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Section 98 of the Criminal Justice Act 2003 provides that: “References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or of a disposition towards, misconduct on his part …”.
“Misconduct” is then defined in s.112(1) as “the commission of an offence or other reprehensible behaviour”.
Evidence of bad character commonly includes non-conviction evidence, that is, evidence of “reprehensible behaviour” which is not evidence of the commission of an offence.
A conviction lies at one end of the evidential spectrum; at the other is the mere unproved allegation. There are difficulties associated with admitting evidence of an unproved allegation: in particular, ascertaining the truth of the allegation according to a standard of proof (another topic altogether), and the risk of satellite litigation. However, there is a specific difficulty associated with those types of evidence that are neither evidence of convictions nor evidence of mere unproved allegations. This includes evidence of acquittals, police cautions, warnings, and penalty notices. All can have some characteristics of bad character evidence, but all can also be distinguished from convictions and unproved allegations in that they are unlikely to, or cannot, give rise to convictions.
It is well-known that the facts underlying charges of which a defendant has been acquitted can still be used as bad character evidence. This is so even though it might undermine the effect of having been acquitted: see, e.g., R v Z  2 AC 483, R v McAllister  1 Cr App R 10, R v Al Badi  EWCA Crim 2974; although see also R v Mustapha  EWCA Crim 1702.
A murkier question is the use of the fact that someone has been charged with an offence, in contrast to the use of the misconduct that led to the charge being laid. The case of R v Hussain  EWCA Crim 1117 illustrates the issue. H and M were both charged with attempted robbery from H’s workplace. M said that H had planned the robbery. H said that he knew M intended to rob the workplace, and only took part under duress from M. To establish duress, H relied upon the fact that, eight years previously, M had been involved in a road rage incident resulting in a death. M had been tried for murder and was convicted of manslaughter; that conviction was quashed and at the retrial M entered a guilty plea to assault occasioning actual bodily harm. He therefore never had a conviction for unlawful killing in any form, let alone for murder. The prosecution successfully admitted the evidence of the assault conviction via gateway (g) (because M had attacked H’s character by alleging that he supplied drugs). However, H wanted to go further. He wished, via gateways (c) or (e), to use the fact that M had been charged with murder (although not convicted of it), to show why H might have acted under duress in the belief that M was capable of killing.
The Court of Appeal stated, firstly, that a conviction by itself is not misconduct. The Court said, referring to s.98 and s.112:
“Note that it is the misconduct which is bad character. Evidence is simply the means by which the misconduct is proved. It is not unusual to see the concept of bad character wrongly elided with that of conviction. It may well be that often they go together, but a conviction is not by itself misconduct. Its status is that it is excellent and very often irrefutable evidence of misconduct. A mere charge unproved cannot begin to be conduct.” (para 13). It is the misconduct, not the evidence of misconduct, that is the bad character.
Thus, in Hussain, M being charged with murder is not equivalent to M committing an act of misconduct under s.112(1). It was only the facts that gave rise to that charge that could amount to misconduct. The Court even went so far as to say that ‘a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself’. Therefore in Hussain, ‘the only available evidence of misconduct was evidence of a conviction for assault occasioning actual bodily harm. That was the only conviction which had resulted. It proved misconduct to that extent and no further’ (para 14).
According to the Court of Appeal in Hussain, then, being charged with something cannot amount to bad character, and evidence of that charge should not amount to evidence of bad character. But this is not the same as using evidence of the facts that led to the charge as evidence of bad character, which is common and accepted practice. There are many cases in which evidence of an unproved allegation, sometimes the subject of a charge, and sometimes only the subject of another person’s accusation, has been permitted to be used as evidence of bad character. The problem in Hussain lay in treating the fact that M had been charged as evidence of bad character. It was not evidence of bad character, which meant that H could use the fact of the charge, without needing to satisfy s 101, to support his belief that M was a violent man who had a conviction for murder (however mistaken that belief might have been). Evidence that M had in the past been tried for murder might help to show that there was some foundation for H’s asserted belief.
It is, however, arguable that this reasoning only works if the jury do not also place weight on the reason for the charge as evidence of bad character. We should recall that the jury had also heard, as evidence of bad character, that the defendant had a conviction for assault occasioning actual bodily harm. Hearing that the facts which led to this conviction were, at one time, the foundation of a charge for murder, is apt to colour one’s perception of the gravity of that misconduct. It may even lead the jury to speculate about the process of that other trial and why M eventually pleaded guilty to the lesser charge, although, naturally, they will be directed not to do so.
The legal position seems clearer with respect to police cautions and warnings. A police caution is certainly evidence of bad character within the meaning of s 112(1): R v S  2 Cr. App. R. 23.
By contrast, the Court of Appeal in R v Dalby  EWCA Crim 701 held that penalty notices and harassment warnings do not “involve an admission of culpability. It follows that, at least ordinarily, we would not see a harassment warning of itself as capable of constituting bad character evidence” (para 20). However, when what is relied upon is the “underlying material” rather than the warning itself, it may, “depending on the facts and circumstances”, be capable of constituting bad character evidence. Care should be taken to maintain these distinctions.
In R v Hamer  1 Cr. App. R. 3, the Court held that a penalty notice for disorder (here in relation to an alleged minor public order offence) does not imply an admission of culpability and is not evidence of bad character. A penalty notice is defined in s.2(4) of the Criminal Justice and Police Act 2001 as “a notice offering the opportunity, by paying a penalty in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates.” A person, in accepting such a notice, would not believe that he was admitting guilt in respect of any offence. In that case, therefore, where the defendant who was charged with assault occasioning ABH, the penalty notice was not relevant at all and should not have been admitted.
It should therefore be clear that what the prosecution can rely on as amounting to bad character is very broad. Defence practitioners should be aware of this fact.
Posted by Aparna Rao on 06 June 2016 at 23:57