Is evidence of bad character admissible?

Whether evidence is admissible in relation to criminal proceedings depends on its nature. Evidence can come in various forms such as:

• oral;
• documentary;
• real (eg, the alleged weapon);
• circumstantial (eg, fingerprints, motive).

To be admissible, the court must be convinced that the evidence is relevant to the facts of the case and has sufficient weight. If the evidence is deemed inadmissible, the fact that it is relevant in the proceedings does not play any role.

Subject to some exceptions, evidence which is normally excluded is:

• non-expert opinion evidence;
• evidence of bad character or previous convictions;
• hearsay evidence;
• confessions made by oppression;
• unreliable evidence;
• evidence that has been obtained illegally, improperly or unfairly and the evidence would have an adverse effect on the fairness of the proceedings under the Police and Criminal Evidence Act 1984 (PACE 1984), s 78.

To assess the credibility of the evidence, it is helpful to have the knowledge of the past behaviour or character of the defendant. The question is whether this is admissible as it could considerably damage the defendant’s reputation and credibility if they considered to be of bad character.

Under s 99 the Criminal Justice Act 2003 (CRA 2003), evidence of bad character is defined as ‘evidence of or disposition towards, misconduct’. Misconduct means the commission of an offence or other ‘reprehensible conduct’ (s 112, CRA 2003). The test for ‘reprehensible conduct’ is objective – it basically covers conduct which the public would regard 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 minor pilfering from employers.

Under s 101 of CRA 2003, there are seven circumstances when bad character evidence of a defendant is admissible. These are if:

1. all the parties to the criminal proceedings agree to such evidence being admitted;
2. the evidence is adduced by the defendant or obtained in cross-examination and intended to be explained;
3. it is essential explanatory evidence;
4. 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 they are charged, except where such propensity makes it no more likely that they are guilty of the offence (s 103(1)(a), CRA 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 (s 103(1)(b), CRA 2003);

It is the responsibility of the prosecution to prove that one of the seven circumstances applies. The evidence will be admissible if it falls under a, b, c, e or f. If it falls under d or g, it will be admissible unless the court feels it has such an adverse effect on the fairness of the proceedings that it ought not to admit it, bearing in mind in particular the amount of time that has passed since the previous events and the current charge.

Under ss 9(2) and 118(1) of CRA 2003, evidence of reputation is admissible to prove good character, but only to the extent that it allows the court to treat such evidence as proving the matter concerned.

Non-defendants are not defined in CRA 2003, but CPS guidelines state that the term includes: victims (whether or not they give evidence); the deceased in homicide cases; witnesses; police officers involved in the case; third parties who are not witnesses in the case; and defence witnesses.

Under s 100, evidence of bad character of non-defendants is admissible only if:

1. it is important explanatory evidence, ie, 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;
2. it has important probative value in relation to a matter which is both in issue in the proceedings and is very important in the context of the case as a whole;
3. all parties to the proceedings agree to the evidence being admissible.

Under s 107 of CRA 2003, if evidence of a defendant’s bad character has been admitted under paragraphs (c) to (g) of s 101(1) (see above), and the court is satisfied after the close of the case for the prosecution that the evidence is contaminated, and the contamination is such that the defendant’s conviction would be unsafe, the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.