Bad Character Evidence: then and Now

One of the most well-known tenets of English law is that a person 'should not be judged strenuously by reference to the awesome specter of his past life.' This very well established tradition has led to the oft-cited rule of evidence law which prohibits reliance upon an individual's character or evidence of other examples of misbehavior when they are proffered to corroborate that a person acted in a manner befitting his character on the occasion in question. English law has dealt with the question of an accused's character for centuries and a rich wealth of authority exists to attest to this. This article attempts to summarise the old principles as well as the new rules governing the admission or non-admission of bad character evidence in criminal trials.

The old law

The admissibility of evidence of the previous misconduct of the defendant in a criminal trial has for over a hundred years been governed by a complex yarn of statute and common law. This assortment of rules under was later to gain statutory recognition and a comprehensive statement on the law of evidence on character evidence appeared in the Criminal Evidence Act 1898 whose section 1 generally dealt with the competence of witnesses in criminal cases. The approach regarding non-party witnesses and defendant witness was radically different with the latter being essentially exclusionary whilst the former was largely inclusionary.

There were two reasons to adduce the bad character of non-party witnesses: first, to undermine their credibility and suggest that they should not be believed on oath. Secondly, because it was directly relevant to a fact in issue at the trial; for example, to suggest that the alleged victim in an assault case is actually the aggressor, because of his previous record of violence. The position with regard to credibility was summarised in the libel case of Hobbs v Tinling in which the Court of Criminal Appeal suggested that a witness could be asked any question about his character or previous conduct from which the court could infer that he was 'not worthy of belief, not a credible person'. This meant that he could be asked about previous convictions and any reprehensible associations or way of life. Thus, at common law, and unlike the relatively protected position of an accused person giving evidence, there were few legal constraints on cross-examining non-party witnesses in a criminal trial, though, since 1976, complainants in sexual cases have had special statutory protection in relation to their sexual histories. Some additional protection was provided by the 1975 Practice Direction, Crime: Spent Convictions. The Practice Direction provided that spent convictions should only be referred to in a criminal trial with leave of the presiding judge. This should only be given if the 'interests of justice so require' so that adducing it could not be 'reasonably avoided'.

However, despite honest interventions to protect non-party witnesses, the law was largely inclusionary of all bad character evidence and could, therefore, lead to potentially unfair outcomes. The position was radically different with regard to defendant witnesses.

Defendant witnesses

Under section 1 of the Criminal Evidence Act 1898, a person charged and called as a witness under the Act could not be compelled to answer any question tending to show that he is of bad character or that he had committed or had been convicted of any other offense other than that with which he had been charged. This injunction against the solicitation of bad character evidence could be lost if the accused or by his advocate asked questions of the witnesses for the prosecution with a view to establishing his own good character or if he gave evidence of his own good character.

Thus, the scheme provided for by the Criminal Evidence Act 1898 compelled the accused to answer questions relating to his bad character in either of two situations: firstly, where the defense elicited evidence that the defendant is of good character, and secondly; where the defense attacked the character of prosecution witnesses. The evidence of character, whether adduced by the prosecution or the defense went towards showing the probability that the defendant had acted consistently with it during the case in point. The bad character evidence is meant to show 'the tendency and disposition of the man's mind towards committing or abstaining from committing the class of crime with which he stands charged…' Thus, by adducing evidence of good character the defendant puts his character in issue, notwithstanding whether he takes the witness stand or not. But if he elects to give evidence, the bad character evidence also goes to his credibility as a witness. The most crucial feature of the provision was that the prosecution was not at liberty to cross-examine the defendant about his character unless he intentionally threw away the shield provided by the law.

The underlying justification for the exception to the injunction against adducing character evidence was explained in Maxwell v Director of Public Prosecutions where Viscount Sankey LC stated that if the accused or his witnesses give evidence of his own good character, for the purpose of showing that it is unlikely that he committed the offense charged, he raises by way of defense an issue as to his good character so that he may fairly be cross-examined to show the contrary.

It must be noted that the accused's character is indivisible. Thus in R v Winfield Lord Humphreys held that 'there is no such thing known to our procedure as putting half a prisoner's character in issue and leaving out the other half.' Thus, once the accused put his or her character in issue, then he or she opened the floodgates regarding which aspects of his or her character could be adduced by the prosecution. Whilst it is logical and fair to proffer evidence demonstrating prior convictions for fraud where the accused has put in evidence facts tending to show that a person of his or her character was unlikely to commit the fraud for which he has been charged; adducing evidence that is intended to show that he was convicted of assault seems to be somewhat questionable and could lead to unjust and unfair results.

The case of R v Winfield provides a very good illustration of these concerns. In that case, the defendant was charged and found guilty of indecent assault against a lady. In his defense, he called a witness to give evidence on his exemplary behavior towards women and thereby put his character in issue. The prosecution did not hesitate to cross-examine him on a prior conviction for theft and the Court of Appeal seems to have endorsed the cross-examination because the conviction was quashed on the basis of the inadequacy of corroborative evidence and not for the improper admission of evidence relating to the previous conviction for theft.

It is obvious from the above analysis that the limitless nature of the evidence that the prosecution could elicit once the accused had put his character in issue could prejudice the defendant's fair trial. To prevent this, the courts developed rules whereby they exercised discretion whether or not to allow evidence of bad character whose probative value was outweighed by its prejudicial character. In Selvey v Director of Public Prosecutions, the question arose directly whether the trial judge had a discretion under section 1(f)(ii) to preclude the prosecution from cross-examining the accused about certain prior convictions once the shield is lost. It was held that such discretion does exist and that it should be exercised where it would be unfairly prejudicial to allow all previous convictions to be put to the accused.

The position regarding the safeguarding of fairness was bolstered by the issuance by the Court of Appeal of a Practice Direction which recommended that reference to spent convictions should be avoided wherever possible in criminal courts, even though the Rehabilitation of Offenders Act on which the Direction was based did not specifically extend to criminal proceedings.

However, the cases continued to show different standards being adopted in cases of previous convictions and bad character evidence generally and hence the Law Commission was tasked to undertake a comprehensive review of the law and make proposals which would encourage fairness in criminal trials. The result was the Criminal Justice Act 2003.

The new law

The Criminal Justice Act 2003 brings in radical changes by abolishing the common law rules governing the admissibility evidence of bad character in criminal trials. The Criminal Justice Act 2003 introduces very radical changes to the law relating to the admission of evidence of the accused's bad character. This effectively eliminates the principles which the Court in Selvey v Director of Public Prosecutions and R v Dunkley felt were such an intrinsic part of English law that they could not be modified.

Since the abolition also affects cases which define what constitutes bad character, section 98 attempts to delineate what makes up a person's bad character. The section states that evidence of bad character constitutes evidence of misconduct or disposition towards misconduct. The provision excludes from its ambit of bad character evidence relating to any misconduct in connection with the investigation or prosecution of the offense. It also excludes such evidence as has to do with the alleged facts of the offense with which the defendant is charged. The rationale for this exclusion is that this kind of evidence is admissible at any rate as part of the material facts of the case and would have been allowed even under the old rules relating to the admissibility of bad character evidence. Although section 98 does not define what 'disposition' means, it is clear that the provision widens the ambit of admissible bad character evidence as it is not restricted to evidence of general reputation as was authoritatively stated in R v Rowton.

A Non-defendant witnesses

Section 100 allows non-defendants' bad character to be adduced in three separate situations. Firstly, it will be admitted where both parties agree to the evidence being adduced. Secondly, it can be admitted if it is 'important explanatory evidence' and finally, under section 100(1)(b), such evidence can also be adduced if it has substantial probative value in relation to something which is both a 'matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole.' In the latter two gateways, bad character evidence may only be adduced with the leave of court.

Thus, the new statutory scheme does away with the almost carte blanche approach that was permissible under the old rules. Whereas the court did not have much control over the admissibility of non-defendants' bad character evidence, the new rules put the court at the center of the issues by requiring them to grant leave unless the adduction of such evidence has already been agreed.

Section 101 introduces even further radical changes. Whilst under section 1(f)(ii) of the Criminal Evidence Act 1898, the defendant had to put his character in issue before being cross-examined on it, section 101 dispenses with this requirement and allows the defense to introduce bad character evidence, not only upon cross-examination but even during the giving of evidence in chief as long as such evidence meets the admissibility requirements under section 101.

According to the provisions of section 101, bad character evidence is admissible in any of the following cases:

• Where the defense and the prosecution agree to the evidence being admissible
• The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it
• The evidence has important explanatory value
• It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
• It is relevant to an important matter in issue between the defendant and the prosecution
• If the defendant has made an attack against another person's character
• If it is evidence to correct a false impression given by the defendant

These categories of admissibility are further explained by the provisions of sections 102-106 which amplify the instances of admissibility detailed above. It is clear that these grounds of admissibility are not exclusionary of each other and it is possible for evidence of bad character to be adduced under one or more of the prescribed grounds.

With regard to the present discussion, it is noteworthy that the conditions for loss of the shield by the defendant under the first limb of section 1(f)(ii) have been preserved by the Criminal Justice Act 2003 under section 101(b). Thus, the defendant is still as liable to cross-examination under the new rules as he was under the Criminal Evidence Act 1898.

However, the Criminal Justice Act introduces an additional element. Section 101(b) must be read together with the provisions of sections 101(f) and 105 which allow the prosecution to lead evidence intended to correct a false impression. Thus, whilst under the Criminal Evidence Act, it was specifically required that the defendant put his or her character in issue first before he lost the shield, under the new rules mere assertion of circumstances which give a false impression may lead to the defendant being cross-examined on his bad character. Although the evidence allowed under these provisions is limited to correcting the false impression created by the defendant's assertion, it is clear that he may still lose the shield without having put his character in issue but merely because he created a false impression.

Another fundamental change introduced by the Criminal Justice Act 2003 is that it shakes the principle that character is indivisible because under section 101 bad character evidence is only admissible only with regard to the grounds detailed under that section. The loss of a shield does not provide the prosecution one carte blanche to proffer bad character evidence without restriction. If the prosecution oversteps the boundaries and the court is of the opinion the evidence will prejudice the defendant's right to a fair trial, it has discretion under section 101(3) to disallow the evidence. Thus, much to Lord Humphrey's dismay, it is possible under the new law to put 'half the defendant's character'.

The Criminal Justice Act 2003 makes critical changes to the law relating to the admissibility of bad character evidence as regards both defendant and non-defendant witnesses. Apart from detailing the grounds under which bad character evidence may be proffered, the law also introduces certainty into the principles which govern this area of the law by abolishing the common law rules some of which were complicated and lacked precision. Whilst in some respects the matters that may come up for admissibility have been enlarged, these changes are accompanied with fairly far-reaching procedural and substantive safeguards to ensure that the evidence submitted has substantial probative value as opposed to its prejudicial character. The rules cannot certainly be typified simply as being exclusionary or inclusionary as they combine both elements. However, the new rules should help secure the defendant's right to a fair trial as provided under the Human Rights Act 1998 as well as the European Convention on Human Rights. It is difficult at this stage to predict how the courts will interpret and apply the new provisions. Obviously, one hopes that the courts will not produce case law that complicates the already extensive rules under the Criminal Justice Act 2003.