Hearsay and Bad Character 2020 Update

Speaker: Stefan Bisson
Chambers: Great James Street Chambers

R v. Twist – 3 Stage Approach
S. 114(1)(a) The CJA 2003 Act or any other statutory provision makes it admissible
CJA 2003 Statutory Gateways to Admissibility:-
s116 – unavailable witness
s117 – business documents
s119 – previous inconsistent statement
120 – previous consistent statement
Other – hidden statutory exceptions

Hearsay is inadmissible except in the following exceptions:
1. If there is a statutory provision
2. If there’s a common law rule under s118
3. By agreement of all parties
4. The court is satisfied it is in the interests of justice

Challenging Credibility s124
1. Statement maker’s credibility
2. Had the witness been cross-examined, their answer would have been final
3. Previous inconsistent statements/ contradictions

Previous Consistent Statements
1. To rebut an allegation of fabrication
2. Witness being cross examined on a memory-refreshing document
3. If the witness confirms they made a truthful statement

Section 118 Preserved common law exceptions
Res Gestae statements are broken down into three types:
1. Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
2. Statements accompanying an act which can only be properly evaluated in conjunction with the statement;
3. Statements relating to a physical or mental state.
Section 118 Preserved common law exceptions
R v Andrews (1987) 84 Cr App R 382 – the House of Lords said that the trial judge must ask whether the possibility of concoction or distortion can be disregarded.
Barnaby v DPP [2015] EWHC 232 (Admin)
Bad Character
s 28 CJA [2003]
“evidence of, or of a disposition towards, misconduct on his [a defendant’s] part”.
Misconduct is further defined in s112 as the commission of an offence or ‘other reprehensible behaviour’.
Commission of an offence
R v Smith [2006]
R v Ngyuen [2008
Reprehensible behaviour and Non-Reprehensible but Probative Behaviour
R v Weir and Others [2006]
R v Edwards (Stewart) et al [2006]
R v Lewis [1982] The definition includes ‘disposition’ towards misconduct, which will presumably extend to matters such as literature advocating paedophilic behaviour.
The Seven Gateways
s bad character is admissible, but only if:
S 102 provides that it can be admitted if without it, the court or jury would find it ‘impossible or difficult properly to understand other evidence in the case’ and its value for understanding the case as a whole is ‘substantial’.
(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
R v Osbourne [2007] the Court of Appeal held that, in the context of a brutal killing, the earlier verbal abuse was not important exculpatory evidence.
(d) It is relevant to an important matter in issue between the defendant and the prosecution,
The question is whether the defendant has a ‘propensity to commit offences of the kind with which he is charged’.
R v Freeman and Crawford [2009] the Court of Appeal stated that, although a jury could use other counts of indictment, pursuant to s 101(1)(d) without first being satisfied that any one of them had been proved.
(e) Substantial probative value to an important matter between co-defendants,
(f) to correct a false impression
(g) Defendant has attacked the character of another person

The Seven Gateways for Bad Character Evidence
A = Agree
B = Blabs
C = Context
D = Done it before
E = ‘E did it!
F = False Impression
G = Go after another witness
Jucial Discretion to Exclude Bad Character Evidence
Two stage process:

1. To determine whether the bad character evidence meets the ‘gateway’ criteria for admissibility.
2. Whether it should be excluded under 101(3) or s78 PACE 1984.
R v Hanson, Gilmore and Pickstone [2005]
O’Dowd
R v Chrysyostomou [2010]
R v Adenusi [2006]
Propensity in practice
R v Edwards and Others [2006]
R v Morgan [2009]
R v Mitchell [2016] UKSC 55.
You can contact Stefan Bisson via his clerks on
clerks @greatjamesstreetchambers.co.uk

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