Bad character
What is Bad character evidence:
Under s98 CJA, ‘bad character’ is defined as evidence of, or which shows a disposition towards,
misconduct. Misconduct is defined as ‘the commission of an offence or other reprehensible behaviour’
under s122. This bad character evidence can be shown in the defendant’s previous convictions.
General position:
The general rule is that the defendant’s bad character is inadmissible in trial unless it falls under a
gateway under s101(1) CJA.
Gateway D:
The relevant gateway in which the bad character evidence could be admitted under is gateway
s101(1)(d); it is relevant to an important matter in issue between the defendant and prosecution.
It will be relevant because:
a. It could show the defendant has a propensity to commit offences of the kind which they are
currently charged with, and
b. It could show the defendant has a propensity to be untruthful.
Does D have the Propensity to commit offences of the kind which D is
currently charged with:
The prosecution will have to show that, demonstrating there is a propensity will make it more likely
that the defendant commit the offence. This can be established by demonstrating either:
a. The defendant has committed an offence of the same description as the current offence, or
b. The defendant has committed an offence of the same category as the current offence.
Of the same category:
This will only apply when the current offence and previous offence fall into a prescribed category
under s103(4)(b):
(a) the sexual offences category, which specifies a number of sexual offences committed against
children under 16 years of age; and
(b) the theft category, which includes the following offences:
(i) theft
(ii) robbery
(iii) burglary
(iv) aggravated burglary
(v) taking a motor vehicle or conveyance without authority
(vi) aggravated vehicle taking
(vii) handling stolen goods
(viii) going equipped for stealing
(ix) making off without payment
(x) any attempt to commit any of the above substantive offences
(xi) aiding, abetting, procuring or inciting the commission of any above offence.
APPLY – Does the current offence match anything in the above list?
If not – a propensity to commit an offence of the same category as the current charge will
not exist
If yes – a propensity to commit an offence of the same category as the current charge will
be shown.
What is Bad character evidence:
Under s98 CJA, ‘bad character’ is defined as evidence of, or which shows a disposition towards,
misconduct. Misconduct is defined as ‘the commission of an offence or other reprehensible behaviour’
under s122. This bad character evidence can be shown in the defendant’s previous convictions.
General position:
The general rule is that the defendant’s bad character is inadmissible in trial unless it falls under a
gateway under s101(1) CJA.
Gateway D:
The relevant gateway in which the bad character evidence could be admitted under is gateway
s101(1)(d); it is relevant to an important matter in issue between the defendant and prosecution.
It will be relevant because:
a. It could show the defendant has a propensity to commit offences of the kind which they are
currently charged with, and
b. It could show the defendant has a propensity to be untruthful.
Does D have the Propensity to commit offences of the kind which D is
currently charged with:
The prosecution will have to show that, demonstrating there is a propensity will make it more likely
that the defendant commit the offence. This can be established by demonstrating either:
a. The defendant has committed an offence of the same description as the current offence, or
b. The defendant has committed an offence of the same category as the current offence.
Of the same category:
This will only apply when the current offence and previous offence fall into a prescribed category
under s103(4)(b):
(a) the sexual offences category, which specifies a number of sexual offences committed against
children under 16 years of age; and
(b) the theft category, which includes the following offences:
(i) theft
(ii) robbery
(iii) burglary
(iv) aggravated burglary
(v) taking a motor vehicle or conveyance without authority
(vi) aggravated vehicle taking
(vii) handling stolen goods
(viii) going equipped for stealing
(ix) making off without payment
(x) any attempt to commit any of the above substantive offences
(xi) aiding, abetting, procuring or inciting the commission of any above offence.
APPLY – Does the current offence match anything in the above list?
If not – a propensity to commit an offence of the same category as the current charge will
not exist
If yes – a propensity to commit an offence of the same category as the current charge will
be shown.
