Chapter 8 – The Defendant and their Character

VIDEO TRANSCRIPT
“The Defendant and their Character”
Chapter 8 of the module guide explores the significance and admissibility of individuals’
character—good or bad—as evidence within legal proceedings.
In this lecture, we will focus on the defendant’s bad character and how it is treated in the law of
evidence.
We will first look the potential relevance of bad character in criminal proceedings in light of the
concerns that we might have with its introduction.
We will then look at the legal framework which governs the admissibility of bad character
evidence.
This will first require us to define bad character evidence for the purposes of the law.
We will then survey the seven “gateways” through which evidence of the defendant’s bad
character can be admitted.
Character, demonstrated by past actions, may be relevant to assessing whether an individual
committed a crime in question. While it certainly isn’t conclusive, the fact that an individual is
the kind of person who steals might very well mean that they were more likely to have stolen
something when accused.
However, the introduction of bad character evidence involves some concerns as well. While
potentially probative, hearing about a defendant’s bad character may inappropriately prejudice
the jury against that defendant, and do so in a way that outweighs any benefit gained from that
evidence. It may mean that we end up trying individuals on the basis of what they did in the
past, rather than on the facts of the current case.
Juries might, for instance, give a significance to bad character that it doesn’t warrant—
something referred to as “reasoning prejudice”. Bad character might have very weak probative
value, yet juries might feel moved to give it considerable weight. This would be an error in their
reasoning.
Alternatively, prejudice might come through the antipathy that juries would feel towards the
defendant—something referred to as “moral prejudice”. If juries think the defendant is a bad
person, they may not give the defendant the same benefit of the doubt as they would others, or
even worse, may simply want to punish them for their past wrongs regardless of the strength of
the current case against them.
Because of these concerns, the law regulates the use of bad character evidence in criminal
proceedings.
Historically, this was done through a complicated mix of common law rules. These rules were
subsequently abolished and bad character evidence is now governed by the Criminal Justice Act
2003 and the interconnected provisions found within it.

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In effect, the statute recognizes that evidence of past misconduct can be relevant, but should
not necessarily be introduced without restriction.
Accordingly, section 101 of the Act holds that if evidence is considered to be of bad character,
then it is not admissible unless it falls within certain situations. If evidence is not considered to be
bad character evidence, then it is left to be governed by the usual test of relevance and any
other applicable rules.
Whether or not a piece of evidence qualifies as bad character evidence, and what the situations
of admissibility are, both need to be explored in depth.
What is bad character evidence? Legally, the definition is a broad one.
Read together, sections 98 and 112 of the statute define bad character evidence as “evidence of,
or of a disposition towards, misconduct” with “misconduct” meaning either “the commission of
an offence or other reprehensible behaviour.”
Previously committing an offence is straightforward, though not necessarily limited to past
convictions. It also includes cautions and even possibly instances where a defendant could have
been, or was, charged without conviction.
Whether conduct is “reprehensible behaviour”, on the other hand, requires less certain
interpretation by the courts. The case of Renda [2005] helpfully clarified that the term refers to
culpable or blameworthy conduct, though different behaviour will still have to be assessed on a
case-by-case basis.
This may not be entirely easy to predict. In the case of Manister [2005], a 34-year old engaging in
a sexual relationship with a 16-year old was held not to be reprehensible. In Mackenzie [2008],
dangerous and risky driving was.
Other cases may be less controversial. It may be unsurprising that the defendant’s previous racist
and violent behaviour in Norris [2013] was held to be so.
Some evidence of these kinds, however, is excluded from the legal definition of bad character
where it has to do with the alleged facts of the case at hand, or if it is connected to the
investigation and prosecution of that case: s.98(a) and (b). This kind of evidence—for instance,
where the defendant illegally destroyed documents to hinder the police’s investigation—would
automatically be admissible.
Recall that if evidence is deemed to be of bad character, it is inadmissible unless it is introduced
through a category of exception. These categories are often referred to a “gateways” to
admissibility.
There are, in total, seven gateways through which evidence of a defendant’s bad character can
be admitted. They are found in section 101(1), subsections (a) through (g). These vary in their
complexity, and may be subject to a number of qualifications.
If evidence is admitted through one of these gateways, it can be used for any purpose for which
it is relevant.
Section 101(1)(a), for instance, allows for its admissibility when all parties agree, and 101(1)(b)
provides for its admissibility where the defendant adduces it or intentionally elicits that evidence
from another.
It may also be admissible under subsection (c) where it is considered “important explanatory
evidence”. This is defined further in section 102 as allowing evidence where, without it, it would
be impossible or difficult to properly understand other evidence and where it has substantial

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importance for understanding the case as a whole. In other words, if the evidence provides
background or context necessary for the jury to understand the facts, it can be admitted.
The fourth gateway, found in 101(1)(d), is a significant one and allows for bad character evidence
where it is relevant to an important issue between the defence and prosecution. Section 103
unpacks this further, indicating that such issues include both a defendant’s propensity to
commit offences of that kind or their propensity to be untruthful.
With respect to the former, it is worth considering further what evidence would demonstrate a
propensity to commit an offence like the one charged.
This may involve pointing to previous convictions for the same offence or category of offence—
for instance, other sexual offences involving children: 103(2)—though convictions are not
necessary.
How many prior events might be necessary to demonstrate propensity? As indicated in the case
of Hanson [2005], there is no minimum, though as a general rule, the fewer the events, the
weaker the demonstration. Certainly, having done something once is not nearly as indicative of
one’s likely behaviour as having done something ten or twenty times. Nonetheless, while one
event may generally not be enough, this does not mean that it cannot be. One can imagine that
committing a similar offence once before, but doing so in a distinct and unusual way can be
indicative where that same distinct method was used in the case at hand.
All of this must be assessed in light of the facts of each case. In Somanathan [2005], a priest was
charged with rape, and evidence of a distinctive pattern for grooming of other women was
admitted. In the case of Clements [2009], evidence of a prior sexual assault was held not to be
admissible due to the fact that the characteristics and circumstances of the previous offence
differed considerably from those of the current allegations.
101(1)(e) provides a fifth gateway in cases where the evidence has substantial probative value
with respect to an issue between the defendant and a co-defendant. This might also involve an
argument of propensity—for instance, where a co-defendant wishes to argue that it was the
defendant who committed the crime, and not them—but this notably requires a higher
threshold of ‘substantial probative value’.
The remaining two gateways involve situations where something the defendant does triggers
the possibility of their bad character being admitted.
Gateway (f) allows for bad character evidence to be admitted to correct a false impression that
the defendant has made or is responsible for. Its use when admitted through this gateway,
however, is limited to correcting that impression.
Lastly, gateway (g) allows for this evidence when the defendant first attacks the character of
another. This might be the case, for instance, when they demean a complainant or witness, and
is intended to allow the jury to assess whether such attacks are credible.
Evidence must therefore pass through one of these seven gateways to be admissible. With two
of these gateways, however, the evidence must pass an additional test if the defence raises the
issue. Where gateways (d) or (g) are technically open, section 101(3) and (4) indicate that the
court must not admit evidence where it would have such an adverse effect on the fairness of the
proceedings. In addition to considering the matters that the evidence relates to, courts must pay
particular attention to the length of time between the events.
Having all of this in mind, do you think this framework sufficiently guards against the concerns
with bad character evidence?

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After completing your readings, be sure to test yourself against the questions provided and
review any other resources available to you.

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