Admission of Bad Character Evidence

By MAJ Law on 12 October 2023

In the UK criminal justice system, the admission of bad character evidence has long been a subject of debate and controversy. Bad character evidence refers to any information about a defendant's prior behaviour or character that is introduced in court to prove their guilt. This evidence can include previous convictions, misconduct, or other behaviour that reflects negatively on the defendant.

In this blog, we will examine the principles governing the admission of bad character evidence in the UK criminal courts, the controversies surrounding its use, and the safeguards in place to ensure a fair trial.

The Legal Framework

The primary piece of legislation governing the admission of bad character evidence in the UK is Part 11, Chapter 1 of the Criminal Justice Act 2003. The Act introduced significant changes to the rules on bad character evidence, seeking to strike a balance between the Prosecution's need to present relevant evidence and the defendant's right to a fair trial.

The Seven Gateways

Gateway A - Agreement of both parties

Under this gateway, bad character evidence can only be admitted if both parties agree. Rarely used by the Prosecution on presumption that the defence could just disagree that it is relevant.

Gateway B - Adduced by defendant himself

This evidence is given by the defendant himself, normally during cross examination where a question is asked to illicit the information. 

Gateway C - the bad character evidence is so important it helps to explain the case

This type of evidence normally forms part of the Prosecutions Case as a whole. Effectively, the Prosecution's case would fail without this evidence.

Gateway D - it is important matter as to an issue between the defendant and the Prosecution

This is the most common gateway which the Prosecution will seek to rely on when adducing bad character evidence. The evidence would have to be "a matter of substantial importance in the context of the case as a whole”. This could be where 

Gateway E - important matter in issue between the defendant and co-defendant

This is adduced by the defence normally. To prevent "cut throat" defences (where a defendant blames everything on a co-defendant) this can be put forward where a defendant has the propensity to be untruthful. For example, A previous conviction for a simple theft could be used under this gateway.

Gateway F - Correcting a false impression

If the defendant gives a false impression during court proceedings, (he tells the court that he has no previous convictions when his record shows otherwise) the Prosecution can use evidence of bad character to correct this.

Gateway G - Attack on another person's character

This is where a witness can be cross examined and questioned to illicit information regarding their previous criminal past or conduct. For example, a witness has [reviouslt been convicted of wasting police time or making false statements.

Controversies Surrounding Bad Character Evidence

  1. Presumption of Innocence: One of the fundamental principles of criminal law is the presumption of innocence (you are innocent until proven guilty). Introducing a defendant's prior misconduct or convictions can undermine this presumption, potentially leading the Court to conclude that the defendant is more likely to be guilty.

  2. Unfair Prejudice: There is a risk that bad character evidence may unfairly prejudice a court against the defendant. The Magistrates' might be swayed by the idea that the defendant is a "bad person" based on their past behaviour, rather than evaluating the evidence in the case.

  3. Safeguarding Defendants' Rights: The admissibility of bad character evidence is a delicate balancing act, as it involves weighing the interests of justice against the defendant's right to a fair trial. The court must carefully consider whether the probative value of such evidence outweighs its prejudicial effect.

Safeguards in Place

To address the concerns surrounding the admission of bad character evidence, the Criminal Justice Act 2003 introduced several safeguards, including:

  1. Judicial Discretion: Judges have the discretion to exclude bad character evidence if its prejudicial effect significantly outweighs its probative value.

  2. Jury Directions: Judges can provide directions to the jury to ensure they consider the evidence only for specific purposes and do not draw improper inferences.

  3. Application of Tests: Before admitting similar fact evidence, judges must apply stringent tests to determine its relevance and probative value.

  4. Reviewing Convictions: In some cases, judges may review the defendant's previous convictions to assess whether they are relevant to the current case.

Conclusion

The admission of bad character evidence in UK criminal courts is a complex and controversial issue. While it is essential for the prosecution to present relevant evidence, the rights of the accused and the principles of fairness and justice must also be upheld. The legal framework governing bad character evidence attempts to strike a delicate balance between these competing interests.

As the law evolves, it is essential to continue scrutinising and debating the use of bad character evidence to ensure that the criminal justice system remains fair and just for all individuals involved, both defendants and victims.

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