CHAPTER ONE – INTRODUCTION
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.[2]
Since the first edition of this guide, the landscape of criminal evidence has continued to evolve in both judicial interpretation and practical application. In the four years since the first edition of this text, the Court of Appeal (Criminal Division) has considered bad character as a ground of appeal against conviction in no fewer than 200 cases. That is a large proportion of total conviction appeals between October 2020 and September 2023[3] (approximately 500).
As always, the aim of this work is to make it easier for practitioners, students, and users of the criminal justice system to navigate this complex and important area. This second edition offers a refined analysis that reflects recent developments and enhanced practical guidance.
The CJA’s purpose is to aid juries in making objective assessments by regulating the natural inclination to form judgments based on a defendant’s character. There is new guidance on evolving topics:
- gang-related bad character,
- additions to the types of non-conviction bad character evidence
- non-defendant bad character, especially the making of false allegations,
- giving a false impression and correcting it with bad character evidence
- cross-admissibility and the combination direction on both propensity and coincidence
- a suggested checklist for approaching bad character issues
I have also incorporated invaluable feedback from readers who have used the first edition in practice and study. In footnotes you will find references to cases that, while not adding to principle, contain factual scenarios on the relevant issue. Feedback has indicated that looking at similar factual scenarios can assist readers to decide how to deploy evidence in their own cases.
Taking its cue from the legislation itself, this text 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.
CHAPTER TWO – 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 the defendant 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 evidence of bad character.[5] As examined later in this Chapter, a defendant is entitled to seek to demonstrate that he did not in fact commit the offence.
A finding of dangerousness (during sentencing) is not part of the commission of the offence.[6]
A spent conviction is, nonetheless, evidence of the commission of an offence. The fact that it is spent may, depending on the statutory test being applied, be relevant to whether it is admissible.[7]
2.1.1 Foreign Convictions
The general definition does not deal directly with foreign convictions (including Scottish, Northern Irish, and EU ones). However, in terms of gateway (d), s.103(7) explicitly contemplates the use of convictions for an offence under the law of any country outside England and Wales in the context of determining whether two offences are of the same description or category as required for s.103(2) (as to which see Chapter 4 gateway (d) discussion). Section 108(2A) performs a similar function in relation to comparing a foreign conviction incurred when the defendant was under the age of 14 (see Chapter 5).
As far as the use of foreign convictions under the other gateways and non-defendant bad character is concerned, there is limited case law. Section 103(7) and s.108(2A) provide bespoke rules for specific uses of convictions that arise in those sections. Their wording does not expressly preclude the use of foreign convictions in other ways. The definition of misconduct in s.112(1) is not restricted by jurisdiction. It is likely, therefore, that foreign convictions can be used as evidence of bad character more generally.
Caution should be exercised when ascertaining the accuracy of any record of foreign convictions, and the details of the underlying facts. The onus is on the prosecution; the fact that a defendant may have been present for some or all of the foreign proceedings does not relieve the prosecution of its obligation to obtain suitable evidence and details of the conviction.[8] It can often be difficult to establish sufficient similarity or otherwise of a foreign conviction to a comparable offence or category of offences in England and Wales (especially for propensity-based arguments, where elements of the offending may be particularised differently). However, in Donnelly evidence of a French conviction which may have required a different level of knowledge or intent on the part of the defendant was still admissible under gateway (d) as showing a propensity to commit the equivalent offence in England and Wales. Note that the French conviction did not fall under s.103(4)(a) (i.e. was not in the same terms as England and Wales offence), but it qualified under “any other way” of showing propensity under s.103(2).[9]
Questions of procedural (or even substantive) fairness in a foreign jurisdiction might trigger exclusionary provisions: see, for example, Brooks, concerning foreign convictions from France, Spain and Morocco.[10]
If a defendant disputes a conviction, s.74(3) of PACE no longer assists in respect of non-UK convictions. As of 31 December 2020 convictions in EU Member States no longer give rise to the legal presumption that the defendant has committed that offence unless the contrary is proved: s.74(3) of PACE.[11] Presumably, EU convictions are now to be treated like any other non-UK convictions. Where there is no s.74 presumption, and the relevance of the disputed conviction might be diminished to the extent that, bearing in mind the risk of satellite litigation, it ought not to be used.[12]
In Kordasinski,[13] the defendant was convicted of rape, assault by penetration, and false imprisonment (acquitted of fourth charge of kidnapping). The question was whether and how the defendant’s previous convictions in Poland (2000) were admissible and then provable. The previous convictions were similar in that they were equivalent to domestic convictions for rape, threats with a weapon, and false imprisonment, of two women each in identical but separate circumstances on the same day. The defendant accepted that the convictions established a propensity and so were admissible under gateway (d) and s.103. However, he said that he had been wrongly convicted in Poland, disputing the evidence given there and the Polish criminal procedures and standards of proof. He wished to restrict the admissible evidence to the fact of the convictions only, excluding any details of evidence.
The Court held that:
- The rule in Hollington v Hewthorn[14] no longer applies to UK[15] or foreign convictions. Section 99(1) of the CJA abolishes common law rules governing the admissibility of evidence of bad character in criminal proceedings. Section 99(2) and s.118(1) together do not preserve Hollington v Hewthorn.[16]
- The Polish convictions were admissible under both gateways (d) (with s.103) and (g).
- Under s.101(3) the details could not fairly have been put before the jury.
As to whether non-conviction foreign bad character can be used, the concerns expressed above as to detail, proof, and satellite litigation will normally be heightened. Their use is not, however, precluded by the wording of the legislation. In McAllister,[17] details of an allegation tried in Scotland were admissible in England under gateway (d) to show propensity, notwithstanding that the Scottish jury had returned a verdict of ‘not proven’. In Clifford, the judge admitted evidence of a complaint said to have taken place in Spain.[18]
2.2 “Other Reprehensible Behaviour”
By definition, “other reprehensible behaviour” means non-conviction evidence.
The CJA does not elaborate on the wide variety of non-conviction incidents that might be covered by “reprehensible behaviour”.
Examples of things that might be “other reprehensible behaviour” include:
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[1] Evidence of Bad Character in Criminal Proceedings (Law Com No 273, 2001).
[2] This text deals with ss.98-112. Section 113 gives effect to a Schedule of amendments concerning the armed forces, an area outside the scope of this book.
[3] The last available annual review data at the time of publication, so this figure is short by 1 year’s data.
[4] See Chapter 4 gateway (g).
[5] See Hussain [2008] EWCA Crim 1117 and discussion below concerning facts underlying a charge.
[6] Reid [2024] EWCA Crim 308, [47]. See below on non-conviction bad character evidence.
[7] Rehabilitation of Offenders Act 1974, s.7(2)(a).
[8] This, it is unnecessary to say, goes for all bad character evidence whether of foreign extraction or not: see Humphris [2005] EWCA Crim 2030.
[9] Donnelly [2007] EWCA Crim 3360, [15].
[10] Brooks [2014] EWCA Crim 562. For the exclusionary provisions see Chapter 6.
[11] For old cases on s.74 and EU convictions, see Erhan [2014] EWCA Crim 1523; Zawadzka [2016] EWCA Crim 171; Reece [2020] EWCA Crim 44.
[12] See Brooks [2014] EWCA Crim 562 re the Moroccan conviction.
[13] Kordasinski [2006] EWCA Crim 2984, [2007] 1 Cr App R 17.
[14] Hollington v Hewthorn [1943] 1 KB 587: i.e. that a criminal conviction was not admissible as evidence that the convicted person was guilty of the offence for which he was convicted.
[15] By virtue of s.73 of PACE.
[16] Kordasinski [2006] EWCA Crim 2984, [2007] 1 Cr App R 17, [72].
[17] McAllister [2008] EWCA Crim 1544, [2009] 1 Cr App R 10.
[18] Clifford [2014] EWCA Crim 2245, [45]. This was an appeal against sentence; the judgment does not reveal whether the admissibility of the Spain allegation was disputed.