Character and Similar Fact Evidence

We will now go on to look at another type of evidence which will usually be admitted in documentary form, namely previous convictions and other evidence relating to the misconduct of a defendant or non-defendant witnesses.

5.3.1 Criminal Justice Act Provisions on Character Evidence

Unlike civil proceedings there is a statutory framework for the admission of char­acter evidence and this is found in ss. 100 (see Chapter 3) and 101 of the Criminal Justice Act 2003. These rules provide for admissibility of character evidence in seven situations and these are often referred to as the ‘seven gateways'. An advocate who wishes to use evidence of the bad character of a defendant or a non-defendant wit­ness should follow the procedure in CrimPR Part 21.2 and make a formal applica­tion following the additional procedure in Part 21.3 (non-defendants) or Part 21.4 (defendants) and serve the application on the court and the other party.

Bad character evidence is defined by s. 98 of the Criminal Justice Act 2003 as mean­ing “a disposition towards misconduct” and “misconduct” is in turn defined under s. 112(1) as “the commission of an offence or other reprehensible behaviour”.

The previous convictions of a defendant are admissible at trial to prove a defend­ant committed the offences mentioned in the record of convictions (see Police and Criminal Evidence Act 1984, s.

Cases have confirmed that ‘reprehensible behaviour’ can include membership of a violent gang, allegations that do not lead to a formal charge and excessive drink­ing or drug taking. The evidence is not proof of guilt but can be used to challenge the defendant’s credibility and the truthfulness of the defendant’s evidence and/ or show the defendant has an inclination (‘propensity’) to commit offences. Certain gateways such as the one found under s. 101(1)(g) can only go towards the credibility of the defendant based on the fact the defendant has attacked another person’s character (see R v Singh (James Paul) [2007] EWCA Crim 2140). The admission of bad character evidence does not rely on the defendant actually giving evidence at trial. An ‘attack’ can, for example, be made by a defendant’s advocate and so it is impor­tant to consider whether any accusations are made against a prosecution witness when an advocate poses their questions. Questions that elicit evidence of misbehav­iour by a witness may be regarded as an ‘attack’.

Under s. 109 of the 2003 Act there is a rebuttable presumption of truth when assess­ing the relevance or probative value of bad character evidence.

The definition of bad character evidence excludes evidence which forms part of the central facts or evidence in the trial itself (see s. 98(a)). Such evidence would still be admissible at the trial but would be subject to the ‘relevancy test.’

If a judge decides to admit bad character evidence during the course of the trial then under s. 110 he/she must give reasons in open court (but in the absence of the jury) for admitting or excluding this type of evidence (see CrimPR Part 21.5). Since bad character evidence can be damaging to a defendant’s case it is incumbent on a judge to give a clear warning to the jury during the summing-up not to place undue reliance on evidence of a defendant’s previous convictions.

5.3.1.1 Gateways to Admitting Bad Character

Evidence of a Defendant

The seven gateways are as set out in this section’s useful reference table.

5.3.1.2 Evidence of Motive

In Stanton v R [2021] EWCA Crim 1075 the Court of Appeal confirmed that evidence of recent past behaviour that tended to show a motive could be automatically admis­sible under s. 98(a) as evidence to do with the alleged facts of the offence. This would avoid the need to prove admissibility under s. 101. However, the court also concluded that motive evidence could in any event fall into s. 101(1)(d) as evidence that goes towards a matter in issue between the prosecution and the defence.

The facts of the appeal in Stanton were that a co-defendant appealed the admission of bad character evidence at his trial which the judge had admitted under s. 101(1) (c), (d) and (e). The evidence related to a mix of a previous charge and allegations relating to that charge. The defendant (Stanton) was charged with offences related to obtaining money over a period of time from an elderly man (Mr Spinks) whom the defendant had subjected to threats and violence. Stanton was a self-confessed drug user and the evidence was that he had stolen the money from Mr Spinks to fund his drug use. The matter was reported to the police and so fell within the definition of bad character under s.

It is interesting that in this case the Court of Appeal did not think that the allegations relating to Mr Spinks could be admissible under s. 101(1)(c) as ‘important explanatory evidence'. Cases such as R vLee (Peter Bruce) [2012] EWCA Crim 316 have established that important explanatory evidence must be more than just background evidence that fills the picture. It must be an important part of the overall picture without which ajudge or jury could not understand the other evidence in the case (see s. 102 of the CJA 2003).

5.3.1.3 Evidence of Propensity

The gateway that is by far the most complex route to the admission of bad character evidence for a defendant is s. 101(1)(d). This requires the prosecution to show that the defendant has either (1) a propensity to commit offences or (2) a propensity for untruthfulness. Propensity is therefore “a matter in issue between the prosecution and the defendant”. On its own, propensity cannot establish guilt, it is only part of the picture that emerges about a defendant's guilt.

It is important to note that s. 103(1) provides the definition of “matters in issue” with reference to the two types of propensity mentioned earlier but preceded the definition with the word “includes”. For this reason, gateway (d) has also been used to admit ‘similar fact' evidence.

The first type of propensity (propensity to commit an offence) can be established either by showing the defendant has committed an offence of the same descrip­tion or one that is in the same ‘category’.

It is important to note that s. 103(2) of the Criminal Justice Act 2003 states that a defendant’s propensity is not restricted to using previous convictions “of the same description” or “same category” and can be proved in other ways and so could stem from conduct which is not criminal but is reprehensible in some other way. For exam­ple, in R v Chopra [2007] EWCA Crim 2133 the court found that there was sufficient connection (e.g. common features) between the facts in several allegations made against the defendant that could show propensity to commit the offence. The facts of this case involved several allegations by patients that the defendant, a dentist, had squeezed their breasts during a dental examination. These allegations were ruled to have been correctly admitted by the trial judge under s. 101(1)(d). During the defend­ant’s trial for indecent assault convictions involving similar allegations of indecent assault by the defendant were admitted even though two had resulted in acquittals.

Where a defendant is charged with more than one offence s. 112(2) of the 2003 Act provides that each charge will be regarded as separate proceedings for the purpose of deciding the issue of bad character evidence. Therefore, the prosecution can apply for permission to refer to those other charges in the separate proceedings by making an application under s. 101(1)(d). This will be an application for ‘cross-admissibility’.

The question of whether a standard of proof is attached to proving propensity was considered in R v Mitchell [2016] UKSC 55 - this case was a referral from the Court of Appeal in relation to equivalent Northern Ireland legislation on bad character evi­dence. The defendant was accused of stabbing her partner and there was previous bad character evidence that she had a propensity to use knives and it was sought to admit bad character under the equivalent gateways of (c), (d) and (f). The court held that neither the CJA 2003 nor the Northern Ireland equivalent legislation gave any indication as to whether bad character evidence must meet the standard of proof before it can be accepted. The Supreme Court followed the decision in R v Ngyuen [2008] EWCA Crim 585 that the criminal standard of proof should be met. However, the Supreme Court clarified that this does not mean that in cases where there are several instances of misconduct, all tending to show a propensity, the jury must be convinced of the truth and accuracy of all aspects of each of those. The jury is enti­tled to, and should, consider the evidence about propensity in the round. Also, this does not mean the jury must be unanimous on the question of whether it exists. The jury should be directed that, if it is to take propensity into account, it should be

sure that it has been proved. In its deliberations as to whether propensity has been proved, the jury should consider the evidence on the subject as a whole rather than in individual compartments. The case of R v Gabanna [2020] EWCA Crim 1473 has confirmed the criminal standard of proof applies to all gateways, not just the ones considered in the case of Mitchell.

Propensity is a question of judgment to be exercised by the judge and as Hanson and R v Renda [2006] EWCA Crim 2826 confirmed, an appeal court will be reluctant to interfere unless the judge has applied that judgment incorrectly.

To show propensity to commit offences based on past convictions, the prosecution does not have to admit a minimum number of offences. However, R vHanson [2005] EWCA Crim 824 confirms that to show propensity a single conviction will usually not be enough unless the conviction shows “a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged” [9].

The Court of Appeal in Hanson provided some guidance on the exercise of judicial judgment about whether or not to admit evidence of previous convictions under gateway (d). A judge will usually consider three questions:

1) does the history of conviction(s) establish a propensity to commit the offences charged? 2) does that propensity make it more likely that the defendant com­mitted the offence charged? 3) Is it unjust to rely on the convictions of the same description or category, and in any event, will the proceedings be unfair if admitted?

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Old convictions may be far more prejudicial if admitted into evidence at trial because it does not then allow for the fact that a convicted person can be rehabilitated. Section 103(3) of the 2003 Act states that gateway (d) does not apply if the court is satisfied, by reason of the length of time since the conviction or for any other reason that it would be unjust to apply it. The court will look at factors such as the degree of similarity, gravity of past offences, strength of prosecution case, date of commission of the offence, sentence passed and whether the past events are disputed.

The Criminal Practice Directions 2015 Division V 21A.3 states that reference should not be made to a ‘spent’ conviction without leave of the court and the judge should only grant permission if the interests of justice so require.

According to cases such as R v Lafayette [2009] EWCA Crim 3238 where non-convic­tion evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless it is sure of its truth.

On the question of the second type of propensity (propensity to untruthfulness) the case of Hanson confirms that this does not mean the same as merely a propensity to dishonesty. It should relate to the defendant’s behaviour or lies told by the defend­ant which impact the offence. The Explanatory Notes to the 2003 Act suggest that the propensity for untruthfulness gateway should be confined to previous convic­tions for such offences as fraud and perjury. Dishonesty offences might be relevant if truth is in issue at the trial, for example, whether the defendant gave a truthful account during a police interview or where the defendant is alleged to have made false representations.

In R v Ellis [2010] EWCA Crim 163 the court accepted that deception offences could be relevant in showing a defendant’s willingness to be untruthful in certain circum­stances but, given the possible prejudicial effect, a warning should be given to the jury that the deception offences do not prove that the defendant is being untruthful in his current testimony. However, it is important to note that whilst a single convic­tion for deception can show propensity for untruthfulness (unlike propensity to com­mit an offence), only offences such as perjury can be strong enough to show that the defendant is actually lying in his/her testimony.

The case of R v Highton [2005] EWCA Crim 1985 suggests that a distinction needs to be drawn between the basis for admitting the evidence and the use which may be made of it once admitted. For this reason, the judge will generally have to give the jury a ‘clear warning’ during his/her summing-up ‘against placing undue reliance’ on the evidence and explain why it has been admitted and the ways in which it is relevant.

Due to the complex nature of gateway (d) it may not be easy for the prosecution to admit bad character evidence under this section. However, if during the trial, the defendant makes an attack on, for example, the credibility of a prosecution wit­ness, then the prosecution may use gateway (g) to admit the bad character evidence instead. This occurred in R v Edwards [2005] EWCA Crim 3244, where previous convic­tions for robbery and burglary dating back to 1992 were not admitted under s. 101(1) (d) because they were considered to be too old but were allowed in under gateway (g) when the defendant made an attack on a prosecution witness.

The bad character evidence of a witness can also be admissible at trial in certain circumstances, and we have considered this already in the section on rules on ques­tioning witnesses in Chapter 3.

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