Principles and procedures to admit and exclude evidence - Bad character evidence: definition and the seven gateways (s.101(1) Criminal Justice Act 2003)

Learning Outcomes

After reading this article, you will be able to define 'bad character' evidence under the Criminal Justice Act 2003, explain the general rule of exclusion, and identify and apply the seven statutory gateways in s.101(1) CJA 2003 through which bad character evidence may be admitted. You will also understand the court’s powers to exclude such evidence to ensure a fair trial, and be able to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the principles and procedures for admitting and excluding evidence, with particular focus on bad character evidence. This article covers:

• the definition of bad character and misconduct under the CJA 2003
• the general rule of inadmissibility of bad character evidence
• the operation and requirements of the seven gateways in s.101(1) CJA 2003
• the court’s discretion and duty to exclude unfairly prejudicial bad character evidence

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the general rule about admitting evidence of a defendant’s bad character in criminal proceedings?
2. Name two of the seven gateways in s.101(1) CJA 2003 that allow bad character evidence to be admitted.
3. True or false? The court must exclude bad character evidence admitted under gateway (d) if its admission would make the trial unfair.
4. If a defendant attacks the credibility of a prosecution witness, under which gateway might the prosecution seek to admit the defendant’s previous convictions?

Introduction

Evidence of a defendant’s bad character is highly prejudicial and can unfairly influence a court or jury. The Criminal Justice Act 2003 (CJA 2003) sets out a strict statutory framework for when such evidence may be admitted. The general rule is that bad character evidence is inadmissible unless it passes through one of seven specific gateways in s.101(1) CJA 2003. This article explains the definition of bad character, the general rule of exclusion, each of the seven gateways, and the court’s powers to exclude evidence to ensure fairness.

Definition and General Rule

Key Term: bad character
Evidence of, or a disposition towards, misconduct by the defendant, other than evidence relating to the alleged facts of the offence charged or misconduct in the investigation or prosecution of that offence (s.98 CJA 2003).

Key Term: misconduct
The commission of an offence or other reprehensible behaviour (s.112 CJA 2003).

The general rule is that evidence of a defendant’s bad character is inadmissible unless it falls within a statutory exception. The aim is to prevent unfair prejudice and ensure the defendant is tried only for the current allegation.

The Seven Gateways to Admissibility

Section 101(1) CJA 2003 lists seven circumstances—known as 'gateways'—through which bad character evidence may be admitted.

Gateway (a): Agreement of All Parties

If all parties to the proceedings agree, bad character evidence may be admitted. This is often used tactically, for example, to present a full picture or to avoid later surprise.

Gateway (b): Evidence Adduced by the Defendant

If the defendant introduces their own bad character evidence, or elicits it through cross-examination, it is admissible. Defendants may do this to explain context or to show that the current allegation is out of character.

Gateway (c): Important Explanatory Evidence

Bad character evidence may be admitted if it is important explanatory evidence.

Key Term: important explanatory evidence
Evidence without which the court or jury would find it impossible or difficult to properly understand other evidence in the case, and whose value for understanding the case as a whole is substantial (s.102 CJA 2003).

This gateway is used where background context is essential for understanding the main evidence.

Worked Example 1.1

A defendant is charged with assaulting a partner. The prosecution wants to introduce evidence of previous assaults on the same partner to explain the partner’s behaviour and testimony.

Question: Under which gateway might this evidence be admitted?

Answer:
Gateway (c) (important explanatory evidence), if the court is satisfied that without this context, the jury would find it difficult to understand the case.

Gateway (d): Relevant to an Important Matter in Issue Between Defendant and Prosecution

This is the most frequently used gateway. Bad character evidence may be admitted if it is relevant to an important matter in issue between the defendant and the prosecution, such as propensity to commit similar offences or to be untruthful.

Key Term: propensity
A tendency to behave in a particular way, such as committing certain types of offences or being untruthful.

Propensity to commit offences is usually shown by previous convictions of the same description or category. Propensity to be untruthful is shown by offences involving dishonesty or deception, or by evidence that the defendant was previously disbelieved when testifying.

Exam Warning

Gateway (d) is highly prejudicial. The court must exclude evidence admitted under this gateway if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (s.101(3) CJA 2003). Always consider the risk of unfair prejudice.

Gateway (e): Substantial Probative Value Between Co-Defendants

A co-defendant may introduce bad character evidence about another defendant if it has substantial probative value in relation to an important matter in issue between them. This often arises in 'cut-throat' defences where defendants blame each other.

Gateway (f): Correcting a False Impression

If the defendant gives a false or misleading impression about their character, the prosecution may introduce bad character evidence to correct that impression. The evidence admitted must be limited to what is necessary to correct the falsehood.

Gateway (g): Attack on Another Person’s Character

If the defendant attacks the character of another person (including witnesses), the prosecution may introduce evidence of the defendant’s bad character in rebuttal. An attack includes alleging that another person committed an offence or behaved reprehensibly.

Worked Example 1.2

A defendant on trial for theft suggests in cross-examination that the main prosecution witness is lying due to a personal grudge. The prosecution applies to introduce the defendant’s previous convictions for dishonesty.

Question: Which gateway is engaged?

Answer:
Gateway (g) (attack on another person’s character), as the defence has attacked the witness’s character, opening the door for the prosecution to introduce the defendant’s bad character.

Exclusion of Bad Character Evidence

Even if bad character evidence passes through a gateway, the court has powers to exclude it to ensure a fair trial.

• Under s.101(3) CJA 2003, the court must exclude evidence admitted under gateways (d) or (g) if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. The court must consider factors such as the age and similarity of previous offences.
• Under s.78 PACE 1984, the court may exclude any prosecution evidence (including bad character evidence) if its admission would have an adverse effect on the fairness of the proceedings.

Revision Tip

When revising, focus on the requirements and limitations of each gateway, and remember the court’s mandatory duty to exclude unfairly prejudicial evidence under s.101(3) for gateways (d) and (g).

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Bad character evidence is evidence of misconduct or reprehensible behaviour, not relating to the facts of the current offence or investigation.
• The default rule is that such evidence is inadmissible unless it passes through one of seven gateways in s.101(1) CJA 2003.
• The seven gateways are: agreement, adduced by defendant, important explanatory evidence, relevance to prosecution/defence issues (propensity/untruthfulness), issues between co-defendants, correcting false impressions, and attack on character.
• The court must exclude evidence admitted under gateways (d) and (g) if its admission would make the trial unfair (s.101(3) CJA 2003).
• The court may also exclude any prosecution evidence under s.78 PACE 1984 if its admission would have an adverse effect on fairness.

Key Terms and Concepts

• bad character
• misconduct
• important explanatory evidence
• propensity