Bad character of defendants and non-defendants is governed by the statutory regime of CJA 2003, ss.98 – 113.
What is it?
This is evidence that a Defendant or other witness has either got previous convictions or behaved badly in the past and such a record is said to be relevant to the Jury such that they are told about it.
Prior to the 2003 Act such evidence was not generally admissible, however there were exceptions under the common law and with regard to the law of similar fact. This might be for example in a sexual case with multiple complainants where the Crown might have argued the circumstances of the allegations were so strikingly similar that they could not be explained away by mere coincidence.
In the early days following the enactment of the 2003 Criminal Justice Act the use of bad character evidence was rife but over the years a number of safeguards have been introduced.
No evidence is admissible unless it is relevant to the issues in the case;
For the purposes of determining the admissibility of bad character evidence, its relevance or probative value is on the assumption that it is true, but the Court need not assume it is true if it appears on the basis of any material before the court, that no court or jury could reasonably find it to be true: s.109
Once evidence of bad character, whether of a defendant or non-defendant, is admitted it may, depending on the facts be used by the jury for other purposes - which means once its in it can be used as the advocates decide to support the case.
In every case the judge, when identifying the purpose for which evidence may be used, should also identify any potential misuse of such evidence arising e.g., from prejudice, and warn against such use.
Where the apparent weight of evidence admitted under these provisions comes to be diminished in the light of other evidence, careful directions must be given to the jury to assist them in assessing weight and deciding whether or not there is real significance to the evidence. The Court has issued repeated guidance to Judges over the care under which such directions must be given.
Where evidence of D’s previous conviction/caution or sentence has been blurted out in error, so not admitted under any of the “gateways” in s.101, it will be usual, if the jury is not discharged, after considering the matter with the advocates to direct the jury that it has no relevance to the issues before them and to ignore it. It should not be assumed a trial will be stopped just because it is mentioned by a witness.
The issue of Bad Character can be quite complex, and care is required depending upon which section it falls under. Helpful assistance is given in to the Crown Court Compendium https://www.judiciary.uk/wp-content/uploads/2016/05/crown-court-compendium-pt1-legal-summaries-directions-examples-20160511.pdf
S101(1)(a) allows for evidence of bad character of a defendant to be admitted by agreement between all the parties. Agreement can be tacit
Section 101(1)(c) allows for the bad character evidence of D to be adduced by either the Crown or a co-accused where it is important explanatory evidence. There is no requirement for the prosecution to satisfy the interests of justice test under s.101(1)(3).
The gateway is a narrow one.340 S.102 provides that “Evidence is important explanatory evidence if (a) without it, the court or jury would find it impossible or difficult properly to understand the other evidence in the case, and (b) its value for understanding the evidence as a whole is substantial.”
S.101(1)(d) allows for evidence of D’s bad character to be admitted where it is relevant to an important matter in issue between D and the prosecution. One way in which a matter can be an important matter in issue between them is when the prosecution seeks to rely on the evidence of bad character to demonstrate a propensity to commit the offence - effectively that A Defendant has shown a willingness in the past to commit such offences .
But s.101(1)(d) is not restricted to the admissibility of propensity evidence. Evidence of bad character may be relevant to prove D’s presence or identity or to rebut coincidence, without engaging propensity.
Where evidence is admitted as propensity evidence there are four sub-gateways within s.101(1)(d):
(1) If it shows he has a propensity to commit “offences of the kind with which he is charged”: s.103(1)(a).
(2) The prosecution may use s.103(1)(a) to show that the defendant has a propensity to commit offences of the kind with which he is charged by showing he has previously committed an offence “of the same description” as this offence.
(3) The prosecution may use s.103(1)(a) to show that the defendant has a propensity to commit offences of the kind with which he is charged by showing he has previously committed an offence “of the same category”
(4) S.103(2)-(5): Evidence of the defendant’s bad character is admissible if it “shows he has a propensity to be untruthful”: s.103(1)(b).
In the leading case of Hanson the Court of Appeal offered general guidance on the questions to be addressed:
- Does the history of conviction(s) establish a propensity to commit offences of the kind charged?
- Does that propensity make it more likely that the defendant committed the offence charged?
- Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?
Bad character ought not to be adduced under s 101(1)(d) to bolster a weak case: R v Darnley351 R v McDonald352
Large numbers of convictions can be admitted under this gateway provided they are relevant to a matter in issue and the judge has considered the potential unfairness: R v Blake,
Incidents which have occurred since the incident which is currently the matter of trial may be admitted under s 101(1)(d): R v Adenusi;
CJA 2003, s.101(1)(e) allows D1 to adduce evidence of the bad character of D2 if that evidence has “substantial probative value in relation to an important matter in issue between” them - “cut-throat” defences.
The test for admissibility is quite different from that under s.101(1)(d), and there is no discretion to exclude the evidence if the conditions of s.101(1)(e) and s.104 are satisfied.
CJA 2003, s.101(1)(f) governs the admissibility of bad character evidence by the prosecution against D to correct a false impression D has sought to create in interview, under caution, or in evidence by D himself or by another at the invitation of the defence.
This is not about simply denying the offence as this will not trigger s.101(1)(f). Section 101(f) only applies if D has given a false impression: Rahim For the purposes of s.101(1)(f) the question whether the defendant has given a “false impression” about himself, and whether there is evidence which may properly serve to correct such a false impression within s.105(1)(a) and (b) is fact-specific .
The Court stressed in R v Adams  that such bad character applications are not simply a rubber stamping exercise and the procedure for making a bad character application needs to be properly followed and the basis upon which such bad character may assist a Jury must be properly explained to them.