Bad Character Evidence

During a trial, not all evidence may be permitted for use in the proceedings. Certain kinds of evidence are restricted from being used, and either the Crown Prosecution Service or the Defence must apply to the judge to allow the use of the evidence.

One example of this is ‘bad character evidence’.

What is bad character evidence?

Bad character evidence is any evidence that suggests a person has a propensity to behave in a way indicating a criminal disposition.

Definition of bad character

Bad character evidence is defined in s98 of the Criminal Justice Act 2003 as “evidence of, or of a person’s disposition towards misconduct such as a commission of a criminal offence or of other reprehensible behaviour.”

Bad character evidence can be used to show that the defendant has a tendency to commit the type of crime they are accused of. The evidence must be relevant to the matters in issue and not simply used to show that the defendant is a generally bad person.

Evidence will not be considered bad character evidence if it directly relates with the facts of the allegation for which the defendant has been charged or evidence of misconduct in connection with the investigation or prosecution of that offence.

Use of bad character evidence

Bad character evidence is often used by the Crown Prosecution Service to strengthen their case where they can attempt to show that a defendant is capable or has a propensity for behaving in a way that indicates their inclination to lie or commit similar offences.

If evidence directly deals with the facts of an offence, it will not be subject to the below ‘gateways’ for the evidence to be admitted.

Bad character is generally inadmissible unless it is admitted into proceedings through one of seven gateways:

What are the seven gateways to bad character evidence being admitted? 

Under s101 of the Criminal Justice Act 2003, evidence of bad character is admissible only if;

• All parties to the proceedings agree to the evidence being admissible;

If both the Prosecution and Defence agree for the evidence to be used, it can be admitted.

• The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it;

For example, if a defendant were to introduce his own bad character evidence when giving his evidence in court.

• It is important explanatory evidence;

Evidence will be important explanatory evidence if without it, the court or jury would find it difficult to understand other evidence in the case or it has substantial value in understanding the case as a whole. It is not sufficient for the evidence to simply build the picture of the case, rather the picture must be very difficult to see without the evidence.

• It is relevant to an important matter in issue between the defendant and the prosecution;

This includes demonstrating the defendant’s propensity to commit similar offences or show dishonesty.

• It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;

This would include evidence which undermines a co-defendant’s case.

• It is evidence to correct a false impression given by the defendant; or

If the defendant creates a false impression about their own character, bad character evidence can be introduced to correct it.

• The defendant has made an attack on another person’s character.

If the defendant attacks the character of another person, their own character can be called into question.

Non – defendant bad character

Bad character evidence can also be used for non-defendants, such as witnesses. For example, the defence may apply to use bad character evidence of a witness who attempts to show their propensity to be untruthful.

Non – defendant bad character evidence is only admissible if;

1. It is important explanatory evidence,
2. It has substantial probative value in relation to a matter which –
   • Is a matter in issue in the proceedings, and
   • Is of substantial importance in the context of the case as a whole, or
3. All parties to the proceedings agree to the evidence being admissible.

Discretion to exclude bad character evidence

While bad character evidence can be highly persuasive, it must be carefully controlled by the judge to prevent prejudice against the defendant or witnesses based solely on past behaviour or unrelated misconduct. Even if bad character evidence is admissible within one of the gateways, the court has the discretion to exclude it if its prejudicial effect outweighs its probative value. This is particularly important to avoid unfair trials.

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