By Anthony Edwards, TV Edwards, London


Evidence: character, false impressions and hearsay

While applications to put in the defendant's bad character should normally be made by the Crown within the strict time limits, it is clear that some applications are best resolved during the trial rather than earlier. This will be the case particularly where the quality of the prosecution's evidence is poor.



In R v Gwymer 2007 Crim LR 890, the complainant was only able to give limited evidence, and the supporting evidence from a 14-year-old child was not wholly corroborative. In the leading case of Hanson 2005 Crim LR 787, the court has already held that convictions must not overshadow other evidence. As the case turned out this was exactly what had been allowed to happen. In the terms of section 103(3) of the Criminal Justice Act 2003 it was unjust for the conviction to be used in those circumstances.



In R v Campbell 2007 the Court of Appeal confirmed that, once bad character evidence has been admitted, it could be used for any purpose and it was unhelpful for the court to spend too much time considering which gateway the evidence had come through. The issue was its relevance to a matter in issue between the prosecution and the defence. Significance varied according to factors such as the number of convictions, similarity to the present charge, and age and relevance to the defence. The court also made clear that, because truthfulness was so central an issue to many criminal trials, it would be uncommon for convictions to be admitted to show a propensity to untruthfulness; they were for that reason not an important matter in issue in accordance with the provisions of gateway (d). The propensity to tell lies should only be relied upon where the telling of lies was an integral part of the crime. The court should concentrate rather on the evidence in relation to the commission of the offence.



The taking of an overdose did not amount to reprehensible behaviour (R v Hall-Chung 151 SJ 1020(CA)) and, in the context of a murder, shouting at a partner or young child, and aggressive but non-violent behaviour as a result of taking medication also did not amount to reprehensible conduct (R v Osbourne 2007, The Times, 24 April). The courts must always identify what is the matter in issue between the prosecution and defence. Thus, the use of similar language, as in an earlier conviction for indecent exposure, was neither here nor there where the only issue in the trial was whether there was an intent to do grievous bodily harm rather than a denial of involvement in the offence (R v Leaver 2006 EWCA Crim 2988). One isolated offence, even of the same kind, 20 years previously when the defendant was aged 28 was too slim a basis to suggest propensity. For a single offence to be relevant it would need to show special and distinctive features, such as a predilection for a highly unusual sexual activity or some archaic or highly specialised relevant knowledge (R v Michael Murphy 2007 Crim LR 637).



General guidance was given by the court in R v Tirnaveanu 2007 Crim LR 969. The court summarised the position as to the admissibility of previous conduct in the following ways:



- Was the evidence relevant to a matter in issue?

- Was it evidence of bad character under section 98 of the act?

- Was the evidence to do with the alleged facts of the offence? If so, the evidence was admissible without more ado. However, misconduct has to do with the alleged offence only when there is a sufficient connection in time with the crime in question;

- Was the evidence admissible under one of the gateways in section 101(1) of the act?

- Would the evidence have such an adverse affect on the fairness of the proceedings that it ought not to be admitted under sections 101 (3) or 78 of the Police and Criminal Evidence Act 1984?





False impressions

When in the police station a suspect asserts in an interview that he has never been involved in supplying drugs, a judge was entitled to admit evidence of an interview by Dutch police seven years earlier where the defendant admitted to such conduct (R v. Spartley 207 151 SJ 670). However, it must be noted that a false impression may be withdrawn by the defence under the provisions of section 105(3) of the 2003 act.





Hearsay

It will seldom be appropriate for clients in an interview at the police station to have any part in the discussion of the details of their previous convictions. However, the matter needs to be handled with care because if gateway (c) (important explanatory evidence) applies it may be necessary to take the more considered approach. R v Ainscough 2006 Crim LR 635 and R v Humphis 2005, The Times, 19 September, clearly established that criminal records cannot be used to establish the detail of the previous matters. The Crown will have to obtain witness evidence. However, in Wellington v DPP 171 JP497, the court held that the record on the police national computer that a person had particular aliases may be admitted as business documents under section 117 of the 2003 act. Court transcripts have also been admitted.



In McEwan v DPP 171 JP 308, it was held that it will require exceptional circumstances to use section 114(1) (d) (the interests of justice test) of the 2003 act to rescue a prosecution from failures by the Crown, including long delays and a failure to admit the evidence under section 116.



A diary note intended only to be seen by the writer was not a matter stated within section 115 of the 2003 act but could be admitted in appropriate cases as real evidence (R v N(K) 171 JP158).



The fact that the main or decisive evidence was from an unavailable witness did not necessarily render the trial unfair (R v Cole R v Keet 2007 EWCA Crim 1924), but this decision was on very particular facts and the defence is encouraged to argue by reference to the issues set out in section 114(2) of the 2003 act when there is likely to be an unfair trial should the defence not have the opportunity to test the main elements of the prosecution's case.