A defining characteristic of the criminal law is the way in which its rules of evidence fundamentally change the facts of a case.
This is because of the unique role of the jury: it is the sole arbiter of facts, but has no say in the law that governs what evidence it is given in order to determine the facts. There are sound reasons for this. Our criminal justice system relies on transparency, consistency, and fairness being done and seen to be done. The law is often not easy to comprehend and apply. We therefore leave this task to the lawyers. The resulting factual matrix, achieved after application of the law of evidence, is used by the jury to reach a verdict.
Whether bad character evidence will be used is a question asked in all cases that are expected to proceed to trial. It is natural to draw inferences about a person from known facts or assertions. We all know how easy it is instantly to form a view about another person from a profession, hobby, mannerism or speech. But the criminal justice process relies on the making of objective assessments of another person without reference to personal prejudice.
The human ability to control prejudices and make objective assessments has often proved inadequate. Parliament has taken the view that people who determine the facts in a criminal trial need assistance in order to achieve objective assessments. Thus, the natural inclination to make inferences from evidence about a person’s character is now regulated.
At common law, evidence from which inferences about the bad character of the defendant can be drawn was generally called ‘similar fact evidence’. After reports from the Criminal Law Revision Committee (CLRC) in 1972 and the Law Commission in 1996 and 2001,1 Parliament enacted the Criminal Justice Act 2003 Part 11 Chapter 1 (‘CJA’), which came into force on 15 December 2004.
I do not intend to linger on the question of whether bad character should be part of the criminal trial—that is a question that has been examined elsewhere2 and, for now, is settled by the CJA. This is a guide to when, and how, bad character evidence might be used according to ss.98-113 of the CJA.
The opening sections, 98 and 99, set the stage for bad character evidence. They define the title phrase ‘bad character’ and abolish the common law.
Section 100 deals with three ways in which evidence of a non-defendant’s bad character may be admitted.
Section 101 sets out the circumstances in which evidence of a defendant’s bad character may be admitted. The seven paragraphs are commonly known as the seven ‘gateways’.
There then follow five sections, 102-106, expanding upon the five substantive gateways: (c), (d), (e), (f) and (g). These gateways are ‘substantive’ for the purposes of a discussion about the CJA, in contrast to gateways (a) and (b) (which require the defendant’s consent).
Sections 107 and 108 deal with some specific scenarios that may arise (contaminated evidence and convictions committed when a child).
Section 109 assists in the circumstance where the bad character evidence is disputed in some way.
Sections 110 and 111 prescribe a duty to give reasons and allow for the making of rules of court.
Finally, s.112 gives definitions of certain terms used in the preceding sections.3
Taking its cue from the legislation itself, this book will normally use male gender-specific pronouns, relying upon the interpretive rule that these actually refer to all genders.
The task of interpreting the CJA is primarily case law based. I have prioritised giving media-neutral citations where possible.
WHAT IS BAD CHARACTER EVIDENCE?
This Chapter deals with the different types of bad character evidence, from allegations and acquittals to cautions and foreign convictions. It examines how s.98(a) and s.109 operate, the effect of s.74 of the Police and Criminal Evidence Act 1984 (‘PACE’), the meaning of relevance, and how to give notice or apply to admit bad character evidence. Good character and appropriate directions are also examined.
“Bad character” is defined as evidence of, or of a disposition towards, misconduct.
“98 ‘Bad character’
References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.”
Section 112 defines “misconduct” by the following closed definition: “‘misconduct’ means the commission of an offence or other reprehensible behaviour.”
In the context of gateway (g), the definition of ‘character’ when referring to another person’s character is technically different from that of ‘bad character’ as defined in ss 98 and 112(1). Section 106(2) gives an exclusive, closed definition of evidence that attacks another person’s character. However, in essence it is very similar to ‘bad character’ because it is evidence “to the effect” that someone has committed an offence or has behaved, or is disposed to behave, in a reprehensible way.4
2.1 “The Commission Of An Offence”
This is straightforward. If D has a conviction from England and Wales recorded against him on his Police National Computer record (‘PNC’), this is evidence of bad character. Note that, technically speaking, the conviction is not itself bad character. It is…
1 Evidence of Bad Character in Criminal Proceedings (Law Com No 273, 2001).
2 Other, important, texts have been produced in the academic context by scholars including Professor Spencer and Dr Redmayne. These will be necessary reading for those interested in the development of the law, and principled arguments for and against the use of bad character in the criminal trial.
3 Section 113 gives effect to a Schedule of amendments concerning the armed forces, an area outside the scope of this book.
4 See Chapter 4 gateway (g).