Is evidence of bad character admissible?

Evidence in criminal proceedings 

There are several types of evidence which may or may not be admissible in relation to criminal proceedings. All depends on the nature of the evidence. Examples include oral evidence, documentary evidence, real evidence (e.g.  the weapon), circumstantial evidence (e.g. fingerprints, motive). There are several factors which help in deciding whether the evidence is admissible or not. First of all, the evidence must be relevant to the facts of the case and must have sufficient weight in order for it to be admissible. However if the evidence is inadmissible the fact that it is relevant in the proceedings does not play any role. Evidence which is normally excluded is non-expert opinion evidence, evidence of bad character or previous convictions,hearsay evidence, privilege, public policy, confessions made by oppression, unreliable evidence or evidence which would have adverse effect on the proceedings. It is important that you are aware of what sort of evidence is admissible in relation to your proceedings.

Bad character evidence

In order to asses the credibility of the evidence it is helpful to have the knowledge of the past behaviour or character of the defendant. The question is whether this is admissible as it could considerably damage the defendant if he or she is of a bad character. The same test applies to the witnesses. The judge can sometimes make a direction for the jury which is called ‘Vye direction’ and this will draw the attention of the jury to the defendant’s good character which will have a positive effect on the proceedings.  Evidence of a bad character refers mainly to the defendant’s previous convictions. Evidence of a bad character has also been defined as ‘evidence of or disposition towards, misconduct.’ Such misconduct was defined by the Criminal Justice Act and may include any disciplinary actions taken against the defendant by his employer, previous convictions and acquittals, or some other evidence given by a particular witness referring to the bad character of the defendant. There are some exceptions e.g. failure to attend the court or breach of the bail conditions which refer to the investigation of the offence for which the accused is prosecuted and these will not amount to the evidence of bad character.

Admissibility of evidence of bad character  

According to the Criminal Justice Act there are some circumstances when bad character evidence is admissible. Thus, bad character evidence can be used to prove that a particular person is not credible enough and there is a propensity to commit crime. Such propensity to commit a crime was again defined by the Act and includes offences of the same or similar description or category. The courts also look at propensity for untruthfulness e.g. offences of dishonesty, deception etc. As in accordance with the Criminal Justice Act there are 7 circumstances where such evidence is admissible. It is the responsibility of the prosecution to prove that one of the seven circumstances applies. The evidence is therefore admissible only IF 1.all the parties to the criminal proceedings agree to such evidence being admitted, or 2. The evidence is adduced by the defendant or obtained in cross-examination and intended to be explained, or 3. It is essential explanatory evidence, or is relevant to the proceedings especially to the issue between the defence and the prosecution, or 5. It has a great value in relation to a matter between the defendant and the co-defendant, or 6. It is evidence which would correct false impressions made by the defendant or 7. The defendant made an attack on some other person’s character. In all those circumstances the evidence of bad character would be admissible. In order for the evidence to be admitted the leave from the court is necessary to be obtained. If the prosecution has the intention of adducing evidence of bad character and the defence does not know about it, the prosecution must send a notice to the defence and notify them about the intention of doing so. Such notice is not necessary to be sent if evidence of bad character is most likely to occur during cross-examination or examination in chief anyway. 

However generally, the evidence may not be admissible even if it is relevant to the proceedings if the defence can prove that there was a sufficient lapse of time between the occurrence of the facts and the current allegations, as it would be unjust to admit bad character evidence under these circumstances. The court may not want to admit bad character evidence if it can be proved that admissibility of such evidence would have an adverse effect on the whole proceedings.

Admissibility of confessions

As in accordance with the Police and Criminal Evidence Act if a person makes a confession, this can be used against him as evidence in the proceedings. Confessions are normally admissible and reliable however in the past there were cases of miscarriages of justice due to flawed confession evidence. In some circumstances confessions can be excluded from admissible evidence. These circumstances are defined by the Police and Criminal Evidence Act. Confessions which are unreliable or obtained by oppression cannot be used as evidence against the accused. It is for the prosecution to prove that the confession was not made by oppression. Oppression is defined by the Act as ‘torture, inhuman degrading treatment, the use of threat or violence’. The court may also decide to exclude the evidence if it can be proved that it would have an adverse effect on the proceedings if it was admitted. Evidence may also be excluded in certain circumstances where it was obtained in breach of the Code of Practice and in breach of the Police and Criminal Evidence Act.