Character Evidence — SQE1 FLK2 Criminal Law and Practice

A man is charged with assaulting an acquaintance outside a pub. In his police interview, under caution, he calls the complainant a lying junkie who batters his own girlfriend. At trial his counsel is careful. She runs a disciplined self-defence case and puts not one word against the complainant's character in front of the jury. The jury still hear that the man has three convictions for battery in the last four years. How?

Because an imputation made under caution counts. He attacked the complainant's character in the interview room, and that opened the gate months before his counsel stood up. This is Character Evidence, and it is a topic where what your client says early decides what the jury hears late. Keep that interview in mind.

Here is the route. What bad character actually means, and the two things the definition leaves out. Then good character, which runs the other way. Then the seven gateways, one at a time. Then the two ways a judge can still keep the evidence out. And finally the different, narrower rules for everybody who is not the defendant.

Start with the principle the whole topic protects. A person is tried for what they did, not for who they are. Tell a jury that the defendant has a string of previous convictions, and they may convict him for being the sort of man who offends. Not because the evidence proves this offence. So the default is exclusion. Bad character comes in only through a gate.

The definition first. Under s.98 of the Criminal Justice Act 2003, bad character is evidence of misconduct, or of a disposition towards misconduct. And misconduct means the commission of an offence, or other reprehensible behaviour. So it is wider than convictions. Charges that went nowhere, allegations never proved, conduct nobody ever reported: all of it can qualify.

But reprehensible is a real threshold, not a synonym for unattractive. Try one. A man in his thirties is on trial for a sexual offence against a girl of fifteen. He has no convictions. The prosecution want to prove that years earlier he had a relationship with a girl of sixteen. It was lawful. It was open. Nobody complained, and the prosecution do not say he committed any offence. Is that bad character?

No. Lawful behaviour that some would disapprove of is not reprehensible behaviour, so it falls outside s.98 altogether. Which cuts both ways for the defence, because evidence outside s.98 needs no gateway at all. In the case those facts come from, the relationship was admitted anyway, as relevant to whether the man had a sexual interest in girls of that age.

And s.98 carves two things out expressly. Evidence which has to do with the alleged facts of the offence charged. And evidence of misconduct in connection with its investigation or prosecution. Neither is bad character at all. So try this. Three weeks before trial, a man awaiting trial for robbery texts the shop assistant who identified him: drop the case or you will regret ever opening your mouth. Does that need a gateway?

No. Threatening a witness is misconduct connected with the prosecution of the charged offence, so it sits in the second carve-out. It goes in on ordinary principles of relevance, as evidence of a guilty mind, with no notice and no gateway. Learn those two carve-outs. They turn up as a trap far more often than they deserve to.

Now good character, which runs the opposite way. It is generally admissible, and it is a matter of common law. The 2003 Act abolished the common law rules on bad character, in s.99, but left good character untouched. So a defendant of good character can call her manager of nine years to say she is scrupulously honest with money. The Act provides no gateway, because it does not need to.

And where she is of good character, the judge must direct the jury about it, in two limbs. Credibility: her evidence and her pre-trial answers are more likely to be truthful. And propensity: she is less likely to have committed the offence. That is R v Vye, from 1993, and it is a direction, not a favour. Both limbs, whether or not she called character witnesses.

But most defendants are not spotless, and that is where R v Aziz, from 1996, comes in. A single old minor conviction, unrelated, unknown to the jury, does not forfeit the direction. He is entitled to be treated as of effectively good character, and the judge gives a modified direction, tailored so that it is both generous and accurate.

Seven gateways now, under s.101(1). They are lettered A to G, and the prosecution need only one. Get that into your head early, because a scenario will often put two forward and let one fail. A failed basis does not taint the application. If propensity is made out, the evidence is in, whatever else was argued.

Gateway A is agreement, and it means every party. A man and a woman are tried together for handling. The prosecution want his conviction in. He wants it in himself. She objects, because the jury will tar her with the same brush. Can it come in by agreement?

No. One objecting co-accused defeats gateway A outright. But gateway B belongs to him alone: evidence he adduces himself, or draws out by his own question in cross-examination. He needs nobody's consent and no leave. That is how counsel draws the sting, bringing the record out in chief rather than letting the jury wonder.

Gateway C is important explanatory evidence, and s.102 sets a high bar. Without it, the jury would find it impossible or difficult properly to understand other evidence, and its value for understanding the case as a whole must be substantial. Phone messages about the postcode and taxing a rival mean nothing to a lay reader until somebody explains the drug line. That is gateway C. Not background. Not colour. Necessary.

Gateway D is the big one, and it is the prosecution's. The evidence is relevant to an important matter in issue between the defendant and the prosecution. Motive. Intent. Who started the fight. And, most often, propensity, which s.103 spells out: a propensity to commit offences of the kind charged, and a propensity to be untruthful.

How do you prove propensity? Under s.103(2) it may be established by a conviction for an offence of the same description, or of the same category. Description means the words of the charge. Category means a prescribed list, and the theft category sweeps in theft, robbery, burglary and handling together, so shop thefts can clear the threshold on a robbery charge.

But read the opening words of s.103(2): without prejudice to any other way of doing so. Convictions are an illustration, not a requirement. Take a man with no convictions at all. He has kicked in three neighbours' shed doors after drinking, paying for the repairs each time so nobody called the police. The incidents themselves can establish the propensity.

And how many convictions do you need? There is no minimum. That is R v Hanson. The fewer there are, the weaker the evidence is likely to be, but one can be enough where its circumstances show unusual behaviour strikingly similar to the charge. A burglar talks his way in as a water board inspector, keeps an elderly householder at the kitchen tap, and has an accomplice search upstairs. He did exactly that four years ago. One conviction, and the propensity is made out.

Two things to hold about gateway D. First, no leave. Hold that one; it comes back at the quick check. Second, notice. Where the prosecution rely on it they must give advance written notice under the Criminal Procedure Rules, Part 21, made under s.111 of the Act. A phone call reading out the dates is not notice.

Gateway E belongs to the co-defendant, and only to him. Bad character of substantial probative value on an important matter in issue between the two accused. By s.104(2) only the co-defendant may adduce it. The prosecution cannot borrow it. This is the gateway of the cut-throat defence, where each accused blames the other.

Two riders. Where the evidence goes to a propensity to be untruthful, s.104(1) adds a condition: the defendant's own defence must be such as to undermine the co-defendant's. And once the threshold is met, nobody can keep the evidence out. A defendant's right to run his own defence is not sacrificed to protect the man in the dock beside him.

Gateway F corrects a false impression the defendant has given about himself. He says he has never been in trouble, and he has a record. By s.105 he is responsible for more than what he says in the witness box. What he said in interview or on charge. What a witness he calls says. What he draws out in cross-examination.

Two limits, and both are examinable. Under s.105(3) he is not responsible if he withdraws the assertion or disassociates himself from it. An immediate correction in chief kills the gateway; a grudging concession dragged out of him in cross-examination does not. And under s.105(6) the rebuttal goes no further than is necessary to correct the impression. The whole record does not automatically go in.

Gateway G is tit for tat. The defendant has attacked another person's character, so the prosecution may put in his own. Section 106 defines the attack: evidence, or questions intended to elicit evidence, that the person committed an offence or behaved reprehensibly. His convictions need not resemble the charge, and he need not have given evidence at all.

But not every challenge is an attack. Saying a witness is mistaken, or unreliable, or has a poor memory, is not. Saying he deals drugs from his flat, or has invented the whole account, is. And here is our man from the interview room. Section 106 reaches an imputation made on being questioned under caution, so he cannot smear the complainant on tape and then present a sanitised case to the jury.

So the gate is open. Can the judge still shut it? Two powers, and they are not the same. Section 101, subsection 3 is a duty, and it bites on a defence application. The court must not admit the evidence if doing so would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. Age of the misconduct, similarity, number, seriousness, whether he has reformed.

But that duty reaches only gateways D and G. Not C, not E, not F. So where explanatory evidence about years of controlling behaviour comes in through gateway C, the defence cannot invoke that duty at all. The second power is s.78 of PACE 1984, the general discretion over prosecution evidence, and it applies to bad character like anything else. Satisfying a gateway is the beginning of the argument, not the end.

One more thing about gateway D, for the summing-up. Propensity is part of the evidence, not a shortcut to guilt. Where the rest of the case is a disputed identification made in poor light, the judge must tell the jury they may not convict wholly or mainly on the convictions. A record cannot bolster a weak case.

Finally, everybody who is not the defendant. Section 100 governs them, and it is narrower. Three gateways, not seven. Important explanatory evidence. Substantial probative value on a matter in issue which is itself of substantial importance in the case as a whole. Or the agreement of all parties.

And here is the difference that catches people. For the first two, leave of the court is required, under s.100(4). Only agreement needs no leave. There is also no separate credibility gateway. If you want to put a prosecution witness's perjury conviction to him because his account is the case, you go through substantial probative value. And you ask for leave.

It works for the dead as well as the living. On a murder charge where the defence is self-defence, the deceased's recent convictions for wounding and affray can be admitted. Both were attacks on strangers with weapons, and they support the case that he was the aggressor. Substantial probative value on who started it, and leave of the court.

A word on how SQE1 tests this. You will not be asked to recall a case name. You get a set of facts, five answers, and one job, which is to pick the best one. This topic is really a statute topic: the sections do the work, and the cases only gloss them. Learn the sections.

If you keep only three names. R v Vye, for the two limbs of the good character direction. R v Aziz, for the defendant who is entitled to be treated as effectively of good character. And R v Hanson, for the rule that there is no minimum number of convictions, because a single striking one can establish a propensity.

Four traps. One: the duty to exclude does not cover everything. Section 101, subsection 3 reaches gateways D and G only, and nothing a co-defendant adduces through gateway E can be excluded at all, by either power. Candidates lose marks by reaching for a discretion that is not there.

Two: an acquittal is not a bar. Misconduct under s.98 includes alleged offending, so evidence underlying a charge the defendant was acquitted of can still be admitted where it is relevant. An acquittal means the earlier jury was not sure, not that the events did not happen.

Three: notice must be in writing. A prosecutor who telephones defence solicitors and reads out the dates has not complied with the Criminal Procedure Rules, however much time he leaves. Four: dishonesty is not the same as untruthfulness. Convictions show a propensity to be untruthful mainly where the offending involved active deception, or where the defendant ran a case the jury disbelieved.

Quick check, and you were told to hold this one. A woman is charged with burgling a house. She has two convictions for burglary of dwellings, the more recent from eighteen months ago. In each she got in through an unlocked back door, as she is said to have done here. The prosecution serve notice in time, relying on the convictions as showing a propensity. Her counsel submits that the judge cannot let them go before the jury without first granting leave. Is counsel right?

Three candidate answers. One: yes, because the court must first be satisfied that the convictions have substantial probative value. Two: no, because leave is not required for a defendant's bad character, though she may apply to exclude it. Three: no, and once notice has been served the judge has no power to keep the convictions out. Pause here if you want a moment.

The answer is two. None of the seven defendant gateways requires the court's leave. What the prosecution must do is give notice, which they did. What she can do is apply under s.101(3) to exclude the convictions as unfair.

Why the others fail. One imports the wrong test: substantial probative value belongs to gateway E and to s.100, not to gateway D, and leave is a s.100 requirement. Three goes too far the other way. Notice is a procedural step, not a passport.

Five things to take away. One: misconduct is an offence or other reprehensible behaviour, and lawful conduct that some disapprove of is neither. Two: evidence to do with the facts of the offence, or with its investigation or prosecution, is not bad character at all and needs no gateway. Three: seven gateways, and one is enough.

Four: no leave for the defendant's gateways, but leave for non-defendants under s.100 unless everyone agrees. Five: the duty to exclude reaches only D and G, though s.78 covers prosecution evidence throughout. And our man outside the pub lost his good character to something he said in an interview room, long before anyone thought about the trial. Next time, the Exclusion of Evidence.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.