Director of public prosecutions says mens sexual history should be allowed as evidence in court

I thought that whether good/bad character evidence can be included was argued out by the legal teams with the judge (not in front of the jury) and that it depended on the individual circumstances.

That's not the general rule in England and Wales. The general rule is that it isn't allowed but can be permitted by the trial judge in certain circa.

It's up to the judge to decide what is allowed in a particular case.

Which is why the Ched Evans trial was such a fiasco. The judge knew a bribe had been offered for testimony, but the jury didn't.

And the judge allowed details of the victim's sex life to be included on the basis of that testimony. Which the jury heard, without knowledge of the possible inducement.

I thought that whether good/bad character evidence can be included was argued out by the legal teams with the judge (not in front of the jury) and that it depended on the individual circumstances.

I think that's the right approach

The Secret Barrister had a twitter thread recently about this twitter.com/BarristerSecret/status/895185466844225536

She says that just because a prosecutor wants to do something doesn't mean it will happen. If the prosecution wants to tell a jury about a defendant's previous misdeeds, strict statutory criteria must be met. It's up to the judge to decide what is allowed in a particular case.

[from that link]

Bad Character of Defendants
Admissibility
There is a two stage test for admissibility:

1. The evidence must be admissible through one or more of the seven gateways set out in section 101 Criminal Justice Act 2003:

(a) all parties to the proceedings agree to the evidence being admissible;
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it;
(c) it is important explanatory evidence;
(d) it is relevant to an important matter in issue between the defendant and the prosecution, which includes:

whether the defendant has a propensity to commit offences of the kind with which he is charged, except where such propensity makes it no more likely that he is guilty of the offence(section 103(1)(a) Criminal Justice Act 2003);
whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect (section 103(1)(b) Criminal Justice Act 2003);
(e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;
(f) it is evidence to correct a false impression given by the defendant; or
(g) the defendant has made an attack on another person's character.

1. The evidence is admissible if it falls within section 101(1) (a) (b) (c) (e) and (f) Criminal Justice Act 2003. Where the evidence falls with section 101(d) or (g) it is admissible unless, on application by a defendant, it has such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

That link didn't work, but I think it was to this page: www.cps.gov.uk/legal/a_to_c/bad_character_evidence/

It looks v informative.

About time too.

I feel they should be able to reference whether the accused had a condom in his wallet or was wearing nice underwear, whether he limited the amount he drunk, whether he was bragging to his mates about sexual conquests. But that's problem going to far (treating him like a women).

FurryGiraffe that might be the case then, his defence was that he was a reformed character and had turned his life around so to speak. And also that he was an experienced burglar and wouldn't have been caught in the way he was.

Yeah, tricky to run that one without admission of bad character!

FurryGiraffe that might be the case then, his defence was that he was a reformed character and had turned his life around so to speak. And also that he was an experienced burglar and wouldn't have been caught in the way he was.

Just found this on the CPS site which might be relevant:

http://www.cps.gov.uk/legal/atooc/badcharacterrevidence/#admissibility

I'm not a lawyer, but I think the gist is that if it's relevant to the case it can be included, or if it's admitted by the defendant it can be included, for example.

So in my case the defendant actually had no convictions and no history with the police so there was nothing to bring to the trial. In stichglitched trial it sounds like the history of convictions was directly relevant and had been agreed by both sides to be included as information.

You can adduce bad character evidence in some circumstances. One is if facts relating to bad character form part of the defence: basically the defendant can waive their right to exclude. That might be the case for stitchglitched's scenario.

Once the jury have reached a verdict on the facts, the judge can take previous convictions into account in sentencing. That's absolutely standard and sounds as though that's what happened in the case assassinatedbeauty talks about.

I'm in the UK Datun. I was also on a sexual assault case during the same jury service and we found out the defendant had previous convictions for violence but I cannot remember if that came out after the verdict or before. We did find out after the verdict that he had previously pled guilty then changed his plea and done a runner!

But about if they interrogate the detective "how did you come to first look at the accused - he is a known burglar", not allowed?

AssassinatedBeauty and stitchglitched

Are you from different countries? That sounds extraordinary.

FurryGiraffe

It's the old 'if I had a cup of tea yesterday, it doesn't mean I want today', scenario.

Which is why dragging up a person's sex life is certainly disadvantageous to women. And I'd have to assume, could be for men in terms of being tried on the facts of the current case alone.

Which is why, as I said, if there is any attempt to use the sex life of the victim, all bets are off in terms of the accused.

When I did jury service we were told nothing about the defendant's background at all during the trial. Only once the verdict was given there was more information given about the defendant.

I did jury duty last year and we were told about a defendant's previous lengthy list of convictions for burglary (it was given to us on a sheet of 'agreed facts'). I was surprised as my only previous knowledge of trials was Law and Order where previous convictions are always deemed too prejudicial!

"It isn't true. The rules of evidence generally prevent evidence about 'bad character', though there are exceptions to this. But the basic principle is that a defendant is tried on the facts of the instant case (and not on the basis of allegations/previous convictions). "

Really? I didn't know. Seems like every court/cop show ever is wrong then.

In any other scenario in court they always talk about how the guy was a bad dude...

*Is that true?

I don't know how I feel about it- just makes me uneasy for the backlash.*

It isn't true. The rules of evidence generally prevent evidence about 'bad character', though there are exceptions to this. But the basic principle is that a defendant is tried on the facts of the instant case (and not on the basis of allegations/previous convictions).

However, rape is a very particular case, because defendants can (and do) in certain circumstances adduce evidence about the character of the complainant (in other words their sexual behaviour). Given this, there is an argument to be made I think in rape cases for 'equality of arms' if you like.

At the very least, if any part of the victim's life is used, the same should go for the accused.

Is that true?

I suppose it depends on the crime. Male violence against women means the man is lauded as such a nice man and oh, we don't want to ruin his future, et cetera.

But I can imagine that crimes associated with race and poverty, such as, I don't know, drug dealing? Petty theft? Might get another treatment.

Quite shocking it isn't already allowed. In any other scenario in court they always talk about how the guy was a bad dude, with a bad history, always getting trouble, etc. Reminds me of 12 Angry Men, brilliant movie.

They're judging the victim's character all the time, too.

So, only fair to also judge the accused man's character.