Bad character evidence under the Director of Public Prosecution’s Guidance on Charging 2020
The Director of Public Prosecution’s Guidance on Charging (31st December 2020) provides a clear structure in which criminal allegations are investigated and prosecuted. Defence teams must have a detailed working knowledge of the Guidance as part of a proactive pre-charge engagement strategy.
This page focuses on Bad character evidence
The significance of the Guidance for defence teams
We look to engage with police at an early stage of an investigation. We always consider whether we can make representations against charge, by arguing that there is not a ‘realistic prospect of conviction’ or that it is not in the public interest to prosecute. The Guidance was published on the same day (31st December 2020) as the arrangements for ‘pre charge engagement’ (Annex B Attorney General’s Guidelines on Disclosure 2020).
Director of Public Prosecutions Max Hill QC;
‘There has been a major shift in working practices and priorities throughout the criminal justice system in recent years and it is vital there is clear guidance to help police and prosecutors navigate these effectively.
‘The Attorney General’s guidelines focus on getting disclosure right and getting it done early so its impact on the evidence is known. These are significant changes and we must continue to work collaboratively to embed them.’
At Olliers we regard the Guidelines as a powerful resource during the pre charge engagement process.
The significance of ‘Bad character evidence’ pre charge in a criminal case
The DPP’s guidance in relation to “Bad Character evidence” is intended to support decision making although it is not a definitive guide.
“Bad character evidence” is defined as evidence of a person’s misconduct or of a disposition towards misconduct on his part, other than evidence which:
- has to do with the alleged facts of the offence with which the defendant is charged; or
- is evidence of misconduct in connection with the investigation or prosecution of that offence.
Some offences require the admission of evidence of misconduct (for example, driving while disqualified).
If evidence of a defendant’s disposition towards misconduct “has to do” with the facts alleged, the statutory provisions for admissibility of bad character evidence are not applicable. A decision must be taken as to whether such evidence can be adduced as part of the Crown’s case or whether it is necessary for an application for the bad character evidence to be admitted.
Where there is doubt that evidence is “to do with the alleged facts of the offence”, an application may have to be made for evidence to be adduced through one of the statutory gateways. This would be important on the basis that it was “important explanatory evidence” or “evidence relevant to an important matter in issue between the prosecution and the defendant”.
If the provisions apply, the misconduct must be specified. Misconduct is the “commission of an offence or other reprehensible behaviour.”
Roles and responsibilities
Bad character must be considered in all cases.
Police officers must identify relevant information and material and provide such material to the prosecutor, in sufficient time to ensure a bad character application can be made in a timely manner.
The prosecution must:
- identify additional evidence or required to support a bad character application, as soon as possible,
- provide rationale for request,
- make reasoned, timely applications.
The seven ‘gateways’
Evidence of the bad character is admissible if one of the following gateways applies:
- parties to the proceedings agree to evidence being admissible,
- the evidence adduced by defendant himself or is given in answer in cross examination and intended to elicit it,
- important explanatory evidence,
- relevant to important matter in issue between defendant and prosecution,
- substantial probative value,
- evidence to correct false impression given by defendant,
- the defendant attacks on another person’s character.
- Bad character evidence of non-defendants 135is admissible if:
- it is important explanatory evidence;
- it has substantial probative value in relation to a matter which:
- is a matter in issue in the proceedings; and
- is of substantial importance in the context of the case as a whole; or
- all parties to the proceedings agree to the evidence being admissible.
Information and material requirements
Although relevant bad character may add value to a prosecution case there should be a clear rationale for the decision to use bad character evidence
Bad character evidence should be brought to the prosecutor’s attention as early as possible and the material should be available prior to charge. If the prosecution wish I introduce bad character evidence a notice should be served within 28 days of a not guilty in a magistrates’ court or 14 days of a not guilty plea in the Crown Court.
The material and information to establish “a disposition towards misconduct” is likely to fall into one of the following categories:
Previous convictions: proof of the conviction, plus any more detailed information available on other the modus operandi, the plea/basis of plea, any concurrent charges, any defence used, and summary;
Other disposals: where they involve acceptance of responsibility, including cautions, other warnings, informal resolutions;
Other allegations of criminality: may include previous allegations, incident reports (particularly in domestic abuse cases), any outstanding investigations, previous acquittals or discontinuances;
Other reprehensible behaviour: may include a pattern of excessive drinking, use of illegal drugs, membership of, or association with, a violent gang.
The Guidance recognises ‘the overarching principles’ set out in Sir Brian Leveson’s review of ‘Efficiency in Criminal Proceedings’, the most important of which is perhaps the concept of ‘getting it right first time’
Police officers and prosecutors must comply with this Guidance to ensure that charging decisions are fair and consistent, and comply with the Police and Criminal Evidence Act, the PACE Codes of Practice, and the Code for Crown Prosecutors (“the Code”). As the police get to grips with the Guidance it is inevitable that mistakes will be made. Failure to follow the Guidance may risk cases failing or decisions being subject to legal challenge.
The guidance is issued by the DPP for police use, but the provisions apply equally to other investigators where cases are prosecuted by the CPS
At Olliers we recognise the importance of defence teams being at least as familiar with the obligations upon the police as are their police counterparts.