Crim. Evidence Character

The Criminal Justice (Evidence) (Northern Ireland) Order 2004 amends the law on the admissibility of evidence of bad character, hearsay evidence, evidence by way of video recording in criminal proceedings, and the use of documents to refresh memory.

Evidence of bad character is evidence of, or a disposition to misconduct. It does not include evidence regarding the alleged facts of the case or misconduct in connection with the investigation or prosecution of the offence.

The legislation abolishes the common law rules on the admissibility of character evidence. This does not extend to the principle that a person’s bad character may be proved by their reputation. This is admissible hearsay and may be proved in accordance with the legislation.

The legislation sets out circumstances outside the alleged facts of the offence and its investigation and prosecution on which evidence can be given of misconduct of a person other than the defendant in proceedings. This may be a witness, a victim, or other.

Where a prosecution and defence agree that evidence should be admitted, leave is not required. In other cases, evidence of bad character may not be given without leave of the court. It must, in all cases, be important explanatory evidence or of substantial probative value for a matter in issue that is one of substantial importance to the case or be that the prosecution and defence believe that the evidence should be admitted.

Evidence of the defendant’s bad character may be admissible in the following cases:

• All parties so agree.
• The defendant introduced the evidence himself or it is given in response to a question put by the defendant or his counsel that he has intended to elicit it.
• It is important explanatory evidence.
• It is relevant to an important matter in issue between the defendant and prosecution.
• It has substantial probative value in relation to an important issue between the defendant and co-defendant.
• It corrects a false impression given by the defendant himself.
• The defendant has attacked the character of another.

Where evidence has substantial probative value in relation to an important issue between a defendant and co-defendant or where the defendant has attacked another person’s character, the admissibility of evidence is subject to an application by the defendant to have the evidence excluded, even admitting it would have an adverse effect on the fairness of the trial that it ought to be excluded.

The matter in issue between the defendant and the prosecution includes questions as to whether the defendant had a propensity to commit offences of the kind with which he is charged or a propensity to be untruthful.

Where the defendant in an in the co-defendant’s defence, the co-defendant may attack the defendant’s character in relation to his propensity to untruthfulness.

A defendant’s character may be impugned if it is relevant to an important issue in the case or if he has acted, or has behaved, in a reprehensible way. A suggestion that a witness is mistaken does not intend it to reduce this proposition. Where a defendant has attacked another person’s character, his own bad character becomes admissible.

Where bad character evidence is admitted, but it later emerges that it is contaminated in the sense of being affected by an agreement with other witnesses or by hearing the views or evidence of other witnesses so that it is false or misleading, the following applies:

• The judge may withdraw the case from the jury at any time following the close of the prosecution case, and there is a duty on the judge to stop the case if the contamination is such, considering the importance of the evidence, that a conviction would be unsafe for the judges. In this case, he may consider whether there is still sufficient uncontaminated evidence against the defendant to merit a retrial and may consider that the prosecution case has been so weak that the defence should be acquitted.

Offences committed by the accused on a juvenile are admissible in principle. However, they may only be admitted where both of the offences are triable on indictment, and the court is satisfied that the interests of justice require the evidence to be admissible.

A court, when considering the relevance of the probative value of bad character evidence, is to assume it is true. In exceptional cases, where the evidence is so unreliable that no reasonable jury could believe it, the judge does not have to assume the evidence is true.

A judge must give reasons for their ruling under the provision. They must be given in open court. In the magistrates’ court, they must be entered into the order book, and a record must be kept.

Rules of court may be made requiring the prosecution and codefendant to give notice of their intention to adduce evidence of bad character. This is a requirement in relation to prosecution evidence. A failure to give notice may also be taken into account in the exercise of costs.