Principles and procedures to admit and exclude evidence - Ba...

Learning Outcomes

This article examines bad character evidence in English criminal courts under the Criminal Justice Act 2003, including:

• Definitions of 'bad character' and 'misconduct' in criminal proceedings, and distinction from evidence relating to the facts of the offence charged or the investigation process.
• Statutory rationale for restricting bad character evidence, including risks of prejudicial impact and undermining the presumption of innocence.
• The seven statutory gateways in s.101(1) CJA 2003, examples of engagement, and admissibility requirements for each.
• Legal analysis of scenarios involving bad character evidence, including admissibility routes and the court’s discretionary and mandatory exclusionary powers under s.101(3) CJA 2003 and s.78 PACE 1984.
• Procedural rules and time limits for applications to admit or object to bad character evidence, including notice and objection systems in the Criminal Procedure Rules.
• The meaning of ‘propensity’ and its practical relevance to admissibility of previous misconduct, including distinction between propensity to commit offences of the type charged and propensity to be untruthful.
• The role of fairness and the Article 6 ECHR right to a fair trial in judicial discretion to exclude otherwise admissible bad character evidence.
• Key authorities and case law supporting analysis, with emphasis on scenario-based application for the SQE1 assessment.

SQE1 Syllabus

For SQE1, you are required to understand the rules governing bad character evidence in criminal proceedings under the Criminal Justice Act 2003, with a focus on the following syllabus points:

• Definition of bad character and misconduct and the relevant statutory provisions (CJA 2003, ss.98, 112).
• General exclusionary rule and the policy basis for restricting bad character evidence.
• The seven statutory gateways for admissibility, including prerequisites and factors applying to each:
  • Agreement of all parties.
  • Evidence adduced by the defendant.
  • Important explanatory evidence.
  • Relevance to an important matter in issue (particularly propensity and untruthfulness).
  • Substantial probative value between co-defendants.
  • Correcting a false impression given by the defendant.
  • Attack on another’s character by the defendant.
• Operation of the court’s exclusionary powers and discretion (s.101(3) CJA 2003 and s.78 PACE 1984).
• Principles of procedural fairness and the requirements for notice and challenge under the Criminal Procedure Rules.
• The practical relationship between bad character evidence, Article 6 ECHR, and the right to a fair trial in English law.

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 particularly sensitive in criminal trials. The risk is that jurors or magistrates might decide a case based on evidence of prior misconduct rather than on the facts of the offence charged—contradicting the presumption of innocence and undermining the right to a fair trial explained in Article 6 of the ECHR. Accordingly, the Criminal Justice Act 2003 imposes a strict framework: evidence of bad character is inadmissible unless and until it falls within one of seven narrow exceptions, set out in s.101(1) CJA 2003. The approach reflects the principle that a defendant should generally be tried only for the offence charged, and not punished (even in the court’s mind) for defects of character, unless there is a justifiable reason in law to do so.

Definition and General Rule

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

Key Term: misconduct
The commission of an offence or other behaviour that is, in the opinion of the court, reprehensible (s.112 CJA 2003). ‘Other reprehensible behaviour’ is not fully defined by statute, but in practice refers to conduct that society would strongly disapprove of, short of criminal conviction.

Statutory definition ensures that previous convictions (even if ‘spent’), cautions, and findings by civil courts may amount to bad character evidence, but only when not directly connected to the facts of the current charge.

The default position is exclusion. Bad character evidence may not be adduced by the prosecution unless it passes through one of the seven gateways. This protects an accused from being unfairly prejudiced by prior behaviour that is not directly relevant to the issues in the current case.

The policy basis is that trials should be fair, focused solely on the evidence relevant to the crime charged, except where prior conduct is substantial enough to make its admission justified and its probative value outweighs its prejudicial effect.

The Seven Gateways to Admissibility

Section 101(1) CJA 2003 provides the exclusive means by which prosecution or co-defendants may seek to rely on bad character evidence in court. Each gateway serves a different purpose, with safeguards built in to protect the rights of the accused.

Gateway (a): Agreement of All Parties (s.101(1)(a))

Bad character evidence may be admitted if all parties agree. In practice, this can include the prosecution, defence, and any co-defendants. Agreements to admit such evidence may be tactical—for instance, to present the defendant’s full history where it is not particularly damaging or to avoid disputes delaying trial.

Consent must be informed; the court will satisfy itself that all parties, and especially an unrepresented defendant, understand the possible effects of admission. Ostracising disputed evidence through clear agreement may serve the interests of both sides, but it removes further argument on appeal as to prejudice.

Gateway (b): Evidence Adduced by the Defendant (s.101(1)(b))

When a defendant introduces, or deliberately brings out through questioning, their own bad character evidence, the principle of fairness dictates that such evidence may then be taken into account. This is often used to ‘get in front’ of damaging facts, for example, a defendant volunteering previous convictions to explain patterns in their life, or seeking to contrast previous crimes with the charge to show a break of character.

A key aspect is that only evidence adduced with the intention to elicit or explain the misconduct falls under this gateway. Courts will differentiate between explicit admissions and information volunteered for context; incidental mentions will not always count.

Gateway (c): Important Explanatory Evidence (s.101(1)(c))

Admissibility under this gateway is very tightly drawn.

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).

Evidence admitted here should be strictly limited to that which is necessary for understanding the facts, such as providing context for a witness’s behaviour, relationship evidence in domestic violence, or background to alleged group activity. This is not a catch-all for ‘helpful’ but marginal evidence: it must be genuinely indispensable.

Worked Example 1.1

A defendant is charged with assaulting a partner. The prosecution seeks to rely on evidence of a prior incident between the same parties to explain why the partner did not immediately report the incident to the police.

Answer:
This may be admissible under gateway (c), provided the previous incident is essential to understanding the partner’s reaction and the nature of the allegations.

Gateway (d): Relevant to an Important Matter in Issue Between Defendant and Prosecution (s.101(1)(d))

This is the most litigated and potentially prejudicial gateway. It includes evidence that is relevant to:

• the defendant’s propensity to commit offences of the kind charged (for example, similar previous convictions),
• the defendant’s propensity to be untruthful (such as convictions for fraud or perjury).

Key Term: propensity
A tendency to behave in a particular way—e.g., to commit sexual offences, violence, or to deceive.

For admission under propensity, the court must be satisfied that there is a genuine issue in dispute to which the evidence relates, and that there are sufficient connections (e.g., similarity of type, proximity in time, or recurring modus operandi).

• A single conviction may not in itself demonstrate propensity, unless especially relevant in kind or close in time (see R v Hanson (CA)). The more remote or unique the prior offence, the less likely evidence of propensity will be admitted.
• To establish untruthfulness, the previous misconduct must go directly to the defendant’s veracity, not just general bad character.
• Evidence sought to be admitted under gateway (d) will be excluded if it would make the proceedings unfair (s.101(3)). Factors such as the time elapsed since prior conduct or spent convictions are taken into account.

Worked Example 1.2

A defendant is charged with burglary. The prosecution seeks to admit evidence of two previous domestic burglaries committed within the past three years in a similar manner.

Answer:
The prior convictions may be admitted under gateway (d), as they are relevant to showing propensity to commit offences of the kind charged, subject to the court’s assessment of fairness and similarity.

Gateway (e): Substantial Probative Value in Relation to a Co-Defendant (s.101(1)(e))

Where there is more than one defendant, a co-defendant may rely on another’s previous misconduct to support their own defence if it has substantial probative value to an important matter in issue between them. This is commonly seen in ‘cut-throat’ defences, where each defendant blames the other, and evidence of, for instance, a co-defendant’s prior violence may be highly probative of the disputed issue.

‘Substantial probative value’ is a higher standard than general relevance—there must be a real, significant bearing on the issue in dispute. The court must consider, among other things, whether the probative value is outweighed by the risk of unfair prejudice.

Gateway (f): Correcting a False Impression (s.101(1)(f))

If a defendant creates a false or misleading impression of self—for example, claiming to be a ‘man of previous good character’ or that they have never stolen when in fact they have previous convictions for theft—the prosecution may introduce bad character evidence strictly to correct such an impression. The evidence admitted must be limited only to that necessary to rectify the falsehood, with the court retaining control to prevent misuse.

False impression may be given formally or informally, even outside court (e.g., in a police interview or witness statement later confirmed in evidence). The threshold is that the impression is actively misleading, not merely a positive spin.

Gateway (g): Attack on Another Person’s Character (s.101(1)(g))

If the defendant attacks the character of another person—including witnesses, other defendants, or even those absent—the prosecution may lead evidence of the defendant’s own bad character in rebuttal.

Key Term: attack on character
Includes allegations that another person committed an offence or otherwise behaved in a reprehensible way (s.106(2) CJA 2003).

Types of attack include accusations of criminal misconduct, or aggressive unfounded challenges to the honesty or integrity of witnesses for the prosecution or co-defendants.

Worked Example 1.3

A defendant on trial for theft claims during cross-examination that a main prosecution witness is fabricating their evidence and is a ‘known liar’. The prosecution then applies to use the defendant’s past convictions for dishonesty.

Answer:
Gateway (g) applies: by attacking the prosecution witness's character, the defendant ‘opens the door’ to their own bad character evidence being used in rebuttal, subject to the fairness assessment under s.101(3).

Exclusion of Bad Character Evidence

Even if bad character evidence meets a statutory gateway, the CJA 2003 enshrines both a mandatory and a discretionary safeguard to protect against unfair prejudice and the risk of an unsafe conviction.

• Under s.101(3) CJA 2003, the court must not admit evidence under gateway (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. Factors to be considered include the age and seriousness of previous convictions, the degree of similarity to the current offence, and any reasons for previous behaviour to be regarded as less relevant (e.g., spent convictions).
• S.101(4) CJA 2003 also requires the court to consider whether prior offences are so old as to have diminished real probative value.
• S.78 Police and Criminal Evidence Act 1984 gives the court discretion to exclude any prosecution evidence, including bad character, if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Key Term: fairness
Fairness here is assessed both in light of common law traditions and Article 6 ECHR, meaning the right to a fair hearing, and to be judged on relevant, material, and reliable evidence only.

If the application is opposed, or if the court considers exclusion on its own motion, the Criminal Procedure Rules (CrimPR Part 21) set strict time limits and requirements for notice and response. Any failure to comply with procedural requirements does not result automatically in inadmissibility but will be taken into account in the interests of the parties and justice.

Worked Example 1.4

A prosecution applies under gateway (d) to admit a defendant’s previous theft convictions to show propensity in a current theft trial. The latest prior offence is 15 years old, and the defendant’s convictions since have all been for minor, unrelated offences.

Answer:
The court is likely to refuse admission under gateway (d). The passage of time and the nature of subsequent offending significantly reduces the probative value for propensity, and admitting old convictions could be unfair.

Application and Procedure in Practice

Notice and Objection:
Rules require prompt written notice of intention to adduce bad character evidence, with reasons and details of the alleged misconduct. The other side may respond and object, also in writing, with strict time limits: for prosecution notices, usually 20 business days (magistrates) or 10 business days (Crown Court) after plea; for co-defendants, 10 business days.

The court may decide applications without a hearing or after written or oral argument, but must always ensure both sides have had the opportunity to be heard.

Where a party introduces their own bad character evidence, notice must be given either orally or in writing as soon as reasonably practicable before the evidence is adduced.

Defendants who wish to object must state specifically which facts are disputed, and on what grounds the proposed evidence is inadmissible, unlawful, or unfair.

Spoliation of notice procedures or failures to object may lead to evidence being admitted unchallenged, but the court will maintain its own independent duty to ensure fairness.

Preliminary Hearings:
Complex cases or disputed evidence will often be dealt with at pre-trial hearings, where the judge can consider the probative value, the risk of prejudice, and provide directions to the advocate/jury about how to treat evidence said to show propensity or untruthfulness.

Directions to Jury:
Where bad character evidence is admitted, the judge should direct the jury carefully as to the limited purpose of the evidence, emphasising that it should not be used to punish the defendant for previous behaviour, but only for the reasons relevant to the issues in the current case (such as propensity or credibility).

Causation, Omission, and Intervening Acts

For completeness, in cases where bad character evidence may overlap with causation or chain of conduct, it is essential to recall that causation also comprises both factual and legal elements, and intervening acts (victim or third party actions) may break the chain. However, the use of prior misconduct as evidence must not mislead the jury into attributing liability where causation or the elements of the offence are not properly established.

Additional Worked Examples and Advanced Application

Worked Example 1.5

A defendant, tried for fraud, introduces evidence that they ‘have never been dishonest in business.’ The prosecution seeks to introduce evidence of a recent civil finding against the defendant for fraudulent misrepresentation, not amounting to a criminal conviction.

Answer:
This would fall within gateway (f) if the defendant has given a false impression. The court should admit only the evidence necessary to correct the misleading statement, and would assess whether the civil finding is sufficiently clear and robust for the purpose.

Worked Example 1.6

Two co-defendants each blame the other for a violent assault. One wishes to admit evidence that the other was previously convicted of a similar assault a year before.

Answer:
This could be admitted under gateway (e), if the court is satisfied that the evidence has substantial probative value in deciding which defendant is more likely to have committed the assault, particularly if there are striking similarities.

Interplay with Other Rules of Evidence

• Bad character evidence must not be confused with similar fact evidence of the kind admissible at common law, except as now codified under the CJA 2003.
• Evidence connected directly to the facts of the current offence is not bad character evidence under s.98 and is generally admissible as part of the res gestae (the ‘whole story’ of the current charge).
• Hearsay rules continue to apply, and the notice and challenge procedures also interact with hearsay (especially for evidence from unavailable witnesses).

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Bad character evidence means evidence of previous offences or other reprehensible behaviour not relating to the facts of the current offence or investigation.
• The general (default) rule is exclusion, unless the strict statutory gateways in s.101(1) CJA 2003 are satisfied.
• The seven gateways are: agreement of all parties; defendant adducing it; important explanatory evidence; relevance to important matters in issue (typically propensity or untruthfulness); substantial probative value between co-defendants; correcting a false impression; and attack on another’s character.
• Each gateway has its own statutory requirements. The most contested is gateway (d), where the prosecution seeks to establish propensity or untruthfulness: previous convictions must be relevant, not remote or trivial.
• Bad character evidence admitted under gateways (d) or (g) must be excluded if admission would have such an adverse effect on fairness as to make it unjust (s.101(3)).
• Any prosecution evidence, including bad character, may be excluded under s.78 PACE 1984 if admission would have an adverse effect on the fairness of proceedings.
• Court procedures require notice to admit, opportunity to challenge, and consideration of all the circumstances for fairness and probative value.
• The courts must direct juries carefully as to the limited uses of bad character evidence and the risks of prejudice, emphasising that the defendant is on trial for the current charge only.
• Article 6 ECHR (right to fair trial) underpins the exclusionary safeguards in English criminal procedure.

Key Terms and Concepts

• bad character
• misconduct
• important explanatory evidence
• propensity
• attack on character
• fairness