In certain circumstances, evidence of a defendant’s bad character may be admitted in a criminal trial. The statutory regime is intended to produce an evidence-based conviction of the guilty, without putting those who are innocent at risk of conviction due to prejudice arising from the bad character evidence.
What is bad character evidence?
Section 98 of the Criminal Justice Act 2003 (CJA) defines bad character as ‘evidence of, or a disposition towards misconduct…’
In plain language, ‘bad character’ means evidence of misconduct, and/or evidence of a disposition towards misconduct, and/or evidence of a reputation for misconduct.
What is misconduct?
Misconduct is defined as either the commission of an offence or other reprehensible behaviour.
Evidence of the commission of an offence may constitute a previous conviction, another count on the indictment in relevant proceedings, an offence which was never prosecuted, or an offence for which the defendant was acquitted.
The courts must determine whether some conduct of the accused amounts to ‘other reprehensible behaviour’. The legal test, from R v Renda  1 Cr App R 24, is whether the conduct expressed ‘some element of culpability or blameworthiness’.
Evidence of bad character not covered by the CJA
Section 98 of the CJA, which contains the statutory definition of bad character, states that it does not include evidence that:
- Has to do with the alleged facts of the offence with which the defendant is charged; or
- is evidence of misconduct in connection with the investigation, or prosecution of that offence.
Where evidence of poor conduct falls into one of the exceptions above, its admissibility will be covered by reference to common law principles of relevance.
The ‘seven gateways’ of admissibility of the bad character evidence under the CJA
Section 101 of the CJA provides that in criminal proceedings, evidence of the defendant’s bad character is admissible if, but only if:
|1. All parties to the proceedings agree to the evidence being admissible (s.101(1)(a))|
|Bad character evidence will pass through this gateway where the defendant (and any co-defendant) and the prosecution agree to it being admitted. This gateway may be used by either the defence or the prosecution to adduce any bad character evidence of the defendant.|
|2. The evidence is adduced by the defendant himself or is given in answer to a question by him in cross-examination and intended to elicit it (s.101(1)(b))|
|Evidence can be admitted through this gateway either by the defendant as part of his case, or by the following cross-examination. If admitted through the latter route, it will only be admissible if the question asked was intended to elicit evidence of bad character. It follows that if a witness unexpectedly gives evidence of bad character, then it will not be admissible through this gateway.|
|3. It is important explanatory evidence (s.101(1)(c)|
|Evidence is ‘important explanatory evidence’, as per section 102 of the Act, if:Without it, the court or jury would find it impossible or difficult to properly understand other evidence in the case; andits value for understanding the case as a whole is substantial.The evidence must need to be adduced because it explains other evidence in the case, without which it would be difficult or impossible to understand that evidence. The evidence must only be used to explain other evidence in the case. It should not be admitted through this gateway if, for example, the evidence is used for another purpose.|
|4. It is relevant to an important matter in issue between the defendant and the prosecution (s.101(1)(d))|
|Only the prosecution can admit evidence of the defendant’s bad character through this gateway (unlike the gateways explored above). ‘Matters in issue’ relate to any evidence which goes to the defendant’s propensity to offend or propensity to tell the truth. ‘Important matter’, as defined by section 112(1) CJA, is a matter of substantial importance to the case as a whole.Evidence will only be admitted through this gateway where it is ‘relevant’ to one or more of the matters in issue. Bad character evidence may be relevant if it relates to the identity of the defendant, the elements of the relevant offence(s) and/or any available defences. The evidence adduced through this gateway must also have ‘substantial probative value’, which suggests that any evidence to be admitted through this gateway must pass a higher test of relevance.|
|5. It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant (s.101(1)(e))|
|Evidence of the defendant’s bad character can only be adduced by a co-defendant under s.101(1)(e).Such evidence must relate to an important matter in issue between the defendant and co-defendant. The matters in issue may include the facts in issue in the case, along with any issues relating to credibility. Where a ‘cut-throat’ defence is being put forward by the defendant, this will undoubtedly represent an important matter in issue. The evidence must have substantial probative value. There is no power to exclude evidence once it has been admitted through this gateway. This is the case even if this evidence is prejudicial to a co-defendant.|
|6. It is evidence to correct a false impression given by the defendant (s.101(1)(f))|
|Only the prosecution can adduce evidence through this gateway. Where it appears that the defendant seeks to give an impression or assertion about himself that is false or misleading, the court may treat him as having given a false impression.The legislation refers to ‘express or implied’ assertions. An implied assertion includes the conduct of the defendant, namely the way he acts, or looks, or his clothing. An express assertion could include a false assertion made by the defendant during a police interview that he has never been arrested before.A mere denial of the alleged offence cannot be treated as a false impression given by the defendant, and nor can unspecific and insubstantial remarks that do not amount to assertions of fact.A defendant is treated for the purposes of s.101(1)(f) as having made an assertion where the assertion is made:By the defendant in the proceedings;by the defendant upon being questioned under caution and before charge about the offence with which he is charged, and evidence of the assertion is given in the proceedings;by the defendant on being charged, and evidence of the assertion is given in the proceedings;by a defence witness;by a witness in cross-examination in response to a question asked by the defendant that was intended to elicit it (or was likely to do so); orby a person out of court, and the defendant adduces evidence of it in the proceedings.If a defendant withdraws an assertion or disassociates himself from it, he will not be treated as being responsible for the making of it. For evidence to be admissible through this gateway, it must be capable of rebutting the false impression given of the defendant.|
|7. The defendant has made an attack on another person’s character (s.101(1)(g))|
|Evidence of a defendant’s bad character may only be admitted through this gateway by the prosecution.A defendant makes an attack on another person’s character if:He adduces evidence attacking the other person’s character;he asks questions in cross-examination that are intended to elicit such evidence or are likely to do so; orevidence is given of an imputation about the other person made by the defendant:on being questioned under caution, before charge, about the offence with which he is charged; oron being charged with the offence, or officially informed that he might be prosecuted for it.Evidence ‘attacking the other person’s character’ means evidence that the other person has committed an offence, or has behaved (or is disposed to do so) in a reprehensible way. The purpose of s.101(1)(g) is to assist the jury in deciding whether that attack made by the defendant on another’s character should be believed.The court must not adduce evidence of the defendant’s misconduct under this gateway where it appears that the admission of it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (s.101(3)).|
If the relevant piece of bad character evidence can pass through one or more of the gateways, then it will be admissible in court. The court still has a discretion to exclude the evidence even if it passes through one of the gateways.
What is the propensity to offend?
‘Untruthful’ in this context does not mean ‘dishonest’. Previous convictions, whether for dishonesty offences or otherwise, are only likely to be capable of demonstrating a propensity to be untruthful where:
- The truthfulness of the defendant is an issue in the current case and in the prior case,
- the defendant gave an account which the jury must have disbelieved (because the defendant was convicted), or
- the manner in which the offence was committed demonstrates a propensity for untruthfulness (by making false representations, for example).
When can bad character evidence be excluded?
The statutory discretions to exclude bad character evidence:
- The court must not adduce evidence of the defendant’s bad character admitted under gateways (d) and (g) where it appears that the admission of it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (s.101(3));
- section 78 of PACE 1984 may be used to exclude any evidence which, if admitted, would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Section 78 can be used in relation to evidence admitted through any of the gateways.
The common law discretion to exclude:
- Evidence may also be excluded by the court by its common law discretion where the prejudicial effect of the evidence would outweigh its probative value. The common law discretion can be used in relation to evidence admitted through any of the gateways, apart from (e).
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