Bad character is evidence that your client has been involved in bad behaviour on a previous occasion or occasions. It can be used to establish that your client has a propensity to commit the offence that he is charged with or to undermine the defendant’s claims that they are an honest person. How and when it can be admitted is subject to rules under the Criminal Justice Act 2003.
The admissibility of bad character evidence in criminal proceedings is governed by Part 11 Criminal Justice Act 2003 (Sections 98 -113), section 99 of which abolished the existing common law rules. The only qualification to the abolition of the common law rules is in section 99(2) which, for the purposes of bad character evidence, allows for proof of a person’s bad character by the calling of evidence as to his reputation.
“Bad character” evidence is defined in section 98 of the Act which provides that:
“References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or of a disposition towards, misconduct on his part, 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”.
“Misconduct’ is defined in section 112 of the Act as “the commission of an offence or of other reprehensible behaviour”.
What is capable of constituting reprehensible behaviour will be fact specific and has been held to include;
Drinking to excess and taking illegal drugs – R v M [2014] EWCA Crim 1457
Membership of a violent gang – R v Lewis [2014] EWCA Crim 48
‘Criminal proceedings’ are defined in section 112 as ‘criminal proceedings to which the strict rules of evidence apply’
Bad character evidence is only admitted under particular gateways. These gateways are contained in section 101 of the Criminal Justice Act of 2003. This section reads as follows:
In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if—
(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,
(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.
The possible examples under each section are obviously extremely varied. Whereas under the common law the premise was that evidence of bad character was inadmissible save for where the evidence was admissible as similar fact in accordance with the test in DPP v P [1991] 2 A.C. 447 and the limited instances permitted by the Criminal Evidence Act 1898, the 2003 Act presumes that all relevant evidence will be admissible, even if it is evidence of bad character, subject to the discretion of the court to exclude in cases where the prosecution seek to adduce the evidence.
Evidence of bad character is admissible where it is relevant to an important matter in issue between the prosecution and the defence and can be used, for example, to rebut the suggestion of coincidence (see R v Howe [2017] EWCA Crim 2400 – evidence of previous convictions for burglary probative of the identification of the accused on a charge of burglary) or to rebut a defence of innocent association (see R v Cambridge [2011] EWCA Crim 2009 – on a charge of possessing a firearm with intent to endanger life, evidence of a previous incident in which the accused had discarded an imitation firearm and for which he had received a formal warning was admissible to rebut the explanation proffered by the accused for his fingerprints being found on the outside and the inside of the bag in which the firearm the subject of the present charge was found).
Section 103(1) provides that ‘matters in issue’ between the defendant and the prosecution include –
- the question whether the 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;
- the question 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.
Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of
- an offence of the same description as the one with which he is charged, or
- an offence of the same category as the one with which he is charged.
Subsection 4 provides that for the purposes of subsection (2) –
- two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
- two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
Under section 101 of the Criminal Justice Act, the court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, 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. This is an exclusionary discretion which is specific to bad character evidence. Bad character may also be excluded under section 78 of the Police and Criminal Evidence Act, just like any other piece of evidence.
