Criminal Justice Act 2003

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.