Bad Character Evidence

Confirmed up to date 25/02/08

• Introduction
• Principle
• Definition of bad character
• Exceptions to bad character
• Abolition of common law rules
• Bad Character of Non-Defendants
  • The previous law
  • The Statutory Scheme
  • Important Explanatory Evidence
  • Substantial Probative Value
  • All parties agree to the evidence being admissible
• Practice and procedure
  • Procedure
  • Making the application
• Bad Character of the Defendant
  • The previous law
  • Exceptions to the rule of exclusion
  • The statutory scheme
  • Applications by defence to exclude bad character evidence
  • Does section 78 apply to the other circumstances set out in section 101(1)?
• The seven circumstances where evidence of a defendant’s bad character is admissible.
  • Agreement of the parties
  • Waiver by the defendant
  • Important explanatory evidence
  • Relevant to an important matter in issue between the defendant and the prosecution
  • Propensity to commit crimes
  • Propensity to be untruthful
  • Safeguards
  • Matter in issue between the defendant and a co-defendant
  • Evidence to correct a false impression
  • Attack on another person’s bad character
• Practice and procedure
  • European Convention on Human Rights
  • Procedure
  • Code for Crown Prosecutors
  • Proving bad character
  • Making the application
  • Stopping contaminated cases
  • Offences committed by a defendant when a child
  • Assumption of the truth
  • Court’s duty to give reasons
• Annex A - Forms
  • Magistrates’ Courts Forms
  • Form - Application for leave to adduce non-defendants bad character
  • Form - Notice of intention to adduce bad character evidence
  • Form - Application to exclude evidence of the defendants bad character
  • Crown Court Forms
  • Form BC1 - Application for leave to adduce non-defendants bad character
  • Form BC2 - Notice of intention to adduce bad character evidence
  • Form BC3 - Application to exclude evidence of defendants bad character
  • Court of Appeals Forms
  • Form 21 - Application for leave to adduce non-appellants bad character
  • Form 22 - Notice of intention to adduce bad character evidence
  • Form 23 - Application to exclude evidence of the appellants bad character
• Annex B - Case Examples
• Case example 1 (Handling)
• Case Example 2 (Sexual Assault)
• Case Example 3 (Shoplifting)
• Case Example 4 (Shoplifting/Identification)
• Case Example 5 (TWOC)
• Case Example 6 (Child Murder)
• Case Example 7 (Possession of drugs with Intent to Supply)
• Annex C - Flow Chart

Introduction

The Criminal Justice Act 2003 (the 2003 Act) introduces a new statutory scheme and a radical new approach in relation to the admissibility of bad character evidence relating to non-defendants and defendants.

The Law Commission’s Report No 273 and the Review of the Criminal Courts of England and Wales conducted by Lord Justice Auld highlighted defects with the previous law and recommended changes. There were a number of defects with the previous law, such as witnesses were often exposed to gratuitous and humiliating exposure of irrelevant misconduct and the defendant did not lose his ‘shield’ where he did not testify. In the light of the Law Commission’s Report and the Auld Review and the Government’s objective of rebalancing the criminal justice system in favour of victims and witnesses, the 2003 Act was passed.

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Principle

<Part 11 of the 2003 Act> provides a statutory scheme which deals comprehensively with evidence of bad character. It abolishes the common law rules of admissibility of evidence of misconduct, as well as exceptions to that prohibition. The 2003 Act also repeals some of the previous statutory provisions relating to bad character.

The 2003 Act adopts a different approach to non-defendants and defendants bad character. Non-defendants are given protection in statute for the first time against their bad character being exposed unless the substantial probative value test (‘enhanced relevance test’) is satisfied. On the other hand the 2003 Act has an inclusionary approach rather than an exclusionary approach to bad character of a defendant. A defendant’s bad character evidence is not subject to the ‘enhanced relevance test’ but is admissible if it is relevant to an important matter in issue subject to the court’s discretion to exclude.

The effect of these provisions will mean that non-defendants will be better protected from attacks on their character than previously. In relation to a defendant’s bad character, such evidence is likely to play a greater part in the investigation and prosecution of cases and may form an essential part of the evidence against a defendant. This means that police and prosecutors will need to know the details of the defendant’s previous misconduct at the earliest opportunity in order to assess whether such evidence should be used as part of the prosecution case.

Part 11 came into force on the 15 December 2004. These provisions only apply to criminal proceedings begun on or after this date <section 141>. The question is as to whether the provisions apply to all trials beginning on or after the 15 December, or only in those in relation to which proceedings (charge or information) began on or after that date.

The Court of Appeal in <R v Bradley [2005] EWCA Crim 20> held that “criminal proceedings” in <section 141 of the 2003 Act> has the same meaning as “criminal proceedings” in <section 112(1)>, <section 134(1)> and <section 140>, namely “criminal proceedings in relation to which the strict rules of evidence apply”. The effect of this is that “criminal proceedings” mean a stage in the proceedings and the bad character provisions apply to the stages of criminal proceedings where the strict rules of evidence apply. Therefore the court said that the provisions applied to all trials and Newton hearings begun on or after the 15 December 2004. 

So what is the position in relation to preparatory hearings (Criminal Procedure and Investigations Act 1996) where the start of the trial begins with the preparatory hearing? This issue was not specifically addressed in (R v Bradley). However, following the reasoning of Bradley, criminal proceedings mean a stage in the proceedings where the strict rules of evidence apply. This means that is a preparatory hearing began before the 15 December 2004 the previous law applies because the stage where the strict rules of evidence apply, namely the trial began before the implementation date.

The new provisions apply to retrials that take place after the 15 December 2004 even if the previous trial took place before that date because the stage in the proceedings where the strict rules of evidence apply is after the 15 December 2004.

The forms required to be completed and attached to the Rules of Court are set out at <Annex A>. Case examples showing how the provisions may operate are set out at <Annex B>. A flow-chart is at <Annex C>.

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Definition of bad character

<Section 98> defines “bad character” as evidence of, or of a disposition towards, misconduct. Misconduct means the commission of an offence or other ‘reprehensible conduct’ <section 112>.

The definition of bad character is wide enough to apply to conduct arising out of a conviction, or conduct where there has been an acquittal (R v Z [2000] 2 AC 483) and a person who has been charged with another offence, and a trial is pending, the use of the evidence relating to that charge in current proceedings.

‘Reprehensible conduct’ should be looked at objectively taking account of whether a particular kind of behaviour would be regarded as reprehensible by the public. The types of conduct that could come within this definition include: racism; bullying; a bad disciplinary record at work for misconduct; a parent who has had a child taken into care and of course minor pilfering from employers. Conduct that should not be regarded as reprehensible could include consensual sexual activity between adults of the same sex. The term ‘reprehensible conduct’ will avoid arguments about whether or not conduct alleged against a person amounted to an offence where this has not resulted in a charge or conviction.

The definition of ‘bad character’ is the same for defendants and non-defendants.

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Exceptions to bad character

The definition of bad character in <Section 98> is subject to two exceptions in relation to two categories of evidence which at common law were not subject to the general restrictions of bad character evidence. The exceptions are:

• evidence which has to do with the alleged facts of the offence with which the defendant is charged (section 98(a)); and
• evidence of misconduct in connection with the investigation or prosecution of that offence (section 98(b)).

The previous law was that evidence which fell within the “res gestae” principle or was “background” evidence could be admitted as evidence and was not subject to the exclusionary rule. If a defendant were charged with burglary, the prosecution’s evidence on the facts of the offence – any witness 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 a burglary, as evidence to do with the facts of the case. Therefore evidence that is connected with the alleged facts of the offence was admissible.

Likewise (section 98(b)), evidence of misconduct in connection with the investigation or prosecution of the charge would be admissible outside these provisions. This exception covers conduct such as: evidence of resisting arrest by running away because it may imply an acknowledgement of guilt; allegations of intimidation of witnesses; the defendant absconded during the course of the current proceedings; and the defendant breaching bail conditions.

The key test of whether evidence is admissible where the two exceptions apply is relevance. If the evidence goes to an issue in the case and tends to prove one of the elements of the offence then it is relevant and admissible.

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Abolition of common law rules

<Section 99 (1)> abolishes the common law rules governing the admissibility of evidence of bad character.

The following rules are expressly preserved:

• Any rule of law under which in criminal proceedings evidence of reputation is admissible for the purpose of proving good character, but only so far as it allows the court to treat such evidence as proving the matter concerned <section 99(2)> and <section 118 (1)>
• <Section 41 Youth Justice and Criminal Evidence Act 1999>, that restricts evidence or cross examination about the complainant’s sexual history in trials for sexual offences <section 112 (3) (b)>. This means that in a trial for a sexual offence, to adduce evidence of a complainant’s previous sexual behaviour which is also ‘bad character’ evidence, both tests will have to be satisfied.

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Bad character of non-defendants

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The previous law

In sexual cases, <Section 41 Youth Justice and Criminal Evidence Act 1999>, restricts evidence or cross examination about the complainant’s sexual history in trials for sexual offences.  

In all other cases, the defence could adduce the previous convictions, discreditable conduct, bias, corruption or untruthfulness of a prosecution witness provided that the evidence was relevant to the issue of credibility of the witness.

The purpose of admitting evidence of the bad character of a witness was to test the credibility of a witness, and the court should control cross-examination on the character of the witness where it was irrelevant, unduly offensive or vexatious. The principles governing such cross examination were endorsed by Sankey LJ in (Hobbs v Tinling and Co Ltd (1929) 2 KB):

• Questions are proper only when answers would seriously impair the credibility of the witness.
• Questions are improper if they relate to matters so remote in time or of such a character that if true they could not seriously impair the credibility of the witness.
• Questions are improper if there is a substantial disproportion between the importance of the imputation against the witness’s character and the importance of the issue to be decided.

A conviction may be proved against a witness who is cross examined about a previous conviction but denies or does not admit or refuses to answer - (section 6 Criminal Procedure Act 1865).

Proof of a conviction in the UK is by production of a certificate of conviction together with proof that the person named in the certificate is the witness whose conviction is to be proved – (section 73 Police and Criminal Evidence Act 1984). 

The major restriction on the defence adducing evidence of the bad character of a prosecution witness was (section 1 (f) (ii) Criminal Evidence Act 1898). The effect of this section was to allow cross-examination of a defendant about his bad character when the nature or conduct of the defence had cast imputations on the character of prosecution witnesses and deceased victims.

In deciding whether the defendant had lost his shield and was subject to cross examination about his own bad character, judges had to decide whether the defence had cast imputations on the character of the witness or whether their questioning or evidence was no more than an emphatic denial.

The Law Commission Report suggested that there had been inconsistent prosecution practice in relation to the introduction of evidence of bad character of prosecution witnesses. It appeared that there had been a growing practice of the prosecution adducing the previous convictions of a prosecution witness as part of the prosecution case. The purpose of such disclosure was to minimise the impact of defence extracting the bad character of prosecution witnesses by cross-examination.

The result of this practice had been that some defendants benefited from the introduction of evidence of the bad character of prosecution witnesses without putting their own character in issue.

The practice also placed the character of prosecution witnesses in issue unnecessarily, as it assumed that the defence wished to pursue certain issues when this was not the case.

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The Statutory Scheme (section 100)

<Section 100> introduces new criteria for the admissibility of the evidence of bad character of non-defendants. Courts will be required to ensure that evidence of ‘bad character’ of a non-defendant witness meets the statutory criteria for admissibility. Other than evidence admitted by agreement, the leave of the court must be obtained <section 100(4)>. 

“Non defendants” are not defined in the Act but the term should include victims, whether or not they give evidence, the deceased in cases of homicide, witnesses, police officers who have been involved in the case, third parties who are not witnesses in the case and defence witnesses

(Section 100 (1)) provides that: 

In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if:

1. It is important explanatory evidence,
2. It has substantial probative value in relation to a matter which
   1. Is a matter in issue in the proceedings, and
   2. Is of substantial importance in the context of the case as a whole, or
3. All parties to the proceedings agree to the evidence being admissible.

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Important Explanatory Evidence

For the purposes of (section 100 (1) (a)) evidence is important explanatory evidence if:

• 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 <section 100 (2)>

The term “important explanatory evidence” imports the concept of background evidence. The common law recognised that evidence of bad character was admissible outside the similar fact rule, as “background evidence”. For example, (R v Sidhu (1994) 98 Cr App Rep 59), D charged in relation to conspiracy to possess explosives in England. A video showing D apparently leading activities of a group of armed rebels in Pakistan was admitted as evidence of continual background of history to the offence. In (R v Stevens [1995] Crim LR 649) evidence of previous occasions on which D had assaulted V was admitted as part of the background to a charge of murder.

Prosecutors should note that evidence under this circumstance must be such that the fact finders would find it impossible or difficult to understand other evidence in the case. Moreover, the explanatory evidence must give the fact finders some substantial assistance in understanding the case as a whole. The word “substantial” is not defined in the Act but this is likely to mean “more than minor or trivial” (see the Law Commission’s Report paragraph 7.17and (R v Egan [1992] 4 AER 470)). If the evidence is more than minor or more than trivial it will be admissible if it assists the court to understand the case as a whole.

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Substantial Probative Value

In order to adduce evidence under subsection <100 (1) (b)>, the court must be satisfied that the evidence is of “substantial “ probative value.

In assessing the probative value of evidence for the purposes of (subsection (1) (b)) the court must have regard to the following factors:

• The nature and number of the events, or other things, to which the evidence relates
• When those things or events are alleged to have happened or existed
• The nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct where the evidence is evidence of a persons misconduct and it is suggested by the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct
>
• The extent to which the evidence shows or tends to show that the same person was responsible each time where the evidence is evidence of a persons misconduct and it is suggested that that person is also responsible for the misconduct charged and the identity of the person responsible for the misconduct charged is disputed
• Any other factors the court considers relevant.

The relationship between the first two factors (nature and number of events and when those things or events are alleged to have taken place) and the probative value are relatively straightforward. It is anticipated that these factors will be the most relevant and frequently applied when determining defence applications to adduce the bad character of prosecution witnesses. 

The credibility of a prosecution witness may have substantial probative value in relation to a matter in the proceedings and is of substantial importance in the context of the case as a whole. Recent convictions for dishonesty are more likely than old convictions for dangerous driving to be of substantial probative value where the credibility of a prosecution witness may have substantial probative value in relation to a matter in the proceedings and is of substantial importance in the context of the case as a whole e.g. in a case of theft where the defence alleges the witness gave the items to the defendant or taking without consent and the defendant alleges that the witness allowed the defendant to take the car.

It is important that previous convictions between non-defendants and defendants are treated in the same way i.e. that convictions which show a propensity to be untruthful should apply equally between witnesses and defendants but bearing in mind the different standards set out in the 2003 Act <see section below>.

There is some overlap between the third and the fourth factors. The third factor may be relevant when the defendant alleges that another person is responsible for the offence(s) with which he is charged and he seeks to rely on “similar fact” evidence. It will also need to be considered where the prosecution needs to prove the role of an accomplice, for example where a burglar has a known modus operandi and those hallmarks are also evident in the burglary with which the defendant is charged, and the accomplice has not been charged.

The fourth factor will be applicable where the defendant wishes to show that another person was responsible by adducing evidence of that person’s previous misconduct or conviction. There will usually be some evidence to link the two (or more) offences together and to show that the same person committed both offences.

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All parties agree to the evidence being admissible 

It has been suggested that the reason for allowing evidence of the bad character of non-defendants to be adduced by agreement is not to protect the reputations or feelings of third parties, but to avoid distracting the tribunal of fact from the issues in the case.

Prosecutors should not consent to the inclusion of evidence of a non-defendants bad character solely to save time or in exchange for defence consent to adduce evidence of the defendant’s bad character. Different tests of admissibility apply for defendants and non-defendants and the test of admissibility for non-defendants is higher than for defendants.

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Practice and procedure

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Procedure

Where the prosecution is aware that a prosecution witness has previous convictions or cautions, that information should be disclosed to the defence according to the principles set out in the CPS legal guidance on disclosure. The guidance is expected to be revised in April 2005. 

At present, all previous convictions, except minor traffic offences must be disclosed at the primary disclosure stage irrespective of their age or whether they are regarded as spent under (section 7 (2) Rehabilitation of Offenders Act 1974).

The bad character provisions do not impose any new duty of disclosure upon the prosecution in addition to that contained in the CPIA. Defence may argue that the bad character provisions place an additional burden on them and require the prosecution to carry out speculative enquiries as to whether witnesses have previous reprehensible behaviour. One of the intentions of the disclosure regime under the CPIA endorsed by R v H was to set the boundaries.

If the material comes to light during the investigation of witnesses reprehensible conduct then this should be disclosed just as if it would have been before the bad character provisions came into force because it goes to the credit of a witness and would fall within the disclosure test.

The police are bound to make all reasonable lines of inquiry of enquiry. However, it is not reasonable for the police to make speculative enquiries to see if there is any reprehensible behaviour of a witness.

There is a framework for disclosure that should be followed. Once the prosecution has served disclosure under section 3 of the CPIA, the defence should serve a defence statement setting out the particular issues in the case. If the defence statement raises issues of credibility of a prosecution witness, then the prosecutor should deal with this by way of secondary/further disclosure. Following further disclosure, if any, the defence can apply to the court under section 8 of the CPIA if they think the prosecution holds material that has not been disclosed.

The defence should be reminded that the convictions may be used only for the purposes of the case and use in any other way may result in a contempt of court: (Taylor v the Director of the Serious Fraud Office [1998] 3 W.L.R 1040). The confidentiality of information disclosed under the Criminal Procedure and Investigations Act 1996 is protected by (Sections 17 and 18 of that Act).

The CPS is also under a duty to disclose to the defence information about police officers who are witnesses that might undermine the prosecution case or that might reasonably assist a defence. It does not matter whether the officers are called as witnesses, their statements are read to the court or their statements are unused material <see Annex A of the JOPI on Disclosure>.

The effect of (section 100) means that witnesses will be better protected from wide-ranging and humiliating attacks on their credit; and ensures that clearly relevant evidence is admissible. Leave of the court is required before the evidence can be admissible and that it seems clear that the cross-examiner cannot put allegations to the witness that he or she is of bad character without first seeking leave to do so.

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Making the application

<The Crown Court (Amendment) Rules 2004> which inserts rule 23E into the Crown court Rules 1982 and <The Magistrates’ Courts (Amendment) Rules 2004> which inserts rule 72A into the Magistrates’ Courts Rules 1981 deal with the procedure of adducing a non-defendant’s bad character in the Crown Court and the magistrates’ court.

A party who seeks to introduce evidence of a non-defendant witness or who wants to cross-examine a witness with a view to eliciting that evidence must apply in a prescribed form <see Annex A of the JOPI on Disclosure>. and the application must be received by the relevant court and all other parties to the proceedings no more than 14 days after the prosecutor has complied or purported to comply with (section 3 CPIA 1996) or as soon as reasonably practicable where the application concerns a witness for the defendant.

The details required in the prescribed form are:

• Details of the applicant;
• Details of the case including the charges;
• The particulars of the bad character evidence including how it is to be adduced or elicited in the proceedings, including the name of the relevant non-defendant and all other witnesses;
• The grounds for the admission of such evidence under <section 100>; and
• If appropriate, an application for an extension of time.

On receipt of the form, a party may oppose the application by giving notice in writing to the appropriate officer of the court and all other parties. 

The court may allow the application to be made orally or in a different format to the prescribed form. It may also shorten or extend the time limits (even where they have expired) if it is in the interests of justice to do so.

Applications may also be made by fax or by e-mail with the consent of the recipient.

Different time limits apply for proceedings in the Court of Appeal <see The Criminal Appeal (Amendment No 2) Rules 2004 SI 2004 No 2992>.

Section 100 not only applies to a defendant wanting to adduce bad character of a prosecution witness it also applies to the prosecution wanting to adduce bad character evidence of a defence witness. It is likely that the prosecution will not know the names of defence witnesses until they give evidence at trial, in which case the Rules allow for the prosecution to make the application at that time.

Prosecutors should be mindful of the rights and interests of witnesses and third parties and the need to protect them from embarrassing public disclosure of their bad character where the ‘enhanced relevance test’ is not met.

Prosecutors are also reminded of their duty not to refer to spent convictions without the leave of the court. The Practice Direction (Criminal: Consolidated) (2002) 3 All ER 904 paragraph 6 Spent Convictions recommends that both court and advocates should give effect to the spirit of the Rehabilitation of Offenders Act 1974 by never referring to a spent conviction when such reference can reasonably be avoided (paragraph 6.4 of the Practice Direction). No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require (6.6 of the Practice Direction).

Prosecutors should only agree to evidence of the bad character of a prosecution witness being admissible when they are satisfied: that bad character evidence is important explanatory evidence; that the evidence has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole; or it is in the interests of justice.

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Bad character of the accused 

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The previous law

The 2003 Act makes a radical change to the law relating to the circumstances in which evidence of previous misconduct of a defendant may be admitted in criminal proceedings. To try and understand the rationale behind the provisions of the Criminal Justice Act 2003 it will be helpful to highlight the previous law, since the form of the new provisions has been dictated by its defects. The previous law, which was an exclusionary rule, provided that the prosecution could not, in general, adduce evidence of a defendant’s bad character (other than that relating to the offence charged) nor of the defendant’s propensity to act in a particular way even if relevant. This was an exception from the general rule that all relevant evidence was admissible. This was not a justification for the exclusion of evidence of prior wrongdoing in all cases and over time important exceptions developed at common law and statute.

The exceptions to the exclusionary rule fell into three categories: those related to evidence that was adduced by the prosecution against the defendant; those related to evidence which a defendant could adduce; and those related to evidence which could have been adduced in cross-examination of a defendant.

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Exceptions to the rule of exclusion

Evidence which disclosed previous misconduct which was an ingredient of an offence was not subject to the exclusionary rule (e.g. driving whilst disqualified).

The main exception to the exclusionary rule was the “similar fact rule” (somewhat misleading), which permitted the admission of evidence of misconduct by the defendant in order to show a propensity to commit offences of the type charged. The leading authority was DPP v P [1991] 2 AC 447. The test of admissibility was whether the probative value of the evidence to be admitted was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to the accused in tending to show that he was guilty of another crime.

The defendant could, of course adduce evidence of his own previous misconduct without restriction. He could have also adduced evidence of a co-defendant’s bad character if it was relevant to his defence.

(Section 1 of the Criminal Evidence Act 1898) prevented a defendant who gave evidence from being cross-examined about his character unless one of the conditions specified in paragraph (f) was satisfied. In addition to being admissible to prove the offence charged, the conditions were that the defendant had tried to establish his own good character or made imputations on the character of the prosecutor or witnesses for the prosecution or the deceased victim of crime or that he had given evidence against a co-defendant.

Some of the principal defects of the previous law were:

• The test for admissibility of the “similar fact rule” was not clear on how it was to be applied;
• It was not clear what constituted “background” evidence which may be very prejudicial;
• Statutory rules relating to evidence adduced in cross-examination was supposed to have the effect that only bad character evidence which went to credibility was admitted, but the courts did admit evidence which did not relate to credibility;
• The fear of the defendant “losing his shield” did not bite where he did not testify or had no criminal record. This meant that tactical decisions played an important part in the defence and distorted the process;
• There was no power to prevent the record of a co-defendant being admitted where the defendant had undermined the defence of a co-defendant, which could lead to unfairness.

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The statutory scheme <section 101>

The 2003 Act introduces a new approach towards the admission of a defendant’s bad character that starts from the position that evidence that is relevant to the case should be admissible. The general exclusionary rule against the admission of previous misconduct and other bad character is abolished and replaced with provision that evidence is admissible when relevant to the issues in the case and sets out clearly when that will be so.

(Section 101 of the 2003 Act) is the main provision permitting the admissibility of evidence of a defendant’s bad character. There are seven circumstances, set out in (s 101(1) (a) to (g)). There is a staged approach to the admissibility of bad character evidence. First, a defendant’s bad character is not admissible unless one of the conditions in subsection (1) applies. Second, if the evidence does fall within (s 101(1) (a) (b) (c) (e) and (f)) the evidence is admissible and where the evidence falls with (s 101 (d) or (g)) it is admissible unless, on application by a defendant, it has such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

It is worth setting out in full (section 101) the principal provision permitting the admissibility of evidence of a defendant’s bad character.

Section 101 provides:

1. In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if-
   1. all parties to the proceedings agree to the evidence being admissible,
   2. 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,
   3. it is important explanatory evidence,
   4. it is relevant to an important matter in issue between the defendant and the prosecution,
   5. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
   6. it is evidence to correct a false impression given by the defendant, or
   7. the defendant has made an attack on another person’s character.

(Sections 102 to 106) contain provision supplementing subsection (1). 

2. 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.
3. On an application to exclude evidence under subsection (3) the court must have regard to, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

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Applications by defence to exclude bad character evidence <section 101(3)>

The defence can apply to have the evidence excluded under subsection (d) and (g) (highlighted in bold) where the evidence is relevant to an issue in the case between the prosecution and the defendant or has become admissible because of the defendant’s attack on another person.

In these two circumstances the court must not admit such evidence if it appears that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to admit it. In applying the test the court is directed to take account, in particular, of the amount of time that has elapsed since the previous events and the current charge.

The test in section 101(3) is designed to reflect the existing position under (section 78 of PACE), under which the judge or magistrates assess 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 Act does not specify any other factors apart from <section 101(4)> that the court should take into account. However other factors that the court may consider could include:

• The nature of the defence or possible defence, such as mistake, innocent association, accident etc;
• Similarities or dissimilarities of the previous misconduct and the offence charged;
• The nature and number of the events of previous misconduct, although one previous conviction can be sufficient to show propensity to commit a crime and to be untruthful; and
• Other evidence against the defendant showing that he committed the offence. The stronger the evidence against a defendant the less likely that the court would exclude it.

Note that the test to be applied under (section 101(3)) is stricter than that under (s78 of PACE); under section 78 the court may refuse to admit the evidence, whereas under section 101(3) the court must not admit such evidence if it would have such an adverse effect on the fairness of the proceedings.

The court can only exclude evidence of bad character on the application of the defendant and not of its own motion after the prosecution has served notice on the defendant and the court that it intends to adduce the defendant’s bad character evidence. This does not mean that the prosecution must in every case under (section 101(1)(d) and (g)) serve a notice, especially when the court is to have regard to the length of time since the previous misconduct and it is clear that an old conviction would not be admitted in evidence.

Therefore where evidence is admissible under (subsection (1)(d) or (g)) the prosecution should always serve a notice of intention to adduce bad character evidence unless it is highly likely that the court would not admit the evidence because of the adverse effect on the fairness of the proceedings.

Given how (section 101) is to operate, if the prosecution gives notice to the defence to adduce such evidence, it is likely that the defence will in almost every case apply to exclude it.

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Does section 78 apply to the other circumstances set out in section 101(1)?

The issue is whether the defence can rely on (section 78 of PACE) in relation to the other circumstances in section (101(1)), namely (subsections (c), and (f)). Clearly section 78 does not apply to (subsection (1) (a) and (b)) where all parties agree and the defendant adduces evidence of his own character, or evidence under (subsection (1) (e)) of substantial probative value to an important matter in issue between the defendant and co-defendant because this can only be adduced by a co-defendant and not by the prosecution. The argument in favour of the continued application of (section 78) to (section 101(c) and (f)) is (section 112(3)(c)) which provides that:

“Nothing in this Chapter affects the exclusion of evidence on the grounds other than the fact that it is evidence of a person’s bad character.” 

In addition, the Explanatory Notes to the Act suggest that (section 78) applies and this was the Government’s position during the passage of the Bill through Parliament. However, there are arguments against (section 78) applying to those circumstances. (Part 11 Chapter 1), which deals with bad character, makes no specific reference to (section 78). Chapter two, which relates to hearsay evidence, does at <section 126(2)>.

The starting point under the Act when dealing with a defendant’s bad character is that such evidence is admissible if one of the seven circumstances set out in (section 101(1)) are met. Although there is a leave requirement for non-defendant’s bad character to be adduced, no such leave is required as a pre-requisite in relation to defendants. This demonstrates that the admissibility is to be considered the norm rather than the exception.

The circumstances where the defence can seek the exclusion of evidence in <section 101(1)> are restricted; only under circumstances set out in (d) and (g) are the defence entitled to seek exclusion of bad character. If Parliament intended that (section 78) should apply to the other circumstances it would have so stated in subsection (3).

In our view, (section 78) may apply to circumstances set out in subsection (1) (c) and (f), although in practice (section 78) will have a very limited application. Given the definition of important explanatory evidence in subsection (1) (c) and evidence in subsection (1) (f) can only be given to the extent that it is necessary to correct the false impression, then (section 78) is likely only to apply in rare or extreme cases.

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The seven circumstances where evidence of a defendant’s bad character is admissible

<Section 102> and <Section 106> expand on five of the seven circumstances where evidence of the defendant’s bad character is admissible. Section 101 (a) and (b) are not further defined in the Act.

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Agreement of the parties <section 101(a)>

Clearly, it makes no sense in excluding evidence, if all parties agree that it should be admitted. Therefore in these circumstances the evidence of bad character is admissible.

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Waiver by the defendant <section 101(b)>

The defendant’s bad character is admissible if it is adduced by himself, or is given in answer to a question asked by him in cross-examination and intended to elicit it. This allows a defendant to adduce his own bad character if it is felt that it would be helpful to do so. There may be circumstances where a defendant chooses to do this. Examples may include- where a defendant raises an alibi that he was in prison at the time; where his bad character is relatively innocuous in the context of the trial, that he might prefer to put it in evidence rather than leave it to the jury to speculate about it; or if he considers that his own character while bad, is less likely to indicate guilt than that of a person alleges was criminal.

The points to note about section 101 (b) are:

• There is no statutory discretion to exclude evidence;
• A defendant may lead evidence of his bad character, if he chooses, and whether or not the co-defendant agrees;
• Evidence is inadmissible if the defendant did not intend to elicit the evidence, such as an unsolicited disclosure by a witness of a defendant’s bad character or evidence of bad character elicited in cross-examination due to a carelessly framed question.
 

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Important explanatory evidence <section 101(c)>

Bad character evidence is admissible if it is important explanatory evidence. Section 102 defines “important explanatory evidence” as without the evidence, 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. This is the same definition as important explanatory evidence in section 100(2) when dealing with non-defendant’s bad character (see Important Explanatory Evidence above). 

If the evidence is more than minor or more than trivial it will be admissible if it assists the court to understand the case as a whole. For example, evidence of violence by D on a different occasion than that charged, evidence that D prevailed upon V, his girlfriend, to have an abortion, and evidence about D’s knowledge of the effect of violence upon his girlfriend given that she had had a stroke are all part of the important explanatory evidence to the relationship (see R v Underwood [1999] Crim LR 227).

Bad character evidence that is comprehensible without additional explanatory evidence is inadmissible. In (R v Dolan [2003] 1 Cr App R 281) D was charged with murder – probably by shaking his infant son. The prosecution adduced evidence of his violence during the course of a previous relationship towards inanimate objects. The Court of Appeal quashed the conviction because the evidence should not have been admitted. It could not be said that the case was incomplete or incomprehensible without the admission of the evidence.

The prosecution does not require leave before evidence can be admitted but notice will have to be given by the prosecution to adduce such evidence. However, there may be arguments on whether the evidence meets the threshold test.

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Relevant to an important matter in issue between the defendant and the prosecution <section 101 (1)(d)> 

This subsection effects a fundamental and radical change to the previous law. It replaces what was the common law scheme for adducing evidence of bad character in chief as stated in (DPP v P [1991] 2 AC 447) and the statutory provisions for adducing evidence to show that the defendant should not be believed and abolishes them. The intention behind this is that evidence of previous misconduct that has relevance to an issue in the case should be admitted to give courts and juries the fullest possible relevant information for them to determine guilt or innocence.

At common law the general rule was that the prosecution could not adduce evidence tending to show that the accused was guilty of criminal acts other than those charged against him or that he had a propensity to commit crimes of the kind charged. It was clear that the test was not just relevance but that the probative value of that evidence was so high that its probative value outweighed its prejudicial effect.

Facts in issue are those necessary by law to establish the offence or defence to the charge. Relevant means if it tends, as a matter of logic, to make the fact in issue more or less likely. Facts relevant to an issue are facts which tend, either directly or indirectly, to prove or disprove a fact in issue (e.g. a fact in issue, propensity to commit offences or credibility).

Subsection (1)(d) sweeps away the test in (DPP v P) and depends only on relevance to ‘an important matter in issue’ (meaning, according to <section 112>, ‘a matter of substantial importance in the context of the case as a whole’). As in Important Explanatory Evidence above, ‘substantial’ means more than minor or trivial. If the evidence is relevant to an issue in the case, it passes the threshold for admissibility. It is important to note that nothing requires the evidence to have any ‘substantial probative value’.

(Section 101) has to be read in conjunction with <section 103>. In deciding what is a matter in issue, section 103 provides that a matter in issue includes (a) whether a defendant has a propensity to commit crimes 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 and (b) whether a defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

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Propensity to commit crimes

Under (section 103 (1) (a)) evidence of bad character is admissible to show that a defendant has a propensity to commit offences ‘of the kind with which he is charged.’ This means that a defendant’s bad character is admissible in at least two situations.

The first situation is that a person may have a propensity to commit crime if he has a desire to commit a particular crime, such as paedophilia. A person who has a desire to engage in child sexual abuse is likely to abuse children sexually and this makes it more likely that he did indeed commit the offence. This reasoning is not confined to sexual offences but also applies to other offences, for example where D was accused of murdering a man by making a motiveless attack with a razor blade, evidence should be admissible that on previous occasions D had cut other men for no apparent reason.

(Section 103 (1) (a)) makes such evidence generally admissible; and this would be so whether the evidence takes the form of previous convictions, previous incidents that did not result in convictions, or anything else.

The second situation where a person may have a propensity to commit crimes is where he has a habit of committing certain types of crime i.e. a habitual criminal. If D is arrested for shoplifting and his defence is that he forgot to pay, evidence should be admissible of the numerous convictions for shoplifting. Similarly, if a man is prosecuted for burglary, having been found in the front garden, and claims he went there to urinate and by ill-luck chose premises that had just been burgled by another, evidence should be admissible of his track record as a burglar.

If the court does not have the information in the above situations, it may well assume, like any normal person, that D is unlikely to have committed such an offence.

The proviso to section 103(1)(a) “except where his having such a propensity makes it no more likely that he is guilty of the offence” means where there is no dispute about the facts of the case and the question is whether those facts constitute an offence e.g. on a charge of possession of drugs whether a particular drug was controlled or not.

D is charged with assaulting his wife. He has a history of violence, both in relation to his wife, and others. He claims that on one occasion in issue, she received her injuries falling down the stairs. In this case, D’s previous convictions for violence are admissible (subject to the discretion to exclude) to show that his propensity to commit offences of the kind with which he is charged, and subject to the facts, any acquittals would also be admissible too (as the definition of bad character also includes acquittals).

In another example, the case of (R v Lewis (The Times 22 May 2004) L was a tennis coach who was acquitted of rape. He denied any sexual contact with the girl, but his plea of guilty to under-age sex with another girl tennis player was concealed from the jury. Would L’s conduct in respect of the under-age sex have made it more likely that he committed rape? Under section 103(1), L’s conduct would show a propensity to have sex with female tennis pupils, especially bearing in mind that L denied any sexual contact with the girl who had complained of rape.

Where propensity to commit offences is in issue section 103(2) provides that his propensity may be established, without prejudice to any other way of doing so, by evidence that the defendant 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 prescribed by the Secretary of State.

(Section 103 (2)) entitles the prosecution to show the defendant’s propensity to commit offences of the type charged by evidence that he has a previous conviction of the same description as the one with which he is charged (section 103 (2) (a)) or if it falls within one of the categories prescribed by Order (section 103 (2) (b)). Offences of the same description are offences where the statement of offence in a written charge or indictment is in the same terms i.e. the same offence, and the offences in the same category are offences in the same category as prescribed (subsection 4).

Lets take an example. D has previous convictions for theft and deception where D stole, forged and presented a cheque in which he obtained money from a bank. He was charged with theft and obtaining money be deception. He was not charged with the forgery because it was part of the deception. One year later, D is found in possession of a stolen cheque, on which he has forged the signature and was on the way to the bank to cash it. D claims innocent possession. He is charged with handling and forgery of the cheque. Are the earlier convictions for theft and deception admissible under section 103 (2) (a)?

The prosecution cannot adduce evidence of the previous convictions themselves for theft and deception under section 103 (2) (a) because they are not the same offence as forgery, although the previous conviction for theft could be adduced under section 103 (2) (b). However, the prosecution can adduce evidence of the facts of the theft and deception to show that D has a propensity to commit these types of offences. The prosecution can also adduce evidence of the previous forgery, even though he was not charged with the offence and that it does not fall within the categories of offences, to show that he is more likely to have committed the forgery with which he is charged.

Under section 103 (4) (b), the Secretary of State may prescribe categories of offences which are of the “same type” for use as an indicator that a defendant has a propensity to commit offences of a certain type. The Secretary of State has prescribed two categories, theft offences and sexual offences on persons under 16 (The Criminal Justice Act 2003 (Categories of Offences) Order 2004). This Order came into force on 29 December 2004.  

The Order means that where a defendant has previous convictions for an offence in one of the categories, theft or sexual offences on persons under 16, then an offence charged in the same category creates a strong presumption that the previous conviction should be admitted. However, the defence will still be able to argue that such evidence should not be admitted because it would be unfair to do so.

The common theme of the offences listed in the theft category is that they all relate directly to stealing property that belongs to others. The category of sexual offences on persons under 16 cover offences which involve sexual touching, penetration and activity, and which were committed in relation to children and young people under the legal age of consent.

The reason for only these two categories is that they cover areas of offending that cause the public particular concern, and where there is a strong risk of re-offending.

It is important to note that the absence of categories for other types of offending will not prevent previous convictions from being admitted if they demonstrate a propensity to commit offences of the same kind. Evidence of such convictions will be admissible under the main provisions of the Act, provided those convictions are relevant and probative. The categories of offences only support the Act’s main provisions. For example, a person charged with rape of a child may have a history of sexual offences (such as child pornography or grooming), even though those previous convictions would not appear within the same category as the offence charged.

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Propensity to be untruthful

The other matter in issue between the defendant and the prosecution identified is whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) except where it is not suggested that the defendant’s case is untruthful in any respect <section 103(1)(b)>.

In the majority of contested cases, whether the defendant is telling the truth or whether the defence is true is itself an issue in the case. Under (section 103 (1)(b)), propensity becomes admissible to prove untruthfulness, provided that the prosecution contends that the defendant’s case is untruthful in some respect. This is intended to enable the admission of a limited range of evidence such as convictions for perjury or other dishonesty offences e.g. deception as opposed to the wider range of evidence where the defendant puts his character in issue by for example, attacking another person’s character.

The types of previous convictions, which may show a propensity to be untruthful, would include convictions for perjury, perverting the course of justice (depending on the facts of the case), fraud, deception and other dishonesty offences. Therefore, those previous convictions which are not generally to be treated as relevant to a general propensity to be untruthful are those convictions not involving any element of fraud, dishonesty or deception.

Whether a conviction shows a propensity to be untruthful should apply equally to non-defendants as well as defendants. For example, where the prosecution seek to routinely adduce a defendant’s conviction for fraud on the basis that it says something important about a defendant’s propensity to be untruthful, then this should also apply to a prosecution witness who has a conviction for fraud. Against this must be considered the differing standards in the Act itself in relation to the bad character evidence of defendants (relevant to an important matter in issue) and the higher threshold test of non-defendants (substantial probative value in relation to a matter which is of substantial importance in the context of the case as a whole).

If the defendant’s explanation is so similar to that advanced by him on a previous occasion, then it is unlikely to be true. D is accused of robbing a mini-cab driver at knifepoint but claims that he entered the cab only after the robbery had taken place. Where this was an almost identical defence to the one he had raised in another and very similar robbery trial, this will be admissible (subject to the discretion to exclude) (R v Reid 1989).

D aged 19 is stopped at 2am driving a car that has been reported stolen. He tells the police that the car belongs to a friend and that he has been given permission to borrow the vehicle. It is discovered he has three recent previous convictions for taking without consent (TWOC). There is a statutory defence to TWOC if the court is satisfied that the accused acted in the belief that he had lawful authority, or that the owner would have consented if he or she had known of the circumstances of the taking. Under (section 103(1)(b)) (propensity to be untruthful), D’s previous convictions would clearly be relevant to whether his version of events is true, and so evidence of his bad character would be admissible.

Bad character will not be admissible under (section 103(1)(b)) 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 and the question is whether all the elements of the offence have been made out.

Prosecutors should note that a defendant would always be in jeopardy where he or she has given a previous unsuccessful defence (pleaded not guilty and was convicted). Therefore it is important for prosecutors to obtain as much information about the defendant’s bad character as possible, such as details of the offence, whether it was a plea of guilty or a conviction and what was the nature of the defence.

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Safeguards

There is a safeguard under (section 103(3)) to the admission of evidence of propensity to commit a crime. Evidence of propensity should not be admitted if due to the length of time since the conviction, or for any other reason, the court is satisfied it would be unjust to admit it. For example, D aged 50 years is charged with burglary (smashed a shop window and took an item on display), it would be very unlikely that the court would admit evidence of D’s only previous conviction (a residential burglary), which happened 30 years previously.

The term ‘any other reason’ is not defined, but it is wide enough to include the nature and extent of the similarities and the dissimilarities between each of the instances of misconduct.

The effect of (section 103(3)) means that the court will not allow previous misconduct as evidence of propensity to commit a crime if it is unjust to do so. This is not defined but it means that the court would regard it as unjust if the admission of the bad character evidence has such an adverse effect on the fairness of the proceedings that the court ought not to admit it (the test in section 101 (3)).

It should be noted that although section 103(3) only applies to a propensity to commit a crime, evidence of a propensity to be untruthful is subject to section 101(3).

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Matter in issue between the defendant and a co-defendant <section 101(1)(e)>

Evidence of a defendant’s bad character is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant. Once this threshold is met there is no power in the Act for the evidence to be excluded.

The power to admit bad character evidence in respect of an issue between the defendant and a co-defendant under section 101(1)(e) is restricted to evidence either adduced by the co-defendant, or which the co-defendant needs to elicit in cross-examination. Only a co-defendant and not the prosecution can adduce evidence of a defendant’s bad character under this section <section 104(2)>.

The test for admissibility is probative value in relation to an important matter in issue. As previously mentioned, the requirement of substantial is likely to be interpreted only as more than merely trivial (see Important Explanatory Evidence above).

This section is similar to the previous law and includes cases where the defence not only undermines the co-defendant’s defence but also inconsistent with that being run by the co-defendant (Murdoch v Taylor [1965] AC 574). This section would be applicable in a “cut-throat” defence where two defendants are charged and their defence is that the other was responsible.

In considering matters in issue between the defendant and a co-defendant, where defendant A seeks to adduce defendant B’s bad character on the ground that B has a propensity to be untruthful, the evidence is only admissible if the nature and conduct of B’s defence is such as to undermine that of A, i.e. where the question of B’s truthfulness is truly relevant to the case for A <section 104(1)>.

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Evidence to correct a false impression <section 101(f)>

The defendant gives a false impression if he is responsible for making an express or implied assertion which is apt to give the court a false or misleading impression about him <section 105(1)(a)>.

<Section 105 (2)> defines the circumstances when a defendant is to be treated as being ‘responsible’ for such an assertion. This includes assertions the defendant makes during the proceedings (not necessarily whilst giving evidence) (section 105(2)(a), when being questioned after caution (section 105(2)(b)(i), and on being charged (section 105(2)(b)(ii).

The defendant can also be responsible for assertions made by other people. A witness who is called by a defendant (section 105(2)(c), witness being cross-examined who makes such an assertion where the court is satisfied that it was the defendant’s intention to elicit such a response from the witness or the question was likely to do so (section 105(2)(d)), and an assertion is made by any person out of court and the defendant adduces evidence of it in the proceedings (section 105(2)(e).

Therefore if the court is satisfied that the defendant is responsible for giving a false impression then the evidence of his bad character will be admissible. However, a defendant is not responsible for an assertion if he either withdraws or disassociates himself from the assertion <section 105(3)>. The Act does not elaborate on how this must be done. Presumably once the court decides that the defendant is responsible for the assertion he, or those he instructs, should make it known to the court and the prosecution that he withdraws or disassociates himself from it. The court may give a warning to a defendant of the consequences of not withdrawing or disassociating himself from the assertion but such a warning is not obligatory.  

Where the assertion is made in interview and the prosecution seek to adduce the evidence of bad character on this ground, and the defendant has not withdrawn or disassociated himself from it, then the defendant should do so in opposing the notice as set out in the Rules of Court to adduce such evidence.

However warnings may be particularly important in summary proceedings where the defendant is unrepresented. In such a case, the clerk and the prosecutor should give a warning to the defendant in the absence of the magistrates. Prosecutors should therefore ask for an adjournment so this can be done.

The defendant will also be responsible for the giving of a false impression by his conduct in the proceedings (other than the giving of evidence) (section 105(4)). Conduct includes appearance or dress. An example might be a defendant who attends trial dressed as a priest: he may not assert verbally that he is of good character but if he is of bad character this conduct could constitute the giving of a false impression.

Evidence (i.e. evidence which has probative value) that becomes admissible can only go as far as it is necessary to correct the false impression given (section 105(6)). In correcting the impression only the prosecution may introduce evidence of the defendant’s bad character (section 105(7)).

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Attack on another person’s bad character <section 101(1)(g)>

At common law a defendant was free to attack another person’s character in the course of his defence without putting his own character in issue. (Section 1(3)(ii) of the Criminal Evidence Act 1898) allowed a defendant to be cross-examined on his criminal record if his defence involved imputations on the character of the prosecutor, witnesses or a deceased victim.

Under <section 101(1)(g)> a defendant’s bad character will become admissible when there has been an attack on another’s person character. This can happen in one of three ways:

• The defendant adduces evidence attacking the other person’s character <section 106(1)(a)>;
• He (or his legal representative appointed under <section 38(4) of the Youth Justice and Criminal Evidence Act 1999> to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence or are likely to do so <section 106(1)(b)>; or
• The defendant imputes the other person’s character when questioned under caution or on being charged or officially informed he may be prosecuted <section 106(1)(c)>. This means that it will be important that the police include such an attack in the record of taped interview.

Evidence attacking the other person’s character is defined as evidence to the effect that the other person has committed an offence or has behaved, or is disposed to behave, in a reprehensible way <section 106(2)>. This is particularly wide and what behaving in a ‘reprehensible way’ means will vary from generation to generation. For the meaning of ‘in a reprehensible way’ see <Definition of bad character above>.

Bad character evidence will be admissible against a defendant who has made an attack upon any other person’s character, whether or not a defendant chooses to give evidence.

It is not necessary that the person attacked should be a witness in the proceedings, or a deceased victim, or a person whose hearsay statement is admitted in evidence, or even that the individual should be named. For example, an attack on another person’s character will include the defendant alleging that an unknown person or an associate he refuses to name committed the crime.

Where the court determines that an attack has taken place evidence of the defendant’s bad character becomes admissible (but only by the prosecution, <section 106(3)>).

<Section 101(1)(g)> is subject to the court’s discretion to exclude bad character, on application by a defendant, on the ground that it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it section <section 101(3)>.

As under the common law, there is no requirement in the Act that the attack on the other person’s character should be untrue or unfounded. This is an important rule because it prevents the court from becoming embroiled in deciding collateral issues of the truth or otherwise of the defendant’s allegations. However, where it can be shown that those allegations are true, then the court may exercise its discretion and exclude the evidence of bad character on the basis that it is fair to do so.

Under the Criminal Evidence Act 1898 if a defendant lost his ‘shield’ the evidence of bad character was only relevant to the defendant’s credibility as a witness and not to the issue of guilt. Evidence under (subsection (1)(g)) will primarily go to an issue of credit. However, it is important to note that the Act does not specify that the evidence should only go to credit, but bad character evidence may also be relevant to the issue of guilt. The Explanatory Notes to the Act provide:

“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.”

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Practice and Procedure

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European Convention on Human Rights

Do these provisions comply with ECHR?

Our advice is that Part 11 does comply with the ECHR. First, there is nothing in the European case-law to suggest that admitting a defendant’s bad character is contrary to a fair trial. In (X v Denmark Yearbook (1965) vol 8 p 370), the Strasbourg Commission said that, since many member states provide for disclosure of previous convictions in their criminal procedure, it was not prepared to hold that such a procedure was in violation of any provision of Article 6. See also (Unterpertinger v Austria (1991) 13 EHRR 175).

Secondly, there is no merit in the argument that the provisions reverse the burden of proof, and is therefore incompatible with Article 6. The provisions of the Act do not have this effect. They make evidence admissible against a defendant which was inadmissible before, and to that extent make it easier for the prosecution to discharge the burden of proving the defendant’s guilt. This is not at all the same as requiring a defendant to prove his innocence (see R v Cowan [1996] QB 373).

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Procedure

<Part 11 of the 2003 Act> will have a radical effect on the way cases are reviewed and prosecuted. Evidence of a defendant’s bad character will play a much greater part in the investigation and prosecution of cases than it did under the previous law. It is likely to form an essential part of the evidence against a defendant because bad character is now not only relevant to credit but also relevant to the issue of guilt.

The police will need to obtain details of a defendant’s bad character including previous convictions, such as the facts of the previous convictions, the nature of any defences used in the previous cases, and whether the defendant pleaded guilty or was found guilty. A new MG form (MG 16) has been developed for police officers to complete and pass to the prosecutor.

Evidence of bad character will need to be passed to the prosecutor at the earliest opportunity and preferably at the pre-charge stage.

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Code for Crown Prosecutors

The prosecutor will need to consider the bad character evidence, identify the relevant matters in issue and decide whether it will form part of the prosecution case against the defendant.

Bad character evidence may be used as circumstantial evidence going directly to the issue of guilt (e.g. R v Straffen). The prosecutor must assess the bad character evidence together with all other evidence and apply the Code for Crown Prosecutors. If the evidence taken as a whole (including bad character evidence) meets the tests set out in the Code then a prosecution will follow. Where the only evidence against a defendant is that of his bad character, the evidential test would not be satisfied and a prosecution must not take place.

In deciding whether to serve notice of an intention to adduce bad character evidence, the prosecution should always seek to serve the notice where one of the circumstances set out in <section 101(1)> is satisfied. Where the court has discretion to exclude such evidence under <section 101(1)(d) and (g)>, or where exceptionally, section 78 of PACE applies to <subsection (1)(c) and (f)>, prosecutors should serve notice to adduce bad character evidence unless it is highly likely that the court would exclude it because it would have such an adverse effect on the fairness of the proceedings.

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Proving bad character

If the defence do not agree the details of the bad character, then this will need to be proved in the normal way, such as, by a certificate of conviction, relying on section 74 of PACE 1984 or calling witnesses proving the bad character.

Section 74 of PACE is amended by <Part 5 of Schedule 37 of the 2003 Act>. Section 74 (2) and (3) effectively state that where a person’s conviction is proved, he is to be taken to have committed the offence of which he was convicted unless he proves that he did not commit the offence. The burden of proof is on the person seeking to show that the original court’s finding was wrong.

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Making the application

<The Crown Court (Amendment) Rules 2004> which inserts rule 23E of the Crown Court Rules 1982 and <The Magistrates’ Courts (Amendment) Rules 2004> which inserts rule 72A of the Magistrates’ Courts Rules 1981 deal with the procedure of adducing bad character evidence in the Crown court and magistrates’ court.

If the prosecution proposes to adduce evidence of a defendant’s bad character under (section 101), or proposes to cross-examine a witness with a view to eliciting such evidence, they must serve notice <see Annex A> on the defendant in the prescribed form <section 111(2)>. Once the notice is served and so long as the evidence falls within one of the circumstances of (section 101), then it is admissible unless, on the application by the defendant under (section 101(1)(d) or (g)), the court excludes such evidence on the grounds of fairness.  

In the Magistrates’ Court the notice must be served at the same time as the prosecutor complies or purports to comply with primary disclosure (renamed ‘initial’ disclosure after April 2005). In the Crown Court, the prosecution must serve notice of intention to adduce bad character evidence within 14 days of the case being committed, transferred, service of the prosecution case under section 51 or consent to the preferment of a bill of indictment. The details required in the notice are:

• The name and address of the party giving the notice;
• The details of the case;
• A description of the bad character evidence and how it is to be adduced or elicited (including the names of any relevant witnesses);
• The grounds for the admission of evidence under section 101; and
• If appropriate, applying for an extension of time.

Once the prosecution has served the notice, the defendant has to apply to exclude the evidence of bad character within seven days of receiving the notice. The application to exclude bad character evidence must contain:

• Name and address of the defendant;
• Details of the charges and the date when notice of intention to adduce bad character evidence was served;
• Why the admission of the bad character evidence would gave such an adverse effect on the fairness of the proceedings that the court should not admit it;
• The details as to the length of time between matters to which bad character evidence relates and the matters which form the subject of the offence charged;
• Applying to exclude evidence on any other ground other than the fairness test <section 101(3)>, e.g. (whether the evidence is important explanatory evidence or if the evidence give a false or misleading impression);
• Applying to exclude evidence of a previous conviction for an offence when under the age of 14 (Crown Court only); and
• If appropriate, applying for an extension of time.

A co-defendant who wants to adduce evidence of a defendant’s bad character must give notice within 14 days after the prosecutor complies with or purports to comply with primary disclosure. The defendant has seven days after the receipt of the notice to apply to exclude such evidence. The only basis on which a defendant may exclude such evidence is that the evidence does not satisfy the test, namely that it is of substantial probative value to an important matter in issue. The court has no power to exclude the evidence on the ground of fairness.

On receipt of the prescribed form, a party may oppose the application by giving notice in writing to the appropriate officer of the court and all other parties.

The defendant has power to waive his entitlement to notice if he informs the court and the party who would have given notice.

The court may allow an oral notice or application and extend or shorten any time limit even if it has expired, if it is in the interests of justice to do so. This allows the prosecution to apply to adduce the evidence of bad character where for example the defendant gives a false impression in court or where he attacks a prosecution witness in court.

Any notice or application may be sent by fax or e-mail with the consent of the recipient.

There are different time limits that apply to proceedings in the Court of Appeal (see <The Criminal Appeal (Amendment No 2) Rules 2004 SI 2004 No 2992>).

The Rules of court permit notices and applications to adduce bad character evidence to be made prior to trial, but they may, and likely will be, dealt with at the trial. The defence may seek to persuade the magistrates to disqualify themselves because they may be prejudiced having become aware that the defendant has previous misconduct. The arguments against this defence application include: the court must be made aware of ‘bad character’ evidence in the course of such applications to make sense of them; magistrates are judges of both fact and law and case law (R v Sang [1980] AC 402) has established that as they have always been responsible for determining issues of admissibility, they must know what evidence it is proposed to adduce; and that the 2003 has as its starting point an inclusionary approach to the evidence of bad character.

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Stopping contaminated cases <section 107>

<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.

Section 107 provides that a court may stop a case where evidence of bad character has been adduced under any of the paragraphs (c) – (g) and it later appears that the evidence has been contaminated, such that any resulting conviction would be unsafe. The power applies to a trial before a jury <section 107(1)> or where a jury is required to decide whether a person, who is deemed unfit to plead, did the act or omission charged under the Criminal Procedure (Insanity) Act 1964 (<section 107(3)>). <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.

There exist common law powers for a judge to withdraw a case from the jury at any time following the close of the prosecution case, such as no case to answer. Section 107 supplements those 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 <section 107(1)(b)>. This is intended to be a high test and if the judge were to consider that a direction to the jury along the lines in (R v H [1995] 2 AC 596) that if they are not satisfied that the evidence can be relied as free of contamination then they cannot rely on it against the defendant, would be sufficient to deal with any potential difficulties, then the case should not be withdrawn from the jury.

The reason why (section 107) only applies to trials by judge and jury is the fact that fact-finders other than juries will be sufficiently disciplined to evaluate the evidence correctly and to disregard the evidence if it is contaminated, and reach a finding on the basis of any other evidence that remains.

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)(b)(ii)>. If the judge orders an acquittal then the defendant is also to be acquitted of any other offence for which he could have been convicted, if the judge is satisfied that the contamination would affect a conviction for that offence in the same way <section 107(2)>.

Evidence is contaminated where it is false or misleading in any respect, or is different from what it would otherwise have been <section 107(5)(b)>.

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Offences committed by a defendant when a child <section 108>

(Section 16 (2) of the Children and Young Persons Act 1963) imposed a complete embargo on any reference in criminal proceedings to any offence in respect which the defendant aged 21 or over was convicted while under the age of 14.

<Section 108> provides that section 16(2) and (3) cease to have effect which means that the absolute bar to referring to previous convictions of a defendant under 14 is lifted. However, admissibility will depend on two factors. First, that the previous conviction and the present charge are offences triable only on indictment, and secondly, that the court has to be satisfied that it is in the interests of justice to admit such evidence.

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Assumption of the truth <section 109>

It is a general practice of the courts to assume that the relevance of the evidence or its probative value in relation to its admission is true solely for the purpose of determining the admissibility issue. <Section 109(1)> places this practice on a statutory basis.

However, the court need not assume that the evidence is true if it appears to the court, on the basis of the material before it, or of any evidence it hears, that no court or jury could reasonably find it to be true <section 109(2)>.

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Court’s duty to give reasons <section 110>

Where a court rules that evidence is evidence of a person’s bad character, or makes a ruling under <sections 100 and 101>, or where the judge stops the case where the ruling in contaminated, the court must state its reasons in open court. Where the ruling relates to the magistrates’ court, the ruling and the reasons for it must be entered into the court’s register. 

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Annex A

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Magistrates’ Courts Forms 

SCHEDULE Rule 72A

Forms

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FORM

Application for leave to adduce non-defendant’s bad character

(Section 100 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of applicant Name: Address: Name of prosecuting agency (if relevant)
2. Case details Case reference numbers: Date the trial or proceedings is due to start/or started: Name of defendant(s): Charges:	Give brief details of those charges to which this application applies.
3. Details of this application Please provide the following details (a) the particulars of the bad character evidence including how it is to be adduced or elicited in the proceedings (including the name of the relevant non-defendant and all other relevant witnesses); and (b) the grounds for the admission of evidence of a non-defendant’s bad character under section 100 of the 2003 Act.	Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no) If so please provide details.
Signed: Dated

 

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FORM

Notice of intention to adduce bad character evidence

(Section 101 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of party giving notice Name: Address: Name of prosecuting agency (if relevant)
2. Case details Case reference numbers: Date the trial or proceedings is due to start/or started: Name of defendant(s): Charges:	Give brief details of those charges to which this application applies.
3. Details of this Notice To the named defendant: You are hereby given notice that bad character evidence, particulars of which are detailed below, is to be adduced or elicited in these proceedings. The particulars of that bad character evidence are as follows:	In this section include: a) a description of the bad character evidence and how it is to be adduced or elicited in the proceedings (including the names of any relevant witnesses); and b) the grounds for the admission of evidence of the defendant’s bad character under section 101 of the 2003 Act. Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no). If yes, state your reasons.
Signed: Dated:

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FORM

Application to exclude evidence of the defendant’s bad character

(Sections 101 and 108(2) of the Criminal Justice Act 2003)

Details required	Notes
1. Details of the defendant Name: Address: Date of Birth: If you are in custody, please give your Prison Index No. and address where detained:
2. Case details Case reference numbers: Date the trial or proceedings is due to start/or started: Charges: Date that you were served with the notice of the intention to adduce bad character evidence in these proceedings:
3. Details of the application This section must include the following information: (a) why the admission of the bad character evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. (b) details as to the length of time between the matters to which the bad character evidence relates and the matters which form the subject of the offence charged. (c) if you are applying for the exclusion of this evidence on grounds other than section 101(3) of the 2003 Act, please set out such objections.	Note that an application to exclude this evidence under section 101(3) of the 2003 Act can only be made if you have been notified of a party’s intention to adduce this evidence under subsection 101(1)(d) (it is relevant to an important matter in issue between the defendant and the prosecution) or subsection 101(1)(g) (that the defendant has made an attack on another person’s character). Section 101(4) of the 2003 Act.
4. Extension of time Are you applying for an extension of time for service (yes/no) If so, state your reasons
Signed: Date:

 

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules insert a new rule into the Magistrates’ Courts Rules 1981 and insert new forms into the Magistrates’ Courts (Forms) Rules 1981. The new rule and forms provide for the practice and procedure to be followed in Magistrates’ Courts in England and Wales in connection with the admission of bad character evidence under Part II Chapter 1 of the Criminal Justice Act 2003.

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Crown Court Forms

SCHEDULE Rule 23E

Schedule to be inserted in the Crown Court Rules 1982

SCHEDULE 14

Forms

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FORM BC1

Application for leave to adduce non-defendant’s bad character

(Section 100 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of applicant Name: Address: Name of prosecuting agency (if relevant)
2. Case details Case reference numbers: Name of judge: Date the trial or proceedings is due to start/or started: Name of defendant(s): Charges:	Give brief details of those charges to which this application applies.
3. Details of this application Please provide the following details (a) the particulars of the bad character evidence including how it is to be introduced or elicited in the proceedings. This should also include the names of the relevant non-defendant and all other relevant witnesses; and (b) the grounds of admissibility under section 100 of the 2003 Act.	Section 100 of the 2003 Act Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no) If so please provide details.
Signed: Dated

 

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FORM BC2

Notice of intention to adduce bad character evidence

(Section 101 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of party giving notice Name: Address: Name of prosecuting agency (if relevant)
2. Case details Case reference numbers: Name of judge: Date the trial or proceedings is due to start/or started: Name of defendant(s): Charges:	Give brief details of those charges to which this application applies.
3. Details of this Notice To the named defendant: You are hereby given notice that bad character evidence, particulars of which are detailed below, is to be adduced or elicited in these proceedings. The particulars of that bad character evidence are as follows.	In this section state: a) a description of the bad character evidence and how it is to be adduced or elicited in the proceedings (including the names of any relevant witnesses); and b) the grounds for the admission of evidence of the defendant’s bad character under section 101 of the 2003 Act. c) why the admission of that evidence is in the interests of justice, where section 108 of the Act applies (evidence of conviction when under 14 used in proceedings for offence committed as an adult). Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no). If yes, state your reasons.
Signed: Dated:

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FORM BC3

Application to exclude evidence of defendant’s bad character

(Sections 101 and 108(2) of the Criminal Justice Act 2003)

Details required	Notes
1. Details of the defendant Name: Address: Date of Birth: If you are in custody, please give your Prison Index No. and address where detained:
2. Case details Case reference numbers: Name of judge: Date the trial or proceedings is due to start/or started: Charges: Date that you were served with the notice that bad character evidence is to be adduced in these proceedings:
3. Details of the application Include the following information: (a) why the admission of bad character evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it; (b) details as to the length of time between the matters to which the bad character evidence relates and the matters which form the subject of the offence charged; (c) if you are applying for the exclusion of this evidence on grounds other than section 101(3) of the 2003 Act, please set out such objections.	Note that an application to exclude this evidence under section 101(3) of the 2003 Act can only be made if you have been notified of a party’s intention to adduce this evidence under subsection 101(1)(d) (it is relevant to an important matter in issue between the defendant and the prosecution) or subsection 101(1)(g) (that the defendant has made an attack on another person’s character). Section 101(4) of the 2003 Act.
4. Offences committed by the defendant when a child If you are applying to exclude evidence of a previous conviction for an offence when under the age of 14, state (a) whether the offence for which you received a conviction when under the age of 14 was an offence triable only on indictment; and (b) why it would not be in the interests of justice for that bad character evidence to be admitted.	Section 108(2) of the 2003 Act.
5. Extension of time Are you applying for an extension of time for service (yes/no) If so, state your reasons
Signed: Date:

 

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules insert a new rule into the Crown Court Rules 1982 to provide for the practice and procedure to be followed in the Crown Court in England and Wales in connection with the admission of bad character evidence under Part II Chapter 1 of the Criminal Justice Act 2003.

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Court of Appeal Forms

SCHEDULE Rule 9D

Forms

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FORM 21

Application for leave to adduce non-appellant’s bad character

(Section 100 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of applicant Name: Address:
2. Case details Case reference numbers: Date leave to appeal was given, where leave is required, or after notice of appeal is given in any other case: Name of appellant(s): Conviction:	Give brief details of the conviction which is the subject of the appeal.
3. Details of this application Please provide the following details (a) the particulars of the bad character evidence including how it is to be adduced or elicited in the proceedings (including the names the relevant non-appellant and all other relevant witnesses); and (b) the grounds for the admission of evidence of a non-appellant’s bad character under section 100 of the 2003 Act.	Section 100 of the 2003 Act. Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no) If so please provide details.
Signed: Dated

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FORM 22

Notice of intention to adduce bad character evidence

(Section 101 of the Criminal Justice Act 2003)

Details required	Notes
1. Details of party giving notice Name: Address:
2. Case details Case reference numbers: Date leave to appeal was given, where leave is required, or after notice of appeal is given in any other case: Name of appellant(s): Conviction:	Give brief details of conviction to which this appeal relates.
3. Details of this Notice To the named appellant: You are hereby given notice that bad character evidence, particulars of which are detailed below, is to be adduced or elicited in these proceedings. The particulars of that bad character evidence are as follows:	In this section include: a) a description of the bad character evidence and how it is to be adduced or elicited in the proceedings (including the names of any relevant witnesses); b) the grounds for the admission of evidence of the appellant’s bad character under section 101 of the 2003 Act; c) why the admission of that evidence is in the interests of justice, where section 108 of the Act applies (evidence of conviction when under 14 used in proceedings for offence committed as an adult). Please attach any relevant documentation.
4. Extension of time Are you applying for an extension of time for service? (yes/no). If yes, state your reasons.
Signed: Dated:

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FORM 23

Application to exclude evidence of the appellant’s bad character

(Sections 101 and 108(2) of the Criminal Justice Act 2003)

Details required	Notes
1. Details of the appellant Name: Address: Date of Birth: If you are in custody, please give your Prison Index No. and address where detained:
2. Case details Case reference numbers: Date leave to appeal was given, where leave is required, or after notice of appeal is given in any other case: Conviction: Date that you were served with the notice of the intention to adduce bad character evidence in these proceedings:
3. Details of the application Include the following information: (a) why the admission of bad character evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. (b) details as to the length of time between the matters to which the bad character evidence relates and the matters which form the subject of the offence charged. (c) if you are applying for the exclusion of this evidence on grounds other than section 101(3) of the 2003 Act, please set out such objections.	Note that an application to exclude this evidence under section 101(3) of the 2003 Act can only be made if you have been notified of a party’s intention to adduce this evidence under subsection 101(1)(d) (it is relevant to an important matter in issue between the appellant and the prosecution) or subsection 101(1)(g) (that the appellant has made an attack on another person’s character). Section 101(4) of the 2003 Act.
4. Offences committed by the appellant when a child If you are applying to exclude evidence of a previous conviction for an offence when under the age of 14, state (a) whether the offence for which you received a conviction when under the age of 14 was an offence triable only on indictment; and (b) why it would not be in the interests of justice for that evidence to be admitted.	Section 108(2) of the 2003 Act.
5. Extension of time Are you applying for an extension of time for service (yes/no) If so, state your reasons.
Signed: Date

 

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules insert a new rule into the Criminal Appeal Rules 1968 to provide for the practice and procedure to be followed in the criminal division of the Court of Appeal in connection with the admission of bad character evidence under Part II Chapter 1 of the Criminal Justice Act 2003.

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Annex B

Case examples

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Case example 1 (Handling)

D - is arrested in possession of hi-fi equipment stolen in the course of a burglary committed the previous week. D states he bought it from a man in the pub called ‘Jon’ 4 days previously and that he had no reason to believe that it was stolen. D has convictions for theft, assault, driving whilst disqualified and handling stolen goods x 2. These convictions were all within the last 5 years and one of the two convictions for handling related to a television set stolen in the course of a burglary.

The important matter in issue between the Prosecution and the Defence is D’s knowledge or belief that the hi-fi equipment was stolen.

S.103(1) includes at (a) the question of whether the defendant has a propensity to commit offences of the kind with which he is charged, so that the convictions for theft and handling should be admissible as it seems unlikely that a court would find that for a reason of the length of time since the convictions or for any other reason it would be unjust for them to be included.

The same convictions, for theft and handling, being offences of dishonesty, could also show a propensity to be untruthful. The convictions for assault and driving whilst disqualified do not appear to be admissible, although if it could be shown that D. lied during the course of these offences this could be reconsidered.

Although S.27 Theft Act has not been repealed, the procedure under the Criminal Justice Act 2003 should be used and not the procedure under the 1968 Theft Act.

D goes to trial and on the day of trial ‘Jon’ comes to court and says he did indeed sell the hi-fi to D, which had been given to him by his brother who didn’t want it. The Prosecution request a short adjournment whilst the OIC establishes that Jon has convictions for assault, drive disqualified and possession of class B drugs with the intent to supply. S.100 applies to non-defendants bad character, which can only be admitted under limited circumstances. The defence do not agree to its admission, it is not important explanatory probative value in relation to a matter in issue (i.e. D’s honest belief and Jon’s truthfulness) and it does not show similarity between that misconduct and any misconduct in these proceeding. If Jon had pleaded guilty to his convictions, they would not be admitted. If however Jon had pleaded not guilty but was found to have lied during proceedings, then the convictions may be admissible as the issue is Jon’s credibility.

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Case Example 2 (Sexual Assault)

A doctor is charged with sexual assault against a patient. He denies that any indecency took place. Two separate patients in the last five years had made similar complaints resulting in separate trials. On both occasions the doctor was acquitted.

The important matter in issue between the defendant and the prosecution is whether V is telling the truth. Can the past allegations be admitted? Bad character is ‘evidence of, or a disposition towards, misconduct on D’s past, other then evidence which has to do with the alleged facts of the offence with which D is charged’. The previous complainants can come to court to give evidence of D’s conduct towards them (as in R v Z) it defies belief that it is just an unlucky co-incidence that this number of patients would make up this kind of allegation independently of each other. Their evidence would show that D had ‘a propensity to commit offences of the kind with which he is charged’ (S.103 (1)(a)) and is clearly relevant.

The court would then have to assess whether there is a risk that the admission of the previous complaints would have such an adverse effect on the fairness of the proceedings that they ought not to be admitted. There is a risk that a jury would pass straight from the evidence of the previous complaints to a conclusion of guilt on this occasion without placing it properly in context. It is anticipated that a court would conclude that in view of the considerable probative value on the central issue in the case, that it would be fair for the evidence to be admitted, not with standing the risk that it may be applied prejudicially. Not to admit it would deny fact finders evidence without which they would be severely hampered in assessing the truth of the respective intending accounts. It can be properly weighed along with other evidence with the assistance of an appropriate direction or reminder of the proper approach.

If the complainants had come forward 20 years previously, then the court might consider that by reason of the length of time since the conviction of for any other reason it would be unjust for it to apply in this case (s.103(3)).

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Case Example 3 (Shoplifting)

D is arrested for theft from a shop. She has 3 conviction for theft from shops committed with three years proceeding the date of the alleged offence. Are her convictions admissible?

There is no indication what the issue is, but we shall assume for the time being that the issue is dishonesty. The situation is that D is seen putting the item in her bag and leaving the shop with it but without paying. On challenge she says she has made an honest mistake, due to being stressed, distracted or forgetful.

This issue is the credibility of D’s defence of honest mistake. The fact she has stolen from shops three times within the proceeding three years tends to make it more likely that she has done so this time, and less likely that her defence is true. The previous convictions clearly go to an important matter in issue.

In addition if D has advanced a similar explanation on a previous occasion, then it is likely to be untrue on this occasion and will be admissible (subject to the discretion to exclude).

The next question is if D makes an application to exclude the evidence, whether the court would exclude it because it would be fair to do so (s.101(3)). The court must have regard in particular to the length of time between the offence charged and the previous convictions (s.101 (4)).

The risk of prejudice in such a case will be that the fact finders might give her past record undue weight, in the situation where D has left the shop without paying and has given an explanation, the evidence against D is fairly strong and the evidence of previous convictions can be admitted without necessarily distorting the fact finders reasoning by causing them to convict her essentially because of her record. The risk of giving it undue weight is either none or negligible. If it exists at all, the evidence is so germane to the issue in the case that the fact finders would be denied material central to their deliberations on the