Non-defendant character, notice and trial control

A witness is not routed through the defendant gateways. A complainant, witness or other person who is not a defendant falls under CJA s 100. The s 98 definition and exclusions still apply. Non-defendant character is not unrestricted simply because it may help the defence, and it is not prohibited simply because it criticises a prosecution witness.

There are three non-defendant routes. Evidence of a non-defendant's bad characterGlossary termNon-defendant bad character is admissible if it is important explanatory evidence, has the specified substantial probative value, or all parties agree. Without agreement, the court's leave is required. “Leave” means permission. Do not assume that every s 100 application must meet the substantial-probative-value route: the explanatory route is a distinct alternative with its own conditions. CJA s 100(1), (4).

Important explanatory evidence has two conditions. Without the evidence, the tribunal would find it impossible or difficult properly to understand other evidence; and its value for understanding the case as a whole must be substantial. This mirrors the defendant explanatory test, not a general invitation to introduce background. CJA s 100(2).

The probative-value route has a double threshold. The evidence must have substantial probative value on a matter in issue which is itself of substantial importance in the context of the whole case. Consider the nature and number of events, their timing, relevant similarities and dissimilarities, and the issues the proposed inference actually addresses. Where identity is disputed and the argument is that the same person committed the earlier and charged misconduct, examine how strongly the evidence tends to show the same person's responsibility on each occasion. CJA s 100(1)(b), (3).

Prepare facts, proof and reasons. Every Part 21 application or notice must specify the misconduct facts, explain how they will be proved if disputed, and explain admissibility. A certificate, an agreed admission and testimony are different proof mechanisms. The application should identify the gateway and proposed inference, not merely attach a criminal record. Serve the court officer and the required other parties. CrimPR 21.2–21.4.

Calculate from the right trigger. A business day excludes Saturdays, Sundays, Christmas Day, Boxing Day, Good Friday, Easter Monday and a bank holiday. Periods expressed as days after a plea, disclosure or service start counting after that triggering day. Do not substitute the date the lawyer happens to read the document. For a deadline running from service, establish service under CrimPR Part 4: ordinary electronic service by 2.30 pm on a business day is generally treated as served that day; later service is generally the next business day, subject to r 4.11 and any proved contrary position. Posting and delivery use their own rules. CrimPR 2.2, 4.11, 21.3–21.4.

Late filing requires a decision, not an assumption. Under r 21.6, the court may shorten or extend a Part 21 time limit even after expiry, allow a different form or an oral application/notice, and dispense with a requirement for notice of defendant bad character. A party needing an extension must apply when serving the late application or notice and explain the delay. Ask what time or other practical step is needed for a fair response. Lateness neither automatically admits nor automatically excludes the evidence, and failure may affect costs under CJA s 111(4). Procedural flexibility does not abolish the statutory admissibility tests.

Give the other side a proper opportunity and obtain reasons. For a non-defendant application, the other parties must be present or have had at least 10 business days in which to make representations; for an objection to a defendant-character notice, the party who served the notice must be present or have had a reasonable opportunity to respond. The Rules permit hearings or decisions without a hearing within those safeguards, and variation of rulings where the specified statutory powers allow it. Reasons for admitting or refusing character evidence, and for a s 107 acquittal or retrial decision, must be announced publicly without the jury present. CrimPR 21.3(5), 21.4(6), 21.5; CJA s 110.

The admissibility assumption is not a verdict. When assessing relevance or probative value, the court ordinarily assumes the proposed evidence is true, unless no court or jury could reasonably find it true. That screening rule does not relieve the relying party of producing admissible proof, and it does not tell the trial fact-finder to assume the allegation is established. CJA s 109.

Prove the conviction and distinguish its factual reach. Where a conviction or acquittal is admissible, PACE s 73 permits proof by the appropriate certificate, together with proof of identity. PACE s 74(1)–(2) addresses a conviction of someone other than the accused as proof of commission of the offence, subject to the section. Section 74(3) also addresses an accused's admissible conviction: the person is taken to have committed the offence unless the contrary is proved. These are not free-standing bad-character gateways, and neither a certificate nor the conviction necessarily proves every asserted detail of the earlier incident. Disputed surrounding allegations still need an evidential basis.

For prosecution propensity, the jury must be sure of the propensity. Do not replace this with either “admission proves it” or “every individual allegation must first be proved in isolation”. When several incidents are relied on, the evidence may be considered cumulatively and incidents may support one another. The jurors who rely on propensity must be sure that the propensity is established, but they need not be sure of every aspect of every incident separately. When the alleged propensity rests on one incident alone, being sure of that propensity requires the necessary incident to be proved to the criminal standard. R v Mitchell [2016] UKSC 55, [42]–[44], [46], [49], [52].

Why Mitchell is used here. It was a Northern Ireland appeal under the corresponding bad-character regime. The Supreme Court expressly examined the English cases when explaining the proof of propensity and rejecting a requirement to establish every component allegation separately. It supplies that proof distinction; CJA ss 100–101 remain the statutory gateways for England and Wales. For defence evidence about a non-defendant, do not mechanically transfer the prosecution's burden of proving a propensity against D: identify the issue, who relies on it and the direction appropriate to that evidence. Mitchell, [40]–[49]; CJA ss 100, 109.

Directions must control reasoning, not merely name the gateway. Identify the factual proposition the admitted evidence can rationally support: explanation, propensity, credibility, correction of an impression or an issue between defendants. More than one use may be relevant after lawful admission. Explain the applicable proof requirement and any limits on the inference. Age, similarity, number, reliability and context affect weight. Neither “D offended before, therefore D is guilty” nor “the witness has a conviction, therefore this account is false” is a lawful substitute for analysing the evidence. Highton, [10]; HansonKey caseR v Hanson[2005] EWCA Crim 824, [7]–[13]; Mitchell, [42]–[44].

Keep defendants, counts and the ultimate question separate. Evidence may require different directions for different defendants or counts. Do not use one defendant's good character as adverse evidence against another. The fact-finder must still decide whether the charged offence is proved on the evidence as a whole; character evidence does not reverse that responsibility. In a summary trial the bench or District Judge must apply the relevant legal reasoning without reciting a jury formula. CJA s 112(2); R v HunterKey caseR v Hunter[2015] EWCA Crim 631 [2015] EWCA Crim 631, [68], [77]–[80]; CrimPR Parts 24–25.