Bad character evidence

Bad character evidence is evidence of, or a disposition towards misconduct; other than evidence which 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.{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=98}} Misconduct is defined as "the commission of an offence or other reprehensible behaviour".{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=112}}

Bad character in relation to the alleged facts of the offence itself has always been admissible for obvious reasons (and is excluded by the definition). The Act provides for different rules in relation to the bad character of defendants, and that of non-defendants. In assessing the probative value of evidence it is assumed to be true, unless there is material to suggest the contrary.{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=109}}

Admissible bad character evidence can include evidence of behaviour that has not led to a criminal conviction,{{cite book |title=Blackstone’s Criminal Practice 2025 |date=2024 |publisher=Oxford University Press |isbn=9780198924333 |editor1=Ormerod |editor-first=David |edition=35 |at=F13.9 |editor2=Perry |editor-first2=David}} and can include cases heard before foreign courts.{{Cite BAILII |litigants=R v Plaza|court=EWCA |division=Crim |year=2013 |num=501 |date=13 March 2013 }}

The Criminal Justice Act 2003 provides for seven statutory gateways for adducing bad character evidence of defendants:{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=98}}

1. (a) all parties to the proceedings agree to the evidence being admissible,
2. (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,
3. (c) it is important explanatory evidence,
4. (d) it is relevant to an important matter in issue between the defendant and the prosecution,
5. (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
6. (f) it is evidence to correct a false impression given by the defendant, or
7. (g) the defendant has made an attack on another person’s character.

For evidence to be considered "important explanatory evidence" under gateway (c), the "court or jury would find it impossible or difficult to understand other evidence in the case" if they were not able to consider it, and "its value for understanding the case as a whole is substantial".{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=102}}

Relevance to an "important matter in issue between the defendant and the prosecution" (under gateway (d)) can include the defendant's "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", and the defendant's "propensity to be untruthful". But it may also apply when it is relevant for reasons beyond propensity.{{Cite legislation UK|act=Criminal Justice Act 2003|chapter=44|year=2003|type=act|section=103}} For instance, if a defendant had stated they were reluctant to use a gun, a previous conviction involving the use of firearms may be considered an "important matter in issue" in the case.{{Cite BAILII |litigants=R v Lovell |court=EWCA |division=Crim |year=2018 |num=19 |date=18 January 2018 }}

The Criminal Justice Act does provide a specific provision for the exclusion of bad character evidence,[https://www.legislation.gov.uk/ukpga/2003/44/part/11 "Section 101(3)"] Criminal Justice Act 2003. Retrieved 16 May 2021. where it may be excluded if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Essentially, bad character evidence may be excluded on the grounds of unfairness.{{cite web|title=Welcome to CrimeLine Resources|url=https://www.dropbox.com/sh/nsbw9hjin377k52/d3RujSYekO|work=CrimeLine Resources|publisher=CrimeLine Training Limited|accessdate=5 August 2012|author=CrimeLine Training Limited|format=PDF|year=2011}}

The language of the Criminal Justice Act mirrors that of section 78 PACE 1984,[https://www.legislation.gov.uk/ukpga/1984/60/contents "Section 78"] Police and Criminal Evidence Act 1984. Retrieved 16 May 2021. with the difference of PACE stating that courts 'may' exclude evidence where its admission would be unfair, whilst the Criminal Justice Act states courts 'must' exclude such evidence. This may provide stronger protections for defendants where the language of the statute is imperative.

In addition to the statutory tests for exclusion of bad character evidence the power to exclude evidence under section 78 PACE 1984 Police and Criminal Evidence Act 1984 is not affected by the Criminal Justice Act 2003 provisions ([https://publications.parliament.uk/pa/ld200203/ldhansrd/vo031119/text/31119-17.htm#31119-17_time0 House of Lords, Hansard, 19 November 2003, Col. 1988]). Both provisions exist alongside one another.

Academic commentators have criticized the use of the phrase "reprehensible behaviour" in section 112 of the Criminal Justice Act 2003.{{Cite journal|last=Munday|first=Roderick|date=2005|title=What constitutes 'other reprehensible behaviour' under the bad character provisions of the Criminal Justice Act 2003|journal=Criminal Law Review|pages=24–43|via=Thomson Reuters}} This language has not featured in any UK statute law before,{{Cite journal|last=Goudkamp|first=James|date=2008|title=Bad character evidence and reprehensible behaviour|journal=International Journal of Evidence & Proof|volume=12|issue=2|pages=116–140|doi=10.1350/ijep.2008.12.2.116|s2cid=144129224|url=https://ro.uow.edu.au/cgi/viewcontent.cgi?article=1363&context=lawpapers|via=Thomson Reuters}} and as such its interpretation has led to some inconsistent case law, where courts are subjectively interpreting whether evidence qualifies as "reprehensible behaviour" without clear precedent.

This language was introduced into the Act as it progressed through Parliament, with the original Law Commission Paper instead proposing that a reasonable person test, commonly featured in law in England and Wales, be used.

• [https://publications.parliament.uk/pa/ld200203/ldhansrd/vo030915/text/30915-16.htm Hansard] 15 Sept 2003: Column 716
• [http://www.lawstudentforum.co.uk/evidence/4356-putting-bad-character-co-defendant-issue.html put character in issue]{{dead link|date=July 2017 |bot=InternetArchiveBot |fix-attempted=yes }} 15 Aug 2009 : Putting the bad character of a co-defendant in issue

Category:Evidence law

Category:English criminal law