway
– If CoD’s b/c suggests that he would be prepared to lie if
necessary to defend himself, this gateway to admissibility may
be triggered.
– No restriction on type of earlier offence admissible

43. 43
Section 101(1)(f)
“(f) it is evidence to correct a false impression
given by the defendant”
– R v Wylie [2010] EWCA Crim 3110 – detail
matters – difference between saying “never
been in trouble” and “never been in trouble
with police”
– R v Dixon [2012] EWCA Crim 2163 - D, in
interview claimed that he had never been
attracted to V or to any other child. At trial, D
claimed that V was making the allegations
because of her mother’s hostility towards him.
43

44. 44
• “ The evidence of what he had said when
confronted by the allegations was relevant and
admissible. If an accused lies in interview and the
consequences for the appellant are unfortunate,
the answer is not to edit out those lies. The answer
is that the prosecution is entitled to rely upon
those lies. Here the answers were freely given and
the appellant was not lured into making his
character admissible. Once the evidence was in, it
was incumbent upon the judge to ensure that the
jury were not misled. The evidence was therefore
necessary to correct a false impression which
went to the heart of the matter.” Per Hallett LJ at
[17]

45. Section 101(1)(g)
“(g) the defendant has made an attack on another
person's character.”
• "[I]mputation about the other person" means an
assertion attacking the other person’s character.
• Direct attack in interview on rape complainant’s
credibility could be enough: Ball
• Ought not to be triggered by an attack on the
character of a person who is neither a witness
nor an alleged victim: Nelson
• Once evidence admitted may also be propensity
evidence: Highton

46. Good or bad character?
• D has good character unless incident alleged to form part of the
bad character evidence in the present case is proved….
• Begin with good character direction (on the basis that D has
never been convicted etc.) but then to say something like this:
“This is subject, depending on what you make of it, to the
evidence about what is said to have happened in [alleged b/c]. I
say “depending on what you make of it” because if you are not
sure that what is said to have happened [ ] actually occurred,
then you must take no account of it at all and you should take
D’s good character into account in the ways which I have just
explained without any regard to the evidence about the
playground. If on the other hand you are sure that the incident
did occur then this is something which you are entitled to take
into account in deciding (a) what weight, if any, you should give
to D’s otherwise good character and (b) whether or not you can
be sure that D behaved as he is alleged to have done on this
occasion. In this regard ......”{add propensity direction tailored to
facts of the case}.