Character Evidence in Criminal Proceedings

Introduction

Character evidence in criminal proceedings is governed by the Criminal Justice Act 2003 (CJA 2003), Part 11, which reformed the common law rules on bad character and good character. The Act distinguishes between bad character evidence (evidence of misconduct or dispositions of the defendant or non-defendants) and good character evidence (evidence of the defendant’s good reputation or absence of previous convictions). The rules governing character evidence are designed to balance the probative value of character information against the risk of prejudice.

Bad Character of the Defendant

Section 98 of the CJA 2003 defines bad character as evidence of, or a disposition towards, misconduct, other than evidence that has to do with the alleged facts of the offence with which the defendant is charged or is evidence of misconduct in connection with the investigation or prosecution of that offence. Misconduct includes the commission of an offence or other reprehensible behaviour.

Section 101 provides that evidence of the defendant’s bad character is admissible only if one of seven gateways applies:

Gateway (a): the defendant and the prosecution agree to the evidence being admissible. This gateway is rarely used in practice.

Gateway (b): the evidence is adduced by the defendant themselves or is given in answer to a question asked by the defendant in cross-examination and intended to elicit it.

Gateway (c): the evidence is important explanatory evidence — that is, 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 is substantial.

Gateway (d): the evidence is relevant to an important matter in issue between the defendant and the prosecution. Important matters in issue include the defendant’s propensity to commit offences of the kind with which they are charged (including propensity to be untruthful). In R v Hanson (2005), the Court of Appeal held that the court should consider the probative value of the evidence, the number and type of previous convictions, and the length of time since the offences.

Gateway (e): the evidence has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. This gateway enables one defendant to adduce evidence of another defendant’s bad character where it is relevant to the defence case.

Gateway (f): the evidence is necessary to correct a false impression given by the defendant about themselves.

Gateway (g): the defendant has made an attack on another person’s character, and the evidence is admissible to rebut that attack.

Safeguards and Exclusion

Section 101(3) provides that the court must not admit bad character evidence under gateways (d) or (g) if it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The court must consider the nature of the bad character evidence, its age and relevance, the extent to which it would prejudice the jury, and the overall fairness of the proceedings.

The court also has a general discretion to exclude bad character evidence under section 78 of PACE (unfair evidence) and under section 126 of the CJA 2003 (discretion to exclude bad character evidence where its probative value is outweighed by the risk of prejudice).

Bad Character of Non-Defendants

Section 100 of the CJA 2003 restricts the admissibility of evidence of the bad character of a person other than the defendant. Such evidence is admissible only if: all parties agree; the evidence is important explanatory evidence; or the evidence has substantial probative value in relation to a matter in issue in the proceedings and is of substantial importance to the case as a whole.

The restriction on non-defendant bad character evidence protects witnesses and other persons from having their character attacked without proper justification.

Good Character Directions

The good character direction is an important protection for defendants with no previous convictions or who can demonstrate good character. Where a defendant is of good character (either by having no previous convictions or by positive evidence of good reputation), the judge must give the jury a direction on the relevance of good character.

The direction has two components: the propensity direction — that good character makes it less likely that the defendant committed the offence; and the credibility direction — that good character makes the defendant’s evidence more likely to be truthful. In R v Vye (1993), the Court of Appeal held that the judge must give a good character direction where a defendant of good character gives evidence, and should consider giving it where a defendant of good character does not give evidence.

The good character direction is a valuable safeguard for defendants, particularly where the prosecution case is weak. Failure to give a proper direction may render a conviction unsafe.

The Golden Rule

The common law golden rule — that evidence of the defendant’s bad character is inadmissible if its only purpose is to show that the defendant is the kind of person likely to commit the offence — has been modified but not abolished by the CJA 2003. The gateway system provides a structured framework for determining when bad character evidence is admissible, but the underlying principle remains that character evidence should not be used to convict a defendant simply because they are a person of bad character.

Propensity

Propensity is a central concept in the bad character regime. Section 103(1) provides that matters in issue between the defendant and the prosecution include the question whether the defendant has a propensity to commit offences of the kind with which they are charged. Propensity may be established by evidence of previous convictions, particularly where the previous offences share features with the current charge.

In R v Hanson (2005), the Court of Appeal held that a propensity to commit offences of the kind charged may be established by a single previous conviction where it demonstrates a particular characteristic or pattern of behaviour. The court also emphasised that propensity to untruthfulness is relevant only where the defendant’s credibility is in issue.

Conclusion

Character evidence in criminal proceedings is governed by a structured framework under the Criminal Justice Act 2003. The gateway system for bad character evidence balances the probative value of character information against the risk of prejudice, while the good character direction provides an important safeguard for defendants of good character. The law continues to evolve as the courts develop principles for the application of the statutory provisions.