[Re Criminal Justice Act 2003]
Defendant Bad Character Evidence
The Seven Gateways
The admissibility of evidence that falls outside the definition of bad character within the meaning of section 98 is governed by section 101 of the Act which provides that“In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if –
- all parties to the proceedings agree to the evidence being admissible;
- 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;
- it is important explanatory evidence;
- it is relevant to an important matter in issue between the defendant and the prosecution;
- it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant;
- it is evidence to correct a false impression given by the defendant; or
- the defendant has made an attack on another person’s character.
Important Explanatory Evidence – section 101(1)(c)
This is an important gateway for the prosecution and there is considerable overlap with evidence that ‘has to do with’ the alleged facts of the offence with which a defendant is charged. It reflects broadly the common law rule under which evidence of background was admitted without which a case would be incomplete – see R v Pettman unreported May 2 1985.S101(1)(c) should be considered together with section 102 which provides that;
“For the purposes of section 101(1)(c) evidence is important explanatory evidence if –
- without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
- its value for understanding the case as a whole is substantial.
There may be an issue about whether evidence of motive is admissible through this gateway. Under the common law, evidence of motive was always admissible to show that it was more probable that it was the accused who had committed the offence and it was generally considered that such evidence would form part of the background and be explanatory evidence. However, the Court of Appeal in R v Sule ante held that such evidence had to do with the facts of the alleged offence and thereby fell within the scope of section 98.
Care should be taken when considering the route to admissibility of bad character evidence not to seek admissibility through this gateway when the proper approach is gateway (d). The case of Leatham and Mallett [2017] EWCA Crim 42 is illustrative of the approach of the Court in the application of section 101(1)(c) and the relationship with section 101(1)(d). In that case, L and M were charged with conspiracy to burgle based entirely on circumstantial evidence. The court admitted evidence of L’s previous convictions for similar offences on the basis it provided an explanation for what were otherwise completely incomprehensible explanations provided by both accused. The commentary in the Criminal Law Review [2017] Crim LR 788 illustrates the difficulties and complexity of the provision and its overlap with section 101(1)(d) – below.
Bad Character Evidence | The Crown Prosecution Service
Note the 7 gateways are either/or, they are not all required to be met, so the defendant doesn't have to agree to it if one of the other provisions is satisfied.
