6.3 Defendant Bad Character Evidence

6.3 Defendant Bad Character Evidence

Prior to the enactment of the Criminal Justice Act 2003 (CJA 2003), evidence of a defendant's past criminal record or misconduct was generally excluded under common law rules to prevent jury prejudice, subject to narrow similar-fact exceptions. Chapter 1 of Part 11 of the CJA 2003 created a modern statutory regime that abolished common law rules governing bad character evidence. The 2003 Act establishes a structured framework where bad character is admissible if it passes through specific statutory gateways, balanced by mandatory judicial discretions to exclude evidence that would compromise the fairness of the trial. This section examines the statutory definition of bad character, the seven defendant gateways under Section 101, the legal mechanics of propensity under Section 103, judicial guidelines in R v Hanson, statutory exclusion rules, and mandatory jury directions.

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1. The Statutory Definition of Bad Character (s.98 CJA 2003)

Under Section 98 CJA 2003, bad character is defined as evidence of, or of a disposition towards, misconduct, OTHER than evidence which:

1. Has to do with the alleged facts of the offence with which the defendant is charged; OR
2. Is evidence of misconduct in connection with the investigation or prosecution of that offence.

Key Concepts:

• Misconduct (s.112 CJA 2003): Defined as the commission of an offence or "other reprehensible behaviour". Reprehensible behaviour includes non-criminal acts reflecting moral blameworthiness, such as severe bullying, racism, dishonesty, or gang membership.
• Offence Facts Exclusion: Evidence directly forming part of the narrative of the alleged crime (the res gestae or immediate background facts) is not bad character evidence; it is admitted as direct evidence of the offence itself.
• Investigation Misconduct Exclusion: Lies told to police during interview regarding the current charge or attempts to intimidate witnesses in the present case fall outside s.98 definition and are dealt with under general evidence rules.

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2. The Seven Defendant Gateways (s.101(1) CJA 2003)

In criminal proceedings, evidence of a defendant's bad character is inadmissible unless it is admitted through one of the seven statutory gateways set out in Section 101(1) CJA 2003:

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3. Gateway (d) & Propensity: Section 103 & R v Hanson

Gateway (d) is the most frequently contested gateway in practice. Under Section 103(1) CJA 2003, matters in issue between the defendant and prosecution include:

• s.103(1)(a): Whether the defendant has a propensity to commit offences of the kind charged; and
• s.103(1)(b): Whether the defendant has a propensity to be untruthful.

Propensity to Commit Offences (s.103(1)(a) & s.103(2)):

Under s.103(2), a defendant's propensity to commit offences of the kind charged may be established by showing previous convictions for offences of the same description (defined by the same statutory offence formulation) or offences of the same category (categories specified by Secretary of State Order, e.g. Theft Act offences or Sexual Offences Act offences).

The Landmark R v Hanson Principles ([2005] EWCA Crim 191):

In R v Hanson, the Court of Appeal laid down binding guidance on establishing propensity under Gateway (d):

1. Three-Step Test for Propensity:
   • Step 1: Does the history of convictions show a propensity to commit offences of the kind charged?
   • Step 2: Does that propensity make it more likely that the defendant committed the offence charged?
   • Step 3: Is it unjust to rely on the convictions, and would the admission of the evidence have such an adverse effect on the fairness of the proceedings that it ought to be excluded under Section 101(3)?
2. Single Conviction: A single previous conviction will rarely demonstrate a propensity unless it displays unusual or distinctive features matching the current offence.
3. Old Convictions: The older the conviction, the less probative value it possesses regarding current propensity.
4. Propensity to be Untruthful (s.103(1)(b)): A previous conviction does not automatically show a propensity to be untruthful merely because the defendant pleaded not guilty in the past. Propensity to be untruthful requires convictions involving active deceit or perjury (e.g. fraud, forgery, perverting the course of justice) or where truthfulness is a specific issue in the case.

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4. Statutory Fairness Exclusion & Judicial Discretion

The statutory framework balances prosecution admissibility with explicit defense protections:

• Section 101(3) CJA 2003 (Mandatory Fairness Exclusion): Applies specifically to applications made under Gateway (d) (matters in issue with prosecution) and Gateway (g) (attack on another person's character). The court must not admit evidence of bad character under these gateways if, on an application by the defendant, it appears to the court that 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.
• Section 78 PACE 1984: The general judicial discretion to exclude unfair prosecution evidence applies across all bad character gateways.
• Section 107 CJA 2003 (Duty to Stop Trial for Unreliable Bad Character Evidence): If bad character evidence admitted under Gateways (c)–(g) is found during the trial to be contaminated (e.g., collusion between witnesses) or so unreliable that a conviction would be unsafe, the judge must direct an acquittal or discharge the jury.

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5. Mandatory Judicial Directions to the Jury

Whenever defendant bad character evidence is admitted, the trial judge must give the jury precise, tailored directions in summing up (R v Hanson):

• Purpose of Evidence: State clearly which gateway was used and the precise, limited purpose for which the bad character evidence is admitted (e.g. assessing propensity).
• Prohibition on Prejudicial Reasoning: Expressly warn the jury that they must not convict the defendant purely or primarily because of his past record.
• No Substitution for Proof: Warn the jury that bad character evidence cannot be used to bolster a weak prosecution case or substitute for proof of the essential elements (actus reus and mens rea) of the offence.