Principles and procedures to admit and exclude evidence - Court's powers to exclude bad character evidence

Learning Outcomes

This article outlines the court's powers to exclude bad character evidence in criminal proceedings, even where it might otherwise be admissible under the Criminal Justice Act 2003 gateways. After reading this article, you should understand the discretionary power under s 78 Police and Criminal Evidence Act 1984 (PACE 1984) and the specific mandatory exclusionary power relating to gateways (d) and (g) under s 101(3) Criminal Justice Act 2003 (CJA 2003). This knowledge is essential for advising clients and evaluating the admissibility of prosecution evidence in SQE1 scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the court's role in managing evidence, specifically focusing on the exclusion of bad character evidence to ensure a fair trial.

As you work through this article, remember to pay particular attention in your revision to:

  • the court's discretionary power to exclude bad character evidence under s 78 PACE 1984
  • the court's mandatory power to exclude bad character evidence under s 101(3) CJA 2003 in relation to gateways (d) and (g)
  • the factors the court considers when exercising its exclusionary powers
  • the overriding principle of fairness in admitting 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. Under which section of PACE 1984 does the court have a general discretion to exclude unfairly obtained prosecution evidence?
    1. s 76
    2. s 78
    3. s 101
    4. s 114
  2. Which gateways for admitting bad character evidence under the CJA 2003 are subject to a specific mandatory exclusion test under s 101(3) CJA 2003?
    1. Gateways (a) and (b)
    2. Gateways (c) and (f)
    3. Gateways (d) and (g)
    4. All gateways

  3. True or false? A court must exclude bad character evidence admitted under gateway (d) (propensity) or (g) (attack on another's character) if its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

  4. Does the court's discretion under s 78 PACE 1984 apply only to confession evidence?

Introduction

While the Criminal Justice Act 2003 (CJA 2003) provides specific gateways through which evidence of a defendant's bad character may become admissible, its admission is not automatic. The court retains significant powers to exclude such evidence to ensure the fairness of the trial. Understanding these exclusionary powers, primarily found in s 78 of the Police and Criminal Evidence Act 1984 (PACE 1984) and s 101(3) of the CJA 2003, is essential for criminal practice. This article focuses on the principles and procedures governing the court's authority to exclude bad character evidence.

Exclusion under s 78 PACE 1984

Section 78 PACE 1984 grants the court a broad discretionary power to exclude evidence upon which the prosecution proposes to rely.

Key Term: Section 78 PACE 1984 A provision giving the court discretion to refuse to allow evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, including how the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

This power applies to all types of prosecution evidence, including bad character evidence, even if it technically passes through one of the CJA 2003 gateways (except where mandatory exclusion under s 101(3) CJA 2003 applies – see below).

Factors Considered under s 78

When deciding whether to exclude evidence under s 78, the court considers all circumstances, focusing on the potential impact on the fairness of the proceedings. Key factors include:

  • How the evidence was obtained: Significant or substantial breaches of PACE or its Codes of Practice may weigh in favour of exclusion, particularly if they impact reliability.
  • The nature of the evidence: The more prejudicial the bad character evidence, the more likely its admission might render the trial unfair.
  • The probative value: Evidence with low probative value but high prejudicial effect is more likely to be excluded.

Key Term: Probative Value The extent to which evidence helps to prove or disprove a fact in issue in the proceedings.

Key Term: Prejudicial Effect The potential for evidence to unfairly bias the tribunal of fact (jury or magistrates) against the defendant, beyond its legitimate probative value.

Worked Example 1.1

David is on trial for theft. The prosecution seeks to admit evidence of a previous conviction for assault under gateway (d) CJA 2003, arguing it shows a propensity for dishonesty (untruthfulness) because David pleaded not guilty but was convicted after trial. The defence argues the assault conviction is irrelevant to dishonesty and highly prejudicial.

How might the judge approach this under s 78 PACE 1984?

Answer: The judge would assess whether admitting the assault conviction would have such an adverse effect on fairness that it should be excluded. The judge might find the conviction has low probative value regarding untruthfulness in a theft case but carries a high risk of prejudice, suggesting David is violent. The judge could exercise their discretion under s 78 to exclude the evidence, even if technically admissible under gateway (d).

Exam Warning

Remember that s 78 provides a discretionary power ('may refuse'). The court is not automatically required to exclude evidence simply because of a PACE breach or potential prejudice. It depends on the impact on the fairness of the proceedings. Contrast this with the mandatory nature of s 76 PACE 1984 for certain types of confession evidence and s 101(3) CJA 2003 (below).

Exclusion under s 101(3) CJA 2003

The CJA 2003 contains its own specific safeguard against unfairness, but it applies only to bad character evidence sought to be admitted through:

  • Gateway (d): propensity to commit offences of the kind charged or propensity to be untruthful.
  • Gateway (g): defendant has made an attack on another person’s character.

Section 101(3) CJA 2003 states that the court must not admit evidence under gateway (d) or (g) if, on an application by the defendant, it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Key Term: Adverse Effect on Fairness A test applied by courts considering the exclusion of evidence (under s 78 PACE 1984 or s 101(3) CJA 2003), focusing on whether admitting the evidence would make the trial unjust or prejudice the defendant's right to a fair hearing under Article 6 ECHR.

Comparison with s 78 PACE 1984

The test under s 101(3) CJA 2003 is identical to that under s 78 PACE 1984 – whether admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. However, there is a significant difference:

  • Section 78 PACE 1984: Provides a discretionary power ('may refuse').
  • Section 101(3) CJA 2003: Imposes a mandatory duty ('must not admit') once the test is met for gateways (d) or (g).

This means if the defence successfully argues unfairness regarding propensity evidence (gateway d) or evidence admitted after an attack on character (gateway g), the judge must exclude it.

Factors Considered under s 101(3)

The court considers similar factors as under s 78 PACE 1984, balancing probative value against prejudicial effect. Section 101(4) specifically requires the court to consider the length of time between the previous misconduct and the current offence when assessing fairness under s 101(3). Old convictions are less likely to be admitted if their probative value is diminished by time and the prejudicial effect remains high.

Worked Example 1.2

Sarah is charged with shoplifting (theft). She has a previous conviction for theft from 15 years ago when she was a juvenile, for which she received a conditional discharge. The prosecution applies to admit this under gateway (d) to show propensity. Sarah's solicitor applies to exclude it under s 101(3) CJA 2003.

What factors will the court consider?

Answer: The court must exclude the evidence if its admission would unfairly prejudice the trial. Key factors include:

  • The age of the conviction (15 years old, committed as a juvenile).
  • The sentence received (conditional discharge, indicating low seriousness).
  • The lack of subsequent offending.
  • The high potential for prejudice (jury might assume guilt based on the old conviction).
  • The potentially low probative value given the time elapsed and circumstances.
    The court is likely to find admission unfair and must exclude it under s 101(3).

Revision Tip

When dealing with bad character evidence in an exam scenario, first identify the specific gateway under CJA 2003 being relied upon. If it's gateway (d) or (g), remember the mandatory exclusion test under s 101(3). If it's another gateway (a, b, c, e, f), the general discretionary power under s 78 PACE 1984 is the relevant safeguard against unfairness.

Procedural Matters

Applications to admit bad character evidence, and applications by the defence to exclude it under s 78 PACE 1984 or s 101(3) CJA 2003, are subject to specific procedural rules regarding notice and timing, as outlined in the Criminal Procedure Rules. These applications are typically dealt with by the judge in the absence of the jury (in the Crown Court) or by the magistrates/District Judge (in the Magistrates' Court) before the evidence is potentially put before the tribunal of fact.

Key Point Checklist

This article has covered the following key knowledge points:

  • Courts have powers to exclude bad character evidence even if it meets the admissibility criteria under the CJA 2003 gateways.
  • Section 78 PACE 1984 provides a general discretionary power to exclude any prosecution evidence (including bad character evidence admitted via gateways (a), (b), (c), (e), or (f)) if its admission would have an adverse effect on the fairness of the proceedings.
  • Section 101(3) CJA 2003 imposes a mandatory duty on the court to exclude bad character evidence sought to be admitted via gateway (d) (propensity) or (g) (attack on character) if, on application by the defence, its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
  • The test for unfairness under both provisions involves balancing the probative value of the evidence against its prejudicial effect.
  • The court must specifically consider the time elapsed since previous misconduct when applying the s 101(3) test.

Key Terms and Concepts

  • Section 78 PACE 1984
  • Probative Value
  • Prejudicial Effect
  • Adverse Effect on Fairness
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