BAD CHARACTER

A conviction for sexual assault was quashed where evidence which supported the accused’s belief that his former wife had encouraged her sister to fabricate the allegations had not been before the jury. The fact that the accused’s former wife had not been called as a prosecution witness was irrelevant; the jury should have had opportunity to test that evidence.

A minimum term of 10 years’ imprisonment, equating to a determinate sentence of 20 years, imposed in respect of a life sentence following an offender’s conviction for historical offences of rape and indecent assault, was reduced to six years to reflect the principle of totality of sentence. The offender had previously been sentenced to 12 years’ imprisonment for similar sexual offences committed close in time to the index offences, which effectively equated to a total sentence before reduction of 32 years.

[2017] NICA 36

An offender who had pleaded guilty to conspiracy to commit fraud, but denied an offence of theft, had the theft conviction quashed where unbeknownst to him, the witness who had identified him had a previous fraud-related conviction. There was a real possibility that the jury would have reached a different verdict if they had known about the witness’ conviction.

[2017] EWCA Crim 751

The Privy Council dismissed a husband’s appeal against his conviction for the murder of his estranged wife. Evidence of the husband’s past violence towards her showed that he bore her ill-will and had the motive and inclination to attack her. The evidence did not go to his general credibility and was therefore admissible evidence in accordance with Makin v Attorney General of New South Wales [1894] A.C. 57.

[2017] UKPC 14

In a trial relating to historic offences of indecent assault, the judge had rightly allowed a witness, who had witnessed the alleged offences, to give evidence that she has also been inappropriately sexually touched by the appellant. The judge correctly directed the jury that her evidence did not go to propensity, but that it was potentially relevant to an important matter in issue.

In a trial for conspiracy to burgle the house of a firearms licence-holder, the court had been correct to admit evidence of one defendant’s previous convictions as “important explanatory evidence” under the Criminal Justice Act 2003 s.101(c). The other evidence in the case raised serious questions which required explanation, and the bad character evidence showed that the defendant was a serious criminal who was operating with a gang to commit a series of burglaries in order to acquire the kit necessary to commit robberies.

[2017] EWCA Crim 42

A bind-over, or the conduct leading to it, would not necessarily deprive a defendant of his entitlement to an unqualified good character direction. However, the defendant would not be entitled to have a bind-over simply ignored when the judge was considering whether to treat him as a person of good character.

[2017] EWCA Crim 35

A conviction on 15 historic counts of indecent assault was safe despite some unsatisfactory features of the judge’s summing up. The total sentence of fifteen years’ imprisonment was reduced to eight years, to take account of the offender’s advanced age and poor health.

[2016] EWCA Crim 1941

Social media messages in which a defendant had said that she might stab her boyfriend when stressed or angry had been correctly admitted as evidence that might assist the jury in determining whether the boyfriend’s later death as a result of a knife in the heart had been an accident or a stabbing by the defendant with the necessary intent.

[2016] EWCA Crim 2237

Although there had been a serious failure to disclose material which undermined the credibility and reliability of a complainant in a sexual assault trial, it was clear that the jury had not relied on the complainant’s evidence and the court did not accept that a jury might reasonably have come to a different conclusion had it been aware of the further material.

[2016] EWCA Crim 2030

The court upheld an offender’s conviction for the murder of a fellow sex worker. The evidence against her, although circumstantial, was overwhelmingly strong, and the judge had not erred in admitting hearsay statements or evidence of bad character.

[2016] EWCA Crim 1712

A recorder had not erred in refusing to admit evidence of a racially aggravated assault victim’s bad character, as the evidence consisted of mere assertions which were not admissible under the Criminal Justice Act 2003 s.100(1)(b).

[2016] EWCA Crim 2253

Where, in a criminal case, the Crown relied on several incidents to establish propensity on the part of the defendant, it did not have to prove beyond reasonable doubt that each incident had happened in the way alleged, and the jury did not have to consider the facts of each individual incident in isolation from one another. The jury had to consider the evidence in the round to determine whether propensity had been established to the criminal standard.

[2016] UKSC 55

The threshold in the Youth Justice and Criminal Evidence Act 1999 s.41(3)(c), which permitted the victim of a sexual offence to be cross-examined about her sexual behaviour if there was a similarity between her previous alleged conduct and the act complained of, was high. The provision could not be invoked to argue that a complainant who had engaged in casual sex in the past was likely to have done so on this occasion. There had to be a sufficient chronological nexus between the past and current events, otherwise any cross-examination on the issue would not be truly probative.

[2016] EWCA Crim 1633

Convictions for conspiracy to defraud and to convert or transfer criminal property were overturned where the trial judge had failed to state clearly to the jury what they were required to focus on and had not set out with sufficient clarity the nature of the case against the appellant.

[2016] EWCA Crim 1632

A conviction for assault occasioning actual bodily harm was not unsafe despite the fact that the complainant had made three references to the accused’s previous convictions. The judge had correctly focused on the proper questions and the justice of the trial and had given a short and appropriate direction to the jury to ignore her references.

[2016] EWCA Crim 1559

Where a defendant had been accused of raping a child under 13 a judge had been entitled to admit evidence regarding alleged lies that he had told a woman with young children, unrelated to the victim, regarding his past. The evidence was relevant as it had been open to the jury to conclude that the purpose of any deception was so that the defendant could ingratiate himself with a family and so was capable of providing support to the Crown’s case that the defendant’s real interest was the children.

[2016] EWCA Crim 1462

A judge in a manslaughter trial had been right to refuse to admit evidence of the deceased’s alleged bad character in respect of allegations of drug misuse and sexual abuse. The allegations were not relevant to the issues in the case.

[2016] EWCA Crim 1849

A judge had not erred in refusing to sever an indictment where during an aborted drug deal the appellant had been the victim of a kidnap by his co-defendants and following the deal he was the perpetrator of a kidnap of an associate. The indictments had been properly joined, as evidence in one kidnap was very likely to be referred to in the course of evidence about the other, and a single jury was in the best position to try both sets of charges.

[2016] EWCA Crim 1797

The appellant’s conviction for assault occasioning actual bodily harm, committed against a neighbour, was not rendered unsafe by the trial judge’s refusal to allow him to adduce evidence of the neighbour’s bad character in the form of allegations that the neighbour had a history of threatening behaviour towards him. All of the material relied on amounted to unsubstantiated allegations about matters which had not been proven against the neighbour.

[2016] EWCA Crim 839

A recorder had misdirected a jury in relation to conduct referred to in a count of indecent assault that might have occurred before the defendant’s 14th birthday. He had failed to direct that the defendant’s guilty knowledge had to extend beyond the evidence of the acts amounting to the offence itself.

[2016] EWCA Crim 674

Whilst the judge at the appellant’s trial for rape had not conducted the correct judicial exercise in refusing to allow the appellant to adduce evidence of the victim’s previous allegations of rape and to cross-examine her in relation to them, it was not possible to argue that there had been a clear evidential basis on which to mount a cross-examination and the judge had been right to refuse the application.

An offender’s convictions for nine counts of obtaining money by deception were safe. Evidence adduced by the Crown in the course of the trial was correctly characterised by the judge as admissible under the Criminal Justice Act 2003 s.98, being matters that had to do with the offences charged rather than bad-character evidence.

[2016] EWCA Crim 2267

A recorder had properly directed the jury that gang-related evidence, admitted under the Criminal Justice Act 2003 s.98, went to the issue of the intent of a 19-year-old offender charged with possession of a firearm with intent to endanger life. A sentence of 11 years’ detention, although severe given the offender’s age, was not manifestly excessive or wrong in principle.

[2016] EWCA Crim 447

In a trial involving sexual offences committed by a father against his two daughters, a judge had been entitled to allow into evidence the father’s previous conviction for sexual assault against his step-daughter. The father’s convictions were not rendered unsafe by the judge’s summing up, despite its defects.

A judge had been fully entitled to reject a submission of no case to answer made by the appellant when he was on trial for conspiracy to rob and to cause grievous bodily harm following a gang-related revenge attack in which one victim received a very serious stab wound. Although the appellant had not been present during the attack, the evidence, which consisted principally of text messaging, was sufficient to show that he had been a party to the conspiracy to rob.

[2016] EWCA Crim 604

The admission of evidence of sexual violence used against a victim by an offender, but for which he had not been charged, did not render his convictions for rape unsafe where the offender had launched a strong attack on the victim’s character and where the bad character evidence was important in giving the jury the full picture of the violent relationship between the pair.

A judge had been entitled to rule that evidence of amphetamine in a mother’s flat was relevant to whether she was reckless or indifferent to her child’s safety in a trial for cruelty to a child under 16. On a charge of child cruelty in the form of willful neglect, the prosecution was not confined to adducing evidence of the specific act of negligence causing the injury to the child.

In a trial of conspiracy to supply class A drugs, a judge should have admitted evidence that an appellant’s co-accused had threatened him if he did not alter his evidence. Under the Criminal Justice Act 2003 s.98(b), that was relevant evidence of misconduct in connection with the prosecution of the offence and admissible at common law. However the case against the appellant was overwhelming and, notwithstanding the judge’s error, his conviction was safe.

[2016] EWCA Crim 83

A judge had been entitled to admit bad character evidence as evidence of propensity to carry a knife where an offender had on one occasion previously been convicted of possessing a bladed article in a public place. There was no minimum number of events necessary to demonstrate propensity, and the judge had carried out a finely balanced evaluation and had reached a decision which was open to him.

[2016] EWCA Crim 170

Refusal to admit a complainant’s previous convictions for carrying knives or bladed weapons had had no bearing on whether a defendant had been involved in a joint enterprise wounding with intent in which the complainant had received five knife stab wounds, and did not affect the safety of his conviction.

[2016] EWCA Crim 1

Although a judge had erred in admitting, on a co-defendant’s application under the Criminal Justice Act 2003 s.101(1)(e), evidence of an offender’s bad character as being of substantial probative value, convictions for murder and arson with intent to endanger life were not unsafe. The judge should have considered the issue of admissibility entirely by reference to the relevant provisions in the 2003 Act, and not by reference to common law principles, but had directed the jury regarding the limited value of the previous convictions in relation to propensity and the further evidence against the offender was very strong.

[2016] EWCA Crim 4

Where the bad character of a defendant was properly before a jury, his conviction for possession of a prohibited weapon was not rendered unsafe by cross-examination on the reasons he had previously pleaded guilty to similar offences.

[2015] EWCA Crim 2251

A judge had erred in admitting evidence of convictions for possession of wraps of heroin and crack cocaine in a trial of a count of producing cannabis. The judge had held that the convictions should be admitted to counteract a false impression of naivety about drugs that the defendant’s evidence had given, but it was difficult to see how such an impression had been created by the relevant evidence.

[2015] EWCA Crim 1911

Convictions for conspiracy to breach immigration control and for using unlicensed security operatives were safe even though the judge had not permitted reference to a co-defendant’s rape conviction. The jury knew all it needed to know to form a view of the co-defendant’s credibility and the case against the appellant had been strong or even overwhelming.

[2015] EWCA Crim 2316

In the appellant’s trial for unlawful wounding, the judge had been justified in refusing to allow him to adduce evidence of the victim’s bad character in the form of a previous conviction for common assault. That conviction was not important explanatory evidence, nor did it have any other substantial probative value.

[2015] EWCA Crim 2305

A judge had been entitled to put relevant previous convictions to a jury in a manslaughter trial where the defendant’s propensity to violence was relevant as to whether he had hit the deceased in self-defence or as the aggressor. A 14-year extended sentence was not manifestly excessive where it had been the defendant’s second conviction for manslaughter in similar circumstances.

In the defendant’s trial for making a threat to kill and possessing a firearm with intent to commit murder, the judge had erred by directing the jury that certain bad character evidence concerning the defendant could be used in support of the prosecution case: it had not been introduced for that purpose and it did not have that effect. However, the judge’s error did not undermine the safety of the conviction.

[2015] EWCA Crim 1619

Evidence which tended to suggest that a defendant had past experience of committing a particular kind of crime was not “to do with the alleged facts of the offence with which the defendant [was] charged” for the purposes of the Criminal Justice Act 2003 s.98. Instead, the evidence was clearly relevant to an important matter in issue within s.101(1)(d), meaning that the judge had to give an appropriate bad character direction to the jury.

[2015] EWCA Crim 1565

Before drawing a conclusion on an offender’s dangerousness, a judge had to be satisfied there was a sound evidential foundation for any basis of fact, which could go beyond formal convictions and could include cautions and prison adjudications.

[2015] EWCA Crim 1831

In a trial for murder involving four co-defendants, a judge had properly admitted bad character evidence of one offender’s previous convictions for robbery and possessing a bladed article under the Criminal Justice Act 2003 s.101(1)(d) and s.101(1)(e).

The murder convictions of four men, following the fatal shooting of a man in the context of an ongoing feud between two drug gangs, were safe. The trial judge’s summing up had not been biased in favour of the prosecution, and in relation to one of the defendants he had been right to admit evidence of his convictions for attempted murder committed shortly before the alleged murder and the fact that he had been shot two months earlier.

[2015] EWCA Crim 1350

Bad character evidence in respect of complainants in sexual assault allegations had been properly excluded where a judge had decided that it did not have substantial probative value as it did not establish a propensity towards general untruthfulness. That exclusion avoided the inevitable, grossly prejudicial, admission of the accused’s previous convictions for sexual offences.

[2015] EWCA Crim 1509

During a trial for putting a person in fear of violence by harassment, which had involved several physical attacks on a vulnerable victim, the judge had wrongly excluded bad character evidence that the victim had had violent encounters with drug dealers. Although the evidence emanated from the accused, it was of substantial probative value on the issue of the identity of the victim’s attacker.

[2015] EWCA Crim 1050

Evidence of bad character which had not been the subject of a conviction could be regarded as tending to show that an accused had a propensity to behave in a particular way, provided the judge fairly reviewed the essential features of the evidence and made it clear in his directions that the jury should not rely on it unless they were sure of its truth.

[2015] NICA 34

Two convictions for rape were safe where a judge had admitted evidence of an offender’s single previous conviction for sexual assault. The offences all demonstrated sufficiently unusual behaviour, capable of demonstrating the offender’s propensity to commit offences of the kind charged, to permit admission under the bad character provisions of the Criminal Justice Act 2003.

A trial judge had correctly admitted into evidence a defendant’s previous conviction for a burglary carried out in very similar circumstances in which ducting tape with traces of the defendant’s DNA had also been found at the burglary scene. The DNA evidence in conjunction with other evidence against the defendant was very compelling, such that a proper case had been presented to the jury.

[2015] EWCA Crim 997

It had been appropriate to admit bad character evidence where the combination of various strands of evidence amounted to a reasonably strong case and its admission would not be contrary to R. v Hanson (Nicky) [2005] EWCA Crim 824, [2005] 1 W.L.R. 3169.

[2015] EWCA Crim 857

The fact that a co-defendant’s previous convictions were unknown to both the judge and the Crown had not affected the safety of a defendant’s conviction. The outcome of the trial would have been the same in any event.

A judge had not erred in permitting the prosecution to adduce evidence of an offender’s bad character, relating to conduct forming the basis of a charge for sexual assault, of which he was acquitted, after it had closed its case as the defence had not yet opened its case. The judge had also directed the jury fairly on the similarities and dissimilarities between the previous incident and the index offence.

[2015] NICA 11