Our main story line has been quiet for some time but as we approach the trial in September, there are a few things of legal significance which are worthy of note. Helen has finally begun to open up about the coercive and controlling behaviour that Rob displayed. Anna (her barrister) is identifying character witnesses and witnesses of fact that may assist with Helen’s defence. Rob is slowly but surely manipulating Henry using sugar and electronics to colour Henry’s view and therefore his evidence.
Ian and Neil have agreed to provide character evidence for Helen. Character evidence is an important part of the defence case. Without this evidence, the jury’s view of the defendant, what type of person they are, whether they have committed offences before or show a propensity for the kind of behaviour that is alleged in the charge, is based solely on the prosecution evidence of the offence and therefore likely to be adverse to the defendant. Defendants tell me that the looks from the jury during the prosecution case which read ”seriously, how could you do that” are often the most painful parts of the process where they want to scream “I didn’t do it” but can’t.
The best kind of character evidence includes warts and all. It comes from someone who knows the defendant well and has seen him/her in a range of circumstances that are relevant to the issues in the case. The witness needs to explain how they know the defendant, in what circumstances and on what they base their view of the defendant’s character. A character witness cannot provide a defence, however, they make the defendant a more 3 dimensional character and the jury can begin to view the crown’s case through the lens of someone who knows the defendant well. A character referee who says “he is a saint; he would never do that” is less believable that one who says “based on my previous experience of the defendant in equally stressful situations, what is alleged does not ring true.
In addition to any character evidence the jury will be told if the defendant is a person of good character. That means, there are no convictions, cautions or other reprehensible behaviour recorded against them.
The judge is required, if asked, to give a good character direction. A direction is an instruction on the law, given by the trial judge, which the jury must follow. The good character direction (in fact most directions the judge might give during a criminal trial) can be found here.
While “good character” cannot amount to a defence, it is very important evidence because it says:
1. This defendant has never been found to be untruthful (in a material way); and so extra weight is given to their account/truthfulness as a result; and
2. This defendant does not have a demonstrable propensity (habit) of committing the type of offence alleged/behaving in the way alleged.
You can see that, under circumstances where the case for the prosecution and defence are equally plausible, adding a person’s good character should result in the presumption of innocence and standard of proof, tipping in favour of the defendant and an acquittal.
Any defence advocate who fails to adduce evidence of good character or ask for a good character direction is negligent and an appeal against conviction, on that basis, has a good chance of success, if the fact that the defendant was of good character might have had an impact on the jury’s decision.
Helen is a woman of good character in that she has no previous convictions. However, I would bet my mortgage that the prosecution case will include allegations of bad character. For instance, allegations of unpredictable behaviour, previous violence towards Rob, mental health issues and the incident with Henry and the hot bath.
While the prosecution must identify a gateway for the admission of this evidence, it is very easy for them to do so and the evidential threshold is quite low. There are limited opportunities for the defence to object to this sort of evidence being admitted in respect of a defendant. The court itself has little say once on the matter. While little objection can be made when the bad character amounts to similar fact evidence i.e. where the alleged crime/behaviour alleged in the charge is substantially the same as the behaviour that resulted in a previous conviction, often times bad character applications are remote and serve only to prejudice the jury against the defendant. On the other had adducing evidence of a non -defendant’s bad character e.g. Rob’s, is very difficult.
Non-defendant bad character
Shula has told Anna about a previous occasion where Rob has used unprovoked violence. This was during a hunt where Rob unleashed unprovoked violence on a hunt saboteur, beating him to a pulp. His behaviour is exactly the type of evidence that would help a jury view Helen’s action in perspective as opposed to an unprovoked attack on the seemingly mild mannered hero that Rob portrays himself to be. But, is it admissible? Since 2005 (as a result of the Criminal Justice Act 2003) it has become routine for the crown to rely on the bad character of the defendant. Evidence such as this is routinely admitted with few safeguards i.e. she/ he has behaved badly before and you can take that into account in assessing whether she/he has behaved badly now.
However, there are many more barriers to adducing bad character evidence of non-defendants such as Rob. For instance there are similar provisions relating the evidence of bad character for defendants and non-defendants under s101 (d) and 100 (1) (b) of the Criminal Justice Act 2003 respectively. For the evidence to be admissible against a defendant the crown simply have to articulate their view that the evidence is relevant to a matter in issue between the defendant and prosecution. Conversely, in order to adduce similar bad character evidence in respect of a witness, the defence must demonstrate substantial probative value in relation to a matter which is both in issue (between the defendant and the prosecution) and is of substantial importance in the context of the case as a whole. It is unclear why this demonstrably enhanced relevance test is applied to the defence but it seems clear, to me in any event, that this does not look like equality of arms.