Chapter 1 : Evidence of Bad Character
Section 98: Bad Character and Section 99: Abolition of common law rules
353.Section 98 defines the sort of evidence whose admissibility is to be determined under the new statutory scheme. The definition covers evidence of, or of a disposition towards, misconduct. The term “misconduct” is further defined in section 112 as the commission of an offence or other reprehensible behaviour. This is intended to be a broad definition and to cover evidence that shows that a person has committed an offence, or has acted in a reprehensible way (or is disposed to do so) as well as evidence from which this might be inferred.
354.The definition is therefore intended to include evidence such as previous convictions, as well as evidence on charges being tried concurrently, and evidence relating to offences for which a person has been charged, where the charge is not prosecuted, or for which the person was subsequently acquitted. This reflects the state of the current law. On the latter point, in the case of Z ([2000] 2 AC 483), the House of Lords held that there was no special rule that required the exclusion of evidence that a person had been involved in earlier offences, even if they had been acquitted of those crimes, provided that that evidence was otherwise admissible. Thus, if there were a series of attacks and the defendant were acquitted of involvement in them, evidence showing or tending to show that he had committed those earlier attacks could be given in a later case if it were admissible to establish that he had committed the latest attack. The Act preserves the effect of this decision.
355.Evidence not related to criminal proceedings might include, for example, evidence that a person has a sexual interest in children or is racist.
356.The scheme does not affect the admissibility of evidence of the facts of the offence. This is excluded from the definition, as is evidence of misconduct in connection with the investigation or prosecution of the offence. This evidence is therefore not governed by the new statutory rules.
357.Thus, if the defendant were charged with burglary, the prosecution’s evidence on the facts of the offence – any witnesses to the crime, forensic evidence etc – would be admissible outside the terms of these provisions. So too would evidence of an assault that had been committed in the course of the burglary, as evidence to do with the facts of the offence. Evidence that the defendant had tried to intimidate prosecution witnesses would also be admissible outside this scheme as evidence of misconduct in connection with, as appropriate, the investigation or the prosecution of the offence, as would allegations by the defendant that evidence had been planted. However, evidence that the defendant had committed a burglary on another occasion or that a witness had previously lied on oath would not be evidence to do with the facts of the offence or its investigation or prosecution and would therefore be caught by the definition in section 98 and its admissibility would fall to be dealt with under the Act’s provisions.
358.The intention is that this Part of the Act will provide a new basis for the admissibility of previous convictions and other misconduct. Accordingly, section 99 abolishes the common law rules governing the admissibility of such evidence. (Statutory repeals are dealt with in Part 5 of Schedule 37.) This abolition does not extend to the rule that allows a person’s bad character to be proved by his reputation. This common law rule is preserved as a category of admissible hearsay in section 118(1). However the admissibility of a person’s bad character, in circumstances where it was being proved by reputation, would fall to be determined under this part of the Act.
Section 100 – Non-defendant’s bad character
359.Section 100 sets out the circumstances in which, outside the alleged facts of the offence and its investigation and prosecution, evidence can be given of the previous misconduct of a person other than a defendant in the proceedings. This might be a witness in the case or a victim but extends to any other person as well. Evidence of their bad character is not to be given without the permission of the court - Section 100(4) - and can only be given if it meets one of three conditions. These are:
it is important explanatory evidence,
it is of substantial probative value to a matter in issue and that issue is one of substantial importance in the case, or
the prosecution and defence agree that the evidence should be admitted.
360.The term “explanatory evidence” is used to describe evidence which, whilst not going to the question of whether the defendant is guilty, is necessary for the jury to have a proper understanding of other evidence being given in the case by putting it in its proper context. An example might be a case involving the abuse by one person of another over a long period of time. For the jury to understand properly the victim’s account of the offending and why they did not seek help from, for example, a parent or other guardian, it might be necessary for evidence to be given of a wider pattern of abuse involving that other person.
361.For evidence to be admissible as “important explanatory evidence”, it must be such that, without it, the magistrates or jury would find it impossible or difficult to understand other evidence in the case – Section 100(2). If, therefore, the facts or account to which the bad character evidence relates are largely understandable without this additional explanation, then the evidence should not be admitted. The explanation must also give the court some substantial assistance in understanding the case as a whole. In other words, it will not be enough for the evidence to assist the court to understand some trivial piece of evidence.
362.Evidence is of probative value to a matter in issue where it helps to prove that issue one way or the other. In respect of non-defendants, evidence of bad character is most likely to be probative where a question is raised about the credibility of a witness (as this is likely to affect the court’s assessment of the issue on which the witness is giving evidence). The evidence might, however be probative in other ways. One example would be to support a suggestion by the defendant that another person was responsible for the offence.
363.Evidence which is of probative value is admissible if it meets an “enhanced relevance” test – Section 100(1)(b). That is, it must be of substantial probative value and the matter in issue to which it relates must be of substantial importance in the context of the case. Thus evidence which has no real significance to an issue or is only marginally relevant would not be admissible, nor would evidence that goes only to a trivial or minor issue in the case.
364.Section 100(3) directs the court to take into account a number of factors when assessing the probative value of evidence of a non-defendant’s bad character. These include the nature and number of the events to which it relates and when those events occurred. When considering evidence that is probative because of its similarity with evidence in the case (for example, to suggest that the alleged victim had acted in a particular way), the court is directed by subsection (3)(c) to consider the nature and extent of the similarities and dissimilarities. Similarly, where the evidence is being tendered to suggest a particular person was responsible, subsection (3)(d) requires the court to consider the extent to which the evidence shows or tends to show that the same person was responsible each time.
Sections 101 to 108: defendants
365.At present evidence of a defendant’s bad character is generally inadmissible, subject to a number of restricted common law and statutory exceptions discussed in the 'Summary and Background' section (above). Sections 101 to 108 set out the circumstances in which such evidence is to be admissible in future. In summary, these provide an inclusionary approach to a defendant’s previous convictions and other misconduct or disposition, under which relevant evidence is admissible but can be excluded in certain circumstances if the court considers that the adverse affect that it would have on the fairness of the proceedings requires this. Section 101 sets out the gateways through which this evidence can be admitted, whilst Sections 102 to 106 provide additional definitional material. Section 107 provides an important safeguard where this sort of evidence has been influenced by other witnesses or evidence in the case and is consequently false or misleading. Section 108 deals with the admissibility of convictions for offences committed by a person under the age of fourteen in proceedings for offences committed by a person over the age of twenty-one.
Section 101: Defendant’s bad character
366.Section 101(1) provides that evidence of a defendant’s bad character is admissible in the following circumstances:
all the parties agree to it being given;
the defendant introduces the evidence himself or it is given in response to a question put by the defendant (or his counsel) that is intended to elicit it;
it is important explanatory evidence;
it is relevant to an important issue between the defendant and prosecution;
it has substantial probative value in relation to an important issue between the defendant and a co-defendant;
it corrects a false impression given by the defendant about himself;
the defendant has attacked the character of another person.
367.This is subject to an application by the defendant to have the evidence excluded if admitting it would have such an adverse effect on the fairness of the trial that it ought to be excluded (Section 101(3)). The circumstances in which such an application can be made are where the evidence is relevant to an issue in the case between the defendant and prosecution or has become admissible because of the defendant’s attack on another person.
368.The test to be applied is designed to reflect the existing position under the common law, as section 78 of the Police and Criminal Evidence Act 1984 does, under which the judge assesses the probative value of the evidence to an issue in the case and the prejudicial effect of admitting it, and excludes the evidence where it would be unfair to admit it. The intention is for the courts to apply the fairness test set out here in the same way. In applying the test, the courts are directed specifically under section 101(4) to take account of the amount of time that has elapsed since the previous events and the current charge.
Section 102: “Important explanatory evidence”
369.Section 102 defines what is meant by important explanatory evidence. The definition mirrors that used in the context of non-defendants (see “non-defendant's bad character”: section 100).
Section 103: “Matter in issue between the defendant and the prosecution”
370.Section 103 relates to evidence of a defendant’s bad character that is admissible because it is relevant to an important matter at issue between the defendant and the prosecution (see section 101(1)(d)). Evidence might be relevant to one of a number of issues in a case. For example, it might help the prosecution to prove the defendant’s guilt of the offence by establishing their involvement or state of mind or by rebutting the defendant’s explanation of his conduct. Only prosecution evidence is admissible on this basis – section 103(6) – and the defendant may apply to have the evidence excluded under section 101(3).
371.Section 103(1)(a) makes it clear that evidence that shows that a defendant has a propensity to commit offences of the kind with which he is charged can be admitted under this head. For example, if the defendant is on trial for grievous bodily harm, a history of violent behaviour could be admissible to show the defendant’s propensity to use violence. Evidence is not, however, admissible on this basis if the existence of such a propensity makes it no more likely that the defendant is guilty. This might be the case where there is no dispute about the facts of the case and the question is whether those facts constitute the offence (for example, in a homicide case, whether the defendant’s actions caused death).
372.Where propensity is an issue, subsection (2) provides that this propensity may be established by evidence that the defendant has been convicted of an offence of the same description or category as the one with which he is charged. This is subject to subsection (3), which provides that the propensity may not be established in this way if the court is satisfied that due to the length of time since the previous conviction or for any other reason that would be unjust.
373.An offence of the same description is defined by reference to how the offence appears on an indictment or written charge. It therefore relates to the particular law that has been broken, rather than the circumstances in which it was committed. An offence will be of the same category as another if they both fall within a category drawn up by the Secretary of State in secondary legislation. An order establishing such categories will be subject to the affirmative procedure (see section 330(5)). The categories must contain offences that are of the same type (section 103(4)), for example, offences involving violence against the person or sexual offences.
374.Section 103(1)(b) makes it clear that evidence relating to whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) can be admitted. This is intended to enable the admission of a limited range of evidence such as convictions for perjury or other offences involving deception (for example, obtaining property by deception), as opposed to the wider range of evidence that will be admissible where the defendant puts his character in issue by for example, attacking the character of another person. Evidence will not be admissible under this head where it is not suggested that the defendant’s case is untruthful in any respect, for example, where the defendant and prosecution are agreed on the facts of the alleged offence and the question is whether all the elements of the offence have been made out.
Section 104: “Matter in issue between the defendant and a co-defendant”
375.Section 104 relates to evidence that is relevant to issues between the defendant and a co-defendant (section 101(1)(e)). Evidence is only admissible on this basis by (or at the behest of) a co-defendant: see Section 104(2) – the prosecution therefore cannot avail themselves of this provision. A co-defendant may wish to adduce evidence of a defendant’s bad character if his defence is, for example, that it was the defendant, rather than himself, who was responsible for the offence. Under Section 101(1)(e) evidence is admissible on issues between the defendant and a co-defendant if it has substantial probative value in relation to an important issue in the case. In other words, evidence that has only marginal or trivial value would not be admissible, nor would it be admissible if the issue it related to were marginal or trivial in the case as a whole. However, once this threshold is passed, there is no power for the courts to exclude the evidence. This ensures that defendants are able to put forward the widest range of evidence in their defence and reflects the current position. Section 104 restricts the admissibility of evidence of a defendant’s bad character that only shows that he has a propensity to be untruthful (that is, is not credible as a witness) to circumstances in which the defendant has undermined the co-defendant’s defence. In these circumstances, his credibility may well have a bearing on resolving the issues in the case.
Section 105: “Evidence to correct a false impression”
376.Section 105 relates to evidence that is admissible under Section 101(1)(f) to correct a false impression given by the defendant. For this provision to apply, the defendant must have been responsible for an assertion that gives a false or misleading impression about himself. This might be done expressly, for example, by claiming to be of good character when this is not the case, or implied, for example, by leading evidence of his conduct that carries an implication that he is of a better character than is actually the case. It may also be done non-verbally, through his conduct in court, such as his appearance or dress (Section 105(4) and (5)). For example, if a defendant were to give a false impression by suggesting he were a priest, he could not escape this provision simply by not making such an assertion verbally but choosing to wear a clerical collar.
377.Section 105(2) sets out the circumstances in which a defendant is to be treated as being responsible for an assertion. These include the defendant making the assertion himself, either in his evidence or in his representative’s presentation of his case or, if used in evidence, when being questioned under caution or on being charged with the offence. It also includes assertions made by defence witnesses, those by any witness if responding to a question by the defendant that was intended (or likely to) elicit it and out of court assertions made by anybody if adduced by the defendant.
378.In correcting the impression, the prosecution (and only the prosecution – see Section 105(7)) may introduce evidence of the defendant’s misconduct that has probative value in correcting it, in other words, is relevant to correcting the false impression. Exactly what evidence is admissible will turn on the facts of the case, in particular, the nature of the misleading impression he has given. Evidence is only admissible to the extent that it is necessary to correct that impression: section 105(6). A defendant may withdraw or disassociate himself from a false or misleading impression. Evidence to correct the impression is not then admissible: section 105(3). In light of this, section 101(3), under which a defendant may apply to have evidence of his bad character excluded, does not apply to this evidence.
Section 106: “Attack on another person’s character”
379.Section 106 deals with evidence that becomes admissible as a result of the defendant attacking another person’s character (see section 101(1)(g)). A defendant attacks another person’s character if he gives evidence that they committed an offence (either the one charged or a different one) or have behaved in a reprehensible way – section 106(1)(a) and 106(2). This is similar to the definition of evidence of bad character in section 98 but it also includes evidence relating to the facts of the offence charged and its investigation and prosecution. Thus, a defendant would be attacking a prosecution witness if he claimed that they were lying in their version of events or adduced evidence of their previous misconduct to undermine their credibility. But a suggestion that a witness is mistaken is not intended to engage this provision.
380.A defendant also attacks another person’s character if he or his representative ask questions that are intended (or are likely) to elicit evidence of this sort or if the defendant makes an allegation of this nature when questioned under caution or on being charged with the offence and this is heard in evidence – (section 106(1)(b) and (c)).
381.Where a defendant has attacked another person’s character, evidence of his own bad character becomes admissible (but only by the prosecution – see section 106(3)). Evidence admissible on this basis may, however, be excluded under section 101(3).
382.Evidence admissible under section 101(1)(g) – as under section 101(1)(f) - will primarily go to the credit of the defendant. Currently a jury would be directed that evidence admitted in similar circumstances, under the 1898 Act, goes only to credibility and is not relevant to the issue of guilt. Such directions have been criticised and the new statutory scheme does not specify that this evidence is to be treated in such a way. However, it is expected that judges will explain the purpose for which the evidence is being put forward and direct the jury about the sort of weight that can be placed on it.
Section 107: Stopping the case where evidence contaminated
383.Section 107 deals with circumstances in which bad character evidence has been admitted but it later emerges that the evidence is contaminated, that is, has been affected by an agreement with other witnesses or by hearing the views or evidence of other witnesses so that it is false or misleading (see Section 107(5)).
384.Ordinarily it is for the jury to decide whether or not to believe evidence and decide on the weight to be placed on it. In cases where a question of contamination has arisen, the current position is that the judge must draw that matter to the jury’s attention and warn them that if they are not satisfied that the evidence can be relied on as free of collusion, then they cannot rely on it against the defendant. If it becomes apparent that the evidence is so contaminated that it could not reasonably be accepted as free from collusion, the judge should go further and direct the jury not to rely on the evidence for any purpose adverse to the defence. This will continue to be the case.
385.However, there may be cases where it is not possible to expect the jury to put this evidence completely out of their mind. There are existing common law powers for the judge to withdraw a case from the jury at any time following the close of the prosecution case. Section 107 builds on these powers by conferring a duty on the judge to stop the case if the contamination is such that, considering the importance of the evidence to the case, a conviction would be unsafe. This is intended to be a high test and if the judge were to consider that a direction along the lines described above would be sufficient to deal with any potential difficulties, then the question of safety does not arise and the case should not be withdrawn.
386.Having stopped the case the judge may consider that there is still sufficient uncontaminated evidence against the defendant to merit his retrial or may consider that the prosecution case has been so weakened that the defendant should be acquitted. Section 107(1) provides for the judge to take either of these courses. If, however, an acquittal is ordered then the defendant is also to be acquitted of any other offence for which he could have been convicted, if the judge is also satisfied that the contamination would affect a conviction for that offence in the same way (Section 107(2)). Section 107(3) extends the duty to the situation where a jury is determining under the Criminal Procedure (Insanity) Act 1964 whether a person, who is deemed unfit to plead, did the act or omission charged. Section 107(4) makes it clear that the section does not affect any existing court powers in relation to ordering an acquittal or discharging a jury.
Section 108 – Offences committed by defendant when a child
387.Section 108 deals with the admissibility of certain juvenile convictions. Subsection (1) repeals section 16(2) and (3) of the Children and Young Persons Act 1963. That provision precludes the use in evidence of certain juvenile convictions (those relating to offences committed under the age of 14) in a trial for an offence committed over the age of 21.
388.The admissibility of this evidence will instead fall under the general scheme for admitting evidence of bad character set out in this Part, but will also have to satisfy the two further requirements of subsection (2). The additional requirements are:
that the offence for which the defendant is being tried and the offence for which the defendant was convicted are triable only on indictment; and
that the court is satisfied that the interests of justice require the evidence to be admissible.
Section 109: Assumption of truth in assessment of relevance or probative value
389.Section 109 requires a court, when considering the relevance or probative value of bad character evidence, to assume that the evidence is true. This reflects the distinction between the roles of the judge and jury: it is for the jury to form a view on matters of fact, such as the reliability of the evidence, and for the judge to rule on issues of law. However, there may be occasions where evidence is so unreliable that no reasonable jury could believe that it was true. In these circumstances, intended very much to be exceptional cases, Section 109(2) makes it clear that the judge does not have to assume the evidence is true. In making this decision, the court should normally make its decision based on the papers before it; however there may be exceptional circumstances in which a separate hearing on the issue (a voir dire) might be necessary. This reflects the current common law position as established in R v H [1995] 2 AC 596 which considered the admissibility of similar fact evidence in cases of alleged collusion.
Section 110: Court's duty to give reason for rulings
390.Section 110 requires a court to give reasons for its rulings under these provisions. These must be given in open court and, in the magistrates' courts, entered into the register of proceedings, ensuring that a record is kept. This applies to rulings on whether an item to evidence is evidence of bad character, rulings on questions of admissibility and exclusion and any decision to withdraw a case from the jury.
Section 111: Rules of court
391.Section 111 makes provision for rules of court to be drawn up to require the prosecution and a co-defendant to give notice of their intention to adduce evidence of a defendant's bad character (or elicit such evidence from a witness). In relation to prosecution evidence, such rules must be made. Such rules may also include provision for the defendant to waive any notice requirement. (section 111(3)). The court is empowered to take a failure to give the required notice into account in considering the exercise of its powers in respect of costs (section 111 (4)).
Section 112: Interpretation of Chapter 1
392.Section 112 defines terms employed in this Part. Subsection (2) makes it clear that where the defendant is charged with two or more offences the provisions of this Part refer to each charge as separate proceedings. This means that bad character evidence that is admissible in relation to one charge in the proceedings is not automatically admissible in relation to another charge in the same proceedings, but must instead meet the provisions of this Chapter to be admissible in respect of that charge. It also means that evidence relevant on one charge is not rendered inadmissible if not also relevant to other charges. However, where the court is looking at whether the evidence should be excluded under section 101(3) then the court is to look at the effect of the admission of the evidence on the fairness of the proceedings as a whole and not just the charges for which the evidence is admissible.
393.Section 112(3) makes it clear that nothing in this Chapter affects the exclusion of evidence on certain other grounds. These are:
the rule in section 3 of the Criminal Procedure Act 1865 against a party impeaching the credit of his own witness by general evidence of bad character;
section 41 of the Youth Justice and Criminal Evidence Act 1999 which places restrictions on evidence or questions about a complainant’s sexual history;
any other power to exclude the evidence, on grounds other than it is evidence of a person’s bad character, for example under section 78 of the Police and Criminal Evidence Act 1984 which provides for the exclusion of unfair evidence, or under the provisions of Chapter 2 of this Part relating to hearsay.
Section 113: Armed forces
394.Section 113 introduces Schedule 6. Schedule 6 applies the provisions of Chapter 1 to the service courts, modifying them as necessary.
