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Bad Character Evidence

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Law

The admissibility of bad character evidence is set out in Sections 98 to 113 Criminal Justice Act 2003 (CJA 2003) which applies to all criminal proceedings begun on or after 4 April 2005 (section 141 Criminal Justice Act 2003), see Archbold Chapter 13. The common law rules governing the admissibility of bad character evidence are abolished (section 99(1) Criminal Justice Act 2003) with the exception of the following which are expressly preserved:

  • Any rule of law under which in criminal proceedings evidence of reputation is admissible for the purpose of proving good character, but only so far as it allows the court to treat such evidence as proving the matter concerned (section 9(2) and section 118(1) Criminal Justice Act 2003);
  • Evidence or cross examination about the complainant's sexual history in trials for sexual offences continues to be restricted  by section 41 Youth Justice and Criminal Evidence Act 1999 in addition to section 112(3) (b) Criminal Justice Act 2003 where the behaviour is also "bad character" evidence.  This means that in a trial for a sexual offence, to adduce evidence of a complainant's previous sexual behaviour which is also 'bad character' evidence, both tests will have to be satisfied.

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Definitions

"Bad character" in criminal proceedings means "evidence of or a disposition towards misconduct" (section 99 Criminal Justice Act 2003). Misconduct means the commission of an offence or other 'reprehensible conduct' (section 112 Criminal Justice Act 2003.) This definition applies to both defendants and non-defendants.

This definition is wide enough to apply to conduct arising out of a conviction, or conduct where there has been an acquittal (R v Z [2000] 2 AC 483) and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings.

"Reprehensible conduct" should be looked at objectively taking account of whether the public would regard such conduct as reprehensible such as racism, bullying, a bad disciplinary record at work for misconduct; a parent who has had a child taken into care and of course minor pilfering from employers. Conduct that should not be regarded as reprehensible could include consensual sexual activity between adults of the same sex. The term 'reprehensible conduct' will avoid arguments about whether or not conduct alleged against a person amounted to an offence where this has not resulted in a charge or conviction.

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Exclusions

Evidence of bad character expressly excludes:

  • evidence which has to do with the alleged facts of the offence with which the defendant is charged (section 98(a) Criminal Justice Act 2003); and
  • evidence of misconduct in connection with the investigation or prosecution of that offence (section 98(b) Criminal Justice Act 2003). Evidence of misconduct in connection with the investigation or prosecution of the charge such as: evidence of resisting arrest by running away to imply an acknowledgement of guilt remains admissible outside the hearsay provisions.

The key test of whether evidence is admissible where the two exceptions apply is relevance. If the evidence goes to an issue in the case and tends to prove one of the elements of the offence then it is relevant and admissible.

"Criminal proceedings" means "criminal proceedings in relation to which the strict rules of evidence" apply (section 134 Criminal Justice Act 2003) and includes:

  • A trial or Newton hearing (R v Bradley [2005] EWCA Crim 20);
  • A preparatory hearing, because when such a hearing is ordered, "the trial begins with that hearing" (section 30 Criminal Procedure and Investigation Act 1996 and R v H [2006] 1 Cr. App. R 4);
  • A hearing pursuant to section 4A Criminal Procedure (Insanity) Act 1964to determine whether the defendant did the act or made the omission charged (R v Chal [2007] EWCA Crim 2647);
  • Committal proceedings (CPS v City of London Magistrates' Court [2006] EWHC 1153 (Admin);

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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.

2. 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.

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Exclusion of Bad Character evidence

The court cannot exclude evidence of bad character of its own motion after the prosecution has served notice that it intends to adduce evidence of bad character.

The defence can apply to have the evidence excluded under section 101(3) where it is admissible under subsection (d) and subsection (g) (where the evidence is relevant to an issue in the case between the prosecution and the defendant or has become admissible because of the defendant's attack on another person).

In these two circumstances the court must not admit such evidence if it appears that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to admit it. In applying the test the court is directed to take account, in particular, of the amount of time that has elapsed since the previous events and the current charge. This is a stricter test than under section 78 Police and Criminal Evidence Act 1984 (PACE) which states that the court may refuse to admit the evidence, whereas section 101(3) states that the court must not admit the evidence if it would have such an adverse effect on the fairness of the proceedings.

The court has no power to exclude evidence of bad character which is admissible at the behest of a co defendant once it has passed the test in section 101(1)(e). In particular there is no power under section 101(3) or under section 78 PACE 1984 (R v Musone [2007] EWCA Crim 1237).

The power of the court to exclude evidence under section 78 PACE 1984 is preserved by section 112(3)(c) Criminal Justice Act 2003 which provides that:

"Nothing in this Chapter affects the exclusion of evidence on the grounds other than the fact that it is evidence of a person's bad character."

In practice section 78 PACE 1984 will have a very limited application:

  • It cannot apply where the defendant has agreed its admissibility or where the defendant has adduced the evidence himself (section 101(1)(a) and section 101(1)(b));
  • It may apply to circumstances set out in subsection (1)(c) and (1)(f), although as the definition of important explanatory evidence in subsection (1)(c) and evidence in subsection (1)(f) can only be given to the extent that it is necessary to correct the false impression, then it is likely only to apply in rare or extreme cases.

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Power of Court to discharge

Where the evidence of bad character is admitted under section 101 paragraphs (c) to (g) and proves to be so contaminated that any resulting conviction would be unsafe, the court may direct an acquittal or discharge the jury at any time after the close of the prosecution case - section 107 Criminal Justice Act 2003.

Key points:

  • Evidence is contaminated where it is false or misleading in any respect or is different from what it would otherwise have been e.g. it has been affected by an agreement with other witnesses or by hearing the views or evidence of other witnesses.
  • The power to discharge applies only in the Crown Court to a jury trial (section 107(1) or to a hearing pursuant to section 4A Criminal Procedure (Insanity) Act 1964 to determine whether the defendant did the act or made the omission charged (section 107(1)(b)).
  • Section 107 supplements the common law power of the judge to withdraw a case from the jury at any time after the close of the prosecution case, such as no case to answer. It confers a duty on the judge to stop the case if the contamination is such that considering the importance of the evidence to the case, a conviction would be unsafe(section 107(1)(b)). The case should not be stopped if a direction to the jury along the lines in R v H [1995] 2 AC 596 would be sufficient to deal with any potential difficulties.
  • If the case is stopped, the judge may consider that there is still sufficient uncontaminated evidence against the defendant to merit a retrial or that the prosecution case has been so weakened that the defendant should be acquitted (section 107(1)(b)(ii). If the judge orders acquittal, the defendant will be acquitted of any other offence for which he could have been convicted if the judge is satisfied that the contamination would affect a conviction for that offence in the same way (section 107(2)).

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Bad Character of Non-Defendants

"Non-defendants" are not defined in the Act but the term should include victims, whether or not they give evidence, the deceased in cases of homicide, witnesses, police officers who have been involved in the case, third parties who are not witnesses in the case and defence witnesses.

Evidence of bad character of non -defendants is admissible only through one of the three gateways in section 100 Criminal Justice Act 2003:

  • It is important explanatory evidence i.e. 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 (section 100(2) CJA 2003);
  • It has substantial probative value in relation to a matter which is both in issue in the proceedings and is of substantial importance in the context of the case as a whole. In assessing this value the court must have regard to the following factors: The nature and number of the events, or other things, to which the evidence relates;
  • When those things or events are alleged to have happened or existed;
  • The nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct where the evidence is evidence of a person's misconduct and it is suggested by the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct;
  • The extent to which the evidence shows or tends to show that the same person was responsible each time where the evidence is evidence of a persons misconduct and it is suggested that that person is also responsible for the misconduct charged and the identity of the person responsible for the misconduct charged is disputed;
  • Any other factors the court considers relevant;
  • All parties to the proceedings agree to the evidence being admissible. Prosecutors should only agree to admitting evidence of the bad character of a prosecution witness when one or both of the other gateways are satisfied or it is in the interests of justice to do so.

NB: The judge has no residual discretion to exclude evidence of a non-defendant's bad character once it is admissible.

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Policy

Prosecution Policy: Defendants

The 2003 Act starts from the position that the admission of a defendant's bad character that is relevant to the case should be admissible. The general exclusionary rule against the admission of previous misconduct and other bad character is abolished and replaced with provision that evidence is admissible when relevant to the issues in the case and sets out clearly when that will be so.

There is nothing in European case-law to suggest that admitting a defendant's bad character is contrary to a fair trial. In (X v Denmark Yearbook (1965) vol 8 p 370), the Strasbourg Commission said that, since many member states provide for disclosure of previous convictions in their criminal procedure, it was not prepared to hold that such a procedure was in violation of any provision of Article 6. See also (Unterpertinger v Austria [1991] 13 EHRR 175).

The provisions of the Act do not have the effect of reversing the burden of proof. They make evidence admissible against a defendant who was inadmissible before, and to that extent make it easier for the prosecution to discharge the burden of proving the defendant's guilt. This is not the same as requiring a defendant to prove his innocence: (R v Cowan [1996] QB 373).

The purpose of the bad character of defendants provisions is to assist in the evidence based conviction of the guilty without putting those who are not guilty at risk of conviction by prejudice. Prosecution applications to adduce evidence of a defendant's bad character should not be made routinely, simply because the defendant has previous convictions, but will be based on the particular circumstances of the case (R v Hanson, R v Gilmore, R v Pickstone [2005] EWCA Crim 824).

It will often be necessary to examine the facts of the individual conviction rather than merely looking at the name of the offence or the defendant's record as a whole. Old convictions with no special feature shared with the offence charged are unlikely to be relevant unless they show a continuing propensity.

Although there is no minimum number of events necessary to demonstrate a propensity to commit offences, the fewer the number of previous convictions the less likely the evidence of propensity. A single previous conviction is unlikely to show propensity unless it shows a tendency to unusual behaviour or where the particular circumstances demonstrate probative force in relation to the offence charged.

These factors also apply to reprehensible conduct but where allegations of prior misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete and the defendant may be prejudiced in challenging it.

Where reprehensible conduct is or is likely to be disputed, prosecutors should consider whether a successful application to admit that evidence is likely to complicate and lengthen the trial and to divert its focus from the events charged on the indictment. Where previous convictions provide sufficient evidence of bad character, prosecutors should not seek to adduce unproven allegations. However where the defendant is a serial offender, or where the facts of unproven allegations are strikingly similar, an application to adduce the evidence should be made.

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Prosecution Policy: Non-Defendants

The purpose of the bad character provisions for non defendants is to protect witnesses and victims from wide-ranging humiliating and irrelevant attacks on their credit; and ensures that clearly relevant evidence is admissible.

Prosecutors must not consent to the inclusion of evidence of a non-defendants bad character solely to save time or in exchange for defence consent to adduce evidence of the defendant's bad character. Different tests of admissibility apply for defendants and non-defendants and the test of admissibility for non-defendants is higher than for defendants.

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Procedure

Charging

The police should forward to the prosecutor details of a defendant's bad character including previous convictions, such as the facts of the previous convictions, the nature of any defences used in the previous cases, and whether the defendant pleaded guilty or was found guilty. This should be provided at the earliest opportunity and preferably at the pre-charge stage.

Prosecutors need to consider bad character evidence and the potential for admitting it at every review of the evidence. The MG3 should identify bad character evidence and any risks to admissibility, as part of the evidential stage of the Full Code Test in the Code for Crown Prosecutors. If the evidence taken as a whole (including bad character evidence) meets the tests set out in the Code then a prosecution will follow. Where the only evidence against a defendant is that of his bad character, the evidential test would not be satisfied and a prosecution must not take place.

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Case preparation

Bad character evidence is not evidence in the case unless and until it is admitted through one of the gateways set out in the Criminal Justice Act 2003.  There is a distinction to be drawn between evidence of bad character submitted in support of an application and evidence in the case.  The purpose of an application is to determine whether the evidence of bad character is to be evidence in the case against the defendant.

Rules of court have been made pursuant to section 111 Criminal Justice Act 2003 which require the service of notice where it is proposed to adduce evidence of bad character. The rules are contained in Part 35 Criminal Procedure Rules 2010 at http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/part_35.htm and the relevant forms can be found at www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/formspage.htm

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Proving Convictions and other reprehensible conduct

Convictions

A conviction may be proved against a witness who is cross examined about a previous conviction but denies or does not admit or refuses to answer (section 6 Criminal Procedure Act 1865).

Proof of a conviction in the UK is by production of a certificate of conviction together with proof that the person named in the certificate is the witness whose conviction is to be proved, (section 73 Police and Criminal Evidence Act 1984). If the defence do not agree the details of the bad character, then this will need to be proved in the normal way, such as, by a certificate of conviction, relying on section 74 of PACE 1984 or calling witnesses proving the bad character.

Prosecutors are reminded of their duty not to refer to spent convictions without the leave of the court. The Practice Direction (Criminal: Consolidated) [2002] 3 All ER 904 paragraph 6 Spent Convictions recommends that both court and advocates should give effect to the spirit of the Rehabilitation of Offenders Act 1974 by never referring to a spent conviction when such reference can reasonably be avoided (paragraph 6.4 of the Practice Direction). No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require (6.6 of the Practice Direction).

If the defence do not agree the details of the bad character, then this will need to be proved in the normal way, such as, by a certificate of conviction, relying on section 74 of PACE 1984 or calling witnesses proving the bad character.

Where the defendant challenges his conviction, prosecutors should follow the case management principles that follow from the judgment of the Lord Chief Justice in R v C [2010] EWCA Crim 2971, in particular that :

  1. It is essential that the defendant provides a detailed defence statement that identifies all the ingredients of the case that he will advance for the purposes of proving that he did not commit the offence he has been convicted of. A bare assertion that he did not commit the offence is inadequate.
  2. The prosecutor should consider the further defence statement and determine whether further admissions of fact should be drafted and are sufficient to deal with the defendant's denial of guilt.
  3. Witnesses to the original offence should not be called routinely. It would defeat the purpose of the statutory presumption of guilt if the prosecution were compelled to engage in satellite litigation to prove guilt.
  4. Prosecutors should consider the seriousness of the current offence and the weight that evidence of bad character carries in proving the case. Where there is a compelling case without the bad character evidence, careful consideration should be given to whether additional evidence of bad character is necessary. However  there is a stronger case for adducing evidence that shows both a propensity to commit the offence with which the defendant is charged and a modus operandi that is "strikingly similar".
  5. Prosecutors should always seek and carefully assess the views of victims and witnesses before deciding whether they should be called to give evidence again. Prosecutors should be mindful that any approach to victims and witnesses may disturb the sense of finality that the original trial provided. However it should not be assumed that all witnesses will be reluctant to testify. Some victims may be content to give their evidence for a second time as they want to further the public interest in bringing criminals to justice and may not feel the pressure of being on trial themselves that they experienced in the first trial.
  6. It is essential that all witnesses receive a high level of care and support and that applications for special measures are made where appropriate. Where the witness is unable or unwilling to give evidence, even with special measures, consideration should be given to whether the evidence can be adduced as an exception to the hearsay rule. See Hearsay guidance, elsewhere.
  7. Any conviction founding bad character evidence adduced by the Crown will be set out in a memorandum of conviction which will form part of the Crown's case. Applying usual case management principles, a defendant should indicate in advance whether they are intending to challenge the validity of the earlier conviction.
  8. When this occurs, tactical consideration should be given to the question of whether the witnesses to the "bad character" offence should be called before the end of the prosecution case, or whether the question should be raised with the judge of postponing the decision to call such witnesses until the end of the defence case. The advantage of the latter approach, which was endorsed as being appropriate in certain circumstances in the case of R v C, is that defendant may decide not to give evidence or he/she may be unconvincing in seeking to undermine the validity of the earlier conviction, in which case it may be felt to be unnecessary to call any witnesses to the "bad character" offence. The views of the trial advocate, reviewing lawyer, and the officer in the case should all be considered before a decision is taken.

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Cautions

The defendant may challenge an admission contained in the caution but must give notice under CPR 35.3(4)(b) 2010. The court must carefully consider its power to exclude that evidence under section 101(3) Criminal Justice Act 2003 where the prosecution seeks to rely on that evidence likely to have a significant impact on the trial. There is a significant difference between a conviction and a caution, and also between an admission contained in a caution without legal advice and an admission made after legal advice or before the court by a plea (R v Olu and Ors [2010] EWCA Crim 2975).

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Penalty Notices for Disorder (PND)

A PND is quite distinct from a caution, where a person acknowledges that he has committed a crime. The issue or payment of a PND is neither an admission of guilt nor any proof that a crime has been committed. Evidence of the issue of a PND is inadmissible as evidence of bad character (R v Homer [2010] EWCA Crim 2053).

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CRIS Reports

A CRIS report containing a complaint made to the police by a person who was not prepared to support it and which remained unproven is most unlikely to have substantial probative value, and for the most part has no probative value at all (R v Braithwaite [2010]  EWCA Crim 1082).

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Acquittals

Evidence of complainants in respect of whose complaints the defendant has been acquitted are admissible if relevant to the question of whether the defendant is guilty of the offence with which he is currently charged e.g. where the complainants give similar fact evidence which, if accepted by the jury, have a direct bearing on the current charge: R v Z [2000] UKHL 68.

Defendants: convictions and reprehensible conduct

The prosecution should always seek to prove bad character by asking the defence to make an admission under section 10 Criminal Justice Act 1967. A summary of the facts of the case should also be agreed.

Section 74(2) and (3) of PACE as amended by Part 5 of Schedule 37 of the Criminal Justice Act 2003 Act effectively state that where a person's conviction is proved, he is to be taken to have committed the offence of which he was convicted unless he proves that he did not commit the offence. The burden of proof is on the person seeking to show that the original court's finding was wrong.

Prosecutors are reminded of the guidance given by the LCJ in R v Humphris [2005] EWCA Crim 2030. It is important to determine whether any evidence other than the actual previous conviction is necessary as evidence of bad character. Where additional evidence is necessary it should be made available and will usually consist of a single witness statement.

There is a general issue in relation to the volume of material provided in support of bad character applications. It is inappropriate to serve evidence that is still subject to a determination by the court, by way of a notice of additional evidence. To do so may lead to the inappropriate service of material; only relevant material should accompany the application.

Any papers that are provided in support of the application do not become evidence in the case until the determination of the application. The inappropriate service of bad character material under a NAE has cost implications in cases being managed under the Graduated Fee Scheme (GFS), not only for CPS but also for legal aid.

The GFS is a formulaic scheme. The graduated fee is made up of a Base Fee (based on the type of main hearing, the Advocate type and the type of offence), together with separate payments for the number of pages of evidence and the number of prosecution witnesses served in the case. In general terms, for a page to be counted for payment, it must have been served by the prosecution with the original committal/send bundle or with a formal written notice of additional evidence. The more pages that are counted for payment, the higher the fee will be.

The Graduated Fee formula is designed to reflect the nature, complexity and weight of the case. All preparatory work carried out by the advocate, in terms of reading the papers in the case, any contact with defence representatives, the provision and preparation of written and oral advice, the preparation and drafting of written submissions, notices or other documents for use at the main hearing, researching the law and viewing unused material, is assumed in the Graduated Fee.

Any application by the defence to have bad character material formally served under a NAE purely to facilitate the inclusion of those pages in the PPE (pages of prosecution evidence) figure should be strongly resisted by the prosecuting advocate. However, if an order is made to serve the bad character material under a NAE, the CPS should comply with it. Once the material has been served under a NAE, it should be counted in the number of pages when calculating the Graduated Fee.

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Non-Defendants: Convictions and reprehensible conduct

Where the prosecution is aware that a prosecution witness has previous convictions or cautions, that information should be disclosed to the defence according to the principles set out in the Criminal Procedure and Investigations Act 1996 (CPIA 1996) and the CPS legal guidance on disclosure. See Disclosure of Previous Convictions of Prosecution Witnesses elsewhere in the Legal Guidance.

The Criminal Justice Act 2003 imposes no additional duty of disclosure upon the prosecution. The police are not required to make speculative enquiries as to whether witnesses have previous reprehensible behaviour. However, if during the investigation, information about witnesses reprehensible conduct is discovered, this should be disclosed because it goes to the credit of a witness and falls within the disclosure test.

The CPS is also under a duty to disclose to the defence information about police officers who are witnesses that might undermine the prosecution case or that might reasonably assist a defence. It does not matter whether the officers are called as witnesses, their statements are read to the court or their statements are unused material.

The defence should be reminded that the convictions may be used only for the purposes of the case and use in any other way may result in a contempt of court: (Taylor v the Director of the Serious Fraud Office [1998] 3 W.L.R 1040). The confidentiality of information disclosed under the CPIA 1996 is protected by sections 17 and 18 CPIA 1996.

Section 100 applies where the prosecution want to adduce bad character evidence of a defence witness. The Rules allow the prosecution to make an application at trial when the names of defence witnesses are not known in advance. Prosecutors should be mindful of the rights and interests of witnesses and third parties and the need to protect them from embarrassing public disclosure of their bad character where the 'enhanced relevance test' is not met.

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Seven Gateways of Admissibility

Sections 102 and 106 expand on five of the seven circumstances where evidence of the defendant's bad character is admissible. Section 101(1) (a) and (b) are not further defined in the Act.

Agreement of the parties section 101(1)(a)

Waiver by the defendant section 101(1)(b)

The defendant can adduce his own bad character if he decides it would be helpful to do so such as raising an alibi that he was in prison at the time the offence was committed or that his own character while bad, is less likely to indicate guilt than that of another person.

Key points:

  • There is no statutory discretion to exclude evidence;
  • A defendant may lead evidence of his bad character, if he chooses, and whether or not the co-defendant agrees;
  • Evidence is inadmissible if the defendant did not intend to elicit the evidence, such as an unsolicited disclosure by a witness of a defendant's bad character or evidence of bad character elicited in cross-examination due to a carelessly framed question.

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Important explanatory evidence section 101(1)(c)

Section 102 defines "important explanatory evidence" as evidence which, 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.

Key points:

  • The definition of important explanatory evidence is the same as in section 100(2) when dealing with non-defendant's bad character;
    Bad character evidence that is comprehensible without additional explanatory evidence is inadmissible. In R v Saint [2010] EWCA Crim 192 the defendant was charged with rape and associated offences that occurred in a car park at night. The prosecution adduced evidence under section 101(c) that the defendant wore camouflage clothing, face paint and night vision goggles when visiting car parks at night to further his interest in "dogging". CA held that evidence of the defendant's nocturnal activities was not important explanatory evidence without which the jury would find it impossible or difficult to understand other evidence;
  • The prosecution does not require leave before evidence can be admitted but notice will have to be given by the prosecution to adduce such evidence. However, there may be arguments on whether the evidence meets the threshold test.

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Relevant to an important matter in issue between the defendant and the prosecution section 101(1)(d)

Evidence of previous misconduct that has relevance to an issue in the case should be admitted to give courts and juries the fullest possible relevant information for them to determine guilt or innocence.

Key Points:

  • Facts in issue are those necessary by law to establish the offence or defence. Facts relevant to an issue are those which tend directly or indirectly to prove or disprove a matter in issue;
  • Relevance to an important matter in issue" means 'a matter of substantial importance in the context of the case as a whole' (section 112). "Substantial" means more than minor or trivial as in non-defendants bad character above;
  • If the evidence is relevant to an issue in the case, it passes the threshold for admissibility. There is no requirement for the evidence to have any 'substantial probative value';
  • Section 101(d) should be read in conjunction with section 103 when deciding what is a " matter in issue", which includes but is not restricted to:
    • Whether a defendant has a propensity to commit offences of the kind with which he is charged except where his having such a propensity makes it no more likely that he is guilty of the offence (section 103(a));
    • Whether a 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(b)). 
    Propensity to commit offences of the kind with which he is charged section 103(1)(a)

    The defendant may have a propensity to commit crime if he has a desire to commit a particular crime, such as paedophilia. Proof of propensity is not limited to commission of the same kind of offences but could include any evidence that made it more likely the defendant had behaved as charged. Evidence that a defendant had viewed child pornography was capable of being adduced in evidence at trial for sexual assault on a child under section 101(1)(d) of the Criminal Justice Act 2003 to demonstrate a propensity for offences involving the sexual abuse of children ,but was not automatically admissible. Evidence of possession was not evidence of committing sexual abuse or assault but related to an important matter in issue between the defendant and the Crown. To show a sexual interest in children made it more likely that the allegation of a child complainant was true rather than incidentally made against someone who was unlikely to behave as alleged. (R v D (N); R v P (A); R v U (S) [2011] EWCA Crim 1474).

    Key Points:

    • Where there is no dispute about the facts of the case and the question is whether those facts constitute an offence e.g. on a charge of possession of drugs whether a particular drug was controlled or not, evidence of propensity will not be admissible as having such a propensity makes it no more likely that he is guilty of the offence (section 103(3)).
    • Propensity may be established, without prejudice to any other way of doing so, by evidence that the defendant has been convicted of:
      • an offence of the same description as the one with which he is charged, i.e. where the statement of offence in a written charge or indictment is in the same terms i.e. the same offence (section 103(2)(a)); or
      • an offence of the same category as prescribed by the Secretary of State (section 103 (2)). The Secretary of State has prescribed two categories - theft offences and sexual offences on persons under 16 (The Criminal Justice Act 2003 (Categories of Offences) Order 2004, SI 2004 No. 3346) (section 103(2)(b)).

    NB: The absence of categories for other types of offending does not prevent previous convictions from being admitted if they demonstrate a propensity to commit offences of the same kind. Evidence of such convictions will be admissible under the main provisions of the Act, provided those convictions are relevant and probative.

     

  • Evidence of propensity should not be admitted if due to the length of time since the conviction, or for any other reason, the court is satisfied it would be unjust to admit it. The term 'any other reason' is not defined, but it is wide enough to include the nature and extent of the similarities and the dissimilarities between each of the instances of misconduct. (section 103(3)). The court would regard as unjust the admission of the bad character evidence that has such an adverse effect on the fairness of the proceedings that the court ought not to admit it (the test in section 101(3)).
Propensity to be untruthful section 103(1)(b)

In the majority of contested cases, whether the defendant is telling the truth or whether the defence is true is itself an issue in the case. Propensity becomes admissible to prove untruthfulness, provided that the prosecution contends that the defendant's case is untruthful in some respect.

The types of previous convictions, which may show a propensity to be untruthful, include convictions for perjury, perverting the course of justice (depending on the facts of the case), fraud, deception and other dishonesty offences. Offences that do not involve any element of fraud, dishonesty or deception are not evidence of propensity.

If the defendant's explanation is so similar to that advanced by him on a previous occasion, then it is unlikely to be true. D is accused of robbing a mini-cab driver at knifepoint but claims that he entered the cab only after the robbery had taken place. Where this was an almost identical defence to the one he had raised in another and very similar robbery trial, this will be admissible (subject to the discretion to exclude) (R v Reid [1989] Crim L. R. 719).

Bad character will not be admissible under (section 103(1)(b)) where it is not suggested that the defendant's case is untruthful in any respect, for example, where the defendant and prosecution are agreed on the facts and the question is whether all the elements of the offence have been made out.

Prosecutors should note that a defendant would always be in jeopardy where he or she has given a previous unsuccessful defence (pleaded not guilty and was convicted). Therefore it is important for prosecutors to obtain as much information about the defendant's bad character as possible, such as details of the offence, whether it was a plea of guilty or a conviction and what was the nature of the defence.

NB: Section 103(3) only applies to a propensity to commit a crime; evidence of a propensity to be untruthful is subject to section 101(3).

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Matter in issue between the defendant and a co-defendant section 101(1)(e)

This section applies in cases where there is "cut-throat" defence i.e. where two defendants are charged and their defence is that the other was responsible.

Key points:

  • Evidence of a defendant's bad character is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant;
  • There is no power to exclude the evidence  under section 101(3) or under section 78 Police and Criminal Evidence Act 1984 once the admissibility threshold has been met (R v Musone [2007] EWCA Crim 1237);
  • The power to admit bad character evidence is restricted to evidence either adduced by the co-defendant, or which the co-defendant needs to elicit in cross-examination. Only a co-defendant and not the prosecution can adduce evidence of a defendant's bad character (section 104(2));
  • Where the matter in issue is a propensity to be untruthful, the evidence is only admissible if the nature and conduct of the co defendant's defence is such as to undermine that of the defendant (section 104(1)).

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Evidence to correct a false impression section 101(1)(f)

If the court is satisfied that the defendant is responsible for making an express or implied assertion which is apt to give the court a false or misleading impression about him, then evidence of his bad character will be admissible.

Key points:

  • A defendant is 'responsible' for such an assertion for the assertions that he or she makes during the proceedings but not necessarily whilst giving evidence (section 105(2)(a)), when being questioned after caution (section 105(2)(b)(i)), and on being charged (section 105(2)(b)(ii));
  • A defendant can also be responsible for assertions made by other people, including a defence witness who makes an assertion during cross examination and the court is satisfied that it was the defendant's intention to elicit such a response from the witness (section 105(2)(c)) or the question was likely to do so (section 105(2)(d)), and an assertion is made by any person out of court and the defendant adduces evidence of it in the proceedings (section 105(2)(e));
  • A defendant is not responsible for an assertion if he either withdraws or disassociates himself from it (section 105(3)). The Act is silent on withdrawal and dissociation but the court may give a warning to a defendant of the consequences of not withdrawing or disassociating himself from the assertion but such a warning is not obligatory;
  • Warnings are particularly important in summary proceedings where the defendant is unrepresented. In such a case, the clerk and the prosecutor should give a warning to the defendant in the absence of the magistrates. Prosecutors should therefore ask the bench to rise briefly in order for this to be done;
  • A false impression can be created by conduct other than the giving of evidence (section 105(4)). For example a defendant with bad character who attends trial dressed as a priest may constitute the giving of a false impression that he is a man of good character;
  • Evidence of bad character can only be introduced by the prosecution (section 105(7)) and can only go as far as it is necessary to correct the false impression given (section 105(6)).

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Attack on another person's bad character section 101(1)(g)

This is defined as evidence to the effect that the other person has committed an offence or has behaved, or is disposed to behave, in a reprehensible way (section 106(2)) and occurs in one of three ways:

  • The defendant adduces evidence attacking the other person's character (section 106(1)(a));
  • He (or his legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence or are likely to do so (section 106(1)(b)); or
  • The defendant imputes the other person's character when questioned under caution or on being charged or officially informed he may be prosecuted (section 106(1)(c)). This means that it will be important that the police include such an attack in the record of taped interview.

Key points:

  • The person whose character is attacked does not need to be a witness in the proceedings, or a deceased victim, or a person whose hearsay statement is admitted in evidence, or even a named person;
  • There is no requirement that the character attack should be untrue or unfounded. This prevents the court from determining collateral issues of the truth or otherwise of the defendants allegations;
  • Where the court determines that an attack has taken place evidence of the defendant's bad character becomes admissible (but only by the prosecution, section 106(3));
  • Bad character evidence is admissible against a defendant whether or not the defendant chooses to give evidence. Although evidence will primarily go to an issue of credit may also be relevant to the issue of guilt.
     Evidence is subject to the court's discretion to exclude under section 101(3).

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Offences committed by a defendant when a child: section 108

Section 16(2) of the Children and Young Persons Act 1963 prohibits any reference in criminal proceedings to any offence in respect which the defendant aged 21 or over was convicted while under the age of 14.

This absolute bar is lifted where:

  • the previous conviction and the present charge are offences triable only on indictment, and 
  • the court is satisfied that it is in the interests of justice to admit such evidence.

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Assumption of the truth: section 109

Section 109(1) places on a statutory basis the general practice of the courts to assume that the relevance of the evidence or its probative value in relation to its admission is true solely for the purpose of determining the admissibility issue.

However, the court need not assume that the evidence is true if it appears to the court, on the basis of the material before it, or of any evidence it hears, that no court or jury could reasonably find it to be true (section 109(2)).

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Court's duty to give reasons: section 110

The court must state its reasons in open court where it:

  • rules that evidence is evidence of a person's bad character;
  • makes a ruling under sections 100 and 101;or 
  • stops the case because the evidence is contaminated.

Where the ruling relates to the magistrates' court, the ruling and the reasons for it must be entered into the court's register.

Annex A - Admissibility Process

Admissibility of Bad Character Evidence

Questions 1 to 4 relate to the nature of the evidence

1. (Section 98) - Is the evidence in question of bad character - i.e. does it show, or tend to show that a person:

a) Has committed an offence?
b) Has engaged in other reprehensive behaviour?

Yes - Go to question 2
No - These rules do not apply

2. (Section 98(a)) - Does it have to do with the alleged facts of the offence charged?

Yes - Admissible
No - Go to question 3

3. (Section 98(b)) - Is it evidence of misconduct in connection with investigation or prosecution of the offences charged?

Yes - Admissible
No - Go to question 4

4. (Section 100(1)(c) and (Section 101(1)(a)) - Do all the parties agree to its admission?

Yes - Admissible
No - Go to question 5

Question 5 concerns to whom the bad character relates

5. Is it evidence of the bad character of a defendant in the case?

Yes - Go to question 8
No - Go to question 6

Questions 6 and 7 relates to Non-Defendant evidence

6. (Section 100(1)(a)) - Is it important explanatory evidence?

Yes - Admissible with leave
No - Go to question 7

7. (Section 100(1)(b)) - Does it have substantial probative value in relation to a matter in issue, which is of substantial importance in the context of the case as a whole?

Yes - Admissible with leave
No - Inadmissible

Questions 8 to 14 relate to Defendant evidence

8. (Section 101(1)(b)) - Is it evidence of the bad character of a defendant that the defendant seeks to adduce himself or herself?

Yes - Admissible
No - Go to question 9

9. (Section 101(1)(c)) - Is it important explanatory evidence?

Yes - Admissible
No - Go to question 10

10. (Section 101(1)) - Is it the prosecution that seeks to adduce it, or a co-defendant?

The co-defendant - Go to question 11
The prosecution - Go to question 12

11. Does the evidence have substantial value in relation to a matter of substantial importance in the case?

Yes - Admissible
No - Inadmissible

12. (Section 101(1)(d)) - Is it relevant to a matter of substantial importance in the context of the case as a whole?

Yes - Admissible, but if defendant applies to exclude it, the court must not admit it if it appears to the court that the admission of the evidence would have such an adverse effect on fairness of the proceedings that the court ought not to admit it. (Section 101(3))
No - Go to question 13

13. (Section 101(1)(g)) - Has the defendant made an attack on another person's character?

Yes - Admissible, but if defendant applies to exclude it, the court must not admit it if it appears to the court that the admission of the evidence would have such an adverse effect on fairness of the proceedings that the court ought not to admit it. (Section 101(3))
No - Go to question 14

14. (Section 101(1)) - Is it evidence to correct a false impression given by the defendant?

Yes - Admissible only if it goes no further than necessary to correct the false impression. (Section105(6))
No - Inadmissible 

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