Character evidence is one of the most controversial areas of criminal evidence law. The general rule is that a person is tried for what they DID, not for who they ARE. If the prosecution were allowed to tell the jury that the defendant had previous convictions, the jury might convict simply because they think the defendant is a "bad person" rather than because the evidence proves they committed this particular offence. That is why the rules are so strict.
The starting position is that evidence of a person's bad character is NOT admissible. The CJA 2003 created a framework of "gateways" through which bad character evidence can be admitted, but the prosecution must show that at least one gateway applies before the evidence can be put before the jury.
References to evidence of a person's "bad character" are to evidence of, or of a disposition towards, misconduct by that person. "Misconduct" means the commission of an offence or other reprehensible behaviour.
Bad character has two limbs. First, EVIDENCE of misconduct - this is straightforward: proof that the person committed an offence or did something reprehensible. Second, a DISPOSITION towards misconduct - this is about a person's tendency to behave in a certain way, even if there is no specific proven act. A disposition could be shown by a pattern of behaviour or by a single act that demonstrates a tendency.
Not all bad character involves criminal offences. "Reprehensible behaviour" is broader than criminal conduct and can include things like dishonesty, violence, or other blameworthy acts that do not amount to offences. However, the behaviour must be sufficiently serious to be characterised as "reprehensible" - minor shortcomings or personality flaws would not normally qualify.
Evidence of a defendant's good character is generally ADMISSIBLE. This is the opposite of the bad character rule. If the defendant has no previous convictions and a good reputation, they can call witnesses to speak to their good character. This is a fundamental right. Section 101(2)(f) of the CJA 2003 preserves this common law right, and s.106 requires the court to give the jury a direction on good character where appropriate.
When a defendant has no previous convictions and no evidence of bad character has been admitted, the judge must give the jury a good character direction. This tells the jury that the defendant is of good character and that this is a relevant consideration when assessing their guilt. If the defendant DOES have previous convictions but some good character evidence is also admitted, the judge may still give a direction, but it will be more limited.
Where a defendant has no previous convictions, the court must (if the defendant so requires) direct the jury that they must take account of the defendant's good character when considering whether the defendant is guilty of the offence charged.
Section 101(1) of the CJA 2003 sets out seven "gateways" through which evidence of a defendant's bad character can be admitted. Each gateway is a separate route. The prosecution only needs to satisfy ONE gateway for the evidence to be admissible (unless the evidence is then excluded under s.101(3)). You need to know all seven gateways and be able to apply them to problem scenarios.
In criminal proceedings, evidence of a defendant's bad character is admissible if, but only if, one or more of the gateways in subsections (1)(a) to (1)(g) apply.
Under s.101(1)(a), bad character evidence is admissible if all parties to the proceedings agree to its admission. This is the simplest gateway. If the defence consents to the prosecution adducing bad character evidence, the court will generally admit it. The defence might agree because the evidence is not seriously contested, or because they want to get it out of the way so the jury does not think they are hiding something.
The evidence is important explanatory evidence for the case as a whole, or for any other issue in the proceedings.
Evidence is important explanatory evidence for the purposes of s.101(1)(b) 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.
Gateway (b) applies when the bad character evidence is necessary to make sense of the rest of the evidence. Without it, the jury would struggle to understand the case. For example, if the defendant is charged with assaulting his wife and there is evidence that he has previously assaulted other partners, that evidence might be needed to explain a pattern of behaviour that helps the jury understand the current charge. The test is high: the evidence must be SUBSTANTIALLY valuable for understanding the case.
The evidence is relevant to an important matter in issue between the defendant and the prosecution.
Gateway (c) allows bad character evidence to be admitted when it is relevant to an important issue in the case. This is broader than gateway (b) because the evidence does not need to be "explanatory" - it just needs to be relevant to something that matters. The issue must be "important" - a trivial or peripheral issue will not suffice. Common examples include proving MOTIVE, INTENT, or a required element of the offence.
If the defendant is charged with murder and claims it was an accident, previous convictions for violence might be relevant to the issue of INTENT. The prosecution could argue that the defendant's previous violent behaviour makes it more likely that he intended to cause really serious harm on this occasion. However, this gateway is not unlimited - the evidence must be substantially relevant to the issue, not merely suggestive.
The evidence is relevant to an important matter in issue between the defendant and a co-defendant, and the evidence is or would be admissible under section 100 (bad character of non-defendants).
The evidence shows or tends to show that the defendant has a propensity to commit offences of the kind with which he is charged, except where the purpose is to show a propensity to be untruthful, and the court must be satisfied that the requirements of s.103(1)(a) or (b) are met.
Gateway (d) is the PROPENSITY gateway. It allows evidence that shows the defendant has a tendency to commit the same kind of offence. For example, if the defendant is charged with burglary, previous convictions for burglary could show a propensity to commit burglary. Importantly, this gateway requires the court's LEAVE (permission) and the prosecution must give ADVANCE NOTICE of the evidence they intend to rely on.
The court must be satisfied that the evidence shows a propensity to commit offences of the same kind: (a) because it is evidence of the commission of an offence of the same description or category as the offence charged, or (b) because it is evidence of other reprehensible behaviour which is probative of the defendant's propensity to commit offences of the kind charged.
Gateway (e) allows evidence that shows the defendant has a propensity to be UNTRUTHFUL. This is separate from gateway (d) because it relates to credibility rather than criminal propensity. For example, previous convictions for fraud, perjury, or deception could show a propensity for dishonesty. This gateway also requires the court's LEAVE, but does not require advance notice in the same way as gateway (d).
Where the evidence is adduced to show that the defendant has a propensity to be untruthful (other than in the course of making a statement in the proceedings), the evidence is only admissible with the leave of the court, which must be satisfied that the evidence is of sufficient probative value to justify its admission.
Gateway (e) should not be used as a general tool to attack the defendant's credibility. The court must be satisfied that the evidence has SUFFICIENT PROBATIVE VALUE. Previous convictions for dishonesty do not automatically mean the defendant is lying in their current trial. The court will look at the nature and recency of the convictions and the circumstances of the case.
The evidence is being adduced by the defendant to attack the character of another person, and the evidence is or would be admissible under section 100 (bad character of non-defendants).
Gateway (f) is a "tit-for-tat" provision. If the defendant attacks the character of a witness or another person involved in the case, the prosecution can respond by adducing evidence of the defendant's own bad character. This prevents the defendant from unfairly smearing witnesses while hiding their own misconduct. The evidence must be admissible under s.100 (the non-defendant bad character provisions).
An "attack" on another person's character for the purposes of gateway (f) means adducing evidence or making an allegation that the other person has committed an offence or other reprehensible behaviour. Cross-examining a witness about their credibility (without suggesting specific misconduct) does not normally count as an attack. But if the defendant alleges that a prosecution witness is themselves a criminal, that could trigger gateway (f).
The defendant has given evidence of his good character, and the prosecution wishes to rebut that evidence by adducing evidence of the defendant's bad character.
Gateway (g) allows the prosecution to adduce bad character evidence if the defendant has given evidence that creates a FALSE or MISLEADING impression of their good character. For example, if the defendant tells the jury "I am a person of good character, I have never been in trouble with the police" when in fact they have several previous convictions, the prosecution can use gateway (g) to introduce those convictions to correct the false impression.
If, on being questioned by the court, the defendant makes an attack on another person's character, or gives evidence of his good character (including by calling a witness for that purpose), the court must, on the application of the prosecution, allow the prosecution to adduce evidence to rebut any impression of the defendant's good character given by the defendant.
Gateway (g) does NOT allow the prosecution to introduce bad character evidence just because the defendant has given evidence. The prosecution can only use this gateway if the defendant has given evidence that creates a FALSE or MISLEADING impression. Merely giving evidence in one's own defence does not open the door to bad character evidence.
| Gateway | Description | Requirements |
|---|---|---|
| (a) Agreement | All parties agree to admit | Consent of all parties |
| (b) Explanatory | Important explanatory evidence | Substantial value; needed to understand case (s.102) |
| (c) Important matter | Relevant to important issue | Must be substantially relevant to an important issue |
| (d) Propensity (same kind) | Shows tendency to commit same offences | Court leave + notice; propensity under s.103 |
| (e) Propensity (untruthful) | Shows tendency to be dishonest | Court leave; sufficient probative value (s.104) |
| (f) Attack on another | Defendant attacks another person's character | Must be admissible under s.100 |
| (g) False impression | Defendant creates false impression of good character | Evidence must correct the false impression (s.105) |
The court must not admit evidence under subsection (1)(d) or (1)(g) if, on an application by the defendant to exclude it, the court is satisfied that by reason of the length of time since the matters to which the evidence relates are alleged to have occurred, or for any other reason, its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Even if bad character evidence satisfies one of the gateways (particularly gateways (d) or (g)), the court can still exclude it if admitting it would be unfair. This is an important safeguard. The defendant can apply to have the evidence excluded, and the court will balance the probative value of the evidence against the prejudicial effect on the defendant. Factors include the age of the previous misconduct and the similarity to the current charge.
Section 101(3) only applies to gateways (d) and (g). For the other gateways, the court can still exclude evidence under s.78 PACE 1984 (fairness discretion), but s.101(3) itself is limited. This means the fairness exclusion is more specific for propensity evidence and false impression evidence than for the other gateways.
Evidence of bad character is not just relevant to defendants. Witnesses can also have bad character that is relevant to the proceedings. For example, a prosecution witness with a history of dishonesty may have their credibility challenged. Section 100 of the CJA 2003 sets out three gateways for admitting evidence of a non-defendant's bad character. These are narrower than the defendant gateways.
In criminal proceedings, evidence of a person's bad character (other than evidence relating to the defendant) is admissible if, but only if, one of the gateways in subsections (1)(a) to (1)(c) applies.
The credibility gateway is the most commonly used for non-defendant bad character. If a party wants to challenge a witness's credibility by adducing evidence of their bad character, they need the court's leave. The court will consider whether the evidence has sufficient probative value and whether it is proportionate to admit it. Previous convictions for dishonesty are most likely to be admitted to challenge credibility.
Evidence of a witness's good character is generally admissible if it is relevant to their credibility or to a matter in issue. A witness who gives evidence about their good reputation can have that evidence admitted, subject to the court's discretion to exclude it if it is of marginal relevance or would waste time. The rules for non-defendant good character are less prescriptive than the rules for defendant good character.
Under s.109 of the CJA 2003, the prosecution must give the defence notice if they intend to adduce bad character evidence under gateways (d) or (g). This notice must be given within a reasonable time before the trial. The purpose is to give the defence a fair opportunity to prepare their response and, if appropriate, to apply to have the evidence excluded under s.101(3). Failure to give notice may result in the evidence being excluded or the adjournment of the trial.
Section 78 of PACE 1984 applies to character evidence just as it applies to other types of evidence. Even if bad character evidence satisfies one of the gateways in s.101, the court can still exclude it under s.78 if admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. This gives the court a final "safety net" discretion that operates alongside the specific exclusion in s.101(3).
The key question under s.78 is whether the prejudicial effect of the bad character evidence outweighs its probative value. All bad character evidence is prejudicial to the defendant to some extent - the question is whether it is SO prejudicial that it would make the trial unfair. Evidence of recent, similar misconduct is more likely to be admitted than evidence of old, dissimilar misconduct.
When answering a character evidence question, work through the issues systematically: (1) Is it "bad character" under s.98? (2) Which gateway applies? Go through all seven. (3) If a gateway is satisfied, should the evidence still be excluded under s.101(3) or s.78? (4) If it is non-defendant bad character, apply s.100 instead. (5) Consider notice requirements and procedural issues. Apply each test to the facts and reach a conclusion.