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Bad Character Evidence

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

The Olliers Investigations Team place huge emphasis in monitoring the police and their compliance with the Guidance as part of our proactive approach to pre-charge work.

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.

Key principles

“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.
  1. 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.

Contact our pre-charge investigations lawyers

If you would like to explore how Olliers can assist you please contact Ruth Peters or Matthew Claughton for a confidential discussion.

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Case Studies

Case Study One
21-year-old male of good character faced allegation of date rape in which the complainant claimed to have been unconscious for ten hours. Olliers were able to prove social media activity throughout the night and downloading of an app together with text activity from the alleged victim the following day. Olliers also provided police with details of a flatmate who witnessed sexual activity. Police were also provided with a motive for the fabricated complaint. Following representations to the police, matter came to a swift conclusion without even going to the Crown Prosecution Service for a charging decision.

Case Study Two
Young man faced allegation of sexual assault in a nightclub. It was suggested that he had assaulted a complete stranger without any earlier interaction. Olliers were able to show that alleged victim had in fact connected with the suspect on WhatsApp at the time of the incident which would have been impossible on her version of events. Olliers were also able to show that complainant’s boyfriend had unexpectedly arrived in the nightclub which gave an explanation and motive for the false allegation. No charges were brought.

Case Study Three
Client faced an allegation of historic rape based upon one incident thirty years earlier. Olliers were able to produce to the police a poem sent to the defendant by the complainant ten years previously i.e. twenty years after the alleged incident in which she admitted to her infatuation with the suspect at the time of the incident. Representations were made including a defence explanation for the allegations being made.  Crown Prosecution Service took the view that there was not a realistic prospect of conviction and no charges were brought.

Case Study Four
Client  was arrested and interviewed under caution in connection with historic allegations of rape. He was subsequently released under investigation pending further police enquiries. On contacting Olliers, we immediately adopted a proactive approach and established contact with both the officer in the case and the duty solicitor who had represented the client at the police station. Following detailed consideration of the police station notes, and on taking thorough instructions from our client, we drafted representations against charge on his behalf. The aim of our representations was to persuade the Crown Prosecution Service that there was ‘not a realistic prospect of conviction’ as required by the Code for Crown Prosecutors. The police investigation was ongoing for some time and we periodically liaised with the investigating officer to provide the client with updates. Having considered our representations, the police decided to take no further action against our client and the matter came to a close.

Case Study Five
Our client was arrested and interviewed under caution in relation to historic allegations of rape, sexual assault and controlling or coercive behaviour. He was subsequently released under investigation pending further police enquiries. The client contacted Olliers shortly after his arrest. Following this, we obtained the case papers from the duty solicitor who had represented him during interview. We also established contact with the investigating officer and drew their attention to some initial points about the case which would require further investigation. As the investigation developed, we drafted comprehensive representations against charge based on our client’s detailed instructions and relevant material he had provided. On considering our representations, the police decided to take no further action against our client and the matter was concluded.

Case Study Six
Our clients were directors of a payment processing company. This was a multi-jurisdictional investigation involving restraint of assets on several continents. Extensive police liaison took place, a substantial amount of exculpatory material was provided to the police. Complex and ultimately successful applications to vary and discharge restraint orders were made. Representations against charge were submitted. The matter concluded following a successful application under the Criminal Justice and Police Act 2001 for return of items unlawfully seized by police and decision was made to take no further action against our clients.

Case Study Seven
Client E was arrested and interviewed under caution concerning allegations of rape and sexual assault. He was released under investigation as the police continued with their enquiries. Client E contacted Olliers only a few days following his arrest to request pre-charge representation. We swiftly proceeded to make contact with the investigating officer to establish a line of communication. We also quickly obtained the case papers from the duty solicitor whom represented Client E at the police station. For the following five months, we maintained contact with the investigating officer and regularly liaised with them regarding bail requirements and the progress of their investigation. After in-depth consideration of the police station notes and all of the information and instructions provided by the client, we disclosed some material to the investigating officer concerning the allegations. Following review by the police and consideration of their lines of enquiry, a decision to take no further action was reached thereby concluding the investigation.

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