Chapter 5 Key facts checklists

Chapter 5 Key facts checklists

Character evidence

• Two legal processes are at stake in discussing character evidence: whether it is admissible or not, and if it is admissible, what is its evidential worth.

 Character is found in two spheres, namely good character and bad character.

 The admissibility and evidential worth of good character is governed by the common law.

 Good character, defined as general reputation, or lack of criminal record, may be evidence of lack of guilt (propensity) and of trustworthiness as a witness (credit). The leading case is R v Hunter (2015).

 Bad character evidence, if admitted, may be evidence of either propensity, or credibility, or both.

 Under the common law there was a presumption that bad character evidence of defendants was not admissible, the exceptions to this were i) the ‘similar fact’ common law principle and ii) the statutory provisions relating to cross examination of the witness who chose to testify under s1(3) Criminal Evidence Act (CEA) 1898.

 Bad character evidence of both defendants and non-defendant witnesses is now defined by statute, s98 Criminal Justice Act (CJA) 2003.

 The admissibility of bad character evidence of non-defendants is determined by s100 CJA 2003, which adopts a more restrictive approach to admissibility in contrast to the common law position and in line with the more protective attitude to victims.

 The admissibility of bad character evidence of defendants is governed by s101(1) CJA 2003.

 Bad character of the defendant may now be admissible whether he testifies or not, in contrast to the former position where, under the common law, bad character evidence was admitted for the non-testifying defendant only under the similar fact rule or if a witness gave good character evidence. Under the CEA 1898 imputations made against a prosecution witness where the defendant did not testify did not trigger the admissibility of his bad character evidence.

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