#19555 - 12. Criminal Litigation 2023 2024 Character Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

What is not included as bad character evidence (s.98 CJA 2003):

• 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 is not bad character evidence.

  • Misconduct includes other reprehensible behaviour such as previous convictions, allegations by the defence of any improper behaviour by the police during the course of the investigation or any evidence suggesting guilt. This includes things which occur after the accused being charged.

  • The court should not permit a matter to be raised unless it is demonstrably relevant.

• Other evidence which does not constitute evidence of bad character but nevertheless shows the accused in a bad light may be admitted on normal principles of relevance. A bad character application is not needed.

• It does not appear that the CJA 2003, s. 98, conveys any necessary protection against the revelation of a mere charge unless the suggestion is that the accused committed the offence with which he or she was charged, so that the previous allegation becomes one of the commission of an offence. The mere fact that a previous allegation has been made, without supporting evidence, will not normally be relevant either to guilt or to the credibility of the accused as a witness. Where it is relevant, it may be admitted where the purpose is not to show bad character.

• Evidence of a previous acquittal is unlikely to be of relevance, except where it is contended that the accused committed the offence, in which case it is likely to be objectionable on grounds of unfairness.

Bad character gateways (s.101 CJA 2003):

• Evidence of bad character of an accused is admissible but only if it falls within a statutory gateway.

• You cannot convict wholly or mainly on evidence of bad character unless evidence amounts to a signature or ‘hallmark.’

Non-defendant:

• The creditworthiness of a witness is clearly capable of being a matter in issue of substantial importance in the context of the case as a whole. Evidence of bad character of that witness might qualify as being substantial probative value in relation to credit where:

  • Evidence that is relevant directly, as providing a reason for doubting the truth of the evidence of the witness in the particular case, and

  • evidence which is relevant only indirectly, as providing a general reason for Suggesting that the witness was a person not to be trusted.

• Where there is a conviction, the appropriate test to ask is whether evidence was 'reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief'.

Defendant:

Background to the offence:

• Where an offence is alleged it may be necessary to give evidence of the background against which the offence is committed, even though to do so will reveal facts showing the accused in a discreditable light. The bad character thus revealed is frequently incidental to the offence charged.

• Where evidence tendered as explanatory is also evidence of propensity, particular caution is required in applying gateway (c).

• Explanatory evidence once admitted may require a particularly careful direction.

Propensity:

• The steps which must be followed by the trial judge in determining the use which may be made of evidence of propensity consisting of convictions under s. 101(1)(d) were spelled out in detail in Hanson [2005]:

  • Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

  • If so, does the propensity make it more likely that the defendant committed the crime charged?

  • Where the convictions are for offences of the same category or description (s. 103(2)) is it unjust to rely on them (s. 103(3))? Where the propensity is proved by other means, as permitted by s. 103(1) and (2), is it unfair under s. 101(3) to admit the evidence?

• Propensity can be demonstrated by one previous event if sufficiently probative, as, for example, where the behaviour is 'strikingly similar'.

• In cases where a jury may have difficulty disentangling many events and convictions the relevance of the evidence, a careful direction will be needed.

• An important function of evidence of bad character is to identify the accused as the perpetrator of an offence. The connection may be arrived at via an inference from propensity or by any other relevant inference drawn under gateway (d): the process of reasoning will need to be reflected in the summing-up.

• Where evidence amounts to a signature or 'hallmark' and is directly relevant to the issue, the Crown Court Compendium, ch. 12-6, notes that the normal direction not to convict wholly or mainly on evidence of bad character would be inappropriate but stresses that this is likely to be a rare factual scenario.

Co-accused:

• Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence.

• Only evidence—

  • Which is to be (or has been) adduced by the co-defendant, or

  • Which a witness is to be invited to give (or has given) in cross-examination by the co-defendant,

Is admissible under section 101(1)(e).

• This restriction does not bite where the evidence of propensity is not directed to untruthfulness but to the issue of commission of the offence.

• The mere denial by a co-accused of participation in a crime does not meet the terms of s. 101 but, if it is a necessary implication of the denial that another accused has committed the offence, s. 101(1)(e) comes into play between them.

• Only defence evidence is admissible under this provision.

False impression:

• A defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant. His conduct includes his appearance or dress.

• The defendant is responsible for the assertion if it is made by the during the proceedings, on questioning under caution, on being being charged, made by a witness called by the defendant, made by the witness in XX, or the assertion was made by any person out of court and the defendant adduces evidence of it in the proceedings.

• Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.

• Evidence is admissible only if it goes no further than necessary to correct the false impression.

• An accused may withdraw or dissociate him or herself from an assertion which would otherwise merit the admission of bad character evidence in rebuttal

Multiple charges:

• Where the accused faces multiple charges in the same proceedings, the bad character provisions apply as if each was charged in separate proceedings, a statutory gateway must be used to facilitate cross-admissibility between charges.

• Where no application as to cross-admissibility is made, D is entitled to have the case decided on the ground that the evidence is inadmissible and the judge should direct the jury to that effect.

Acquittals:

• May be admitted under s.101(1)(d) as this is evidence of misconduct if the prosecution can show its relevance to an important issue. It remains open to the judge to exercise discretion to prevent the unfair use of such evidence.

• A co-accused may adduce evidence of an accused’s bad character where the conditions of the s.101(1)(e) are satisfied notwithstanding the latter’s acquittal.

Admissibility of Previous Verdicts and Finding, Proof of Convictions and Acquittals Generally:

• The PACE 1984, s. 73, provides for the proof of convictions and acquittals in the UK by a certificate of conviction or acquittal, together with proof that the person named in the certificate is the person whose conviction or acquittal is in issue. As to the latter issue, although it is for the judge to decide whether there is prima facie evidence fit for the jury's consideration, ultimately it is a question of fact for the jury to decide.

• The person (other than the accused) convicted of an offence in any...