Principles and procedures to admit and exclude evidence - Procedure for admitting bad character evidence

Learning Outcomes

This article outlines the procedural requirements for admitting a defendant's bad character evidence in criminal proceedings under the Criminal Justice Act 2003. After reading this article, you should be able to identify the steps required for the prosecution, defence, or a co-defendant to seek the admission of such evidence, the grounds for objection, and the court's role in determining admissibility, including its exclusionary powers. This knowledge is essential for applying the rules of evidence correctly in scenarios presented in the SQE1 assessment.

SQE1 Syllabus

For the SQE1 assessment, you are required to understand the principles and procedures governing the admissibility of evidence in criminal proceedings. This includes the specific procedures related to admitting a defendant's bad character evidence. Your understanding should cover:

  • The requirement for notice when seeking to adduce bad character evidence.
  • The time limits and content requirements for such notices under the Criminal Procedure Rules.
  • The grounds upon which the admission of bad character evidence can be opposed.
  • The court's power to exclude bad character evidence, particularly under s 101(3) of the Criminal Justice Act 2003 and s 78 of the Police and Criminal Evidence Act 1984.
  • The procedural differences when evidence is adduced by the prosecution versus a co-defendant or the defendant themself.

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. Which party must typically serve notice if they wish to adduce evidence of a defendant's bad character?
    1. The defendant only.
    2. The prosecution only.
    3. The prosecution or a co-defendant.
    4. Any party, including the court.
  2. Under which section of the Criminal Justice Act 2003 must the court exclude bad character evidence sought under gateways (d) or (g) if its admission would unfairly affect the proceedings?
    1. s 98
    2. s 101(1)
    3. s 101(3)
    4. s 112
  3. What is the standard time limit for the defence to object to a prosecution notice seeking to adduce bad character evidence?
    1. 5 business days
    2. 10 business days
    3. 14 business days
    4. 20 business days

Introduction

Evidence relating to a defendant's bad character is generally inadmissible due to its potential prejudicial effect. However, the Criminal Justice Act 2003 (CJA 2003) provides specific gateways through which such evidence may be admitted if deemed relevant and sufficiently probative. Admissibility is not automatic; strict procedural rules must be followed by the party seeking to introduce the evidence, and the court retains the power to exclude evidence to ensure a fair trial. Understanding this procedure is essential for advising clients and preparing for trial.

The Definition of Bad Character Evidence

Before examining the procedure, it is essential to recall what constitutes bad character evidence.

Key Term: Bad Character Evidence Defined in s 98 CJA 2003 as evidence of, or a disposition towards, misconduct, other than evidence which has to do with the alleged facts of the offence with which the defendant is charged or is evidence of misconduct in connection with the investigation or prosecution of that offence. 'Misconduct' includes the commission of an offence or other reprehensible behaviour (s 112 CJA 2003).

Admissibility: The Seven Gateways

As established in other materials, evidence of a defendant's bad character is only admissible if it passes through one of the seven gateways listed in s 101(1) CJA 2003. This article focuses on the procedure for seeking admission through these gateways, not the detailed criteria for each gateway itself.

Procedure for Admitting Bad Character Evidence

The Criminal Procedure Rules (CrimPR) Part 21 set out the specific procedural steps that must be followed when a party seeks to introduce evidence of a defendant's bad character. The requirements differ slightly depending on which party is seeking to adduce the evidence.

Notice Requirements

A party seeking to adduce evidence of a defendant's bad character must give notice to the court and all other parties.

Prosecution Notice

If the prosecution wishes to introduce bad character evidence (typically through gateways (c), (d), (f), or (g)), they must serve notice under CrimPR 21.2.

  • Timing: Notice must be served not more than:
    • 20 business days after a not guilty plea in the magistrates’ court.
    • 10 business days after a not guilty plea in the Crown Court.
  • Content: The notice must:
    • State the facts of the misconduct sought to be proved.
    • Explain how those facts will be proved (e.g., witness testimony, conviction certificate).
    • Explain why the evidence is admissible, specifying the relevant gateway(s) under s 101(1) CJA 2003.

Co-defendant Notice

If a co-defendant wishes to introduce evidence of another defendant's bad character (typically through gateway (e)), they must serve notice under CrimPR 21.3.

  • Timing: Notice must be served as soon as reasonably practicable, and not more than 10 business days after the prosecution discloses the material on which the notice relies.
  • Content: Similar requirements as the prosecution notice apply.

Defendant Adducing Own Bad Character

If the defendant wishes to introduce evidence of their own bad character (gateway (b)), they must give notice orally or in writing as soon as reasonably practicable (CrimPR 21.2). This is less formal but still requires notification to the court and prosecution.

Opposing the Admission of Bad Character Evidence

A party on whom notice is served may oppose the application by applying to the court under CrimPR 21.4.

  • Timing: The application to oppose must be served on the court and all other parties not more than 10 business days after service of the initial notice.
  • Content: The application must:
    • State which facts of the misconduct set out in the notice are disputed.
    • State any facts not mentioned in the notice which the objecting party wishes the court to consider.
    • Explain why the evidence is inadmissible (ie, why it does not pass through the relevant gateway).
    • Explain why it would be unfair to admit the evidence (invoking s 101(3) CJA 2003 or s 78 PACE 1984 where applicable).
    • State any other objections.

Court Determination

The court will consider the notice and any application to oppose. It may determine the application with or without a hearing (CrimPR 21.4(6)). The court must not determine the application unless the party who served the notice has had a reasonable opportunity to respond. The court must state its reasons for granting or refusing the application.

Worked Example 1.1

The prosecution serves notice on Defendant A, seeking to admit evidence of his previous conviction for robbery under gateway (d) (propensity) in his current trial for robbery. Defendant A’s solicitor believes the previous conviction is too old (15 years ago) and dissimilar in circumstances to be relevant.

What steps should Defendant A’s solicitor take?

Answer: Defendant A’s solicitor should, within 10 business days of receiving the prosecution's notice, serve an application on the court and the prosecution under CrimPR 21.4 opposing the admission. The application should state why the evidence is inadmissible (arguing it doesn't demonstrate propensity due to age/dissimilarity) and why its admission would be unfair under s 101(3) CJA 2003, requesting the court to exclude it.

Excluding Bad Character Evidence

Even if evidence appears admissible through a gateway, the court retains powers to exclude it to ensure fairness.

Mandatory Exclusion under CJA 2003, s 101(3)

This power applies only to evidence sought to be admitted under gateway (d) (propensity or untruthfulness) or gateway (g) (attack on another's character).

If the defendant applies to exclude evidence under these gateways, the court must exclude it if it appears 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 the fairness of proceedings This involves balancing the probative value of the bad character evidence against its potential prejudicial effect on the jury or magistrates. Evidence is prejudicial if it might lead the tribunal of fact to convict based on past behaviour rather than the evidence relating to the current charge.

When considering exclusion under s 101(3), the court must specifically have regard to the length of time between the alleged misconduct and the current offence (CJA 2003, s 101(4)). Old convictions are less likely to be admitted.

Discretionary Exclusion under PACE 1984, s 78

Section 78 PACE 1984 gives the court a general discretion to exclude any evidence on which the prosecution proposes to rely (including bad character evidence admitted through gateways other than (d) and (g)) if its admission would have an adverse effect on the fairness of the proceedings. This is a broader power but is discretionary ('may exclude') rather than mandatory ('must exclude').

Worked Example 1.2

Defendant B is charged with theft. The prosecution seeks to introduce evidence under gateway (c) (important explanatory evidence) that Defendant B associates with known thieves. Defendant B argues this is highly prejudicial and only marginally relevant.

What power might the court use to exclude this evidence, assuming it technically meets gateway (c)?

Answer: The court might exercise its discretion under s 78 PACE 1984. Section 101(3) CJA 2003 does not apply as the evidence is sought under gateway (c), not (d) or (g). If the judge finds the prejudicial effect substantially outweighs the limited explanatory value, making admission unfair, they may exclude it under s 78.

Revision Tip

Remember the distinction: s 101(3) CJA 2003 is a mandatory exclusion power for evidence under gateways (d) and (g) if unfairness is established. Section 78 PACE 1984 is a discretionary power for any prosecution evidence, including bad character evidence admitted via other gateways, if fairness requires exclusion.

Key Point Checklist

This article has covered the following key knowledge points:

  • Admitting defendant bad character evidence requires adherence to specific procedures under CJA 2003 and CrimPR Part 21.
  • The party seeking to adduce the evidence (prosecution, co-defendant, or defendant themself) must serve notice on the court and other parties.
  • Specific time limits apply for serving notices and applications to oppose.
  • Notices must state the misconduct, how it will be proved, and the relevant gateway(s).
  • Applications to oppose must detail objections regarding admissibility and fairness.
  • The court must exclude evidence sought under gateways (d) or (g) if its admission would be unfairly prejudicial (s 101(3) CJA 2003).
  • The court may exclude any prosecution evidence, including bad character evidence, if its admission would be unfair (s 78 PACE 1984).

Key Terms and Concepts

  • Bad Character Evidence
  • Adverse effect on the fairness of proceedings
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