Principles and procedures to admit and exclude evidence - Pr...

Learning Outcomes

This article explains the statutory and procedural framework for defendant bad character evidence in England and Wales, including:

• the statutory definition of “bad character” and “misconduct” under ss 98 and 112 CJA 2003, and the distinction between background narrative evidence and true bad character;
• the operation of the seven gateways in s 101(1) CJA 2003 and how each gateway affects the route by which evidence may be adduced;
• notice requirements under CrimPR Part 21 for the prosecution, co-defendants, and a defendant adducing their own bad character, including prescribed forms, supporting material, and typical exam-tested time limits;
• how to draft or analyse objections to bad character applications, identify disputed facts, and deploy arguments on admissibility and relevance;
• the court’s powers and duties when determining bad character applications, including voir dire procedure, giving reasons, and issuing limiting directions;
• mandatory exclusion under s 101(3) CJA 2003, discretionary exclusion under s 78 PACE 1984, and the balancing of probative value against unfair prejudice;
• practical and professional conduct considerations when advising clients, preparing case strategy, and answering SQE1-style multiple-choice questions involving bad character evidence.

SQE1 Syllabus

For SQE1, you are required to understand the statutory and procedural framework for defendant bad character evidence under the Criminal Justice Act 2003 and the Criminal Procedure Rules, with a focus on the following syllabus points:

• Statutory definitions and relevance of bad character evidence under the Criminal Justice Act 2003 (ss 98, 101, 112).
• The practical application of the seven statutory gateways to admissibility (s 101(1) CJA 2003), including the distinction among gateways (particularly (d) and (g)), and the differences in procedure for prosecution, co-defendant, and self-adduction.
• Requirements under the Criminal Procedure Rules and Practice Directions for:
  • Notice to adduce bad character evidence: timing, format, and substantive explanations required.
  • Processes for objecting to and opposing bad character applications, including deadlines, form, and content.
  • The role and responsibility of the court in determining admissibility (including voir dire in the Crown Court) and the provision of reasons.
• Grounds for, and the operation of, the court’s powers to exclude bad character evidence:
  • Mandatory exclusion under s 101(3) CJA 2003 for gateways (d) and (g), including the meaning of "adverse effect on fairness".
  • Discretionary exclusion under s 78 PACE 1984 for all prosecution evidence, including links to breaches of statutory safeguards and unfairness.
• The legal and practical distinctions between notice requirements for prosecution, co-defendant, and a defendant adducing their own bad character.
• The ability to advise on and conduct advocacy appropriate to the procedural stage, including professional conduct obligations when dealing with evidence which may be prejudicial or disputed.
• Recognition of interaction between the fairness of trial proceedings (Article 6 ECHR) and the operation of exclusionary powers.

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

A fundamental principle of the law of evidence in criminal litigation is that the prosecution is normally prohibited from adducing material intended solely to show that a defendant is a person of bad character or has a propensity for misconduct. This general prohibition exists due to the risk of prejudicing the fairness of the proceedings—specifically, the risk that a judge, magistrate, or jury might attach excessive weight to a defendant’s prior conduct, convicting on that rather than solely the facts of the present case. Nonetheless, the Criminal Justice Act 2003 (‘CJA 2003’) sets out seven specified exceptions—gateways—by which evidence of bad character may be admitted in limited, tightly regulated circumstances. The process for seeking admission of such evidence requires strict compliance with statutory notice provisions and procedural safeguards, designed to uphold the right to a fair trial while balancing the interests of justice.

Legal practitioners and advisers must be vigilant in their understanding of these procedures. Missteps, whether in serving notice, timing objections, or in formulating or responding to applications, can lead to the wrongful admission of prejudicial material or, conversely, to the exclusion of valuable evidence. The court, as gatekeeper, maintains continuing authority both to determine admissibility and—by way of mandatory and discretionary exclusionary powers—to control unfairly prejudicial evidence even where initial procedural requirements are met. The context often includes challenging assessments of the ‘adverse effect on the fairness of proceedings,’ requiring careful attention to both process and substantive fairness.

Key Term: Bad Character Evidence
Evidence of (or a disposition towards) misconduct, other than evidence directly relating to the alleged facts of the current offence or associated investigation/prosecution. Defined by s 98 CJA 2003, with ‘misconduct’ encompassing the commission of an offence or other reprehensible behaviour (s 112 CJA 2003).

The Definition of Bad Character Evidence

A clear understanding of the statutory definition and scope is the essential starting point. The term ‘bad character’ is defined in s 98 of the CJA 2003 as "evidence of, or a disposition towards, misconduct" excluding "evidence having to do with the alleged facts of the offence with which the defendant is charged or misconduct in connection with the investigation or prosecution of that offence." The phrase ‘misconduct’ is further refined in s 112 to include both criminal offences and non-criminal but reprehensible behaviour.

Examples include:

• Previous criminal convictions, cautions, or acquittals.
• Established patterns of dishonest, violent, or otherwise reprehensible conduct.
• Behaviour or occurrences which, although not prosecuted or resulting in a conviction, would be regarded as worthy of censure by reasonable members of society.

Notably, evidence relating to, or forming part of, the alleged offence is not bad character evidence and is treated as part of the narrative of the current case. Bad character evidence is treated with particular caution, as it is capable of being more prejudicial than probative.

Admissibility: The Seven Gateways

Under s 101(1) of the CJA 2003, evidence of a defendant’s bad character is only admissible if it falls within one or more of seven gateways. These are:

• (a) All parties to the proceedings agree to it being admissible;
• (b) The evidence is adduced by the defendant or given in answer to a question asked by the defendant and intended to elicit it;
• (c) The evidence is important explanatory evidence (i.e., needed so the tribunal can properly understand the case as a whole—see s 102 CJA 2003);
• (d) The evidence is relevant to an important matter in issue between the defendant and the prosecution (most commonly, propensity to commit relevant offence or be untruthful—see s 103 CJA 2003);
• (e) The evidence has substantial probative value to an important matter in issue between the defendant and a co-defendant;
• (f) The evidence is required to correct a false impression given by the defendant;
• (g) The defendant has made an attack on another person's character (see s 106(2) CJA 2003).

The balance of this article focuses on the procedure for admission, not the substantive criteria for each gateway, except so far as the gateway affects the process (e.g., the operation of exclusionary powers is specific to certain gateways).

Procedure for Admitting Bad Character Evidence

The CJA 2003 is supplemented by the Criminal Procedure Rules (CrimPR), notably Part 21, and associated Practice Directions. The law imposes distinct but related requirements on the prosecution, co-defendants, and on a defendant seeking to adduce their own bad character.

Notice Requirements

A party wishing to adduce bad character evidence about a defendant must serve notice on the court and all other parties. This rule exists to ensure that all parties (especially the defence) have sufficient notice to prepare objections or prepare to meet the evidence. Failure to comply without good cause is likely to result in inadmissibility.

Prosecution Notice

When the prosecution seeks to introduce defendant bad character evidence (most frequently under gateways (c), (d), (f), or (g)), formal notice must be served in accordance with CrimPR 21.3.

• Timing: Prosecution notice must be served:

  • No more than 20 business days following a not guilty plea in the magistrates’ court.
  • No more than 10 business days following a not guilty plea in the Crown Court.

• Content: The notice must:

  • Set out the facts, previous convictions, or matters of misconduct relied on.
  • Explain the means by which those facts are to be proved (e.g., police certificate, witness).
  • State clearly why the prosecution contends the evidence is admissible, identifying the relevant gateway(s) under s 101(1).
  • Address why the probative value outweighs any prejudicial effect and why admission is in the interests of justice.

• Format: The notice should be in a prescribed form and usually must include supporting documentation (such as a record of previous convictions).

Co-defendant Notice

Should a co-defendant seek to adduce evidence of another defendant’s bad character (normally through gateway (e), relating to substantial probative value on a matter in issue between co-defendants), similar requirements apply:

• Timing: A co-defendant’s notice must be served as soon as reasonably practicable, and not more than 10 business days after the relevant prosecution material is disclosed, if reliance on it is intended.

• Content: The content essentially mirrors the prosecution’s notice, requiring details of the intended evidence and the gateway relied upon.

Defendant Adducing Own Bad Character

When a defendant intends to introduce evidence of his or her own bad character (gateway (b)), the requirements are less formal, but notification should be given orally or in writing to the court and to the other parties as soon as reasonably practicable. There is no strict form, but the intention is that the other parties are not taken by surprise and can object if necessary (for example, where it is believed that the true intention is to generate sympathy by reference to minor previous offending).

Supplementary Notice Provisions

CrimPR 21.4 sets out procedures for the content of any application to adduce bad character evidence, requirements for supporting documentation, and procedures in the event of amendment or further information being provided.

Opposing the Admission of Bad Character Evidence

Upon service of a notice, any other party (usually the defendant) may oppose the application by serving an application to the court and other parties stating their objections—again, under CrimPR 21.4.

• Timing: The objection/application must be served not more than 10 business days after the relevant notice is served.

• Content: The application must:

  • Specify which of the facts in the notice are disputed and the reasons why.
  • Identify any facts not contained in the original notice which the party wishes the court to consider.
  • Set out grounds for inadmissibility (e.g., not meeting the criteria for the relevant gateway; old or insufficiently similar convictions; risk of unfairness).
  • Highlight reasons why admission would (or might) have such an adverse effect on the fairness of the proceedings that the court should exclude the evidence—engaging s 101(3) (see below) or s 78 PACE 1984 where appropriate.
  • Draw attention to any other objection, such as the irrelevant or misleading nature of the evidence or breach of procedural requirements.

A party wishing to call evidence in response to the bad character application must specify the witness or evidence on which it relies, to ensure full exchange and transparency before the determination.

The court is precluded from determining the admissibility application unless the party seeking to adduce the evidence has had a reasonable opportunity to reply.

Court Determination

The court is obliged to give proper consideration to any notice and any application in opposition. The application may be determined with or without an oral hearing, but always with proper opportunity for all parties to be heard (CrimPR 21.5).

Determinations are made by:

• A judge (in the Crown Court), in absence of the jury (typically via a voir dire—a trial within a trial for matters of law such as admissibility).
• In the magistrates’ court, by the bench or District Judge, who must disregard inadmissible evidence and proceed fairly.

The court must announce, with reasons, its decision on any application to admit or exclude; a record of these reasons is to be made and available as part of the court record. The rationale must also form part of the directions to the jury if any limiting instructions are required.

Worked Example 1.1

Suppose the prosecution serve notice on Defendant A, seeking to adduce evidence of his previous conviction for robbery (dating back 15 years) under gateway (d) in a current trial for robbery. Defendant A's solicitor disputes the relevance and prejudicial nature of this evidence.

Answer:
Defendant A's solicitor should serve a written application within 10 business days under CrimPR 21.4, stating the conviction is old and lacks significant similarity—thus not evidencing a true propensity. The application would argue that, even if the gateway is technically engaged, the court should exclude the evidence under s 101(3) CJA 2003, as its admission would have an adverse impact on the fairness of the proceedings. The application should request a hearing if necessary, and offer any supporting evidence (e.g., details distinguishing the prior conviction from the present allegation).

Excluding Bad Character Evidence

Procedural compliance does not bar the court from excluding otherwise admissible bad character evidence. The court’s role as gatekeeper persists throughout and may be engaged either mandatorily or at discretion, depending on the applicable statutory power.

Mandatory Exclusion under CJA 2003, s 101(3)

Section 101(3) requires that, where evidence is adduced under gateway (d) (important matter in issue between prosecution and defendant) or gateway (g) (attack on another's character), the court must exclude it where, on application by the defendant, its admission would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. Unlike s 78 PACE 1984 (below), this exclusion is not discretionary. The wording—"must not admit"—is imperative, conferring no judicial latitude if the unfairness threshold is met.

When considering whether to exclude, the statute explicitly requires (s 101(4)) regard to be given to the time elapsed between the relevant misconduct and the present offence. Convictions that are particularly old or stale, or relate to behaviour markedly different from the facts at hand, are less likely to be admitted.

The test is a balanced one—balancing the specific probative value of the evidence against its potential for unfair prejudice. The question is not whether the evidence is damaging per se, but whether it risks diverting the fact-finder from a reasoned evaluation of the evidence relating to the current offence, leading to wrongful conviction or undermining the trial’s integrity more broadly. Common factors may include the similarity (or otherwise) of prior misconduct, the manner in which the record is to be proved, and the risk of speculative or cumulative prejudice.

Key Term: Adverse effect on the fairness of proceedings
The risk that the jury or tribunal might convict a defendant not on the evidence properly establishing guilt for the current offence, but because of assumptions or inferences drawn from previous conduct—which may not be genuinely probative of the fact in issue.

Discretionary Exclusion under PACE 1984, s 78

Section 78 provides: A court may refuse to allow evidence on which the prosecution seeks to rely if, having regard to all the circumstances, admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

Distinct from s 101(3), this power is discretionary—the court "may" (but is not obliged to) exclude evidence. It applies more broadly, covering all prosecution evidence (including bad character evidence advanced under any gateway), and is not contingent on application by the defendant (although this is usual in practice).

Section 78 is most frequently invoked where the way in which the evidence was obtained renders its reliability suspect (for example, improper police conduct, significant breaches of Codes of Practice, or where admission would undermine the integrity of the process).

As with s 101(3), the test asks whether, balancing all the circumstances—including the circumstances in which the evidence was obtained and its role in the case—admitting it would render the proceedings unfair.

Judges exercising this discretion typically provide detailed reasons, referencing factors such as the degree of prejudice, the strength and relevance of the evidence, the means by which it was obtained, and alternative means of proof.

Key Term: Judicial discretion to exclude evidence
The court’s statutory power to prevent the admission of evidence—otherwise technically valid—where to do so is necessary to uphold the fairness and integrity of criminal proceedings.

Worked Example 1.2

Defendant B is charged with theft. The prosecution intends to rely on evidence under gateway (c), asserting that Defendant B's association with known thieves is 'important explanatory evidence'. The defence contends this is prejudicial and only tangentially relevant.

Answer:
The court may consider an application for discretionary exclusion under s 78 PACE 1984. Since the evidence is sought under gateway (c) (not (d) or (g)), s 101(3) does not apply. If the judge concludes that admitting evidence of associations would risk undermining fairness—e.g. by inviting a conviction based on bad company rather than cogent proof—the court may exclude the evidence, setting out reasons based on the impact on the fairness of proceedings.

Worked Example 1.3

Suppose a co-defendant (C) serves a notice under gateway (e), seeking to introduce Defendant D's previous conviction for violent disorder (from five years earlier), asserting it has substantial probative value concerning an important matter in issue between them.

Answer:
D would have 10 business days to object, serving an application on the co-defendant and the court. D could argue the conviction lacks sufficient similarity to the current allegation, or that the elapsed time diminishes relevance. D should request exclusion either for failure to meet the required probative threshold or, if applicable, under s 78 PACE 1984, arguing unfair prejudice.

Professional Conduct Considerations

Legal representatives wishing to adduce bad character evidence bear concurrent duties: to act in their client's best interests (which may include robustly challenging the status and effect of previous convictions or misconduct) and to uphold the administration of justice by never misleading the court. Prosecutors, in particular, are under special obligations as quasi-ministers of justice not to seek admission of evidence primarily to secure conviction, but to support a fair trial. Any attempt to circumvent procedural rules or obfuscate the purpose or probative value of bad character applications may constitute professional misconduct.

Defence solicitors (especially where the client has confessed privately but wishes to plead not guilty) must act within the limits of challenging admissions honestly, cross-examining prosecution witnesses, and developing points on fairness or lack of relevance, without ever misleading the court about their client's true position.

Interaction with Admissibility of Other Evidence and Criminal Procedure

The procedural rules about bad character evidence interact with the general framework for case management, hearings on contested evidence, and the operation of pre-trial disclosure and directions. At the plea and trial preparation hearing (PTPH), or a pre-trial review in the magistrates’ court, the issues surrounding bad character (including intended application or objections) must typically be raised and case managed. Judges may make timetabling and disclosure orders to secure proper and prompt determination of all evidential applications, ensuring the defence is not taken by surprise.

Where bad character evidence is excluded, the tribunal of fact must be appropriately warned to disregard any mention of it—particularly relevant when evidence is heard and then ruled inadmissible, or in jury trials, where exclusion is determined before any such evidence is ventilated in court.

Key Term: Voir Dire
A hearing within the trial, but in absence of the jury, to determine the admissibility of evidence (including bad character applications); the judge decides questions of law and procedure before the jury is empanelled on the core evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• A clear statutory definition of bad character evidence and ‘misconduct’—prior convictions and other relevant conduct are included, but matters relating to the present offence are normally excluded.
• Admissibility is strictly limited to the seven gateways in s 101(1) CJA 2003. Each gateway has specific meaning and is relevant to the procedure by which the evidence may be adduced.
• Notice requirements under CrimPR Part 21 differ according to whether it is the prosecution, a co-defendant, or the defendant themself adducing evidence.
• Timing and content requirements for notice are mandatory; failure to comply may render the evidence inadmissible.
• Objections to bad character applications require prompt and reasoned responses, and must be served on all other parties and the court within 10 business days of receipt of notice.
• Determination of admissibility is by the judge (in the Crown Court, via a voir dire) or by the District Judge/magistrates (bench) in the Magistrates’ Court; reasons must be given for decisions, and proper records kept.
• There are strong powers of exclusion where fairness is at risk:
  • The court must exclude evidence sought under gateways (d) or (g) if it would have an adverse effect on the fairness of the proceedings (s 101(3)).
  • The court may exclude any prosecution evidence (including bad character) under s 78 PACE 1984 if, having regard to all the circumstances, its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
• Professional conduct considerations apply to all parties: the rules underpin the overriding objective of the criminal process to ensure fair and just adjudication on the evidence.

Key Terms and Concepts

• Bad Character Evidence
• Adverse effect on the fairness of proceedings
• Judicial discretion to exclude evidence
• Voir Dire