15. Character Evidence
Includes:
- Evidence of Bad Character (Section 98 CJA 2003);
- Defendant Bad Character Evidence (Section 101 CJA 2003);
- Non-Defendant Bad Character (Section 100 CJA 2003);
o R v Hanson (2005)
- Evidence of Accused’s Good Character.
o R v Vye (1993)
o R v Hunter (2015)
Evidence of Bad Character
Evidence of bad character has to be differentiated from evidence which shows someone in a
bad light. It is, instead defined under Section 98 Criminal Justice Act 2003 as:
Evidence of, or of a disposition towards, misconduct.
However, evidence which:
(a) has to do with the alleged facts of the offense with which the defendant is
charged, or
(b) is evidence of misconduct* in connection with the investigation or
prosecution of that offence,
Is not classed as bad character evidence.
*‘Misconduct’ refers to the commission of an offence or other reprehensible
behaviour.
- Reprehensible behaviour is fact specific, connoting culpability or blameworthiness.
- Acts which are irritating, inconvenient, or upsetting to another are not
reprehensible.
At face value, almost all evidence can be adduced as bad character evidence under the
Section 98 definition, so it should not be taken entirely literally. The nexus envisaged in
McNeill is temporal; anything with a relevant relationship* to the facts can be adduced
as bad character evidence, as long as it is not direct evidence of the offence itself.
- *Related in close association with or in time, reflection of propensity, anything
which establishes a motive is also permissible.
{So essentially, bad character is evidence of:
The commission of an offence; or
- Includes convictions, cautions, other counts on the indictment, offences
never prosecuted, offences prosecuted and acquitted.
Reprehensible Behaviour;
Which does not relate specifically to the facts or of the investigation/ prosecution of
the offence being tried in court.}
Bad character evidence is not automatically admissible just because it has fallen within
the Section 98 definition. It may only be admitted in evidence if it comes under the
grounds of at least one of the statutory ‘gateways’, or if all parties agree on
admissibility. These ‘gateways’ to the applicant party act as safeguards to the
respondent party, ensuring only relevant evidence is admitted, as to avoid prejudice.
Convictions
, F13.5 If a defendant has been convicted of an offence that is admitted to show
bad character, guilt of the offence is presumed unless the contrary is proven.
Where convictions are relied upon, it is likely that the value of the evidence will
depend on the proof of the offence, not merely upon the actual previous
conviction.
- Where the circumstances of the events are of the essence, there is an
obligation on the party relying to be specific.
In this context ‘previous convictions’ also applies to offences that occurred
subsequent to the charged offence, as this may evidence propensity expected to
continue.
The same rules apply to the use of cautions.
Previous convictions before a foreign court may be adduced as evidence of bad
character, if a corresponding offence in England and Wales exists.
However, where a defendant has not been convicted, and disputes the evidence
alleged, the jury should be directed that bad character should not be accepted
unless bad character can be proven to the criminal standard.
Proof of Convictions
F12.1 Section 73 PACE 1984 provides proof of convictions and acquittals in the UK
are done through a certificate of conviction or acquittal, together with proof that the
persons name in the certificate is the person whose conviction/ acquittal is in issue.
Previous Allegations
There is no protection under s98 preventing previous charges being admitted
as bad character evidence, unless the suggestion is that the accused committed
the offence.
However, the court should not permit a previous allegation to be raised unless
it is demonstrably relevant.
Defendant Bad Character Evidence
Includes:
- Evidence of Bad Character (Section 98 CJA 2003);
- Defendant Bad Character Evidence (Section 101 CJA 2003);
- Non-Defendant Bad Character (Section 100 CJA 2003);
o R v Hanson (2005)
- Evidence of Accused’s Good Character.
o R v Vye (1993)
o R v Hunter (2015)
Evidence of Bad Character
Evidence of bad character has to be differentiated from evidence which shows someone in a
bad light. It is, instead defined under Section 98 Criminal Justice Act 2003 as:
Evidence of, or of a disposition towards, misconduct.
However, evidence which:
(a) has to do with the alleged facts of the offense with which the defendant is
charged, or
(b) is evidence of misconduct* in connection with the investigation or
prosecution of that offence,
Is not classed as bad character evidence.
*‘Misconduct’ refers to the commission of an offence or other reprehensible
behaviour.
- Reprehensible behaviour is fact specific, connoting culpability or blameworthiness.
- Acts which are irritating, inconvenient, or upsetting to another are not
reprehensible.
At face value, almost all evidence can be adduced as bad character evidence under the
Section 98 definition, so it should not be taken entirely literally. The nexus envisaged in
McNeill is temporal; anything with a relevant relationship* to the facts can be adduced
as bad character evidence, as long as it is not direct evidence of the offence itself.
- *Related in close association with or in time, reflection of propensity, anything
which establishes a motive is also permissible.
{So essentially, bad character is evidence of:
The commission of an offence; or
- Includes convictions, cautions, other counts on the indictment, offences
never prosecuted, offences prosecuted and acquitted.
Reprehensible Behaviour;
Which does not relate specifically to the facts or of the investigation/ prosecution of
the offence being tried in court.}
Bad character evidence is not automatically admissible just because it has fallen within
the Section 98 definition. It may only be admitted in evidence if it comes under the
grounds of at least one of the statutory ‘gateways’, or if all parties agree on
admissibility. These ‘gateways’ to the applicant party act as safeguards to the
respondent party, ensuring only relevant evidence is admitted, as to avoid prejudice.
Convictions
, F13.5 If a defendant has been convicted of an offence that is admitted to show
bad character, guilt of the offence is presumed unless the contrary is proven.
Where convictions are relied upon, it is likely that the value of the evidence will
depend on the proof of the offence, not merely upon the actual previous
conviction.
- Where the circumstances of the events are of the essence, there is an
obligation on the party relying to be specific.
In this context ‘previous convictions’ also applies to offences that occurred
subsequent to the charged offence, as this may evidence propensity expected to
continue.
The same rules apply to the use of cautions.
Previous convictions before a foreign court may be adduced as evidence of bad
character, if a corresponding offence in England and Wales exists.
However, where a defendant has not been convicted, and disputes the evidence
alleged, the jury should be directed that bad character should not be accepted
unless bad character can be proven to the criminal standard.
Proof of Convictions
F12.1 Section 73 PACE 1984 provides proof of convictions and acquittals in the UK
are done through a certificate of conviction or acquittal, together with proof that the
persons name in the certificate is the person whose conviction/ acquittal is in issue.
Previous Allegations
There is no protection under s98 preventing previous charges being admitted
as bad character evidence, unless the suggestion is that the accused committed
the offence.
However, the court should not permit a previous allegation to be raised unless
it is demonstrably relevant.
Defendant Bad Character Evidence
