Definition and the seven defendant gateways

Define misconduct before choosing a gateway. Bad characterGlossary termBad character is evidence of, or a disposition towards, misconduct: committing an offence or engaging in other reprehensible behaviour. A disposition means a tendency; reprehensible behaviour is blameworthy conduct, not merely an unpopular personality. A conviction is one way misconduct can be evidenced, not the definition of bad character. Uncharged conduct and conduct after the charged event may fall within the definition. None becomes admissible merely because someone alleges it. CJA ss 98 and 112(1).

Apply the two s 98 exclusions first. Evidence is outside this statutory definition if it has to do with the alleged facts of the charged offence, or concerns misconduct connected with its investigation or prosecution. It may still require another evidential route and may still be excluded under an applicable rule. “Outside bad character” therefore does not mean “automatically admissible”. CJA s 98(a)–(b).

Classify the person, not the party offering the evidence. Evidence about D1 offered by D2 remains evidence of a defendant's character. A co-defendant does not become a non-defendant because another accused seeks to blame them. Section 101 supplies seven gateways; section 100 is reserved for someone who is not a defendant. CJA ss 100–101.

Gateway (a): all parties agree. Admission is permitted where all parties agree to it, not merely where the prosecution and one defendant agree in a multi-defendant case. Agreement does not establish the truth of every surrounding allegation or require any particular inference. Those matters should be identified separately. CJA s 101(1)(a).

Gateway (b): the defendant introduces their own character. The evidence is adduced by D, or is given in answer to a defence cross-examination question intended to elicit it. “Adduce” means introduce evidence before the court. D may choose to disclose a limited record to give an accurate account of their history. That choice is not a way of placing evidence before the jury while making it legally invisible. Consider its possible relevant uses and the direction sought before introducing it. CJA s 101(1)(b); CrimPR 21.4(8).

Gateway (c): important explanatory evidence. Important explanatory evidenceGlossary termImportant explanatory evidence must satisfy both conditions: without it, the tribunal would find it impossible or difficult properly to understand other evidence; and its value for understanding the case as a whole is substantial. Convenient background or an interesting story is insufficient. For example, a relationship created through earlier criminal dealings may be needed to make otherwise inexplicable conversations intelligible. The party must explain why understanding the evidence genuinely requires that history. A weak propensity argument cannot avoid its proper examination merely by being called “background”. CJA ss 101(1)(c) and 102.

Gateway (d): an important issue between prosecution and defendant. Only the prosecution may introduce evidence through this gateway. It must be relevant to a matter of substantial importance in the context of the case. Such matters include a tendency to commit offences of the kind charged, unless that tendency makes guilt no more likely; and a tendency to be untruthful, unless it is not suggested that D's present case is untruthful in any respect. These are possible important issues, not the only ones. Identify the actual disputed proposition before describing the record. CJA ss 101(1)(d), 103(1), 103(6) and 112(1).

Propensity is an inference, not a conviction count. A propensityGlossary termPropensity (bad character) is a tendency relevant to the issue being tried. Section 103(2) permits reliance, among other methods, on convictions of the same statutory description or a prescribed category. “Same description” refers to how the offence would be described in the charge; a prescribed category is one created for this statutory purpose, not any broad label counsel chooses. Neither similarity of labels nor membership of a category automatically establishes the tendency. Conversely, other sufficiently probative misconduct may establish it. CJA s 103(2)–(4); R v HansonKey caseR v Hanson[2005] EWCA Crim 824 [2005] EWCA Crim 824, [7]–[10].

Dishonesty and untruthfulness are not interchangeable. An offence involving taking property does not necessarily show a tendency to give false accounts. Consider whether the earlier conduct involved deliberate false representations or other circumstances genuinely bearing on truthfulness. Also ask whether the truth of D's present case is disputed. A not-guilty plea does not mechanically make every dishonesty conviction admissible as proof of untruthfulness. CJA s 103(1)(b); HansonKey caseR v Hanson[2005] EWCA Crim 824, [13].

Gateway (e): an important issue between co-defendants. Evidence must have substantial probative value on an important matter in issue between D and a co-defendant. Probative value is its strength in proving the matter; the statutory adjective requires more than ordinary relevance. Evidence under this gateway must be adduced by the co-defendant or elicited through that co-defendant's questioning. If the proposed use is to show a propensity to be untruthful, the nature or conduct of D's case must undermine the co-defendant's defence. That additional condition concerns untruthfulness; it is not a universal condition imposed on every use of gateway (e). CJA ss 101(1)(e) and 104.

Gateway (f): correcting a false impression. A false impressionGlossary termFalse impression arises from an express or implied assertion, for which D is responsible, apt to mislead the tribunal about D. D is responsible for an assertion made by D in the proceedings, whether or not in testimony; made by D when questioned under caution before charge about this offence, or on being charged or officially told of possible prosecution, and later put in evidence; made by a defence witness; elicited in cross-examination by a defence question intended or likely to do so; or made out of court by someone else and introduced in evidence by D. The court may also treat conduct, including appearance or dress, as creating an assertion where it is just to do so. It is not a licence to treat every innocent presentation or denial of guilt as a claim to lifelong virtue. CJA ss 101(1)(f), 105(1)–(5).

Match the correction to the impression. Only the prosecution may introduce evidence under gateway (f), and only so far as necessary to correct the misleading impression. Section 105(3) also removes responsibility if, and to the extent that, D withdraws the assertion or disassociates themself from it. Consider whether an adequate correction has removed the misleading impression rather than assuming that the whole criminal record must now be revealed. CJA s 105(3), (6)–(7).

Gateway (g): attack on another person's character. An attack includes defence evidence imputing an offence or reprehensible behaviour, a cross-examination question intended or likely to elicit such evidence, and evidence of the specified imputations made when questioned under caution or on being charged or officially informed of possible prosecution. The imputation may concern the charged incident itself. Only the prosecution may introduce responsive bad-character evidence through this gateway. Notice the difference from gateway (b), whose cross-examination provision uses an intention requirement. CJA ss 101(1)(g), 106(1)–(3).

Identify the exact control; do not say only “the court has a discretion”. Different provisions perform different jobs:

The gateway's own threshold remains essential. In particular, the absence of s 101(3) for gateway (e) does not reduce substantial probative value to mere relevance. Other applicable exclusion rules are preserved by CJA s 112(3), but their own conditions must be satisfied. Mere prejudice, a weak application or a missed deadline is not a substitute for identifying the relevant legal power.

Old childhood convictions have an additional statutory restriction. Where the charged offence is alleged to have been committed when D was 21 or over, a conviction for an offence committed under 14 may be admitted only if both offences are triable only on indictment and the court is satisfied that admission is in the interests of justice. This is an additional restriction, not an eighth gateway. The age of D when allegedly committing the present offence matters, not merely their age at trial. CJA s 108(1)–(2).

Admission and subsequent use are different questions. Once properly admitted, character evidence may be used for any purpose for which it is relevant; its use is not automatically confined to the gateway through which it entered. For example, material admitted after a character attack may, on the facts, also bear on propensity. The court must identify the legitimate inference and give an appropriate direction. This does not remove a gateway's limits on what may be admitted, nor authorise speculation or moral condemnation. R v Highton [2005] EWCA Crim 1985, [10].

Contamination may require the jury trial to stop. Under CJA s 107, after the close of the prosecution case, if bad-character evidence admitted under gateways (c)–(g) is contaminated and, given its importance to the prosecution case, conviction would be unsafe, the judge must direct an acquittal or, if there ought to be a retrial, discharge the jury. Contamination includes evidence made false, misleading or different from what it otherwise would have been through an agreement or understanding with another person, or awareness of another actual or potential witness's evidence in the statutory circumstances. This is a jury-trial safety mechanism, not simply a synonym for weak evidence. It also prevents an unsafe alternative verdict covered by s 107(2). CJA s 107(1)–(5).

A previous conviction is not proof of the present charge. Sexual-history restrictions and good-character directions are separate questions dealt with below. Authorities: CJA 2003 sections 98–103; YJCEA section 41.