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Evidence of Bad Character

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Evidence of Bad Character

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EVIDENCE OF BAD CHARACTER

This is the third edition of J R Spencer’s now well established book which seeks
to explain this area of law for the benefit of judges, criminal practitioners and
academics teaching the law of evidence.
In the past, the rule excluding evidence of the defendant’s general bad character
and disposition to commit the offence was sometimes described as one of the
most hallowed rules of evidence; Lord Sankey, in Maxwell v DPP, referred to
it as ‘... one of the most deeply rooted and jealously guarded principles of our
criminal law.’ In reality it was not particularly ancient, and as the years went by
it was increasingly attacked. On technical grounds the body of law surrounding
it was criticised as over-complicated and inconsistent, and more radical critics
condemned it as unduly favourable to the guilty. In response to this, the law was
completely recast in Part 11 of the Criminal Justice Act 2003. This book, now again
updated to take account of further legislative changes, case-law and academic
writing, offers a thorough analysis of the bad character provisions of the Criminal
Justice Act 2003 in the light of the way in which they have been interpreted by the
courts.
Criminal Law Library
Volume 1: Self-Defence in Criminal Law
Boaz Sangero
Volume 2: Evidence of Bad Character
John Spencer
Volume 3: The Management and Enforcement of Community-Based
Sentences: A Practitioner’s Guide
Clare Fazal
Volume 4: Fair Trials: The European Criminal Procedural Tradition
and the European Court of Human Rights
Sarah Summers
Volume 5: Hearsay Evidence in Criminal Proceedings
John Spencer
Volume 6: Homicide Law in Comparative Perspective
Edited by Jeremy Horder
Volume 7: Case Management in the Crown Court
HH Judge Roderick Denyer QC
Volume 8: The Presumption of Innocence: Evidential and
Human Rights Perspectives
Andrew Stumer
Volume 9: Inquests
John Cooper
Volume 10: The Privilege Against Self-Incrimination and Criminal Justice
Andrew L-T Choo
Volume 11: Criminal Fair Trial Rights: Article 6 of the European
Convention on Human Rights
Ryan Goss
Evidence of Bad Character
Third Edition

JR Spencer
To Mike Redmayne 1967–2015
a much-respected colleague

OXFORD AND PORTLAND, OREGON

2016
Hart Publishing
An imprint of Bloomsbury Publishing Plc
Hart Publishing Ltd Bloomsbury Publishing Plc
Kemp House 50 Bedford Square
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First published 2016

JR Spencer has asserted his right under the Copyright, Designs and Patents Act 1988
to be identified as Author of this work.

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording, or any information storage or retrieval system,
without prior permission in writing from the publishers.

While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage
occasioned to any person acting or refraining from action as a result of any statement in it can be accepted
by the authors, editors or publishers.

Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer
for Scotland. Any European material reproduced from EUR-lex, the official European Communities legislation
website, is European Communities copyright.

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library.
ISBN: PB: 978-1-50990-004-6
ePDF: 978-1-50990-006-0
ePub: 978-1-50990-005-3

Library of Congress Cataloging-in-Publication Data

Names: Spencer, John R., 1946– author.

Title: Evidence of bad character / JR Spencer.

Description: Third edition. | Oxford ; Portland, OR : Hart Publishing, 2016. | Series: Criminal law library ;
volume 2 | Includes bibliographical references and index.

Identifiers: LCCN 2016016036 (print) | LCCN 2016016209 (ebook) | ISBN 9781509900046

(pbk. : alk. paper) | ISBN 9781509900053 (Epub)
Subjects: LCSH: Evidence, Criminal—England. | Admissible evidence—England. |
Reputation (Law)—England.

Classification: LCC KD8371 .S68 2016 (print) | LCC KD8371 (ebook) | DDC 347.42/062—dc23

LC record available at https://lccn.loc.gov/2016016036

Typeset by Compuscript Ltd, Shannon

PREFACE

The first edition of this book was written with a double aim. The first was to explain
the law on bad character evidence as radically amended by the Criminal Justice Act
2003. The second was to try to justify it. The legislation was passed against bitter
opposition and dire predictions about the chaos and injustice that would result
from it, and as one of the few legal writers who approved of it I wanted to show,
if I could, that the changes were both beneficial and workable. When preparing
this new edition I was struck by how much of what I wrote in justification of the
changes now seemed strangely dated. Although some of my colleagues still bewail
the old law’s passing, the predicted avalanche of miscarriages of justice has not
occurred and in practice the new law seems to work quite well. Most of the doubt-
ful points arising from drafting have been resolved and, by and large, the law is
now known, settled and accepted.
The need for a new edition arises from the usual threefold combination: new
legislation, new case law and new academic writing. The first, though not exten-
sive, is practically important: a revised version of the Criminal Procedure Rules,
and modifications to sections 73–75 of the Police and Criminal Evidence Act 1984
to put convictions imposed by courts in other EU Member States on the same legal
footing as those emanating from our own. The second, by contrast, is extensive.
Preparation for this edition involved reading, or re-reading some 250 new cases,
mostly from the Court of Appeal. Of these, a number cut new legal ground or
cleared up points previously doubtful. These include the status as evidence of bad
character of cautions, fixed penalty notices and pending prosecutions; what sort
of previous misconduct is admissible as evidence in prosecutions for gang-related
crime and paedophile offences; the types of previous misconduct which can (and
cannot) be adduced as damaging the credibility of witnesses; what constitutes a
‘weak case’ for the purpose of the rule that bad character evidence must not be
adduced to bolster one; and how far, if at all, the new law on bad character evidence
has affected the old law on good character directions. Of the rest, most of the cases
were simple applications of existing law, often arising incidentally in the context
of appeals mainly argued on other grounds. These cases—or some of them—are
incorporated as brief additions to existing footnotes. (In the pre-computer past
this second group would have vanished without trace; and their continued visibil-
ity, and the consequential need to consider them, is an interesting example of the
way in which inventions intended to save work have a habit of creating it!)

v
Preface

The main event in the area of legal writing is the publication, in 2015, of
rofessor Mike Redmayne’s Character in the Criminal Trial. Before the 2003 reform,
P
Mike Redmayne was one of the legal few academics who favoured changing the
law to render bad character evidence more readily admissible; and in this book he
examines the legislation and the way in which the courts have interpreted it. This
he does with perspectives drawn from across a wide range of areas of scholarship:
philosophy, psychology and criminology. I read this book with great interest and
in preparing my new edition was much influenced by it, as will be clear from the
number of references I have made to it. It is with great sadness that we learnt of
his untimely death, only a few weeks after his new book appeared, at the relatively
early age of 47. As a tribute, I have dedicated my new edition to his memory.
As with the previous editions, I am grateful to a range of friends and col-
leagues for their ideas and their suggestions—including some who have been
generous with their time before. I am particularly grateful to the authors of the
Compendium for permission to reproduce sections of their excellent work as
Appendix IV. My thanks are due to Jia Wei Lee, for acting as an efficient and con-
scientious ‘devil’; and once again I am grateful to my family for putting up with
my unsociable behaviour while I was neglecting them in order to finish the work
before Christmas.
In this revision I have tried to state the law as it stood at the end of 2015. Some
later material was added in proof in April 2016.

Cambridge, December 2015

vi
PREFACE TO THE FIRST EDITION

When the Criminal Justice Act 2003 was passed, the Judicial Studies Board organ-
ised what the popular press would have called a ‘training marathon’ to ensure that,
when the new legislation was brought into force, the judiciary responsible for
criminal work—some 2,000 professional judges and 30,000 lay justices—would
(in another journalistic cliché) ‘hit the ground running.’ For the professional judi-
ciary, this involved putting every judge involved in criminal cases through a short
residential training course: courses that ran continuously between mid-January
and mid-March 2005, to be ready for when the key provisions of the Act came into
force, which was expected to be in April or in May. To help with all this, a team of
trainers was recruited and various people were commissioned to write commen-
taries explaining the main points of the new legislation.
The Judicial Studies Board did me the honour of asking me to join this pro-
gramme by providing a commentary on the Criminal Justice Act provisions deal-
ing with bad character evidence, which was distributed to all the judges before
the training began, and then by acting as one of the instructors at the courses.
The three months during which these courses ran were intellectually strenuous:
at each session, some new point of difficulty arising from the provisions would
come to light, and new challenges were made to my initial solutions to the more
obvious ones. As the training progressed, the existence of my commentary became
widely known and practitioners began to ask the Judicial Studies Board for access
to it. In response to this, it was revised in the light of the input from the judges
at the seminars, and a new and improved version was made publicly available on
the Judicial Studies Board website. This in turn led to yet more people contacting
me with questions and comments about the provisions, and how they are likely to
operate in practice.
As the year wore on, written comments on the new provisions began to appear
in the legal press, and the Court of Appeal began to hear the first appeals brought
by defendants convicted in cases in which they had been applied. Faced with these
appeals, the Court of Appeal adopted a co-ordinated approach. Cases raising simi-
lar issues were collected into batches, for hearing before courts presided over by
senior and experienced judges, who produced wide-ranging judgments specifi-
cally intended to provide guidance to the courts below. By December 2005, the
Court of Appeal had decided seven of these leading cases, in which no less than

vii
Preface to the First Edition

30 defendants were involved.1 Thanks mainly to these decisions, the law has now
become much clearer, and in one of the most recent cases, Renda and others [2005]
EWCA Crim 2826, the Court of Appeal said, ‘This legislation has now been in
force for nearly a year. The principles have been considered by this Court on a
number of occasions. The responsibility for their application is not for this Court
but for trial judges’.
With many of the problems posed by the drafting of the provisions now
answered by the courts, the end of December 2005 seemed a good time to pro-
duce yet a further new version of the commentary, this time expanded to take
account of the case law, and made more widely available as a little book. As readers
will discover, this text consists of the expanded commentary plus, as a series of
appendices, a collection of basic texts: Criminal Justice Act 2003 Part 11, Chapter
1; Criminal Justice Act 2003 (Categories of Offences) Order 2004, SI 2004/3346;
the relevant provisions of the Criminal Procedure Rules 2005, SI 2005/384; the
relevant Judicial Studies Board specimen directions, and the text of the seven lead-
ing cases.
My grateful thanks are due to a number of people, and groups of people,
without whom this book would not have seen the light of day. These include the
Judicial Studies Board, who hold the copyright in the original version of the com-
mentary, and who not only allowed but actually encouraged me to publish this
expanded version; Richard Hart of Hart Publishing Ltd, who agreed to publish it;
and my son Andrew Spencer, of counsel, whose idea it originally was to turn the
commentary into a book.
I am also indebted to a range of people who discussed the provisions with me,
so providing me with new ideas and challenging my own. These include my friend
and colleague Dr Roderick Munday, who shared with me the task of lecturing
on bad character evidence at the seminars; although I do not always agree with
them, his views are always stimulating. They also include Judge John Phillips, who
commissioned the text on behalf of the Judicial Studies Board, and who kindly
read and commented both on the original draft and on parts of the revised com-
mentary; and Judge David Radford, who with his brethren at Snaresbrook Crown
Court told me how the new law is working out in practice. But above all, my
thanks are due to the judges and practitioners whose comments at the seminars
and in correspondence afterwards raised new questions and helped me to refine
my own ideas.

1 Hanson, Gilmore and P [2005] EWCA Crim 824, [2005] 1 WLR 3169 (22 March); Bovell and

Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401) (25 April); Edwards, Fysh, Duggan and
Chohan [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31) (29 June); Highton, Van Nguyen and Carp
[2005] EWCA Crim 1985, [2005] 1 WLR 3472 (28 July); Renda, Ball, Akram, Osbourne, Razaq and
Razaq [2005] EWCA Crim 2826 (10 November); Weir, Somanathan, Yaxley-Lennon, Manister, Hong
and De [2005] EWCA Crim 2866 [2006] 1 CrAppR 19 (303) (11 November); and Edwards and Row-
lands, McLean, Smith, and Enright and Gray [2005] EWCA Crim 3244 (21 December).

viii
Preface to the First Edition

As previously mentioned, the government’s original plan was that the bad
character evidence provisions of the Criminal Justice Act 2003 should come into
force in April 2005, at the same time as the other provisions about evidence, and
the training programme for judges was constructed on that basis. This being so,
there was consternation in the legal world when, in October 2004, the government
announced that it now proposed to bring the bad character evidence provisions
into force on 15 December 2004—before the training programme had begun. In
Parliament, and in the press, the government was accused of advancing the imple-
mentation date for the sole purpose of ensuring favourable headlines in the press
about being ‘tough on crime’ at a politically convenient time. Unabashed, it still
brought the provisions into force early, and in consequence the judges were, in
effect, thrown in at the deep end without having yet been taught to swim. Fortu-
nately, they seem to have coped with the new provisions relatively easily, and it is
to their credit that they did so. However, when wrestling untrained with the new
provisions, they must have seen the irony of the situation when on 15 December
2004 the main item in the news was not the Home Office press release announcing
‘Evidence of bad character to be disclosed to juries,’ but the personal problems of
the Home Secretary, who on that day resigned in unfortunate circumstances.
The bad character evidence provisions of the Criminal Justice Act 2003 were
enacted amid bitter controversy. In seeking to make evidence of the defendant’s
bad character more readily admissible, the government stressed the need (as they
saw it) to increase the proportion of convictions. In opposing this, lawyers in both
Houses of Parliament accused the government of throwing away a vital safeguard
against the wrongful conviction of the innocent. Tempers rose, and at times the
government and its proposals were denounced in the strongest terms. At one
point, Lord Thomas of Gresford, QC, likened the Home Secretary to Robespierre,
and drew a parallel between the justice system he foresaw as evolving after these
reforms and the one that France knew during the Reign of Terror.2 Much of the
discussion of the provisions that has taken place in the legal press has been equally
gloomy, and some of it almost as apocalyptic.
Unlike most of my fellow academics, I am in favour of these provisions, as those
who read the rest of this book will discover.
In my view, admitting evidence of the defendant’s previous misconduct is nei-
ther dangerous nor unjust, provided there is other solid evidence that links him
to the offence. The danger arises where such evidence is allowed to be used as a
substitute for more convincing evidence where the case against him is otherwise
weak. The risk, as has been widely pointed out by those opposed to these provi-
sions, is that the police will go out and arrest ‘all the usual suspects’. But I believe
the risk of injustice is only real if, after arrest, ‘the usual suspicions’ then suffice
to see the usual suspects are convicted. This outcome can be avoided by exclud-
ing evidence of the defendant’s bad character in any case in which the rest of the

2 Hansard, HL, vol 667 cols 1257–1258 (14 December 2004).

ix
Preface to the First Edition

evidence is weak. Powers to exclude bad character evidence in certain cases are
expressly conferred by sections 101(3) and 103(3) of the Act, and these powers are
supplemented, in my view, by the court’s general discretion under section 78 of
the Police and Criminal Evidence Act 1984 to exclude prosecution evidence that
would make the trial unfair. These powers can and should be used to counter this
particular risk.
In Hanson, Gilmore and P,3 the first of the leading cases in which the new provi-
sions were interpreted, the Court of Appeal took essentially this line.
The starting point should be for judges and practitioners to bear in mind that Parlia-
ment’s purpose in the legislation, as we divine it from the terms of the Act, was to assist
in the evidence based conviction of the guilty, without putting those who are not guilty
at risk of conviction by prejudice. It is accordingly to be hoped that prosecution applica-
tions to adduce such evidence will not be made routinely, simply because a defendant
has previous convictions, but will be based on the particular circumstances of each case.
A court, it later added, ‘must always consider the strength of the prosecution case.
If there is no or very little other evidence against a defendant, it is unlikely to be
just to admit his previous convictions, whatever they are … Evidence of bad char-
acter cannot be used simply to bolster a weak case …’
I believe as long as these points are born in mind, the new law on bad char-
acter evidence will be a tool that helps the criminal courts achieve their overrid-
ing objective: which, as the new Criminal Procedure Rules remind us, is to deal
with cases justly—and this means, first and foremost, securing the acquittal of the
innocent and the conviction of the guilty.

JR Spencer
Cambridge, January 2006

3 See n 1 above; p 238 below.

x
CONTENTS

Preface��v
Preface to the First Edition�� vii
Table of Cases�� xiii
Table of Legislation�� xxvii
Table of Treaties��xxxv
Table of References to Statutes in Cases��xxxvii

1. INTRODUCTION��1
2. DEFINITION OF ‘BAD CHARACTER’��35
3. THE BAD CHARACTER OF NON-DEFENDANTS��49
4. EVIDENCE OF THE DEFENDANT’S BAD CHARACTER��70
5. PRACTICAL ISSUES��144

Appendix I Criminal Justice Act 2003��177

Appendix II The Criminal Justice Act 2003 (Categories of Offences)
Order 2004, SI 2004 No. 3346��187
Appendix III The Criminal Procedure Rules October 2015��192
Appendix IV Excerpts from the Crown Court Bench
Book Compendium��204
Appendix V Leading Cases��238

Index��329

xi
xii
TABLE OF CASES

References in bold are to the page numbers of the Appendices. Otherwise references
are to paragraph numbers in the commentary.

A [2008] EWCA Crim 2908, [2009] 1 CrAppR 26 (347)��1.83

A [2009] EWCA Crim 513��2.19, 4.50, 220
Abbas v CPS [2015] EWHC 579 (Admin), [2015] 2 CrAppR 11��3.25
Abnett [2006] EWCA Crim 3320��4.49
Adams [2006] EWCA Crim 2013��4.55
Adenusi [2006] EWCA Crim 1059, [2006] CrimLR 929��4.93, 4.101, 220
Ahmed [2011] EWCA Crim 3253��4.144
Ahmed [2012] EWCA Crim 288��2.25
Ahmed and others [2008] EWCA Crim 1386��4.14
Ainscough [2006] EWCA Crim 694, [2006] CrimLR 635��5.9
AJC [2006] EWCA Crim 284��2.15, 2.16
Akram [2005] EWCA Crim 2826, [2006] 1 WLR 2948�� viii, 276–77,
281–83, 318
Ali [2010] EWCA Crim 1619��2.25
Alobaydi [2007] EWCA Crim 145��4.98, 4.99, 4.147
Amponsah [2005] EWCA Crim 2993��1.81, 4.133
Anderson and Henry [2008] EWCA Crim 837��2.8
Andrews [2008] EWCA Crim 2908, [2009] 1 CrAppR 26 (347)��1.83
Apabhai [2011] EWCA Crim 917��1.64, 2.35,
4.110, 4.117
Arthurton v The Queen [2004] UKPC 25, [2005] 1 WLR 949��5.57
Asif [2008] EWCA Crim 77 ��4.73
Assani [2008] EWCA Crim 2563��4.118, 4.153
Associated Provincial Picture Houses v Wednesbury Corp
[1948] 1 KB 223��1.80, 241, 325
Atkinson [2006] EWCA Crim 1424��4.55
Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72�� 244
Attorney-General’s Reference (No 5 of 2002) [2005] 1 AC 167��1.54
Awaritefe [2007] EWCA Crim 706��4.52
Awoyemi and others [2015] EWCA Crim 590, [2016] EWLA Crim 668��4.64
Aziz [1996] AC 41, [1995] 2 CrAppR 478��1.2, 5.67, 5.70, 204
B [2008] EWCA Crim 1402��4.109
B (C) [2004] EWCA Crim 1254, [2004] 2 CrAppR 34 (570)��4.105, 4.120
B (RA) (1997) 2 CrAppR 88��4.57
B (Richard William) [2008] EWCA Crim 1850��4.50, 4.137, 4.178

xiii
Table of Cases

Bahaji [2009] EWCA Crim 2863��4.15

Bailey, Brewin and Ghangi [2001] EWCA Crim 733�� 244
Baker [2012] EWCA Crim 1801��4.74
Ball [2005] EWCA Crim 2826, [2006] 1 WLR 2948��viii, 2.15, 4.156,
276–77, 280–81, 318
Bank of England v Vagliano Bros [1891] AC 107��1.48, 1.53
Barney [2014] EWCA Crim 589��1.73
Barron [2010] EWCA Crim 2950��4.12, 4.53
Baxendale [2012] EWCA Crim 174��5.63
Beard [1998] Crim LR 585��1.7
Becouarn [2005] UKHL 55, [2005] 1 WLR 2589��1.44
Beggs (1990) 90 CrAppR 430��1.11
Belogun [2008] EWCA Crim 2006��4.99
Benabbou [2012] EWCA Crim 1256��4.74, 219
Benguit [2005] EWCA Crim 1953��1.82
Bernasconi [2006] EWCA Crim 1052��4.73, 4.132
Berry [2009] EWCA Crim 39��3.16
Beverley [2006] EWCA Crim 1287, [2006] CrimLR 1064��4.55, 4.59
Bishop [1975] QB 274, [1975] 59 CrAppR 246��2.18, 4.149, 4.151
Bishop [2013] EWCA Crim 2413��2.29
Blake [2006] EWCA Crim 871��1.73, 4.56, 220
Blake [2014] EWCA Crim 2341��1.79
Boulton [2007] EWCA Crim 942��4.53, 5.38
Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401)��viii, 3.25, 4.78,
4.121, 4.134, 4.153,
4.160, 5.5, 5.43,
248–52, 253, 257,
260, 266, 311, 312, 324
Bowman and Lennon [2014] EWCA Crim 716��4.39, 4.73
Bradley [2005] EWCA Crim 20, [2005] 1 CrAppR 24 (397)�� 1.31, 1.50, 1.73,
1.81, 245
Braithwaite [2010] EWCA Crim 1082, [2010] CrAppR 18 (128)�� 2.10, 3.25, 3.52,
3.53, 5.34, 229
Brangman v The Queen [2015] UKPC 40, [2015] 3 WLR 1145��4.17
Brewster and another [2010] EWCA Crim 1194, [2011] 1 WLR 601,
[2010] 2 CrAppR 20 (149)��3.16, 3.23, 229
Brima [2006] EWCA Crim 408, [2007] 1 CrAppR 24 (316)��1.51, 4.56
Britzman [1983] 1 WLR 350��1.33, 1.51
Broome [2012] EWCA Crim 2879��4.16
Brown [2006] EWCA Crim 827, [2006] CrimLR 995��5.57
Brown [2011] EWCA Crim 80�� 219
Brown [2011] EWCA Crim 1636��4.73
Brown [2012] EWCA Crim 773��4.73
Brummitt [2006] EWCA Crim 1629��2.29
Bryon [2015] EWCA Crim 997, [2015] 2 CrAppR 21��1.71, 1.73
Buaduwah-Esandol [2005] EWCA Crim 3580��3.5
Bucknor [2010] EWCA Crim 1152��4.65
Bullen [2008] EWCA Crim 4, [2008] 2 CrAppR 25 (364)��4.37
xiv
Table of Cases

Burdess [2014] EWCA Crim 270��4.74, 219

Burns [2006] EWCA Crim 617, [2006] 1 WLR 1273��5.11
Burton [2008] EWCA Crim 376��1.73
Butler [2015] EWCA Crim 854��3.38
Butterwasser [1948] 1 KB 4��4.140
C [2006] 1 WLR 2994��5.53
C [2010] EWCA Crim 2402, [2010] CrimLR 858��4.50
C (JW) [2010] EWCA Crim 2971, [2011] 1 WLR 1942��5.23, 213
Cadogan [2013] EWCA Crim 1832��4.133
Cain [1994] 1 WLR 1449�� 205
Cambridge [2011] EWCA Crim 2009, [2012] CrimLR 373��2.25, 219
Campbell [2006] EWCA Crim 1305��1.83
Campbell [2007] EWCA Crim 1472, [2007] 2 CrAppR 28 (261),
[2007] 1 WLR 2798, [2008] CrimLR 303�� 4.53, 4.99, 4.100, 4.166,
5.66, 215, 216, 230
Card [2006] EWCA Crim 1079, [2006] 2 CrAppR 28, [2006] CrimLR 1058��5.53
Carp [2005] EWCA Crim 1985, [2005] 1 WLR 3472,
[2006] 1 CrAppR 7 (125)��viii, 1.60, 1.61, 266–68,
273–75, 298, 311
Chalkley and Jeffries [1998] QB 848�� 241
Chapman [2006] EWCA Crim 2545��4.14
Cherazi [2010] EWCA Crim 66, [2010] CrimLR 578��5.37
Chief Constable of Humberside v Information Commissioner
[2009] EWCA Civ 1079, [2010] 1 WLR 1136��5.5
Chief Constable of West Yorkshire, South Yorkshire and North Wales v
Information Commissioner [2005] Po LR 337��5.5
Chohan [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31)��viii, 4.15, 4.48,
5.66, 253–65, 266,
267, 295, 296
Chopra [2006] EWCA Crim 2133, [2007] 1 CrAppR 16 (225)��4.91, 4.92, 231
Christie [1914] AC 545��1.56
Chrysostomou [2010] EWCA Crim 1403��4.145
Clark [2014] EWCA Crim 1053��4.178
Clarke [2011] EWCA Crim 939, [2011] CrimLR 642��4.145, 4.159,
4.163, 4.165
Conlon v Simms [2006] EWCA Civ 1749, [2008] 1 WLR 484��5.17
Cooke v MGN Ltd [2014] EWHC 2831 (QB), [2015] 1 WLR 895��2.14
Cooper [1969] 1 QB 267�� 324
Cornwell [2013] EWCA Crim 2414��1.73
Cowan [1996] QBD 373��1.39, 1.48
Cox [2007] EWCA Crim 3365��4.50, 4.173
Cox [2014] EWCA Crim 804��4.39, 4.52
Cox v The Queen [2015] UKPC 40, [2015] 3 WLR 1145��4.17
Crandle and Cullen [2006] EWCA Crim 2663��5.44
Crawford [1998] 1 CrAppR 338��4.111
Creed [2011] EVCA Crim 144��1.24
Cross [2012] EWCA Crim 2277�� 232
Cudjoe [2012] EWCA Crim 1230��5.34
xv
Table of Cases

Culhane and Chin [2006] EWCA Crim 1053��4.48, 5.44

Cundell [2009] EWCA Crim 2072��4.53
Cushing [2006] EWCA Crim 1221��4.48, 4.59
D [1996] QB 283��5.16
D [2002] 2 CrAppR (36) 601��1.59
D [2007] EWCA Crim 4��1.75, 3.38
D [2011] EWCA Crim 1474, [2013] 1 WLR 676,
[2012] 1 CrAppR 8 (97)��2.19, 4.51
D [2012] EWCA Crim 2163��4.137
Daly [2014] EWCA Crim 2117, (2015) 179 JP 114��4.113, 222
D’Ambrosia [2015] EWCA Crim 182��4.4
Darnley [2012] EWCA Crim 1148��1.71, 1.73, 219
Davis [2008] EWCA Crim 1156, 172 JP 358�� 1.75, 4.3, 4.12, 4.53, 217
De Vos [2006] EWCA Crim 1688��1.37, 4.115
Delay (sic) [2006] EWCA Crim 1110, 170 JP 581��5.44
Devon [2006] EWCA Crim 388��3.14
DF [2011] EWCA Crim 2168, [2012] CrimLR 215��5.62
Dhooper [2008] EWCA Crim 2892 ��5.60
Ditta (Basharat Ali) [2016] EWCA Crim 8��2.30
Dizaei [2013] EWCA Crim 88, [2013] 1 WLR 2257��3.52, 3.53, 212, 230
DJ [2015] EWCA Crim 563��1.51
Docherty [2012] EWCA Crim 2948��3.16
Dolan [2003] EWCA Crim 1859, [2003] Crim LR 41,
[2003] 1 CrAppR 18 (281)��4.57
Doncaster [2008] EWCA Crim 5, [2008] CrimLR 709��5.69
Donnelly [2006] EWCA Crim 545��2.15
Donoghue [2006] EWCA Crim 2099��4.109
Dossett [2013] EWCA Crim 710��4.60, 220
Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401)��viii, 4.121, 4.134,
4.153, 4.160, 5.43,
248–52, 253, 257,
260, 266
DPP v Agyemang [2009] EWHC 1542 (Admin), 173 JP 487��2.32
DPP v Boardman [1975] AC 421��4.20, 4.36
DPP v Chand [2007] EWHC 90 (Admin), (2007) 171 JP 285��1.73, 1.80, 4.56
DPP v M [1997] 2 CrAppR 70��1.59
DPP v P [1991] 2 AC 447, 93 CrAppR 267��4.44, 239, 295
D, P U [2011] EWCA Crim 1474�� 217, 220
DS v HM Advocate [2007] UKPC 36, [2007] HRLR 28��1.34, 1.44
Duggan [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31)��viii, 1.50, 4.45, 4.52,
5.9, 253–65,
266, 295, 296
Eastlake [2007] EWCA Crim 603��1.80, 4.56, 220
Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31)��viii, 4.15, 4.21, 4.45,
4.48, 4.52, 4.161, 4.168,
5.9, 5.66, 253–65, 266,
267, 295, 296

xvi
Table of Cases

Edwards and Rowlands [2005] EWCA Crim 3244,

[2006] 1 WLR 1524�� viii, 1.49, 1.75, 2.16, 2.29, 4.6,
4.12, 4.118, 5.35, 5.36,
5.57, 215, 216, 310–16
Elliott [2010] EWCA Crim 2378, (2011) 175 JP 39��4.64
Enright and Gray [2005] EWCA Crim 3244, [2006] 1 WLR 1524��viii, 4.6, 5.57,
310–312, 325–28
EPI Inc v Symphony plc [2004] EWHC 2945 (Ch),
[2005] 1 WLR 3456��5.71
Eyidah [2010] EWCA Crim 987��4.132
Faraz [2012] EWCA Crim 2820, [2013] 1 WLR 2615,
[2013] 1 CrAppR 29��3.53
Fox [2009] EWCA Crim 653 ��2.19, 2.24, 2.37
Frain and Unsworth [2007] EWCA Crim 397��4.14, 217
Francis (1874) LR 2 CCR 128��4.19, 4.20, 4.42
Francis [2013] EWCA Crim 2312��3.16
Freeman and Crawford [2008] EWCA Crim 1863��4.92, 4.93, 231, 232
Friel [2012] EWCA Crim 2871��1.73
Fryer and Tedstone [2006] EWCA Crim 1530��4.172
Fulcher [1995] 2 CrAppR 251��4.10, 4.53
Fyle [2011] EWCA Crim 1213��4.62
Fysh [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31)�� viii, 253–65,
266, 295, 296
G [2007] EWCA Crim 2468��3.16
Galbraith (1981) 73 CrAppR 124��5.48
Garnham [2008] EWCA Crim 266��3.16, 229
Garrett [2015] EWCA Crim 757��4.133, 226
George [2006] EWCA Crim 1652��4.165
Gillespie [2011] EWCA Crim 3152�� 217
Gilmore [2005] EWCA Crim 824, [2005] 1 WLR 3169,
[2005] 2 CrAppR 21�� viii, x, 1.49, 1.50, 1.69, 4.45,
4.47, 238–42, 244–45, 248,
253, 258, 261, 266, 267,
275, 311, 314, 315, 322
Giyma [2007] EWCA Crim 429, [2007] Crim LR 890��5.46
Gleadall v Huddersfield Magistrates’ Court [2005]
EWHC 2283 (Admin)��2.26, 3.11, 5.6
Glenn and Wright [2006] EWCA Crim 3236��4.14, 4.73
Goddard [2007] EWCA Crim 3134��3.22
Good [2008] EWCA Crim 2923��4.137
Gosney [2007] EWCA Crim 984��5.62
Graham [2007] EWCA Crim 1499��2.38
Gray [1998] CrimLR 570��3.26
Green [2009] EWCA Crim 1688, [2010] CrimLR 306��2.38
Guney [1998] 2 CrAppR 242��5.6
Gyima and Adjei [2007] EWC Crim 429, [2007] CrimLR 890��1.74
H [1995] 2 AC 596, 99 CrAppR 178��5.47, 5.50, 298
H [2006] EWCA Crim 2898��4.50
xvii
Table of Cases

H [2011] EWCA Crim 2344, [2012] 1 CrAppR 30,

[2013] CrimLR 681��4.86, 232
H [2014] EWCA Crim 420��1.73, 4.56
Haigh [2010] EWCA Crim 90��4.12
Hall-Chung [2007] EWCA Crim 3429��2.16
Hamer [2010] EWCA Crim 2053, [2011] 1 CrAppR 3 (23)��5.31
Hamidi [2010] EWCA Crim 66, [2010] CrimLR 578��5.37, 5.38
Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169,
[2005] 2 CrAppR 21�� viii, x, 1.49, 1.50, 1.52, 1.69,
1.80, 3.19, 3.20, 3.21, 3.22,
3.29, 4.45, 4.47, 4.50, 4.56,
4.69, 4.70, 4.71, 4.72, 4.98,
4.99, 4.115, 4.116, 4.146,
4.154, 4.164, 4.173, 4.175,
5.1, 5.18, 5.21, 5.25, 5.66,
219, 238–44, 248, 251, 253,
258, 261, 265, 266, 267, 275,
311, 314, 315, 322
Harper [2007] EWCA Crim 1746��5.62, 214
Harris [2009] EWCA Crim 434, [2010] CrimLR 54��4.48
Hassan [2007] EWCA Crim 1287��5.44
Hassett [2008] EWCA Crim 1634��5.44
Haxihaj [2016] EWCA Crim 83��2.35
Hearne [2009] EWCA Crim 103��4.12
Hester and McKray [2007] EWCA Crim 2127��3.22
Hewlett [2008] EWCA Crim 270��1.74
Hickinbottom [2012] EWCA Crim 783��4.133, 226
Highton [2005] EWCA Crim 1985, [2005] 1 WLR 3472,
[2006] 1 CrAppR 7 (125)�� viii, 1.60, 1.61, 1.72, 4.55,
4.166, 4.167, 4.170, 4.171, 215,
228, 266–70, 298, 311, 327
Hogart [2007] EWCA Crim 338��5.17
Hoggins [1967] 1 WLR 1223��4.115
Hollington v Hewthorn [1943] KB 587�� 5.16, 5.17, 5.37, 5.38, 5.39
Holmes [2014] EWCA Crim 420�� 220
Hong and De [2005] EWCA Crim 2866,
[2006] 1 CrAppR 19 (303)��viii, 1.49, 1.61, 2.16, 288,
308–10, 318, 323
Housen [2012] EWCA Crim 1962��2.29
HSD [2006] EWCA Crim 1703��5.46
Humphris [2005] EWCA Crim 2030, 169 JP 441��5.20
Hunter and others [2015] EWCA Crim 631,
[2015] 2 CrAppR 9�� 5.67, 5.68, 5.69,
5.70, 204, 206
Hussain [2015] EWCA Crim 383��3.23
Hussein (2009) 173 CL & JW 190��4.93
Hutchinson (1986) 82 CrAppR 51��4.147
IJ [2011] EWCA Crim 2734��2.23, 4.62
xviii
Table of Cases

Imiela [2013] EWCA Crim 2171��4.101, 220

Iqbal [2006] EWCA Crim 1302��4.55
Isichei [2006] EWCA Crim 1815, 170 JP 753��4.43
Ivers [2007] EWCA Crim 1773��3.22
J [2004] UKHL 42, [2005] 1 AC 562�� 305
J [2013] EWCA Crim 1050��4.60
Jackson [2011] EWCA Crim 1870��4.73
Jalil [2008] EWCA Crim 2910, [2009] 2 CrAppR(S) 40,
[2009] CrimLR 442��4.133
Jarvis [2008] EWCA Crim 488, [2008] CrimLR 632��4.115, 4.118
Jenkins (1946) 31 CrAppR 1��4.163
Johnson [2010] EWCA Crim 385�� 214, 229
Johnson and others [2009] EWCA Crim 649,
[2009] 2 CrAppR 7��4.48, 4.59, 4.69
Jones [2014] EWCA Crim 1762, [2015] 1 CrAppR 5��2.16
Kamara [2011] EWCA Crim 1146��4.73
Kane [2013] EWCA Crim 1487��4.40
Kang [2013] EWCA Crim 1609��4.50
Kavallieratos [2006] EWCA Crim 2819��5.20, 5.30
Kelly [2008] EWCA Crim 1456�� 230
Kelly [2015] EWCA Crim 500��4.94
Kelly [2015] EWCA Crim 817��5.33
Kempster [1989] 1 WLR 1125��2.28
Khan [2015] EWCA Crim 1755��4.49
Kiernan [2008] EWCA Crim 972��2.16, 4.133
King [1967] 2 QB 338��1.30
King [2015] EWCA Crim 1631��3.52
Knutton (1993) 97 CrAppR 115��4.112
Kordasinski [2006] EWCA Crim 2984, [2007]
1 CrAppR 17 (238)��5.16, 5.17
Kostovski v Netherlands (1990) 12 EHRR 434��1.37
L [2006] EWCA Crim 1902, [2006] 1 WLR 3092��5.16, 5.17
L & R [2011] EWCA Crim 649��4.110
Ladds [2009] EWCA Crim 1249��4.12
Lafayette [2008] EWCA Crim 3238��4.166, 228
Lamaletie [2008] EWCA Crim 314��4.165
Lamb [2007] EWCA Crim 1766��5.48, 5.54
Lambrou and others [2005] EWCA Crim 3595��1.81, 4.3
Land and Kalq [2006] EWCA Crim 2856��4.118
Larkin [2016] EWCA Crim 170��4.71
Laws-Chapman [2013] EWCA Crim 1851��4.62
Lawson [2006] EWCA Crim 2572, [2007] 1 CrAppR 11,
[2007] 1 WLR 1191, [2007] CrimLR 232��4.115, 223
Leaver [2006] EWCA Crim 2988��4.37
Lee (1976) 62 CrAppR 33��3.49
Lee [2012] EWCA Crim 316, (2012) 176 JP 231��4.16, 217, 218
Letts and Chung [2007] EWCA Crim 3282��5.43
Lewenden [2006] EWCA Crim 648, [2006] 2 CrAppR 19 (294)��5.11
xix
Table of Cases

Lewis [2007] EWCA Crim 3030��4.159, 4.165

Lewis (Colin) [2008] EWCA Crim 424��2.30, 4.132
Lewis [2012] EWCA Crim 3233��3.16
Lewis [2014] EWCA Crim 48��4.64
Littlechild [2006] EWCA Crim 2126��2.15, 4.146
Long [2006] EWCA Crim 578��4.73, 4.132
Lovelock [2007] EWCA Crim 476��4.132
Lowe [2007] EWCA Crim 3047��4.93
Luckett [2015] EWC Crim 1050��3.5, 229
Ludlow v Metropolitan Police Commissioner [1971] AC 29��1.15, 1.22, 4.84
Lunkulu [2015] EWCA Crim 1350��2.32, 4.49, 5.23, 217
M [2006] EWCA Crim 3408, [2007] CrimLR 637��1.80, 4.49
M [2012] EWCA Crim 1588, [2012] 2 CrAppR 25 (316)��4.77, 5.18
M [2013] EWCA Crim 2238��5.31
Machado [2006] EWCA Crim 837, 170 JP 400��3.5
Mackenzie (1996) 93 CrAppR 98��5.49
Maguire [2015] NICA 71��4.61
Mahil and others [2013] EWCA Crim 673��2.35
Makanjuola [1995] 1 WLR 1348, (1995) 2 CrAppR 469�� 241, 307
Makin v Attorney-General for New South Wales [1894] AC 57��1.6
Malcolm D [2015] EWCA Crim 837��4.74
Malone [2006] EWCA Crim 1860��2.15, 2.30
Manister [2005] EWCA Crim 2866,
[2006] 1 CrAppR 19 (303)�� viii, 1.49, 1.50, 1.61, 2.23, 4.50,
4.62, 288, 304–08, 318, 323
Marsh [2009] EWCA Crim 2696��4.4, 214
Martin [2005] EWCA Crim 3259��2.30
Massey [2007] EWCA Crim 2664, [2008] 1 WLR 937��1.54
Masud [2015] EWCA Crim 2, [2015] 1 WLR 2797,
[2015] CrimLR 359��1.24
Mauricia [2002] 2 CrAppR 377��5.10, 5.11
Maxwell v DPP [1934] AC 309��i, 1.3, 4.136
McAllister [2008] EWCA Crim 1544, [2009]
1 CrAppR 10 (129) ��4.92, 4.93, 231, 232
McCalla [2007] EWCA Crim 2865��4.53
McCoy, 10 December 1999, unreported�� 300
McDonald [2011] EWCA Crim 2933��1.51, 219
McGarvie [2011] EWCA Crim 1414��4.74
McKenzie [2008] EWCA Crim 758, [2008] CrimLR 712,
(2008) 172 JP 377, [2008] RTR 22��1.75, 4.54
McKintosh [2006] EWCA Crim 193��2.30, 217
McLean [2005] EWCA Crim 3244, [2006] 1 WLR 1524�� viii, 310–12, 316–19
McLeod [1995] 1 CrAppR 591��4.76
McMinn [2007] EWCA Crim 3024��4.73
McNeill [2007] EWCA Crim 2927, (2008) 172 JP 50��2.29
McNeish [2015] EWCA Crim 2251��5.37
MD [2015] EWCA Crim 818��4.74

xx
Table of Cases

Mehmedov [2014] EWCA Crim 1523, [2015] 1 WLR 495��5.14

Merkel [2008] EWCA Crim 792��4.56
Mertens [2004] EWCA Crim 2252, [2005] CrimLR 301��4.120
Miller [2009] EWCA Crim 2890��1.73
Miller [2010] EWCA Crim 1153, [2010] 2 CrAppR 19 (138)��3.25, 3.26, 5.34, 229
Miller [2010] EWCA Crim 1578��4.74
Mitchell [2010] EWCA Crim 783��4.118, 4.119, 5.47
Mitchell v News Group Newspapers Ltd [2014] EWHC 4014 (QB)��1.27
Mix, unreported, 16 March 2016��4.50
Montila [2004] 1 WLR 3141 (HL)��1.54
Moran [2007] EWCA Crim 2947��5.44
Moran v Crown Prosecution Service (2000) 164 JP 562��5.11
Morgans [2015] EWCA Crim 1997��5.68
Muhadeen [2015] EWCA Crim 83��3.28
Mullings [2010] EWCA Crim 2820, [2011] 2 CrAppR 2��4.64
Murdoch and Taylor [1965] AC 574��4.111
Murphy [2006] EWCA Crim 3408, [2007] CrimLR 637��1.80, 4.49, 4.173
Murrell [2005] EWCA Crim 382, [2005] Crim LR 869��4.120, 4.167
Musone [2007] EWCA Crim 1237, [2007] 1 WLR 2467,
[2007] 2 CrAppR 29 (379)��4.118, 5.44
Mustapha [2007] EWCA Crim 1702��5.36, 5.38
Myers v The Queen [2015] UKPC 40, [2015] 3 WLR 1145��4.17
N [2014] EWCA Crim 506, [2015] CrimLR 439��1.73
N (H) [2011] EWCA Crim 730, [2011] 1 CrAppR 12,
[2012] CrimLR 158��4.93, 5.54, 231, 232
N (Masimba) [2008] EWCA Crim 939��3.38
Najib [2013] EWCA Crim 86��4.119, 223
Neale (1977) 65 CrAppR 304��1.64
Nelson [2006] EWCA Crim 3412, [2007] CrimLR 709��4.153, 227
Nelson [2012] EWCA Crim 1171��4.76, 5.26
Nelson [2012] All ER (D) 43 (May)�� 219
Newton [2012] EWCA Crim 2474��2.25
Ngando [2014] EWCA Crim 506, [2015] CrimLR 439�� 220
Ngyuen [2008] EWCA Crim 585, [2008] 2 CrAppR 9 (99)��4.83
Nicholas [2011] EWCA Crim 1175��4.61
Nicholson [1947] 2 All ER 535, (1948) 32 CrAppR 98��4.82, 289
Nicholson [2012] EWCA Crim 1568�� 231
Norris [2013] EWCA Crim 712��4.101, 5.64
O [2009] EWCA Crim 2235, 173 JP 616��4.161
O [2009] EWCA Crim 2919��5.23
O, C and D [2011] EWCA Crim 1336��4.38
O’Brien v Chief Constable of South Wales Police [2005] UKHL 26,
[2005] 2 AC 534��1.27, 4.21, 261, 295
O’Dowd [2009] EWCA Crim 905, [2009] 2 CrAppR 16 (280)��1.78, 1.79
Okoh [2015] EWCA Crim 2316��3.52
Okokono [2014] EWCA Crim 2521��2.32, 4.17, 4.64, 218
O’Leary [2013] EWCA Crim 1371��4.93, 5.12, 5.23

xxi
Table of Cases

Olu [2010] EWCA Crim 2975, [2011] 1 CrAppR 33��5.28, 5.29

O’Neil, 22 February 2005, unreported�� 289
Osbourne [2005] EWCA Crim 2826, [2006] 1 WLR 2948�� viii, 3.29, 276–77,
283–84, 318
Osbourne [2007] EWCA Crim 481, [2007] CrimLR 712��2.16, 4.52, 4.53
O’Sullivan [2013] EWCA Crim 43��4.73
Ovba [2015] EWCA Crim 725��4.133, 226
Owen (1983) 83 CrAppR 100��4.96
P [1989] Crim LR 897��3.26
P [2005] EWCA Crim 824, [2005] 1 WLR 3169,
[2005] 2 CrAppR 21�� viii, x, 1.49, 1.50, 1.69, 4.45, 4.50,
238–42, 245–47, 248, 253, 258, 261,
266, 267, 275, 311, 314, 315, 322
P (Mark Geoffrey) [2006] EWCA Crim 2517��4.12, 4.53
P [2011] EWCA Crim 1474, [2013] 1 WLR 676,
[2012] 1 CrAppR 8 (97)��2.19, 4.51
P (A Minor) (Wardship), Re [1987] 2 FLR 467��1.27
Paraskeva (1982) 76 CrAppR 162��3.18, 5.6
Passos-Carr [2009] EWCA Crim 2018��4.108, 223
Pattison v DPP [2005] EWHC 2938 (Admin), (2006) 170 JPN 22��5.11
Pettman, Court of Appeal, 5 May 1985, (CA) no 5048/C/82�� 4.3, 4.8, 4.10, 4.17
Phillips [2011] EWCA Crim 2935, [2012]
1 CrAppR 332 (25)�� 1.64, 4.117, 4.118,
222, 223
Platt [2016] EWCA Crim 4��1.53, 4.106, 4.118
Powell [1985] 1 WLR 1364��4.163
Powell (CM) [2014] EWCA Crim 642, [2014] 1 WLR 2757��1.22, 4.84
Powell (DL) [2015] EWCA Crim 2200, [2016] 1 CrAppR (S) 49��1.73, 4.73
PR [2010] EWCA Crim 2741��5.53
Price [2004] EWCA Crim 1359, [2005] CrimLR 304��4.105, 4.120, 317, 318
Purcell [2007] EWCA Crim 2604��4.54
R [2006] EWCA Crim 3196��2.28
R v Derwentside Justices, ex parte Heaviside [1996] RTR 384��5.11
R v Home Secretary, ex parte Brind [1991] 1 AC 696��1.46
R v Marylebone Justices, ex parte Gatting and Embury
(1990) 154 JP 549, [1990] CrimLR 578��5.23
R (Confederation of Passengers etc) v Humber Bridge
Board [2004] QB 310 (CA)��1.54
R (Jefferies) v St Alban’s Crown Court [2012] EWHC 338 (Admin)��3.16
R (Robinson) v Sutton Coldfield Magistrates’ Court
[2006] EWHC 307 (Admin), 170 JPN 83��5.44, 212
R (S) v Chief Constable of South Yorks Police [2004] 1 WLR 2196��1.54
R (Wellington) v DPP [2007] EWHC 1061 (Admin), 171 JP 497��5.20
R (Westminster City Council) v National Asylum Support
Service [2002] 1 WLR 2956��1.54
Rabheru [2013] EWCA Crim 137��4.14
Rahim [2013] EWCA Crim 2064�� 226

xxii
Table of Cases

Rahimi [2010] EWCA Crim 148��4.49

Rainbow [2012] EWCA Crim 499��4.6
Ramirez [2009] EWCA Crim 1721, [2010] CrimLR 235��4.118
Rand and others [2006] EWCA Crim 3021��3.5
Randall [2004] UKHL 69, [2004] 1 WLR 56��1.27, 4.105, 4.120
Randall [2006] EWCA Crim 1413��4.56
Razaq and Razaq [2005] EWCA Crim 2826,
[2006] 1 WLR 2948�� viii, 276–77, 284–87, 318
Reardon [2008] EWCA Crim 1549��4.118
Redd [1923] 1 KB 104��4.126
Redmond [2006] EWCA Crim 1744, [2009] 1 CrAppR 25 (355)��3.22
Renda and others [2005] EWCA Crim 2826,
[2006] 1 WLR 2948��viii, 1.52, 1.80, 2.11,
3.29, 4.134, 4.156, 5.52,
226, 276–80, 318
Richardson [1969] 1 QB 299��3.32
Richardson [2014] EWCA Crim 1785�� 219
Rigot [2000] 7 Archbold News 2��4.111
Robinson [2005] EWCA Crim 3233��4.120
Roderick [2012] EWCA Crim 2276��5.63
Rooney [2007] EWCA Crim 3475��4.55
Rosato [2008] EWCA Crim 1243��4.115, 223
Ross [2007] EWCA Crim 1457, [2008] CrimLR 306��3.13
Rossi [2009] EWCA Crim 2406��2.25
Rowton (1865) 10 Cox 25��3.32
S (Andrew) [2006] EWCA Crim 1303, [2007] 1 WLR 63,
[2006] 2 CrAppR 31 (437)��3.14, 3.22, 3.23
S (Stephen Paul) [2006] EWCA Crim 756, [2006] 2 CrAppR 23 (341),
[2006] CrimLR 296��4.50, 4.83
S (P) [2007] EWCA Crim 1387��2.19, 4.50, 4.132
S [2008] EWCA Crim 544��4.92, 233
S [2009] EWCA Crim 2457��2.35
S [2012] EWCA Crim 3077��5.44
Saint [2010] EWCA Crim 1924��4.13, 217
Saleem [2007] EWCA Crim 1923��1.52, 2.15,
2.29, 4.45
Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458�� 323
Sawoniuk [2000] 2 CrAppR 220�� 217
Selvey v DPP [1970] AC 304��4.147, 4.163
Shah [2015] EWCA Crim 1250��3.26
Sheikh [2013] EWCA Crim 907��4.16, 217
Shergill and others [1999] 2 CrAppR(S) 341��4.82
Shrimpton [2007] EWCA Crim 3346��1.69, 4.73
Sidhu (1994) 98 CrAppR 59��4.10
Simmerson [2006] EWCA Crim 2636��1.51, 4.53, 4.81
Singh (James Paul) [2007] EWCA Crim 2140��4.165
Slack and Johnson [2010] EWCA Crim 1149��4.52

xxiii
Table of Cases

Smith (David) [2005] EWCA Crim 3244, [2006] 1 WLR 1524,

[2006] 2 CrAppR 4 (62)��viii, 1.75, 4.12, 5.36,
310–12, 319–25
Smith (2006) 170 JPN 142��4.56
Smith (James William) [2006] EWCA Crim 1355��1.51, 4.76, 5.27
Smith (Derek Nathan) [2007] EWCA Crim 2105��2.28
Smith (Anthony Graham) [2015] EWCA Crim 801��4.37, 4.38
Smith, Spencer and others [2008] EWCA Crim 1342��4.49
Somanathan [2005] EWCA Crim 2866,
[2006] 1 CrAppR 19 (303)�� viii, 1.49, 1.61, 4.3, 4.21,
4.45, 4.135, 288,
290–300, 318, 323
South [2011] EWCA Crim 754��3.16
Spartley [2007] EWCA Crim 1789��4.55
Speed [2013] EWCA Crim 1650��4.6, 216
Spinks (1982) 74 CrAppR 263��5.16
Spittle [2008] EWCA Crim 2537��4.56
Stapleton [2014] EWCA Crim 1983��5.44
Steen [2007] EWCA Crim 335, [2008] 2 CrAppR 26��4.75, 5.22
Stephenson [1993] 1 WLR 471, [1993] 3 All ER 241, 97 CrAppR 134�� 204
Stephenson [2006] EWCA Crim 2325��3.22, 3.23
Stewart [2016] EWCA Crim 447��2.32
Stokes [2015] EWCA Crim 1911��4.133
Straffen [1952] 2 QB 911, 36 CrAppR 132��1.27, 1.29, 1.72
Sule [2012] EWCA Crim 1130, [2013] 1 CrAppR 3��2.32
Suleman [2012] EWCA Crim 1569�� 231
Sullivan [2015] EWCA Crim 1565��2.31, 2.37, 4.93, 217
Sully [2008] EWCA Crim 2556��4.50, 4.173
Sweet-Escott (1971) 55 CrAppR 316��3.15
Swellings [2009] EWCA Crim 3249, [2009] 2 CrAppR(S) 30��4.37
Sylvester [2005] EWCA Crim 1794��1.76
T and H [2001] EWCA Crim 1877, [2002] 1 WLR 632��3.38
Terry [2004] EWCA Crim 3252, [2005] QB 996��2.8
Thomas [2014] EWCA Crim 641��1.73
Thompson [1918] AC 221��4.43
Thompson v DPP (1919) 13 CrAppR 61��4.20
Thompson and others [1995] 2 CrAppR 589��4.105
Tine [2006] EWCA Crim 1788��2.16, 3.33
Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3049��2.31
TM [2000] 2 CrAppR 266��4.10
Tollady [2010] EWCA Crim 2614�� 216
Toohey v Metropolitan Police Commissioner [1965] AC 595��3.33
Tulley and Wood [2006] EWCA Crim 2270, (2007) 171 JP 25��4.48, 4.59, 4.70
Turnbull [1977] QB 224��5.49, 263
Turnbull [2013] EWCA Crim 676�� 223
Turner (1945) 30 CrAppR 9��4.147
U [2008] EWCA Crim 1457��4.136

xxiv
Table of Cases

U [2011] EWCA Crim 1474, [2013] 1 WLR 676,

[2012] 1 CrAppR 8 (97)��2.19, 4.51
Ullah [2006] EWCA Crim 2003��4.137
Unterpringer v Austria (1991) 13 EHRR 175��1.37
Upson [2009] EWCA Crim 299��4.56
Urushadze [2008] EWCA Crim 2498��4.48, 4.71
V [2006] EWCA Crim 1901��3.37, 3.38
Valencia [2015] EWCA Crim 857��1.73, 4.178
Van Nguyen [2005] EWCA Crim 1985, [2005] 1 WLR 3472,
[2006] 1 CrAppR 7 (125)��viii, 1.60, 1.61, 4.55,
266–68, 270–72, 298, 311
Varley (1982) 75 CrAppR 24�� 311, 314
Vehicle and Operator Services Agency v Ace Crane and Transport Ltd
[2010] EWHC 288 (Admin)��2.31
Venclovas [2013] EWCA Crim 2182��4.12
Verdol [2015] EWCA Crim 502��4.133, 226
Vye [1993] 1 WLR 471, [1993] 3 All ER 241, 97 CrAppR 134��1.2, 5.67, 5.70, 204
W (Paul) [2003] EWCA Crim 2168��5.54
W [2010] EWCA Crim 203��2.29
W [2011] EWCA Crim 472��1.52
Wallace [2007] EWCA Crim 1760, [2007] 2 CrAppR 30 (397),
[2008] 1 WLR 572��4.85, 4.91, 231
Walsh [2012] EWCA Crim 2728��3.28
Warren [2010] EWCA Crim 3267��2.10, 5.34
Watson [2006] EWCA Crim 2308��4.42
Watters [2007] EWCA Crim 1184��4.53
Watts (1983) 77 CrAppR 126��4.96
Webster [2004] 2 CrAppR(S) 25��4.82
Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303)��viii, 1.31, 1.49, 1.50,
1.52, 1.54, 1.61, 2.16,
2.23, 3.4, 3.16, 4.3,
4.21, 4.45, 4.50, 4.69,
4.82, 229, 288–90, 318, 323
Welsh and others [2013] EWCA Crim 409��1.73
West Yorkshire Probation Board v Boulter [2005] EWHC 2342
(Admin), [2006] 1 WLR 232��5.10
Whitehead [2007] EWCA Crim 2078, 171 JPN 418��4.37, 4.54
Whitnell [2013] EWCA Crim 161, [2014] 1 CrAppR 9��4.109
Wilkinson [2006] EWCA Crim 1332��1.51
Williams [2006] EWCA Crim 2052��4.53
Williams [2011] EWCA Crim 2198�� 228
Winfield (1939) 27 CrAppR 139��4.127, 297
Wise [1993] 1 WLR 471, [1993] 3 All ER 241, 97 CrAppR 134�� 204
Woodhead [2011] EWCA Crim 472��4.145, 4.165
Woodhouse [2009] EWCA Crim 498��4.50, 4.75
Wooley [2011] EWCA Crim 27��4.108
WR [2005] EWCA Crim 1907�� 305

xxv
Table of Cases

Wright (1990) 90 CrAppR 325��4.57

Wright [2013] EWCA Crim 820��3.5
Wylie [2010] EWCA Crim 3110, [2011] LLR 586��4.133
Wynes [2014] EWCA Crim 2585, (2015) 179 JP 42��5.26
X v Denmark, Yearbook (1965) vol 8, p 370��1.37
Yaxley-Lennon [2005] EWCA Crim 2866, [2006]
1 CrAppR 19 (303)�� viii, 1.49, 1.61, 3.4, 3.16, 229,
288, 301–04, 318, 323
Z [2000] 2 AC 483, [2000] 2 CrAppR 281��2.8, 5.36, 323
Z [2009] EWCA Crim 20, [2009] 1 CrAppR 34��4.93
Z v Finland (1997) 25 EHRR 371��2.18

xxvi
TABLE OF LEGISLATION

References in bold are to the page numbers of the Appendices. Otherwise references
are to paragraph numbers in the commentary.

Primary Legislation

Coroners and Justice Act 2009��4.177, 5.8

Criminal Appeal Act 1995
s 20��3.16
Criminal Evidence Act 1898��1.21, 4.134, 4.147
s 1(f)(ii)�� 1.33, 1.44, 3.46, 4.96, 4.136, 4.137
s 1(f)(iii)��4.105
s 1(3)�� 247
s 1(3)(ii)��1.52, 4.96, 4.126, 4.136, 4.137, 4.138,
4.139, 4.141, 4.153, 4.154, 278
s 1(3)(iii)��4.105, 4.111, 4.112
Criminal Evidence Act 1948
s 99��5.11
Criminal Justice Act 1967
s 10��5.11, 314
s 17�� 312
Criminal Justice Act 1988��1.59
ss 23–26�� 293
s 23�� 291
s 26�� 291, 299
Criminal Justice Act 2003�� i, v, vii, ix, 1.2, 1.22, 1.25, 1.42, 1.49,
1.53, 1.54, 1.81, 2.12, 2.22, 2.26,
2.35, 2.38, 3.12, 3.16, 3.18, 3.20,
3.26, 3.31, 3.34, 3.50, 4.1, 4.11,
4.17, 4.21, 4.40, 4.46, 4.57, 4.106,
4.128, 4.142, 4.151, 4.166, 4.180,
5.1, 5.5, 5.6, 5.22, 5.23, 5.49,
5.60, 232, 319
Pt 7��5.56
Pt 10��1.83
Pt 11�� i, 1.5, 1.40, 1.53, 3.34, 279, 321, 327
Pt 11, Ch 1��276, 290, 309, 314
s 1(1)(b)��3.4
ss 98–110�� 289

xxvii
Table of Legislation

ss 98–112�� 310
ss 98–113��212, 238, 248, 253, 266
s 98��1.21, 1.23, 2.1, 2.5, 2.7, 2.23, 2.26, 2.27,
2.35, 2.37, 2.38, 3.5, 3.11, 3.32,
3.33, 3.41, 3.42, 3.45, 3.48, 4.2,
4.50, 4.149, 5.45, 5.55, 177,
217, 229, 243, 259, 266, 267,
306, 309, 310, 311, 312,
313, 321, 324
s 98(a)��2.2, 2.29, 2.30, 2.31, 2.32, 2.37,
3.6, 3.48, 4.86, 212, 314
s 98(b)�� 2.2, 2.35, 2.37, 212, 259, 314
s 99�� 1.21, 1.23, 1.49, 1.58, 4.45, 5.16, 177
s 99(1)�� 1.23, 2.23, 4.32, 293, 296, 306, 307, 309
ss 100–106��5.47
s 100��1.7, 1.21, 1.64, 1.65, 1.89, 2.2, 2.18, 2.24,
2.35, 3.1, 3.3, 3.5, 3.6, 3.7, 3.11, 3.13,
3.16, 3.23, 3.26, 3.28, 3.31, 3.32, 3.33,
3.34, 3.37, 3.38, 3.42, 3.43, 3.44, 3.45,
3.46, 3.48, 3.49, 3.51, 3.52, 3.53, 4.66,
4.150, 4.154, 177–78, 212, 229–30,
249, 273, 274, 277, 282, 283, 284,
286, 296, 304, 319, 324
s 100(1)�� 3.4, 3.8, 3.9, 3.28, 3.51, 250,
251, 286, 303, 304, 311, 324
s 100(1)(a)��3.9, 302
s 100(1)(b)�� 3.13, 3.23, 3.32, 3.43, 3.52, 249, 250, 286, 302
s 100(2)��3.51, 3.52, 229
s 100(3)��3.51, 3.52, 229
s 100(3)(b)��3.7
s 100(3)(d)��3.7
s 100(4)��3.9, 3.50, 3.51
s 100(4)(b)��4.67
s 101��1.58, 1.60, 2.2, 2.4, 2.24, 2.28, 2.29, 2.31,
3.5, 3.11, 4.1, 4.2, 4.9, 4.50, 4.86, 4.110,
4.150, 178–79, 207, 212, 213, 231,
232, 256, 266, 268, 306, 311, 314, 324
s 101(1)��1.21, 1.49, 2.31, 4.24, 4.45, 4.152, 4.166,
213–14, 215, 216, 217, 218, 221, 224,
226, 228, 239, 253, 262, 267, 271,
272, 281, 295, 306, 327
s 101(1)(a)–(g)��5.45, 263
s 101(1)(a)��1.62, 4.4, 214–15, 267
s 101(1)(b)��1.62, 4.5, 207, 215–17, 267, 311, 325, 326, 327
s 101(1)(c)–(g)��5.52, 279
s 101(1)(c)�� 1.62, 1.63, 2.29, 4.7, 217–18, 276, 311, 319, 321

xxviii
Table of Legislation

s 101(1)(d)��1.56, 1.58, 1.62, 2.29, 4.18, 4.20,

4.21, 4.23, 4.25, 4.26, 4.30, 4.32,
4.66, 4.107, 5.45, 217, 218–22, 231,
234, 239, 242, 254, 266, 267, 269, 270,
272, 289, 291, 292, 293, 294, 295, 296,
297, 311, 312, 316, 317, 318, 319, 322, 327
s 101(1)(e)��1.64, 3.52, 4.103, 4.107, 4.117, 4.118,
222–25, 309, 311, 312, 313, 314,
315, 316, 317, 318, 319
s 101(1)(f)��1.61, 1.62, 1.63, 4.129, 4.130, 4.134,
4.135, 4.163, 226–227, 252, 276,
278, 291, 292, 293, 294, 297, 298, 311
s 101(1)(g)��1.42, 1.56, 1.58, 1.62, 2.36, 4.142,
4.154, 4.160, 4.163, 5.45, 227–29,
240, 252, 266, 267, 269, 273, 274,
276, 280, 290, 291, 292, 293, 294,
298, 311, 312, 313, 314
s 101(3)��x, 1.21, 1.56, 1.58, 1.61, 1.62, 4.9, 4.22,
4.79, 4.80, 4.106, 4.117, 4.128, 4.152, 4.153,
4.156, 4.158, 4.168, 4.174, 4.175, 4.178, 4.179,
4.180, 5.21, 5.45, 5.60, 217, 231, 240, 241, 247,
252, 254, 260, 263, 267, 269, 272, 274, 275,
281, 291, 293, 296, 297, 298, 306, 311, 312,
313, 314, 316, 319, 320, 322, 323, 324
s 101(4)�� 4.174, 4.177, 5.60, 243, 260, 306,
312, 313, 314, 319, 320, 322
ss 102–106��1.21
s 102�� 1.63, 4.7, 4.16, 179, 217, 266, 306
s 102(2)��4.79, 4.80
s 102(2)(a)��4.68
s 103�� 1.60, 4.23, 4.26, 4.27, 4.88, 4.167, 179–81, 266, 268
s 103(1)��239, 266, 295, 306, 319, 322
s 103(1)(a)��1.48, 4.26, 4.28, 4.30, 4.31, 4.32, 4.66,
4.68, 4.69, 4.83, 4.94, 219, 231, 266, 289, 293
s 103(1)(b)��3.19, 4.26, 4.95, 4.97, 4.99, 4.115,
219, 242, 257, 266, 293, 296
s 103(2)–(5)��4.26, 4.69, 219
s 103(2)��1.56, 4.68, 4.69, 4.70, 4.82, 5.15,
5.45, 239, 260, 267, 289
s 103(2)(a)��4.33, 4.82, 289
s 103(2)(b)��4.68, 4.82, 289, 290
s 103(3)��x, 1.56, 4.79, 4.80, 4.168, 4.175, 4.177,
4.180, 5.21, 5.45, 239, 240,
241, 243, 263, 267, 311
s 103(4)�� 260
s 103(4)(b)��4.69, 289

xxix
Table of Legislation

s 103(6)�� 311
s 104�� 3.20, 4.104, 4.112, 4.115, 4.117, 181, 266
s 104(1)��4.111, 4.113, 311, 312, 315, 316, 319
s 104(2)��4.121
s 105��4.129, 4.134, 181–82, 225, 266, 306
s 105(1)��4.130, 247, 276
s 105(1)(a)�� 278
s 105(1)(b)�� 278
s 105(2)��4.130, 4.137
s 105(2)(a)��4.130
s 105(3)��4.134, 226, 276, 278
s 105(4)��4.130
s 105(5)��4.130
s 105(6)�� 1.63, 4.130, 4.135, 293, 297, 298
s 105(7)�� 311
s 106��1.42, 4.142, 4.144, 4.146, 4.152, 4.163,
182, 240, 266, 281, 312, 314
s 106(1)(c)��4.156, 281
s 106(1)(c)(i)�� 247
s 106(2)��4.144
s 106(2)(b)��4.148, 247
s 106(3)��4.153, 311, 314
s 107��1.22, 5.49, 5.52, 5.53, 5.55, 5.56,
5.57, 183, 276, 279, 311
s 107(1)��5.56
s 107(1)(b)��5.53
s 107(5)��5.51, 5.52, 279
s 108��4.177, 4.178, 184
s 108(1)��4.178
s 108(2)�� 4.178, 4.179, 4.180, 5.45
s 108(3)��4.178, 5.45
s 109�� 4.119, 5.25, 5.46, 184, 312
s 109(1)�� 319, 324
s 110��5.60, 184–85, 272, 293
s 110(1)�� 277, 284
s 111��5.40, 185
s 112�� 185–86, 243, 311, 316, 318
s 112(1)�� 2.1, 4.18, 4.103, 276, 306, 309
s 112(2)��4.86, 5.55, 231
s 112(3)��1.57, 3.35
s 113�� 186
s 114��3.25, 5.19, 5.33
s 114(1)(a)–(d)��5.33
s 114(1)(c)��5.35
s 114(1)(d)��4.75, 5.22
s 116��5.19, 5.35
s 116(2)(a)��3.45

xxx
Table of Legislation

s 117��5.17, 5.20
s 125��5.49
s 126(2)(a)��1.57
s 133��5.30
s 140��1.81
s 141��1.81
Sch 36, Pt 5, para 79��3.12
Sch 37, Pt 5��1.21, 4.111
Criminal Justice Act 2011��1.91
Criminal Justice and Public Order Act 1994��1.39, 1.48
s 35��1.44, 1.48
Criminal Procedure Act 1865
s 6��3.12, 3.30, 4.96
Criminal Procedure and Investigations Act 1996��5.5
Pt II��5.5, 248
Criminal Procedure (Scotland) Act 1995��1.44
s 275A��1.44
Defamation Act 2013
s 1��2.14
Evidence Act 1851
s 7��5.10
Human Rights Act 1998�� 1.46, 2.18, 4.150, 4.151, 5.45
s 3��1.60, 268
s 6��2.18
Interpretation Act 1978
Sch 1��5.10
Misuse of Drugs Act 1971
s 28(3)�� 272
Offences Against the Person Act 1861
s 18�� 250, 251
Official Secrets Act 1911
s 1(2)��1.22
Police and Criminal Evidence Act 1984
ss 73–75�� v, 5.14, 5.19, 5.23
s 73�� 5.8, 5.10, 5.12, 5.16, 5.17
s 73(4)��5.9
s 74�� 2.8, 2.28, 5.12, 5.23, 5.28
s 74(3)��5.24, 213
s 75��5.13, 5.24
s 76��5.28
s 78�� x, 1.56, 1.57, 1.58, 1.60, 1.61, 1.64, 2.23, 2.28,
3.53, 4.117, 4.128, 4.137, 4.180, 5.45,
240, 260, 263, 267, 268, 291, 293,
298, 307, 311, 323, 324
s 78(1)��1.64
s 82��5.28
s 82(3)��1.56

xxxi
Table of Legislation

Powers of Criminal Courts (Sentencing) Act 2000

s 143�� 253
Prevention of Crime Act 1953
s 1(2)�� 248
Protection of Children Act 1978
s 1��4.83, 289, 290
Public Order Act 1986
s 2(1)�� 308
Public Order Act 2003
s 5�� 259
Rehabilitation of Offenders Act 1974��5.7, 247
s 7(2)(a)��5.7
Sexual Offences Act 1956
s 6(1)�� 306
s 14(1)�� 304
s 37(2)�� 306
Sch 2, para 10(a)�� 306
Sexual Offences Act 1976
s 2��1.7
Sexual Offences Act 2003
Pt 2�� 288
s 5��4.74
s 7��268, 289, 290
Sexual Offences (Procedure and Evidence) (Scotland) Act 2002��1.44
Theft Act 1968
s 27��1.22
Youth Justice and Criminal Evidence Act 1999
s 41�� 1.7, 3.3, 3.35, 3.36, 3.37,
3.38, 3.39, 230, 281
Statutory Instruments
Criminal Justice Act 2003 (Categories of Offences) Order 2004,
SI 2004/3346��4.67, 187–91,
239, 246, 289
Criminal Justice Act 2003 (Commencement No 6 and Transitional
Provisions) Order 2004, SI 2004/3033��1.81
Criminal Justice (Evidence) (Northern Ireland) Order 2004,
SI 2004/1501 (NI 10)�� 177
Pt II�� 177
Art 3�� 177
Art 4�� 177
Art 5�� 177–78
Art 6�� 178–79
Art 7�� 179
Art 8�� 179–81
Art 9�� 181
Art 10�� 181–82
Art 11�� 182

xxxii
Table of Legislation

Art 12�� 183

Art 13�� 184
Art 14�� 184
Art 15�� 184–85
Art 16�� 185
Art 17�� 185–86
Criminal Procedure Rules 2005, SI 2005/384��v
r 1.1��4.118
r 3.3�� 241
Pt 10.2(3)��4.84
Criminal Procedure Rules 2015, SI 2015/1490�� 241, 257
r 3.2�� 212
r 3.10�� 212
Pt 21�� 5.40, 192–203
r 21.6��5.42, 195, 212
Crown Court Rules 1982, SI 1982/1109
r 23E�� 241
r 23E(3)�� 257
Crown Court (Amendment No 3) Rules 2004, SI 2004/2991�� 241, 244

xxxiii
xxxiv
TABLE OF TREATIES

European Convention on Human Rights and

Fundamental Freedoms�� 1.35, 1.44, 1.46, 2.18, 5.45
Art 6�� 1.36, 1.37, 1.40, 1.42, 1.60, 2.18, 268, 296
Art 6(2)��1.38
Art 8��2.18, 3.41, 4.150
Protocol 7��1.46
Protocol 7, Art 4��1.45
Protocol 7, Art 5��1.46

xxxv
xxxvi
TABLE OF REFERENCES TO
STATUTES IN CASES

References in bold are to the page numbers of the Appendices. Otherwise references are to
paragraph numbers in the commentary.

Criminal Appeal Act 1995

s 20 see Docherty 3.16
Criminal Evidence Act 1898
s 1(f)(ii) see Becouarn 1.44; Britzman 1.33; Maxwell 4.136; Owen, 4.96; Watts 4.96
s 1(3) see P 247
s 1(3)(ii) see Maxwell 4.136; Owen, 4.96; Renda 1.52, 278; Watts 4.96
s 1(3)(iii) see Crawford 4.111; Knutton 4.112; Murdoch and Taylor 4.111; Rigot 4.111
Criminal Evidence Act 1948
s 99 see R v Derwentside Justices, ex parte Heaviside 5.11
Criminal Justice Act 1967
s 10 see Edwards and Rowlands 314; R v Derwentside Justices, ex parte Heaviside 5.11
s 17 see Edwards and Rowlands 312
Criminal Justice Act 1988
ss 23–26 see Somanathan 293
s 23 see Somanathan 291
s 26 see Somanathan 291, 299
Criminal Justice Act 2003 see H 4.86; Kane 4.40; Smith (David) 319
Pt 11 see Enright and Gray 327; Renda 279; Smith (David) 321
Pt 11, Ch 1 see Edwards and Rowlands 314; Hong and De 309; Somanathan 290; Renda
and others 276
ss 98–110 see Weir 289
ss 98–112 see Edwards and Rowlands 310; Enright and Gray 310; McLean 310; Smith
(David) 310
ss 98–113 see Bovell 248; Chohan 253; Dowds 248; Duggan 253; Edwards 253; Fysh 253;
Hanson and others 238; Highton and others 266
s 98 see Duggan 259; Edwards and Rowlands 310, 311, 312, 313; Enright and Gray 310,
311; Gleadhall v Huddersfield Magistrates’ Court 2.26, 3.11; Hanson 243; Highton
and others 266, 267; Hong and De 309; Lunkulu 217; Manister 306; McKintosh 217;
McLean 310, 311; Smith (David) 310, 311, 319, 321, 324; Sullivan 217
s 98(a) see Edwards and Rowlands 314; Saleem 2.29; Stewart 2.32
s 98(b) see Duggan 259; Edwards and Rowlands 314; Mahil and others 2.35
s 99 see Somanathan 4.45
s 99(1) see Hong and De 309; Manister 2.23, 306, 307; Somanathan 293, 295, 296

xxxvii
Table of References to Statutes in Cases

s 100 see Akram 277, 282, 283; Bovell 249; Braithwaite 229; Carp 273, 274; Dizaei 3.53,
230; Gleadhall v Huddersfield Magistrates’ Court 3.11; Johnson 229; Miller 3.26,
229; Osbourne 277, 283, 284; Razaq and Razaq 277, 286; Smith (David) 319, 324;
Somanathan 296; Walsh 3.28; Yaxley-Lennon 229, 304
s 100(1) see Bovell 250, 251; Edwards and Rowlands 311; Enright and Gray 311;
McLean 311; Razaq and Razaq 286; Smith (David) 311, 324; Yaxley-Lennon 3.4,
303, 304
s 100(1)(a) see Yaxley-Lennon 302
s 100(1)(b) see Bovell 249, 250; Brewster and another 3.23; Dizaei 3.52; Razaq and
Razaq 286; Yaxley-Lennon 302
s 100(2) see Dizaei 3.52
s 100(3) see Dizaei 3.52
s 101 see Edwards and Rowlands 311, 314; Enright and Gray 311; Fysh 256; Gleadhall
v Huddersfield Magistrates’ Court 3.11; Highton and others 1.60, 266, 268; Manister
306; McAllister 231; McLean 311; Smith (David) 311, 324; Van Nguyen 271
s 101(1) see Ball 281; Chohan 253, 262; Duggan 253; Edwards 253; Enright and Gray
327; Fysh 253; Hanson and others 239; Highton and others 267; Manister 306;
Somanathan 295; Vehicle and Operator Services Agency v Ace Crane and Transport
Ltd 2.31
s 101(1)(a) see Chohan 263; Harper 214; Highton and others 267; Marsh 214
s 101(1)(b) see Campbell 215, 216; Edwards and Rowlands 215, 216, 311; Enright and
Gray 311, 325, 326, 327; Highton and others 215, 267; McLean 311; Smith (David)
311; Speed 216; Tollady 216
s 101(1)(c)–(g) see Renda 5.52, 279
s 101(1)(c) see D, P, U 217; Edwards and Rowlands 311; Enright and Gray 311; Gillespie
217; Lee 218; McKintosh 217; McLean 311; Okokono 218; Smith (David) 311, 319,
321
s 101(1)(d) see A 220; Adenusi 220; Bennabou 219; Blake 220; Brown 219; Burdess 219;
Cambridge 219; Darnley 219; Eastlake 220; Edwards 254; Edwards and Rowlands
311, 312; Enright and Gray 311, 312, 327; Hanson 219, 239, 242; Highton and others
266, 267, 269; McDonald 219; McLean 311, 312, 316, 317, 318, 319; Richardson 219;
Saleem 2.29; Smith (David) 311, 312, 319, 322; Somanathan 291, 292, 293, 294, 295,
296, 297, 298; Van Nguyen 270, 272; Weir 289
s 101(1)(e) see Apabhai 4.110; Daly 222; Edwards and Rowlands 311, 312, 313, 314,
315; Enright and Gray 311; Hong and De 309; L & R 4.110; Lawson 223; McLean
311, 316, 317, 318, 319; Najib 223; Okoh 3.52; Passos-Carr 223; Phillips 222, 223;
Rosata 223; Smith (David) 311; Turnbull 223
s 101(1)(f) see Dowds 252; Edwards and Rowlands 311; Enright and Gray 311; Garrett
226; Hickinbottom 226; McLean 311; Ovba 226; Renda 4.134, 226, 276, 278; Smith
(David) 311; Somanathan 4.135, 291, 292, 293, 294, 297, 298; Verdol 226; Weir and
others 1.60
s 101(1)(g) see Ball 276, 280; Carp 273, 274; Dowds 252; Edwards and Rowlands 311,
312, 313, 314; Enright and Gray 311; Hanson and others 240; Highton and others
228, 266, 267, 269; McLean 311; Nelson 227; Smith (David) 311; Somanathan 291,
292, 293, 294, 298; Weir 290; Williams 228
s 101(3) see Ball 4.156, 281; Carp 274, 275; Chohan 263; Dhooper 5.60; Dowds 252;
Duggan 260; Edwards 4.161, 254; Edwards and Rowlands 311, 312, 313, 314; Enright
and Gray 311; Hanson 5.21, 240, 241; Highton and others 267, 269; Manister 306;
xxxviii
Table of References to Statutes in Cases

McLean 311, 316, 319; Nelson 4.153; P 247; Smith (David) 311, 319, 320, 322, 323,
324; Somanathan 291, 293, 296, 297, 298; Van Nguyen 272; Weir and others 1.60
s 101(4) see Dhooper 5.60; Duggan 260; Edwards and Rowlands 312, 313, 314; Hanson
243; Manister 306; Smith (David) 319, 320, 322
s 102 see Highton and others 266; Manister 306
s 103 see Highton and others 1.60, 266, 268; Manister 306
s 103(1) see Highton and others 239, 266, 267; Manister 306; Smith (David) 319, 322;
Somanathan 295
s 103(1)(a) see Highton and others 266; Ngyuen 4.83; R v S (Stephen Paul) 4.83; Som-
anathan 293; Weir 289
s 103(1)(b) see Belogun 4.99; Campbell 4.99; Edwards 257; Hanson 4.99, 4.115, 242;
Highton and others 266; Somanathan 293, 296
s 103(2) see Duggan 260; Hanson 4.69, 4.70, 239; Highton and others 267; Weir 4.82,
289
s 103(2)(a) see Weir 289
s 103(2)(b) see Weir 289, 290
s 103(3) see Chohan 263; Edwards and Rowlands 311; Enright and Gray 311; Hanson
5.21, 239, 240, 241, 243; Highton and others 267; McLean 311; Smith (David) 311
s 103(4) see Duggan 260
s 103(4)(b) see Weir 289
s 103(6) see Edwards and Rowlands 311; Enright and Gray 311; McLean 311;
Smith (David) 311
s 104 see Highton and others 266
s 104(1) see Daly 4.113; Edwards and Rowlands 311, 312, 315; Enright and Gray 311;
McLean 311, 316, 319; Smith (David) 311
s 105 see Highton and others 266; Renda 4.134
s 105(1) see P 247; Renda 276
s 105(1)(a) see Renda 278
s 105(1)(b) see Renda 278
s 105(2) see Ullah 4.137
s 105(3) see Renda 4.134, 276, 278
s 105(6) see Somanathan 4.135, 293, 297, 298
s 105(7) see Edwards and Rowlands 311; Enright and Gray 311; McLean 311; Smith
(David) 311
s 106 see Ball 281; Edwards and Rowlands 312, 314; Hanson and others 4.146, 240;
Highton and others 266
s 106(1)(c) see Ball 4.156, 276, 281
s 106(1)(c)(i) see P 247
s 106(2)(b) see P 247
s 106(3) see Edwards and Rowlands 311, 314; Enright and Gray 311; McLean 311;
Smith (David) 311
s 107 see Edwards and Rowlands 311; Enright and Gray 311; McLean 311; Renda 5.52,
276, 279; Smith (David) 311
s 107(5) see Renda 5.52, 279
s 109 see Dizaei 212; Edwards and Rowlands 311; Enright and Gray 311; McLean 311;
Mitchell 5.47; Smith (David) 311
s 109(1) see Smith (David) 319, 324

xxxix
Table of References to Statutes in Cases

s 110 see Somanathan 293; Van Nguyen 272

s 110(1) see Osbourne 277, 284
s 112 see Edwards 254; Edwards and Rowlands 311; Enright and Gray 311; Hanson 243;
Highton and others 266; McLean 311, 316, 318; Smith (David) 311
s 112(1) see Hong and De 309; Manister 306; Renda 276
s 112(2) see Chopra 231; Wallace 231
s 114(1)(d) see Steen 4.75, 5.22
s 117 see Hogart 5.17; Humphris 5.20; R (Wellington) v DPP 5.20
Criminal Justice and Public Order Act 1994 see Cowan 1.39
s 35 see Becouarn 1.44; Cowan, 1.48
Criminal Procedure and Investigation Act 1996
Pt II see Bovell 248; Dowds 248
Human Rights Act 1998 see R v Home Secretary, ex parte Brind 1.46
s 3 see Highton and others 1.60, 268
Misuse of Drugs Act 1971
s 28(3) see Van Nguyen 272
Offences Against the Person Act 1861
s 18 see Bovell 250, 251
Police and Criminal Evidence Act 1984
s 73 see Kordasinski 5.16
s 74 see Smith (Derek Nathan) 2.28
s 74(3) see C 213
s 78 see Apabhai 4.117; Chohan 263; Duggan 260; Edwards and Rowlands 311; Enright
and Gray 311; Hanson and others 240; Highton and others 1.60, 267, 268; Manister
2.23, 307; McLean 311; Phillips 4.117; Smith (David) 311, 323, 324; Somanathan 291,
293, 298; Weir and others 1.61
Powers of Criminal Courts (Sentencing) Act 2000
s 143 see Edwards 253
Prevention of Crime Act 1953
s 1(2) see Bovell 248
Protection of Children Act 1978
s 1 see Weir 289, 290
Public Order Act 1986
s 2(1) see Hong and De 308
Public Order Act 2003
s 5 see Duggan 259
Rehabilitation of Offenders Act 1974 see P 247
Sexual Offences Act 1956
s 6(1) see Manister 306
s 14(1) see Manister 304
s 37(2) see Manister 306
Sch 2, para 10(a) see Manister 306
Sexual Offences Act 2003
Pt 2 see Weir 288
s 7 see Weir 288, 289, 290
Youth Justice and Criminal Evidence Act 1999
s 41 see Ball 281; T and H 3.38; V 3.37

xl
1
Introduction

1.1 In English law, the defendant’s character, whether good or bad, has always
been considered relevant to sentence, insofar as the court had a discretion as to the
sentence to impose.1 It therefore goes without saying that evidence of the defend-
ant’s bad character has always been admissible in evidence at the sentencing stage.
Indeed, in the past the legal system has taken considerable trouble to ensure that
the sentencing court is made aware of the criminal record of the defendant, if
he had one: for several centuries, first-time offenders convicted of theft or man-
slaughter were branded on the thumb, in order to make absolutely sure that they
would be sentenced with the full rigour of the law if they appeared in court again.2

1.2 By contrast, the courts were traditionally reluctant to treat the defendant’s bad
character as admissible evidence at the earlier stage of the proceedings at which his
guilt or innocence is determined. Until the Criminal Justice Act (CJA) 2003, the
position at trial was that a defendant with a clean record could adduce his good
character as evidence in the hope of persuading the court that he was less likely to
have committed the offence charged, or more credible in his evidence, or both;3
but a defendant whose character was bad could not in general have this used in
evidence against him at the trial.

1.3 In the past, the rule excluding evidence of the defendant’s general bad
character and disposition to commit the offence as evidence at trial was some-
times described as one of the most hallowed rules of evidence. In Maxwell v DPP
Lord Sankey described it as ‘one of the most deeply rooted and jealously guarded
principles of our criminal law’,4 and its invention was traditionally ascribed to the
common lawyer’s inherent sense of decency and fair play.5

1 Although views have differed sharply over the years as to how much weight the sentencing court

ought to give to it. For a review, see AJ Ashworth, Sentencing and Criminal Justice, 6th edn (Cambridge,
CUP, 2015) ch 6; and Mike Redmayne, Character in the Criminal Trial (Oxford, OUP, 2015) chs 10 and 12.
2 JH Baker, An Introduction to English Legal History, 4th edn (London, Butterworths, 2002) 515.
3 Vye [1993] 1 WLR 471; Aziz [1996] AC 41; and see further §5.67–§5.70 below.
4 Maxwell v DPP [1934] AC 309, 317.
5 ‘This policy of the Anglo-Norman law is more or less due to the inborn sporting instinct of Anglo-

Normandom—the instinct of giving the game fair play even at the expense of efficiency of procedure.’
JH Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd edn
(Boston, Little, Brown & Co, 1940) §57.

1
1.4–1.6 Evidence of Bad Character

1.4 In reality, however, the common law rule was not particularly ancient,6 as it
only dated from the middle of the nineteenth century. And although the common
lawyer’s inherent sense of fair play was undoubtedly one of the reasons for its
creation, it was only one of them. Reasons that reflect less credit on the common
law were the absence in those days of any rules about pre-trial disclosure, which
meant that such evidence, if admitted, would have been particularly difficult to
challenge, and the limited time available for trials, which made the judges particu-
larly reluctant to devote any of it to matters not directly relevant.7

1.5 In the closing years of the twentieth century the rule excluding evidence of
bad character was increasingly attacked. On technical grounds, the body of law
surrounding it was criticised as over-complicated and inconsistent, and more rad-
ical critics condemned it as unduly favourable to the guilty. It was in response to
this that it was completely recast in Part 11 of the CJA 2003.

Technical Criticisms of the Previous Law

1.6 In broad outline, the basic rule was not difficult to state. The classic formula-
tion was made by Lord Herschell in Makin v Attorney-General for New South Wales:8
It is undoubtedly not competent for the prosecution to adduce evidence tending to show
that the accused has been guilty of criminal acts other than those covered by the indict-
ment, for the purpose of leading to the conclusion that the accused is a person likely from
his criminal conduct or character to have committed the offence for which he is being
tried. On the other hand, the mere fact that the evidence adduced tends to show the com-
mission of other crimes does not render it inadmissible if it be relevant to an issue before
the jury, and it may be so relevant if it bears upon the question whether the acts alleged
to constitute the crime charged in the indictment were designed or accidental, or to rebut
a defence which would otherwise be open to the accused.
But, as Lord Herschell admitted, if the principles themselves are clear ‘the applica-
tion of them is by no means free from difficulty’. Around the basic rule, a large body
of detailed law grew up. This evolved as three separate groups of rules, governing
three situations: the defendant’s bad character as evidence in-chief, the defendant’s
bad character as a topic of cross-examination, and the defendant’s bad character as

6 It dates from the mid-19th century; see J Stone, ‘The Rule of Exclusion of Similar Fact Evidence:

England’ (1933) 46 Harvard Law Review 954. An early case was Cole (unreported 1810): see Russell on
Crime, 12th edn (London, Stevens, 1964) 737.
7 I explored this issue in an article entitled ‘The Rise and Fall of the Bad Character Evidence Rule

in English Law’, in A Horovitz and M Kremnitzer (eds), Current Trends in Criminal Procedure and
Evidence: A Collection of Essays in Honor of Prof Eliahu Harnon (Jerusalem, Sacher Institute, 2010).
8 Makin v Attorney-General for New South Wales [1894] AC 57, 65. The case was a cause célèbre. For

a gripping account, see Annie Cossins, The Baby-farmers: A Chilling Tale of Missing Babies, Shameful
Secrets and Murder in 19th Century Australia (Sydney, Allen & Unwin, 2013).

2
Introduction 1.7–1.9

evidence for a co-defendant. One criticism of the resulting body of law was that, in
each group, the principle was interpreted in different ways. Writing retrospectively
in 2015, Professor Mike Remayne concludes: ‘In my view, the lessons to be drawn
from the pre-2003 case-law are largely negative: this is not the way to do things.’9

1.7 Another technical criticism was the gulf between the rules governing
evidence of the defendant’s character and disposition, and the rules on evidence
of the c haracter and disposition of other people (and in particular, prosecution
witnesses). For defendants, the rule was that they could produce evidence of their
good character if they had one, but their bad character could not generally be used
against them. For witnesses, the position was the reverse: a witness was liable to
have his discreditable past brought up against him to undermine his credibility,
but his good character could not generally be used to enhance it.10 A related criti-
cism centred upon what frequently happened in sex cases. Although the defend-
ant’s record for sexual misbehaviour (if he had one) was usually suppressed, at
common law the defence could use the complainant’s irregular sex-life in an
attempt to discredit her or her complaint. This led to legislative intervention in
1976 and again in 1999.11

Radical Criticism

1.8 The rule was also criticised more radically as counter-intuitive and unduly
favourable to the guilty. The radical critics argued that it is not unfair to assume
that a person with a demonstrably bad character is more likely to be guilty of the
offence charged than a person whose character is demonstrably good. So this is a
piece of background information which the tribunal of fact should know—and
should be trusted to give the appropriate degree of weight.

1.9 The rule was also said to be unrealistic. In practice, the jury or magistrates
sometimes know that the defendant has a criminal record, and where they do not
know, may guess (and possibly guess wrong). The point was well illustrated by a
letter from a former juror to The Times some years ago:
I see that after a recent trial at the Old Bailey … some jurors burst into tears, when
having acquitted a defendant of murder they were told that he had previous convictions.

9 Redmayne (n 1). In chapter 5 of this book the pre-2003 rules are analysed in depth and their

deficiencies convincingly exposed.

10 The law on this point is complex—and distinctly odd. Where the character of a witness is

attacked, he can be ‘rehabilitated’ by evidence of his general reputation for veracity, but not by concrete
evidence of his truthful behaviour; see Beard [1998] Crim LR 585: a position which at present still
represents the law, though s 100 of the CJA now reduces the scope for gratuitous attack. It was recently
criticised by Richard Buxton, ‘Victims as Witnesses in Trials of Sexual Offences: Towards Equality of
Arms’ [2015] Crim LR 679.
11 Sexual Offences Act 1976 s 2; Youth Justice and Criminal Evidence Act 1999 s 41.

3
1.10–1.11 Evidence of Bad Character

I would have thought that it was very easy to know whether a defendant had a murky past,
although the jury is not supposed to take this into consideration in their deliberations.
It is my experience, having sat on several juries, that if the defendant has a clean past
record the defending counsel will make a big thing of this, and even if the defendant has
pleaded guilty, counsel will say that the present position of the defendant is due to a tem-
porary lapse of honesty. If, however, the defendant has a bad record, defending counsel
keeps very quiet on this point. My experience resulted in only a small sample, but it
seemed to work every time.12
Because of this, it would be better, some said, if the matter were brought out into
the open and the fact-finders were given official information about the defendant’s
antecedents which is accurate.13

1.10 Radical critics also pointed out that in continental Europe, including in
countries where as here the system is broadly ‘adversarial’, and those where lay
people are involved as fact-finders, the court is routinely informed about the
defendant’s criminal record. In theory, continental courts regard evidence about
the defendant’s character as mainly relevant to sentence, and hear his antecedents
at the start of the proceedings because—unlike in England—the finding of guilt
and the sentencing take place at one single session, at which evidence relevant to
guilt or innocence and evidence relevant to sentence are heard together. But what-
ever the theoretical position may be, in practice continental courts are undoubt-
edly influenced by information about the defendant’s character when deciding
the issue of his guilt, at least to some extent. And this is not generally criticised as
tending to produce injustice.

1.11 Radical criticism of the exclusionary rule was accentuated by various high-
profile cases where, following a defendant’s acquittal, he was shown to have a record
that appeared to put his guilt beyond doubt. One such case was that of Simon
Berkowitz, who in 1992 was accused of burgling the offices of Paddy Ashdown’s
solicitor and stealing papers relating to an embarrassing incident in Mr Ashdown’s
private life, which he had then tried to sell to the News of the World for £30,000.
His defence was that he had been given them, for nothing, by a man he had met in
a pub, whose identity he did not know, and the jury acquitted him. It then came
out that he had a record of 240 previous convictions, 230 of them for burglary.14
A similar reaction was provoked by the case of William Beggs. In 1987, Beggs was

12 The Times (London 17 March 1986).

13 A point eloquently made by Penny Darbyshire, ‘Previous Misconduct and Magistrates’ Courts:
Some Tales from the Real World’ [1997] Crim LR 105. The psychology of this is disputed: see Sally
Lloyd-Bostock, ‘The Effect on Lay Magistrates of Hearing that the Defendant is of Good Character,
Being Left to Speculate, or Hearing that He has a Previous Conviction’ [2006] Crim LR 189. However,
Redmayne cites research suggesting that juries tend to assume that defendants have criminal records
unless they are otherwise informed (n 1, 58).
14 The Times (London 5–13 August 1992).

4
Introduction 1.12–1.13

convicted of murdering a man by slashing him with a razor-blade, the court hear-
ing evidence of several earlier incidents in which he had apparently cut men for no
intelligible reason. In 1990, the Court of Appeal quashed his conviction, because
evidence of the other incidents should not have been admitted.15 Then in 2001
he was convicted of another and particularly gruesome murder. The detective
responsible for his arrest in 1987 told the BBC that when his earlier c onviction
was quashed he was ‘quite aghast at what had happened’.16

1.12 Looking back on the old law retrospectively, Redmayne mentions less high-
profile cases in which there can be equally little doubt that exclusionary rule led to
wrongful acquittals.17

The Law Commission’s Proposals

1.13 In 1994, the Home Secretary referred the rules on evidence of previous mis-
conduct to the Law Commission, which produced a lengthy Consultation Paper in
1996,18 followed in 2001 by a Report.19 The Law Commission accepted the techni-
cal criticisms of the exclusionary rule, but rejected the radical criticism. In this,
the Law Commission was influenced by experimental work carried out by Dr Sally
Lloyd-Bostock, suggesting that fact-finders are more likely to convict where they
know that the defendant has a criminal record.20 From this the Law Commission
deduced that bad character evidence is potentially ‘prejudicial’, and a broad exclu-
sionary rule is necessary to keep most of it out. However, they were in no doubt
that the rules as they then stood were untidy, and put forward a scheme to codify
and amend them. Their proposals were designed to rationalise the current rules,
and not to make character evidence more readily admissible. As they explained:
We are unable to say whether, if our scheme were carried into effect, more or less bad
character evidence would be presented to fact-finders. … Our inability to make such
a prediction does not trouble us because … we have not started from a position that
the admittance of more or less bad character evidence should be the outcome of our

15 (1990) 90 CrAppR 430.

16 BBC News, 12 October 2001.
17 Redmayne (n 1) 110.
18 Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (Law Commission Con-

sultation Paper no 141, 1996). For academic comment, see Paul Roberts, ‘All the Usual Suspects: a
Critical Appraisal of the Law Commission Consultation Paper No 141’ [1997] Crim LR 75; Jenny
McEwan, ‘Law Commission Dodges the Nettles in Consultation Paper No 141’ [1997] Crim LR 93, and
Darbyshire, n 13 above.
19 Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5257, October 2001).

See Jenny McEwan, ‘Previous Misconduct at the Crossroads: Which Way Ahead?’ [2002] Crim LR 180.
20 For the first study, see Sally Lloyd-Bostock, ‘The Effects on Juries of Hearing about the Defend-

ant’s Previous Criminal Record: A Simulation Study’ [2000] Crim LR 734; for the second study, on
magistrates, see App A of the Law Commission Report (n 18).

5
1.14–1.17 Evidence of Bad Character

r ecommendations. We have sought, rather, to construct a consistent and balanced pro-

cess under which the conflicting interests of the various parties may best be advanced
and protected, and the fairness of criminal trials generally enhanced.21
1.14 To govern the use of bad character evidence by the prosecution, the Law
Commission proposed a single rule, applicable to both evidence in-chief and
evidence elicited from the defendant in cross-examination. Where such evidence
‘had to do with the alleged facts of the offence,’ or was ‘misconduct in connec-
tion with the investigation or prosecution of that offence’, it should be admis-
sible automatically. But in other cases, the prosecution should only be allowed
to adduce such evidence by leave, and this should only be given where one of a
number of ‘gateway’ conditions applies: (i) it is background information with-
out which the court would find it difficult or impossible to understand the case;
(ii) it has ‘substantial probative value’ in respect of a matter in issue in the pro-
ceedings; (iii) it relates to the defendant’s credibility, in a case where the defendant
has defended himself by attacking another person’s credibility, or (iv) it is given to
‘correct a false impression’ that the defendant has created.

1.15 The Law Commission also made two recommendations to strengthen the
position of the defence when faced with evidence of bad character. First, it pro-
posed a restriction on the joinder of counts for different offences that are broadly
similar, but not similar enough to make the evidence ‘cross-admissible’.22 Secondly,
it proposed a new duty on the court to stop the trial where the case consists of
‘similar fact’ evidence arising from a number of different incidents, and it appears
that the evidence may be ‘contaminated’, ie the result of fabrication or suggestion.

1.16 As regards evidence of the defendant’s bad character when adduced in his
defence by a co-defendant, the Law Commission also proposed a requirement of
judicial leave, to be granted only where a number of conditions are met. And it
proposed a similar leave requirement where any of the parties proposes to adduce
evidence of the bad character of a person other than the defendant: whether a
witness, or any other person who had allegedly been involved in the events.

1.17 In his Review of the Criminal Courts,23 which appeared shortly before the
Law Commission Report, Lord Justice Auld acknowledged his own ‘long held
resistance’ to putting a defendant’s previous convictions in evidence, but expressed
the view that ‘there is much to be said for a more radical view than has so far found
favour with the Law Commission, for placing more trust in the fact finders and for
introducing some reality in this complex corner of the law’. But, he stressed, in his

21 Law Commission Report (n 18) §§1.10 and 1.11.

22 As in Ludlow v Metropolitan Police Commissioner [1971] AC 29.
23 R Auld, Review of the Criminal Courts of England and Wales (London, The Stationery Office,

2001).

6
Introduction 1.18–1.20

view a review of the law relating to bad character evidence ought properly to take
place in the context of ‘a wider review of the law of criminal evidence as a whole.’24

The Government’s Response: The New Law

1.18 After hinting in two White Papers that it also favoured a more radical
reform,25 in November 2002 the government introduced a Criminal Justice Bill
containing clauses about character evidence that were based in part on the Law
Commission’s proposals, but had been significantly ‘bent’ to make evidence of the
defendant’s bad character more readily admissible.

1.19 This was done in part by dropping, as regards evidence of the defendant’s
bad character, the Law Commission’s main proposed safeguard: namely, the
requirement of judicial leave. The leave requirement was to be retained to con-
trol the admission of evidence of bad character of ‘non-defendants’—but not the
admission of such evidence against the defendant (whether by the prosecution or
a co-defendant).

1.20 Like the Law Commission, the government proposed to make evidence of
the defendant’s misbehaviour automatically admissible if it was closely connected
with the facts of the alleged offence, or took place during the investigation or pros-
ecution. Evidence of the defendant’s ‘bad character’ that fell outside this definition
would be admissible against him, without any need for judicial leave, where it
came within a number of specified ‘gateways’. Some of these were similar to those
contained in the Law Commission’s scheme, but had been enlarged by the removal
of qualifying words and phrases. And there was an extra ‘gateway’ of potentially
enormous breadth: where the material ‘is evidence of the defendant’s conviction
for an offence of the same description, or of the same category, as the one with
which he is charged’.26 This extra ‘gateway’ was criticised in Parliament, and the
Bill was eventually amended so as to block it up. But in the course of the recon-
struction, one of the other ‘gateways’ was enlarged, with a view to letting through
some of the evidence that the government had hoped would get in through the
‘gateway’ that Parliament removed.27

24 ibid, ch 11, §120.

25 ‘Complex, sometimes archaic and ambiguous laws give rise to legal arguments over the admis-
sibility or otherwise of evidence which slow down the process of criminal trials. Reform should have
the aim of ensuring that in deciding cases, courts have access to all relevant information’: Criminal
Justice, The Way Ahead (Cm 5074, February 2001). In Justice for All (Cm 5563, July 2002) the govern-
ment announced its intention to ‘overhaul the rules of evidence to ensure the widest possible range of
relevant material is available for a judgment. This includes making information available to judges and
juries on previous convictions and misconduct where it is relevant and put in context.’
26 Clause 84(1)(d) in the Bill.
27 For further details, see §4.24–§4.25 below.

7
1.21–1.22 Evidence of Bad Character

Scheme in Part 11 of the Criminal Justice Act 2003

1.21 In broad outline, the ‘character evidence’ provisions that were eventually
enacted are as follows:
(i) ‘Evidence of bad character’ is defined so as to exclude evidence directly con-
nected with the offence with which the defendant is charged, plus any misbe-
haviour during the course of the investigation or prosecution (section 98).
(ii) The common law rules governing ‘the admissibility of evidence of bad char-
acter in criminal proceedings’ are abolished (section 99), and so are the
rules contained in the Criminal Evidence Act 1898 about cross-examining
defendants as to character (Schedule 37, Part 5).
(iii) Evidence of the bad character of a person other than the defendant is admis-
sible only with judicial leave, to be granted only on certain stated grounds
(section 100).
(iv) Evidence of the defendant’s bad character is admissible if any of the f ollowing
‘gateways’ is open, but not otherwise (section 101(1)):
(a) all parties to the proceedings agree to the evidence being admissible;
(b) 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;
(c) it is important explanatory evidence;
(d) it is relevant to an important matter in issue between the defendant
and the prosecution;
(e) it has substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant;
(f) it is evidence to correct a false impression given by the defendant; or
(g) the defendant has made an attack on another person’s character.
The meaning of five of these ‘gateways’ is elaborated in sections 102 to 106. Judicial
leave is not required: but where ‘gateway’ (d) or (g) is involved, the court is given
an explicit power to exclude (section 101(3)).

1.22 Adopting the Law Commission’s proposal (see §1.15 above), the Act imposes
a duty on the court to stop the trial where the evidence of bad character ‘is
contaminated’ (section 107). But the Act did not implement the Law Commis-
sion’s recommendation about limiting the joinder of counts for different offences
that are broadly similar, although not similar enough to make the evidence
‘cross-admissible’.28 Nor did it carry out the Law Commission’s proposal to repeal
section 27 of the Theft Act 1968, which makes evidence of previous misconduct

28 Ludlow v MPC [1971] AC 29; in Powell [2014] EWCA Crim 642, [2014] 1 WLR 2757 the Court of

Appeal confirmed that Ludlow remains good law after the CJA 2003.

8
Introduction 1.23–1.25

widely admissible in prosecutions for handling stolen goods; so this remains in

force, as do some other similar provisions.29

Scope of the Reform

1.23 By section 99(1), ‘The common law rules governing the admissibility of
evidence of bad character in criminal proceedings are abolished.’ The abolition
is limited to the rules relating to bad character, and therefore leaves intact the
common law rules about the admissibility of evidence of good character, and the
weight to be accorded to it: a topic which further discussed in Chapter 5.30 And
insofar as this provision abolishes the existing rules on evidence of bad c haracter,
it only applies to those relating to ‘bad character’ as restrictively defined in
section 98 (see Chapter 2 below).

1.24 Although mainly applicable to contested cases where defendants have

entered ‘not guilty’ pleas, the Court of Appeal has ruled that the reformed law also
applies in proceedings where, following a finding of unfit to plead, the court holds
a ‘trial of the facts’.31

Is the Readier Admissibility of Evidence of the Defendant’s

Bad Character Inherently Unfair?

1.25 There is a school of thought that admitting evidence of the defendant’s bad
character in a criminal case is inherently dangerous, because it carries with it an
unacceptable risk of convicting the innocent. This assumption lay behind the vocal
opposition to the new provisions when the Criminal Justice Bill was in Parliament,
and it underlay much of the comment about them that appeared in both the legal
and the general press when they were first enacted, most of which was hostile.
According to this view, the old strict rules that generally excluded such evidence
were right, and the attempt in the CJA 2003 to make it more widely admissible
was an evil to be resisted. It followed that the courts should be encouraged, so far

29 eg s 1(2) of the Official Secrets Act 1911: see Roderick Munday, ‘What Constitutes “Other

eprehensible Behaviour” under the Bad Character Provisions of the Criminal Justice Act 2003?’
R
[2005] Crim LR 24.
30 A commentator (Colin Tapper, ‘The Criminal Justice Act 2003: Evidence of Bad Character’ [2004]

Crim LR 533) also pointed out that s 99 abolishes the common rules on the admissibility of evidence
of bad character, but not their inadmissibility—so seemingly making it possible to argue that the com-
mon law exclusionary rules qualify the apparent admissibility of such evidence under the provisions
of the Act. More plausibly, he added that s 99 does not abolish the common law rules—such as they
are—about the weight to be given to evidence of misconduct.
31 Creed [2011] EWCA Crim 144; Masud (decided with Wells [2015] EWCA Crim 2, [2015] 1 WLR

2797, [2015] CrimLR 359).

9
1.26–1.27 Evidence of Bad Character

as possible, to interpret the new law in such a way as to produce the same results
as the old.

1.26 The traditional argument32 against admitting evidence of the defendant’s

bad character is as follows. Where a court knows that the defendant has a crimi-
nal record, or is otherwise of bad character, this makes it significantly more likely
to convict him; therefore, such evidence is prejudicial; therefore, it should not
normally be admitted. This reasoning is simplistic. In general, evidence is not
excluded as ‘prejudicial’ merely because it makes the court more inclined to con-
vict: if this were so, the prosecution would not be permitted to call any evidence
at all! The real question is not whether the evidence is ‘prejudicial,’ but whether
it is unfairly so. Evidence is unfairly prejudicial only (i) where it has the power to
influence the court to convict although it is not logically relevant to the defend-
ant’s guilt at all, or (ii) where it has some slender logical relevance to the defend-
ant’s guilt but its power to persuade the court to convict is out of all proportion.33

1.27 Evidence of bad character—which usually means evidence that the defend-
ant has a criminal record—is not unfairly prejudicial in sense (i), because if a per-
son is of bad character, it is reasonable to assume that he is more likely to break the
law than a person whose character is good. As a behavioural scientist once put it,
‘Nothing predicts behaviour like behaviour.’34 This is, of course, one of the reasons
why in criminal proceedings defendants whose records are clean are permitted to
call evidence of good character. It also explains why in civil proceedings a person’s
‘track-record’ may be taken into account in deciding whether he has committed
the misconduct of which he is currently accused,35 or is likely to misconduct him-
self in future.36 And it was also recognised by the judges even in some criminal
cases decided under the earlier law: as Lord Steyn said in Randall:
It is difficult to support a proposition that evidence of propensity can never be relevant
to the issues. Postulate a joint trial involving two accused arising from an assault com-
mitted in a pub. The one man has a long list of previous convictions involving assaults
in pubs. It shows him to be prone to fighting when he had consumed alcohol. The other

32 Ingenious legal philosophers have invented others—some of which seem exceedingly far-fetched.

For an exposition and a sceptical analysis, see Redmayne (n 1) 41–45 and ch 4.

33 The term used by the Law Commission to describe this phenomenon is ‘moral prejudice’: see

their Working Paper, LC Consultation Paper no 141, at §7.2; and Dennis (n 99) §§18.7–18.8.
34 WC Kvaraceus, Anxious Youth: Dynamics of Delinquency (Columbus, OH, Merrill Books, 1966).
35 See O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534, where in an

action against the police for misfeasance in office and malicious prosecution, the claimant was entitled
to call evidence suggesting that the officer of whose misbehaviour he complained had acted similarly
towards other suspects in the past. (As readers will recall, evidence of the claimant’s previous arrogant
behaviour towards subordinates also featured prominently in Mitchell v News Group—the ‘Plebgate’
libel trial, which received extensive media coverage in November 2014.)
36 For example, when deciding in proceedings relating to children whether to allow a particular

person to have contact with a child would involve an unacceptable degree of risk: eg In Re P (A Minor)
(Wardship) [1987] 2 FLR 467.

10
Introduction 1.28

man has an unblemished record. Relying on experience and common sense one may
rhetorically ask why the propensity to violence of one man should not be deployed by the
other man as part of his defence that he did not commit the assault.37
If psychological studies make it clear beyond doubt that courts are more likely to
convict defendants where they know that they have criminal records, the Criminal
Statistics make it equally clear that people with criminal records are more likely
to commit criminal offences; and the second of these propositions does much to
explain the first. Broadly speaking, the Criminal Statistics suggest that those who
have criminal records are, in general, more likely to commit criminal offences than
those who do not—and those with long criminal records are very much more
likely, as too are those whose previous convictions are recent.38 Taken on its own,
the fact that a defendant is of bad character will rarely39 be anything more than
a piece of inconclusive circumstantial evidence—but it is wrong to regard it as
completely irrelevant.

1.28 Is bad character evidence unfairly prejudicial in sense (ii)? The Law
Commission assumed that fact-finders were bound to give it disproportionate
weight. A body of psychological research shows beyond any doubt at all that where
the fact-finder is aware that the defendant has convictions, or is of bad character,
this increases his willingness to convict. But to show that fact-finders are influ-
enced by such evidence is not the same as showing that they are influenced by it
disproportionately: that is to say, that they treat it as increasing the probability of
the defendant having committed the offence more than it actually does. A study
by Redmayne in 2002 related the psychological evidence on the impact of such
evidence on fact-finders to the criminological evidence about the comparative
offending rates of those who do and do not have criminal records. Redmayne con-
cluded that there is no basis for the assumption that the Law Commission made.40
The point is made again in his Character in the Criminal Trial, where he concludes
that
The experimental studies provide little evidence that bad character evidence is [unfairly]
prejudicial. Where previous convictions for a similar crime do affect ratings of guilt
and verdicts, the impact is generally moderate and not out of line with the—often
considerable—probativevalue of criminal record.41

37 Randall [2004] UKHL 69, [2004] 1 WLR 56, [22].

38 Mike Redmayne, ‘The Relevance of Bad Character’ [2002] Cambridge Law Journal 684. After
examining a range of statistics, including those on reconviction rates, he says, ‘Taken at face value,
these figures imply that recent same-crime previous convictions have considerable probative value.
The burglary figure, for example, suggests that a person with a previous conviction for burglary is 125
times more likely to commit a burglary than a person without such a previous conviction’ (!).
39 Though not invariably: in some unusual cases, like Straffen [1952] 2 QB 911 it will be virtually

conclusive.
40 Redmayne (n 1).
41 Redmayne (n 1) 60.

11
1.29–1.32 Evidence of Bad Character

1.29 The real difficulty with bad character evidence, I believe, is not so much the
risk that it will inflame the fact-finder, but that it is a form of evidence that is typi-
cally weak; and like other forms of weak evidence, it presents a danger where the
court is invited to convict on this and little else—as in the case of Oscar Slater, dis-
cussed in §1.67 below. From this it follows, I believe, that a key factor in determin-
ing whether it is fair to admit evidence of bad character should be the strength of
the rest of the evidence. It cannot be a substitute for ‘hard evidence’ that implicates
the defendant more directly—and it should not be admitted to strengthen a case
in which the other evidence is slender.42 On the other hand, I believe there is no
unfairness involved in admitting this sort of evidence where the other evidence is
strong, and in particular where it may clinch the case.

1.30 Thus, if D is prosecuted for indecently assaulting P in a park, and the entire
prosecution evidence is P’s testimony that she was assaulted in the dark by a man
she is unable to identify and the fact that D was somewhere in the area at the
time, it would be risky to admit the fact that D has a criminal record—or even a
record of indecent assault. On the other hand, if a man is prosecuted for indecent
offences against boys, and it is proved that he had picked them up at a public lava-
tory and invited them back to his flat for the night, and that one of them had there
slept with him in his bed, it seems neither risky nor unjust to admit evidence of
his record for similar offences, if he claims in his defence that nothing untoward
took place.43

1.31 Similarly, to take the facts of two cases decided under the 2003 provisions,
if a defendant is charged with a robbery, to which he is linked by the discovery
of his DNA on the stocking mask one of the robbers dropped in flight, and he
explains the presence of his DNA on it by saying that he might have used the
stocking for polishing a car, and having spat on it when doing so, then left it lying
around where the robber later found it and picked it up, it does not seem unjust
to allow the court to hear that he has a previous conviction for robbery;44 and
when a man is accused of indecently assaulting a 10-year-old girl, and he admits
the opportunity and also giving money to her afterwards, but denies that anything
untoward took place, it does not seem unjust to admit evidence that, not long
before, he was cautioned for taking an indecent photograph of a child.45

1.32 The sense that there is no real unfairness in admitting evidence of the
defendant’s bad character in cases where there is a substantial body of other

42 At any rate, where the ‘bad character evidence’ merely establishes a general propensity to commit

this type of offence. If in some way it is more directly relevant—as in eg Straffen [1952] 2 QB 911, for
example (see §1.72 below)—then there is no reason for treating it as ‘second-class evidence’.
43 King [1967] 2 QB 338.
44 Bradley [2005] EWCA Crim 20, [2005] 1 CrAppR 24 (397).
45 Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below.

12
Introduction 1.33–1.35

c redible e vidence is probably the unspoken thought that lies behind the pre-Act
case law in which courts repeatedly said that bad character evidence is admissible
when it is ‘relevant to an issue before the jury’ or when it ‘rebuts a defence’. Cases
in which this is so are, by definition, cases in which there is a substantial body of
other evidence.46

1.33 On the other hand, this approach to the matter is contradicted by a different
line taken by some courts in the past, which indicated that bad character evidence
should be kept out if the other evidence is strong, but that it is permissible to
make use of it where the other evidence is weak:47 a line of reasoning that, surely,
is deeply flawed and dangerous, and should not be followed.

1.34 Because evidence of bad character tends to be inherently weak, it is not only
important that judges should exercise their discretion to exclude it in cases where
there is not a solid body of evidence that is more compelling. It is also important
that, where it is admitted, prosecutors avoid trying to make too much of it. And
it is also important that, where necessary, judges give juries appropriate warnings
against treating it as stronger than it is. But subject to those qualifications, there
is nothing fundamentally unfair about allowing the tribunal of fact to know the
character of the person whose guilt or innocence is in issue. As Baroness Hale put
it in DS v HM Advocate:48
There is nothing intrinsically unfair in a court hearing evidence of an accused person’s
character and conduct, provided that it is relevant to something which the court has to
decide. Our historic reluctance to trust the jury with this information arises from the
fear that they may give it more weight than it deserves or regard it as proving that which
it does not prove. The answer to that does not have to be to withhold it from them; they
can be given clear and careful directions about how to use it.

Is the Readier Admissibility of the Evidence of the

Defendant’s Bad Character Compatible with
the European Convention on Human Rights?

1.35 In this author’s view it is clearly so. However, it is possible that Convention
arguments could be used to support applications for evidence of bad character to
be excluded. In their weaker form, these arguments would invite the court, where
it has a power or duty to exclude the evidence, to use it. In their stronger form,

46 On this, see DW Elliott, ‘Young Person’s Guide to Similar Fact Evidence’ [1983] Crim LR 284.
47 eg Britzman [1983] 1 WLR 350, 355: ‘Finally, there is no need for the prosecution to rely upon
section 1(f)(ii) if the evidence against a defendant is overwhelming.’
48 DS v HM Advocate [2007] UKPC 36; [2007] HRLR 28, [94], discussed in §1.44 below.

13
1.36–1.39 Evidence of Bad Character

they might even invite the court to ‘read down’ some of the provisions of the Act—
in other words, invite the court to read them in some less-than-natural sense, in
order to exclude evidence apparently admissible under the Act. The Convention
arguments most likely to be heard are the following.

1.36 ‘Admitting evidence of the defendant’s bad character is by definition incom-

patible with his right to a fair trial under Article 6 ECHR.’

1.37 This argument was examined by the Law Commission, which was gener-
ally opposed to the use of bad character evidence against defendants, and it con-
cluded that it was unobjectionable on this ground. The Strasbourg case law, it said,
contains no suggestion that admitting evidence of the defendant’s bad character
is contrary to the notion of a fair trial and, if anything, points in the opposite
direction. In one case, the Strasbourg Commission said that, since so many
Contracting States provide for the disclosure of previous convictions in their
criminal procedure, it was not prepared to hold that such a procedure involved a
breach of Article 6.49

1.38 ‘Admitting evidence of the defendant’s bad character reverses the burden
of proof, and is therefore incompatible with Article 6(2), which provides that
“Everyone charged with a criminal offence shall be presumed innocent until
proved guilty”.’

1.39 This argument was one of many used against the character evidence provi-
sions when the Bill was before Parliament:50 but it is misconceived. The burden
of proof is reversed when the defendant is given the task of proving his inno-
cence and the prosecution, not the defendant, has the benefit of the doubt. Clearly
the bad character provisions of the Act do not have this effect. They make evi-
dence admissible against some defendants which was inadmissible before, and to
that extent make it easier for the prosecution to discharge the burden of proving
the defendant’s guilt. But this is not at all the same as requiring the defendant
to prove his innocence.51 (If this argument were valid, it would be impossible to
change the existing rules of evidence in any way at all, except to make them more
favourable to the defence.)

49 X v Denmark, Yearbook (1965) vol 8, 370, quoted in Law Commission Report (n 18) §§3.7 and 3.8.

The Law Commission also said that ‘it is clear from the recital of facts that previous convictions have
been before the court, and indeed have influenced the judgment’—as in Unterpertinger v Austria
(1991) 13 EHRR 175 and in Kostovski v Netherlands (1990) 12 EHRR 434. In De Vos [2006] EWCA
Crim 1688 Hughes LJ criticised a trial judge for excluding telling evidence of the defendant’s previous
convictions on this ground.
50 By Lord Kingsland, Hansard, HL, vol 654 col 729 (4 November 2003), who said the legislation was

‘profoundly pernicious, and makes a mockery of the presumption of innocence’.

51 See the Court of Appeal’s answer to the same argument when raised against the provisions of the

Criminal Justice and Public Order Act (CJPOA) 1994 attenuating the right of silence: Cowan [1996]
QBD 373, at 379.

14
Introduction 1.40–1.44

1.40 ‘An element in the concept of “fair trial” in Article 6 of the Convention is
“equality of arms”. Part 11 of the CJA 2003 is incompatible with this, because it
makes evidence of the defendant’s bad character admissible without judicial leave,
whereas if the prosecution witnesses have bad characters, the defendant needs
judicial leave to bring this out. So, to preserve the defendant’s right to a fair trial,
Part 11 of the Act must be “read down” so that evidence of the defendant’s bad
character is admissible only where judicial leave is granted.’

1.41 This ‘imbalance’ argument was raised by the Joint Committee on Human
Rights when the Criminal Justice Bill was before Parliament. In reply, the Minister
explained that the imbalance is not what it seems, because the defendant—unlike a
witness—has a right to object to the admission of evidence. The Joint Committee
was content to accept this explanation and withdrew its objection.52

1.42 ‘An element in the defendant’s right to a fair trial under Article 6 is his right
to defend himself effectively. The CJA 2003 scheme—like the previous law—
containsa rule that if a defendant attacks the character of another person, his own
bad character can be revealed.53 This undermines his right to defend himself, and
hence is incompatible with Article 6. In the light of this, evidence of the defend-
ant’s bad character should not be admitted in this situation, irrespective of what
the CJA 2003 apparently provides.’

1.43 This argument was examined by the Law Commission and found w anting.
As it explained, ‘One cannot get away from the [Strasbourg] jurisprudence support-
ing the fairness of reliance on previous convictions at trial. Although a defendant
in the position described is, in a sense, being “forced” to distort the defence, he or
she is only doing so to avoid a consequence that the Strasbourg court would not
regard as in itself unfair.’54

1.44 This line of argument was also rejected by the Privy Council in DS v HM
Advocate55 when, as a ‘devolution issue’, it was asked to rule that Scottish legisla-
tion on evidence of bad character was incompatible with the rights of the defend-
ant under the Convention. By section 275A of the Criminal Procedure (Scotland)
Act,56 where a defendant in a sex case leads evidence about the complainant’s

52 House of Lords, House of Commons, Joint Committee on Human Rights, Second Report of

Session 2002–303 (Criminal Justice Bill), HL Paper 40, HC 374, §23.

53 CJA 2003, ss 101(1)(g) and 106; §§4.138ff below.
54 Law Commission Report (n 18) §3.12.
55 DS v HM Advocate [2007] UKPC D1, [2007] HRLR 28.
56 The Criminal Procedure (Scotland) Act 1995 is (in effect) the Scottish Criminal Procedure Code.

Section 275A was added by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 (asp 9).

15
1.45–1.47 Evidence of Bad Character

c haracter or sex-life, the prosecution may put previous convictions for sex offences
in evidence. In rejecting it, Lord Brown of Eaton-under-Heywood said:
[103] Plausible and beguiling though at first blush this argument may appear, it is to
my mind founded upon a central fallacy. The long and the short of it is that the accused
has no fundamental right to keep his past convictions from the jury. There is nothing
intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing
so not merely on the limited basis that they go only to the accused’s credibility … but on
the wider ground that they bear also on the accused’s propensity to commit offences of
the kind with which he is charged.
A similar line of argument was rejected by the House of Lords in a related context
in Becouarn.57

1.45 ‘Article 4 of Protocol 7 to the Convention provides (inter alia) that the
defendant shall not be punished twice for the same offence. Admitting evidence of
the defendant’s previous convictions offends against this principle.’

1.46 But admitting evidence that the defendant has committed an offence in
the past in order to help a court to decide whether he has committed an offence
in the present is not the same as punishing him a second time for the earlier
offence. (And even if it were, the United Kingdom has neither signed nor rati-
fied Protocol 7,58 and in consequence, the rights that it protects do not count as
‘Convention rights’ for the purpose of the extra protection accorded to them by
the Human Rights Act 1998.)59

How Have the Courts Interpreted Part 11(1) of the

Criminal Justice Act 2003?

1.47 In the years since the new provisions came into force it has become clear that
they have brought about a major change. This is contrary to widespread predic-
tions at the time from those who thought that everything would remain the same.

57 Becouarn [2005] UKHL 55, [2005] 1 WLR 2589. Here the defendant unsuccessfully argued that

he was ‘faced with an impossible dilemma’ by a combination of Criminal Evidence Act 1898 s 1(f)(2),
which enabled him to be cross-examined on his criminal record if he gave evidence, and Criminal
Justice and Public Order Act 1994 s 35, which allowed the jury to draw an adverse inference from his
failure to give evidence if he did not.
58 In 1997 the government announced its intention to do so. In 2005 it introduced a Family Law

(Property and Maintenance) Bill with a view to bringing UK law into line with Art 5 of the Protocol,
but it did not proceed with it.
59 This does not mean, of course, that UK courts are completely free to disregard them. Even where

the Human Rights Act 1998 does not apply, ‘It is well settled that the Convention may be deployed for
the purpose of the resolution of an ambiguity in English primary or secondary legislation’: R v Home
Secretary, ex p Brind [1991] 1 AC 696, 760 (Lord Ackner).

16
Introduction 1.48–1.49

The former rules on evidence of bad character, it was said, were premised on the
notion that admitting such evidence is basically incompatible with giving the
defendant a fair trial. One way or another, the new rules leave the courts enough
elbow-room to exclude evidence of bad character where they feel that admitting
it would be unfair. And so, they said, the courts could—and would—exclude bad
character evidence in all cases where they would have excluded it before. In other
words, it would be ‘business as before’: the old decisions, but dressed up in the
language of the new legislation.

1.48 There can be no doubt that when enacting these provisions, Parliament
intended to change the law and not just to codify the law as then existing—so
this limited approach to the new provisions would have been wrong in principle.
As the Explanatory Notes clearly stated, ‘The intention is that this Part of the Act
will provide a new basis for the admissibility of previous convictions and other
misconduct.’60 This being so, the courts had a constitutional duty to respect the
legislator’s will, and not to frustrate the intended change by interpreting the new
law to conform as closely as possible with the old:61 as the Court of Appeal had
indicated 10 years earlier, when refusing to take this approach in relation to the
‘right of silence’ provisions of the CJPOA 1994.62

1.49 Recognising this, the Court of Appeal in Edwards and Rowlands63 said
‘Under the new regime it is apparent that Parliament intended that evidence
of bad character would be put before juries more frequently than in the past.’
In Hanson, Gilmore and P64 the Court of Appeal said that, under the new law, it
is no longer true that ‘what used to be referred to as striking similarity must be
shown before convictions become admissible’, and that evidence of bad character
is now admissible on the basis that it shows a tendency to commit offences of this
general type. Similarly, in Weir and others65 the Court of Appeal pointed out that
section 99 abolishes the common law rules on the admissibility of evidence of
bad character, and said ‘The 2003 Act completely reverses the pre-existing gen-
eral rule. Evidence of bad character is now admissible if it satisfies certain criteria
(see section 101(1)), and the approach is no longer one of inadmissibility subject
to exceptions.’

60 §358. Cf §371: ‘Section 103(1)(a) makes it clear that evidence that shows that the defendant has a

propensity to commit offences of the kind with which he is charged can be admitted under this head.’
61 See Bank of England v Vagliano Bros [1891] AC 107 and §1.53 below.
62 Cowan [1996] QBD 373, 378–79: ‘Mr Mansfield’s approach frankly was that section 35 [of the

CJPOA 1994] is so at variance with established principle, that its operation should be reduced and
marginalised as far as possible. We cannot agree.’
63 Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below, at §[1](iii).
64 Hanson, Gilmore and P [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below.
65 Weir and others [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below, at [35].

17
1.50–1.51 Evidence of Bad Character

1.50 The result is that evidence of the defendant’s bad character was now admis-
sible in many situations in which it would previously have been excluded; this
became clear from the outcome of a number of the first reported cases. Thus in
Bradley66 the Court of Appeal upheld the defendant’s conviction for robbery, to
which he was linked by DNA evidence, the trial court having heard evidence of his
previous conviction for robbery. In Hanson,67 and again in Gilmore,68 the Court of
Appeal upheld the defendants’ convictions for theft, returned at trials in which the
jury had heard evidence of their previous convictions for offences of dishonesty.
In P,69 Weir,70 and again in Manister,71 the Court of Appeal upheld the defendants’
convictions for sex offences, following trials at which the jury had heard evidence
of their previous behaviour that provided an indication of their particular sexual
tastes. And in Duggan72 the Court of Appeal upheld the defendant’s conviction for
wounding with intent, arising from an incident in which he claimed he had acted
in self defence, the trial judge having admitted evidence of his previous convic-
tion for assault. (These cases, and many others, are discussed in further detail at
§§4.47ff below.)

1.51 In similar vein, the Court of Appeal has rejected a number of ingenious
arguments designed to blunt the impact of the provisions. These include the argu-
ment that evidence of his bad character cannot be adduced against a defendant
who alleges that the crime in question never happened, as against the defendant
who admits it did, but claims that the culprit was another;73 that evidence of pre-
vious misconduct adduced to show that the defendant has a propensity to commit
the offence in question may only be left to the jury where it actually convinces
the judge that the defendant does have such a propensity (as against where it per-
suades the judge that a reasonable jury might so conclude);74 that when the prose-
cution is allowed to adduce evidence of the defendant’s similar offences in the past,
it must not ‘rub his nose in it’ by cross-examining him on details that are emotive
or unpleasant;75 the argument that evidence of bad character ‘should be used spar-
ingly in cases where the evidence to establish guilt is very strong’;76 and arguments

66 Bradley [2005] EWCA Crim 20, [2005] 1 CrAppR 24 (397).

67 Hanson (n 64).
68 Decided together with Hanson (n 64).
69 Decided together with Hanson (n 64).
70 Weir (n 65).
71 Decided together with Weir (n 65).
72 Decided together with Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31) p 253 below.
73 Wilkinson [2006] EWCA Crim 1332.
74 Brima [2006] EWCA Crim 408, [2007] 1 CrAppR 24 (316), [39].
75 Smith [2006] EWCA Crim 1355.
76 Simmerson [2006] EWCA Crim 2636. This strangely perverse argument harks back to old cases

such as Britzman, criticised §1.33 above.

18
Introduction 1.52–1.53

that bad character evidence should be suppressed where it is ‘too emotional’,77

or where its impact would be ‘devastating’.78

1.52 In Weir the Court of Appeal rejected the notion that the statutory provisions
should be read in the light of the pre-existing common law79 and in Saleem the
Court of Appeal spoke of the ‘sea-change’ that the new law had produced, and
said the old law had been ‘consigned to history’.80 In Renda,81 where evidence of
the defendant’s bad character had been admitted via ‘gateway (f)’ on the basis that
it was needed ‘to correct a false impression given by the defendant’, the Court of
Appeal said it was unhelpful to cite, in this connection, case law on whether the
defendant had ‘put his character in issue’ under section 1(3)(ii) of the C riminal
Evidence Act 1898: the provision which dealt with false impressions given by
defendants under the previous law. In Hanson,82 on the other hand, the Court of
Appeal said that in the context of ‘gateway (g)’, the pre-Act authorities would still
apply when considering whether an attack had been made on another person’s
character; but in W83 a later Court of Appeal thought otherwise:
[22] … when Parliament, as a result of a carefully considered study of the matter by the
Law Commission, considers that the law should be codified, it is essential that the court
proceed by application of the new law and not by reference to the old law.
1.53 With this ‘clean sweep’ approach the courts have applied to the bad character
evidence provisions of the CJA 2003 the normal principles of statutory construc-
tion. Part 11 of the CJA 2003 sets out to codify the law on evidence of bad character.
In Bank of England v Vagliano Bros84 the House of Lords said that the proper
course when construing a codifying statute is
to examine the language of the statute and ask what is its natural meaning, uninflu-
enced by any considerations derived from the previous state of the law, and not to start
with inquiring how the law previously stood, and then, assuming that it was probably
intended to leave it unaltered, to see if the words of the enactment will bear an interpreta-
tion in conformity with this view. If a statute, intended to embody a code in a particular
branch of the law, is to be treated in this fashion … its utility will be almost entirely
destroyed, and the very object with which it was enacted will be frustrated.

77 J (CD) [2015] EWCA Crim 563. Although emotive, the evidence, said the Court of Appeal, was

relevant—and the judge had warned the jury against being swayed by its emotive impact.
78 McDonald [2011] EWCA Crim 2933.
79 Weir (n 65) [35].
80 Saleem [2007] EWCA Crim 1923, [23].
81 Renda [2005] EWCA Crim 2826, p 276 below.
82 Hanson (n 64).
83 W [2011] EWCA Crim 472.
84 Bank of England v Vagliano Bros [1891] AC 107; applied in Platt [2016] EWCA Crim 4—in which

the 2nd edition of this book was cited with approval.

19
1.54–1.56 Evidence of Bad Character

Status of Explanatory Notes as an Aid to Construction

1.54 In writing this commentary I have assumed that it is proper to refer to

the Explanatory Notes as an aid to the construction of provisions of the Act.
Arguments of principle have been advanced against this;85 but their use as aids
to construction is supported by abundant case law,86 and when called upon to
construe the provisions on bad character in the CJA 2003, the Court of Appeal has
shown its willingness to use them.87 The courts are surely right to do this. There is
an obvious objection to using as an aid to construction an Explanatory Note that
was drafted after the relevant provision has been enacted, but this does not apply
where (as in cases discussed in this commentary) a note in identical terms was
before Parliament at the time the provisions were being discussed and voted on.
In this discussion, furthermore, a sense of proportion needs to be retained. The
point at issue is only whether the courts are allowed to look at the Explanatory
Notes for help and inspiration: the suggestion is not that they should be bound to
follow them.88

To What Extent does the Court have Power to Exclude Evidence

of the Bad Character of the Defendant that is Prima Facie
Admissible Under Section 101?

1.55 A point of great practical significance is whether the courts have a general
discretionary power to exclude evidence of the bad character of a defendant which
the provisions of the Act render otherwise admissible. To jump ahead in the story,
it is now clear beyond doubt that they do in all cases where there is an attempt
to adduce such evidence on behalf of the Crown. But this was not clear at the
beginning.

1.56 If the ‘gateway’ through which it would otherwise go is section 101(1)(d)

(‘it is relevant to an important matter in issue between the defendant and the

85 Roderick Munday, ‘Bad Character Rules and Riddles: “Explanatory Notes” and True Meanings of

s 103(1) of the Criminal Justice Act 2003’ [2005] Crim LR 337. Roderick Munday, Explanatory Notes
and Statutory Interpretation (2006) 170 JPN 124.
86 See R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, (Lord

Steyn); R (Confederation of Passengers etc) v Humber Bridge Board [2004] QB 310 (CA); Montila
[2004] 1 WLR 3141 (HL) [35], [36], R(S) v Chief Constable of South Yorks Police [2004] 1 WLR 2196,
[4] (Lord Steyn); A-G’s Ref (No 5 of 2002) [2005] 1 AC 167 (Lord Bingham, [21]); Massey [2007] EWCA
Crim 2664, [2008] 1 WLR 937.
87 Weir (n 65) [35], [36].
88 I once read an examination paper in which a student, asked to interpret a statutory provision,

wrote ‘It would be wrong for the courts to follow the will of Parliament, because this would breach the
separation of powers.’ However erudite, all arguments against the courts using Explanatory Notes as an
aid to construction make me think of this comment.

20
Introduction 1.57

rosecution’) or section 101(1)(g) (‘the defendant has made an attack on another

p
person’s character’), then section 101(3) expressly confers on the court a duty to
exclude, the terms of which mirror those of the power contained in section 78
of the Police and Criminal Evidence Act (PACE), only expressed in mandatory
terms:89
The court must not admit evidence under subsection (1)(d) or (g) if, on an application
by the defendant to exclude it, it appears to the court that the admission of the evidence
would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it.
And where the prosecution seek to admit evidence of the defendant’s previous
convictions by attempting to use ‘gateway (d)’ as enlarged by section 103(2), the
duty to exclude evidence is reinforced by section 103(3), which also provides that:
Subsection (2) does not apply in the case of a particular defendant 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 for it to apply in his case.
But what is the position if the ‘gateway’ is one of the others? Can the court validly
exclude the evidence by virtue of its PACE 1984 section 78 power to exclude pros-
ecution evidence that would make the trial unfair, or its common law discretion
to exclude evidence that is more prejudicial than probative?90 This was a loose end
that the Act forgot to tie, so leaving the position open.

1.57 Section 112(3) provides that ‘Nothing in this Chapter affects the exclusion of
evidence … (c) on grounds other than the fact that it is evidence of a person’s bad
character.’ This obviously allows the court to exclude evidence where it is inad-
missible for some reason other than its status as evidence of bad character—for
example, where the source of it is hearsay, or it was illegally obtained. But it is
not wholly clear that it applies to allow the court to exclude the evidence under
either section 78 of PACE 1984, or because it is more prejudicial than probative,
where a step in the argument is the proposition that ‘this evidence is weak, and/or
misleading, because it is evidence of bad character’. And it obviously falls short
of section 126(2)(a)—which, in the context of the reform of the hearsay rule,
expressly provides that nothing in the relevant provisions prejudices section 78
of PACE 1984.

89 In practice, the fact that PACE 1984 s 78 says the judge ‘may’ exclude whereas CJA 2003 s 101(3)

says the judge ‘must’ exclude is unlikely to produce different results. It would be a singularly perverse
judge who, when applying s 78, first found ‘the admission of the evidence would have such an adverse
effect on the fairness of the proceedings that the court ought not to admit it,’ but then decided that,
because s 78 says ‘may’ not ‘must,’ he would exercise his discretion to admit it!.
90 Christie [1914] AC 545; the discretion was expressly preserved when PACE 1984 s 78 was enacted;

by s 82(3), ‘Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence
(whether by preventing questions being put or otherwise) at its discretion.’

21
1.58–1.60 Evidence of Bad Character

1.58 One possible view was that the court’s general discretionary powers to sup-
press evidence were excluded in respect of bad character evidence admissible
under section 101. On this view, the general power in section 78 of PACE 1984
is impliedly ousted by reason of the fact that section 101(3) confers a power
expressed in virtually identical terms, but only in respect of evidence admissible
via the ‘gateways’ mentioned section 1(d) and (g). Similarly, it could be said that
the common law power to exclude evidence considered by the court to be more
prejudicial than probative is impliedly excluded by section 99, which abolishes the
common law rules on the admissibility of evidence of bad character. The com-
mon law exclusionary rules, it could be argued, were built on the basic premise
that evidence of the defendant’s bad character is more prejudicial than probative
almost by definition, and therefore to be admitted only in highly exceptional cases.
If the courts construed the new rules contained in sections 101 onwards as subject
to a general discretion to exclude evidence they consider to be more prejudicial
than probative, this would frustrate the evident will of Parliament to replace the
common law rules with something else.

1.59 The alternative (and preferable) view is that the new rules on bad character
evidence are indeed subject to the courts’ general discretionary powers to exclude
evidence. These powers, it can be argued, are a fundamental part of the rules of
criminal evidence, where they exist to ensure that defendants are fairly tried—so
only express words in a statute should be taken to exclude them. When Parliament
has previously changed the law to make admissible other forms of evidence that
were previously excluded, the courts have always construed the new rules as sub-
ject to the discretionary powers to exclude;91 indeed, they have done so even where
the statute in question gave the court some specific discretionary power to do
so.92 So, because Parliament has not expressly stated that the general exclusionary
powers are ousted, it must be assumed they still apply.

1.60 Unsurprisingly, the Court of Appeal quickly expressed a preference for the
view that the court’s general powers under section 78 of PACE 1984 do apply here.
In Highton and others Lord Woolf said this:
The question also arises whether reliance can be placed on section 78 of the Police and
Criminal Evidence Act 1984. The application of section 78 does not call directly for deci-
sion in this case. We, therefore, do not propose to express any concluded view as to the
relevance of section 78. However, it is right that we should say that, without having heard
full argument, our inclination is to say that section 78 provides an additional protec-
tion to a defendant. In the light of this preliminary view as to the effect of section 78,
judges may consider that it is a sensible precaution, when making rulings as to the use

91 eg with the evidence of young children; see DPP v M [1997] 2 CrAppR 70, 75.
92 As with ‘documentary hearsay’ under the Criminal Justice Act 1988; see D [2002] 2 CrAppR (36)
601, 613.

22
Introduction 1.61–1.63

of evidence of bad character, to apply the provisions of section 78 and exclude evidence
where it would be appropriate to do so under section 78, pending a definitive ruling to
the contrary. Adopting this course will avoid any risk of injustice to the defendant. In
addition, as section 78 serves a very similar purpose to article 6 of the Convention for
the Protection of Human Rights and Fundamental Freedoms, following the course we
have recommended should avoid any risk of the court failing to comply with article 6.
To apply section 78 should also be consistent with the result to which the court would
come if it complied with its obligation under section 3 of the Human Rights Act 1998
to construe sections 101 and 103 of the 2003 Act in accordance with the Convention.93
1.61 In Somanathan,94 where the issue was whether evidence of the defendant’s
bad character was admissible against him inter alia through ‘gateway (f)’, a differ-
ently constituted Court of Appeal said:
We note that the provisions of section 101(3) do not apply to subsection (1)(f), and
we see no reason to doubt that section 78 of the 1984 Act should be considered where
section 101(1)(f) is relied on (see the judgment of Lord Woolf CJ in Highton and others).
It must therefore now be taken that the court’s general discretion under section 78
of PACE 1984 does indeed apply to evidence of the defendant’s bad character
which would otherwise be admissible under the new provisions at the instance of
the prosecution: ie via gateways (c), (d), (f) or (g).

1.62 However, in practice it looks as if the court’s general discretion to exclude

evidence of the defendant’s bad character does not really add very much to what
is already present in the Act itself. The ‘gateways’ contained in section 101(1)
(d) and (g) are already subject to a discretionary power to exclude set out in
section 101(3). Of the other gateways, no issue of discretionary exclusion is likely
to arise in respect of the ones contained in section 101(1)(a) (where the parties
have agreed to admit the evidence) or (b) (where the bad character evidence came
from the defendant). So, in practice, the issue is only relevant to the ‘gateways’
described in section 101(1)(c) (‘important explanatory evidence’), and (f) (‘it is
given to correct a false impression given by the defendant’).

1.63 As regards ‘important explanatory evidence’ under section 101(1)(c), the Act
provides that ‘evidence is important explanatory evidence if (a) without it, the
court or jury would find it impossible or difficult properly to understand other
evidence in the case, and (b) its value for understanding the case as a whole is
substantial’.95 If a court finds this test is satisfied, it is unlikely to find it appro-
priate to exclude the evidence under either of its discretionary powers. The
same will usually be true of evidence ‘given to correct a false impression’ under
section 101(1)(f). The Act provides that ‘evidence is admissible under

93 Highton and others [2005] EWCA Crim 1985, [2005] 1 WLR 3472, p 266 below, [13] and [14].
94 See Weir and others [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (203), [44].
95 CJA 2003, s 102.

23
1.64–1.66 Evidence of Bad Character

section 101(1)(f) only if it goes no further than is necessary to correct the false
impression’.96 Again, if a court has found this test to be satisfied, it will not usually
view the evidence as either making the trial ‘unfair’ or being more prejudicial than
probative.97

1.64 To this there is an important qualification. It is now clear that the exclusion-
ary discretions discussed above do not enable the court to shut out bad character
evidence that would otherwise be admissible on behalf of a co-defendant under
section 101(1)(e). Section 78 of PACE 1984 is expressly limited to prosecution
evidence;98 and the courts have always treated the common law discretion as lim-
ited in this way too, declining to use it to exclude bad character evidence called by
co-defendants.99 In Apabhai100 the Court of Appeal said
We do have some sympathy with the judge’s observation that there is a danger that allow-
ing evidence of this kind will give rise to satellite litigation and distract the jury and take
their eye off the ball. But it seems to us that, as the rules currently operate, this is not
a basis for excluding evidence of bad character when relied on by one accused against
another, however desirable it may be to have a rule of that nature.
Nor, where the defence wishes to adduce it, does the court have any general discre-
tion to exclude evidence of the bad character of a non-defendant which is other-
wise admissible by virtue of section 100 (see Chapter 3 below).

1.65 That said, however, it should be noted that for bad character evidence to
be admissible either for a co-defendant via ‘gateway (e)’, or in respect of a ‘non-
defendant’ by virtue of section 100, it must be ‘of substantial probative value’. So
although the court has no discretionary power, as such, to exclude the evidence, in
these cases it does have the power to suppress the evidence if it considers it to be
relatively unimportant.

On What Basis should the Courts Exercise their Powers

to Exclude Otherwise Admissible Evidence of the
Defendant’s Bad Character?

1.66 What is the real risk with admitting evidence of the defendant’s bad character?
I believe that the real danger is not so much that the tribunal of fact will be unduly

96 ibid, s 105(6).
97 It might do so, however, if the ‘false impression’ arose from an unguarded remark made by the
defendant in the police station: see §4.137 below.
98 By PACE 1984 s 78(1), ‘In any proceedings the court may refuse to allow evidence on which the

prosecution proposes to rely to be given …’.

99 Neale (1977) 65 CrApp R 304, 306; IH Dennis, The Law of Evidence, 5th edn (London, Sweet &

Maxwell, 2013) §19.026.

100 Apabhai [2011] EWCA Crim 917; and see Phillips [2011] EWCA Crim 2935, [2012] 1 CrAppR

332 (25).

24
Introduction 1.67–1.69

prejudiced by it: instead, it is the risk that it will be used to tip the scales in a case
in which the rest of the evidence is weak or non-existent.101

1.67 A gruesome illustration of this problem is the famous case of Oscar

Slater,102 who was wrongly convicted and sentenced to death for the murder of
Miss Gilchrist in Glasgow in 1908, was reprieved and, after 19 years digging granite
in a prison quarry at Peterhead, was released and compensated out of public funds
when his conviction was eventually quashed in 1928. At his trial, the prosecutor
made much of his general bad character, as a man who lived on the edge of the law,
changing wives, surnames and addresses regularly, and existing on the proceeds
of gambling and (it seems) of prostitution. In his direction to the jury, the judge
famously said:
He has maintained himself by the ruin of men and the ruin of women, living for years
past in a way that many blackguards scorn to live … A man of that kind has not the
presumption of innocence in his favour which is a form in the case of every man, but a
reality in the case of the ordinary man.
1.68 This case is often cited by those who argue that admitting evidence of the
defendant’s bad character is always unfair and dangerous. But it seems to me that
the real problem in that affair was that the bad character evidence was admit-
ted, and made much of, to supplement a case in which the rest of the evidence
was completely worthless. The only evidence linking Oscar Slater either directly
or indirectly with the victim or the offence were several ‘fleeting glance’ identi-
fications, all of them highly suspect. As one English commentator, Sir Herbert
Stephen, put it, Slater was convicted and sentenced to death on evidence that
no English judge would have allowed to go to a jury, and on which ‘no bench of
magistrates in England would have ordered the destruction of a terrier which was
alleged to have bitten somebody’.103

1.69 If this is the real danger, then the first principle that courts should apply
when exercising their discretion is that evidence of the defendant’s bad character
ought to be excluded where the rest of the evidence is weak. This point was made
judicially, with some force, by the Court of Appeal in Hanson and others the first
major case in which it interpreted the new legislation:
[4] The starting point should be for judges and practitioners to bear in mind that
Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was
to assist in the evidence based conviction of the guilty, without putting those who are
not guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecu-
tion applications to adduce such evidence will not be made routinely, simply because a

101 See §§1.28–1.33 above.

102 William Roughead, The Trial of Oscar Slater (Edinburgh, Hodge, 1929). An abridged account
appears in John Mortimer (ed), Famous Trials (London, Penguin, 1984).
103 Quoted by Roughead, ibid.

25
1.70–1.71 Evidence of Bad Character

defendant has previous convictions, but will be based on the particular circumstances of
each case. …
[10] [The judge] must always consider the strength of the prosecution case. If there is
no or very little other evidence against a defendant, it is unlikely to be just to admit his
previous convictions, whatever they are …
[18] … Evidence of bad character cannot be used simply to bolster a weak case or to
prejudice the minds of a jury against a defendant.104
And the point has been made in many other cases since.105

1.70 What, in this context, is meant by ‘a weak case’? And what is the connection
(if any) between ‘a weak case’ for these purposes and ‘a case to answer’ in the con-
text of the rules about a submission of ‘no case’? In previous editions of this book
it was suggested that when deciding whether to admit bad character evidence via
‘gateway (d)’ as potentially showing disposition, the judge or magistrates should
ask themselves whether there is, apart from the evidence of bad character, any
other evidence that links the defendant firmly to the offence and this is of a type
which the courts do not normally treat with caution. Thus, for example, it should
not be admitted where the only other piece of evidence is an otherwise uncor-
roborated ‘fleeting glance’ identification, or the evidence of an accomplice with an
axe to grind, or an alleged ‘cell confession’. But it is not helpful, it was suggested,
for the court to ask itself whether the other evidence would constitute a case to
answer, and survive a submission of ‘no case’. And there appears to be no reason
in principle why, when making a ruling on whether there is a case to answer, the
court should be required to leave evidence of disposition evidence, if properly
admitted, out of consideration.

1.71 In Darnley106 the Court of Appeal cited this passage with approval. At the
scene of a domestic burglary a handkerchief was found which carried traces of
DNA which was probably from D. Because there was no other direct evidence
linking D with the offence, the defence argued that the DNA evidence if taken on
its own would not have constituted a case to answer and therefore the trial judge
should not have admitted D’s record for domestic burglaries. The Court of Appeal
thought that the rest of the evidence in that case would have been strong enough
to survive a submission of no case to answer; but if they were wrong on this, that
did not mean the evidence of bad character should be excluded. Three years later

104 [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [4].
105 In Shrimpton [2007] EWCA Crim 3346, by contrast, it was suggested that the weakness or
otherwise of the rest of the prosecution case was not a matter relevant to a decision to admit the bad
character evidence, but rather something the judge should mention to the jury in his direction; but
this cannot be right.
106 Darnley [2012] EWCA Crim 1148.

26
Introduction 1.72–1.73

Darnley was cited and applied in Bryon,107 the facts of which were similar except
that the burglaries took place in supermarkets, not people’s homes.

1.72 In his Character in the Criminal Trial108 Professor Redmayne approves of

the approach the courts have taken to this issue and supports it with an argument
of principle. The probative force of propensity evidence, he points out, v aries
from case to case. If in most cases the defendant’s propensity to commit this type
of crime is evidence which, though relevant, is relatively weak, there are some
cases where it is extremely cogent: of which the obvious example is Straffen,109
the well-known case from the 1950s involving a defendant who was accused of
murdering a little girl whom someone had strangled for no apparent reason, aban-
doning her body in a place where it was quickly found—a singularly bizarre crime
which Straffen had himself committed twice the year before. A blanket rule which
required the court to exclude propensity evidence unless ‘a case to answer’ could
be constructed from the rest of the evidence would, Redmayne points out, pro-
duce obvious injustice in a case like this. This argument is powerful. Not only does
it suggest that the courts are right to keep the notion of ‘a weak case’ separate from
‘a case to answer’; it also suggests that what the Court of Appeal said in Hanson
about the impropriety of admitting bad character evidence to bolster a weak case
should be qualified. If a sound rule in the great majority of cases, there are excep-
tional cases where the defendant’s proved propensity to do this very thing can be
properly admitted even though the rest of the evidence is thin.

1.73 Moving to matters of detail, the Court of Appeal has now heard many appeals
in which the defence had argued that bad character evidence had been wrongly
admitted at trial to bolster a weak case; and in the process it has made it clear that
a case otherwise depending mainly on a type of evidence is not to be regarded,
by reason of its dependence on that particular type of evidence, to be by defini-
tion weak. Thus D’s bad record is not necessarily adduced to bolster a weak case
where a complainant accuses D of a sexual offence which he denies, and it is ‘one
person’s word against another’;110 nor where it depends on the evidence of a key
witness who retracted his evidence at trial, the Crown being permitted to treat him
as a hostile witness;111 nor where the key witness was a chronic alcoholic;112 nor
where by the time of trial the key witness has died, and the evidence came before
the court under an exception to the hearsay rule;113 nor where the rest of the case

107 Bryon [2015] EWCA Crim 997.

108 Redmayne (n 1) 163.
109 Straffen (n 42).
110 Cornwell [2013] EWCA Crim 2414.
111 Welsh and others [2013] EWCA Crim 409.
112 Powell, [2015] EWCA Crim 2200, [2016] 1 Cr App R (S) 49.
113 Friel [2012] EWCA Crim 2871; Barney [2014] EWCA Crim 589.

27
1.74–1.75 Evidence of Bad Character

consisted (in effect) of opportunity and motive.114 The same line has been taken—
unsurprisingly—with prosecution cases largely based on DNA evidence.115 The
Court of Appeal has also held that for these purposes a case is not a weak one
where it depends on the evidence of a single identifying witness, provided the
identification was clear and it was not ‘fleeting glance’ case.116 But by contrast, in
DPP v Chand117 the Divisional Court upheld the decision of a district judge to
refuse to admit evidence of D’s criminal record where the rest of the case against
him was footage from a CCTV camera whose image he thought was insufficiently
clear. It would be wrong to read too much into any of these cases, however, because
all of them ultimately depend on their own facts.

1.74 Sometimes a practical problem arises in that the court is unable to say
whether the rest of the prosecution evidence constitutes a ‘weak case’ until that
evidence is heard. In Gyima and Adjei118 the Court of Appeal said that, in such a
case, the court should hear the rest of the prosecution evidence first and postpone
the decision on admitting the bad character evidence until it has done so.

1.75 The second major problem with evidence of bad character is the risk that
it will give rise to complicated ‘satellite issues’ which deflect the attention of the
tribunal of fact from the central issues in the case, and from properly examining
the core evidence that implicates the defendant in the alleged offence directly. As
the Court of Appeal said in Smith, ‘We do, however, give a word of caution for the
future about the general undesirability of the jury being required to explore satel-
lite issues one stage removed from the charges they are trying unless this is really
necessary.’119 So the second guiding principle for the courts when exercising their
discretion to exclude bad character evidence is that they should exclude evidence
the hearing of which is likely to take up a disproportionate amount of time and
distract the attention of the fact-finders from the evidence which bears directly on
the central issues.120

114 Burton [2008] EWCAS Crim 376.

115 Darnley (n 106) and Bryon (n 107); Thomas [2014] EWCA Crim 641; N [2014] EWCA Crim 506,
[2015] CrimLR 439; Valencia [2015] EWCA Crim 857. This was also the scenario in Bradley (n 129),
the first case under the bad character provisions of the 2003 Act to be reported—though ‘bolstering a
weak case’ was not the point at issue in that case.
116 Miller [2009] EWCA Crim 2890; following Blake [2006] EWCA Crim 871.
117 DPP v Chand [2007] EWHC 90 (Admin) cf H [2014] EWCA Crim 420.
118 Gyima and Adjei [2007] EWCA Crim 429; followed in Hewlett [2008] EWCA Crim 270.
119 Reported with Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below, [86].
120 ‘[T]here is much to be said for trial judges doing all in their power to ensure that cases are

tightly focussed on the essential issues’: McKenzie [2008] EWCA Crim 758, [2008] CrimLR 712, (2008)
172 JP 377; [2008] RTR 22, [28] (Toulson LJ). Similar comments were made by Scott Baker LJ in Smith
(reported with Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below), [86], words echoed by
Rix LJ in Davis [2008] EWCA Crim 1156, 172 JP 358, [38]. For similar judicial comments in the context
of attempts to adduce evidence bearing on the character of a witness, see D [2007] EWCA Crim 4, [25].

28
Introduction 1.76–1.79

1.76 A striking example of this problem is Sylvester.121 The defendant was

prosecuted for assaulting his cohabitee, the prosecution case being that he had
deliberately banged her head against the garage door, his defence being that she
had bumped it accidentally. At trial, evidence was admitted of a series of earlier
incidents in their relationship, all of which were disputed, and the court also heard
disputed evidence about an incident related to the defendant’s work while he was
serving in the police.

1.77 In quashing the resulting conviction, Pill LJ said:

The danger about letting in peripheral and collateral matters is one thing leading to
another, as happened in this case. The trial lasted four days and a great deal of material
was admitted the relevance of which to the charge before the jury was at best extremely
limited, even if properly admitted. There is a real danger, in our judgment, that the jury
were distracted from the central issue in the case. If justice is to be done, trials must be
kept within reasonable bounds. The central issue must not be so overlaid with consid-
eration of peripheral matters that the judge and the jury are likely to lose sight of the
central issue.
1.78 This line was taken by the Court of Appeal in O’Dowd.122 At D’s trial for
raping V the Crown was permitted to adduce evidence of three previous inci-
dents in which it was alleged that D had committed rapes: all of which D strongly
disputed. The result was a trial which extended over a period of six-and-a-half
months, of which three weeks were taken up with hearing the bad character evi-
dence. Quashing the conviction, the Court of Appeal said: ‘[T]he combination of
the introduction of the bad character evidence that led to the intensive investiga-
tion of satellite issues combined with the numerous interruptions to the trial and
its overall length made it very difficult for the jury to keep its eye on the ball.’ Ear-
lier in the judgment it said ‘If ever there is a case to illustrate the dangers of satellite
litigation through the introduction of bad character evidence this is it.’

1.79 O’Dowd should not be taken as precluding the use at rape trials of dis-
puted evidence of earlier rapes if the trial can, with firm management, be kept
within reasonable bounds. A contrasting case is Blake.123 Here, as in O’Dowd,
D was accused of rape and the prosecution was permitted to adduce bad character
evidence of other rapes, the commission of which D disputed. One had led to a
prosecution and conviction, but two had not, and of these the trial court heard
oral evidence from the complainants. Here, with tighter judicial control, the case
was completed in a little over two weeks, the disputed evidence of the earlier rapes

121 Sylvester [2005] EWCA Crim 1794. The trial took place before the new law on bad character

evidence came into force, but the appeal was heard afterwards.
122 O’Dowd [2009] EWCA Crim 905; [2009] 2 CrAppR 16 (280). (This was a high-profile case which

attracted significant media coverage.)

123 Blake [2014] ECWA Crim 2341.

29
1.80–1.82 Evidence of Bad Character

having extended the proceedings by three days only. Distinguishing O’Dowd, the
Court of Appeal endorsed the judge’s decision to admit the evidence of the earlier
rapes and upheld D’s conviction.

1.80 Where judges at first instance exercise a discretion, or a duty which is highly
‘fact-specific’, courts above are usually unwilling to criticise their decision, pro-
vided that it was made taking all the relevant factors into account. To a court’s
decision to admit or reject evidence of bad character this general rule undoubtedly
applies. In Hanson124 the Court of Appeal said that it would not intervene in such
a case unless the discretion ‘has been exercised unreasonably in the Wednesbury125
sense’—a view that has been repeated in many cases since.126

Coming into Force—Date from which the New Law Applied

1.81 The commencement date for the ‘character evidence’ provisions of the CJA
2003 was 15 December 2004.127 A complexity in the drafting of sections 140 and 141,
however, led to doubt as how far, if at all, the new law applied to cases in which
the prosecution had been instituted before that date.128 In Bradley129 the Court
of Appeal resolved the issue by deciding that the provisions operate in trials that
begin after the commencement date, irrespective of when the charge was laid.
In so holding, the Court of Appeal went out of its way to criticise the deficient
drafting, the absence from the Commencement Order of any transitional provi-
sions, and the fact that (as explained in the Preface to this book) the government
brought the bad character provisions into force ahead of the programme of
judicial training.130

1.82 For these purposes, a ‘trial’ includes a retrial. So if a defendant was originally
tried before 15 December 2004, and his retrial took place after it, at the retrial
any issue relating to bad character evidence then fell to be decided under the new

124 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below [15];
125 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
126 See inter alia Renda [2005] EWCA Crim 2826, p 276 below, [3] and [4]; Eastlake [2007] EWCA

Crim 603, [21]; DPP v Chand [2007] EWHC 90. For a case where, exceptionally, the Court of Appeal
did condemn the trial judge’s exercise of discretion, see Murphy [2006] EWCA Crim 3408 (reported as
M in [2007] CrimLR 637).
127 Criminal Justice Act 2003 (Commencement No 6 and Transitional Provisions) Order 2004 SI

2004/3033.
128 A passage explaining the difficulties appeared in the first two editions of this book. It has been

deleted from this edition as the issue appears to have no further practical importance.
129 Bradley [2005] EWCA Crim 20, [2005] 1 CrAppR 24 (397).
130 The confusion over the date of commencement resulted in a number of cases being tried under

the old law after the new law was in force, and in two of them, consequential appeals: see Amponsah
[2005] EWCA Crim 2993, and Lambrou [2005] EWCA Crim 3595.

30
Introduction 1.83–1.85

provisions: as was held by the Court of Appeal in Benguit,131 in which they said
that, in a retrial that took place in January 2005, it was a mistake for prosecuting
counsel and the court, out of a desire to be fair to the defendant, to resolve the
admissibility of bad character evidence by applying the earlier law, now that this
had been repealed.

1.83 In Campbell,132 another case where the defendant’s original trial took place
before 15 December 2004 and his retrial and conviction after it, the Court of
Appeal rejected the defence argument that it was unfair, at the retrial, for the pros-
ecution to adduce evidence that had been inadmissible at the first one. And in
A133 it went considerably further. In this case, the defendant had been tried
for rape, and acquitted, on 1 December 2004. Following the discovery by the
police of what they claimed to be ‘new and compelling evidence’, the prosecu-
tion made an application under Part 10 of the Criminal Justice Act 2003—the
‘retrial’ p
rovisions—for the rape acquittal to be quashed and a retrial ordered. The
new evidence consisted of a series of similar offences, which the defendant had
admitted.134 This evidence was ‘new’ not only in the sense that it was unknown to
the prosecution at the time of the original trial, but also in the sense that, under
the new law, it was now clearly admissible, whereas under the old law its admissi-
bility would have been dubious. The Court of Appeal, without hesitation, quashed
the conviction and ordered a retrial.

1.84 From the discussion in the previous paragraphs it will be clear that change
in the law relating to bad character evidence has important practical implications
for prosecutions for ‘historic offences’. It means—for example—that at D’s trial
for sex offences allegedly committed many years ago, evidence will be admissible
which might not have been admissible if he had been prosecuted at time the
offences were allegedly committed.

What has been the Practical Impact of the CJA Reform?

1.85 The result that was widely predicted to follow from the new provisions was
an increase in convictions. This, indeed, was both the reason why the legislation
was promoted (on the assumption that those convicted would be guilty) and the
reason why it was opposed (by those who believed that the convicted persons
would be innocent). No hard statistical evidence is available to show us whether
an increase in the conviction rate has in fact resulted, and it seems unlikely that

131 Benguit [2005] EWCA Crim 1953.

132 Campbell [2006] EWCA Crim 1305.
133 A [2008] EWCA Crim 2908. Reported as Andrews in [2009] 1 CrAppR 26 (347).
134 Inter alia, by sending a text message to the investigating officer saying ‘I’m bracing myself with

brandy and curry b4 admitting guilt’ (!).

31
1.86–1.88 Evidence of Bad Character

there will ever be any. Figures published in the Crown Prosecution Service Annual
Report135 in 2009 showed a fall in what they call ‘unsuccessful outcomes’ in the
period since the new law has been in force. But the trend began before the new
provisions came into force; and as the new provisions came into force about the
same time as a raft of other changes, it is impossible to demonstrate a causal link
between the new law on bad character evidence and any increase in the conviction
rate.

1.86 In 2006 the government engaged a firm of management consultants to carry

out a study on the operation and impact of the new law. Having sat on the report
for two years the Office of Criminal Justice Reform136 eventually published it in
March 2009.137 The weight that can placed on the conclusions it contains is lim-
ited, partly because the information was dated when it was published and is even
more dated now, and partly because only six courts were included in the study.138
However, the report is still of some interest nonetheless.

1.87 In the first place, it suggested that applications to adduce evidence of bad
character were relatively common in the Crown Court, but in the magistrates’
courts were very rare.139 Secondly, it suggested that the overwhelming majority of
bad character applications involved defendants, and of these, nearly all involved
bad character in the form of previous convictions, which prosecutors sought to
adduce via ‘gateway (d)’. Thirdly, it suggested that, though most applications are
successful, at least in part, a substantial number are refused; of the applications
tracked in the study, 45 per cent were granted in full, 33 per cent were refused and
22 per cent were granted in part. Fourthly, it suggested that in practice the time
limits set out in the Crown Court Rules for making bad character applications
were widely disregarded. And fifthly, it suggested that the courts had managed to
absorb the extra workload created by bad character applications relatively easily.

1.88 The researchers were unable to find any statistical evidence that the wider
admissibility of evidence of the defendant’s bad character had led to larger number
of convictions. Contrary to the fears expressed in Parliament when the legislation
was being enacted, judges, magistrates, prosecutors and defence lawyers all seemed

135 Crown Prosecution Service Annual Report and Resource Accounts 2007–2008, ‘Summary

of Performance and Achievements’, available online at www.cps.gov.uk/publications/reports/2007/

summary.html, accessed 19 March 2009.
136 An inter-departmental body that was immolated, with many others, in the Coalition’s ‘bonfire of

the quangos’ following the 2010 General Election.

137 A Mackie, M Hopkins and P Duffy, Research into the Impact of Bad Character Provisions on the

Courts. Report to the Office of Criminal Justice Reform. 2007. Available online at www.justice.gov.uk/
publications/docs/bad-character-provisions-in-court2.pdf.
138 The Crown Court and the magistrates’ courts at Wolverhampton and at Sheffield; the Crown

Court at Bradford, and the magistrates’ court at Sutton Coldfield.

139 In Sheffield Crown Court, for example, they were made in 72% of contested cases, but in

Sheffield magistrates’ court in only 6%.

32
Introduction 1.89–1.91

to think that fact-finders in the criminal courts usually treat the defendant’s bad
character as of secondary importance, and the impact of the change was relatively
small. One district judge said that ‘if it is a decent and strong case, with only a
little doubt, the bad character might be the influencing fact to assist him in mak-
ing the decision’. Nor did the researchers find any evidence that the admissibility
of bad character evidence had led to a substantial increase in guilty pleas. Their
general conclusion was that ‘the new rules have not adversely impacted on the bal-
ance between the prosecution and the defence’. If disappointed, the government of
the day made the best of it. The Office of Criminal Justice Reform published the
study with a press statement saying that ‘The overall finding was that the new law
represented a major codification of behaviour relating to admitting bad character
evidence [sic!] and had a beneficial impact on criminal trials.’

1.89 Anecdotal evidence that the author of this book has gleaned from various
sources suggests that the changes may have brought about a slight increase in con-
victions and in guilty pleas—particularly in sex cases, where the direct evidence of
the commission of the offence is the uncorroborated word of the complainant.140
But conversations with judges and practitioners suggest that the most visible prac-
tical impact of the reform is not an increase in the conviction-rate, but a change
in the way that trials are conducted—and, in particular, a change of culture in the
cross-examination of witnesses. Before the Act came into force, any witness whose
evidence was disputed could be expect to be vigorously cross-examined about his
previous convictions in the hope that this would dent his credibility, but under the
new regime established by section 100 of the Act this now happens much less fre-
quently. (The admissibility of evidence of the bad character of w
itnesses is d
iscussed
below in Chapter 3.) From practitioners the most serious criticism that one hears
today is that some trial judges are more willing than others to exercise their discre-
tion to exclude—so that the application of the new law can be unpredictable.

1.90 Despite the controversy the new legislation provoked on its way through
Parliament, the new law seems to have made little impact on the general public.
However, when in December 2005 a burglar called Hanson was convicted of the
gruesome murder of a London banker and the attempted murder of his wife, at
a trial in which the details of his dreadful criminal record had been revealed, The
Times commented that the result ‘offers some vindication for last year’s contro-
versial change in law, designed to rebalance the criminal justice system in favour
of victims, that allowed the prosecution to tell jurors about previous evidence of
Hanson’s bad character’.11

1.91 When the reform of bad character evidence was introduced most a cademic
commentators were opposed; and some continue to criticise the new law and

140 A high-profile case of this type was that of the serial rapist, Petros Antia; see Metropolitan Police

Bulletin, 15 June 2005.

33
1.91 Evidence of Bad Character

bewail the passing of the old. The author if this commentary was among the
minority of writers who welcomed the reform, and twelve years he still believes
that the wider admissibility of bad character evidence of defendants was a change
for the better;141 and likewise the new restraints on the admissibility of the bad
character of others. The bad character provisions of the CJA 2011 are not without
their faults. But by and large the courts have managed to circumvent the problems
by intelligent interpretation—in particular by the introducing the gloss, notably
absent from the text of the legislation, that bad character evidence should not
normally be used to bolster a weak case. With this gloss, I believe the new law is an
instrument that helps the courts to carry out their most essential duty when deal-
ing with contested cases: which is to acquit the innocent, and convict the guilty.

141 My positive view of the 2003 reform is largely shared by Redmayne (n 1).

34
2
Definition of ‘Bad Character’

2.1 ‘Bad character’ is defined by Criminal Justice Act 2003 section 98, which is as
follows:
References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or
of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of
that offence.
The term ‘misconduct’ is defined in section 112(1), which provides that:
‘misconduct’ means the commission of an offence or other reprehensible

behaviour.

2.2 What is and is not evidence of ‘bad character’ is primarily important because,
if it does constitute evidence of bad character, it is usually only admissible if
the criteria set out in sections 100 or 101 are met. But the issue is also relevant,
although less obviously, in another way. One of the ‘gateways’ through which evi-
dence of a defendant’s bad character can pass is where he has ‘made an attack on
another person’s character’. As will be further explained later (§§4.138ff below),
a defendant attacks another person’s character where he imputes to him ‘bad
character’ in the same sense as it bears for the purposes of sections 100 and 101.
(And in this c ontext, as explained later, the ‘other than’ qualifications set out in
section 98(a) and (b) do not apply: see §2.36 and §4.144 below.)

2.3 This definition of ‘bad character’ is based on the definition proposed by the
Law Commission, but differs from it in two respects.

2.4 The first is that the Act defines ‘misconduct’ as ‘the commission of an offence
or other reprehensible behaviour’, whereas the equivalent in the Law Commission’s
scheme was the commission of an offence, or ‘behaviour that, in the opinion
of the court, might be viewed with disapproval by a reasonable person’. The Law
Commission’s formula was used in the Bill, but the shorter ‘other reprehensible
behaviour’ formula was substituted in Parliament. This was done to meet an
objection that the Law Commission’s formula was too wide—and could result
in too much evidence being admissible, to the detriment of the defendant. This
objection was based on muddled thinking, because the wider the definition of
35
2.5–2.8 Evidence of Bad Character

‘bad c haracter’, the more the forms of evidence that are excluded unless they pass
through one of the ‘gateways’ listed in section 101, and hence the better the defend-
ant is protected: whereas if evidence falls outside the definition of ‘bad character’ it
is in principle admissible whenever the court considers it to be relevant.1 However,
the two formulae seem virtually identical, and it is difficult to think of evidence
that would pass one of the tests but be excluded by the other.

2.5 The second difference is that section 98 narrows the definition of ‘bad
character’ in the Act so that it does not cover evidence of misbehaviour which is
directly connected with the offence with which the defendant is charged, nor any
misbehaviour during the course of the investigation or prosecution.2 Under the
Law Commission’s scheme, evidence of this type would have counted as evidence
of ‘bad character’, but a clause of their Draft Bill would have made it automatically
admissible, without the need for leave. The government, as part of its policy of
‘bending’ the proposals in the direction of wider admissibility, produced a new
formulation which excluded this type of evidence from the definition of ‘bad
character evidence’ altogether.

2.6 The thought process behind this seems to have been that if this type of mis-
behaviour fell outside the definition of ‘bad character evidence’, it would there-
fore fall outside the scope of any ban on the use of such evidence that might be
contained in the subsequent sections—and so be freely admissible. But unfortu-
nately, things are not so simple. If such evidence falls outside the definition of ‘bad
character’ in the Act, it also falls outside the scope of the provision of the Act that
repeals the common law rules on the admissibility of evidence of ‘bad character’;
which in turn means that the defendant can argue that such evidence is inadmis-
sible at common law. As the common law rules would almost invariably have let
such evidence in, such an argument is not likely to advance the defendant’s case.
However, there can be no doubt that evidence of this sort is potentially within the
scope of the court’s general discretionary powers to exclude—and some desperate
defendants may request the court to exercise it in their favour.

2.7 So in practical terms, what sort of evidence will fall within the statutory
definition of ‘bad character’ set out in section 98?

2.8 In the first place, there is evidence of ‘the commission of an offence’. This
evidence may take the form of a previous conviction,3 or it may be evidence

1 A point that is occasionally forgotten in the heat of litigation: see James Goudkamp, ‘Bad

Character Evidence and Reprehensible Behaviour’ (2008) 12(2) Evidence and Proof 116.
2 The scope of this exclusion is examined in §§2.27–2.37 below.
3 By PACE 1984 s 74, the fact that the defendant has a previous conviction gives rise to a rebuttable

presumption against him that he was guilty of the offence; as against a non-defendant, it is generally
conclusive proof. For what does and does not count in law as a conviction, see §4.82 below.

36
Definition of ‘Bad Character’ 2.9–2.11

of previous offences for which the defendant has not previously been tried, as
where a defendant is prosecuted for a collection of similar offences, all of which
he denies. Less obviously, it may also take the form of evidence that he has com-
mitted an offence of which he has been acquitted. In law, an acquittal is conclusive
evidence of innocence to the extent that the defendant is no longer liable to pros-
ecution or punishment for that offence. But it does not preclude the prosecution
(or indeed the defence) from producing in other proceedings evidence to show
that the accused was really guilty.4

2.9 It should also be noted that, in principle, something may be evidence ‘of the
commission of an offence’ where it suggests that the defendant has committed a
previous criminal offence, although it falls short of establishing it conclusively; as
where a person now accused of possessing cocaine with intent to supply was, on
a previous occasion, found in possession of a large quantity of a product which,
though it has some innocent uses, is also widely used to ‘cut’ cocaine.5

2.10 That said, however, it is not permissible to use as evidence of bad character
the mere fact that the person in question has at some point been accused of doing
something. A substantial body of case law now holds that, on principle, out-of-
court accusations of this sort are not admissible as evidence that person did the
thing he was accused of. So, for example, it is not permitted to adduce as evidence
of bad character the fact that a person has been the subject of a CRIS report.6
However, if such evidence were admissible—and perhaps to the limited extent
that it exceptionally might be—it would unquestionably count as evidence of bad
character.

2.11 For the purposes of section 98, what counts as ‘an offence’? In Renda7 the
defendant, who was accused of robbery, had been prosecuted on an earlier occa-
sion for assault occasioning actual bodily harm. At the earlier trial, the jury had
found that he had approached someone from behind and struck him on the head
with a large wooden table leg, but he had been found unfit to plead, and the court
had given him an absolute discharge. At the robbery trial, he had claimed to be a
person of good character, and the judge allowed the prosecution to put the table
leg incident in as evidence of bad character, admissible via ‘gateway (f)’ in order
‘to correct a false impression given by the defendant’ that he had a good one. On
appeal, it was argued that a violent incident resulting in a finding of unfit to plead

4 Z [2000] 2 AC 483; Terry [2004] EWCA Crim 3252, [2005] QB 996.

5 Anderson and Henry [2008] EWCA Crim 837.
6 See Braithwaite [2010] EWCA Crim 1082, [2010] 2 CrAppR 18 (128), and Warren [2010] EWCA

Crim 3267. CRIS is an acronym for ‘Crime Reporting Information System’—a standardised method
used by the police for logging information about the crimes allegedly committed and the suspected
culprits. The evidential status of out-of-court accusations is more fully discussed in §§5.32ff below.
7 Renda [2005] EWCA Crim 2826, p 276 below.

37
2.12–2.15 Evidence of Bad Character

did not show ‘bad character’, being neither a criminal conviction nor ‘reprehensible
behaviour’. The Court of Appeal did not accept this:
We agree that the appellant was not ‘convicted’ of a criminal offence. We also accept that
as a matter of ordinary language, the word ‘reprehensible’ carries with it some element of
culpability or blameworthiness. What however we are unable to accept is the mere fact
that the appellant was found unfit to plead some 18 months after an apparent incident
of gratuitous violence has occurred, of itself, connotes that at the time of the offence his
mental acuity was so altered as to extinguish any element of culpability when the table
leg was used in such a violent fashion.
2.12 Following the proposal of the Law Commission, the CJA 2003 takes the posi-
tion that evidence of the commission of an offence counts as evidence of bad char-
acter, whatever the nature of the offence. It leaves no room for the argument that
because of the nature of the offence—a minor motoring offence, for example—it
does not constitute evidence of bad character, and is therefore admissible without
the need to put it through one of the ‘gateways’ created by the Act.

2.13 Secondly, ‘evidence of bad character’ includes evidence of ‘other reprehensi-

ble behaviour’.

2.14 In abstract terms, behaviour is ‘reprehensible’ if it invites ‘censure, rebuke or

reprimand’.8 It therefore includes a large part of the range of behaviour which it is
considered defamatory to accuse other people of committing. However, ‘reprehen-
sible behaviour’ is narrower. Traditionally, a statement is defamatory if it exposes
a person to ‘hatred, ridicule or contempt’.9 Behaviour that engenders hatred or
contempt is clearly reprehensible, but not behaviour that provokes nothing worse
than ridicule.

2.15 In concrete terms, examples of ‘other reprehensible behaviour’ would pre-

sumably include telling lies, drinking to excess, failing to pay one’s debts, and
disobedience, absenteeism and other forms of serious misbehaviour when at
work. In cases that have reached the Court of Appeal, the courts have indicated—
unsurprisingly—that it is ‘reprehensible behaviour’ to take illegal drugs,10 and a
fortiori to be addicted to them;11 to be sexually promiscuous;12 to collect (and a
fortiori, to take) digital photographs of people being violently attacked;13 to make

8 Oxford English Dictionary definition.

9 But it should be noted that s 1 of the Defamation Act 2013 now qualifies this by providing that a
statement is not defamatory ‘unless its publication has caused or is likely to cause serious harm to the
reputation of the claimant’; see further Cooke v MGN Ltd [2014] EWHC 2831 (QB), [2015] 1 WLR 895.
10 AJC [2006] EWCA Crim 284.
11 Donnelly [2006] EWCA Crim 545.
12 Ball (reported with Renda) [2005] EWCA Crim 2826, p 276 below.
13 Saleem [2007] EWCA Crim 1923; that this amounted to reprehensible behaviour was conceded

by the defence—as was also the fact that the defendant had adapted a ‘rap’ lyric to indicate his own
intention of carrying out a violent attack.

38
Definition of ‘Bad Character’ 2.16–2.18

a false complaint against an innocent person out of personal dislike;14 and to fab-
ricate a document designed to show another person was doing things that they
were not.15

2.16 Equally unsurprisingly, the Court of Appeal has said that it is not reprehen-
sible behaviour to make a suicide attempt,16 or to be someone who suffers from
mental illness,17 or who was the victim of sexual abuse.18 And other cases indicate
that it does not necessarily amount to ‘reprehensible behaviour’ to be arrested,19
to refuse to give a witness-statement,20 to shout at your partner and her child,21
to be in lawful possession of a firearm,22 for a husband to be in the habit of giving
his wife blank mortgage application forms to sign,23 or for an expert witness to
be obdurate in evidence.24 (Though all these rulings were, of course, made in the
context of the facts of specific cases, and it would be unwise to attempt to draw
general deductions from them.)25

2.17 The phrase ‘reprehensible behaviour’ presumably also includes sexual mis-
behaviour, at any rate where this is of a kind of which most people disapprove,
at least officially: prostitution, resort to prostitutes, promiscuity and cheating on
a spouse or partner. A delicate problem arises about forms of sexual behaviour
on which public opinion is divided: in particular, homosexuality. Homosexual
behaviour between consenting adults has been legal for over 40 years, and many
people—and not just homosexuals—would emphatically reject the idea that it
could still be classed as ‘reprehensible behaviour.’ On the other hand, there are
still people who strongly disapprove of it, and tabloid newspapers usually regard
allegations of this sort about prominent persons as very newsworthy. So many wit-
nesses would consider evidence that they were homosexuals upsetting and embar-
rassing, and some defendants might fear that it would expose them to prejudice.

2.18 Although it is tempting to resolve this problem by straining the definition

‘bad character’ in order to restrict the admissibility of this sort of evidence,26
I believe the proper solution to this problem is to be found outside these provisions

14 Littlechild [2006] EWCA Crim 2126.

15 Malone [2006] EWCA Crim 1860. In many situations, of course, to do this would amount to the
criminal offence of forgery.
16 Hall-Chung [2007] EWCA Crim 3429.
17 Tine [2006] EWCA Crim 1788.
18 AJC [2006] EWCA Crim 284.
19 Hong Qiang He and De Qun He, reported with Weir [2005] EWCA Crim 2866 (p 288 below).
20 ibid.
21 Osbourne [2007] EWCA Crim 481, [2007] Crim LR 712.
22 Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below.
23 Kiernan [2008] EWCA Crim 972.
24 Jones [2014] EWCA Crim 1762.
25 An error that I believe Goudkamp makes in the article cited in n 1 above.
26 For a discussion of the point under the previous law, see Bishop [1975] QB 274; and see §§4.149ff

below.

39
2.19 Evidence of Bad Character

altogether, and in the Human Rights Act 1998 and the European C onvention on
Human Rights.27 Under Article 8 of the Convention, everyone has ‘a right to
respect for his private and family life’ and ‘there shall be no interference by a pub-
lic authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national secu-
rity, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the protec-
tion of the rights and freedom of others.’ Under section 6 of the Human Rights
Act 1998, public authorities are forbidden to act in ways that are incompatible with
the rights guaranteed by the Convention, and the term ‘public authority’ includes
a court. It follows that, when deciding whether or not to admit evidence that bears
upon a person’s sex life, the court should remember the person’s rights under
Article 8, and only allow such evidence to be admitted if it is strictly necessary—
where appropriate, carrying out a balancing exercise between the person’s right to
privacy under Article 8 and the defendant’s right to a fair trial under Article 6.28
In the case of an opposing witness whose sex-life the prosecution or defence wish
to expose, this would provide, in practical terms, much the same protection as
would otherwise be provided by section 100 of the CJA 2003 (see §§3.8ff below).
The same solution could potentially apply to other pieces of personal information
that it would be embarrassing to reveal: for example, that a person has suffered
mental illness, or was the victim of a sexual offence.

2.19 Thirdly, evidence of ‘bad character’ includes not only evidence that the person
in question has actually committed criminal offences or other reprehensible acts,
but also evidence of his ‘disposition towards’ doing this. So, for example, it would
include not only evidence that a person had planted bombs or committed burgla-
ries by blowing open safes, but also that he had been collecting information about
how to do so. In sex cases, it would also include evidence that the defendant had a
particular sexual tendency: for example, where a person is accused of paedophile
offences, evidence of his admission that he is sexually attracted to little children.29

27 For this solution I am grateful to Mr Justice Tugendhat, who wrote me a helpful letter suggesting

it as an alternative to the solution I had proposed in the original version of this commentary, prepared
for the Judicial Studies Board.
28 On this, see Z v Finland (1997) 25 EHRR 371, where the European Court of Human Rights

considered whether a wife’s rights under Art 8 were infringed by the disclosure and use in evidence
of information about her HIV status. On the facts, the infringement of her right to privacy was held
to be in principle justified by the prosecutor’s need to use it as evidence against her husband, who
was accused of a criminal offence, a key fact in which was the point in time at which he had become
infected; but there was no justification for the part of the decision of the Finnish court that had the
effect of allowing her medical details to become available to the public.
29 Or evidence of this from other sources, such as grooming, or the possession of child pornography;

as in S [2007] EWCA Crim 1387, A [2009] EWCA Crim 513 and D, P and U [2011] EWCA Crim 1474,
[2013] 1 WLR 676, [2012] 1 CrAppR 8 (97). For a case where, on the facts, such evidence was held
wrongly admitted, see Fox [2009] EWCA Crim 653. Evidence of this sort is most obviously relevant
because it shows D’s disposition to commit this type of offence but the courts seem inclined to shy
away from this, preferring to find it relevant for some other reason; see Mike Redmayne Character in
the Criminal Trial (Oxford, OUP 2015) 173–75, and §4.20 below.

40
Definition of ‘Bad Character’ 2.20–2.23

2.20 In most cases of this type it will obvious that the evidence in question
counts as evidence of ‘bad character’. Indeed, the behaviour indicating disposition
to commit an offence will often constitute a criminal offence itself—as with the
possession of terrorist manuals, or child pornography. But the issue is less clear,
however, where the evidence in question is of D’s interest in a particular activity
which can be pursued either lawfully, or unlawfully. This point is discussed later
(see §§2.22ff below).

2.21 It is likely that evidence of disposition based on matters other than previ-
ous convictions will sometimes be disputed by the defence. In the sort of case
described in the previous paragraph, the defendant might deny admitting that he
is sexually attracted to children, or deny that the child pornography found on his
office computer was downloaded by him. In principle, of course, evidence does
not cease to be admissible because the defendant disputes it: and where he does, its
truth or falsity is a matter for the jury to decide. However, if the disputed evidence
is flimsy, the judge might properly decide to exclude it in his discretion—both
in fairness to the defendant, and in order to avoid a prolonged investigation of
‘satellite issues’ which are of secondary importance. Relevant to this is section 109,
which requires the court to assess the relevant or probative value of a given piece
of evidence on the assumption that it is true—whilst providing that it need not
do this if ‘no court or jury could reasonably find it to be true’. (See further §5.47
below; and for the general discretion to exclude, see §§1.55ff above.)

2.22 Shortly after the bad character provisions of the CJA 2003 came into force,
concern was expressed that the definition of ‘bad character’ in section 98 is dan-
gerously vague. Some expressed the view that the phrase ‘or other reprehensible
behaviour’ left the meaning of ‘bad character’ wide open, with potentially dire
consequences: ‘no matter how hard the courts endeavour to steady the ship, the
Criminal Justice Act 2003 will prove a nightmare of interpretation’.30 But fortu-
nately, the subsequent case law suggests that this potential problem is unlikely to
cause much difficulty in practice.

2.23 The first case in which the Court of Appeal had to confront this issue was
Manister.31 The defendant was accused of serious sexual offences against a girl,
A, allegedly committed when she was 13 and he was 39. The prosecution sought to
support its case by demonstrating that Manister was sexually attracted to girls of
this age-group, by adducing evidence that when 34 he had had a sexual relation-
ship with B, a girl of 16, and that shortly before the alleged offence had said things

30 Roderick Munday, ‘What Constitutes “Other Reprehensible Behaviour” under the Bad Character

Provisions of the Criminal Justice Act 2003?’ [2005] Crim LR 24. The point is taken up, and embel-
lished, by Goudkamp (n 1).
31 Decided together with Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below.

41
2.24–2.25 Evidence of Bad Character

to C, a 15-year-old girl, which made his sexual interest in her evident. None of
his activity with B or C amounted to a criminal offence. The trial judge, however,
ruled that it was ‘other reprehensible behaviour’, hence evidence of ‘bad character’,
and hence admissible against the defendant via ‘gateway (d)’. The Court of Appeal
thought that this behaviour could not properly be described as ‘reprehensible’, and
hence did not constitute ‘evidence of bad character’ for the purpose of section 98
and the rest of the Act. However,
once it is decided that [this evidence] did not amount to ‘evidence of bad character,’
the abolition of the common law rules governing the admissibility of ‘evidence of bad
character’ by section 99(1) did not apply. We have no doubt that the evidence … was
admissible at common law, in the particular circumstances of this case, because it was
relevant to the issue of whether the appellant had a sexual interest in A. It was capable
of demonstrating a sexual interest in early or mid-teenage girls, much younger than the
appellant, and therefore bore on the truth of his case of a purely supportive, asexual
interest in A. It was not in our judgement unfair to admit the evidence (see section 78 of
the Police and Criminal Evidence Act 1978).32
2.24 So, evidence of dubious behaviour which is bad enough to be described
as ‘reprehensible’ will constitute evidence of ‘bad character’ and, if sufficiently
relevant to the issues in the case, will be admissible under sections 100 and 101 of
the Act; and evidence of dubious behaviour which is not bad enough to earn this
title will, if relevant, be admissible at common law, subject to the court’s various
discretionary powers to exclude.33

2.25 A number of cases have now come before the courts in which, when con-
fronted with some questionable activity or tendency, the courts have (in essence)
seen the main issue as one of relevance and the categorisation of the evidence as
of secondary importance. The behaviour in these cases included hanging around
outside public lavatories;34 possession of weapons prohibited in the UK but lawful
in the country where they were possessed;35 a defendant’s habit of making inept
and embarrassing approaches to women unknown to him;36 a tendency when
under the influence of drink or drugs to become very angry;37 and—at first sight
surprisingly, but less so context of the rest of the evidence—the defendant’s having
been the victim of a shooting.38

32 Manister was applied in IJ [2011] EWCA Crim 2734, where D, a married man, was accused of

sexual offences against his adolescent sons, and evidence was held to have been properly admitted
which showed his sexual interest in young men.
33 This paragraph was cited with approval by the Court of Appeal in Fox [2009] EWCA Crim 653

[27], in which the court added, however, that the judge is obliged in such a case to identify the route by
which the evidence is to be admitted.
34 Rossi [2009] EWCA Crim 2406.
35 Ali [2010] EWCA Crim 1619.
36 Ahmed [2012] EWCA Crim 288.
37 Newton [2012] EWCA Crim 2474
38 Cambridge [2011] EWCA Crim 2009, [2012] Crim LR 373.

42
Definition of ‘Bad Character’ 2.26–2.29

2.26 In Gleadall v Huddersfield Magistrates’ Court39 the defence sought to argue

that, as an indirect result of the CJA 2003, the prosecution were now obliged to
furnish them with further details about the character and antecedents of the pros-
ecution witnesses than it had previously been the usual practice to provide. A step
in this argument was (in effect) that section 98 had enlarged the definition of
‘evidence of bad character’ beyond the general notion of bad character which had
existed in the common law before. This notion the Divisional Court rejected:
First, does the Criminal Justice Act extend the scope of evidence of bad character beyond
the scope at common law? The District Judge held that it did not and that it merely pro-
vided a statutory definition which sought to encapsulate the meaning of bad character as
it had been understood at common law. Mr Elvidge, who appeared before this court for
the claimant, conceded the point. In my view he was right to do so.40
2.27 As we have seen, section 98 expressly excludes from the definition of ‘bad
character evidence’ (and hence the statutory limits on its admission) any evidence
of conduct or disposition, no matter how criminal or reprehensible, which ‘has
to do with the alleged facts of the offence with which the defendant is charged’
or which ‘is evidence of misconduct in connection with the investigation or
prosecution of that offence’.41

2.28 Evidence that ‘has to do with the alleged facts of the offence with which the
defendant is charged’ obviously includes direct evidence of the defendant actually
committing the offence. One example of this would be the fact that the defendant
has previously pleaded guilty to an offence which was a component part of the one
currently before the court: as in R, where a man, now on trial for cruelty to children
committed over a period of time, has previously pleaded guilty to assaults against
them during that period.42 Another example would be the fact that D1’s alleged
accomplice, D2, has earlier pleaded guilty to committing the offence together with
him. In Smith (Derek Nathan),43 therefore, the Court of Appeal held that such
evidence,44 although it revealed the ‘bad character’ of a ‘non-defendant’ (D2), was
admissible without having to pass through the restrictive tests set out in section 100
(discussed in Chapter 3). (Having said this, however, the court then said that the
judge should have excluded the evidence under section 78 of PACE.)45

2.29 Evidence that ‘has to do with the alleged facts of the offence with which the
defendant is charged’ also undoubtedly includes other criminal acts which the

39 Gleadall v Huddersfield Magistrates’ Court [2005] EWHC 2283 (Admin) (DC, Smith LJ and

Simon J).
40 ibid [26].
41 For a comprehensive discussion, see Roderick Munday, ‘Misconduct that Has to Do with the

Offence with which the Defendant Is Charged’ (2008) 73 Jo Crim L 214.

42 R [2006] EWCA Crim 3196.
43 Smith (Derek Nathan) [2007] EWCA Crim 2105.
44 Which is in principle admissible under PACE 1984 s 74.
45 Applying Kempster [1989] 1 WLR 1125.

43
2.30 Evidence of Bad Character

defendant commits at the same time and place as the main offence: for example,
when the burglar breaks the window in order to get into the house, or the when
the robber hits his victim in the course of stealing her handbag, or where a thief,
caught in the act, drives off at a dangerously high speed, with fatal consequences,
when trying to escape.46 In sex cases, it covers the behaviour of the parties—
defendant, or complainant, or both—immediately before the commission of the
alleged offence;47 and where D is accused of causing death by careless driving,
it covers evidence of his wild and irresponsible driving just before the accident
that caused the death.48 It presumably also covers other criminal acts which were
committed by way of preparation: for example, in a murder case, the theft or ille-
gal purchase of the weapon. Within limits, the phrase can also cover further acts
which the defendant committed shortly afterwards: as where, having uttered a
threat to kill her neighbour, she repeats the threat again two days afterwards.49
There comes a point, however, at which the evidence is too far removed in time
from the offence.50 Inevitably it will not always be possible to say with precision
where this point is, and in consequence there is a potential overlap between evi-
dence that ‘has to do with the alleged facts of the offence’—and hence is admissi-
ble because it falls outside the definition of bad character evidence—and evidence
that falls inside the ban, but is admissible as ‘important explanatory evidence’
under section 101(1)(c).51 In practice, nothing of any legal significance depends
on which of these two routes it is by which the evidence comes in.

2.30 This point is underlined in a series of ‘belt and braces’ decisions where the
Court of Appeal has said, in effect, ‘we think this evidence fell within section 98(a),
but if we are wrong about that, then it was clearly admissible through one of the
“gateways” set out in section 101’. One such case is Martin.52 Here D was accused of
robbery, and the evidence of bad character was his drug-addiction, which accord-
ing to the prosecution provided the motive for the robbery, because he needed
money to buy drugs. Another is Malone.53 There the defendant was accused of
murdering his wife, and his defence was that she had run off somewhere, as she
was inclined to do, and had died without his intervention. The ‘bad character’

46 Brummitt [2006] EWCA Crim 1629; or that, when the defendant’s house was searched after he

was arrested on suspicion of drug-dealing offences, the police discovered illegal weapons or ammuni-
tion: see Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below, [23].
47 W [2010] EWCA Crim 203; Housen [2012] EWCA Crim 1962.
48 Bishop [2013] EWCA Crim 2413.
49 McNeill [2007] EWCA Crim 2927, (2008) 172 JP 50.
50 As in Saleem, where the defendant was accused of taking part in a violent attack, and the bad

character evidence was his having, some months before, collected (or possibly himself taken) digital
photographs of other violent attacks, and also having, some months before, adapted a ‘rap’ lyric to
announce his intention of violently attacking someone. Though not admissible via s 98(a), the Court
of Appeal held it to be admissible via s 101(1)(d).
51 Or indeed one of the other ‘gateways’ prescribed by s 101.
52 Martin [2005] EWCA Crim 3259.
53 Malone [2006] EWCA Crim 1860.

44
Definition of ‘Bad Character’ 2.31

evidence was that, some time before her death, the defendant had forged a report
purporting to come from a private detective, reporting on his wife’s supposed
habit of going off to other places behind his back.54

2.31 But although there is a potential overlap between section 98(a) and the
‘gateways’ set out in section 101, it should be stressed that it is a limited one. ‘Evi-
dence which has to do with the facts of the offence’ is not the same as ‘evidence which
is relevant to the offence’—or even ‘evidence which is central to the prosecution
case’.55 This point was clearly made by the Court of Appeal in Tirnaveanu.56 Here
D was accused of a range of offences in connection with the illegal entry of immi-
grants from Romania. The prosecution case was that he had provided them with
forged passports, and other false documents. His defence was that it was someone
else who had been doing this. To rebut this defence, the prosecution led evidence
that, during a police search of his properties, quantities of other paperwork appar-
ently connected with other illegal immigrants had been found. This evidence,
the prosecution submitted, was admissible through section 98(a) because it was
‘to do’ with the facts of the case in hand. Rejecting this submission, Thomas LJ
said at [23]:
As counsel for the prosecution accepted, if his submission was right, then in any case
where the identity of the defendant was in issue (including, by way of example, cases of
sexual misconduct), the prosecution would be able to rely on this exclusion to adduce
evidence of misconduct on other occasions which helped to prove identity. It seems to us
that the exclusion must be related to evidence where there is some nexus in time between
the offence with which the defendant is charged and the evidence of misconduct which
the prosecution seek to adduce.
This evidence was admissible, said Thomas LJ, not because it was ‘to do with the
facts of the offence’, but because it was ‘relevant to an important matter in issue
between the defendant and the prosecution’—namely whether it was the defend-
ant or someone else who had committed these offences—and hence it passed
through ‘gateway (d)’ in section 101(1).57
It follows that if D is accused of committing an offence (eg cultivating cannabis)
between dates A and B, evidence suggesting that he was committing the same
offence but earlier in time is not evidence that ‘has to do with the alleged facts of
the offence’—and therefore counts as evidence of bad character.58

54 Other cases where the Court of Appeal took a ‘belt and braces’ approach include Lewis (Colin)

[2008] EWCA Crim 424, McKintosh [2006] EWCA Crim 193 and Ali Ditta [2016] EWCA Crim 8.
55 See D Omerod and R Fortson, ‘Bad Character and Cross-admissibility’ [2009] Crim LR 313.
56 Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3049.
57 This point is sometimes overlooked: as in Vehicle and Operator Services Agency v Ace Crane and

Transport Ltd [2010] EWHC 288 (Admin), where Tirnaveaunu was not cited.
58 Sullivan [2015] EWCA Crim 1565.

45
2.32–2.35 Evidence of Bad Character

2.32 If a ‘nexus in time’ is normally required in order to make the other behaviour
count as having ‘to do with the facts of the offence’, this appears to be subject to at
least two significant exceptions. The first is where the previous misconduct is said
to be the motive for the present crime. In Sule,59 and in Lunkulu,60 the Court of
Appeal held that a previous piece of misbehaviour ‘has to do with the facts of the
offence’ where it provided the motive for the commission the crime.61 Previous
misbehaviour which provides a motive for a later crime will often be close in time
to the crime allegedly committed to avenge it or conceal it—but as readers of
detective novels will be well aware, it may have happened months or even years
before. The second exception is where the commission of a previous crime is a
legal ingredient in the offence with which D is later charged: as where D is accused
of driving whilst disqualified.62

2.33 That evidence of the defendant’s misconduct is admissible where it ‘has to

do with the alleged facts of the offence with which the defendant is charged’ was
nothing new. In principle, such evidence was equally admissible under the rules
relating to evidence of previous misconduct at common law, although there may
have been occasions when it was suppressed through ignorance of the law or
through excessive caution.

2.34 Similarly, evidence of the defendant’s misconduct ‘in connection with the
investigation or prosecution of that offence’ was readily admissible before the 2003
reform. Thus, courts would routinely hear, for example, that the defendant had
resisted arrest, or tried to suborn witnesses, or lied in response to questioning by
the police. Indeed, the question of the weight that should be given to the defend-
ant’s lies under questioning is something which has produced a goodly crop of
case law, none of which is directly affected by the Act.

2.35 As previously mentioned, ‘misconduct in connection with the investigation

or prosecution of that offence’ also falls outside the definition of ‘bad character
evidence’. This applies whether the author of the misconduct is the defendant,
or anyone else. Hence excluded from the definition of bad character evidence
(and hence the machinery prescribed by the CJA 2003 for its admission) would
be evidence that the defendant had tried to put improper pressure on a witness

59 Sule [2012] EWCA Crim 1130.

60 Lunkulu [2015] EWCA Crim 1350; cf Okokono [2014] EWCA Crim 2521.
61 In Stewart [2016] EWCA Crim 447 D was prosecuted for possessing a firearm with intent to
endanger life, his gang membership being adduced to prove intent. The Court of Appeal, referring to
Sule and Lunkulu, ruled that this had “to do with the facts” so was admissible through s.98(a); but this
ruling, with respect, confuses motive and mens rea.
62 Agyemang [2009] EWHC 1542 (Admin); 173 JP 487—where the trial court was castigated for

refusing (astonishingly!) to allow the prosecutor to call evidence of D’s disqualification on the ground
that it was evidence of bad character.

46
Definition of ‘Bad Character’ 2.36–2.37

or potential witness,63 had tried to pressure a co-defendant into taking all the
blame,64 or uttered threats against a person in court when he was on trial.65 Also
excluded for the definition of bad character evidence is evidence of misconduct
(or alleged misconduct) by the police—for example, mistreating the suspect or
inventing a confession. Because this conduct falls outside the definition of ‘bad
character evidence’ contained in section 98, evidence of it is admissible without
reference to section 100, and hence without judicial leave.

2.36 However, it is important also to remember that the defendant who leads
such evidence would have ‘made an attack on another person’s character’—which
exposes him to the risk of having his own bad character examined by virtue of
section 100(1)(g). Under the Law Commission’s proposal, ‘gateway (g)’ would
not have been opened by any attack on another person’s character which involved
accusations of misconduct that had to do with the alleged facts of the offence with
which the defendant is charged, or accusations of misconduct in connection with
the investigation or prosecution of that offence. However, this limitation did not
appeal to the government and, contrary to the Law Commission’s recommenda-
tions, it does not appear in the Act. On this important point, see §4.144 below.

2.37 A recurrent theme in this chapter has been that if evidence of what D has
done in the past is logically relevant to the disputed issues in the case it is likely to
be admissible—whether it is categorised as evidence of bad character as defined by
the initial paragraph of section 98, or excluded from the definition of bad charac-
ter evidence by reason of subsection 98(a) or 98(b). This being so, does it matter
for any practical purposes on which basis the court decides to allow the evidence
to be adduced? In Fox66 the Court of Appeal said that when admitting evidence of
this sort the court must specify the basis on which it does so; but it seems unlikely
that a conviction would be quashed merely because the evidence was wrongly cat-
egorised if the appeal court thought the evidence was truly relevant. However, in a
jury trial the judge is usually expected, where evidence of bad character is admit-
ted, to give the jury a direction along the lines prescribed by the Court of Appeal
in various cases—a duty from which the judge is excused if the evidence does not
count, in law, as evidence of bad character. If the required direction is not given,
this is likely to be a ground of appeal—and could potentially result in the convic-
tion being quashed.67

63 Surprisingly, in S [2009] EWCA Crim 2457 the Court of Appeal thought that evidence of the

defendant’s having put improper pressure on a potential witness did constitute evidence of bad
character; but with respect, this must be wrong.
64 Apabhai [2011] EWCA Crim 917; cf Haxihaj [2016] EWCA Crim 83.
65 In Mahil and others [2013] EWCA Crim 673 the trial judge assumed that s 98(b) did not apply,

and when dismissing D’s appeal the Court of Appeal said that it was ‘content to proceed on the basis
that the judge’s reaction that this matter did not come within Section 98(1)(b) was correct’. With
respect, it should be obvious that s 98(b) did apply.
66 Fox [2009] EWCA Crim 653.
67 As in Sullivan [2015] EWCA Crim 1565.

47
2.38 Evidence of Bad Character

2.38 At the end of this chapter a final word is needed about ‘lifestyle evidence’
where someone is accused of possessing drugs with intent to supply. Case law
from well before the 2003 Act established that where D was accused of such an
offence it was permissible for the Crown to adduce evidence of his having an
extravagant lifestyle which had no honest explanation.68 In decisions after the CJA
2003 came into force the Court of Appeal has held that this sort of evidence is
still admissible—and furthermore, that it is admissible without reference to the
bad character provisions of that Act.69 This is puzzling. In most if not all cases,
‘lifestyle evidence’ is evidence suggesting that D makes a habit of committing the
crime with which he is accused of an example now. In other words, this is evidence
(albeit circumstantial evidence rather than direct evidence) of D’s previous com-
mission of a crime—and as such it is difficult to see how it fails to fall within the
definition of ‘bad character evidence’ set out in section 98. In principle, surely,
such evidence should be treated as admissible (or not) by reference to the bad
character provisions of the 2003 Act.70

68 For the earlier authorities, see Archbold (2016) §27–71ff.

69 Graham [2007] EWCA Crim 1499; Green [2009] EWCA Crim 1688.
70 See the commentaries on Green in [2010] Crim LR 306 and in Criminal Law Week 2010/11/1.

48
3
The Bad Character
of Non-Defendants

3.1 Section 100 of the CJA 2003 is as follows:

(1) In criminal proceedings evidence of the bad character of a person other than the
defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
(2) For the purposes of subsection (1)(a) evidence is important explanatory
evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to
understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3) In assessing the probative value of evidence for the purposes of subsection (1)(b)
the court must have regard to the following factors (and to any others it considers
relevant)—
(a) the nature and number of the events, or other things, to which the evidence
relates;
(b) when those events or things are alleged to have happened or existed;
(c) where—
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of simi-
larity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the
alleged instances of misconduct;
(d) where—
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct
charged, and
(iii) the identity of the person responsible for the misconduct charged is
disputed,
the extent to which the evidence shows or tends to show that the same person was
responsible each time.
(4) Except where subsection (1)(c) applies, evidence of the bad character of a person
other than the defendant must not be given without leave of the court.

49
3.2–3.4 Evidence of Bad Character

3.2 At first sight, this provision looks as if it is primarily concerned with what
Scots lawyers call ‘the defence of incrimination’: where the defence case is that the
person who committed the offence was really someone else. And the section also
looks as if it might concern ‘background evidence’ that implicates third parties—
for example, where D is accused of a sexual offence against P, a minor, and the
prosecution case is that it took place in a brothel run by a third party, X. But
although it potentially applies in these ‘third party’ situations, this is not in fact
its primary purpose. Its main aim is to restrict what can be put to witnesses in the
course of cross-examination.

3.3 This is not immediately obvious, because unlike provisions in other legislation
designed to restrict cross-examination,1 section 100 does not explicitly say that ‘no
evidence may be adduced and no question may be asked’. Instead, it talks generally
about when evidence of bad character is ‘admissible’. So, on a casual reading, it is
possible to assume that section 100 is simply about when a party can adduce evi-
dence, rather than what can be done in cross-examination. But the wider purpose
of the section is plain from its legislative history. Section 100 derives from parts
of the Law Commission’s Draft Bill which were drafted with a view to protecting
witnesses from needlessly offensive cross-examinations. That section 100 controls
the introduction of evidence via cross-examination is also underlined by the stat-
utory context: the subsequent sections, dealing with evidence of the bad character
of the defendant, are clearly meant to limit cross-examination—and use the same
‘evidence is admissible’ formula.

3.4 The type of cross-examination against which the Law Commission wished to
see witnesses protected was, of course, primarily cross-examination as to credit:
the extraction from the witness of discreditable incidents from his past, with a
view to persuading the court that his evidence is not to be believed. The wording
derives from the Law Commission’s Report and Draft Bill, from which it appears
that the draftsman meant the phrase in section 1(1)(b) referring to ‘[evidence
that] has substantial probative value in relation to a matter which is a matter in
issue in the proceedings’ to cover both evidence that is directly relevant to an issue
in the proceedings and evidence bearing on the credibility of the witness who
testifies about it. Unsurprisingly, therefore, the Court of Appeal in Yaxley-Lennon
resoundingly rejected the argument of the appellant that section 100(1) is con-
cerned with evidence of bad character relating to an issue, but not to credibility:2
[I]n our view, section 100(1) does cover matters of credibility. To find otherwise would
mean that there was a significant lacuna in the legislation with the potential for unfair-
ness. In any event, it is clear from paragraph 362 of the Explanatory Notes that the issue
of credibility falls within the section.

1 For example, Youth Justice and Criminal Evidence Act 1999 s 41.
2 Reported together with Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288
below, [73].

50
The Bad Character of Non-Defendants 3.5–3.6

Evidence Implicating Non-Defendants in the Offence

3.5 Although section 100 seems to have been primarily devised with a view to
controlling the adduction of evidence relating to credit, there is no doubt that it
also covers the adduction of evidence (whether in chief or by cross-examination)
that is relevant to issue. So it therefore potentially applies in cases where either the
prosecution or the defence case involves heaping blame on someone other than—
or in addition to—the defendant. Its potential application in this type of case is
limited, however, by the restricted definition of ‘bad character evidence’ set out in
section 98. As we have seen, section 98 excludes from the definition (and hence
from the restrictions contained in sections 100 and 101) evidence of misbehaviour
‘that has to do with the alleged facts of the offence’ or ‘is evidence of misconduct
in connection with the investigation or prosecution of that offence’. To go back to
the hypothetical case described above where the prosecution accuse D of having
under-age sex with P in X’s brothel, the fact that X runs a brothel clearly ‘has to
do with the alleged facts of the offence’ and so would not count as ‘bad charac-
ter evidence’, and would be admissible without any reference to section 100. The
same would no doubt be true where the prosecution accuse D of wounding P and
D admits the injury but claims self-defence. The evidence that P had attacked
D qualifies the facts that the prosecution allege and so clearly ‘has to do with the
alleged facts of the offence’.3 However, cases will occasionally arise where evidence
of a third party’s bad character will be relevant, although it is neither evidence that
‘has to do with the facts of the offence’ nor ‘evidence of misconduct in connection
with the investigation or prosecution of that offence’; and where this is so, it is
only admissible if the requirements of section 100 are met. An example would be
where D is prosecuted for conspiring with X and Y to launder money from drug
dealing, D claims that his dealings with X and Y were innocent, and to rebut this
defence the prosecution wishes to adduce evidence of X’s and Y’s criminal records
for smuggling drugs.4 Another example would be where D, accused of beating V,
claims that V’s injuries were inflicted not by him but by a drug-dealer seeking to
collect a debt—and in support of his claim, D seeks to adduce evidence of V’s
dealings with violent drug-dealers in the past.5

3.6 But what about the case where D denies the wounding and runs a defence
that the person who really did it was X? Is this also admissible without reference to
section 100? Taking a commonsense view, evidence of this sort falls clearly within

3 See §2.35 above, and Machado [2006] EWCA Crim 837, 170 JP 400.
4 Cf Rand and others [2006] EWCA Crim 3021.
5 Cf Luckett [2015] EWCA Crim 1050. Further examples from the case law are Buaduwah-Esandol

[2005] EWCA Crim 3580, where D’s son’s convictions for drug offences were admissible to help estab-
lish her mens rea on a charge of conspiracy to supply drugs, and Wright [2013] EWCA Crim 820, where
D’s relatives’ involvement in motor insurance frauds were admissible at D’s trial for practising a similar
fraud.

51
3.7–3.9 Evidence of Bad Character

the spirit of section 98(a), which seeks to remove from the scope of ‘bad character
evidence’ (and hence the restrictions on adducing it) all evidence directly related to
the commission—or non-commission—of the offence. However, if section 98(a)
is read narrowly, it might be said to fall outside the scope of the phrase ‘[evidence
which] has to do with the alleged facts of the offence with which the defendant is
charged’ because it does not ‘have to do with’ the ‘alleged facts’ meaning the facts
that are alleged by the prosecution. In practical terms, this narrow reading has
nothing to commend it and it surely ought to be rejected.

3.7 However, if the defence not only alleges that X did it, but seeks to support its
theory by calling evidence of what X has done before, section 100 would undoubt-
edly apply. This is clear inter alia from section 100(3)(b), which requires the court,
when deciding whether to admit evidence of a third party’s misconduct, to weigh
up various factors, one of which is declared to be:
(d) where—
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct
charged, and
(iii) the identity of the person responsible for the misconduct charged is dis-
puted, the extent to which the evidence shows or tends to show that the same
person was responsible each time.

Section 100 and Cross-examination of Witnesses

as to Character

3.8 According to section 100(1), evidence of a non-defendant’s bad character is

admissible:
if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
3.9 As previously mentioned (see §§3.3–3.4 above), there is nothing in this list
that refers explicitly to evidence of a non-defendant’s bad character being admis-
sible where he is a witness and it is relevant to his credibility, but there is no doubt
that the provision covers this. In the light of this, questions to a witness s uggesting
he is not credible because he is of bad character are clearly admissible—but they
now have to pass the filter created by section 100(1), as elaborated by the subsec-
tions that follow it. The effect of these is to impose a test of what might be called
‘enhanced relevance’. It is not enough that the evidence is merely ‘relevant’: if it is

52
The Bad Character of Non-Defendants 3.10–3.12

advanced as ‘explanatory evidence’ under subsection 100(1)(a) it must be ‘impor-

tant explanatory evidence’; and if it is to be adduced as relevant to ‘a matter in
issue’ in the proceedings, it must have ‘substantial probative value’ in relation to
that issue, and the issue must be one that is ‘of substantial importance in the con-
text of the case as a whole.’ In addition to that, by virtue of section 100(4), such
questions now require judicial leave.

3.10 How does this affect the previous law, which gave cross-examiners great
freedom to question witnesses about discreditable incidents or tendencies, in
order to undermine their credibility?

3.11 The first (and very obvious) point to make is that the general effect of
section 100 is to restrict what could be done before, rather than to extend it.
Section 100 clearly imposes restrictions that did not exist before. In Gleadall v
Huddersfield Magistrates’ Court,6 as we have seen (§2.26 above), the Divisional
Court rejected the notion that section 98, which defines ‘bad character evidence’
for the purpose of sections 100 and 101, widens the range of matters which count
as ‘bad character’ beyond the scope of the concept as it was known before—hence
indirectly opening the door for the cross-examination of witnesses about a wider
range of discreditable matters.

Can a Witness be Asked Whether he has a

Criminal Conviction?

3.12 Before the bad character provisions of the CJA 2003 came into force, this was
covered by section 6 of the Criminal Procedure Act (CPA) 1865. This used to say:
A witness may be questioned as to whether he has been convicted of any felony or mis-
demeanour, and upon being so questioned, if he either denies or does not admit the
fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such
conviction …
The CJA 20037 amended this provision slightly so that it now reads:
If upon a witness being lawfully questioned as to whether he has been convicted of any
felony or misdemeanour … he either denies or does not admit the fact, or refuses to
answer, it shall be lawful for the cross-examining party to prove such conviction …
(emphasis added)

6 Gleadall v Huddersfield Magistrates’ Court [2005] EWHC 2283 (Admin) (DC, Smith LJ and

Simon J).
7 CJA 2003 Sch 36, Part 5, para 79.

53
3.13–3.15 Evidence of Bad Character

3.13 So, in future, the answer is that a witness may be asked in cross-examination8
whether he has a criminal conviction, but only where CJA 2003 section 100 applies;
and this will normally mean satisfying section 100(1)(b), which (in effect) makes
evidence of the witness’s bad character admissible where the witness is giving evi-
dence as to an important issue and the bad character makes a major dent in the
witness’s credibility. Both of these elements are important. Not only must the con-
viction make a major dent in the witness’s credibility: the evidence that he or she
has given must relate to a matter which ‘is of substantial importance in the context
of the case as a whole’.

3.14 Some convictions bear on the credibility of the witness directly, because they
provide a reason for doubting the truth of the particular evidence the witness
has given in this particular case. If the alleged victim of an assault claims that the
defendant was the aggressor, we are less inclined to believe him when we discover
that he has (say) five previous convictions for acts of violence himself.9 But other
convictions bear on credibility only indirectly, by inviting us to reason ‘a person
who would do something like that is not a person whose word can be trusted’.
As the Court of Appeal once put it when rejecting an application to call a new
witness whose evidence would allegedly establish the appellant’s innocence:
Mr Washington [!] is a man with numerous previous convictions including no less than
32 for theft, burglary, handling or obtaining by deception and a further four for fraud or
forgery. None of that of course means that he is not telling the truth today, but it does
indicate that his honesty cannot be taken for granted.10
Under the new law, there will be little difficulty about the admissibility of a
witness’s convictions in the first type of case, where they bear on his credibil-
ity directly. However, difficulties will arise in cases where, if at all, the witness’s
criminal record only undermines his credit indirectly.

3.15 As to how far convictions damage the credibility of a witness in this sense,
the previous law contained two schools of thought. One was that any crimi-
nal conviction, however old or trivial, affected the credibility of a witness by
definition—and could therefore be explored in cross-examination. The alterna-
tive view was that convictions must pass a certain threshold of gravity and fresh-
ness before a witness could properly be asked about them. This was the view of
Lawton J in Sweet-Escott,11 where he ruled that convictions for drunken driving

8 This provision is, of course, designed to apply to the cross-examination of an opponent’s

itnesses. As to how far (if at all) a party is entitled to ask his own witness whether he has criminal
w
convictions, see Ross [2007] EWCA Crim 1457; [2008] CrimLR 306.
9 Or where V accuses D of assaulting her, D claims that her accusation was made to distract atten-

tion from the fact that she had stolen his gold necklace—and V has a criminal record for offences
related to theft: S (Andrew) [2006] EWCA Crim 1303, [2007] 1 WLR 63, [2006] 2 CrAppR 31 (437).
10 Devon [2006] EWCA Crim 388.
11 Sweet-Escott (1971) 55 CrAppR 316.

54
The Bad Character of Non-Defendants 3.16

and for petty theft ‘including one for which a prison sentence had been imposed’
were not material to the credit of a middle-aged witness, given that they were
20 years old and dated from his youth. The test, he said, was whether a fair-minded
tribunal would think that these matters affected the standing of the witness.

3.16 Under section 100, it seems to be the Sweet-Escott approach that now
prevails. In Yaxley-Lennon,12 for example, the question before the Court of Appeal
was whether the prosecution should have been permitted to ask the key defence
witness to an offence of assault occasioning actual bodily harm about a caution13
she had received for possessing cocaine. The Court of Appeal thought not, agree-
ing with the trial judge’s assessment that the caution ‘has got as much to do with
this case as the price of tomatoes’. In Berry,14 where the defendant was prosecuted
for wounding with intent to cause grievous bodily harm by ripping the complain-
ant’s stomach open with a knife, the Court of Appeal approved of the judge’s
refusal to admit evidence of the complainant’s two previous convictions for ABH,
one previous conviction for common assault and one previous conviction for
drunk and disorderly, all of which were over ten years old. And in Garnham,15
where the defendant was accused of raping a prostitute who at an earlier stage in
her life had notched up an extensive record for theft and other offences of dishon-
esty, the Court of Appeal endorsed the trial judge’s refusal to allow the defence to
cross-examine her about her previous convictions. In so holding, they said at [12]:
We do not find reference to the old cases to be of real value and discourage their rep-
etition. It is important to underline that the 2003 Act specifically legislated to provide
restraint on the common law ability to cross-examine about previous misconduct sim-
ply for the purpose of impugning credit. The reasons given by the Law Commission for
this restriction were the power of evidence of bad character to distort the fact-finding
process, the need to encourage witnesses to give evidence and the need for the courts ‘to
control gratuitous and offensive cross-examination of little or no purpose other than to
intimidate or embarrass the witness or muddy the waters’ (see paragraph 9.35 Law Com
No 272).
A similar approach towards stale and/or relatively minor convictions can seen in
a number of other cases.16
But if the convictions were for more serious offences the position will be
different—particularly if they were recent, or relatively recent. In Docherty,17
for example, the defendant’s conviction for intimidating a witness was quashed

12 Reported with Weir [2005] EWCA Crim 2866 [2006] 1 CrAppR 19 (303), p 288 below. But it goes

without saying that, in some cases, the fact that a witness has or had a drug problem may have a crucial
bearing on his or her credibility as a witness; for an example, see G [2007] EWCA Crim 2468.
13 For the status of cautions as evidence, see §§5.28ff below.
14 Berry [2009] EWCA Crim 39.
15 Garnham [2008] EWCA Crim 266.
16 Lewis [2012] EWCA Crim 3233; Francis [2013] EWCA Crim 2312; R (Jefferies) v St Alban’s Crown

Court [2012] EWHC 338 (Admin).

17 Docherty [2012] EWCA Crim 2948.

55
3.17–3.20 Evidence of Bad Character

when it later emerged that the key prosecution witness, who had been presented
to the court as someone of good character, had on his record convictions for rape,
section 20 wounding and assault, all within the last ten years, plus older convic-
tions for (inter alia) the fraudulent use of an excise licence and an excess alcohol
offence.18 A further illustration is Brewster, discussed in §3.23 below.

3.17 Issues of freshness and gravity aside, must the previous offence, or the
defendant’s behaviour in trying to avoid a conviction for it, demonstrate a par-
ticular tendency to lie? Or does the law take the hard-nosed view that, as a general
proposition, all convictions (other than trivial or ancient ones) undermine the
credibility of those who have them?

3.18 Under the previous law, it was the second of these assumptions on which the
courts operated. Thus, in Paraskeva,19 for example, a conviction for assault was
quashed when, after the trial, it emerged that the alleged victim had a previous
conviction for theft, about which the defence were unable to cross-examine him
because they did not know about it. It was on this basis that it has always been
the practice of the prosecution to inform the defence of any of their witnesses
who have a criminal record. However, when the CJA 2003 was first enacted it was
arguable that this was no longer the position.

3.19 As we shall see, under the new rules governing evidence of the bad character
of the defendant, the defendant’s previous convictions (and general bad charac-
ter) may now be given where these suggest, inter alia, that ‘the defendant has a
propensity to be untruthful’.20 In this new context, the Court of Appeal in Hanson
made it plain that convictions should only be admitted as showing a propensity
to be untruthful when they actually suggested that the defendant had earlier told
a lie, either in committing the offence, or afterwards, by falsely denying that he
had committed it to the police, or in court when giving evidence; and in the light
of this, they said, his previous convictions—even for offences of ‘dishonesty’ such
as theft—could not be adduced, without more, as showing his ‘propensity to be
untruthful’.

3.20 Logically, this line of reasoning could also have been applied to the previous
convictions of witnesses.21 However, this would have produced a major change

18 And compare South [2011] EWCA Crim 754, where the Court of Appeal thought that where an

alibi witness had 53 previous convictions, it would have been right for the jury to hear about at least
a selection of them.
19 Paraskeva (1982) 76 CrAppR 162.
20 CJA 2003 s 103(1)(b); see §§4.95ff below.
21 This issue also arises in situations where two defendants run ‘cut-throat defences’ and one wishes

to undermine his co-defendant’s case by bringing in his criminal record; see §§4.103ff below. And see
generally Roderick Munday, ‘Cut-throat Defences and the “Propensity to be Untruthful” under s 104 of
the Criminal Justice Act 2003’ [2005] Crim LR 624.

56
The Bad Character of Non-Defendants 3.21–3.23

from the position as it always used to be, and one that that was not obviously
desirable. To take an extreme example, if the star prosecution witness at a trial had
convictions for murder, rape, grievous bodily harm and arson, it would have meant
that his criminal record would now have to be withheld from the jury, because—
thanks to his having invariably made full use of the right to silence—neither the
crimes themselves nor his subsequent convictions show that he has ever lied. The
narrow view the Court of Appeal took in Hanson on when the defendant’s pre-
vious convictions are admissible as suggesting a ‘propensity to be untruthful’ is
understandable within that context. If given too wide a scope, the provision allow-
ing the court to hear about a defendant’s criminal record where it shows he ‘has a
propensity to be untruthful’ would circumvent the restrictions that the CJA 2003
attempts to impose on admitting the defendant’s criminal record in order to show
he has a propensity to commit crimes. But these considerations do not apply to
witnesses. The defendant, unlike a witness, is on trial and runs the risk of being
convicted and punished at the end.

3.21 After some initial hesitation, the Court of Appeal declined to apply the rea-
soning in Hanson and has now taken the position that, in principle, the credibility
of a witness is potentially dented by a conviction for any crime if it was sufficiently
serious.

3.22 In S (Andrew)22 the Court of Appeal was confronted with a case in which
the defendant was accused of indecently assaulting a prostitute. Citing Hanson, it
said that the complainant’s convictions for theft and theft-related offences were
not admissible to undermine her general credibility; but as the defence case was
that she had invented the complaint as a cover for having stolen the defendant’s
gold necklace, her record should have been admitted because it showed she had a
tendency to steal, and hence was directly relevant; a similar line was taken in the
later case of Goddard.23 However, in other cases differently constituted Courts of
Appeal said the opposite, taking the position that a witness’s credibility can in
principle be undermined by a conviction for any type of offence—whether or not
it shows the defendant to have been untruthful in the past, or even to have been
generally dishonest.24

3.23 In 2010 the Court of Appeal faced up to this conflict of authority, and resolved
it, in Brewster and another.25 The defendants had been tried and convicted for

22 S (Andrew) [2006] EWCA Crim 1303, [2007] 1 WLR 63, [2006] 2 CrAppR 31 (437).
23 Goddard [2007] EWCA Crim 3134.
24 Stephenson [2006] EWCA Crim 2325; Hester and McKray [2007] EWCA Crim 2127; Ivers [2007]

EWCA Crim 1773; Redmond [2006] EWCA Crim 1744, [2009] 1 CrAppR 25(335).
25 [2010] EWCA Crim 1194, [2011] 1 WLR 601, [2010] 2 CrAppR 20 (149); applied in Hussain

[2015] EWCA Crim 383.

57
3.23 Evidence of Bad Character

offences of kidnapping and theft. The prosecution alleged that they had hijacked a
woman’s car and forced her to drive them to a cash-machine and there to let them
use her card to draw out money, in response to which the defence claimed that
the encounter had been entirely innocent. The prosecution case depended almost
entirely on the evidence of the woman, who had a substantial criminal record—
including a spectacular conviction for manslaughter, arising from her driving off
in someone else’s car while the owner clung to the bonnet in a vain attempt to
prevent her taking it. To each accusation she had, however, pleaded guilty; and
from this the trial judge deduced that her criminal record ‘could not possibly go
to the question of honesty or otherwise’ and on the basis of this ruling refused
to allow the defence to cross-examine her about it. Quashing the conviction, the
Court of Appeal said that the cross-examination should have been permitted.
Section 100 of the CJA 2003, it said, was meant to ‘remove from the criminal trial
the right to introduce by cross-examination old or irrelevant or trivial behaviour
in an attempt unfairly to diminish in the eyes of the tribunal of fact the standing
of the witness, or to permit unsubstantiated attacks on credit’—but subject to
that, it is still permissible to adduce evidence of bad character that undermines the
credibility of the witness indirectly, rather than directly.26
[22] It seems to us that the trial judge’s task will be to evaluate the evidence of bad
character which it is proposed to admit for the purpose of deciding whether it is rea-
sonably capable of assisting a fair-minded jury to reach a view whether the witness’s
evidence is, or is not, worthy of belief. Only then can it properly be said that the evi-
dence is of substantial probative value on the issue of creditworthiness. In reaching this
view, with respect to the court in R v S,27 we agree with the observations of Hughes LJ
in S tephenson.28 It does not seem to us that the words ‘substantial probative value’, in
their section 100(1)(b) context, require the applicant to establish that the bad character
relied on amounts to proof of a lack of credibility of the witness when credibility is an
issue of substantial importance, or that the convictions demonstrate a tendency towards
untruthfulness. The question is whether the evidence of previous convictions, or bad
behaviour, is sufficiently persuasive to be worthy of consideration by a fair-minded tri-
bunal upon the issue of the witness’s creditworthiness. When the evidence is reasonably
capable of giving assistance to the jury in the way we have described, it should not be
assumed that the jury is not capable of forming an intelligent judgment whether it in fact
bears on the present credibility of the witness and, therefore, upon the decision whether
the witness is telling the truth. Jurors can, with suitable assistance from the judge, safely
be left to make a proper evaluation of such evidence just as they are when considering
issues of credibility and propensity arising from a defendant’s bad character.

26 Referring with approval to the second edition of this book, §3.15 of which was quoted in the

judgment.
27 S (n 22).
28 Stephenson (n 24).

58
The Bad Character of Non-Defendants 3.24–3.26

Can a Witness be Asked, or Evidence be Led, about Alleged

Crimes not Resulting in Conviction?

3.24 In principle, witnesses can be asked in cross-examination not only about their
criminal convictions, but more generally about their criminal activities, including
criminal offences committed by them for which they have never been convicted.
However, this gives rise to difficulties that are not present when the fact that the
witness committed the offence can be established by proving a conviction.29

3.25 The first problem is often the nature of the ‘evidence’ which shows, or sup-
posedly shows, that the witness has committed a crime (or some other form of
‘reprehensible behaviour’). In practice, this will often be an allegation to that
effect made—or allegedly made—by a person who is not a witness in the case. As
explained elsewhere in this book,30 it is now well established that an out-of-court
allegation of this sort is not usually admissible as evidence of the subject of the
allegation. This is because an out-of-court statement of this sort is, as a matter of
law, a piece of hearsay, and as such it is only admissible under one of the exceptions
to the hearsay rule, now set out in section 114 of the CJA 2003.31 So, for example, it
is not permissible to use, as evidence that a witness (or a defendant) has commit-
ted a criminal offence, the fact that the police, believing he has done so, have made
him the subject of a CRIS report,32 or even that he has been formally accused of an
offence for which he is currently awaiting trial.33 Much less would it be permissible
to use as evidence the fact that someone made a complaint to the police which
they then withdrew,34 or that an allegation has been made at some point by some
person whose identity is unknown—or if known, not revealed.35

3.26 In principle, material which would be inadmissible as evidence-in-chief

cannot be put to witnesses in cross-examination: a cross-examination must not
be used as a device for smuggling in evidence of a type that falls within one of
the exclusionary rules—like privilege, opinion or hearsay.36 From this it follows
that, in principle, cross-examiners are not permitted to confront their oppo-
nents’ witnesses with allegations of the sort that were described in the previous
paragraph. In practice this rule is sometimes overlooked, or a judicial blind eye
turned to it when it is broken. But since the CJA 2003 came into force the Court

29 On the legal status of convictions as evidence, see §§5.12ff below.

30 §§5.32ff below.
31 On this see generally JR Spencer, Hearsay Evidence in Criminal Proceedings, 2nd edn (Oxford,
Hart Publishing, 2014).
32 Braithwaite [2010] EWCA Crim 1082, [2010] 2 CrAppR 18 (128).
33 Miller [2010] EWCA Crim 1153, [2010] 2 CrAppR 19.
34 See Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401), p 248 below, at [21].
35 Abbas v CPS [2015] EWHC 579 (Admin), [2015] 2 CrAppR 11.
36 Blackstone’s Criminal Practice (2016) §F7.13. Gray [1998] Crim LR 570, P [1989] Crim LR 897.

59
3.27–3.28 Evidence of Bad Character

of Appeal has stressed that this rule is important and ought to be observed. In
Miller37 the Court of Appeal said that the Crown should not have been permitted
to cross-examine a defence witness about offences of which he was accused and
was awaiting trial, and in so saying, added:
The purpose of s 100 in the present context is to limit the ambit of cross-examination to
that which is substantially probative on the issue of credibility, if credibility is an issue of
substantial importance in the case. One of its intended effects is to eliminate kite-flying
and innuendo against the character of a witness in favour of a concentration upon the
real issues in the case.
3.27 In some cases, on the other hand, there will be legally admissible evidence
suggesting that the witness has committed a criminal offence not resulting in a
conviction. Persons may be available to testify who have first-hand knowledge of
the commission of the offence, or the witness may have confessed to it—when
being cautioned by the police, for example, or to a friend or associate informally.38
But if this is so, the evidence may be disputed—and with greater likelihood of
success than where the evidence of commission is a conviction for committing it.
This raises the unwelcome prospect of the attention of the tribunal of fact being
diverted away from the central question of the defendant’s guilt or innocence into
time-consuming ‘satellite issues’. How far the court has a discretion, as such, to
prevent this by refusing to allow the evidence to be called is a tricky question that
will be examined later in this chapter (§3.52 below).

3.28 However, it must be remembered that whether a given witness’s past

criminal behaviour (however proved) satisfies the test of ‘enhanced relevance’ set
out in section 100(1) will often depend on the facts of the case and the nature
of his involvement in it, as well as the nature of his past behaviour. If D is on
trial for assault and W, an independent witness who was undoubtedly present and
who has no obvious motive to lie, asserts that D was the aggressor, it is of little
relevance that W has a conviction for obtaining by deception. The main issue on
these assumed facts is not W’s honesty but his ability to observe. On the other
hand, if W was a friend of the victim, or if W had come forward in response to
the offer of a reward, then his honesty is a live issue and his track record as a
proven liar is obviously r elevant.39 Similarly, the evidence might fail to satisfy the
test of ‘enhanced relevance’ in section 100 because it is surplus to requirements,
other undisputed evidence having already amply exposed the witness as a rogue
or villain.40

37 Miller (n 33) [20]; and see Shah [2015] EWCA Crim 1250, [50]–[55].
38 These matters are examined in greater detail in ch 5 below: see §§5.18–5.27.
39 Those who attended the Judicial Studies Board training sessions will remember the hypothetical

problem involving the venal witness appropriately named ‘Seymour Cash’. For a real case where D’s line
of defence made the witness’s bad character irrelevant, see Muhadeen [2015] EWCA Crim 83.
40 As in Walsh [2012] EWCA Crim 2728.

60
The Bad Character of Non-Defendants 3.29–3.31

3.29 So the judge does have some degree of elbow-room here, and his or her
decision on what is essentially an evaluative question will not usually be open to
appeal. As the Court of Appeal said in Renda and others:41
Several of the decisions or rulings questioned in these appeals represent either judge-
ments by the trial judge in the specific factual context of the individual case, or the
exercise of judicial discretion. The circumstances in which this Court would interfere
with the exercise of a judicial discretion are limited. The principles need no repetition.
However we emphasise that the same general approach will be adopted when the Court
is being invited to interfere with what in reality is a fact specific judgement. As we explain
in one of these decisions,42 the trial judge’s ‘feel’ for the case is usually the critical ingre-
dient of the decision at first instance which this Court lacks. Context therefore is vital.
The creation and subsequent citation from a vast body of so-called ‘authority,’ in reality
representing no more than observations on a fact specific decision of the judge in the
Crown Court, is unnecessary and may well be counterproductive. This legislation has
now been in force for nearly a year. The principles have been considered by this Court
on a number of occasions. The responsibility for their application is not for this Court
but for trial judges.
3.30 If, on leave being given, a witness is questioned about a criminal conviction
and denies it, or refuses to answer the question, section 6 of the Criminal Proce-
dure Act 1865 expressly provides that ‘the cross-examining party’ may prove the
existence of the conviction. Where a witness is questioned about a crime that did
not result in a conviction, or about some form of ‘reprehensible behaviour’ that
does not amount to a criminal offence, the position is less clear. We are then in
the murky territory of ‘collateral finality’: the rule, or supposed rule, that when
a witness is asked in cross-examination a question relating to his credibility—as
against a question relating to the issues in the case—the cross-examining party is
not usually entitled to call evidence to show that the answer was untrue. How far,
if at all, the ‘collateral finality’ rule survives today is a matter of dispute, and is not
considered further here.43

Can a Witness be Asked, or Evidence Led to Suggest, that

a Witness has said Something Different to his Courtroom
Testimony on an Earlier Occasion?

3.31 In principle, plainly yes. There is no difficulty, of course, where the overtone is
that the witness has made a mistake, rather than has told a lie. If there is no sugges-
tion of lying, then the question will not relate to the ‘bad character’ of the w itness.

41 Renda and others [2005] EWCA Crim 2826, p 310 below.

42 Osbourne, ibid, [57]; see also Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238
below, [15].
43 See further, Archbold (2016) §§8.281ff; Blackstone’s Criminal Practice (2016) F7.42–F7.44;

Roderick Munday, Evidence, 8th edn (2015) §§4.47ff; Ian Dennis, The Law of Evidence, 5th edn (2013)
§§14.028ff.

61
3.32–3.33 Evidence of Bad Character

If the question (or evidence) does suggest that the witness has told a lie, then
section 100 is potentially applicable. However, in most cases the lie (if there was
one) will have been told in the course of the investigation. As previously explained
(§§2.27–2.32 above), the ‘bad character’ provisions of the CJA 2003 do not apply
to bad character that takes the form of ‘misconduct in connection with the inves-
tigation or prosecution of [the] offence’. So, if the suggestion is that the witness
lied to the police, or told the truth to the police but subsequently lied in court,
questions can clearly be asked about this without recourse to section 100. (But, as
is explained elsewhere, a defendant who asks such a question risks the admission of
evidence of his own bad character via ‘gateway (g)’: see §4.144 below.)

What is the Current Status of R v Rowton?

3.32 In Rowton,44 it was held to be permissible for a party to attack the credit of his
opponent’s witness by calling another witness, asking if he knows the opponent’s
witness, and then asking—in the expectation of a negative answer—whether from
what he knows of him he would believe his word on oath.45 The implication of
such evidence is that the first witness is in the habit of telling lies, which would
fall within the definition of ‘bad character’ in section 98 and hence bring the issue
within the framework of section 100. But such evidence would presumably pass
the test laid down in section 100(1)(b), because it would bear centrally upon the
witness’s credibility. So it would be admissible unless–as is unlikely–the evidence of
the witness is not ‘of substantial importance in the context of the case as a whole’.

What is the Status Now of Toohey v Metropolitan

Police Commissioner?

3.33 In that case,46 the House of Lords ruled that it is permissible to lead evidence
suggesting that your opponent’s witness is not to be believed because he is or was
mentally disturbed. Section 100 does not affect this. Section 100 concerns evidence
of ‘bad character’, and although allegations of mental illness count as defamatory
for the purpose of libel and slander, mental illness or disturbance clearly does
not fall within the definition of ‘bad character’ laid down in section 98. This issue
was discussed in Tine,47 where a defendant appealed against his conviction for

44 Rowton (1865) 10 Cox 25.

45 Cf Richardson [1969] 1 QB 299. It is not permissible to take the questioning further and ask the
second witness why he would not believe the first.
46 Toohey v Metropolitan Police Commissioner [1965] AC 595.
47 Tine [2006] EWCA Crim 1788.

62
The Bad Character of Non-Defendants 3.34–3.36

a ggravated burglary because the trial judge had refused to allow him to cross-
examine the complainant about his psychiatric state. In giving judgment, Crane J
said:
[13] We do not consider that counsel proposed to introduce evidence of bad character.
Psychiatric illness is plainly not bad character. It may lead to a disposition towards mis-
conduct which would amount to bad character, but that was not what counsel sought
to introduce. If the judge was saying that the psychiatric history of a witness is always
irrelevant, that is clearly wrong. Sometimes psychiatric evidence will be irrelevant to
credibility; sometimes it may be very relevant. However, this court would certainly agree
that cross-examination of a witness about his or her psychiatric history should not be
permitted unless there is some basis for doing so.
As the defence had laid no basis for this line of questioning, the trial judge’s refusal
was justified.

3.34 However, section 100 could enter the picture if the illness is one that mani-
fested itself in reprehensible behaviour (eg mental problems which have led to
violence). In many cases, the behaviour will be closely connected with the offence
with which the defendant is charged, and hence the ‘bad character’ provisions of
the CJA 2003 will not apply (see §§2.27–2.32 above). Where this is not so, it would
be open to the courts to decide that the ‘bad character’ aspect of the matter was
purely incidental, the questions (or evidence) being primarily concerned with ill-
ness and hence outside the framework of Part 11 of the Act.

How does Section 100 Relate to Section 41

of the YJCEA 1999 (Restricting Questions about
the Sex Life of a Complainant in a Sex Case)?

3.35 In principle, these provisions operate in different areas. However, these areas
overlap to a certain extent. To the extent that they overlap, the conditions set out
in both provisions must be complied with.48

3.36 The first point to bear in mind is that the scope of section 41 of the Youth
Justice and Criminal Evidence Act (YJCEA) 1999 is limited. It only applies where
the defendant is on trial for a sexual offence, and the witness whose sex life it is
sought to examine is the complainant. Outside this context it has no application.
So, for example, it does not come into the picture where the defendant is on trial
for robbery and seeks to run what is usually called ‘the guardsman’s defence’.49

48 See CJA 2003 s 112(3): ‘Nothing in this Chapter affects the exclusion of evidence … (b) under

section 41 of the Youth Justice and Criminal Evidence Act 1999’.

49 ie that the victim solicited the defendant for immoral purposes and when the defendant reacted

angrily, the victim gave him the money to persuade him to keep quiet.

63
3.37–3.38 Evidence of Bad Character

3.37 Where the situation is one to which section 41 of the YJCEA 1999 does apply,
questions (or other evidence) about the complainant’s sex life may or may not
involve a suggestion of bad character. They may, for example, relate to some neutral
matter, such as whether or not the complainant had an ongoing sexual relation-
ship with the defendant. If this is so, section 100 does not enter the picture. But
the questions will often involve a suggestion of bad character: for example, where
it is suggested that the complainant makes a habit of picking up men, getting them
into compromising situations, and then demanding money. In such a case, the
evidence would in theory have to pass the tests set out in both section 41 of the
YJCEA 1999 and section 100 before it would be admissible. However, the tests set
out in section 41 of the YJCEA are stricter than those set out in section 100, and
as the Law Commission pointed out, ‘evidence of sexual experience which is ruled
admissible under section 41 will have substantial probative value, with the result
that it would be ruled admissible under [what is now section 100] too’.50

3.38 How do these two provisions operate in practice in a situation where, as

sometimes happens, D is accused of a rape or sexual assault, and wishes to cross-
examine the complainant, C, about an earlier complaint against someone else
which, according to the defence, was false? A body of case law going back some
years establishes that section 41 of the YJCEA 1999 is not a bar to the adduction
of this sort of evidence, if the aim of calling it is to dent C’s credibility by show-
ing that she or he tells lies.51 However, section 100 of the CJA 2003 is certainly
engaged, and before such evidence is admitted (or such cross-examination can
take place) the judge must be satisfied that it has ‘substantial probative value’ in
relation to a matter in issue in the proceedings. In a sex case, this will usually be
so—especially where the previous complaint was similar to the one that gave rise
to the current trial.52 But before C can be cross-examined about the previous com-
plaint, the defence must be able to show ‘an evidential basis’ for their claim that the
previous complaint was false.53 This will exist where, for example, C has admitted
to someone else that she lied;54 but not simply because the previous complaint led
to criminal proceedings at the end of which the person complained against was
acquitted, because the acquittal does not demonstrate the complaint was false—
only that the tribunal of fact was not convinced beyond all reasonable doubt55—
and a fortiori, of course, if the police or CPS dropped the case.56 In D,57 the defence

50 Law Commission, Evidence of Bad Character in Criminal Proceedings (Law Com no 273,

Cm 5257, October 2001) §9.45. Cf Crane J in V [2006] EWCA Crim 1901, [25]: ‘In many cases section
41 will be the more formidable obstacle to overcome.’
51 T and H [2001] EWCA Crim 1877, [2002] 1 WLR 632.
52 N (Masimba) [2008] EWCA Crim 939.
53 V [2006] EWCA Crim 1901.
54 ibid.
55 D [2007] EWCA Crim 4.
56 The opinion of the police (or indeed of anybody else) about the credibility of the complainant

was sad to be irrelevant in Butler [2015] EWCA Crim 854.

57 See n 55.

64
The Bad Character of Non-Defendants 3.39–3.43

tried to get around this difficulty by attempting to call the person who had earlier
been acquitted, but the judge refused to allow this. The Court of Appeal endorsed
his refusal:
[23] the only way in which the jury in the present case could properly have decided
whether the earlier complaint was well-founded would have been by having effectively a
trial within a trial about matters which had occurred nine years earlier. In our judgment,
one only has to consider that to appreciate the unsatisfactory nature of the exercise.
3.39 If D is charged with something other than a sexual offence, and section 41 of
the YJCEA 1999 does not apply, could a witness at his trial be asked embarrassing
questions about his or her sex life?

3.40 First, irrespective of whether the sexual behaviour in question would count
as ‘bad character,’ questions about a person’s sex life would not be admissible
unless they were either directly relevant to an issue or affected his or her credibility
as a witness—neither of which will normally be the case. The fact that a person has
a sex life, or even what is euphemistically called an ‘active’ one, does not make him
or her less likely to tell the truth on oath.

3.41 Secondly, if (unusually) a question about a witness’s sex life does bear
upon credit or issue, then the question would be admissible without reference to
section 100 if the sexual behaviour in question did not qualify as ‘bad character’
within the definition contained in section 98. This would be so, for example, if the
question or evidence merely sought to show that the witness was the defendant’s
girlfriend or boyfriend, and hence likely to be biased.58

3.42 Thirdly, a question about the sex life of a witness that does impugn his
character will often be one that ‘has to do with the alleged facts of the offence
with which the defendant is charged’ and hence fall outside the limited defini-
tion of ‘bad character evidence’ in section 98—and therefore outside the scope of
section 100. This would be so, for example, in the case of the robber who runs the
‘guardsman’s defence’.

3.43 However, in the comparatively rare case where the witness’s sexual behav-
iour is (i) relevant, (ii) reprehensible, and (iii) not directly related to the facts of
the case, then evidence about it would be admissible, but only where it passes the
tests laid down by section 100. This could happen if the sexual behaviour was both
disgraceful and showed the witness to be a person whose word is not to be trusted;
for example, where a university employee is prosecuted for fraud in relation to
travel expenses, the chief prosecution witness is the Head of Department, and
the defence wish to discredit him by showing that he is in the habit of obtaining

58 Unnecessary questions relating to the private life of a witness may infringe his or her rights under

Art 8 of the European Convention on Human Rights; see §§2.18 above.

65
3.44–3.46 Evidence of Bad Character

the sexual favours of his pupils by offering to falsify their exam records in their
favour. The question would clearly relate to ‘bad character’ within section 98, and
so would have to pass the requirements of section 100 in order to be admissible—
which it would, presumably, because section 100(1)(b) would apply.

Does Section 100 Apply to ‘Non-defendants’ who are Dead?

3.44 This is an important loose end that section 100 leaves untied.

3.45 In practice, this issue will arise only rarely because of the limited definition
of ‘bad character evidence’ set out in section 98. A recurrent situation is where the
defence heap blame on a deceased person in a murder prosecution in which the
defendant admits the killing but runs a defence of provocation (now called ‘loss of
control’). This would undoubtedly be evidence that ‘has to do with the alleged facts
of the offence with which the defendant is charged’ and hence would fall outside the
definition of ‘bad character evidence’ and the restrictions on its use set out in s ection
100. Similarly, if a defendant claims that a police officer, now dead, fabricated his
confession, this would fall outside the definition of ‘bad character evidence’ and the
restrictions on its use in section 100, because it would be ‘evidence of misconduct in
connection with the investigation or prosecution of that offence’. However, there are
some situations in which the issue will undoubtedly arise: for example, where the
prosecution evidence includes a statement from a deceased witness,59 whose credit
the defence wishes to undermine by invoking his criminal record.

3.46 There is no hint as to whether section 100 was intended to apply to deceased
non-defendants in either the Law Commission Report, or public discussions when
the Criminal Justice Bill was being enacted. It seems, however, that section 100
was enacted with two aims in mind. The first was to protect people’s reputations
and feelings by preventing their trivial misdeeds being publicly paraded in legal
proceedings to which they are barely relevant, and the second was to protect the
court from being diverted from examining the central issues by ‘red herrings’. The
‘red herring’ argument is valid, whether the person whose character is in issue is
alive or dead. And although if a person is dead he presumably has no feelings and
no longer cares for his good name, his friends and family may still greatly care on
his behalf.60 So, adopting a purposive approach, it looks as if ‘non-defendants’ are
covered by section 100, whether they are alive or dead.

59 Now clearly admissible under CJA 2003 s 116(2)(a).

60 It was partly considerations of this sort that led Parliament to amend the Criminal Evidence
Act 1898 s 1(f)(ii) (as it then was) in order to include deceased victims in the list of persons whose
character the defendant could only attack at the risk of having his own bad character exposed. Earl
Ferrers, supporting the amendment, said that in homicide cases it ‘would spare the victim’s family
further suffering’: Hansard, HL, vol 556 col 1248 (5 July 1994). As to whether attacks by defendants on
the character of deceased persons are capable of opening ‘gateway (g)’, see §4.154 below.

66
The Bad Character of Non-Defendants 3.47–3.50

Does Section 100 Apply to ‘Non-Defendants’

who are not Identified?

3.47 In practice, it is not uncommon for defendants to claim that the offence for
which they are on trial was in fact committed by some other person whose identity
is unknown. A man is prosecuted for burglary on evidence that he was caught in
the garden of the burgled house with a sack containing stolen goods, for example,
and claims that he had entered the garden to relieve himself when an unidentified
person climbed out of the window carrying the sack, and on seeing the defendant
there he promptly dropped the sack and fled.

3.48 Where this situation arises, the evidence relating to the unknown person
will usually be evidence which ‘has to do with the alleged facts of the offence with
which the defendant is charged’ and, if this is so, it will fall outside the definition of
‘bad character’ in section 98 and hence outside the scope of section 100.61

3.49 In theory, situations could arise in which the bad character of an unknown
person is an issue and the misbehaviour alleged against him does not relate to the
alleged facts of the case.62 If such a case did indeed arise, I believe that it would be
sensible to interpret section 100 as inapplicable, on principle, to ‘non-defendants’
who cannot be identified. Unlike the ‘non-defendant’ who was once alive but now
is dead, the unidentified person has no reputation to be destroyed, or friends or
relatives who can suffer pain or outrage because his name is dragged through the
mud. In the light of this, there seems to be no compelling reason for judicial leave
to be obtained before the evidence is given.

The Requirement of Leave

3.50 Section 100(4) imposes a requirement of leave to admit evidence of a

non-defendant’s bad character, except where all the parties agree. This has been
criticised as unfair because of the apparent imbalance between the prosecution
and the defence. Under the Law Commission’s scheme, leave would have been
required to adduce evidence of the bad character of either a witness or a defendant.
The CJA 2003 scheme, however, imposes a leave requirement as regards witnesses,

61 Unless, that is, the ‘narrow reading’ of s 98(a) is correct: see §3.6 above.
62 For example, the defendant is accused of a theft allegedly committed when he was an inmate in a
bail hostel, and in his defence points out that all the other inmates had the same opportunity to com-
mit the offence as he did and most of them have criminal records: one of the hypothetical problems
invented for the Judicial Studies Board seminars. This hypothetical case bears a close resemblance
to Lee (1976) 62 CrAppR 33, where the Court of Appeal held that the defence ought to have been
permitted to call evidence of this type—except that in Lee the other inmates were identified.

67
3.51–3.52 Evidence of Bad Character

but not defendants.63 But in truth there is no real unfairness here, because the
defendant—unlike a witness—can object to the evidence (see §1.40 above).

3.51 As one commentator pointed out, section 100(4) ‘gives no guidance as

to the factors the court may properly take into account when granting leave’.64
This raises the question: what is the basis on which the court grants leave? Does
section 100(4) give the judge a general discretion, or is his duty limited to deciding
whether the tests laid down by section 100 are satisfied or not? As the basic test set
out in section 100(1) is elaborated in detail by subsections (2) and (3), it seems
probable that Parliament simply meant the judge to check that the conditions set
out in section 100 are met and did not mean to confer upon the courts, in addition
to this, any general discretion to suppress the evidence.

3.52 The view that the leave requirement does not confer a general discretion
to refuse has been endorsed by the Court of Appeal on two occasions: first in
Braithwaite,65 and then more forcefully in Dizaei.66 In taking this position in the
second case the Court of Appeal recognised the potential problem of satellite
issues, but thought this risk was something that the judge could take into account
in deciding whether the evidence satisfied the basic tests of admissibility that are
contained within section 100:
[38] In our judgment these are relevant considerations bearing on the assessment of the
probative value of the evidence sought to be adduced and its importance in the overall
context of the case. When it is assessing the probative value of the evidence in accordance
with section 100(1)(b) and section 100(3), and consistently with section 100(2), among
the factors relevant to the admissibility judgment, the court should reflect whether the
admission of the evidence relating to the bad character of the witness might make it dif-
ficult for the jury to understand the remainder of the evidence, and whether its under-
standing of the case as a whole might be diminished. In such cases the conclusion may
be that the evidence is not of substantial probative value in establishing the propensity
in or lack of credit worthiness of the witness, or that the evidence is not of substantial
importance in the context of the case as a whole, or both. If so, the preconditions to
admissibility will not established.
Similarly, the evidence may fail the tests set out in section 100 because it is redun-
dant, because the point the party seeks to make by calling it has already been
adequately made in some other way67—or because it could be: as in King, where

63 See Colin Tapper, ‘The Criminal Justice Act 2003: Evidence of Bad Character’ [2004] Crim LR 533.
64 Rudi Fortson, who wrote the commentary in Criminal Justice Act 2003: Current Law Statute
Guide; annotated by DA Thomas and Rudi F Fortson (London, Sweet & Maxwell, 2004).
65 Braithwaite [2010] EWCA Crim 1082, [2010] 2 Cr App R 18 (128), [12].
66 Dizaei [2013] EWCA Crim 88, [2013] 1 WLR 2257, [35].
67 Cf Okoh [2015] EWCA Crim 2316, where in the related context of s 101(1)(e)—see §4.103 ff—D1

appealed because the trial judge, while admitting evidence that D2 had received an 8-year sentence,
had suppressed the fact that it was for rape. Dismissing the appeal, the Court of Appeal said this told
the jury “all it needed to know”.

68
The Bad Character of Non-Defendants 3.53

the essence of the matter could be put before the jury by means of an agreed
statement.68

3.53 It should be remembered, however, that both of these cases involved attempts
to call bad character evidence by the defence. Where the prosecution evidence is
concerned, section 78 of PACE gives the court a general discretion to exclude if it
considers that the admission of the evidence in question would have an ‘adverse
effect on the fairness of the proceedings’; and it could be that, despite the Court
of Appeal’s emphatic words in Braithwaite and Dizaei, a court does have a discre-
tionary power to exclude evidence otherwise admissible by section 100 where it is
tendered by the Crown.69 However, given the way which the Court of Appeal in
Dizaei indicated that section 100 should be interpreted, this extra discretionary
power, if it exists, is unlikely to be needed.

68 King [2015] EWCA Crim 1631.

69 That this was so appears to have been accepted by the trial judge in Faraz [2012] EWCA
Crim 2820 in a ruling which is set out, without comment either way, in [12] of the Court of Appeal
judgment.

69
4
Evidence of the Defendant’s
Bad Character

4.1 As previously mentioned, the Criminal Justice Act 2003 provides that e vidence
of the defendant’s bad character is admissible if it passes through one of seven
‘gateways’. To recapitulate, these are listed in section 101 of the CJA 2003, which
is as follows:
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if,
but only if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) 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,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the
prosecution,
(e) it has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
(2) Sections 102 to 106 contain provisions supplementing subsection (1).
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an applica-
tion by the defendant to exclude it, it appears to the court that the admission of the
evidence would have such an adverse effect on the fairness of the proceedings that
the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3) the court must have
regard, in particular, to the length of time between the matters to which that evi-
dence relates and the matters which form the subject of the offence charged.

4.2 This provision, of course, only applies to ‘bad character’ evidence that falls
within the limited definition set out in section 98. So, where the evidence of the
defendant’s misbehaviour ‘has to do with the alleged facts of the offence’ or ‘is evi-
dence of misconduct in connection with the investigation or prosecution of that
offence,’ it is in principle admissible whether or not it passes through any of the
‘gateways’ listed in section 101.

70
Evidence of the Defendant’s Bad Character 4.3–4.4

The ‘Gateways’ are not Mutually Exclusive

4.3 It should be obvious that a particular item of bad character evidence could
be admissible via more than one of these seven ‘gateways’ at once.1 Where, for
example, D1 and D2 are prosecuted for an armed robbery, evidence that they had
jointly been involved in what the tabloid newspapers would call a ‘crime spree’
together could be admissible via ‘gateway (c)’ as important explanatory e vidence,2
and also—depending on the nature of the previous crimes—via ‘gateway (d)’
as showing propensity. Similarly, where a sadistic murder was committed in
circumstances which make it clear that it must have been the work either of D1
or D2 on his own, or both of them together, the fact that D1 has a track-record
for acts of sadistic violence could be admissible either via ‘gateway (d)’ as showing
propensity, or—where each one blames the other—via ‘gateway (e)’ as relevant
to ‘an important matter in issue between the defendant and a co-defendant.’ In
Somanathan,3 where a Hindu priest had been convicted for sexual offences against
a member of his congregation, evidence of his inappropriate behaviour towards
female worshippers at his previous temple was held to be admissible both via ‘gate-
way (d)’—because it showed disposition—and ‘gateway (f)’—because it corrected
the false impression he had given that he was a respected priest whose standing
in the Hindu community was high. Further, as is explained below, the particular
‘gateway’ through which a given piece of evidence is admitted does not limit the
use which the tribunal of fact may later make of it.4

‘Gateway (a)’: Consent of All Parties

4.4 By section 101(1)(a), evidence of the defendant’s bad character is admissible

when ‘all parties to the proceedings agree’. It seems likely that this provision was
drafted with express agreements primarily in mind; but the Court of Appeal has
held it covers implied agreements too. So if at trial the prosecution adduces evi-
dence of bad character and the defence does not object, it will be treated as admis-
sible via ‘gateway (a)’.5

1 ‘[E]vidence can of course be admitted via more than one gateway’: Davis [2008] EWCA Crim 1156,

172 JP 358, [34]. For a contrary view, however, see Roderick Munday, ‘The Purposes of Gateway (g): Yet
Another Problematic of the Criminal Justice Act 2003’ [2006] Crim LR 300.
2 Pettman, Court of Appeal, 5 May 1985, CA no 5048/C/82; see §4.10 below.
3 Reported with Weir [2005] EWCA Crim 2866 [2006] 1 CrAppR 19 (303), p 288 below; see further

§4.135.
4 See further §4.166 below. Furthermore, where at trial bad character evidence is wrongly admitted

through a ‘gateway’ that is not open, the Court of Appeal is likely to dismiss the appeal if the evidence
in question could have been admitted through a different one: see Lambrou, Constantinou and Gun
[2005] EWCA Crim 3595.
5 Marsh [2009] EWCA Crim 2696; D’Ambrosia [2015] EWCA Crim 182.

71
4.5–4.7 Evidence of Bad Character

‘Gateway (b)’: Evidence from the Defence

4.5 By section 101(1)(b) it is admissible in the rather more likely event that the
evidence comes from the defence; as it might, for example, where the defendant
produces an alibi that he was in prison at the time, or committing a less serious
offence somewhere else—or, as in one famous case, that he failed to tell the police
when he found his girlfriend dead because, in the light of his criminal record, he
thought they were bound to accuse him of killing her.6

4.6 Where evidence of the defendant’s bad character is admitted by the defence,
they will do so with a specific aim in mind; but in Enright and Gray7 the Court
of Appeal made it plain that, where this is so, they have no power to limit the use
the tribunal of fact makes of it to that particular purpose. Enright was arrested
by the police in the course of a drugs raid, and on arrest they handcuffed him.
The defence, fearing that the jury would infer from the handcuffing that he was
a major criminal, put his criminal record in evidence, which consisted of a long
catalogue of middle-range offences, including drink-related violence, criminal
damage, assault on the police and one conviction for possessing drugs. In his
direction to the jury, the judge indicated that they could take account of these
convictions in deciding whether he had committed the offence with which he was
now charged, and also in deciding whether his evidence was truthful. The Court
of Appeal rejected the defence argument that convictions put in voluntarily by the
defence could not be made use of for these purposes (although they also thought
that, on the facts of this case, the previous convictions were of little if any rel-
evance to either credibility or issue).8 In Speed,9 similarly, a defendant prosecuted
for indecent exposure put in evidence his extensive record for different types of
crime in order to support a defence which was, in effect, ‘I may be a rogue, but I’m
not a pervert.’ On appeal, it was held that the trial judge was right to direct the jury
to consider, in relation to his credibility, the fact that in some of these cases he was
convicted after entering not guilty pleas—and although he then avoided giving
evidence, he had impliedly made a false denial of his guilt by the nature of his plea.

‘Gateway (c)’: Important Explanatory Evidence

4.7 By section 101(1)(c), bad character is admissible where it is ‘important

explanatory evidence.’ The scope of this ‘gateway’ is explained in section 102,

6 The case of Tony Mancini, accused of the ‘Brighton Trunk Murder’ in 1934. (Mancini was

acquitted—but confessed to the crime in an article in the News of the World in 1976.)
7 Reported with Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below.
8 On the judge’s duty to direct the jury where his previous convictions are put in evidence by the

defence, see §5.62 below.

9 Speed [2013] EWCA Crim 1650; and to similar effect see Rainbow [2012] EWCA Crim 499.

72
Evidence of the Defendant’s Bad Character 4.8–4.10

which makes it plain that to be admissible under this gateway the evidence must
be both important and explanatory. It is as follows:
For the purposes of section 101(1)(c) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to under-
stand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.

4.8 This ‘gateway’ closely reflects the pre-existing common law.10 In Pettman11
Purchas LJ said that bad character evidence is admissible
where it is necessary to place before the jury evidence of part of a continual background
of history relevant to the offence charged in the indictment and without the totality of
which the account placed before the jury would be incomplete or incomprehensible,
then the fact that the whole account involves including evidence establishing the com-
mission of an offence with which the accused is not charged is not of itself a ground for
excluding the evidence.
This statement of principle has been quoted and applied in many later cases.

4.9 The ‘important explanatory evidence’ gateway featured in the Law

Commission’s scheme, but it would have been restricted by a requirement of judi-
cial leave, to be given (inter alia) only where the court was satisfied that ‘the evi-
dence carries no risk of prejudice to the defendant,’12 or where, despite the risk of
prejudice, ‘the interests of justice nevertheless require the evidence to be admissi-
ble’. These restrictions would probably have reduced the amount of bad character
evidence which was admissible under the ‘important explanatory evidence’ prin-
ciple at common law and, unsurprisingly, they are not included in the Act. There
is no requirement of judicial leave and, although section 101(3) gives the court
an explicit power to exclude evidence of the defendant’s bad character that is in
principle admissible via some of the ‘gateways’ listed in section 101, this power
does not extend to evidence admissible under gateway (c)—‘important explana-
tory evidence’. (On the question whether the court could exclude such evidence
under its general discretionary powers, see §1.55ff above.)

4.10 Cases in which the principle now encapsulated in ‘gateway (c)’ was applied
under the earlier law include the following: a conspiracy to commit a robbery in
Acton, to prove which evidence was admissible of a burglary committed jointly
by the defendants in Brighton some weeks earlier, because it showed they were

10 For further details of this, see Roderick Munday, Evidence, 8th edn (Oxford, OUP, 2015)

§§7.47–7.48; Archbold: Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2016)
§§13–30–13–36; Blackstone’s Criminal Practice (2016) §F12–33.
11 Court of Appeal, 5 May 1985, CA no 5048/C/82. The case is unreported, but a transcript of the

decision is available on Lexis.

12 A condition which, if literally applied to evidence admissible for the prosecution, could never be

complied with; see §1.26 above.

73
4.11–4.12 Evidence of Bad Character

involved in criminal projects together;13 a sex case, where the defendant’s previous
offences against the alleged victim and other members of the family were admis-
sible to explain how the one with which he was charged came to be committed,
and why the victim did not complain about it;14 a murder, in which evidence was
admitted of the defendant’s previous acts of violence towards the victim;15 and a
prosecution for possessing explosives for an unlawful purpose, where the defend-
ant claimed to be an ordinary law-abiding citizen and disclaimed all knowledge of
the explosives and the prosecution was permitted to produce in evidence a video
of the defendant training with a terrorist group in Pakistan.16 A further example,
given as a hypothetical case by the Law Commission, would be a prosecution for
a fraud offence, in which evidence could be given of other fraudulent incidents in
order to show the fraudulent nature of the business in the running of which the
offence in question was committed.17

4.11 The ‘important explanatory evidence’ principle has now been considered by
the Court of Appeal on a number of occasions since the bad character evidence
provisions of the Criminal Justice Act 2003 came into force.

4.12 A recurrent situation is where D has been accused of a crime of violence

against V, and gateway (c) is used at trial to admit, as part of the background,
evidence of D’s repeated ill-treatment of V in the past.18 In all these the Court of
Appeal has held the evidence to have been properly admitted via ‘gateway (c)’—
sometimes adding that it would have been admissible via ‘gateway (d)’ as well.
However, in this context the Court of Appeal has repeatedly said that ‘gateway (c)’
should not be used to admit evidence which sheds no light on D’s previous rela-
tions with this particular complainant, and by contrast merely shows that he
makes a habit of committing this type of offence.19 In Smith20 the prosecution,
at the trial of the defendant for indecent offences against young girls, sought to
adduce evidence of other indecent acts with other girls, committed in the same
area around the same time. The trial judge refused to admit this evidence via ‘gate-
way (c)’ as ‘background evidence’ and the Court of Appeal said this was correct.
(The trial judge had, however, admitted the evidence via ‘gateway (d)’ because

13 Pettman (n 11).
14 TM [2000] 2 CrAppR 266.
15 Fulcher [1995] 2 CrAppR 251.
16 Sidhu (1994) 98 CrAppR 59.
17 Law Commission, Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5257,

October 2001) 132.

18 P [2006] EWCA Crim 2517, Ladds [2009] EWCA Crim 1249 and Venclovas [2013] EWCA 2182

(previous acts of physical violence against a spouse or partner whom D was later accused of abusing—
and in the last case, killing); Haigh [2010] EWCA Crim 90 (D’s previous neglect of a child she was later
prosecuted for murdering).
19 But surprisingly, the Court of Appeal seems to have fallen into this trap itself in Hearne [2009]

EWCA Crim 103.

20 Reported together with Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below.

74
Evidence of the Defendant’s Bad Character 4.13–4.14

it showed propensity—a ruling of which the Court of Appeal also approved.)

A similar approach was taken by the Court of Appeal in Davis.21 There D was pros-
ecuted for the murder of his wife, allegedly on account of her relationship with
someone else, and at trial the prosecution was allowed to adduce evidence of his
jealous and controlling behaviour, 20 years before, towards a previous partner as
‘background evidence’ via gateway (c). This, said the Court of Appeal, was wrong.
Here the appropriate gateway, if any, was ‘gateway (d)’. ‘Gateway (c)’, they stressed,
should be kept within its proper bounds—and should not be used as the route to
admitting evidence that, if admissible at all, was admissible via another ‘gateway’
to which limits or restrictions were attached. An interesting parallel to Davis is the
later case of Barron.22 Barron, like Davis, was prosecuted for murdering his wife.
The Court of Appeal said that ‘gateway (c)’ had properly been used to admit evi-
dence of his previous possessive behaviour towards her—and in addition, ‘gateway
(d)’ had properly been used to admit evidence of his previous violent and posses-
sive behaviour towards other women in his life.

4.13 If this ‘gateway’ cannot be used to adduce evidence that shows that D makes
a habit of committing this type of offence, much less can it be used, of course, to
admit evidence that D’s habits suggest that he is the sort of person who might
be willing to commit it. So, unsurprisingly, the Court of Appeal quashed a rape
conviction following a trial at which, in purported reliance on ‘gateway (c)’, the
following gems had been included in the prosecution evidence:
Roy Bates, a retired fisheries warden, said that the appellant was obsessed with sex. He
was interested in ‘dogging’, that is watching other people having sex. The appellant went
to ‘dogging’ parties and Mr Bates described one occasion on which the appellant was
blacking his face prior to going to the car park to watch couples having sex. Clive Betts
said that the appellant, whom he had known since about 1993, told him that he had been
‘into swinging’.23

4.14 In other cases, bad character evidence has been held properly admitted via
‘gateway (c)’ because it explained the ‘group dynamics’ of the persons concerned.
In Frain and Unsworth24 the two defendants were prosecuted for conspiracy to
pervert the course of justice by intimidating witnesses. The prosecution case was
that D2 had recruited D1 to act as the ‘heavy’, and evidence of D2’s criminal record
was held properly admissible to show why D2 had chosen him. In Chapman25
evidence of D1’s bad character was held properly admissible to help establish his
domination over D2—with the implication that where D2 was, D1 was usually
there too, and hence was likely to have been present at a shooting if D2 was shown

21 Davis [2008] EWCA Crim 1156, 172 JP 358.

22 Barron [2010] EWCA Crim 2950.
23 Saint [2010] EWCA Crim 1924.
24 Frain and Unsworth [2007] EWCA Crim 397.
25 Chapman [2006] EWCA Crim 2545; a similar case is Glenn [2006] EWCA Crim 3236.

75
4.15–4.16 Evidence of Bad Character

to be there (as he was). In Ahmed and others26 the defendants were prosecuted
for a ‘carousel fraud’, the commission of which involved a company, MST. Other
revenue frauds in which MST was involved were held to be properly admitted via
‘gateway (c)’, because this information was necessary to explain the part that had
been played in the story by a Customs official, Mr Smith. Similarly, in Rabheru,27
where two people were jointly tried for offences of people-trafficking for sexual
exploitation, it was said that ‘gateway (c)’ was applicable to evidence that, in the
early stages of the story, one defendant had been the other’s pimp.

4.15 The Court of Appeal has also expressed approval where ‘gateway (c)’ has
been used to admit some piece of evidence which the trial judge thought the jury
hohan,28 for
needed to know in order to make sense of the rest of the evidence. In C
example, the defendant was accused of a robbery. A key prosecution witness was
one Donna Marsh, who claimed to have seen the defendant running away from
the scene of the crime. She recognised him, she said, because he was the ‘dealer’
from whom she regularly bought heroin. The trial judge admitted this part of her
evidence because, in his view, it constituted ‘important explanatory evidence’—
explanatory, because it explained why she was able to recognise him—and hence
admissible via ‘gateway (c)’: a ruling which the Court of Appeal said was correct.29
A case similar in principle is Bahaji.30 D was prosecuted for Firearms Act offences
arising from his allegedly pointing a gun at a policeman. At trial the judge used
‘gateway (c)’ to admit evidence that, shortly before, D had pointed a gun at some-
one else, who had called the police: evidence which explained how the defendant
and the policeman came to be in confrontation.

4.16 It should be stressed, however, that background evidence will not necessar-
ily secure admission via ‘gateway (c)’ if it constitutes evidence of bad character.
To comply with section 102 it must be evidence without which ‘the court or jury
would find it difficult or impossible properly to understand other evidence’, and
in addition its ‘value for understanding the case as a whole’ must be ‘substantial’;
and there are cases in which, on appeal, it was held that ‘gateway (c)’ should not
have been used to admit a piece of bad character evidence which, though form-
ing part of the background, was something that the tribunal of fact did not really
need to know in order to make sense of the rest of the evidence. In Sheikh,31 for
example, a taxi driver was convicted for breaching an order imposed on him in

26 Ahmed and others [2008] EWCA Crim 1386.

27 Rabheru [2013] EWCA Crim 137.
28 Decided together with Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below.
29 I think this evidence might also have been admissible via ‘gateway (d)’, as ‘relevant to an impor-

tant matter in issue between the defendant and the prosecution’: namely, whether the person Donna
Marsh saw running away from the scene of the robbery was in fact the defendant.
30 Bahaji [2009] EWCA Crim 2863.
31 Sheikh [2013] EWCA Crim 907.

76
Evidence of the Defendant’s Bad Character 4.17

previous criminal proceedings, forbidding him to drive a taxi or a hire-car with an

unaccompanied passenger; and the Court of Appeal said that ‘gateway (c)’ should
not have been used to admit evidence32 that the ban he was accused of breaking
had been imposed following his conviction for a rape.33

4.17 A recent Privy Council decision from Bermuda suggests that, in certain
types of case, ‘gateway (c)’ could properly be used to admit ‘gangland evidence’. In
Myers, Brangman and Cox v The Queen34 the Privy Council heard the conjoined
appeals of three defendants who had been convicted, in separate proceedings, for
murder (and in one case, attempted murder) by shooting. In none of the three
cases did the defendant have any obvious motive for shooting the person who was
shot. But the background to each shooting was a feud between rival gangs. And in
each case the court had heard evidence from a police officer versed in the ways of
local gangs that the defendants and their alleged victims belonged to rival gangs,
that the gangs made ready use of guns, and that it was their custom to punish
‘wrongs’ perceived to be committed against them by a rival gang by arranging for
a member of the rival gang to be shot—whether or not he was personally involved
in the ‘wrong’, or had offended the gunman detailed to act as his assassin. The CJA
2003 does not apply in Bermuda, where bad character evidence is still governed
by the common law. And applying the common law as stated in Pettman35 and the
other cases on ‘explanatory evidence’ which ‘gateway (c)’ was intended to reflect,
the Privy Council ruled that this evidence was properly admitted. In so holding,
they ruled that in this context the evidence was admissible because it showed a
motive shared by the group to which the defendant in each case belonged: it was
not necessary to show, in addition, that the motive was ‘harboured uniquely by
the defendant’.36 Some of the evidence the police officer had given about the anti-
social activities of these gangs had gone beyond what was required to establish
motives for the shootings, and this should not have been admitted; but the impact
of this was slight in the context of the rest of the evidence, and no miscarriage of
justice had resulted. ‘Gangland evidence’ that takes the form of evidence show-
ing that D is a member of a gang will sometimes be admissible in England via
‘gateway (d). For further details, see §4.63 below. And in some cases it may be
admissible via ‘gateway (c)’ as well.37

32 Despite this error, the conviction was upheld as safe.

33 Decisions to similar effect are Lee [2012] EWCA Crim 316, (2012) 176 J P 231, and Broome [2012]
EWCA Crim 2879.
34 Myers, Brangman and Cox v The Queen [2015] UKPC 40, [2015] 3 WLR 1145.
35 Pettman (n 11).
36 At [45]; dissenting from the view expressed by Auld JA in his judgment in the court below.
37 See Okokonono [2015] EWCA Crim 2521.

77
4.18–4.20 Evidence of Bad Character

‘Gateway (d)’: Evidence Relevant to ‘An Important Matter Between the

Defendant and the Prosecution’; Evidence of Propensity

4.18 By section 101(1)(d), evidence of the defendant’s bad character is admissible

where ‘it is relevant to an important matter in issue between the defendant and
the prosecution’. By section 112(1), an ‘important matter’ is defined as ‘a matter of
substantial importance in the context of the case as a whole’.

4.19 This ‘gateway,’ like the others, originated with the proposals of the Law
Commission—although, as will be explained below, it has been widened far
beyond what the Law Commission had in mind. Under the earlier law, evidence
incidentally revealing the defendant’s bad character was always admissible where
it shed light on a ‘matter in issue’ in the sense of a specific factual question on
which prosecution and defence were in dispute: as in the old case of Francis,38
for example, where the defendant was prosecuted for obtaining money by decep-
tion by passing off fake jewellery as genuine, his defence was that he had acted in
good faith, and the prosecution were allowed to prove his previous convictions for
similar offences in order to suggest he knew fake jewellery when he saw it and that
he therefore acted with dishonest intent. The Law Commission approved of this
and proposed a ‘gateway’ relating to ‘evidence going to a matter in issue’ with this
principle in mind.

4.20 The primary effect of section 101(1)(d) is to do what the Law Commission
intended, that is, to codify the principle that evidence which incidentally reveals
the defendant’s bad character is admissible if it is directly relevant to a particular
disputed issue in the case. So, in any case where the evidence would have been
admissible under the old law because it was relevant to a ‘matter in issue’ in this
sense, it will undoubtedly be admissible under the new law as well. Under the new
law, however, the route to admissibility will in principle be easier. The cardinal
principle of the old law was the ban (or supposed ban) on what was called the
‘forbidden chain of reasoning’:39 the reasoning that, because D has done this sort
of thing before, he is therefore more likely to have done it this time. Because of this
the courts, when admitting evidence of bad character that was relevant to a matter
in issue, usually tried to show that the evidence was relevant for some reason other
than because it showed D’s propensity to do this sort of thing. Sometimes it clearly
was—as it was in Francis, the case about the fake jewellery, where it showed that
Francis would recognise fake jewellery when he saw it. But in many cases, the fact
that the defendant had a propensity to commit this type of offence was in reality a
step in the reasoning, albeit one that was tactfully concealed. For example, where
a witness W identified D as the person whom he had seen to commit an offence,

38 Francis (1874) LR 2 CCR 128.

39 Per Lord Hailsham in Boardman [1975] AC 421.

78
Evidence of the Defendant’s Bad Character 4.21–4.22

and unknown to W, D had a record for committing that sort of offence, the courts
would say that D’s record was admissible, not because it showed his propensity
to commit offences of that sort, but because D’s record made it more likely that
W’s identification was correct.40 But this, surely, is misleading. In such a case there
are two pieces of evidence that link D to the offence: (i) the fact that W identified
him, and (ii) the fact that D has a criminal record that demonstrates his propen-
sity to commit this sort of crime. If W did not know about D’s record, the second
piece of evidence then greatly reinforces the first: but it is, for all that, still evidence
of propensity. Under the new law this can be said openly, and mental gymnastics
are no longer needed to conceal it, because—as is shortly to be explained—the
‘forbidden chain of reasoning’ has now ceased to be forbidden. Propensity was
also involved, albeit unacknowledged and at one remove, in another case in which
bad character evidence was admissible at common law: ‘similar fact evidence’ (see
§4.44 and §§4.84ff below).

4.21 Under the Law Commission’s proposals, evidence of bad character would
have been admissible via the ‘matter in issue’ gateway only where it satisfied a test
of ‘enhanced relevance’: to make it admissible, it would not have been enough that
the bad character evidence had some degree of relevance to the disputed issue—
it would have been necessary to persuade the court that, in relation to it, it had
‘substantial probative value’. This restrictive form of words did not appeal to the
government, and under section 101(1)(d) such evidence is in principle admissi-
ble provided it is ‘relevant to an important matter in issue between the defendant
and the prosecution’ (emphasis added). In Somanathan41 the Court of Appeal laid
stress upon this point, rejecting as it did so an obiter dictum from Lord Phillips in
the civil case of O’Brien v Chief Constable of South Wales Police,42 in which he had
suggested that, in criminal proceedings, the test of admissibility under CJA 2003
was now ‘enhanced probative value’.

4.22 As previously mentioned (§1.14 above), the Law Commission also proposed
a further limitation in that evidence of the defendant’s bad character should be
admissible only where the court gave leave. This limitation did not appeal to the
government either and has not found its way into the Act. However, section 101(3)
gives the court an explicit power to exclude evidence otherwise admissible via
gateway (d) or (g) if ‘on an application by the defendant to exclude it, it appears to

40 As in Thompson (1919) 13 Cr App R 61.

41 Reported together with Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below,
[35]–[36].
42 O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534, [33]. In

Edwards, a differently constituted Court of Appeal had earlier cited this passage, without disapproval:
[2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below [54].

79
4.23–4.24 Evidence of Bad Character

the court that the admission of the evidence would have such an adverse effect on
the fairness of the proceedings that the court ought not to admit it’.

4.23 If the primary effect of section 101(1)(d) is to ensure that (as at common
law) evidence revealing the defendant’s bad character is admissible if it sheds light
on a specific issue in dispute, it reaches further than the common law, because its
meaning is extended by section 103, which is as follows:
(1) For the purposes of section 101(1)(d) the matters in issue between the defendant
and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of
the kind with which he is charged, except where his having such a propensity
makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except
where it is not suggested that the defendant’s case is untruthful in any respect.
(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of
the kind with which he is charged may (without prejudice to any other way of
doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is
satisfied, by reason of the length of time since the conviction or for any other rea-
son, that it would be unjust for it to apply in his case.
(4) For the purposes of subsection (2)—
(a) two offences are of the same description as each other if the statement of the
offence in a written charge or indictment would, in each case, be in the same
terms;
(b) two offences are of the same category as each other if they belong to the same
category of offences prescribed for the purposes of this section by an order
made by the Secretary of State.
(5) A category prescribed by an order under subsection (4)(b) must consist of offences
of the same type.
(6) Only prosecution evidence is admissible under section 101(1)(d).

4.24 The history of this inelegant provision is that it is a last-minute amalgama-

tion of two separate clauses that appeared in the original Bill. In the original Bill,
what is now section 101(1) appeared as clause 87:
(1) For the purposes of section 101(1)(d) the matters in issue between the defendant
and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of
the kind with which he is charged, except where his having such a propensity
makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except
where it is not suggested that the defendant’s case is untruthful in any respect.

80
Evidence of the Defendant’s Bad Character 4.25–4.27

4.25 And in addition there was a further clause 86, in which the government pro-
posed a separate gateway, designed to make the defendant’s previous convictions
admissible on the simple basis that they were convictions for the same or a similar
offence. The ‘similar offences’ gateway provoked strong opposition in Parliament,
and clause 86 was eventually removed; but in the removal, some of the key parts of
it were inserted into clause 87 dealing with ‘matters in issue.’ This rearrangement
was a concession by the government, which had eventually accepted the argument
that evidence of the defendant’s previous convictions for offences listed in clause
86 should only be admissible in cases where his propensity to commit offences
of a particular type is a live issue at the trial.43 The result is a big, rather clumsy
provision that expands section 101(1)(d) by grafting onto it some further grounds
of admissibility, none of which bear much relation to what the Law Commission
(and lawyers generally) would regard as a ‘matter in issue’.

4.26 That said, the general drift of what is meant in section 103 is not difficult to
grasp. In essence, it seems to tell us that ‘gateway (d)’ must be read in such a way
that:
(1) Bad character evidence admissible by virtue of section 101(1)(d) may now
take the form of evidence that shows the defendant has a propensity to com-
mit offences of the kind with which he is charged, where such a propensity is
relevant to issues in dispute (section 103(1)(a)).
(2) One possible way in which this may be done is by showing he has previously
committed an offence ‘of the same description’ as this offence or ‘of the same
category’ (section 103(2)–(5)).
(3) Evidence of the defendant’s bad character is also admissible if it ‘shows he
has a propensity to be untruthful’ (section 103(1)(b)).
If this is what section 103 really provides, then it obviously extends ‘gateway (d)’
far beyond the sort of situation the Law Commission had in mind—and the bad
character of the defendant has become admissible in a far wider range of situa-
tions than it was at common law.

4.27 As is explained below, however, the drafting is not well done and it is pos-
sible to read section 103 in various narrower senses, the result of which would
be (in effect) ‘business as before’, with evidence of the defendant’s bad character
continuing to be admissible only in the limited situations in which it was admis-
sible at common law. As we shall see, the Court of Appeal has so far shown no
inclination to accept these arguments, but section 103 has yet to be considered
by the Supreme Court and for this reason it is worth examining them—although,
for the moment, the contents of the next seven paragraphs(§§4.28–4.35) can be
passed quickly over.

43 See the explanation by Baroness Scotland, Hansard HL vol 654 col 2080 (20 November 2003).

81
4.28–4.30 Evidence of Bad Character

Initial Uncertainty as to How Far Section 103(1)(a)

Admits Evidence of Propensity

4.28 As we have seen, section 103(1)(a) provides that:

(1) For the purposes of section 101(1)(d) the matters in issue between the defendant
and the prosecution include—
(a) the question whether the defendant has a propensity to commit offences of
the kind with which he is charged, except where his having such a propensity
makes it no more likely that he is guilty of the offence.
The general idea behind the provision appears from the Explanatory Notes,
according to which:
Section 103(1)(a) makes it clear that evidence which shows that a defendant has a pro-
pensity to commit offences of the kind with which he is charged can be admitted under
this head. For example, if the defendant is on trial for grievous bodily harm, a history
of violent behaviour could be admissible to show the defendant’s propensity to use
violence.44

4.29 In other words, the purpose of the provision is to ensure that, in future,
evidence of the defendant’s bad character is not only admissible where it sheds
light on some specific disputed issue, but also—to the extent that it shows he has
a propensity to commit offences of this sort—where it sheds light on the broader
issue of whether he committed the offence or not.

4.30 However, the drafting is confusing. The purpose of section 103(1)(a) is to

elaborate section 101(1)(d), which says that evidence of the defendant’s bad char-
acter is admissible when ‘it is relevant to an important issue between the defendant
and the prosecution’. But in doing so, it interprets the phrase ‘a matter in issue’ in
a different sense. A ‘matter in issue’ normally means ‘a specific question of fact
on which the prosecution and defence disagree,’ and this clearly is the sense in
which the phrase is used in section 101(1)(d). But in section 103(1)(a), the phrase
is used in a different and looser sense. In section 103(1)(a), it does not seem to
mean a specific factual matter which the prosecution has alleged and which the
defence has decided to deny. Instead, it seems to mean ‘one of those matters which
the court ought to take into account when reaching its decision’. And it was put
there in this form, it seems, with the aim of making the court, when deciding the
general question of the defendant’s guilt or innocence, consider whether or not he
has a propensity to commit the sort of offence for which he is on trial. This shift of
meaning gives rise to various arguments which, if accepted, would limit the effect
of the provision.

44 §371. On the current status of Explanatory Notes as an aid to construction, see §1.54 above.

82
Evidence of the Defendant’s Bad Character 4.31–4.33

4.31 The first turns on the phrase ‘in issue’. For most legal purposes, a matter is ‘in
issue’ when the parties are in dispute about it, and not where they are agreed. In
the light of this, it looks as if it might be open to a defendant with a string of previ-
ous convictions for similar offences in the past to admit that he has a propensity
to commit offences of the type with which he is now charged—and from this to
argue that, as his propensity to commit such offences is not ‘in issue,’ the prosecu-
tion are not entitled to put even the existence of these convictions before the court
(let alone the details). In answer to this, however, it could be said, that—assuming
that ‘matter in issue’ in section 103(1)(a) means ‘disputed issue’—a propensity is
a matter of degree, and where the defendant admits a propensity this still leaves
room for argument about how strong it is—and that the evidence of the defend-
ant’s previous convictions can still be used to shed light on that.45

4.32 The second argument turns on the meaning of the word ‘important,’
which qualifies the phrase ‘matter in issue’ where it originally appears in
section 101(1)(d). Where ‘a matter in issue’ means ‘a matter in dispute’, then the
word ‘important’ clearly adds something. But where that phrase is used to mean
‘a matter that the court should take into account,’ it is not clear what intelligible
meaning the word ‘important’ can bear. However, it could be used to found an
argument to the effect that section 103(1)(a) only allows in evidence of bad char-
acter where this is ‘important’—and to be ‘important’ it must go beyond showing
a mere tendency to commit this type of offence and illuminate some specific fac-
tual issue.46 The objection to this argument, of course, is that it would recreate the
previous law, which is expressly abolished by section 99(1),47 and which we know
it was the general intention of Parliament—or at any rate, the desire of those who
introduced this legislation—to replace with something wider.

4.33 The third argument is based on the second sentence of section 103(1)(a).
This says that one of the issues in a case on which bad character evidence is to be
admissible is ‘whether the defendant has a propensity to commit offences of the
kind with which he is charged, except where his having such a propensity makes it
no more likely that he is guilty of the offence’.48 What is the meaning of this final
sentence? On the face of it, it looks like another peg upon which the defence could
hang an argument that evidence of the defendant’s previous misconduct is not
admissible merely because it shows he has a general tendency to commit this sort
of offence, and that it is only admissible where (as under the earlier law) it can be
shown to be relevant by some other chain of reasoning.

45 For this argument, and the answer to it, I am indebted to judges participating at the Judicial Stud-

ies Board seminars.

46 See the previous note.
47 ‘The common law rules governing the admissibility of evidence of bad character in criminal

proceedings are abolished.’ See §1.21 above.

48 Emphasis added.

83
4.34–4.36 Evidence of Bad Character

4.34 From the Explanatory Notes it is clear that the phrase ‘where his having such
a propensity makes it no more likely that he is guilty of the offence’ was meant to
serve a different and more restricted purpose. It was simply meant to prevent bad
character evidence being admitted ‘where there is no dispute about the facts of the
case and the question is whether those facts constitute the offence (for example, in
a homicide case, whether the defendant’s actions caused death)’.49 An Explanatory
Note in these terms was before Parliament at the time this provision was enacted,50
so it was clear from the outset what the draftsman had mind; and I believe it would
be proper, and sensible, for the courts to assume that the draftsman’s intention was
also the intention of Parliament when the section was enacted.51.

4.35 To the disappointment of anyone who may have been hoping that the new
provisions would in the end mean ‘business as before’, though conducted in dif-
ferent words, the Court of Appeal has so far made it very plain that the new law
really does mean a new start, and important pieces of bad character evidence will
indeed be admissible via ‘gateway (d)’ which would have been excluded under the
earlier law—as will be clear in the paragraphs that follow (and in particular, from
§4.45 onwards)

The Bad Character Evidence must be Relevant

to a ‘Live Issue’ in the Case

4.36 To return to basics, ‘gateway (d)’ renders evidence of the defendant’s bad
character admissible where ‘it is relevant to an important matter in issue between
the defendant and the prosecution’. This must be kept in mind, even though the
new law now permits the tribunal of fact to adopt what used to be called ‘the for-
bidden chain of reasoning’: namely that ‘a person, from his criminal conduct or
character, is likely to have committed the offence for which he is being held’.52 Even
under the new law, evidence of propensity is still only admissible via ‘gateway (d)’
where there is a dispute as to the facts, and the propensity evidence sheds some
light upon it. So in order to decide whether a piece of bad character evidence is
admissible via ‘gateway (d)’, two initial steps are necessary: (i) to identify what the
disputed issue is, and (ii), to identify what light, if any, the evidence of bad char-
acter would shed upon it. In this section, the first of these two questions will be
examined further. The second will be examined in §4.41 onwards.

49 §371.
50 See §305 of the Explanatory Notes that accompanied the Bill.
51 Pace Dr Roderick Munday; see in particular his article in [2005] Crim LR 337, referred to §1.54
above.
52 DPP v Boardman [1975] AC 421, 451.

84
Evidence of the Defendant’s Bad Character 4.37–4.38

4.37 The need for a disputed issue can be illustrated by considering the different
possibilities that can arise where someone is accused of dangerous driving. As we
shall see later (§4.54 below), if someone is prosecuted for causing death by dan-
gerous driving, and there is a dispute as to who drove across the path of whom,
evidence of the defendant’s habit of aggressive risk-taking at the wheel is in princi-
ple admissible to help show that it was him.53 However, where there is no dispute
about what happened, and the issue is simply whether the defendant’s driving at
a given speed in certain conditions could properly be described as ‘dangerous’,
evidence of his habitual bad driving is not admissible, because it is not relevant
to the issue the court is called upon to decide.54 The point is further illustrated by
the case of Bullen.55 Here the defendant killed a drinking companion in a drunken
fight. Admitting he was in the wrong, he offered to plead guilty to manslaughter,
but the prosecution persisted with a murder charge, and at trial the central issue
was one of mens rea: whether he had struck the fatal blow with the necessary intent
to kill or to cause grievous bodily harm. The Court of Appeal held that, in this
context, the prosecution should not have been permitted to lead evidence of his
long string of convictions for yobbish violence. They would have been properly
admitted if the issue had been one of self-defence, and hence whether Bullen or
the victim was the aggressor. But they shed no light on the intention with which
he struck the blow. A further illustration of the point is Leaver.56 D was tried for
rape and grievous bodily harm with intent. It was agreed between prosecution and
defence that, in the course of what began as consensual sex, D became rough and
violent, refused to stop when asked and hit the woman in the face, breaking her
jaw. At trial the issues were the extent of her consent, and his mens rea when he hit
her. His conviction was quashed (and a retrial ordered) because the trial judge had
allowed evidence of his previous conviction for indecent exposure.57

4.38 The ‘disputed issue’ may be the entirety of the prosecution case, or it may be
some component part of it. If D is prosecuted for a rape in which a knife was used
to intimidate the victim, evidence will be admissible of D’s previous rapes, and
also, potentially, his propensity for carrying knives.58 As the Court of Appeal put it
in another case, ‘previous convictions may be relevant to factual sub-issues which
the jury has to determine’.59

53 See McKenzie, §4.40 below.

54 Whitehead, ibid.
55 Bullen [2008] EWCA Crim 4, [2008] 2 CrAppR 25 (364). Distinguished, on the facts, in two later

cases: Swellings [2009] EWCA Crim 3249, [2009] 2 Cr App R(S) 30, and Smith [2015] EWCA Crim 801.
56 Leaver [2006] EWCA Crim 2988.
57 Commenting on Leaver, the Court of Appeal in Bullen (n 55) said: ‘So far as the rape count was

concerned, there would have been no difficulty if the judge had limited his directions to the jury to a
formula agreed with counsel that the previous conviction was relevant to whether the defendant had a
propensity to degrade and insult women for his own gratification.’
58 O, C and D [2011] EWCA Crim 1336.
59 Smith [2015] EWCA Crim 801, [33].

85
4.39–4.40 Evidence of Bad Character

4.39 From this it follows that, by making tactical admissions, the defence can
sometimes block the admission of evidence of bad character which would other-
wise be admissible. Though the courts, it should be said, are unreceptive to defence
attempts, with this mind, to define the disputed issue over-narrowly. In Cox,60 D
was prosecuted for murdering her drinking-partner, V. That she had used a knife
to stab him to death she admitted, but claimed it was in self-defence. On appeal
she argued that the trial judge had been wrong to admit her string of convictions
for using or threatening to use knives when drunk, because of her admission that
she had used a knife to stab him. Affirming her conviction, the Court of Appeal
said that the disputed issue was not whether she had used a knife, but whether she
had done so in self-defence; and to this issue her record of aggressive violence with
knives when drunk was clearly relevant. In Bowman and Lennon61 it was argued
that, before bad character evidence is admitted in support of the prosecution case
via ‘gateway (d)’, not only must the point of fact disputed between the prosecution
and defence be identified, but the Crown must also have adduced at trial some
primary evidence in support of their particular version of it. Here the disputed
issue was whether the defendants had gone to the victim’s house carrying a gun,
as the Crown alleged, or had seized it from the victim when the victim pulled it on
them, as the defendants claimed; and, said the defence, the Crown had adduced
no evidence of their arriving with the gun. But this argument the Court of Appeal
rejected—and held their previous convictions for firearms offences properly
admitted.

4.40 From all of this it should be very obvious that ‘gateway (d)’ cannot be used to
admit evidence of an assortment of disreputable behaviour, none of which has any
obvious connection with the offence for which D is on trial, for the sole purpose
of demonstrating that he is a person who is willing, in general terms, to commit
criminal offences. This, surprisingly, was what seems to have been done in Kane.62
Quashing the conviction, the Court of Appeal said:
[Counsel for the Crown] has been more or less explicit in saying that really why the pros-
ecution wanted this evidence in was that they indeed wanted the jury to know ‘the nature
of the man with whom they were dealing.’ That cannot possibly in itself be a sufficient
justification for admitting the evidence or a sufficient justification for the prosecution
even to try and persuade the Crown Court judge to admit that evidence. Guilt by associa-
tion of itself has never been part of England and Wales criminal law. Indeed the whole
position is designed to be covered under the regime of the Criminal Justice Act 2003. The
prosecution stance had no proper regard to the requirements of that Act.

60 Cox [2014] EWCA Crim 804.

61 Bowman and Lennon [2014] EWCA Crim 716.
62 Kane [2013] EWCA Crim 1487. The catalogue of misconduct seems to have been prepared in

connection with counts of money-laundering, to which it was arguably relevant. To these counts, how-
ever, the defendant pleaded guilty on the day of trial; and the Crown was then permitted to use them
to support a contested accusation of blackmail, to which they were clearly irrelevant—except insofar as
they showed his general bad character.

86
Evidence of the Defendant’s Bad Character 4.41–4.43

The Bad Character Evidence must Shed Light

Upon the Issue in Dispute

4.41 Evidence that shows the defendant to be of bad character may be relevant to
a disputed issue in many different ways—and not all of them involve, as a step in
the reasoning, that D has a propensity to do the sort of thing of which he is cur-
rently accused.

4.42 In some cases, D’s propensities (or otherwise) will not form part of chain of
reasoning. A hypothetical example would be a case where D was tried for a bur-
glary, at the scene of which a pair of gloves was found which had apparently been
dropped by the burglar as he left, and the police had CCTV evidence of D stealing
an identical pair of gloves from a hardware store earlier in the day; or where D
was tried for murdering a man in a place entered by an assassin who had managed
to pick a complicated and expensive lock, and the Crown can show that D, in his
previous career as a burglar, had learnt how to pick just such a lock. An example
from real life is the old case of Francis, the facts of which were given earlier.63
A more recent one is Watson. Here D was accused of a rape, in respect of which his
defence was alibi. His conviction at an earlier trial for another offence committed
at the same time and place as the rape for which he had been tried was admissible
because it ‘blew the appellant’s alibi out of the water’.64 In this type of case the bad
character evidence would have been clearly admissible under the earlier law.

4.43 In other cases, the fact that D has a given propensity will form part of the
chain of reasoning, but the part it plays is subsidiary. The classic example of this
type of case is where a witness identifies D as the person whom he saw committing
an offence, and unknown to the witness D had a record for committing that sort of
offence. In such a case, it would be a strange coincidence if the person whom the
witness mistakenly identified, or falsely accused, happened to be a someone who,
unknown to the witness, made a habit of this sort of thing; and when put together,
the identification and the propensity are a powerful combination—stronger than
either of them would be on its own, or even both of them, if separately weighed.
As we saw earlier (§4.20 above), this is another situation where the bad character
evidence would have been admissible at common law. And as earlier explained, in
order to avoid (or appear to avoid) using the ‘forbidden chain of reasoning’, it was
usual in those days to suppress the fact that propensity reasoning was involved—
as it is, surely, albeit at one remove. In these ‘coincidence’ cases, bad character

63 See §4.19 above.

64 Watson [2006] EWCA Crim 2308. At trial the evidence was admitted as bad character evidence,
admissible via ‘gateway (d)’; the Court of Appeal, however, said this was because it ‘[had] to do with the
alleged facts of the offence with which the defendant is charged, and hence fell outside the definition of
evidence of bad character’. On this, see §§2.27ff above.

87
4.44 Evidence of Bad Character

e vidence is of course admissible under the new law as well. In Isichei,65 for exam-
ple, D was identified as the person who had assaulted and robbed two girls in the
street. According to their evidence, the incident began when D approached them
and demanded cocaine. Evidence of D’s conviction for importing cocaine was held
to be properly admitted, not because it showed D was inclined to break the law,
but because it corroborated the girls’ identification: it would have been an odd
coincidence if the stranger they identified as responsible for the robbery had, like
the person who actually committed it, a keen interest in cocaine.66

4.44 Propensity reasoning is involved, albeit indirectly, in another type of case

in which bad character evidence was regularly admitted before the 2003 reform.
This is the ‘multiple accusation’ case: the situation where a series of independent
witnesses complain that D misbehaved towards them in a similar way. In such
a case, the tribunal of fact is entitled to take the evidence of D’s alleged misbe-
haviour towards all the other complainants into account in deciding whether he
misbehaved in respect of any single one of them. In the days when the ‘forbidden
chain of reasoning’ was banned, this was traditionally justified by saying that the
evidence in the other cases was admissible not because it showed a propensity to
do this sort of thing, but because it was extremely unlikely that a number of people
would independently invent the same false accusation. Once again, this is true—
but only partly so. In such a case the tribunal of fact is faced with two possible sce-
narios: (i) that a series of unconnected people have, by an astonishing coincidence,
invented the same false accusation; or (ii) that D has a propensity to do this sort of
thing—and the second scenario is obviously much more likely than the first. So as
with the ‘coincidence’ type of case described in the previous paragraph, propensity
is relevant to the reasoning. To emphasise the point that they were not following
the ‘forbidden chain of reasoning’, in this type of case the courts would formerly
say that, in order to be ‘mutually admissible’, the different complaints must be not
merely similar, but ‘strikingly similar’. But after the 2003 reform there is no need
for this. If the similarity is enough to make all of them more credible, in principle
that is now enough. (The issues arising in this type of case are further discussed at
§4.84 below.) From these ‘multiple complainant cases’, a general principle evolved
whereby, under the old law, bad character was admissible in any case in which the
previous conduct was ‘strikingly similar’ to what D was alleged to have done in the
case for which he was now on trial—but not if it was merely ‘similar’.67

65 Isichei [2006] EWCA Crim 1815, 170 JP 753.

66 Cf the old case of Thompson [1918] AC 221. In ch 8 of his Character in the Criminal Trial (Oxford,
OUP, 2015) Professor Redmayne criticises the decisions in Isichei and other cases for continuing to use
the language of ‘coincidence’ to mask the fact that propensity is in reality an important element in this
type of case. In saying that the ‘propensity’ element should be recognised, he is undoubtedly correct.
But recognising that should not blind us, ofcourse, to that fact that in these cases the coincidence is
logically relevant as well.
67 Though the requirement for the similarity to be ‘striking’ was weakened, to some extent, by the

House of Lords decision in DPP v P [1991] 2 AC 447.

88
Evidence of the Defendant’s Bad Character 4.45–4.48

4.45 In Hanson and others68 the Court of Appeal said that, under the new law, it
is no longer true that ‘what used to be referred to as striking similarity must be
shown before convictions become admissible’. Evidence of bad character is now
admissible, it said, on the simple basis that it shows a tendency to commit offences
of this general type. Similarly, in Somanathan69 the Court of Appeal pointed out
that section 99 abolishes the common law rules on the admissibility of evidence of
bad character and said ‘The 2003 Act completely reverses the pre-existing general
rule. Evidence of bad character is now admissible if it satisfies certain criteria (see
section 101(1)) and the approach is no longer one of inadmissibility subject to
exceptions.’ ‘If evidence of a defendant’s bad character is relevant to an important
issue between the prosecution and the defence,’ it added, ‘then, unless there is an
application to exclude the evidence, it is admissible.’ The test, they also pointed
out, was now simple relevance: it was not necessary to show that the evidence had
any kind of ‘enhanced probative value’ or ‘enhanced relevance’.70 These sentiments
were echoed by the Court of Appeal in Saleem, where Thomas LJ said the statutory
code was in force ‘and the old law consigned to history’.71

4.46 This new approach was quickly evident in the cases which the Court of
Appeal decided shortly after the bad character evidence provisions of the CJA
2003 came into force.

4.47 Thus in Hanson the Court of Appeal upheld a conviction for stealing a car-
rier bag containing £600 from a bedroom to which the defendant had access, the
defendant having pled guilty when the judge ruled that he would permit the pros-
ecution to prove his previous convictions for dishonesty. In Gilmore72 it upheld a
theft conviction against a man caught in suspicious circumstances with a bag of
stolen goods which he claimed to have found abandoned in an alleyway—the jury
hearing evidence of his three previous convictions for shoplifting.

4.48 In Chohan, where D had been convicted of robbing an old man in his home,
the Court of Appeal endorsed the decision of the trial judge to admit evidence of
three burglaries, the facts of which were broadly similar.73 In Cushing,74 another
case where D was accused of robbing an old man in his home, the Court of Appeal
approved the decision of the trial judge to admit evidence of the defendant’s pre-
vious burglaries, although the previous offences involved commercial property,

68 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169; p 238 below.
69 Decided together with Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below.
70 Rejecting a suggestion earlier made in Duggan; see Edwards and others [2005] EWCA Crim 1813,
p 253 below, [54].
71 Saleem [2007] EWCA Crim 1923, [23].
72 Decided together with Hanson (n 68) above.
73 Chohan [2005] EWCA Crim 1813, reported with Edwards (p 253 below).
74 Cushing [2006] EWCA Crim 1221; and for a further case along these lines, see Culhane and Chin

[2006] EWCA Crim 1053.

89
4.49–4.50 Evidence of Bad Character

saying: ‘It is plainly a matter of fact and degree in every case and it is a matter for
the judge’s discretion and individual judgment.’75

4.49 In several cases where persons were accused of offences involving firearms,
the Court of Appeal has held that it was within the proper range of the trial judge’s
discretion to admit evidence of their previous convictions for firearms offences;76
and mutatis mutandis, for offences involving knives.77

4.50 Similarly, a line of cases now clearly indicates that where the defendant is
prosecuted for a sexual offence, bad character evidence is now generally admissible
where it shows his sexual tastes. So in P,78 the Court of Appeal upheld a convic-
tion for rape and indecent assault committed on a girl of 10, the jury having heard
evidence of the defendant’s conviction for a similar offence against a girl of 11. In
Weir a man’s conviction for sexually assaulting a girl of 13 was upheld, the Court
of Appeal holding that evidence had been rightly admitted via ‘gateway (d)’ of
his previously being cautioned for taking an indecent photograph of a child.79 In
Manister,80 in which a 39-year-old man was convicted of indecent assault upon
a girl of 13, the Court of Appeal held that evidence had been rightly admitted of
his recent involvement with two other girls in their mid-teens.81 In cases where D
was accused of a sexual offence against a child, furthermore, evidence of previous
sexual offences against children has been held rightly admitted,82 even where these
took place years before,83 or years afterwards;84 and similarly, where the sexual
offence of which D stood accused involved any other sexual taste that is unusual.85

75 Cf Johnson [2009] EWCA Crim 649, [2009] 2 Cr App R 7, and Harris [2009] EWCA Crim 434,

[2010] Crim LR 54. But in two cases where the defendant was accused of robbery, the Court of Appeal
was unhappy about the fact that, at trial, evidence had been admitted of the defendant’s previous con-
victions for simple theft: see Tully and Wood [2006] EWCA Crim 2270, (2007) 171 JP 25 and Urushadze
[2008] EWCA Crim 2498, further discussed §4. 71 below.
76 Abnett [2006] EWCA Crim 3320; Smith, Spencer and others [2008] EWCA Crim 1342; Lunkulu

[2015] EWCA Crim 1350. However, in Murphy [2006] EWCA Crim 3408 (reported as M in [2007]
Crim LR 637) the Court of Appeal quashed the conviction in a case where the previous conviction, for
possessing a firearm without a certificate, was 20 years old. See further §4.173 below.
77 Rahimi [2010] EWCA Crim 148; and see Khan [2015] EWCA Crim 1755, where at [16] a judge’s

initial refusal to admit such evidence was criticised on appeal.

78 Decided together with Hanson (n 68).
79 Weir (n 69); cf S(P) [2007] EWCA Crim 1387 (evidence of possessing child pornography).
80 Decided together with Weir (n 69).
81 With neither of these two other girls did D’s behaviour amount to criminal offences, and the

Court of Appeal thought that it could not properly be classed as ‘evidence of bad character’ within the
definition set out in CJA 2003 s 98. This being so, they said, it was not admissible (or inadmissible) by
virtue of s 101. However, they indicated that it was admissible at common law, as tending to show that
the defendant was sexually attracted to the 13-year-old complainant. See §2.23 above. And cf Kang
[2013] EWCA Crim 1609.
82 C [2010] EWCA Crim 2402.
83 Cox [2007] EWCA Crim 3365; Sully [2008] EWCA Crim 2556; Woodhouse [2009] EWCA Crim

498.
84 S (SP) [2006] EWCA Crim 756, [2006] 2 CrAppR 23 (341); A [2009] EWCA Crim 513.
85 H [2006] EWCA Crim 2898 (forcing women to fellate him).

90
Evidence of the Defendant’s Bad Character 4.51–4.53

In B (Richard William) the Court of Appeal, confronted with an appeal in a rape

case, held that the defendant’s previous convictions for rape were in principle
admissible to prove his propensity to rape.86 And in Nix it applied the same rea-
soning to previous convictions for illicit sexual acts with daughters and step-
daughters (albeit of a different age).87

4.51 In D, P and U88 the Court of Appeal held that in a trial for sex offences
against children, evidence is potentially admissible of the defendant’s possession
of child pornography. In so holding it said:
[8] We are conscious that in the shorthand of the criminal courts the word ‘propensity’
is sometimes applied, no doubt conveniently, to the case where there is evidence that the
defendant has previously committed an offence similar to that which is now charged.
Propensity may of course be proved by evidence of the previous commission such an
offence, and it may well be that this is the kind of propensity evidence most frequently
adduced, but it is not limited to that kind of evidence. On the contrary, it may include any
evidence that demonstrates that it is more likely that the defendant did indeed behave as
he has been charged.
In such cases juries should, it added, be ‘reminded that they cannot proceed
directly from the possession of photographs to active sexual abuse’. The cogency
of such evidence will, of course, depend on the rest of the evidence in the case. In
sort of ‘coincidence’ case described in §4.43 above it may be very cogent. On the
other hand, if D’s possession of the pornography came to light because the child
discovered it and ‘there is a realistic possibility that he or she has, as a result of see-
ing them, either invented or imagined an act of abuse’ it is not.89

4.52 The case law also makes it abundantly clear that where the defendant is charged
with an offence of violence, and his defence is that the alleged victim started it by
making an attack on him, the defendant’s previous acts of personal violence are
now admissible to bolster the prosecution case that it was he who was the aggressor.
So in Duggan90 the Court of Appeal upheld a conviction for wounding with intent,
holding that evidence had been rightly admitted via ‘gateway (d)’ of the defendant’s
having previously been convicted of assault; and likewise in many other cases.91

4.53 On a number of occasions the Court of Appeal has endorsed decisions,

in cases where defendants were accused of acts of domestic violence, to admit

86 B (Richard William) [2008] EWCA Crim 1850; though here the rape conviction was quashed for

other reasons.
87 Unreported, 16 March 2016.
88 D, P and U [2011] EWCA Crim 1474, [2013] 1 WLR 676, [2012] 1 CrAppR 8 (97).
89 Ibid.
90 Decided together with Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below.
91 Awaritefe [2007] EWCA Crim 706; Slack and Johnson [2010] EWCA Crim 1149; Cox [2014]

EWCA Crim 804. However, the Court of Appeal in Osbourne [2007] EWCA Crim 481, [2007] CrimLR
712 said that the defendant’s tendency to lose his temper and shout at his partner and her child were
not properly admissible to help to prove that he was the person who had murdered someone else.

91
4.54 Evidence of Bad Character

e vidence not only of D’s previous acts of violence towards this particular person,92
but also similar acts of domestic violence committed against previous spouses or
partners. Thus in Campbell93 (discussed in another context at §4.99 below), where
the defendant was convicted of false imprisonment and assault occasioning actual
bodily harm to his current girlfriend, the Court of Appeal thought that evidence
had been properly admitted of his conviction for assault occasioning actual bod-
ily harm to one previous girlfriend and battery of another. More dramatically, in
Williams94 the Court of Appeal upheld the defendant’s conviction for murdering
his current partner by strangulation, the trial judge having admitted evidence of
his attempt to strangle a previous partner.95 And, unsurprisingly, in Cundell96 a
husband’s previous conviction for soliciting someone to murder his wife was held
properly admissible when he was on trial for trying to do the same again.

4.54 In Purcell97 where D was prosecuted for involvement in the hijacking of a car,
the Court of Appeal endorsed the decision of the trial judge to admit evidence of
his extensive record of vehicle crime—including a previous conviction for taking
without the owner’s consent. And in McKenzie,98 where D had been convicted
of causing death by dangerous driving and the issue at trial was who had driven
into whom, the Court of Appeal said that it was within the judge’s discretion to
admit evidence of the D’s behaviour at the wheel ‘as tending to show that the
appellant had a propensity to drive in an aggressive and impatient manner which
involved taking dangerous risks’.99 (Although in Whitehead100 the Court of Appeal,
quite understandably, said that evidence of D’s driving record was not admissible
where there was no dispute about what had happened, and the disputed issue was
whether what he had done on this occasion fell within the definition of ‘dangerous
driving’.)

92 As in P (Mark Geoffrey) [2006] EWCA Crim 2517. Such evidence would also be admissible via

‘gateway (c)’—and indeed would have been admissible at common law; see Fulcher [1995] 2 CrAppR
251, and §4.12 above.
93 Campbell [2007] EWCA Crim 1472, [2007] 2 CrAppR 28 (261), [2007] 1 WLR 2798; [2008]

CrimLR 303.
94 Williams [2006] EWCA Crim 2052.
95 For cases similar in principle, see Simmerson [2006] EWCA Crim 2636; Boulton [2007] EWCA

Crim 942; Watters [2007] EWCA Crim 1184; and McCalla [2007] EWCA Crim 2865. In Davis, dis-
cussed in §4.12 above, the Court of Appeal held that evidence of the defendant’s behaviour towards a
previous partner 20 years before was not properly admitted via ‘gateway (c)’; in principle they accepted
that evidence of this type was admissible via ‘gateway (d)’, but as here the previous incidents in ques-
tion were so old, and the evidence about them open to so much dispute, a wise court would have exer-
cised its discretion to reject this example of it; cf Barron [2010] EWCA Crim 2950. And in this context
note Osbourne (n 91).
96 Cundell [2009] EWCA Crim 2072.
97 Purcell [2007] EWCA Crim 2604.
98 McKenzie [2008] EWCA Crim 758, (2008) 172 JP 377, [2008] RTR 22 [2008] Crim LR 712.
99 In saying this, the Court of Appeal warned against the risk of evidence of this sort giving rise

to satellite issues: [28] ‘We are not holding out the decision as an example to be commended. On the
contrary, there is much to be said for trial judges doing all in their power to ensure that cases are tightly
focused on the essential issues.’
100 Whitehead [2007] EWCA Crim 2078, 171 JPN 418.

92
Evidence of the Defendant’s Bad Character 4.55–4.56

4.55 In the context of drug offences, in Adams101 the Court of Appeal upheld
convictions of possession with intent to supply, indicating that evidence of the
defendant’s previous convictions for possession with intent had been properly
admitted. (Although in another line of cases, the court marked its disapproval of
admitting, in prosecutions for possession with intent to supply, evidence of the
defendant’s previous convictions for simple possession.)102

4.56 In a further group of cases the Court of Appeal has upheld convictions where,
at trial, evidence of the defendant’s record of similar offences was admitted where
the issue was identification. In Brima,103 a murder case, the victim was stabbed
in the stomach and killed during a mêlée. Various pieces of evidence pointed to
Brima as the assailant, including the testimony of X, who claimed that he had
helped Brima to dispose of some bloodstained clothes. The defence case was mis-
taken identity, and that the real murderer was X. The Court of Appeal held that
the trial judge had been right to admit evidence of Brima’s two previous convic-
tions: one for stabbing, and one for a robbery, in the course of which he had held
a knife to his victim’s throat.104 And similar in principle are Smith,105 Blake106 and
Randall,107 where the offences in question were burglary rather than homicide;
and Merkel108 and Spittle,109 which involved traffic offences, and an issue of the
identity of the driver. The possibility of using bad character evidence to support
a disputed identification is, however, subject to the general principle expressed in
Hanson and other cases that bad character evidence must not be used to bolster
up a case that is essentially very weak; and in DPP v Chand,110 where the prosecu-
tor sought to challenge a the decision of a district judge who had refused on this
account to admit evidence of the defendant’s previous convictions, the Divisional
Court said that the weakness or otherwise of the other identification evidence was
a matter for the tribunal dealing with the case, whose assessment would be over-
turned only when it was manifestly unreasonable.

101 Adams [2006] EWCA Crim 2013 (where the defendant’s explanation of being in possession

of £8,000-worth of heroin was that he had obtained it in order to commit suicide!); Spartley [2007]
EWCA Crim 1789 (which involved a previous admission, rather than a conviction); but cf Rooney
[2007] EWCA Crim 3475, where without referring to Adams a different Court of Appeal held that such
evidence had been wrongly admitted, because of the significant differences of detail between the earlier
offence and one with which the defendant was now charged.
102 Van Nguyen, decided with Highton [2005] EWCA Crim 1985, 266 below; Beverley [2006] EWCA

Crim 1287; Atkinson [2006] EWCA Crim 1424; Iqbal [2006] EWCA Crim 1302.
103 Brima [2006] EWCA Crim 408, [2007] 1 CrAppR 24 (316).
104 To similar effect are Eastlake [2007] EWCA Crim 603 and Merkel [2008] EWCA Crim 792—

other street-violence cases where, fortunately, the consequences were not fatal; and see Upson [2009]
EWCA Crim 299.
105 Smith [2006] EWCA Crim 1355.
106 Blake [2006] EWCA Crim 871.
107 Randall [2006] EWCA Crim 1413.
108 Merkel [2008] EWCA Crim 792.
109 Spittle [2008] EWCA Crim 2537.
110 DPP v Chand [2007] EWHC 90 (Admin), (2007) 171 JP 285; cf H [2014] EWCA Crim 420.

93
4.57–4.59 Evidence of Bad Character

4.57 Under the previous law, there would have been no question of the prosecu-
tion putting in evidence the defendant’s previous convictions for offences of dis-
honesty as part of their case that he is guilty of a theft. Nor would it usually have
been possible for the prosecution to produce evidence of the defendant’s sexual
preferences to back up their case that he is guilty of a sexual offence. In Wright, for
example, a headmaster’s convictions for buggery with his young male pupils was
quashed because the trial court had admitted evidence of his possession of homo-
sexual pornography and a guide to homosexual brothels in Paris.111 Similarly, evi-
dence of the defendant’s disposition to acts of violence would not normally have
been admissible against him when he was accused of an offence of violence. In
Dolan, for example, the defendant’s conviction for the murder of his baby son was
quashed because evidence had been admitted at his trial of his tendency to fly into
a rage when things went wrong: a tendency which had shown itself on several pre-
vious occasions when he had smashed up the furniture.112 This evidence, said the
Court of Appeal, was inadmissible, inter alia ‘because it went to propensity’. Nor,
in the absence of ‘striking similarity’, would evidence of previous convictions have
been admitted to support a disputed identification. The modern cases clearly show
that the bad character evidence provisions of the CJA 2003 have brought about
what is in principle at least a major change. The ‘striking similarity’ requirement is
now a matter of legal history.

4.58 That said, however, the more similar the previous behaviour, the stronger
the inference of disposition will be, and vice versa. Consequently, the less similar
the previous behaviour was, the more strongly the judge will be pressed to use his
discretion to exclude it. And so, inevitably, a popular argument for defendants
anxious to suppress their criminal records is ‘What I did previously was different.’

4.59 To date, this argument has usually availed convicted defendants little where,
after trials at it which such evidence was admitted, they have tried to raise it on
appeal. In the first place, the Court of Appeal regards the decision as to whether
previous misconduct can be seen as evidence of propensity to commit the offence
currently charged as something that is ‘fact specific’, and a matter for the judge
at trial with whose assessment they will not lightly interfere. And when consid-
ering whether the decision fell within the trial judge’s margin of discretion, the
approach is usually ‘does the previous conduct, viewed broadly, show a tendency
do the sort of thing which the Crown says that D did here?’ not ‘does D’s previous
conduct, viewed in detail, show a tendency to do exactly the sort of thing that the
Crown says he did here?’ At trials for supplying drugs the Court of Appeal has dis-
approved of the admission of previous convictions for simple possession,113 and

111 Wright (1990) 90 CrAppR 325; and see B (RA) (1997) 2 CrAppR 88.
112 Dolan [2003] EWCA Crim 1859, [2003] 1 Cr App R 18 (281).
113 Beverley [2006] EWCA Crim 1287, [2006] CrimLR 1064.

94
Evidence of the Defendant’s Bad Character 4.60–4.61

at trials for robbery it has disapproved of the admission of evidence of previous

convictions for simple theft.114 But in Cushing,115 where D had been convicted of
a domestic burglary in course of which the householder was subjected to violence,
the Court of Appeal held that D’s previous convictions for burglary had been
properly adduced, although these were for burgling commercial property and no
personal violence had been involved.

4.60 Furthermore, where D has a substantial record, and the Crown seeks to
adduce evidence of all or most of it, the Court of Appeal has said that the correct
approach is to ask whether D’s record, viewed in the round, shows a tendency to
do the sort of thing that D is now accused of: not to look in detail at each previous
crime in turn, to see how closely or otherwise it matches the offence that is now
alleged. In J,116 for example, D was convicted of the attempted murder of another
youth, whom the Crown alleged he had stabbed because he had a grudge against
him. The evidence adduced at trial included D’s previous conviction for violent
disorder, previous convictions for possessing bladed articles in public, and another
incident in which he had allegedly stabbed someone. All these, said the Court of
Appeal, were rightly admitted:
This history of offending, particularly when the incidents are viewed as a group, had the
potential to demonstrate a tendency on the part of the appellant to carry knives or other
bladed implements in public; to participate in public incidents involving other young
men, which on one occasion resulted in the victim being stabbed in the hand and on
another being hit on the head with a metal pole or similar implement; and to be involved
in incidents in which the victims are threatened publicly with being stabbed.
A similar ‘global’ approach was taken in Dossett.117

4.61 In similar vein, the Court of Appeal has also held properly admitted evi-
dence of previous misconduct which shows that D has in the past been prepared
to do something which formed some key part of the offence of which D is now
accused. So in Nicholas118 D appealed against a conviction for a murder, the pros-
ecution case being that, from prison, he had masterminded V to be shot dead by
someone else. The Court of Appeal endorsed the trial judge’s decision to admit
evidence of D’s previous conviction for the unlawful possession of a firearm and
ammunition—which he had been seen with as he ran away from a car, and which
he said belonged to the car driver. This did not, of course, show that D previously
murdered someone, or even shot at them. But it was properly admitted, said the

114 Tully and Wood [2006] EWCA Crim 2270.

115 Cushing [2006] EWCA Crim 1221. And see Johnson and others [2009] EWCA Crim 649, [2009]
2 CrAppR 7.
116 J [2013] EWCA Crim 1050.
117 Dossett [2013] EWCA Crim 710.
118 Nicholas [2011] EWCA Crim 1175.

95
4.62–4.63 Evidence of Bad Character

Court of Appeal, because it showed that, in the relatively recent past, D ‘had been
prepared to consort with (and thus had access to) a person who carried potentially
lethal firearms’.119

4.62 The case law is not wholly consistent, however, and there are decisions in
which ‘striking similarity’ appears to have risen from its grave, at least temporar-
ily. In Fyle120 D had been convicted of the murder of a ‘pre-operative transsexual’
prostitute, whom he had allegedly strangled following a casual sexual encounter,
stealing the victim’s mobile phone and some jewellery as he left. The trial judge
had admitted evidence that, following a previous casual sexual encounter with a
homosexual, the defendant had stabbed the other person and stolen some of his
property. Having pointed out how the two incidents differed in various relatively
minor respects, the Court of Appeal held that the previous incident was wrongly
admitted and quashed the conviction. And in Laws-Chapman,121 a ‘historic abuse’
case, the Court of Appeal quashed the defendant’s conviction for buggery, com-
mitted against the complainant, V, in 1978 when he was 12 or 13, because at trial
evidence had been admitted of D’s conviction in 1985 for buggering another
youth, X, then aged 17, at the same location. This was wrongly admitted, said the
Court of Appeal, because this incident—unlike the alleged incident with V—could
have been consensual. But, as in Fyle, there were similarities between the incidents
which surely made it significantly more likely that what V had said was true. A fac-
tor that influenced the Court of Appeal appears to have been the fact that, if the
X incident had taken place today and was indeed consensual, it would have been
entirely legal. But consensual or otherwise, and irrespective of whether it would
be regarded as ‘bad character’ today, the X incident was surely relevant as showing
that D, who denied V’s accusations, did have a sexual preference for youths many
decades younger than himself—just as the evidence of Manister D’s other acts,
though they were legal, showed that Manister had a sexual preference for young
teenage girls.122 With due respect to the court, these two decisions look seriously
out of line, and should not be followed.

A Particular Example: ‘Gangland Evidence’

4.63 Although propensity evidence adduced via ‘gateway (d)’ will usually be evi-
dence of previous criminal offences, it need not necessarily be so. Bad character
evidence, as we saw in §2.1 above, is ‘evidence of, or of a disposition towards,

119 And see the cases cited at §4.38 above; and also Maguire [2015] NICA 71.
120 Fyle [2011] EWCA Crim 1213.
121 Laws-Chapman [2013] EWCA Crim 1851.
122 Manister (n 80); and see also IJ [2011] EWCA Crim 2734.

96
Evidence of the Defendant’s Bad Character 4.64–4.65

misconduct’, and misconduct means ‘the commission of an offence or other

reprehensible behaviour’. And if D’s past misconduct, though not criminal, sheds
light upon some disputed issue in the trial it will be potentially admissible via
‘gateway (d)’.

4.64 An increasingly common example is evidence that D belongs to a street gang

which indulges in particular forms of anti-social conduct. Membership of such
a gang is not in itself a criminal offence—unless, of course, it is a terrorist group
the membership of which has been proscribed under powers conferred by legisla-
tion against terrorism. In a number of cases, it has been held proper to admit, via
‘gateway (d)’, evidence that D was an adherent of a particular gang, where this was
relevant to a disputed issue.123 In Elliott124 D was prosecuted for unlawfully pos-
sessing a gun which was found in a place to which he had ready access. When he
denied that it was his, evidence was held to be properly admitted suggesting that
he belonged to a gang, part of the culture of which was to make use of guns. In
Mullings,125 similarly, evidence suggesting that D belonged to a gang was held to
be admissible as evidence that he was, on a particular occasion, in possession of
a gun with intent to endanger life. And in Lewis126 such evidence was said to be
properly admissible either to reinforce disputed evidence that D was present at the
scene of the crime, or if presence was admitted, to rebut his claim that his presence
was innocent and coincidental. (In addition to this, in some cases evidence of D’s
membership of a gang might be admissible as ‘background evidence’ via ‘gateway
(c)’, as was explained in §4.17 above.)

4.65 ‘Gangland evidence’ of this sort will often raise problematic issues in the law
of evidence over and above the issue of bad character. It will often consist of evi-
dence of material—text, or pictures, or both—posted on the internet. Where the
material is pictures, an obvious question is whether the person in picture is actu-
ally the defendant. And where it is uncertain who put the material together and
uploaded it, this may give rise to issues about hearsay.127 Evidence of D’s belong-
ing to a particular gang will often require, to make it meaningful, evidence of this
gang’s habits and practices; this will usually come from police officers who are (or
who are said to be) knowledgeable on the subject—and this may give rise to issues
about expert evidence. But important as they are, these matters fall beyond the
scope of this book.

123 If the Crown cannot identify the issue to which it is relevant, then—inevitably—it will not be

admissible via ‘gateway (d)’: Awoyemi and others [2015] EWCA Crim 590; further proceedings, [2016]
EWCA Crim 668.
124 Elliott [2010] EWCA Crim 2378.
125 Mullings [2010] EWCA Crim 2820.
126 Lewis [2014] EWCA Crim 48; and see Okokonono [2015] EWCA Crim 2521.
127 As in Bucknor [2010] EWCA Crim 1152. The hearsay issue is discussed in JR Spencer, Hearsay

Evidence in Criminal Proceedings, 2nd edn (Oxford, Hart Publishing, 2014) §3.35.

97
4.66–4.67 Evidence of Bad Character

Showing Propensity by Reference to Convictions for

Similar Offences: Section 103(2)–(10)

4.66 Section 103(1)(a), which expands the scope of ‘gateway (d)’ as described in
section 101(1)(d), is itself expanded by the next three subsections of section 103,
which are as follows:
(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of
the kind with which he is charged may (without prejudice to any other way of
doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is
satisfied, by reason of the length of time since the conviction or for any other rea-
son, that it would be unjust for it to apply in his case.
(4) For the purposes of subsection (2)—
(a) two offences are of the same description as each other if the statement of the
offence in a written charge or indictment would, in each case, be in the same
terms;
(b) two offences are of the same category as each other if they belong to the same
category of offences prescribed for the purposes of this section by an order
made by the Secretary of State.
(5) A category prescribed by an order under subsection (4)(b) must consist of offences
of the same type.
In 2009, these provisions were further expanded by adding another four sub-
sections, the effect of which is to put convictions from criminal courts of other
countries on the same footing as national convictions.128

4.67 To date, only one Order has been made under subsection (4)(b). This
Order129 establishes two groups. The first consists of theft, robbery, burglary,
aggravated burglary, taking vehicles without consent, handling, going equipped
for stealing, making off without payment, plus attempts to commit these
offences (and committing them as an accessory). The second comprises 36
offences involving sex with minors. At one time it was rumoured that a further
Order was being considered, which would create a further category of offences
of personal violence, but nothing came of this, and it now seems unlikely that
it ever will.

128 In order to comply with Council Framework Decision 2008/675/JHA of 24 July 2008 on taking

account of convictions in the Member States of the European Union in the course of new criminal
proceedings (though the amendment to s 103 is not limited to convictions in other EU States).
129 Criminal Justice Act 2003 (Categories of Offences) Order 2004 SI 2004/3346.

98
Evidence of the Defendant’s Bad Character 4.68–4.69

The Relationship Between Section 103(2) and 103(1)(a)

4.68 What exactly is the relationship between section 103(2) and section 103(1)(a)?
Does section 103(2) add something to section 103(1)(a) or subtract something
from it? When the prosecution seeks to establish propensity by reference to previ-
ous convictions, are those convictions admissible only if the conditions set out in
section 103(2) are satisfied? Or can the prosecution use evidence of previous con-
victions, even if they fall outside the requirements of section 103(2)? For example,
take a case where D is charged with manslaughter of the child of the woman with
whom he was then living, and the defence case is that the person who struck the
child the fatal blow was not him, but her. He has previous convictions for assault
occasioning actual bodily harm, all committed against previous cohabitees or their
children. These offences do not fall within section 102(2)(a) and are not bracketed
with manslaughter in any Order that has yet been made under section 103(2)(b).
Are these previous convictions nevertheless admissible to establish the defendant’s
propensity to commit offences ‘of the kind with which he is now charged’?

4.69 The most obvious construction of the provisions is that section 103(2)–(5)
adds to the range of possibilities already created by section 103(1)(a), rather than
restrict them: from which it would follow that the prosecution can use previous
convictions to establish propensity under section 103(1)(a), even though they do
not fall within section 103(2). This is clear from the phrase in brackets in the
first paragraph of section 103(2): ‘Where subsection (1)(a) applies, a defend-
ant’s propensity to commit offences of the kind with which he is charged may
(without prejudice to any other way of doing so) be established by evidence that he
has been convicted of [offences of the types listed in the rest of this subsection].’130
Furthermore, the ‘restrictive’ interpretation would produce extremely odd results.
If D was prosecuted for murdering child X, it would not be possible to use
103(2)(a) to prove that he has been convicted of grievous bodily harm against his
other children, Y and Z, by beating them to within an inch of their lives, because
these convictions would not be covered by section 103(2); but if he was pros-
ecuted for shoplifting it would be possible to prove his previous conviction for
taking a conveyance without the owner’s consent, because—bizarrely—this pre-
vious offence would be: because both theft and taking a conveyance without the
owner’s consent appear together in one of the lists contained in the Order which
has been made under section 103(4)(b). It is therefore hardly surprising that in
Hanson131 the Court of Appeal came down firmly in favour of the expansive view:
‘In referring to offences of the same description or category, section 103(2) is not

130 Emphasis added.

131 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169; p 238 below.

99
4.70–4.71 Evidence of Bad Character

exhaustive of the type of conviction which might be relied upon to show evidence
of propensity to commit offences of the kind charged.’132.

Scope of Section 103(2): The Need for the Previous

Conviction to Show Propensity

4.70 However, when dealing with this question, the Court of Appeal in Hanson
also stressed that just because a defendant has a criminal record that falls within
the categories set out in section 103(2), it does not follow that it is automatically
admissible. In the Court’s clear view, before it is admitted the defendant’s record
must be one which can fairly be said to show a propensity to do the sort of thing of
which the defendant is currently accused—even though, as previously mentioned,
there need not be a ‘striking similarity’ between the previous offence or offences
and the one currently alleged. To show a ‘propensity’, it seems, the record must
show one or other of two things: either that the defendant has a taste for, or at least
a willingness to engage in, conduct that most people would have no desire to do at
all, or would emphatically wish to avoid; or else, where the behaviour in question
is not particularly unusual, that the defendant, unlike most people, makes a habit
of it. The court said:
[7] Where propensity to commit the offence is relied upon there are thus essentially three
questions to be considered. 1. Does the history of the conviction(s) establish a propensity
to commit offences of the kind 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(s)
of the same description or category; and, in any event, will the proceedings be unfair if
they are admitted?
[8] In referring to the offences of the same description or category, section 103(2) is
not exhaustive of the types of conviction which might be relied upon to show evidence
of propensity to commit offences of the kind charged. Nor, however, is it necessarily
sufficient, in order to show such a propensity, that a conviction should be of the same
description or category as that charged.

4.71 These words were echoed by the Court of Appeal in Tully and Wood.133 In
this case, the defendants were accused of robbery—an offence for which both of
them had a considerable track-record, as well as many convictions for a range of
other property offences. At trial, the prosecution first proposed to put in their
previous convictions for robbery, but when nudged in that direction by the judge,

132 To similar effect see Weir [2005] EWCA Crim 2886, p 288 below, where at [7] the Court expressly

adopted the arguments put forward in favour of this view in the original version of this commentary, as
written for the Judicial Studies Board; and see Johnson [2009] EWCA Crim 649.
133 Tully and Wood [2006] EWCA Crim 2270, 171 JP 25.

100
Evidence of the Defendant’s Bad Character 4.72–4.73

put in their other property offence convictions too. Of this the Court of Appeal
was critical, saying:
[26] In our view the judge was wrong to hold, in effect, that a propensity to obtain other
people’s property by one means or another made it more likely that these appellants would
have committed this offence. In fact he never said that in terms, but that was the implied
basis of his decision. The whole thrust of the guidance in Hanson is that the court should
only admit convictions which have some probative force by reason of their similarity to
the offence charged. To allow the Crown to prove a propensity to obtain other people’s
property by some means or another is, in our view, to allow them to cast far too wide a net.
They had no doubt, however, that the defendants’ robbery convictions were prop-
erly admitted, and these together with the rest of the evidence persuaded the Court
of Appeal that the conviction was safe, notwithstanding the admission of the other
evidence which should have been excluded.134

How Often must a Crime be Committed to

Establish a ‘Propensity’?

4.72 When discussing the meaning of ‘propensity’ in Hanson the Court of Appeal
said:
There is no minimum number of events necessary to demonstrate such a propensity.
The fewer the number of convictions the weaker is likely to be the evidence of propensity.
A single previous conviction for an offence of the same description or category will often
not show propensity. But it may do so where, for example, it shows a tendency to unu-
sual behaviour or where its circumstances demonstrate probative force in relation to the
offence charged …135
In consequence, a common line of argument for defendants anxious to suppress
their criminal records is ‘My previous conviction doesn’t show propensity, because
I’ve only done it once.’

4.73 To date, defendants who have used this argument have not had much
success—at any rate, on appeal. In Long136 a conviction for robbery was quashed
partly because the judge had admitted evidence of the defendant’s single previ-
ous conviction for robbery, the details of which were significantly different. In
Shrimpton,137 by contrast, the Court of Appeal approved the trial judge’s decision

134 To similar effect see Urushadze [2008] EWCA Crim 2498. (Though the Court of Appeal is reluc-

tant to second-guess a trial judge’s ruling that a conviction could show propensity: Larkin [2016]
EWCA Crim 170.)
135 n 68 above.
136 Long [2006] EWCA Crim 578. Commenting on this case, Professor Redmayne (n 66) 156 says

that it ‘is probably the high-point of arguments against single act propensity’ and finds it difficult to
reconcile with McMinn [2007] EWCA Crim 3024.
137 Shrimpton [2007] EWCA Crim 3346.

101
4.74 Evidence of Bad Character

to admit evidence of the defendant’s one previous conviction for theft at his trial
for conspiracy to steal, because of the similarities between the two offences: both
involved the pre-planned theft of specialist commercial vehicles in other countries,
with a view to their removal back to Britain. Similarly, in Bernasconi,138 where the
defendant had been convicted of affray and a count of possessing an imitation fire-
arm with intent to cause fear of violence, the Court of Appeal endorsed a decision
to admit, via ‘gateway (d)’, the defendant’s single previous conviction for possessing
an imitation firearm with intent to cause fear of violence—because both offences
involved unusual behaviour, namely the production, for no obvious reason, of an
imitation weapon. In Brown (2011)139 the Court of Appeal had no doubt that one
previous conviction for robbery could found a propensity for robbery. In Kamara140
it said that a single previous conviction for possessing drugs with intent to supply
constituted a propensity, and in Sullivan141 it took the same approach to a single
previous conviction for cultivating them. In Brown (2012)142 it said that a propen-
sity to drive dangerously could be deduced from one single previous conviction for
dangerous driving. And in Bowman and Lennon, discussed above, it said the same
about a single previous conviction for a firearms offence. In murder cases, unsur-
prisingly, the Court of Appeal has upheld convictions following trials at which the
jury was told about D’s previous conviction for a murder, albeit ‘only’ one.143

4.74 However, the Court of Appeal has sometimes quashed convictions for rape
on the ground that the jury should not have been told about D’s previous rape
conviction, when there was only one.144 This is surprising, because even as the
Sexual Offences Act 2003 has expanded it, the ‘ordinary’145 offence of rape neces-
sarily presupposes a willingness to disregard another person’s sexual autonomy in
a way that is both fundamental and—it is to be hoped—extraordinary. For this
reason, surely, at a rape trial, even a single previous conviction for rape should be
in principle admissible, as has been held in other cases where the Court of Appeal
has taken a tougher line.146 And likewise, surely, even a single previous conviction
for any other sexual offence in which the defendant had forcibly imposed a sexual
act upon an unwilling person.147
138 Bernasconi [2006] EWCA Crim 1052.
139 Brown [2011] EWCA Crim 1636; cf Asif [2008] EWCA Crim 77.
140 Kamara [2011] EWCA Crim 1146.
141 O’Sullivan [2013] EWCA Crim 43.
142 Brown [2012] EWCA Crim 773.
143 Jackson [2011] EWCA Crim 1870; cf Glenn and Wright [2006] EWCA Crim 3236. And also for a

‘single-punch’ manslaughter: Powell [2015] EWCA Crim 2200, [2016] 1 Cr App R (S) 49.
144 McGarvie [2011] EWCA Crim 1414; Benabbou [2012] EWCA Crim 1256.
145 As against the offence under s 5, which is labelled ‘rape of a child under 13’, although the acts may

have been consensual in reality, if not in law.

146 Miller [2010] EWCA Crim 1578; Baker [2012] EWCA Crim 1801; Burdess [2014] EWCA Crim

270.
147 As in MD [2015] EWCA Crim 818 (or 837, as given on the Lawtel transcript)—where the Court

of Appeal endorsed the decision to admit, at D’s trial for two rapes, a previous conviction for a brazen
sexual assault in which D had pinched an unwilling woman’s bottom and then rubbed his penis against
her.

102
Evidence of the Defendant’s Bad Character 4.75–4.76

Need to Provide Details of the Offence in Addition

to the Bare Fact of the Conviction148

4.75 From what has previously been said it will be clear that, at least in certain
cases, the admissibility or otherwise of a defendant’s previous convictions will
depend on how similar they were to the offence of which he is currently accused:
and this means that in practice there may be factual disputes about the details of
the offences of which he was convicted. As to this, the Court of Appeal in Hanson
had the following to say:
[12] It will often be necessary, before determining admissibility, and even when consider-
ing offences of the same description or category, to examine each individual conviction
rather than merely to look at the nature of the offence or at the defendant’s record as a
whole. The sentence passed will not normally be probative or admissible at the behest
of the Crown. Where past events are disputed, the judge must take care not to permit
the trial unreasonably to be diverted into an investigation of matters not charged in the
indictment.
In the same case, they also said:
[17] We would expect the relevant circumstances generally to be capable of agreement,
and that, subject to the trial judge’s ruling as to admissibility, they will be put before the
jury by way of admission. Even where the circumstances are genuinely in dispute, we
would expect the minimum indisputable facts to be thus admitted. It will be very rare
indeed for it to be necessary for the judge to hear evidence before ruling on admissibility
under this Act.
Where the defence refuses to co-operate, it is open to the prosecution to prepare a
document with a summary of the details, as it understands them to be, and to ask
the judge to admit it in evidence under the ‘inclusionary discretion’ (alias ‘safety-
valve’) exception to the hearsay rule contained in section 114(1)(d) of the CJA
2003.149 Failing this, the prosecution may seek to call the witnesses to the earlier
offence to give oral evidence, if they can be found; and if this happens, the defence
have no cause to complain if the evidence turns out to be dramatically unfavour-
able to their case.150

4.76 Where the defendant’s previous offences bear important similarities to the
offence for which he is currently on trial—for example, where he is on trial for a
‘distraction burglary’ committed against an aged person, and he has previous con-
victions for burglary, all committed in the similar way against similar victims—it

148 This topic is further discussed in §§5.18ff below.

149 Steen [2007] EWCA Crim 335, [2008] 2 CrAppR 26. For s 114(1)(d), see Archbold: Criminal
Pleading, Evidence and Practice (London, Sweet & Maxwell, 2016) §11.3d, and JR Spencer, Hearsay
Evidence in Criminal Proceedings, 2nd edn (Oxford, Hart Publishing, 2014) ch 5.
150 Cf Woodhouse [2009] EWCA Crim 498.

103
4.77–4.79 Evidence of Bad Character

goes without saying that the prosecution is entitled to cross-examine the defend-
ant in order to bring out the details, and is not limited to proving the bare fact that
he has previous convictions for burglary.151 Similarly, it is proper for the court to
hear evidence about the sentence imposed for the previous offence, if this reveals
something of importance: as where the previous conviction was for the unlawful
possession of a firearm, and in the later proceedings the defendant claims that,
though technically guilty of the earlier offence, he had been duped and his posses-
sion on the earlier occasion was really innocent.152

4.77 In some cases, the dispute will not be about the details of the previous
offences, but about whether the defendant actually committed them (or all of
them). Such a dispute arose in M,153 and was not satisfactorily resolved at trial. In
quashing the conviction, the Court of Appeal said:
[15] When such an issue arises it is imperative that the judge is supplied with meticu-
lously accurate information about a defendant’s previous convictions and that, whatever
other considerations may apply, the jury should not be misinformed in any way which
might suggest that the defendant’s previous convictions are worse, and more serious,
than in truth they are.

4.78 In similar vein, the Court of Appeal made the following observation in Bovell:
[2] … it is necessary for all parties to have the appropriate information in relation to
convictions and other evidence of bad character, whether in relation to the defendant
or some other person, in good time. This can only be achieved if the rules in relation to
the giving of notice are complied with. It is worth mentioning that the basis of a plea in
relation to an earlier conviction may be relevant where it demonstrates differences from
the way in which the prosecution initially put the case. In other words, a mere reference
to the statement of a complainant in an earlier case may not provide the later court with
the material needed to make a decision as to the admissibility of the earlier conviction.154

Power of the Court to Exclude Evidence Otherwise Admissible

Under Section 103(2) by Virtue of Section 103(3)

4.79 By section 103(3):

Subsection (2) does not apply in the case of a particular defendant 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 for it to apply in his case.

151 Smith (James William) [2006] EWCA Crim 1355, where the defence unsuccessfully sought to

argue, relying on the pre-Act case of McLeod [1995] 1 CrAppR 591, that where ‘The earlier ones are
admissible as similar fact evidence, prosecuting counsel should not seek to probe or emphasise simi-
larities between the underlying facts of previous offences and the instant offences.’
152 Nelson [2012] EWCA Crim 1171.
153 M [2012] EWCA Crim 1588; [2012] 2 CrAppR 25 (316).
154 Bovell [2005] EWCA Crim 1091, [2004] 2 CrAppR 27 (401), p 248 below.

104
Evidence of the Defendant’s Bad Character 4.80–4.82

This provision is in addition to the duty imposed on the court by section 101(3),
which (as we have already seen) provides that:
The court must not admit evidence under subsection (1)(d) or (g) if, on an application
by the defendant to exclude it, it appears to the court that the admission of the evidence
would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it.
In respect of bad character evidence which the prosecution seeks to admit via sec-
tion 103(2), these two provisions clearly overlap, to the point where it is permis-
sible to wonder why, given the existence of section 101(3), it was thought necessary
to include section 103(3) at all. However, there is one important respect in which
section 103(3) goes further than section 101(3): for section 101(3) to operate it is
necessary for the defence to make an application, whereas it is open to the judge to
apply section 103(3) on his own initiative.

4.80 In practice, it seems likely that section 103(3) will be the main vehicle by
which the courts exclude evidence of past convictions which the prosecution seek
to introduce via section 102(2) and which the court feels do not really establish
‘a propensity’; and section 101(3) will be the vehicle through which the court
excludes evidence of bad character otherwise admissible via ‘gateway (d)’ on more
general grounds—in particular, because the court considers that it would cause
the court to waste excessive time on ‘satellite issues’ or because it is being adduced
to support a case that is otherwise extremely weak.155 (For a discussion of the con-
cept of a ‘weak case’, see §§1.69–1.73 above.)

4.81 (In the light of what has previously been said, it should go without saying
that there is no principle that, on grounds of fairness bad character evidence indi-
cating the defendant’s disposition to commit the offence ought to be excluded
where the rest of the evidence is strong.)156

What is Meant by ‘a Conviction’ for the

Purposes of Section 103(2)?

4.82 Section 103(2) provides that the defendant’s propensity to commit the sort
of offence with which he is now charged may ‘be established by evidence that he
has been convicted’ of criminal offences of the various types specified in section
103(2)(a) and (b). In law, a defendant is ‘convicted’ either when he pleads guilty to
the offence with which he is charged or when, following a not guilty plea, the court
finds him guilty of it.157 It does not constitute ‘a conviction’ in the eye of the law

155 See §1.65ff above.

156 A strangely perverse argument put forward by the defence, and firmly stamped upon, by the
Court of Appeal in Simmerson [2006] EWCA Crim 2636; see §§1.33 and 1.51 above.
157 Shergill and others [1999] 2 CrAppR(S) 341; Webster [2004] 2 CrAppR(S) 25.

105
4.83–4.84 Evidence of Bad Character

where a person submits to a formal caution or when, on being sentenced for an

offence of which he stands convicted, he asks for another offence to be ‘taken into
consideration’ for the basis of sentencing.158 It therefore follows, as the Court of
Appeal pointed out in Weir,159 that section 103(2) may not be used as the vehicle
for putting before the court as evidence of propensity the fact that the defendant
has previously been cautioned for a similar offence, or asked for one to be taken
into consideration.

4.83 In so holding, the Court of Appeal made it clear that in such a case it is still
open to the prosecution to make evidential use of the incident that gave rise to the
caution by relying on the general words of section 103(1)(a); and on that basis,
they upheld the defendant’s conviction for indecent assault on a 13-year-old girl,
the trial court having heard evidence that, some four years previously, the defend-
ant had been cautioned for taking an indecent photograph of a child, contrary to
section 1 of the Protection of Children Act 1978.160 And in Ngyuen161 it made it
equally clear that, in the same way, evidential use can be made of a previous inci-
dent in respect of which the Crown Prosecution Service had, at the time, decided
not to proceed (see further, §5.28–§5.39).

‘Gateway (d)’ and ‘Cross-admissibility’ Where the Defendant

Faces a Single Trial on an Indictment Charging Two or
More Similar Offences162

4.84 So far, the discussion about ‘gateway (d)’ has proceeded on the assumption
that D is being prosecuted for offence X, and the point at issue is the admissibility
or otherwise of his previous convictions in respect of offences Y and Z. But what
is the position where D was never charged with offences Y and Z, and is now being
prosecuted on a single indictment charging all three of these offences together?163
Under the new law, to what extent (if any) can the court take account of the evi-
dence in relation to offences Y and Z in deciding whether or not D has committed
offence X?

158 Nicholson [1947] 2 All ER 535.

159 Weir [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 288 below, [5].
160 For a further example, see R v S. (Stephen Paul) [2006] EWCA Crim 756, [2006] 2 CrAppR 341,
[2006] Crim LR 296. The legal status of cautions as evidence of bad character is further discussed in
§5.32 below.
161 Ngyuen [2008] EWCA Crim 585, [2008] 2 CrAppR 9 (99).
162 Or in a magistrates’ court, one trial in respect of two or more informations charging similar

offences.
163 In Ludlow v Metropolitan Police Commissioner [1971] AC 29 the House of Lords made it clear

that, by virtue of what is now Part 10.2(3) of the CPR, counts for similar offences may be properly
joined in one indictment even though the evidence is not reciprocally admissible. In Powell [2014]
EWCA Crim 642, [2014] 1 WLR 2757, the Court of Appeal held that this rule has survived the statutory
reform of the law relating to bad character evidence.

106
Evidence of the Defendant’s Bad Character 4.85–4.88

4.85 Under the previous law, the evidence in respect of counts Y and Z would
have been admissible on count X if it went beyond showing a mere propensity
to commit the sort of offence in question and had ‘positive probative value’ in
relation to some specific issue in dispute. Where this would have been the case
before, it is equally the case under the new provisions. As we have seen, evidence
revealing that the defendant is of bad character is admissible through ‘gateway (d)’
where it is relevant to ‘an important matter in issue between the defendant and
the p
rosecution’—which it would be in this case. However, as the Court of Appeal
pointed out in Wallace,164 the fact that the legal route by which such evidence is
admissible is now is section 101 means that the prosecution must in principle
comply with the statutory requirement of giving notice.165

4.86 A more difficult question arises where, under the previous law, the three
counts would have been properly joined but the evidence would not have been
‘cross-admissible.’ In such a case, section 112(2) requires us, for the purpose of
deciding whether the evidence on one count is admissible on the other, to treat
each count as if it were ‘charged in separate proceedings’. So, in respect of count
X, the evidence on counts Y and Z would in principle be evidence of ‘bad charac-
ter’ and would not be let in by virtue of section 98(a), which ordinarily removes
from the definition of evidence of ‘bad character’ any evidence which ‘has to do
with the alleged facts of the offence with which the defendant is charged.’ This
would mean that, to be admissible on count X, the evidence in respect of counts
Y and Z would need to pass through one of the ‘gateways’ set out in section 101.
This it would do, I believe, if, though the evidence would not have been ‘cross-
admissible’ at common law, it nevertheless suggests that the defendant ‘has a pro-
pensity to commit offences of the kind with which he is charged’. As the Court of
Appeal said in H:
The new statute has enabled a common sense approach to be taken to the concept that
each similar complaint makes each other similar complaint the more likely. The reality is
that independent people do not make false allegations of a like nature against the same
person, in the absence of collusion or contamination of their evidence.166

4.87 In practical terms, the result will be that where counts for different offences
are properly joined, it will happen more frequently than in the past that the evi-
dence on one count is admissible on the other.

4.88 Some potentially tricky issues arise as to the relationship between the admis-
sibility, via ‘gateway (d)’, of bad character evidence on the grounds that would have
satisfied ‘similar fact evidence’ rules under the earlier law, and the admissibility, via

164 Wallace [2007] EWCA Crim 1760, [2007] 2 CrAppR 30 (397), [2008] 1 WLR 572.
165 As to which see §5.40 below.
166 H [2011] EWCA Crim 2344, [2012] 1 Cr App R 30, [2013] Crim LR 681, [24].

107
4.89–4.92 Evidence of Bad Character

‘gateway (d)’, of evidence of bad character that can now come in as ‘disposition’
evidence under the extension to ‘gateway (d)’ that is created by section 103.167

4.89 In principle, three possible scenarios exist.

4.90 Scenario one is where the bad character evidence is admissible simply
because it shows propensity. The classic case is where, at the trial of D for (say)
a sex offence against a child, the prosecution adduces evidence of D’s previous
convictions for paedophile offences. The evidence is admissible simply because
it shows D has a tendency to do this sort of thing. Although in practice ‘scenario
one’ will usually involve the prosecution adducing evidence of previous convic-
tions, the same scenario could in principle arise where the bad character evidence
consists of the evidence called to support a different count in the same indictment.
A hypothetical example would be where D faces an indictment containing two
counts for sex offences against children, count 1 where the case depends on the
oral evidence of a complainant, and count 2 where the evidence is a photograph
of D committing an indecent act with an unindentified child. Here there is no
question of ‘mutual corroboration’, as there would be if all three counts depended
on different children making similar accusations, each of which is strengthened by
the unlikelihood of two people inventing similar lies (as in scenario three below).
And if evidence on count 2 supports count 1, or vice versa, this can only be so on
the chain of reasoning that goes ‘we know he did it once, and that makes it more
likely that he did it on the second occasion too’.

4.91 Scenario two is where the bad character evidence is admissible, not because
it shows propensity, but solely because it amounts to circumstantial evidence.
An example of this is Wallace.168 There D was accused of four robberies, all with
rather similar features, to each of which he was connected by a certain amount of
circumstantial evidence. None of this evidence was, in respect of the incident to
which it related, overwhelming. But when all the evidence in respect of all four
counts was looked at ‘in the round’, it made a compelling case that D was involved
in all of them.

4.92 Scenario three are cases in which both lines of reasoning are possible. An
example would be the all-too-common situation where D is accused of a series of
indecent acts with children, the main evidence in each case being the otherwise
uncorroborated word of the child concerned. Here the evidence on one count

167 They are explored by David Ormerod and Rudi Fortson in ‘Bad Character and Cross-

admissibility’ [2009] Crim LR 313, to which I am indebted in what follows.

168 Wallace [2007] EWCA Crim 1760, [2007] 2 CrAppR 30 (397), [2008] 1 WLR 572; Chopra [2006]

EWCA Crim 2133, [2007] 1 CrAppR 16 (225).

108
Evidence of the Defendant’s Bad Character 4.93

clearly supports the case in respect of the others because of the unlikelihood of
two independent children inventing similar lies; and hence, like ‘scenario two’, it is
a case where evidence in respect of each count taken individually is relatively weak,
but when looked at ‘in the round’ it creates a compelling case against D in respect
of all of them. But at the same time, as in ‘scenario one’, once the tribunal of fact is
convinced that D is guilty on count 1, it is logical for it to reason ‘we know he did
it once, and the fact that he does this sort of thing makes it more likely that he also
committed the other offences’.169

4.93 This distinction between these different scenarios has an important practi-
cal implication. In what might be called a ‘pure propensity case’, like scenario one,
it would be improper for the tribunal of fact to reason from propensity unless it
was first sure that D had committed what, for ease of reference, we shall call the
first offence170—as the Court of Appeal has recognised in various cases.171 On the
other hand, this is not so in a case like scenario two, where there is no question
of the tribunal of fact having to be convinced of D’s guilt in respect of any of the
incidents before it can properly treat the evidence on one as supporting the pros-
ecution case that he is guilty of the others: as, once again, the Court of Appeal has
pointed out in various cases.172 In scenario three, where both lines of reasoning are
logically permissible, the logical position must be that the tribunal of fact could
properly treat the evidence on one incident as reinforcing the evidence on another
without first being sure beyond reasonable doubt that he did either of them; and
then, if fully convinced of D’s guilt on one count, it could then go on to adopt
the ‘propensity’ reasoning that applies in scenario one in order to help it decide
whether D is guilty on the other count or counts as well.173 In a ‘scenario three’
where none of the evidence on any given count is particularly strong, a judicial
direction that tried to deal with this double possibility would be potentially con-
fusing, and it would therefore be sensible to direct the jury as if it were a ‘scenario
two’.174 But in a ‘scenario three’ where the evidence on one count is strong—for

169 In Chopra (ibid) and again in S [2008] EWCA Crim 544 the Court of Appeal approached two

of these ‘scenario three’ cases on the basis that they were ‘scenario ones’ and the evidence was cross-
admissible because it showed propensity. But in Freeman and Crawford [2008] EWCA Crim 1863 and
in McAllister [2008] EWCA Crim 1544, [2009] 1 CrAppR 10 (129), the Court of Appeal suggested (in
effect) that cases were better viewed as ‘scenario two’ cases.
170 It need not be the first one chronologically. In principle, a tendency can be established from

later incidents, as well as earlier ones: see Adenusi [2006] EWCA Crim 1059, [2006] Crim LR 929, and
§4.101 below.
171 Lowe [2007] EWCA Crim 3047; Z [2009] EWCA Crim 20, [2009] 1 Cr App R 34; cf Sullivan

[2015] EWCA Crim 1565 (and §2.31 above).

172 Freeman and Crawford [2008] EWCA Crim 1863, [20] and [21]; McAllister [2008] EWCA Crim

1544, [2009] 1 CrAppR 10 (129); O’Leary [2013] EWCA Crim 1371. This point seems to have been
overlooked, to the undeserved benefit of the defendant, in Hussein (2009) 173 CL & JW 190 (5 March
2009).
173 For a practical example, see the illustration in the Crown Court Bench Book, 179.
174 On this, see N (H) [2011] EWCA Crim 730, [2011] 1 CrAppR 12, [2012] Crim LR 158: ‘It will be

in rare circumstances, if at all, that the jury might be directed to consider both these possibilities in the

109
4.94 Evidence of Bad Character

example, where D has confessed, or was caught in the act—the judge should in
principle give a direction that takes account of both possibilities.175

Gateway (d) and Evidence of Propensity:

Is Expert Evidence Admissible?

4.94 A final question in relation to section 103(1)(a) is the basis on which the
defendant’s previous convictions are to be admissible as evidence of propensity.
Is this to be done by rule of thumb and common sense?176 Where a defendant is
charged with burglary, for example, can the courts simply take it as a given that a
long string of convictions for burglary clearly shows that he has a propensity to
commit burglaries, one isolated conviction for burglary many years ago fails to
show this clearly, and previous convictions for dangerous driving do not show
it at all? Or is this a matter on which scientific evidence is relevant and admis-
sible: so that, for example, the defence could produce a statistical expert to argue
that, contrary to what one might imagine, persons with this particular defend-
ant’s pattern of previous burglaries do not have a particular propensity to com-
mit burglaries? Or with the even more extreme consequence that the prosecution
must produce evidence of this sort before they are allowed to put the defendant’s
previous convictions in? In broad terms, it seems appropriate to look at statistics
of this sort when considering whether the policy behind the character evidence
provisions is a fair one, but admitting detailed statistical evidence in particular
cases would, by contrast, be a source of great confusion. Judicial common sense
seems preferable.177

same case (although not so unusual for the jury to consider the effect of a relevant previous conviction
as demonstrating a relevant propensity and the unlikelihood that similar but independent complaints
are, as between themselves, coincidental or malicious). Whichever is the basis upon which the jury is
directed that they may consider the evidence given in relation to one count as support for another, they
will require careful directions as to their proper approach to the evidence and, in the case of an alleged
propensity, a specific warning as the limitations of such evidence’ ([31]).
175 Professor Redmayne (n 66) ch 8(5) says that by adopting this approach the courts are guilty of

‘double counting’—which he says is ‘both wrong and prejudicial to the defendant’. I do not find his
argument convincing. In principle, it is surely possible for the same piece of evidence to be relevant in
two different ways; and to be of greater importance for this reason. But that said, it is equally true, of
course, that a piece of evidence which is relevant for several reasons is not on that account alone more
worthy of belief.
176 Or ‘heuristically’, as legal philosophers would say.
177 In Kelly [2015] EWCA Crim 500 the Court of Appeal held, unsurprisingly, that on D’s trial for

murder it was not open to the Crown to adduce expert evidence from a psychiatrist that the defendant
‘had a previous history of assaulting people when he is angry and this has been an established pattern
of behaviour. He has previous convictions for violence. Mr Kelly, in my view, therefore demonstrates
that he deals with conflict using physical force.’

110
Evidence of the Defendant’s Bad Character 4.95–4.98

Evidence of Propensity to be Untruthful:

Section 103(1)(b)

4.95 According to section 103(1)(b), matters in issue between the defendant and
the prosecution include:
the question whether the defendant has a propensity to be untruthful, except where it is
not suggested that the defendant’s case is untruthful in any respect.
In principle, this provision clearly makes admissible evidence that shows that the
defendant is a compulsive liar, but in most cases such evidence is unlikely to be
available. The important practical question is whether, and if so when, it enables
evidence to be given of the defendant’s previous criminal offences.

4.96 When dealing with witnesses, the common law has traditionally taken the
position that criminal convictions of all types undermine the speaker’s credibility.
This is the spirit that lay behind section 6 of the Criminal Procedure Act 1865,
which in its original form permitted a witness to be cross-examined about any
criminal convictions. The previous law also adopted a similar attitude towards the
credibility of defendants, to the limited extent that the law admitted evidence of
their bad character to bear upon their credibility. Where a defendant in his evi-
dence had cast ‘imputations on the character’ of the prosecutor or various other
persons, section 1(3)(ii)—originally 1(f)(ii)—of the Criminal Evidence Act (CEA)
1898 allowed him to be cross-examined on his character in order to undermine
his credibility. The case law on this provision proceeded on the assumption that
questions could be asked about any offences, because all convictions are relevant
to credibility.178 In effect, the law acted on the basis that ‘character is indivisible’.

4.97 Surprisingly, perhaps, ‘indivisibility of character’ was not the idea that lay
behind section 103(1)(b). According to the Explanatory Notes, ‘This is intended to
enable the admission of a limited range of evidence such as convictions for perjury
or other offences involving deception (for example, obtaining property by decep-
tion), as opposed to the wider range of evidence that will be admissible where the
defendant puts his character in issue by, for example, attacking the character of
another person.’179 In other words, some convictions suggest that the defendant is
an untruthful person, and others do not.

4.98 If this logic is followed through, and evidence of convictions is admissible to

the extent that lying or dishonesty was involved, it ought to follow that evidence
could also be given of any conviction that followed a contested trial in which the

178 Although a minority line of cases suggested that cross-examination should be principally

directed to offences of dishonesty: Watts (1983) 77 CrAppR 126; Owen (1983) 83 CrAppR 100.
179 §374.

111
4.99 Evidence of Bad Character

defendant had given evidence on oath to protest his innocence. This line was taken
by the Court of Appeal in Hanson,180 in which it said:
As to propensity to untruthfulness, this, as it seems to us, is not the same as propensity
to dishonesty. It is to be assumed, bearing in mind the frequency with which the words
honest and dishonest appear in the criminal law, that Parliament deliberately chose the
word ‘untruthful’ to convey a different meaning, reflecting a defendant’s account of his
behaviour, or lies told when committing an offence. Previous convictions, whether for
offences of dishonesty or otherwise, are therefore only likely to be capable of showing a
propensity to be untruthful where, in the present case, truthfulness is an issue and, in the
earlier case, either there was a plea of not guilty and the defendant gave an account, on
arrest, in interview, or in evidence, which the jury must have disbelieved,181 or the way in
which the offence was committed shows a propensity for untruthfulness, for example by
the making of false representations.
(How far, if at all, this logic applies when the issue of the defendant’s truthfulness
arises in the context of ‘gateway (e)’ or ‘gateway (g)’ is discussed later: see §4.115–
118 and §§4.163–4.164 below.)

4.99 In Campbell182 the Court of Appeal delivered a controversial judgment deal-

ing with the way in which a jury should be directed on the relevance (if any) of the
defendant’s previous convictions to his credibility; the case is examined further in
that context later (§§5.61ff below). In the course of it, Lord Phillips pointed out
that ‘gateway (d)’ renders bad character evidence admissible where it is relevant
to an important issue between the defendant and the prosecution, and then went
on to say:
[30] The question of whether a defendant has a propensity for being untruthful will
not normally be capable of being described as an important matter in issue between the
defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very
far to establishing the commission of a criminal offence. To suggest that a propensity
for untruthfulness makes it more likely that a defendant has lied to the jury is not likely
to help them. If they apply common sense they will conclude that a defendant who has
committed a criminal offence may well be prepared to lie about it, even if he has not
shown a propensity for lying whereas a defendant who has not committed the offence
charged will be likely to tell the truth, even if he has a shown a propensity for telling lies.
This passage from the judgment should, with respect, be treated with caution.
Taken at face value, it appears to suggest that the defendant’s credibility is not a
central issue in a trial at which he gives evidence. This is obviously incorrect;183
and if it were the case, it would, as one commentator pointed out, ‘render

180 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [13].
181 For a case where the Court of Appeal endorsed a judge’s decision to admit a defendant’s previous
conviction on this basis, see Alobaydi [2007] EWCA Crim 145.
182 Campbell [2007] EWCA Crim 1472, [2007] 2 CrAppR 28 (261), [2007] 1 WLR 2798, [2008]

Crim LR 303.
183 See Adrian Keene (2008) 158 New Law Journal 168.

112
Evidence of the Defendant’s Bad Character 4.100–4.102

section 103(1)(b) a dead letter’.184 These remarks should be read in the context of
the issue before the court, which was how juries ought to be directed in respect
of previous convictions the main importance of which was that they show a pro-
pensity to commit the type of offence in question, not whether evidence of the
defendant’s tendency to lie is generally admissible. This point was taken by a later
Court of Appeal in Belogun,185 where it rejected a defence argument, built on this
passage from Campbell, that the trial judge had been wrong to admit via section
103(1)(b) as bearing on his credibility the fact that he had been convicted in the
past for perverting the course of justice. On the same basis, it ought still to be pos-
sible, as suggested in Hanson, to admit evidence of previous occasions where the
defendant has previously lied when accused of a criminal offence.186

4.100 If the reasoning in Campbell is questionable, the Court’s observations

do make some practical sense in the context of a trial where, as in that case, the
defendant’s previous convictions show that he has a propensity to commit the sort
of offence of which he is currently accused. In such a case, the fact that D denied
his guilt on the previous occasions is of little weight compared with the fact that
he has a track-record for committing this type of offence; and in the interest of
simplicity, in jury trials it is better not to complicate the direction by mentioning
it. So to this extent, then, as Professor Redmayne puts it, ‘Campbell gets it more or
less right.’187

Is the Defendant’s Later Conduct Evidence of Propensity?

4.101 In Adenusi188 the Court of Appeal rejected the argument that a person’s
propensity to behave in a particular way could be shown by evidence of his
behaviour before the offence for which he is now tried, but not by evidence of
his behaviour after. This, with respect, was clearly right. A ‘propensity’ is a trait
of character, which a given person either has, or does not have. It is not an illness,
like herpes or hepatitis, which sufferers contract at an ascertainable point in their
medical history.

The Admissibility of Old Convictions

4.102 On this, see §§4.173–4.180 below.

184 P Mirfield, ‘Character, Credibility and Truthfulness’ [2008] LQR 1, 5.

185 Belogun [2008] EWCA Crim 2006.
186 As in Alobaydi (n 181).
187 Redmayne (n 66) 203.
188 Adenusi [2006] EWCA Crim 1059, [2006] Crim LR 929; applied in Norris [2013] EWCA Crim

712. Cf Imiela [2013] EWCA Crim 2171, where the Court of Appeal endorsed the decision to admit, as
evidence of a rape committed in 1987, D’s further rapes in 2001 and 2002.

113
4.103–4.105 Evidence of Bad Character

Gateway (e): Relevant to an Issue Between Co-defendants

4.103 By section 101(1)(e), evidence of the defendant’s bad character is admis-

sible where ‘it has substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant’. By section 112(1), an ‘important
matter’ is defined as ‘a matter of substantial importance in the context of the case
as a whole’.

4.104 Insofar as ‘gateway (e)’ might be used by one defendant to undermine his
co-defendant’s credibility, its meaning is elaborated by section 104, which is as
follows:
(1) Evidence which is relevant to the question whether the defendant has a propen-
sity to be untruthful is admissible on that basis under section 101(1)(e) only if
the nature or conduct of his defence is such as to undermine the co-defendant’s
defence.
(2) Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by
the co-defendant,
is admissible under section 101(1)(e).
‘Gateway (e),’ it seems, largely preserves the position under the pre-existing com-
mon law.189

4.105 The common law was initially reluctant to allow D1 to adduce evidence of
D2’s bad character. However, it would do so, rather grudgingly, where the evidence
that D1 wished to call revealed D2 to be a person of bad character if this sup-
ported some specific aspect of D1’s defence. Thus in Thompson and others190 D1
had given his version of events to the police in a statement in the course of which
he had mentioned that D2 had told him that D2 and D3 ‘always torch our jobs
when we finished them, it covers up the evidence.’ In the light of this, the Court of
Appeal held that that D1 was entitled to call evidence at trial to show that D2 and
D3 did indeed ‘torch their jobs’ when they had committed burglaries, because this
evidence suggested that D1 was telling the truth when he made his statement to
the police. Then in 2004, the House of Lords in Randall191 held—less technically
and rather more intelligibly—that, where an issue arises at trial as to which of two
joint defendants committed the offence, D1 can use evidence of D2’s propensity to
do this sort of thing in an attempt to persuade the court that it was D1 who really
did it. So, in that case, where the prosecution alleged that a man had been beaten to
death by both of them, and each one blamed the other, D1—who had a relatively

189 On which see Archbold (2002) §8–214.

190 Thompson and others [1995] 2 CrAppR 589.
191 Randall [2004] 1 WLR 56; and see Price [2004] EWCA Crim 1359, [2005] Crim LR 304.

114
Evidence of the Defendant’s Bad Character 4.106–4.108

clean record—should have been allowed to use D2’s history of domestic burglaries
(including one in which the occupier was threatened with a hammer) in order to
support his case that the murder was the work of D2 alone.192 In addition, where
D2 gave evidence against D1, the earlier law gave D1 a statutory right193 to cross-
examine him on his bad character, with a view to undermining his credibility as
a witness.

4.106 The Law Commission’s Draft Bill aimed to confirm the earlier law, but
would have added a requirement of judicial leave. The scheme in the CJA 2003
broadly follows the Law Commission’s proposals, but omits the leave requirement
(and in respect of this ‘gateway’, section 101(3) confers no judicial discretion to
exclude).194

4.107 Section 101(1)(e) provides that evidence of the defendant’s bad character is
admissible if ‘it has substantial probative value in relation to an important matter
in issue between the defendant and a co-defendant’. In using the words ‘substantial
probative value’, the phraseology is slightly more restrictive than is used in section
101(1)(d), where bad character is admissible if ‘it is relevant to an important mat-
ter in issue between the defendant and the prosecution.’ Although the difference
between these forms of words is slight, it does have a possible significance, which
is explained in §4.118 below.

4.108 So this ‘gateway’ enables D1 to adduce evidence of D2’s bad character in an

attempt to show that D2 committed the offence, in the same way as he was entitled
to do at common law. The ‘cut-throat defence’, where D1 claims that D2 commit-
ted the offence, and vice versa, is the classic case where there is ‘an important mat-
ter in issue between the defendant and a co-defendant’. Another equally obvious
example is where D1 admits the actus reus of the offence, but claims to have acted
under D2’s duress. However, to this principle there is a limit: the bad character
evidence D1 seeks to adduce must help to advance his own case, and not merely
harm his co-defendant’s. So if D1 and D2 are jointly tried for offences in relation
to the production and sale of drugs, D1 will not be permitted to adduce evidence
of D2’s heavy involvement in such conduct in the past if this evidence does not, at
the same time, suggest that D1 was not involved.195

192 This principle only applies, of course, where there is an issue as to which of two defendants com-

mitted the offence. In other words, D1 is only permitted to make use of D2’s propensity to commit this
sort of offence where it tends not only to suggest that D2 committed it, but that D1 did not. See B(C)
[2004] EWCA Crim 1254, [2004] 2 CrAppR 34 (570).
193 Under s 1(3)(iii) (formerly 1(f)(iii)) of the CEA 1898.
194 And in Platt [2016] EWCA Crim 4 the Court of Appeal said that, as the 2003 Act was intended to

mark a new beginning, the previous case-law in this area should no longer be cited.
195 Wooley [2011] EWCA Crim 2758. Cf Passos-Carr [2009] EWCA Crim 2018—though it is not

easy to see why in Passos-Carr it was thought that D2’s record for violence did not advance D1’s
defence, which was that he (D1) had merely given V a push in self-defence and it was D2 and not D1
who had then moved over to the offensive and given V a beating.

115
4.109–4.111 Evidence of Bad Character

4.109 For ‘gateway (e)’ to open, the issue, if there was one, must still be a live one
by the time of trial. So where in a murder case D2 originally made a statement to
the police admitting the offence and implicating D1 too, but then withdrew the
statement and at trial defended himself by saying ‘I just didn’t do it’, and without
going on to add ‘it was her’, there was no longer any ‘issue’ between them, and D1
could not use ‘gateway (e)’ to admit evidence of D2’s record for serious offences
of violence.196 According to the Court of Appeal in Whitnell,197 furthermore, the
‘issue’ between D1 and D2 must arise from evidence in the case which, as a mat-
ter of law, is admissible against D1. D2’s extra-judicial confession, in which he
admits presence at the scene of a murder but claims that D1 was the killer, is in law
admissible evidence against D2, but not against D1. And so if at their joint trial the
Crown adduces evidence of D2’s confession, and D2 does not testify, this situation
does not create a ‘live issue’ between him and D1; and in consequence, D1 cannot
adduce evidence of D2’s criminal record via ‘gateway (e)’.198

4.110 As with the other ‘gateways’ set out in section 101, ‘gateway (e)’ only
becomes relevant when the evidence in question comprises evidence of bad char-
acter, as defined in section 98. As explained in Chapter 2, bad character evidence
does not include evidence ‘which has to do with the alleged facts of the offence
with which the defendant is charged, or is evidence of misconduct in connection
with the investigation or prosecution of that offence’. In consequence, ‘gateway (e)’
does not come into the picture if D1 wishes to adduce some piece of evidence that
points to D2’s guilt directly rather than indirectly: for example, D2’s confession.199
Nor is it applicable if, for example, D1 wishes to adduce evidence that D2 tried
to blackmail him, threatening D1 that unless he complied with the demand, D2
would tell the police that D1 was the person responsible for the offence.200

4.111 Under the old law, section 1(3)(iii) of the CEA 1898201 gave D1 the right
to adduce evidence to undermine the credibility of a D2 who had testified against
him. Under the 2003 reform, this is now a matter that falls within ‘gateway (e)’. In
this respect it is qualified by section 104(1):
Evidence which is relevant to the question whether the defendant has a propensity to be
untruthful is admissible on that basis under section 101(1)(e) only if the nature or con-
duct of his defence is such as to undermine the co-defendant’s defence.

196 Donoghue [2006] EWCA Crim 2099; cf B [2008] EWCA Crim 1402, where D2, having originally

denied the offence and blamed D1, at trial changed his story and admitted it.
197 Whitnell [2013] EWCA Crim 161, [2014] 1 CrAppR 9.
198 Whitnell’s conviction was quashed and a retrial ordered—at which he was again convicted.

A critical comment on the decision in [2014] CLW 7/2 makes the point that it is difficult to achieve
justice in a case like this without ordering separate trials.
199 L and R [2011] EWCA Crim 649.
200 Apabhai [2011] EWCA Crim 917.
201 CJA 2003 Sch 37, Pt 5.

116
Evidence of the Defendant’s Bad Character 4.112–4.114

The result is much the same as under section 1(3)(iii) of the CEA 1898. This pro-
vision enabled D1 to cross-examine as to character D2 who had ‘given evidence
against’ him: a phrase that the case law interpreted as ‘giving evidence in such a
way as to undermine his defence.’202

4.112 However, there is one respect in which D1’s right to adduce evidence of
D2’s bad character in order to undermine D2’s credibility appears to be wider
under the new law than it was under the old. Under the old law, D1 could only
adduce evidence of D2’s bad character to this end by cross-examining under
section 1(3)(iii) of the 1898 Act; and, obviously, he could not cross-examine D2
unless D2 gave evidence. And where D2 put forward a defence that heaped the
blame on D1 without actually going into the witness-box, the case law suggested
that D1 was unable to call D2’s truthfulness into question by calling evidence of
his bad character.203 Section 104, unlike section 1(3)(iii) of the CEA 1898, is not
phrased in such a way as to make D2’s presence in the witness-box a precondition
for D1’s being able to adduce evidence of his bad character in order to dent his
credibility, in a situation where ‘the nature or conduct of [D2’s] defence is such as
to undermine the co-defendant’s defence’.

4.113 The application of section 104(1), it should be noted, is strictly limited. It

operates only where D2 gives or calls evidence that undermines D1’s defence—in
which case it permits D1 to adduce bad character evidence suggesting that D2 is
not a person whose word is to be trusted. So it does not otherwise limit D1’s abil-
ity to adduce, if he has it, evidence of D2’s bad character that suggests that it was
D2 who committed the offence, rather than D1. In Daly204 D1 and D2 were jointly
accused of stealing £5,000 from V’s house, where they had both been employed as
decorators. D1, who was of good character, said that crime was entirely D2’s work,
and sought to support this defence by leading evidence of D2’s lengthy crimi-
nal record, which included a previous theft committed in similar circumstances.
The trial judge, mistakenly thinking that section 104(1) applied, refused to admit
the evidence because nothing D2 had said or done at trial had undermined D1’s
defence. Quashing D1’s conviction, the Court of Appeal said that section 104(1)
was irrelevant and D1 should have been permitted to adduce evidence of D2’s
record.

4.114 Where one co-defendant seeks to adduce evidence of the other’s bad char-
acter with a view to undermining his credibility, is there any general limit to the
sort of evidence that he may produce? Is he limited to evidence that clearly dem-
onstrates that his co-defendant has told lies: for example, evidence that he has

202 Murdoch and Taylor [1965] AC 574; Crawford [1998] 1 CrAppR 338; Rigot [2000] 7 Archbold

News 2.
203 Knutton (1993) 97 CrAppR 115.
204 Daly [2014] EWCA Crim 2117, 179 JP 114.

117
4.115–4.116 Evidence of Bad Character

c onvictions for obtaining property by deception, or evidence that in previous tri-

als he has given evidence that was disbelieved? Or does this corner of the law oper-
ate on the simpler basis that the rogues are less worthy of belief than law-abiding
citizens, with the result that he can call any evidence that shows his co-defendant
is a rogue?

4.115 The previous law operated on the second basis: where D1 had given evi-
dence against D2, D2 was permitted to cross-examine D1 on his convictions for
(in effect) anything and everything, including offences with no particular con-
nection with telling lies.205 As we have seen, ‘gateway (d)’ as extended by section
103(1)(b) now permits the prosecution to call evidence of bad character which
shows that the defendant has a propensity to lie: and in that context, the Court of
Appeal in Hanson206 said that, when exploiting this new possibility, the prosecu-
tion may only adduce evidence that specifically shows his tendency to lie. In the
wake of this decision it was suggested that, to be consistent, the courts might now
be expected to take the same line with ‘gateway (e)’.207 However, the courts have
not followed this suggestion, and in this context have taken the robust line that
they used to take before. Thus in Lawson208 some youths were prosecuted for man-
slaughter on the basis that, for a prank, they had pushed a mentally handicapped
man into a lake where, most regrettably, he drowned. At trial, D2 cross-examined
D1 about his previous conviction for wounding, and the judge directed the jury
that this was relevant to D1’s credibility. Distinguishing what was said in Hanson
in the context of ‘gateway (d)’, the Court of Appeal held that this direction was cor-
rect. The same approach has been taken in a series of other cases.209

4.116 The courts, I believe, are right to have distinguished Hanson when dealing
with credibility in the context of ‘gateway (e)’. The prosecution’s new power in
‘gateway (d)’ to adduce evidence of the defendant’s bad character in order to show
his propensity to lie is something which the courts were right to construe nar-
rowly, because if construed broadly to allow the adduction of any evidence which
shows the defendant is a rogue, it would short-circuit the scheme under which the
prosecution has been given only a limited right to adduce evidence of bad charac-
ter which shows the defendant has a propensity to commit the type of offence with
which he is now charged. But that is not a reason for adopting the same approach

205 For one example out of many, see Hoggins [1967] 1 WLR 1223 (a criminal record for offences

of violence).
206 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below; see above, §§4.95–4.100.
207 See Roderick Munday, ‘Cut-throat Defences and the “Propensity to be Untruthful” under s 104

of the Criminal Justice Act 2003’ [2005] Crim LR 624.

208 Lawson [2006] EWCA Crim 2572, [2007] 1 CrAppR 11, [2007] 1 WLR 1191, [2007] Crim LR 232.
209 Jarvis [2008] EWCA Crim 488, [2008] Crim LR 632; Rosato [2008] EWCA Crim 1243; and see

De Vos [2006] EWCA Crim 1688.

118
Evidence of the Defendant’s Bad Character 4.117–4.118

where ‘gateway (e)’ is involved, and the issue is how much one defendant may
reveal about the character of a co-defendant who has sought to put the blame for
the offence on him.

4.117 If the conditions set out in sections 101(1)(e) and 104 are met, the court
is obliged to admit the evidence that D1 wishes to use against D2. Section 101(3),
which requires the court to exclude bad character evidence if ‘it appears to the
court that the admission of the evidence would have such an adverse effect on the
fairness of the proceedings that the court ought not to admit it’ applies only to bad
character evidence admissible via ‘gateways (d) and (g)’, and hence does not apply
to evidence admissible to which ‘gateway (e)’ applies. Although in general terms
the courts have a discretion to exclude otherwise admissible evidence of bad char-
acter by virtue of section 78 of PACE 1984,210 this provision is expressly limited to
‘evidence on which the prosecution proposes to rely’. The absence of any general
discretion in this respect was pointed out in Apabhai,211 and again in Phillips.212

4.118 However, as was also pointed out in Phillips, a court confronted by a defend-
ant who wishes to adduce against his co-defendant some highly prejudicial piece
of bad character evidence the relevance of which is marginal, or which is tenuous
and will give rise to satellite issues disproportionate to its evidential value, is not
left completely powerless. In order to open ‘gateway (e)’, section 101(1)(e) requires
the evidence to have ‘substantial probative value’ in relation to ‘an important’ mat-
ter in issue between the defendant and a co-defendant. If the bad character evi-
dence is only marginally probative, or is probative only in relation to some minor
matter, then the judge should rule that it does not satisfy the conditions for admis-
sibility under section 101(1)(e). In Assani,213 for example, the Court of Appeal
endorsed the decision of a trial judge to refuse to admit at the instance of one
defendant of some rather thin evidence that his co-defendant had been involved,
14 years before, in a minor incident of violence; in Land and Kalq214 D1’s defence
was that he had acted under duress from D2, and in support of his defence sought to
adduce evidence of D2’s conviction for causing grievous bodily harm with intent,
plus other incidents of violence; the judge, said the Court of Appeal, was right to
refuse to admit those in respect of which the evidence was tenuous, because they
added little or nothing to the rest; and in Edwards and Rowlands,215 where D1 had
been allowed to adduce evidence of D2’s convictions for some relatively minor
offences, the Court of Appeal indicated that the judge should have excluded them;
in the context of a trial for conspiracy to supply drugs, for which sentences of
10 years’ imprisonment were eventually imposed, they were ‘insignificant in

210 Above §§1.55ff and 1.63.

211 Apabhai [2011] EWCA Crim 917.
212 Phillips [2011] EWCA Crim 2935, [2012] 1 CrAppR 332 (25).
213 Assani [2008] EWCA Crim 2563; Turnbull [2013] EWCA Crim 676 is similar.
214 Land and Kalq [2006] EWCA Crim 2856.
215 Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below, [32].

119
4.119–4.120 Evidence of Bad Character

r elation to the real issue in the case’.216 Furthermore, defendants who wish to lead
evidence to show their co-defendants are of bad character are required under the
Criminal Procedure Rules to give notice.217 If D1 tries to adduce such evidence at
trial without complying with the notice requirement, in the hope of ambushing
D2 with evidence of bad character that he will then have no opportunity to coun-
ter, it is proper for the judge, mindful of his duty under the Criminal Procedure
Rules to further the overriding objective of trying cases justly,218 to refuse to admit
it.219 And where such evidence is admitted, the Court of Appeal in Mitchell220 said
that the judge can, and should where necessary, intervene to prevent counsel for
D1 making excessive use of it in cross-examination.

4.119 As with ‘gateway (d)’, the evidence of bad character admitted via gateway (e)
will usually consist of previous convictions. Where it consists of something less
solid, the co-defendant is likely to dispute it. When deciding whether to admit
such evidence, the court is bound by CJA section 109—which requires the court,
when deciding on admissibility, to assume that it is true unless ‘no reasonable
court or jury could reasonably find it to be true’.221 But obviously, if it is admitted
the tribunal of fact should not draw inferences from it unless it is satisfied that it
is true—and in some cases it will be necessary to make this point in a direction to
the jury.222

4.120 Where D1 is allowed to call evidence of D2’s bad character via ‘gateway (e)’
in an attempt to persuade the court that he (D1) is innocent, is the tribunal of fact
permitted to take this evidence into account as part of the case against D2—or is
it supposed to consider it only in relation to the question of whether D1 might be
innocent? In Randall Lord Steyn said, at the end of his speech (and obiter), the
following:
[35] For the avoidance of doubt I would further add that in my view where evidence of
propensity of a co-accused is relevant to a fact in issue between the Crown and the other

216 And see Platt [2016] EWCA Crim 4.

217 See below, §§5.40ff.
218 CPR, r 1.1.
219 Musone [2007] EWCA Crim 1237, [2007] 1 WLR 2467, [2007] 2 CrAppR 29 (379); and see

Reardon [2008] EWCA Crim 1549, [34]. The decision in Musone was criticised by James Richardson
in his comment in [2007] Criminal Law Week 21, §2. His objection was that the CPR are ‘procedural
only’, and the ‘overriding objective and case management considerations may be deployed in relation
to procedural issues (the proper concern of the rules, but they have no application to issues outside
the scope of the rules, such as evidence or the substantive law’. I think this criticism is misconceived.
First, the consequences that attach to failure to comply with procedural rules, are, with respect, ‘a pro-
cedural issue’. Secondly, the courts must surely be able to ensure the integrity of their own procedures
(on which see Professor Leonard Leigh ‘Hearsay and Bad Character Evidence: Striking at Ambush
Defences’ (2007) 171 JPN 436). Musone was approved in Phillips [2011] EWCA Crim, [2012] 1 CrAppR
332 (25); and see also Ramirez [2009] EWCA Crim 1721, [2010] Crim LR 235, and Jarvis [2008] EWCA
Crim 488.
220 Mitchell [2010] EWCA Crim 783.
221 On which see Mitchell (ibid); s 109 is further discussed at §5.47 below.
222 As the Court of Appeal seems to have accepted in Najib [2013] EWCA Crim 86.

120
Evidence of the Defendant’s Bad Character 4.121–4.122

accused it is not necessary for a trial judge to direct the jury to ignore that evidence in
considering the case against the co-accused. Justice does not require that such a direction
be given. Moreover, such a direction would needlessly perplex juries.
On the implications of this, two views are possible. One is that, in such a case, the
prosecution have a windfall: the ‘bad character’ evidence that the co-accused (B)
has adduced may be used to strengthen the prosecution case against the other
defendant (A). The other is that it should not be so used, unless it could have
been adduced by the prosecution against A via one of the other ‘gateways’: but
that, to avoid confusing juries, judges need not direct juries to take notice of it
when considering whether B may be innocent, whilst simultaneously ignoring it
in deciding whether A is guilty.223 In Robinson, the most recent of a series of Court
of Appeal decisions on this point, the court inclined towards the second view: but
in so doing, the court said that, where the ‘bad character’ evidence could not have
been adduced by the prosecution through one of the other ‘gateways’, prosecuting
counsel should avoid making use of it in his or her closing speech.224 Although
the facts of Robinson arose before the new law on bad character evidence came
into force, the Court of Appeal referred to it—with the suggestion that, in princi-
ple, the position is still the same.225 (The broader question of how bad character
evidence, once admitted, may be used is discussed below (see §§4.165ff and §5.62
below; and a suggested approach to the problem discussed in this paragraph is
given in Appendix IV, pp 222–225 below)).

4.121 Section 104(2) makes it plain that, where the adduction (as against the use)
of bad character evidence is concerned, ‘gateway (e)’ is open to the defence, but
not the prosecution. It is as follows:
(2) Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by
the co-defendant, is admissible under section 101(1)(e).
However, as is explained below (§§4.153ff below), a defendant who conducts his
defence in such a way as to attack the character of his co-defendant will thereby
open ‘gateway (g)’, as a result of which the prosecution will certainly be able to
adduce evidence of his bad character.226

4.122 A final point to note in connection with ‘gateway (e)’ is that, of course, a
court may properly decide to admit bad character evidence via that gateway which
it earlier refused to admit through ‘gateway (d).’ Even though ‘gateway (e)’ sets a

223 [2004] EWCA Crim 1254; [2004] 2 CrAppR 34 (570); Price [2004] EWCA Crim 1359; Mertens

[2004] EWCA Crim 2252, [2005] Crim LR 301; Murrell [2005] EWCA Crim 382, [2005] Crim LR 869.
224 Robinson [2005] EWCA Crim 3233, [83].
225 The Court of Appeal certified a point of public importance, but refused leave to appeal.
226 As in Dowds (reported together with Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27

(401)), p 248 below.

121
4.123–4.127 Evidence of Bad Character

higher standard in some ways than is set by ‘gateway (d),’ the conditions of each
are different; and furthermore, the court has what is (in effect) a discretion to
exclude evidence otherwise admissible via ‘gateway (d)’ which it does not have in
respect of ‘gateway (e)’.

‘Gateway (f)’: Evidence to Correct a False Impression

4.123 Under the previous law, evidence of a defendant’s bad character was admis-
sible, within limits, if he had made the running by leading evidence that he had a
good one. The purpose of ‘gateway (f)’ is to preserve this part of the previous law,
subject to some ‘fine tuning’.

4.124 The justice of enabling the defendant’s bad character to be displayed in

order to correct a false impression was universally accepted, but the details of the
previous law were widely thought to be unsatisfactory. Its problems were exam-
ined by the Law Commission, which identified three deficiencies.

4.125 First, it seemed that the existing law made no provision to correct a false
impression which was conveyed not expressly, but by implication: by dress, for
example, or by conduct, as where a defendant with a criminal record makes much
of the fact that other possible culprits have criminal records for offences similar to
that charged—so conveying the false impression that he has not.

4.126 Secondly, the power to correct the false impression only arose where the
false impression had been given by witness evidence, either from the defendant,227
or from the mouth of a defence witness.228 There was no power to correct the false
impression if it was conveyed in a speech by the defendant’s lawyer, for example,
or in a statement that he made to the police and which was later read to the court.

4.127 Thirdly, the existing rules were thought to have an element of ‘overkill’ in
them, in that if the defendant claimed quite truthfully that he had a good charac-
ter in one respect, the prosecution could prove that he had a bad one in another.
In the leading case of Winfield a defendant prosecuted for indecent assault led
evidence of his previous good conduct towards women—and it was held that
the prosecution were entitled to cross-examine him about a previous conviction
for dishonesty.229 Although the ‘indivisibility of character’ rule was defended by
some,230 the Law Commission thought it was unduly harsh. Disagreeing with

227 In which case he exposed himself to cross-examination as to credit under CEA 1898 s 1(3)(ii).
228 When the witness could be cross-examined and evidence called in rebuttal: as in Redd [1923] 1
KB 104.
229 Winfield (1939) 27 CrAppR 139.
230 Roderick Munday, Evidence, 2nd edn (London, Butterworths, 2003) §8.18.

122
Evidence of the Defendant’s Bad Character 4.128–4.129

Humphrys J in Winfield,231 the Law Commission thought that on principle the

defendant ought (in effect) to be able to ‘put half of his character in issue’.

4.128 Here, the government accepted the Law Commission’s analysis of the
problem, and adopted most of the Law Commission’s proposed solution. The
provisions of the CJA 2003 that deal with this matter are based on the Law Com-
mission’s Draft Bill but some of its refinements have been removed: in particular,
the requirement for judicial leave, and the Law Commission’s clauses providing
that bad character evidence otherwise admissible through this ‘gateway’ must be
excluded if it would be unduly prejudicial. Section 101(3), under which the court
is required to exclude bad character evidence which is admissible via certain of
the statutory ‘gateways’ if it appears to the court that its admission would make
the trial unfair, does not apply where the evidence is admitted to correct a false
impression (although in this situation the court could exclude the evidence under
section 78 of the Police and Criminal Evidence Act 1984).232

4.129 Section 101(1)(f) of the Act provides that evidence of bad character is
admissible ‘if it is evidence to correct a false impression given by the defendant’
and this ‘gateway’ is further explained in section 105:
(1) For the purposes of section 101(1)(f)—
(a) the defendant gives a false impression if he is responsible for the making of an
express or implied assertion which is apt233 to give the court or jury a false or
misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative value
in correcting it.
(2) A defendant is treated as being responsible for the making of an assertion if—
(a) the assertion is made by the defendant in the proceedings (whether or not in
evidence given by him),
(b) the assertion was made by the defendant—
(i) on being questioned under caution, before charge, about the offence
with which he is charged, or
(ii) on being charged with the offence or officially informed that he might
be prosecuted for it, and evidence of the assertion is given in the
proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a
question asked by the defendant that is intended to elicit it, or is likely to do
so, or
(e) the assertion was made by any person out of court, and the defendant adduces
evidence of it in the proceedings.
231 Winfield (n 229).
232 See §1.55ff above.
233 Roderick Munday in Evidence, 8th edn (Oxford, OUP, 2015) §7.120 comments that the phrase

‘apt to’ is unusual in a statute. This may be so, but if it is, I do think that it is problematic: it simply
means ‘likely to’ or ‘liable to.’ The phrase originated in the Law Commission’s Draft Bill, attached to
Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5258, October 2001).

123
4.130–4.132 Evidence of Bad Character

(3) A defendant who would otherwise be treated as responsible for the making of an
assertion shall not be so treated if, or to the extent that, he withdraws it or disas-
sociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct (other
than the giving of evidence) in the proceedings, is seeking to give the court or jury
an impression about himself that is false or misleading, the court may if it appears
just to do so treat the defendant as being responsible for the making of an assertion
which is apt to give that impression.
(5) In subsection (4) ‘conduct’ includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is
necessary to correct the false impression.
(7) Only prosecution evidence is admissible under section 101(1)(f).

4.130 This provision appears to meet all three of the defects that the Law Com-
mission identified in the previous law. Between them, subsections 105(1), (4) and
(5) take care of the problem about misleading impressions given by conduct, or by
implication. Section 105(2) deals with the problem about false impressions that
are conveyed other than by the defendant or one of his witnesses when testifying.
Although section 105(2)(a) does not expressly say that an assertion is made ‘by the
defendant’ when it is made by his lawyer on his behalf, it is clear that this was what
Parliament intended.234 By providing that ‘evidence is admissible under section
101(1)(f) only if it goes no further than is necessary to correct the false impres-
sion’, section 105(6) reverses the decision in Winfield that for these purposes ‘char-
acter is indivisible’.

4.131 The Court of Appeal has now considered ‘gateway (f)’ in a number of cases.

4.132 Surprisingly, when the new law was first in force some prosecutors, and
apparently some judges too, failed to grasp what ‘gateway (f)’ was meant to be
about. The general aim, of course, is to enable evidence of the defendant’s bad
character to be given where he had created a false impression about his general
character; not about the facts of the case—for example, the part that he had
played in the incident giving rise to the prosecution, or the part that was played
in it by someone else. Yet in some cases evidence was admitted via ‘gateway (f)’
on this wider basis; and, surprisingly, in some of these cases the Court of Appeal
seemed to lend its approval to this afterwards.235 A moment’s reflection ought

234 See the Explanatory Notes to clause 10 of the Law Commission’s Draft Bill, Report (n 17) 219;

and see para 309 of the Explanatory Notes for the eventual legislation. ‘Section 105(2) sets out the
circumstances in which a defendant is to be treated as being responsible for an assertion. These include
the defendant making the assertion himself, either in his evidence or in his representative’s presentation
of his case’ (emphasis added).
235 For an example, see Lewis [2008] EWCA Crim 424 (where D was held to have opened ‘gateway

(f)’ by reason of an implausible explanation as to the source of the money that the Crown claimed was
evidence of drug-dealing); Bernasconi [2006] EWCA Crim 1052 (ditto, with a claim by the defendant

124
Evidence of the Defendant’s Bad Character 4.133

to show that this is wrong. If it were right, this approach would mean that the
prosecution could adduce evidence of the defendant’s bad character in any case
where, either in the police station or at trial, he said anything that the prosecution
believe they can show to be a lie. In Eyidah, fortunately, this error was explicitly
condemned.236

4.133 A number of decided cases now illustrate the way in which ‘gateway (f)’
will operate in practice. In Amponsah237 the Court of Appeal held that where the
defence evidence had presented a picture of the defendant as a ‘hard-working,
truthful, church-going individual’, ‘gateway (f)’ enabled the prosecution to put
in evidence her conviction for theft. In Verdol238 D claimed that, ‘save in respect
of immigration matters, he was of good character and that he was a God-fearing
and law-abiding man’—a claim which enabled the prosecution to show that he
dealt in class A drugs. In Kiernan,239 similarly, where the defendant in a fraud
case claimed that he would not have acted fraudulently because he had ‘learned
his lesson’ from a previous conviction and prison sentence, which he had not
enjoyed, the prosecution were entitled to show that after his previous convic-
tion, far from eating his porridge in penitence, he had in fact absconded to
avoid serving the sentence the court had imposed. In Cadogan240 the defend-
ant, in a police interview, said ‘I don’t do drugs.’ This was held to make admis-
sible his previous conviction for possession—which would not otherwise have
been admissible at his trial for offences of drug-dealing. In Hickinbottom241 the
defendant, on trial for a list of serious offences, in his evidence at trial said ‘I am
actually out of my depth here’, and wept. His previous convictions for serious
offences were held to be admissible to rebut the implied suggestion in his words
and conduct that the allegations he now faced were much more serious than any
he had ever faced before.242

that, far from being the aggressor, he was trying to act as peacemaker). In S (P) [2007] EWCA Crim
1387 the trial judge held that a defendant accused of child sex offences against children had opened
‘gateway (f)’ by claiming that his acts towards them were devoid of sexual intent. In upholding the con-
viction the Court of Appeal pointed out, correctly, that evidence of his sexual interest in children was
admissible via ‘gateway (d)’, but without criticising the trial judge’s ruling admitting it via ‘gateway (f)’.
236 Eyidah [2010] EWCA Crim 987—doing so with reference to §4.109 of the previous edition of

this book. In Long [2006] EWCA Crim 578, and in Lovelock [2007] EWCA Crim 476 the Court of
Appeal had already come close to doing so.
237 Amponsah [2005] EWCA Crim 2993.
238 Verdol [2015] EWCA Crim 502.
239 Kiernan [2008] EWCA Crim 972.
240 Cadogan [2013] EWCA Crim 1832.
241 Hickinbottom [2012] EWCA Crim 783. Further examples are Jalil [2008] EWCA Crim 2910 and

Wylie [2010] EWCA Crim 3110, [2011] LLR 586. A case which does not fit the general pattern is Ovba
[2015] EWCA 725. The defendant, charged with assaulting a bailiff, had described herself as a ‘friendly
person’—a statement the Court of Appeal held to be ‘too slender a basis’ for the admission of her
record for acts of violence; sed quaere.
242 Cf Garrett [2015] EWCA Crim 757. For a contrasting case, see Stokes [2015] EWCA Crim 1911.

125
4.134–4.136 Evidence of Bad Character

4.134 In Dowds243 one of two joint defendants at a burglary pointed out, in the
course of his evidence, that his co-defendant had committed another burglary the
day before. The Court of Appeal held (unsurprisingly)244 that he had ‘made an
attack on another person’s character’ and so had opened ‘gateway (g)’; but they
added for good measure that, by making pointed reference to his co-defendant’s
track record for burglary without mentioning his own worse one, he had ‘created
a false impression’—and had thereby opened ‘gateway (f)’ as well. In Renda the
Court of Appeal also considered the ambit of section 105(3), which provides that
a defendant is not treated as responsible for making an assertion where he ‘with-
draws it or dissociates himself from it’; this, they said, does not apply where—as
in that case—the defendant, far from withdrawing the assertion voluntarily, had
been forced under cross-examination to admit that it was false.245 In Renda246
the Court of Appeal made the point that sections 101(1)(f) and 105 mark a new
start; it is therefore not particularly helpful for counsel to ply the court with cases
decided under the old law on whether (in the words of the CEA 1898) the defend-
ant had ‘put his character in issue’.

4.135 In Somanathan the Court of Appeal considered the meaning of section

105(6), which provides that ‘Evidence is admissible under section 101(1)(f) only
if it goes no further than is necessary to correct the false impression.’ The defend-
ant was a Hindu priest, who appealed his conviction for twice raping a woman
member of the congregation at his current temple. In his defence he ‘put himself
forward as a man who not only had no previous convictions but also enjoyed a
good reputation as a priest, particularly at Tooting, where he had previously been
employed [in another temple].’ In fact this was not true, as he had left his previous
employment under a cloud. In order to correct the false impression he had given,
the prosecution were allowed to call the chairman of the Board of Trustees of the
Tooting temple, who gave evidence that the priest’s contract had not been renewed
because of complaints of his indiscreet behaviour towards women, and because he
was untruthful. On appeal, the defendant argued that, by reason of section 105(6),
the prosecution should have been required to limit this part of their evidence to a
bare statement that the priest’s contract had not been renewed because there had
been unspecified complaints. Affirming the conviction, the Court of Appeal said:
‘The gateway having been opened the prosecution was entitled to adduce a full
account of what, according to their witness, brought the Tooting contract to an
end.’247

4.136 If a defendant claims to have ‘a clean record’ the prosecution is obviously

entitled to demolish his claim to be of good character by producing evidence that

243 Decided with Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27, p 248 below, [32].
244 The point is further discussed in §4.153 below.
245 [21].
246 Renda [2005] EWCA Crim 2826, p 276 below, [19].
247 Somanathan [2005] EWCA Crim 2866, [2006] 1 CrAppR 19 (303), p 290 below, [43].

126
Evidence of the Defendant’s Bad Character 4.137

he has criminal convictions. But what if, though not yet convicted, he has been in
trouble with the law: for example, where though not yet convicted of an offence,
he is currently awaiting trial? Or similarly, if he has been tried for a previous
offence or previous offences, and acquitted? Could these matters be adduced to
rebut a claim to good character? Under section 1(3)(ii) (alias 1(f)(ii)) of the CEA
1898 as interpreted by the courts the answer to these questions would have been
‘no’.248 Under the new law, the position is uncertain.249 Where a defendant claims
to have a ‘clean record’ in such circumstances he is surely not only saying that he
has no criminal convictions, which is true, but also implying that he has not com-
mitted any crimes, which may well be false; and if it is false, the prosecution ought
in principle to be able to rebut the second suggestion by producing evidence that
the crime in question was committed—though not, on principle, just by produc-
ing evidence that he as ‘been in trouble with the law’.250 However, an attempt to
do is likely to divert the trial into awkward and time-consuming ‘satellite issues’,
and is hence is usually best avoided.

4.137 In principle, the court can suppress evidence otherwise admissible via ‘gate-
way (f)’ by using section 78 of PACE 1984251—and situations can arise in which
it needs do so to prevent ‘gateway (f)’ operating harshly. Although ‘gateway (f)’
was aimed at the situation where the defendant makes an ostentatious parade of
his non-existent good character in his evidence-in-chief, it equally applies where,
under pressure of cross-examination, he blurts out an unwise answer.252 Further-
more ‘gateway (f)’ is wider than the law that it replaces, because unlike section
1(3)(ii) (alias 1(f)(ii)) of the CEA 1898 it is opened not only by evidence adduced
by the defence at the trial, but also by what the defendant says to the police, if the
prosecution choose to adduce it.253 In B (Richard William)254 the defendant, when
interviewed by the police about alleged sex offences against children, was asked if
he had ‘ever been interested in children in a sexual way’ and denied it. At trial the
prosecution then put this part of his statement in evidence, with the explicit aim
of enabling them, via gateway (f), to adduce evidence that he had at some point
shown a child a dirty book. Quashing the conviction for this and other reasons, the
Court of Appeal said that the use of this tactic was unfair. By contrast, in the later

248 Maxwell v DPP [1934] AC 309.

249 The issue arose in relation to an allegation that had not yet come to trial in U [2008] EWCA Crim
1457. The Court of Appeal dealt with the case on other grounds, but said, obiter, that it suspected there
was ‘no blanket answer’.
250 On the issue of principle see §2.10 above and §5.32 below.
251 See §§1.55ff above.
252 As in Good [2008] EWCA Crim 2923, where vigorously denying the offence in cross-

examination, D said ‘I am not that type of person.’ Here, perhaps surprisingly, the Court of Appeal
managed to find that his answer did not open ‘gateway (f)’ at all; but if it had been opened, it is the sort
of case where the evidence should not have been permitted to enter.
253 By reason of CJA 2003 s105(2). On this, see Ullah [2006] EWCA Crim 2003.
254 B (Richard William) [2008] EWCA Crim 1850.

127
4.138–4.140 Evidence of Bad Character

case of D255 the Court of Appeal was less sympathetic to a defendant who, when
asked by the police if he had ever found children sexually arousing, had denied it.
His answers, said the Court, ‘were freely given and he was not lured into making
his character admissible’. Accordingly, evidence had been rightly admitted of his
previous convictions for sexual offences against minors.256

‘Gateway (g)’: ‘The Defendant has Made an Attack on

Another Person’s Character’257

4.138 Under the previous law, where the nature or conduct of the defence was
‘such as to involve imputations on the character of the prosecutor or the wit-
nesses for the prosecution, or the deceased victim of the alleged crime’, CEA 1898
section 1(3)(ii) permitted the prosecution to cross-examine the defendant on his
character.

4.139 This law was potentially harsh, for two reasons. First, it made no difference
whether the defendant’s ‘imputation’ was a gratuitous attack on the general char-
acter of a prosecution witness, or something that had to be said because it was an
integral part of the defence (for example, that the defendant’s alleged confession
had been fabricated by the police). Secondly, the law was said to be unduly harsh
because, although in theory the purpose of revealing the defendant’s bad character
was to blunt the effect of his ‘imputation’ by showing that his word was less than
credible, there was an obvious possibility that the magistrates or jury would treat
his bad character in a cruder way as something that simply made it more likely
that he had committed the offence; this was particularly so in cases where the
evidence of bad character consisted of convictions for similar offences in the past.
It was in an attempt to palliate this harshness that the courts decided that a cross-
examinationas to character under section 1(3)(ii) of the CEA 1898 could only
take place where the judge granted leave.

4.140 Conversely, in another way the old law was also thought to be unduly leni-
ent, because the only way in which it permitted the defendant’s bad character to be
revealed was by cross-examining him when he gave evidence.258 So as long as the
defendant kept out of the witness box he could cast imputations on all and sundry,
with no fear that his own bad character would be revealed.

255 D [2012] EWCA Crim 2163.

256 The convictions were also held to be admissible via ‘gateway (g)’ because in his defence he had
attacked the character of the complainant’s mother.
257 Although generally welcoming the provisions of the CJA 2003 on bad character evidence,

and broadly approving of the way in which courts have interpreted them, Professor Redmayne (n 66)
203–15 is severely critical of ‘gateway (g)’. He finds the reasons for its existence unconvincing and his
overall conclusion is that ‘We would be far better off without [it].’
258 Butterwasser [1948] 1 KB4.

128
Evidence of the Defendant’s Bad Character 4.141–4.143

4.141 The Law Commission was much exercised about these problems. In the
hope of dealing with them, it produced a long, complicated provision in clause 9
of its Draft Bill. Where a defendant made ‘an attack on another person’s character’,
the prosecution would have been entitled to adduce evidence of the defendant’s
bad character—by cross-examining him if he gave evidence, or if not, by other
means. But, unlike section 1(3)(ii) of the CEA 1898, the new provision would
not be triggered by any ‘attack’ that was an integral part of the defence case. The
only evidence the prosecution would be entitled to call would have been evidence
bearing on the defendant’s credibility. Such evidence would only be admissi-
ble on leave. And the clause contained cautious phrases intended to ensure that
leave would only be given when the bad character evidence would not be unfairly
prejudicial.

4.142 The solution adopted by the CJA 2003 is simpler and more brutal. Section
101(1)(g) provides that evidence of the defendant’s bad character is admissible if
‘the defendant has made an attack on another person’s character’, and section 106
elaborates this phrase as follows:
(1) For the purposes of section 101(1)(g) a defendant makes an attack on another per-
son’s character if—
(a) he adduces evidence attacking the other person’s character,
(b) he (or any legal representative appointed under section 38(4) of the Youth
Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in
his interests) asks questions in cross-examination that are intended to elicit
such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the
defendant—
(i) on being questioned under caution, before charge, about the offence
with which he is charged, or
(ii) on being charged with the offence or officially informed that he might
be prosecuted for it.
(2) In subsection (1) ‘evidence attacking the other person’s character’ means evidence
to the effect that the other person—
(a) has committed an offence (whether a different offence from the one with
which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way; and ‘imputation
about the other person’ means an assertion to that effect.
(3) Only prosecution evidence is admissible under section 101(1)(g).

4.143 Like the Law Commission’s proposal, this allows the prosecution to adduce
evidence of the defendant’s bad character by any means, so enabling them to do so
by evidence-in-chief where he launches his attack on the character of others not
from the witness box but from the safety of the dock. But it drops the aspects of
the Law Commission’s draft clause that were designed to blunt the harshness of
the previous law.

129
4.144–4.146 Evidence of Bad Character

4.144 Under the Law Commission’s proposal, this gateway to the revelation of the
defendant’s character would not have been opened by any attack on another per-
son by means of ‘evidence that has to do with the alleged facts of the offence with
which the defendant is charged, or evidence of misconduct in connection with
the investigation or prosecution of that offence’.259 So, for example, the defend-
ant would not have risked his record being exposed if he accused the police of
inventing his confession. But section 106 of the Act contains no such limit. Indeed,
section 106(2) expressly states that an attack on another person’s character ‘means
evidence to the effect that the other person (a) has committed an offence (whether
a different offence from the one with which the defendant is charged or the same
one), or (b) has behaved, or is disposed to behave, in a reprehensible way’. So, as
before, a defendant who accuses the police of telling lies risks the revelation of his
criminal record;260 and likewise if D imputes untruthfulness to anyone else.

4.145 In Woodhead261 D, who was accused of a sexual assault on a girl of 11, cross-
examined the child and her mother in such a way as to suggest that they had not
told the truth. In the light of this, the trial judge allowed the Crown to adduce
evidence of D’s previous convictions for indecent exposure—a decision that was
endorsed on appeal. A similar case is Clarke262—apart from the nature of D’s
criminal record which, though varied and extensive, did not include any sexual
offences. In Clarke the Court of Appeal criticised the earlier decision in Chrys-
ostomou, where a different constitution of the Court had quashed D’s conviction
because at trial the Crown had been permitted to respond to D’s defence, which
involved an allegation that the complainant was a drug abuser, with a tu quoque in
the form of evidence that D was actually a supplier.

4.146 In Hanson the Court of Appeal said that the pre-Act authorities ‘will con-
tinue to apply when assessing whether an attack has been made on another per-
son’s character, to the extent that they are compatible with s106’.263 In Woodhead,
however, the Court of Appeal roundly rejected the suggestion that courts should
be guided by the pre-2003 case law when it comes to ‘looking at the way in which
the questioning took place and the extent of the allegations made in deciding
whether the evidence of bad character should be admitted’. When Parliament has
enacted a statute intended to codify the law, it added, ‘it is essential that the court

259 Draft Bill, cl 9(2)(a), Report, n 17, at 216.

260 As in Ahmed [2011] EWCA Crim 3253.
261 [2011] EWCA Crim 472.
262 [2011] EWCA Crim 939.
263 [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [14]. In an article entitled ‘Gateway

(g): Casting Imputations and Putting in the Defendant’s Form’ [2006] Archbold News, issue 2, 6–9,
David Wolchover argued, contrary to the view expressed in this book, that ‘gateway (g)’ is not opened
by an attack that forms an integral part of the defence; but the argument is no longer tenable after the
Court of Appeal decision in Littlechild [2006] EWCA Crim 2126 (and many other cases)

130
Evidence of the Defendant’s Bad Character 4.147–4.149

proceed by application of the new law and not by reference to the old’. Upholding
the conviction, the Court of Appeal was unwilling to engage with case law from
before 2003 which suggested that, on these facts, the judge should have exercised
his discretion to exclude the evidence.

4.147 In the light of those remarks, it seems unlikely that the courts today would
follow the decision in Turner.264 As older readers will recall, this was the case that
held that where D is accused of rape, and says in his defence that the complainant
consented, this did not count as making an ‘imputation’ on her character—even
where, as in that case, the circumstances were ones in which no decent woman
would have dreamt of giving herself to the defendant. Although Turner was
approved, obiter, by the House of Lords,265 there was no intelligible way in which
this situation could be distinguished from the general rule, which was that the
word ‘imputation’ in the CEA 1898 included imputations that were a necessary
part of his defence; and it was deeply unsatisfactory, because it enabled defendants
accused of rape to make astonishing and insulting claims about the behaviour of
respectable women with no fear of their criminal convictions being revealed.266
The case was, it is suggested,267 an anomaly—and one that should not pass into
the new law.268

4.148 Like the previous law, the current provision potentially applies not only
where the defendant accuses someone else of having committed a criminal offence,
but also where he accuses him of misbehaviour that falls outside the scope of the
criminal law. This is expressly provided for by section 106(2)(b), which defines
‘evidence attacking the other person’s character’ as including evidence that the
other person ‘has behaved, or is disposed to behave, in a reprehensible way’.

4.149 As in the context of section 98 and the definition of ‘bad character,’ so

here too the scope of ‘reprehensible behaviour’ raises a delicate problem where a
defendant attributes homosexual behaviour to a person who is not homosexual
(or who does not wish to be publicly identified as one). Thirty years ago, the
Court of Appeal in Bishop269 dealt with the issue robustly by saying that, even if

264 Turner (1945) 30 CrAppR 9.

265 In Selvey v DPP [1970] AC 304.
266 For an extreme example, see Hutchinson (1986) 82 CrAppR 51, where the defendant accused of
rape (and also murder) said that the daughter of the house had consented to sex with him when, a few
moments earlier, she had heard her parents and her brother being killed by an intruder.
267 In common with the editors of Rook and Ward, who say ‘We suggest that the rule in Turner has

gone’: Rook and Ward on Sexual Offences, Law and Practice, 4th edn (London, Sweet & Maxwell, 2010)
§16.52.
268 In Alobaydi [2007] EWCA Crim 145, §4.98 above, evidence of the defendant’s previous

convictions were admitted in this type of situation via ‘gateway (d)’, because they showed that he had
previously lied when accused of a criminal offence. They were, in my view, equally admissible via
‘gateway (g)’.
269 Bishop [1975] QB 274, (1975) 59 CrAppR 246.

131
4.150–4.152 Evidence of Bad Character

omosexual practices were now legal, to call somebody a practising homosexual

h
was still to cast an ‘imputation’ on his character, and the defendant who did so
thereby exposed himself to cross-examination on his criminal record.

4.150 Earlier in this commentary, when discussing the scope of ‘reprehensible

behaviour’ as an element in the definition of ‘bad character,’ and hence what sort
of evidence about a person fell within the restraints set by sections 100 and 101,
it was suggested that nowadays homosexual practices should not be seen as fall-
ing within the scope of ‘reprehensible behaviour’: but in that context it was also
suggested that calling evidence of this sort about another person could potentially
infringe a person’s right to privacy under Article 8 of the European Convention
on Human Rights, and in principle the court could therefore restrain unnecessary
evidence about such matters in order to comply with its duties under the Human
Rights Act 1998 to respect Convention rights.270

4.151 If the view expressed in the previous paragraph is correct, then a defendant
who imputes homosexual behaviour to another person does not thereby ‘attack
his character’ for the purpose of opening ‘gateway (g).’ And here, the Human
Rights Act 1998 does not enable us to solve the problem: if a court could properly
invoke its duty to protect ‘Convention rights’ in order to stop such evidence being
given, it could hardly use this as the basis for inventing a new rule, external to the
bad character evidence provisions of the CJA 2003, allowing the prosecution to
expose the defendant’s bad character as ‘tit for tat’ for his invading someone else’s
right to privacy. The conclusion must be that, under the new law, a defendant who
calls another person a homosexual does not thereby expose his bad character to
view by opening ‘gateway (g)’. However, where a defendant ascribes homosexuality
to another person it will often be in circumstances that imply some other behav-
iour that is reprehensible behaviour beyond any shadow of a doubt. A defendant
accused of robbery who runs the ‘guardsman’s defence’, for example,271 will almost
invariably accuse the complainant of committing a sexual offence; and in Bishop,
the alleged burglar’s explanation for his fingerprints in the complainant’s flat—
that he and the complainant were homosexual lovers—also carried the implica-
tion that the complainant had lied in his evidence.

4.152 Another restriction proposed by the Law Commission, and not adopted
by Parliament, was a requirement of judicial leave. However, where bad character
evidence is potentially admissible under sections 101(1) and 106, section 101(3)
does require the court to exclude it where it believes ‘that the admission of the
evidence would have such an adverse effect on the fairness of the proceedings that
the court ought not to admit it.’

270 Above, §2.18.

271 See §3.36 above.

132
Evidence of the Defendant’s Bad Character 4.153–4.154

4.153 And ‘gateway (g)’ is wider than the previous law in that, under section 1(3)(ii)
of the CEA 1898, the defendant exposed his bad character to public view only where
he had attacked ‘the character of the prosecutor or the witnesses for the prosecu-
tion, or the deceased victim of the alleged crime’. Under the new law, the defendant
potentially triggers the exposure of his bad character if he makes an attack ‘on any
person’. This phrase is very wide.272 One consequence is that ‘gateway (g)’ applies,
inter alia, where in the course of his evidence one co-defendant attacks the charac-
ter of another: as in Dowds,273 where in the course of denying that he was respon-
sible for a burglary, the defendant informed the court that his co-defendant had
committed another burglary only the day before.274 In N elson the Court of Appeal,
having pointed out the breadth of the new provision, reminded judges that section
101(3) requires them to exclude evidence otherwise admissible via ‘gateway (g)’ if
it would make the trial unfair, and said that ‘it would be unusual for evidence of
the defendant’s bad character to be admitted where the only basis for so doing was
an attack on the character of a non-witness who is also a non-victim’.275

4.154 Surprisingly, the Act does not tell us whether section 101(1)(g) is brought
into play by the defendant attacking the character of a person who is dead. When
discussing section 100 of the Act, which regulates the admission of bad character
evidence relating to non-defendants, the view was expressed that ‘non-defendants’
included persons who are now dead (see §§3.44–3.46 above). One of the rea-
sons there given was that, although dead people do not feel hurt or humiliated
when their characters are publicly attacked, their living relatives may well do so.
This reasoning would suggest the section 101(1)(g) does apply where the person
attacked is dead. A pointer in the same direction is the fact that, under the previous
law, section 1(3)(ii) of the CEA 1898 allowed the defendant to be cross-examined
on his bad character when he had cast imputations on a range of people—which
was extended in 1994 to include ‘the deceased victim of the alleged crime’.276
A further pointer is a dictum from the Court of Appeal in Hanson.277 Discussing
‘gateway (g)’ in general terms, the Court said that it applies ‘where the defendant

272 As Roderick Munday points out, in principle a defendant could even find that he had opened

‘gateway (g)’ if he abuses the judge or prosecuting counsel! Evidence, 8th edn (Oxford, OUP, 2015)
§7.131.
273 Reported with Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401), p 248 below.
274 Although, of course, by reason of s 106(3), only the prosecution may use ‘gateway (d)’ where this

happens; see Assani [2008] EWCA Crim 2563 (but in this situation the co-defendant will be able to
make use of ‘gateway (e)’): see above, §§4.103ff.
275 Nelson [2006] EWCA Crim 3412, [2007] Crim LR 709, [16].
276 For a contrary view, see Roderick Munday, Evidence, 8th edn (Oxford, OUP, 2015) §7.131.

Dr Munday severely criticised the change in 1994: see ‘A Sample of Law-making’ (1995) 145 New LJ
855, 895.
277 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [5].

133
4.155–4.159 Evidence of Bad Character

has made an attack on the character of another person, who will often, though not
always, be the victim, whether alive or dead’.278

4.155 As with ‘gateway (f),’ the scope and operation of ‘gateway (g)’ has now been
considered on a number of occasions by the Court of Appeal.

4.156 The decision in Ball279 illustrates the widened scope of what now may con-
stitute making ‘an attack on the character of another person’. Ball appealed against
his conviction for raping a woman with whom he had spent the evening drinking
in a public house. When interviewed by the police he admitted the sexual inter-
course, but ‘told the police that most of the men in the local public house had had
sexual intercourse with the complainant. He criticised the complainant’s sexual
promiscuity in very disparaging terms. She was easy. “She’s a bag really, you know
what I mean, a slag.”’ His statement to the police, with this character sketch of
the complainant included, was put in evidence by the prosecution as part of the
prosecution case. The trial judge held that, by virtue of section 106(1)(c), these
disparaging remarks made to the police constituted an ‘attack on the character of
another person’, which opened ‘gateway (g)’: and, rejecting a defence application
under section 101(3), he allowed the prosecution to put the defendant’s criminal
record in evidence. The Court of Appeal upheld this decision.

4.157 In so holding, the Court of Appeal stressed that ‘this evidence was prop-
erly before the jury as part of the prosecution case’ and that it ‘did not repre-
sent … any sort of device to enable the Crown to make an application to put the
appellant’s convictions before the jury’. From this it may be inferred that, as with
‘gateway (f)’,280 the Court of Appeal expects judges to exclude bad character evi-
dence where the prosecution have put the defendant’s statement to the police, or
part of it, in evidence with the explicit aim of then putting his record before the
court.

4.158 A number of decisions deal with the application, in relation to ‘gateway (g)’,
of the duty of the court under section 101(3) to exclude bad character evidence
which the court believes ‘would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it’.

4.159 In the first place, the Court of Appeal has repeatedly stated (as in the other
contexts where the trial court has a discretion to exclude)281 that the decision is
‘fact specific’ and that it will be reluctant to interfere with decisions that were
made after taking all the relevant factors into account. In Lewis282 it said: ‘As to the

278 Emphasis added.

279 Reported together with Renda [2005] EWCA Crim 2826, p 276 below.
280 See §4.137 above.
281 See §1.80 above.
282 Lewis [2007] EWCA Crim 3030, [15].

134
Evidence of the Defendant’s Bad Character 4.160–4.161

judge’s discretion in the present case, it is well established that this court will not
interfere with the exercise of that discretion unless there has been an error in prin-
ciple or there was no material on which he could properly have arrived at his deci-
sion.’ And in Clarke it said: ‘We have to ask ourselves … whether it was Wednesbury
unreasonable for the judge to act as he did.’283 And from the case law it is clear that
the Court of Appeal does not see it as an automatic ground for the exclusion of the
evidence that the previous convictions were either for offences very different from
the one of which the defendant is currently accused, or very similar—and hence
likely to cause the jury to apply ‘propensity reasoning’.

4.160 In Dowds284 the Court of Appeal said that, even if (as seemed highly
improbable on the facts) the defendant had not really intended by his evidence
to attack the character of his co-defendant by what he said about him, it did not
make the admission of evidence of his previous convictions unfair; what mattered
was the actual impact of his evidence, and his mens rea or otherwise in giving it
was irrelevant.

4.161 More significantly, in Edwards285 the Court of Appeal held that, where
at the start of the proceedings the prosecution apply to admit evidence of the
defendant’s bad character via ‘gateway (d),’ and the judge excludes it by applying
section 101(3), it is permissible for the prosecution to make a further application
to admit it via ‘gateway (g)’ if the defendant in the course of his evidence then
launches an attack on the character of the prosecution witnesses; and that when
the second application is made, it is open to the judge to reconsider his initial rul-
ing and admit the evidence, notwithstanding his initial ruling that to do so would
make the trial unfair. To the argument that to admit a certain piece of evidence
against the defendant either makes the proceedings unfair or it does not, the Court
of Appeal responded thus:
As it seems to us, the difficulty with that submission is that the fairness of the proceed-
ings, and the impact on it of admitting the evidence, has to be gauged at the time at
which the application is made and by reference to the gateway under which admissibility
is sought. At the initial stage there had been no attack on the character of the prosecution

283 Clarke (n 262), [41].

284 Reported with Bovell [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401), p 248 below; under
the Law Commission’s original proposal, what is now ‘gateway (g)’ would also have been opened by
the defendant’s attack on any person, including in principle a co-defendant. However, the opening of
‘gateway (g)’ would not have been triggered by any attack on a person’s character that ‘has to do with
the alleged facts of the offence with which the defendant is charged’: which in practice would have
reduced the scope of ‘gateway (g)’ in relation to cut-throat defences, although the result would have
been the same in Dowds, presumably, where the defendant did not merely blame his co-defendant for
the crime, but also informed the court about a different offence he had committed earlier. For an argu-
ment that the courts ought on principle to read the phrase ‘other person’ in s 101(1)(g) as excluding
co-defendants, see Roderick Munday, Evidence, 8th edn (Oxford, OUP, 2015) §7.133.
285 Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below. A decision to similar

effect is O [2009] EWCA Crim 2236, 173 JP 616.

135
4.162–4.163 Evidence of Bad Character

witnesses. In this regard, when dealing with the matter at the time of the second applica-
tion, the Recorder … said this: ‘I have come to the conclusion that there is a difference
now between the prosecution arguments, the difference being the sustained attack upon
the character of the police, and it seems to me that, even though these convictions are of
a serious nature and of some age, the jury are entitled to know about these convictions,
that I think they would be misled seriously if they did not know of this matter.’ In our
judgment, that was a conclusion which was not only open to the Recorder, it is one which
he was, in the circumstances as we have described them, right to reach.
4.162 Even more significantly, the Court of Appeal has ruled on the type of evi-
dence that is admissible via ‘gateway (g)’ and on the purposes for which the evi-
dence may be used once it has come in: two important loose ends that the wording
of the Act had significantly failed to tie.

4.163 As to the first, the previous law operated on the theory that evidence of
the defendant’s bad character was admissible where he had cast ‘imputations’
on the character of another person because the tribunal of fact was entitled to
know the character of the person who was attacking the character of someone
else—and with the new law, the courts have continued to see this as being the
rationale behind the existence of ‘gateway (g)’ as well. In other words, it was—and
is still is—admissible because of the light it shed on the credibility of the person
casting them—and hence on whether they were true.286 However, in taking this
position the courts, before the 2003 reform, did not limit the bad character evi-
dence in such a case to behaviour of the defendant that showed he had, as such,
a track-record as a proven liar. In principle, the prosecution could call, inter alia,
evidence of any criminal convictions he might have, including ones for previous
offences similar to the one for which he was currently on trial.287 Under the Law
Commission’s proposals, evidence would have been admissible via what is now
‘gateway (g)’ only where it had ‘substantial probative value in showing that the
defendant has a propensity to be untruthful’. However, section 106 of the CJA con-
tains nothing that expressly limits the nature of the evidence that the prosecution
may bring in via ‘gateway (g)’. So initially the position was uncertain.288

286 ‘The underlying principle is, to use the language of Singleton J in Jenkins (1946) 31 CrAppR 1,

15 in a passage approved by the House of Lords in Selvey v DPP [1970] AC 304, that “… if the credit of
the prosecutor of his witnesses has been attacked, it is only fair that the jury should have before them
material on which they can form their judgement whether the accused person is any more worthy to
be believed than those he has attacked. If a defendant is asking the jury to have regard to a witness’s
evidence, so they should be entitled to consider his character when assessing his evidence”’: per Elias
LJ in Clarke (n 262) [28].
287 See eg, Powell [1985] 1 WLR 1364.
288 The Explanatory Notes were less than helpful. §382: ‘Evidence admissible under

section 101(1)(g)—as under section 101(1)(f)—will primarily go to the credit of the defendant.
Currently a jury would be directed that evidence admitted in similar circumstances, under the 1898
Act, goes only to credibility and is not relevant to the issue of guilt. Such directions have been criticised
and the new statutory scheme does not specify that this evidence is to be treated in such a way. How-
ever, it is expected that judges will explain the purpose for which the evidence is being put forward and
direct the jury about the sort of weight that can be placed on it.’

136
Evidence of the Defendant’s Bad Character 4.164–4.166

4.164 As we saw earlier (§§4.95ff), the Court of Appeal in Hanson289 said that
evidence of the defendant’s general bad character is not admissible to dent his
credibility in the context of ‘gateway (d)’, and to be admissible as evidence of cred-
ibility via this gateway the previous convictions (or other manifestations of bad
character) must actually show the defendant’s tendency to lie. But as we also saw
earlier, when interpreting the notion of ‘credibility’ in other contexts—namely in
the context of ‘gateway (e)’ and ‘cut-throat defences’ (§§4.114ff) and in the context
of the credibility of witnesses (§§3.14–3.23)—the courts have taken a different
and more broad-brush approach. In these contexts, they have said that a person’s
credibility is dented by his bad character in general: on the theory that the word of
a rogue is less reliable than the word of an upright citizen.

4.165 A substantial body of case law now makes it clear that it is the ‘broad-brush’
approach that applies in ‘gateway (g)’ cases too. Thus it has been held that evi-
dence of the defendant’s convictions for burglary were properly admitted via
‘gateway (g)’,290 and also evidence of his previous convictions for crimes of
violence.291 In similar spirit, in Singh (James Paul)292 the Court of Appeal held
properly admitted evidence of the defendant’s previous convictions for disorder,
assaults on policemen, harassment, criminal damage and driving with excess alco-
hol. In so holding, Hughes LJ said that the rationale for ‘gateway (g)’ is:
[10] … the obverse of the reason why a defendant is entitled to plead his own good char-
acter in support of his claim that he should be believed. The reason why he is entitled to
do that is because ordinary human experience is that people of proven respectability and
good character are, other things being equal, more worthy of belief than those who are
not. Conversely, persons of bad character may of course tell the truth and often do, but it
is ordinary human experience that their word may be worth less than that of those who
have led exemplary lives.293
In the light of this, it is obviously not a valid objection to the admission of the
evidence that at the earlier proceedings the defendant pleaded guilty.294

4.166 Under the previous law, evidence of the defendant’s bad character admitted
in the situation now covered by ‘gateway (g)’ was supposedly admitted for the sole
purpose of shedding light on the defendant’s credibility, and at jury trials the judge
was supposed to direct the jury that they could use it for no other purpose. How-
ever, with the CJA 2003 a new approach has been adopted by the Court of Appeal,
whereby the rule now is, in essence, ‘once it’s in, it’s in’. Even though the different
‘gateways’ listed in section 101(1) may have been created with distinct purposes in

289 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169; p 238 below.
290 George [2006] EWCA Crim 1652.
291 Lamaletie [2008] EWCA Crim 314.
292 Singh (James Paul) [2007] EWCA Crim 2140.
293 And to similar effect see Woodhead and Clarke, discussed in §4.145 above.
294 Lewis [2007] EWCA Crim 3030.

137
4.167 Evidence of Bad Character

mind, once evidence of the defendant’s bad character has passed through one of
them, the use the court may make of it depends on the nature of the evidence, not
the ‘gateway’ through which it was admitted. In Highton the Court of Appeal, in a
judgment delivered by Lord Woolf CJ, said this:
[T]he 2003 Act does not expressly identify the purpose for which the bad character evi-
dence can be used if it passes through one of those gateways and is therefore admissible.
Two different interpretations are contended for by counsel appearing for the appellants
and the Crown. The appellants contend that the purposes for which admissible evidence
of bad character can be used are confined by the terms of the gateway through which the
evidence is admitted. The Crown, on the other hand, contends that once the evidence
becomes admissible by passing through any gateway, it can be used for any purpose for
which bad character evidence is relevant in the particular case.295
Having examined the arguments, the court continued:
We therefore conclude that a distinction must be drawn between the admissibility of evi-
dence of bad character, which depends upon it getting through one of the gateways, and
use to which it may be put once it is admitted. The use to which it may be put depends
upon the matters to which it is relevant rather than upon the gateway through which it
was admitted. It is true that the reasoning that leads to the admission of evidence under
gateway (d) may also determine the matters to which the evidence is relevant or primar-
ily relevant once admitted. That is not true, however, of all the gateways. In the case of
gateway (g), for example, admissibility depends on the defendant having made an attack
on another person’s character, but once the evidence is admitted, it may, depending on
the particular facts, be relevant not only to credibility but also to propensity to commit
offences of the kind with which the defendant is charged.296
It is important, said the court, that in a jury trial the judge should give the jury a
clear direction as to the issues in respect of which any given piece of bad character
evidence is relevant: and, a later Court of Appeal added, a direction as to the mat-
ters to which they are not relevant as well.297 (These points are further explored
in Chapter 5.)

4.167 The decision in Highton has been criticised.298 First, it is said that under the
previous law, where the prosecution were permitted to adduce evidence of the bad
character of a defendant who had ‘cast an imputation’ in the course of his defence,

295 Highton [2005] EWCA Crim 1985, [2005] 1 WLR 3472, p 266 below, [2].
296 ibid [10]; a passage quoted with approval, and applied by the Court of Appeal in Campbell
[2007] EWCA Crim 1472, [2007] 1 WLR 2798, [26].
297 Lafayette [2008] EWCA Crim 3238. In this case, the Court of Appeal said that if the defend-

ant’s previous convictions admitted via ‘gateway (g)’ were not similar enough to have been admitted
as propensity evidence via ‘gateway (d)’, the judge should direct the jury not to treat them as showing
propensity.
298 Roderick Munday, ‘The Purposes of Gateway (g): Yet Another Problematic of the Criminal Jus-

tice Act 2003’ [2006] Crim LR 300; and see the commentary by AJR on Murrell [2005] Crim LR 869.
For a slightly less critical comment, see D. Wolchover, ‘Gateway (g): Casting Imputations and Putting
the Defendant’s Form’ [2006] Archbold News, issue 2, 6–9.

138
Evidence of the Defendant’s Bad Character 4.168–4.170

the theoretical basis was that the evidence was called to dent his credibility, not to
show his propensity to commit the offence—and juries had to be directed to take
the evidence into account for this purpose only. So, to interpret the new provisions
as allowing the tribunal of fact to treat such evidence as showing the defendant’s
propensity to commit the offence as well is to increase the ways in which bad
character evidence may be used to the detriment of the defendant. Secondly, it
is said that the proper ‘gateway’ for the admission of evidence of propensity to
commit the offence is ‘gateway (d)’, as expanded by section 103: if evidence that
the prosecution wants to use to show the defendant’s propensity to commit the
offence fails to pass the tests set out in that provision, it should not—it is said—be
smuggled in through any of the other ‘gateways.’

4.168 I find neither of these points convincing. To take the second first, evidence
that is said to demonstrate the defendant’s propensity to commit the offence does
not get in through ‘gateway (d)’ merely because the evidence has this effect. In
practice, two further conditions are necessary: (i) the prosecution must make the
attempt to put it in through ‘gateway (d)’ and (ii) the court must allow this to be
done. Evidence that undoubtedly shows the defendant’s propensity to commit the
offence may fail to gain admission either because the prosecution initially decides
that it would be fairer not to use it, or because, when it seeks to do so, the judge
in the early stages of the proceedings rules that fairness to the defendant requires
him to exclude it using section 101(3) or section 103(3). Decisions taken on the
basis of what seems fair to the defendant at the outset might deserve to be revis-
ited if he turns the proceedings into a mud-slinging match once he gets into the
witness box.299

4.169 To return to the first point, evidence of the defendant’s bad character is
not in practice clearly divisible into two groups: group A that shows propensity
and group B that shows that his word is less worthy of belief. In practice, there is
a spectrum, and in practice much evidence of this sort shows both. The case of
the defendant who is accused of shoplifting and who claims to have walked out
of the shop having innocently forgotten to pay, and who has been convicted five
times for similar offences in the past, on each occasion pleading not guilty and
advancing an identical defence, is an obvious example. In such circumstances, to
tell a jury that his previous convictions are evidence of his untruthfulness when
giving evidence but not of his tendency to steal from shops is counter-intuitive,
and unsatisfactory for that reason.

4.170 Directions to juries that evidence which is logically relevant to issue A

may only be considered in relation to issue B, to which it is less relevant than
to issue A, are certain to be confusing and unlikely in practice to be followed.

299 See Edwards [2005] EWCA Crim 1813 [2006] 1 CrAppR 3 (31), p 253 below.

139
4.171–4.172 Evidence of Bad Character

35 years ago they were famously castigated by Sir Rupert Cross as ‘gibberish’:300
and they have not become any more comprehensible in the interval. Further-
more, to believe that a direction of this sort is both necessary and desirable
presupposes a mind-set about the qualities and abilities of juries that is schizo-
phrenic. The notion that jurors should be kept as far as possible in ignorance of
the defendant’s bad character was based on the assumption that they are morons
deaf to reason: once they discover the defendant has a criminal record, they will
disregard the rest of the evidence (if any) and convict him on that fact alone.
But expecting them to disregard the defendant’s previous similar offences when
deciding whether he committed the one with which he is now charged, whilst
simultaneously remembering it when deciding if he is telling the truth when
he says that he did not, assumed they have the mental agility of an Acquinas. In
reality, the practical effect of requiring judges to deliver directions of this kind
is to sow the seeds of unmeritorious appeals in cases where they understand-
ably forget to give them, without advancing the overriding objective of criminal
justice, which is the acquittal of the innocent and the conviction of the guilty. In
my view, the decision in Highton marks a break with the past that is proper and
desirable, and it is a good thing that such directions no longer have to be given
on these confusing lines.

4.171 A rule requiring bad character evidence admitted via ‘gateway (g)’ to be
used exclusively for deciding whether a defendant’s evidence is credible would
make sense, perhaps, if the only evidence that could be admitted via ‘gateway (g)’
were evidence which suggests that he has a tendency to lie, while suggesting noth-
ing else. This was, in effect, the scheme that the Law Commission put forward in
its Report and the Draft Bill attached to it. But Parliament rejected it, and enacted
the scheme contained in section 106 instead. There is no suggestion in section 106
that the bad character evidence admissible via ‘gateway (g)’ is restricted in this way,
and it would require a heroic effort of interpretation to read this restriction into it.
If—as is now clear—‘gateway (g)’ lets in evidence of the defendant’s bad character
in general, the ruling in Highton must be correct.

4.172 Defendants against whom evidence of previous convictions are admitted

via ‘gateway (g)’ can expect to be cross-examined, within limits, about the details.
As the Court of Appeal said in Fryer and Tedstone:301
[36] … Evidence of this kind is not limited to mere rehearsal of the terms of the offences,
the dates of the convictions and the sentences, but can cover a reasonable and properly
circumscribed description of what the offences involved.

300 ‘The Evidence Report: Sense or Nonsense—A Very Wicked Animal Defends the 11th Report of

the Criminal Law Revision Committee’ [1973] Crim LR 329, 332–34.

301 [2006] EWCA Crim 1530.

140
Evidence of the Defendant’s Bad Character 4.173–4.175

Evidence of the Defendant’s Bad Character—General;

The Admissibility of ‘Stale’ Convictions

4.173 Common sense suggests that, broadly speaking, the older a piece of bad
character evidence is, the less cogently it suggests that the defendant is guilty of
the offence for which he is now on trial—and hence the more willing the court
should be to exclude it.302 This will not invariably be so. Evidence which shows
the defendant has the skill or knowledge to pick the lock of a particularly complex
safe, or that he has a particularly unusual sexual tendency,303 would not neces-
sarily lose its probative force with the passage of time. But evidence that merely
shows that, years ago, the defendant was a burglar or a shoplifter sheds little or no
light on whether he has committed a similar offence 25 years later. And if, in the
interval, the defendant has apparently ‘gone straight’, it would seem doubly unfair
to admit it.304 With this in mind, in Murphy305 the Court of Appeal quashed a con-
viction where the trial judge had admitted the defendant’s 20-year-old conviction
for possessing a firearm without a licence.

4.174 Section 101(4) makes it plain that the court should be willing to take this
into account in applying section 101(3) to exclude bad character evidence other-
wise admissible through the ‘matter in issue’ gateway, or through the ‘attack on the
character of another’ gateway: in respect of both of which the court must exclude
if it believes the admission of the evidence would render the proceedings unfair.
By section 101(4):
On an application to exclude evidence under subsection (3) the court must have regard,
in particular, to the length of time between the matters to which that evidence relates and
the matters which form the subject of the offence charged.
4.175 In Hanson306 the Court of Appeal said that, in deciding whether a previ-
ous conviction was ‘stale,’ it regarded ‘the date of commission as generally being
of more significance than the date of conviction when assessing admissibility.’ As
previously explained,307 section 101(3) is duplicated to some extent by section
103(3), which also requires the court to exclude evidence of stale convictions in
certain circumstances. But here, surprisingly, the matter that the court is required
to consider is ‘the length of time since the conviction.’

302 There is a thoughtful discussion of this issue in Redmayne (n 66) 152–55.

303 As to which see Cox [2007] EWCA Crim 3365, and Sully [2008] EWCA Crim 2556.
304 Cf the words of the Court of Appeal in Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169,
p 238 below, [11]: ‘Old convictions, with no special feature shared with the offence charged, are likely
seriously to affect the fairness of the proceedings adversely, unless, despite their age, it can properly be
said that they show a continuing tendency.’
305 Murphy [2006] EWCA Crim 3408; [2007] Crim LR 637.
306 ibid.
307 See above, §§4.79–4.81.

141
4.176–4.178 Evidence of Bad Character

4.176 In considering whether a conviction is ‘stale’, should the court leave out of
account any period of time that the defendant was in prison, and hence unable to
commit further crimes even if he wanted to? Common sense suggests it should—
though the point is open to discussion.308

4.177 Section 101(4) does not affect the position where the evidence is admis-
sible through one of the ‘gateways’ other than (d) or (g), and the scope of section
103(3) is even narrower. However, in the relatively rare case that the bad character
evidence takes the form of a conviction incurred when the defendant was under
the age of 14, its admissibility is restricted by section 108. Under this provision,
such a conviction may only be admitted where the conviction was for an offence
triable only on indictment, and so is the offence for which the defendant is now on
trial—and in addition, the court has a general discretion to exclude. As amended
in 2009309 this provision is as follows:
(1) Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37)
(offences committed by person under 14 disregarded for purposes of evidence
relating to previous convictions) shall cease to have effect.
(2) In proceedings for an offence committed or alleged to have been committed by
the defendant when aged 21 or over, evidence of his conviction for an offence
when under the age of 14 is not admissible unless—
(a) both of the offences are triable only on indictment, and
(b) the court is satisfied that the interests of justice require the evidence to be
admissible.
(2A) Subsection (2B) applies where—
(a) the defendant has been convicted of an offence under the law of any coun-
try outside England and Wales (“the previous offence”), and
(b) the previous offence would constitute an offence under the law of England
and Wales (“the corresponding offence”) if it were done in England and
Wales at the time of the proceedings for the offence with which the defend-
ant is now charged.
(2B) for the purposes of subsection (2), the previous offence is to be regarded as tri-
able only on indictment if the corresponding offence is so triable
(3) Subsection (2) applies in addition to section 101.

4.178 In its original form, what is now section 108 consisted of what is now sub-
section (1) only. Subsections (2) and (3) were a late addition by the House of
Lords—and as with such late additions, the implications were not fully thought

308 The arguments in favour and against are set out in Redmayne (n 66) 153.
309 By the Coroners and Justice Act 2009, to implement EU legislation (Council Framework
Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the
European Union in the course of new criminal proceedings) requiring Member States to give the same
legal weight to convictions imposed by criminal courts in other Member States as they give to their
own; but going further, this covers convictions imposed in any other state.

142
Evidence of the Defendant’s Bad Character 4.179–4.180

through. For example, these subsections are phrased so that the evidence excluded
is the fact of a conviction. Does this mean that the prosecution, although they can-
not prove the fact of the conviction, can still prove the facts on which it was based?
In B (Richard William)310 the Court of Appeal, obiter, indicated that the answer to
this is ‘no’. In that case, the point at issue was a slightly different question, namely
whether the prosecution can adduce evidence that the defendant, when he was
under 14, committed an offence of which he has never been convicted. This ques-
tion they also answered in the negative: to admit such evidence, they said, would
make the trial unfair, and so it ought to be excluded under section 101(3).311
In Clark312 the Court of Appeal also said that the rationale of the provision is
unclear—and for that reason refused to accept that a trial court should have
adopted a ‘near miss approach’ and applied the provision, by analogy, in a case of
a defendant who at the time of the offence of which he now stands accused was
20, rather than 21. Although the Court of Appeal found the provision puzzling,
the rationale is presumably the well-known criminological fact that ‘[o]ffending is
most common in the mid to late teens, after which offending rates tend to decline
quickly’.313 As many young people go through a period of offending in their teens
and then reform, the law should not give too much weight, in cases involving
defendants who are older, to offences they committed in their teenage years. (That
being so, the court was right in Clark, of course, to refuse to bend the provision
in favour of a defendant who was still in what might be called the ‘danger years’.)

4.179 The duty where necessary to exclude under section 108(2) is wider than
the duty created by section 101(3), because it applies across the board and is not
limited to any particular ‘gateway’.

4.180 As previously mentioned (§§1.55ff above), it is now clear that the general
powers of the court to exclude evidence under section 78 of PACE 1984 or at
common law extend to evidence of bad character otherwise admissible under the
CJA 2003. This being so, these powers could be used to exclude evidence of bad
character which is very stale, even if the situation is not covered by sections 101(3),
103(3) or 108(2).

310 B (Richard William) [2008] EWCA Crim 1850.

311 A further difficulty could arise if the first offence was triable only on indictment at the time it
was committed, but had subsequently been reclassified as an ‘either way’ offence, or vice versa. In prin-
ciple, the use of the present tense—‘are triable’—means that the relevant question is the status of both
offences now. The first rule of statutory construction is the ‘literal rule’; and as the result it produces in
this case is not obviously absurd, there is no reason to look any further.
312 Clark [2014] EWCA Crim 1053. Followed in Valencia [2015] EWCA Crim 857.
313 Redmayne (n 66) 152.

143
5
Practical Issues

Attitude of the Crown Prosecution Service

5.1 The Director of Public Prosecutions publicly encouraged Crown Prosecutors

to make use of the new tools that the bad character evidence provisions of the
Criminal Justice Act 2003 have given them. For the use of Crown Prosecutors, the
Crown Prosecution Service (CPS) has issued its own detailed guide to the new
legislation, and how it should be used, which it has published on the CPS website.1
Where defendants are concerned, the CPS’s stated policy is as follows:
The purpose of the bad character of defendant’s provisions is to assist in the evidence
based conviction of the guilty without putting those who are not guilty at risk of con-
viction by prejudice. Prosecution applications to adduce evidence of a defendant’s bad
character should not be made routinely, simply because the defendant has previous con-
victions, but will be based on the particular circumstances of the case (R v Hanson, R v
Gilmore, R v Pickstone [2005] EWCA Crim 824).
…
Where reprehensible conduct is or is likely to be disputed, prosecutors should con-
sider whether a successful application to admit that evidence is likely to complicate and
lengthen the trial and to divert its focus from the events charged on the indictment.
Where previous convictions provide sufficient evidence of bad character, prosecutors
should not seek to adduce unproven allegations. However where the defendant is a serial
offender, or where the facts of unproven allegations are strikingly similar, an application
to adduce the evidence should be made.
For non-defendants the stated policy is this:
The purpose of the bad character provisions for non-defendants is to protect witnesses
and victims from wide-ranging humiliating and irrelevant attacks on their credit; and
ensures that clearly relevant evidence is admissible.
Prosecutors must not consent to the inclusion of evidence of a non-defendant’s bad
character solely to save time or in exchange for defence consent to adduce evidence of the
defendant’s bad character. Different tests of admissibility apply for defendants and non-
defendants and the test of admissibility for non-defendants is higher than for defendants.

1 www.cps.gov.uk/legal/a_to_c/bad_character_evidence/, accessed 9 December 2015.

144
Practical Issues 5.2–5.4

This official guidance is updated from time to time, to take account of Court of
Appeal decisions.2

Information Relevant to Bad Character: Recording,

Storage and Access

5.2 In the past, information tending to show that a person has committed an
offence has been recorded and stored locally. Each court kept (and still keeps) its
own records of the convictions and sentences that it imposes. In addition, each of
the 43 police forces in England and Wales kept (and still keeps) its own records of
information in relation to offences, offenders, and suspects.

5.3 Obviously, the fact that this sort of material is stored locally rather than
centrally is a serious problem to anyone who wishes to discover whether any par-
ticular witness, suspect or defendant has a disreputable past. Where someone is a
witness or a suspect in a case in Cambridge, how is a policeman, prosecutor or a
defence lawyer to find that he has a conviction in Carlisle, a caution in Cardiff, or
in Canterbury was the subject of a police investigation leading to a trial and an
acquittal?

5.4 To some extent, this problem has been resolved by the Police National
Computer (PNC), on which certain types of information about crimes and crimi-
nals are now stored centrally, in a form in which they can be readily accessed by
any police force and the other official criminal justice agencies. This arrangement,
however, has (or at any rate, had until recently) a number of serious shortcomings.
One of these was that information relating to criminal behaviour that did not
consist of convictions, cautions, reprimands and warnings was not logged on the
PNC, and was usually to be found only in the files of the local police force, where
other police forces and other criminal justice agencies would not find it easy to
access. A further problem was inaccuracy. Details of convictions held on the PNC
were placed there not by the courts, but by the police, and in consequence were
sometimes inaccurate or incomplete. The existence of these problems was among
the criticisms of the existing system made by the Bichard Report3 into the Huntley
case,4 after which practical steps were taken to address them. The current practice
is now for details of convictions and sentences to be entered by the court officials.

2 I am grateful to Sir Ken MacDonald, the Director of Public Prosecutions, who sent me a long and

helpful letter on these matters when I was preparing the first edition of this book.
3 A Public Inquiry Report on Child Protection Procedures in Humberside Police and C ambridgeshire
Constabulary, particularly the Effectiveness of Relevant Intelligence-based Record Keeping, Vetting
Practices since 1995 and Information Sharing with other Agencies, HC 653 (June 2004). Online at http://
police.homeoffice.gov.uk/publications/operational-policing/bichard-inquiry-report?view=Binary.
4 The murder by Ian Huntley, a school caretaker at Soham, of Holly Wells and Jessica Chapman,

which he committed in the summer of 2002, and of which he was convicted in December 2003.

145
5.5–5.6 Evidence of Bad Character

A computer link-up is being planned to enable one police force to access informa-
tion when held only in the files of another. But, surprisingly, no general IT system
as yet exists to enable all the individual courts to have computerised access to the
records of the others.

5.5 When a defendant or a witness has been convicted of a criminal offence, the
details of the offence may be more important as a piece of evidence than the mere
fact of the conviction, as we have seen.5 For these details, it may be necessary to
look back into the police or CPS files relating to the case. At one time, the different
police forces and agencies were left to follow their own practices as to how and
for what period of time material relating to past cases was kept. More recently,
minimum standards have been prescribed by the Home Secretary in a code6 made
under the Criminal Procedure and Investigations Act 1996. In Bovell7 the Court of
Appeal drew attention to the fact that the current version of the code prescribes
minimum periods for retaining material relating to investigations which are rather
short: evidence must be retained at least until a convicted person is released from
custody, or discharged from hospital, in cases where the court imposes a custodial
sentence or a hospital order, or, in all other cases, six months from the date of con-
viction. If materials relating to past cases were routinely destroyed at this point,
evidence that the CJA 2003 has now made admissible in later prosecutions for
subsequent offences would often be unavailable when needed. So far, however, the
Court of Appeal’s suggestion that the code should be amended has not been taken
up. At one time, some police forces tended to ‘weed’ information held on suspects
and convicted persons fairly quickly for fear of contravening the data protection
principles contained in the Data Protection Acts. A decision of the Information
Tribunal in 2005 clarified the application of these principles to police records, giv-
ing the green light to the retention of such data for long periods,8 and in 2009 the
Court of Appeal held that it was permissible under both national and EU law for
details of convictions to be retained on the PNC indefinitely.9

5.6 Although the police and the CPS are able to ‘trawl’ for evidence of bad charac-
ter using the PNC and other facilities, these facilities are not available for defence
lawyers. Unless they have the means to finance their own private enquiries, defend-
ants in practice have to make do with such information on the bad character of
the prosecution witnesses as they are given by the police and by the CPS. What are
the duties of the police and prosecutors in this respect? Case law from before the

5 See §4.75 above.

6 Criminal Procedure and Investigations Act 1996: Code of Practice under Pt II. The Code is
updated from time to time; the current version was approved on 19 March 2015.
7 [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401), p 248 below, [2].
8 Chief Constables of West Yorkshire, South Yorkshire and North Wales v Information Commissioner,

Information Tribunal, 12 October 2005; [2005] Pol LR 337.

9 CC Humberside Police v Information Commissioner [2009] EWCA Civ 1079, [2010] 1 WLR 1136.

146
Practical Issues 5.7–5.8

bad character evidence provisions of the CJA 2003 came into force requires the
prosecution to tell the defence about their witness’s previous convictions, except
for minor traffic offences—and in the case of police officers, disciplinary proceed-
ings and Court of Appeal decisions quashing convictions because of their mis-
conduct; if they fail to do so, the defendant is likely to have grounds for appeal.10
As regards evidence of other reprehensible behaviour which undermines the credit
of the prosecution’s witnesses, they are required to share this with the defence if
they happen to have it, but they are under no obligation to go looking for it.11 In
Gleadall v Huddersfield Magistrates’ Court12 a defendant sought to argue that an
incidental consequence of the new statutory provisions on bad character evidence
was that the police were now under a duty to carry out further investigations into
the character of their witnesses, at any rate where the defence request this. This
argument was rejected by the Divisional Court; the court said that the rules in
relation to the duties of the police and CPS to seek out and disclose information
bearing on the credibility of their witnesses are the same as they were before the
CJA 2003 came into force.

5.7 The Rehabilitation of Offenders Act 1974 creates a scheme whereby, after a
certain length of time, criminal convictions (or some of them) become ‘spent’:
after which they are, in principle, to be disregarded. This rule is subject to a num-
ber of significant exceptions—prominent among which is section 7(2)(a), which
provides that the Act does not limit the adduction of evidence in criminal proceed-
ings. But paragraph 21A.2 of the Criminal Practice Direction directs the courts to
‘have regard to’ the general principles of the Act when considering applications to
admit convictions that are spent; in other words, where the court exercises a dis-
cretion, the fact that the conviction is now spent is one of the matters to be taken
into account.

Proving a Conviction13

5.8 The standard procedure for proving that a person has been convicted (or
acquitted) of an offence within the United Kingdom is to obtain a formal certificate

10 Paraskeva (1982) 76 CrAppR 162; Guney [1998] 2 CrAppR 242.

11 Guney ibid.
12 Gleadall v Huddersfield Magistrates’ Court [2005] EWHC 2283 (Admin).
13 For further practical advice, see Roderick L Denyer, ‘Proving Bad Character’ [2009] Crim LR

562—though this article must now be read subject to the legislative amendments mentioned in the
next following note.

147
5.9 Evidence of Bad Character

from the court concerned. This is done under section 73 of the Police and Crimi-
nal Evidence Act 1984, which14 is as follows:
(1) Where in any proceedings the fact that a person has in the United Kingdom or any
other Member State been convicted or acquitted of an offence otherwise than by a
Service court is admissible in evidence, it may be proved by producing a certificate
of conviction or, as the case may be, of acquittal relating to that offence, and proving
that the person named in the certificate as having been convicted or acquitted of the
offence is the person whose conviction or acquittal of the offence is to be proved.
(2) For the purposes of this section a certificate of conviction or of acquittal—
(a) shall, as regards a conviction or acquittal on indictment, consist of a certifi-
cate, signed by the proper officer of the court where the conviction or acquit-
tal took place, giving the substance and effect (omitting the formal parts) of
the indictment and of the conviction or acquittal; and
(b) shall, as regards a conviction or acquittal on a summary trial, consist of a copy
of the conviction or of the dismissal of the information, signed by the proper
officer of the court where the conviction or acquittal took place or by the
proper officer of the court, if any, to which a memorandum of the conviction
or acquittal was sent; and
(c) shall, as regards a conviction or acquittal by a court in a Member State (other
than the United Kingdom), consist of a certificate, signed by the proper officer
of the court where the conviction or acquittal took place, giving details of the
offence, of the conviction or acquittal, and of any sentence; and a document
purporting to be a duly signed certificate of conviction or acquittal under this
section shall be taken to be such a certificate unless the contrary is proved.
(3) In subsection (2) above “proper officer” means—
(a) in relation to a magistrates’ court in England and Wales, the designated officer
for the court; and
(b) in relation to any other court in the United Kingdom, the clerk of the court,
his deputy or any other person having custody of the court record, and
(c) in relation to any court in another Member State (“the EU court”), a person
who would be the proper officer of the EU court if that court were in the
United Kingdom.
(4) The method of proving a conviction or acquittal authorised by this section shall be
in addition to and not to the exclusion of any other authorised manner of proving
a conviction or acquittal.

5.9 Section 73(4) makes it plain that, in principle, convictions and acquittals may
be proved in other ways as well: for example, by the defendant’s admission. If other
forms of evidence are used, however, the information they produce may be unreli-
able, and the court may decide to reject such evidence for that reason. The point
arose in Duggan,15 where the prosecution, in order to establish the defendant’s

14 As amended by the Coroners and Justice Act 2009, to comply with Council Framework Decision

2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European
Union in the course of new criminal proceedings.
15 Reported with Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below.

148
Practical Issues 5.10–5.11

conviction, had used material derived from the PNC. Confusion followed, because
this material suggested that his previous conviction was for assault occasioning
actual bodily harm, whereas the defence claimed that it was for common assault
only: as was indeed the case, as became clear when a certificate of conviction was
eventually obtained. The Court of Appeal rejected the defendant’s argument that
the judge should have refused to admit the evidence as unreliable, because the
judge had admitted it on condition that the prosecution accepted the defence
version of what the offence in issue was, and so no harm was done to him. But
clearly, if the judge had admitted the evidence without imposing this condition,
the outcome on appeal might have been different.16

5.10 Section 73 of PACE 1984 only applies to convictions imposed by courts in

the United Kingdom17 and other EU Member States. It does not apply to convic-
tions imposed by courts in foreign countries outside the European Union—or,
surprisingly, to those imposed in the Isle of Man or the Channel Islands (which
are Crown dependencies, but not part of the UK). At common law, convictions
recorded by such courts were formally proved by producing a copy of the record
authenticated by the seal of the court, plus further evidence that the seal was what
it purported to be. Section 7 of the Evidence Act 1851 relaxed these requirements
slightly as regards convictions imposed by courts in ‘any foreign state or in any
British colony.’ Where this provision applies the conviction may now be formally
proved by producing a copy of the record, duly sealed, without the need to pro-
duce further evidence establishing the authenticity of the seal. But as the Channel
Islands and the Isle of Man are neither ‘foreign states’ nor ‘British colonies’ they
fall outside the scope of the provision, and in consequence the formal method for
proving convictions imposed by Manx and Channel Island courts still presup-
poses separate proof of the authenticity of the seal.18 Presumably, foreign con-
victions, like convictions from UK courts, may also be proved by other and less
formal types of evidence;19 but unless the other evidence produced takes the form
of an admission from the defendant, difficult issues of reliability are likely to arise.

5.11 Proving that an earlier court (whether British or foreign) imposed a convic-
tion on a person of a given name does not, of course, conclusively establish that
it was actually imposed on the person who is now before the court today. If the
person now before the court disputes this, it will be necessary to produce further

16 As in Ainscough [2006] EWCA Crim 694, [2006] Crim LR 635.

17 By the Interpretation Act 1978 Sch 1, the term ‘United Kingdom’ means ‘Great Britain and
Northern Ireland’.
18 Archbold: Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 2016) §9–97.
19 This is stated in the headnote to Mauricia [2002] 2 CrAppR 377; but the judgment does not in

fact support the proposition, because the case was concerned with the problem not of proving foreign
convictions, but proving the foreign conviction was actually imposed upon the person who is now
before the English court.

149
5.12 Evidence of Bad Character

evidence establishing that the two people are really one and the same. In the con-
text of proving the offence of driving whilst disqualified, it was once suggested
that this must be done by one or other of three methods: a formal admission from
the defendant under section 10 of the Criminal Justice Act 1967, comparison of
fingerprints pursuant to section 99 of the Criminal Evidence Act 1948, or evidence
from a person who was in court at the time the original conviction was imposed.20
However, subsequent case law establishes that this may be done by ‘any admissible
evidence in the ordinary way’.21

Legal Effect of Proving a Conviction

National and EU Convictions

5.12 To what extent, in law, does the fact of a conviction establish that the con-
victed person committed the offence? As regards UK and EU convictions proved
by using section 73 of PACE 1984, the answer is provided by section 74, which in
its current form is as follows:
(1) In any proceedings the fact that a person other than the accused has been convicted
of an offence by or before any court in the United Kingdom or any other Member
State or by a Service court outside the United Kingdom shall be admissible in evi-
dence for the purpose of proving that that person committed that offence, where
evidence of his having done so is admissible, whether or not any other evidence of
his having committed that offence is given.
(2) In any proceedings in which by virtue of this section a person other than the accused
is proved to have been convicted of an offence by or before any court in the United
Kingdom or any other Member State or by a Service court outside the United King-
dom, he shall be taken to have committed that offence unless the contrary is proved.
(3) In any proceedings where evidence is admissible of the fact that the accused has
committed an offence, if the accused is proved to have been convicted of the offence
(a) by or before any court in the United Kingdom or any other Member State; or
(b) by a Service court outside the United Kingdom, he shall be taken to have com-
mitted that offence unless the contrary is proved.
(4) Nothing in this section shall prejudice—
(a) the admissibility in evidence of any conviction which would be admissible
apart from this section; or
(b) the operation of any enactment whereby a conviction or a finding of fact in
any proceedings is for the purposes of any other proceedings made conclusive
evidence of any fact.

20 R v Derwentside Justices, ex p Heaviside [1996] RTR 384.

21 Mauricia (n 19) 385; West Yorkshire Probation Board v Boulter [2005] EWHC 2342 (Admin)
[2006] 1 WLR 232; Pattison v DPP [2005] EWHC (Admin) 2938, 170 JPN 22; Burns [2006] EWCA
Crim 617, [2006] 1 WLR 1273; Lewendon [2006] EWCA Crim 648; [2006] 2 CrAppR 19 (294); cf
Moran v Crown Prosecution Service (2000) 164 JP 562.

150
Practical Issues 5.13

The effect of this provision is to create a rebuttable presumption that the person
who was convicted of the offence actually committed it. It is open to him, or to
anyone else, to claim that despite the conviction he did not, but anyone who makes
this claim bears the burden of persuading the court that the convicted person was
innocent.22

5.13 Supplementary provisions are contained in PACE 1984 section 75:

(1) Where evidence that a person has been convicted of an offence is admissible by
virtue of section 74 above, then without prejudice to the reception of any other
admissible evidence for the purpose of identifying the facts on which the conviction
was based—
(a) the contents of any document which is admissible as evidence of the convic-
tion; and
(b) the contents of—
(i) the information, complaint, indictment or charge-sheet on which the
person in question was convicted, or
(ii) in the case of a conviction of an offence by a court in a Member State
(other than the United Kingdom), any document produced in relation
to the proceedings for that offence which fulfils a purpose similar to any
document or documents specified in sub-paragraph (i),
shall be admissible in evidence for that purpose.
(2) Where in any proceedings the contents of any document are admissible in evidence
by virtue of subsection (1) above, a copy of that document, or of the material part of
it, purporting to be certified or otherwise authenticated by or on behalf of the court
or authority having custody of that document shall be admissible in evidence and
shall be taken to be a true copy of that document or part unless the contrary is shown.
(3) Nothing in any of the following—
(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000 (under
which a conviction leading to probation or discharge is to be disregarded
except as mentioned in that section);
(aa) section 187 of the Armed Forces Act 2006 (which makes similar provision in
respect of service convictions);
(b) section 247 of the Criminal Procedure (Scotland) Act 1995 (which makes
similar provision in respect of convictions on indictment in Scotland); and
(c) section 8 of the Probation Act (Northern Ireland) 1950 (which corresponds
to section 13 of the Powers of Criminal Courts Act 1973) or any legislation
which is in force in Northern Ireland for the time being and corresponds to
that section,
shall affect the operation of section 74 above; and for the purposes of that section
any order made by a court of summary jurisdiction in Scotland under section 228
or section 246(3) of the said Act of 1995 shall be treated as a conviction.
(4) Nothing in section 74 above shall be construed as rendering admissible in any pro-
ceedings evidence of any conviction other than a subsisting one.

22 On which see O’Leary [2013] EWCA Crim 1371.

151
5.14–5.16 Evidence of Bad Character

5.14 Sections 73–75 of PACE were amended to put convictions from other Mem-
ber States on the same legal footing as UK convictions in order to comply with an
EU Framework Decision that required this to be done.23 This EU instrument was
adopted on the basis that, before a country is permitted to accede to the EU, its
judicial institutions must conform to certain minimum standards of fairness and
efficiency. If this assumption can be made about the institutions of a candidate
country at the time it is admitted to EU membership, then it cannot necessar-
ily be made about its institutions in the relatively recent past; a number of the
newer EU Member States are former communist dictatorships which, in those
days, had human rights records that were deplorable. If sections 73–75 of PACE
require convictions dating from those dark days to be treated as if they were con-
victions imposed by the courts in the UK, this is worrying. This thorny issue came
before the Court of Appeal in Mehmedov,24 where the defendant appealed against
his conviction for murder because at trial his previous convictions from Bulgaria,
dating from well before Bulgaria’s accession to the EU, has been admitted against
him via ‘gateway (g)’. The Court of Appeal rejected D’s first argument, which was
that the EU amendments to sections 73–75 of PACE only apply in respect of con-
victions which postdate accession. But it went on to say that, where serious doubts
are raised about the fairness of the proceedings leading to the convictions and the
jury cannot be provided with the evidence necessary to resolve them, the judge
should use his discretionary power to rule them out.25

5.15 As regards defendants who have previous convictions, section 103(2) of the
CJA 2003 is phrased so as to suggest that the mere fact that a person has been
convicted of an offence establishes as a matter of law that he has a disposition to
commit offences of that sort, and it could indeed be read in just this sense. I do not
think that it should be, however. In principle, a conviction surely shows a disposi-
tion towards a certain type of criminal behaviour only to the extent that it causes
us to believe that the defendant actually committed the offence of which he has
a conviction from an earlier court, and it should be open to the defendant whose
previous convictions are admitted under this provision to argue that, contrary to
what might appear, he was innocent.

Other Convictions

5.16 Section 73 of PACE 1984 was enacted to reverse the effect of a notorious
common law rule known as ‘the rule in Hollington v Hewthorn’,26 according to

23 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in

the Member States of the European Union in the course of new criminal proceedings.
24 Mehmedov [2014] EWCA Crim 1523, [2015] 1 WLR 495.
25 Assuming the court does have a discretion to exclude; see §§1.55ff and §§3.50–3.53.
26 Hollington v Hewthorn [1943] KB 587.

152
Practical Issues 5.17

which a finding of fact by a court in case A was not admissible in evidence—let

alone conclusive proof—of the existence of that fact in case B in which either or
both of the parties were different. Among other things this rule meant that a crim-
inal conviction, so far from creating a presumption in a later case that the con-
victed person was guilty of the earlier offence, was not even admissible as evidence
to that effect. Although section 73 makes a major inroad in the rule in Hollington v
Hewthorn, it does not simply abolish the rule: it merely makes an exception to it in
respect of convictions imposed by UK and EU courts.27 Logically, the consequence
of this would appear to be that, as regards convictions other than those covered by
section 73 the rule in Hollington v Hewthorn survives and if a prosecutor sought
to establish the defendant’s propensity to commit an offence by proving a foreign
conviction, the defendant could require the court to exclude the fact of the convic-
tion and prove that he committed the offence by other means. However, when the
point arose in Kordasinski28 the Court of Appeal was not prepared to accept this.
It said that, assuming the rule in Hollington v Hewthorn had ever applied in crimi-
nal proceedings,29 the rule formed part of the common law rules relating to evi-
dence of bad character, which had been abolished by section 99 of the CJA 2003.
In consequence, Kordasinski’s Polish rape conviction30 was indeed admissible in
evidence via ‘gateway (d)’ to show his propensity to commit rapes. Although there
are difficulties with the reasoning in this case,31 the result it produces is practically
convenient—at any rate for prosecutors. As the House of Lords in that case refused
leave to appeal,32 this is where, for now, the matter stands.

Findings of Fact in Previous Civil Proceedings

5.17 The rule in Hollington v Hewthorn was not limited to convictions. In prin-
ciple, it prevented the parties to later proceedings making evidential use of the
findings of fact of any previous tribunal, whether criminal or civil. And as sec-
tion 73 of PACE 1984 only reverses it as regards previous criminal convictions, it
does not render admissible in the criminal courts any finding of fact in previous
civil proceedings. Thus on the face of it, the rule in Hollington v Hewthorn would
still prevent a prosecutor using (for example) an adverse finding in care proceed-
ings in order to establish the defendant’s propensity to maltreat his c hildren,33

27 See n §5.12 above.

28 Kordasinski [2006] EWCA Crim 2984; [2007] 1 CrAppR 17 (238).
29 Which it unquestionably did; see inter alia Spinks (1982), 74 CrAppR 263, 266; D [1996] QB 83;

L [2006] EWCA Crim 1902, [2006] 1 WLR 3092, [58].

30 The case was decided before ss 73–75 of PACE were amended in 2009 to place convictions from

courts in other EU Member States on the same footing as UK convictions.

31 I explored the difficulties in ‘Are Foreign Convictions Admissible as Evidence of Bad Character’

[2007] Archbold News, issue 2, 6–9.

32 ‘More on Foreign Convictions’ [2007] Archbold News, issue 7, 4.
33 See L (n 29) [58].

153
5.18–5.19 Evidence of Bad Character

or a finding of fraud in an earlier civil case to establish that the defendant had
a propensity to act fraudulently. However, when the question of the status of
findings in earlier civil proceedings arose in Hogart34 the Court of Appeal once
again found a way to avoid the application of the rule. At the defendant’s trial for
offences of fraud allegedly committed against X, the prosecution was allowed to
adduce evidence of the finding of a judge in civil proceedings that the defend-
ant had perpetrated a similar fraud against Y. This Court of Appeal upheld the
judge’s ruling, holding that the rule in Hollington v Hewthorn was displaced by
section 117 of the CJA 2003: which, as an exception to the hearsay rule, makes
admissible as evidence of their contents statements that are recorded in certain
categories of ‘documents’.35 (It is questionable whether section 117, any more than
section 99, was really enacted with the aim of displacing the rule in Hollington v
Hewthorn. Like Kordasinski, Hogart shows us that the criminal courts have lost
patience with the rule36—and suggests that it is high time that what is left of the
rule was formally abolished.)

Previous Convictions: The Need for Details

5.18 As we have seen, when judges are required to make decisions about the
admissibility of previous convictions, they will sometimes need to know the
details in order to make a proper decision. If the prosecution seek to argue
that the defendant’s convictions for theft undermine his credibility on oath, for
example, one relevant matter will be whether he pleaded guilty or not guilty, and
if he pleaded not guilty, whether or not he gave evidence.37 In Hanson38 the Court
of Appeal said that the prosecution, when giving notice or making an application,
should state whether it intends to rely on the mere fact of the conviction, or also
on the circumstances of it. And where such details are given, it is important, obvi-
ously, that they are accurate.39

5.19 Where is such information to be found? The prosecution may find the nec-
essary details are supplied in the certificate of conviction and the supplementary
documents admissible under sections 73–75 of PACE 1984. If they are not, then
in principle they will have to prove them by producing other forms of legally
admissible evidence. In practice, this will usually be either direct oral evidence

34 Hogart [2007] EWCA Crim 338.

35 For s 117 of the CJA 2003, see JR Spencer, Hearsay Evidence in Criminal Proceedings, 2nd edn
(Oxford, Hart Publishing, 2014) ch 7.
36 But in Conlon v Simms [2006] EWCA Civ 1749, [2008] 1 WLR 484 the Civil Division of the Court

of Appeal applied the rule: though recognising, as Ward LJ said [177], that it ‘has its critics’.
37 See Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [13].
38 See previous note.
39 See M [2012] EWCA Crim 1588, [2012] 2 CrAppR 25 (316) and §§4.75–4.78 above.

154
Practical Issues 5.20–5.21

from the witnesses to the earlier offence, or, if the witness is unavailable, a previous
statement made by the witness, admissible as an exception to the hearsay rule by
virtue of sections 114 and 116 of the CJA 2003.

5.20 Is it possible to circumvent this requirement by proving the underlying

facts by producing information about the details (or alleged details) of the ear-
lier offence or offences that the police have logged in their records? According
to the Court of Appeal in Humphris,40 the answer to this question is ‘no’. In this
case, the trial judge had admitted such evidence, relying on section 117 of the CJA
2003, which makes exceptions to the hearsay rule in relation to ‘business and other
documents’. This, said the Court of Appeal, was wrong: one of the requirements
of section 117 is that the person who ‘supplied the information’ in the document
had ‘personal knowledge of the matters dealt with’. In the case of police records,
the person who ‘supplied the information’ is the police officer who entered the
details in the records—who in this case did not have ‘personal knowledge’ of them.
In Kavallieratos41 the Court of Appeal took a similar line when the prosecution
tried to use a printout from police records in order to establish disputed details of
a caution. (But by contrast, in R (Wellington) v DPP42 the Administrative Court
held that section 117 did let in a printout from the PNC which recorded that
Wellington sometimes used the name of ‘Robert Vernon’ as an alias. This piece of
information, unlike the mere fact of a conviction, was likely to have been fed into
the PNC by a police officer who did have personal knowledge of the facts.)

When Details of the Bad Character Evidence are Disputed

5.21 The details of the earlier offences may be disputed by the defence, and such
disputes raise among other things the spectre of judges being asked to hear oral
evidence when making preliminary rulings on the admissibility of bad character
evidence. In Hanson the Court of Appeal was anxious to discourage this:
[I]n a conviction case the Crown needs to decide, at the time of giving notice of the
application, whether it proposes to rely simply upon the fact of conviction or also upon
the circumstances of it. The former may be enough when the circumstances of the con-
viction are sufficiently apparent from its description, to justify a finding that it can estab-
lish propensity, either to commit an offence of the kind charged or to be untruthful and
that the requirements of sections 103(3) and 101(3) can, subject to any particular matter
raised on behalf of the defendant, be satisfied. For example, a succession of convictions
for dwelling-house burglary, where the same is now charged, may well call for no further
evidence than proof of the fact of the convictions. But where, as will often be the case,

40 Humphris [2005] EWCA Crim 2030, (2005) 169 JP 441.

41 Kavallieratos [2006] EWCA Crim 2819.
42 R (Wellington) v DPP [2007] EWHC 1061 (Admin) (2007) 171 JP 497.

155
5.22–5.23 Evidence of Bad Character

the Crown needs and proposes to rely on the circumstances of the previous convictions,
those circumstances and the manner in which they are to be proved must be set out in
the application. There is a similar obligation of frankness upon the defendant, which will
be reinforced by the general obligation contained in the new Criminal Procedure Rules to
give active assistance to the court in its case management (see rule 3.3). Routine applica-
tions by defendants for disclosure of the circumstances of previous convictions are likely
to be met by a requirement that the request be justified by identification of the reason
why it is said that those circumstances may show the convictions to be inadmissible. We
would expect the relevant circumstances of previous convictions generally to be capable
of agreement, and that, subject to the trial judge’s ruling as to admissibility, they will be
put before the jury by way of admission. Even where the circumstances are genuinely in
dispute, we would expect the minimum indisputable facts to be thus admitted. It will
be very rare indeed for it to be necessary for the judge to hear evidence before ruling on
admissibility under this Act.43

5.22 In Steen the Court of Appeal held that, if the defence are obstructive over this,
it is proper for the judge, using the ‘inclusionary discretion’ (alias ‘safety-valve’)
exception to the hearsay rule contained in section 114(1)(d) of the CJA 2003, to
admit a written summary of the details prepared by the prosecution.44 In prin-
ciple, judges could also invoke this provision to admit printouts from the PNC,
which, as we saw earlier (§5.20) are not usually admissible under the ‘documen-
tary hearsay’ provisions of the CJA 2003. Up to now, the risk of inaccuracies in
printouts from the PNC have made the courts understandably reluctant to do
this, but their attitude may change now that the new system described in §5.4 has
come into force.

5.23 When the CJA 2003 was first in force, fears were sometimes expressed
that, where D claims that he was really innocent of the previous offence, or dis-
putes crucial details, the Crown would then be obliged to call the witnesses to
the e arlier offence—at the cost of time and money and further stress to the wit-
nesses. However, there is no need for this. As we have seen, if (as will usually be
the case) the conviction is one to which sections 73–75 of PACE 1984 apply, the
conviction creates a rebuttable presumption that the convicted person was guilty
of the offence. Although this presumption is rebuttable and D has an unfettered
right to adduce evidence to rebut it,45 his attempt to do so does not mean that
it automatically ceases to operate. The legal effect of section 74 is to reverse the
burden of proof—which means the court is required to assume that D commit-
ted the earlier offence unless D can persuade the court, on the balance of prob-
abilities, that he did not.46 So the Crown is still entitled, despite D’s attempt to

43 Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below, [7].
44 Steen [2007] EWCA Crim 335, [2008] 2 CrAppR 26. For s 114(1)(d), see Archbold: Criminal
Pleading, Evidence and Practice (London, Sweet & Maxwell, 2016) §11.3c and §13.66 and Spencer
(n 35) ch 5.
45 C (JW) [2010] EWCA Crim 2971, [2011] 1 WLR 1942.
46 On this see O’Leary, [2013] EWCA Crim 1371, [19]–[21].

156
Practical Issues 5.24–5.25

rebut the presumption, to rely on it; and in practice, to succeed in rebutting the
presumption D will usually need to produce something more convincing than a
mere denial when giving evidence.47 He has no right to require the Crown to call
the witnesses—nor should he be permitted to force them into this by persuading
the court to exercise its discretion to exclude the evidence of the conviction if it
will not.48 D could call the original Crown witnesses in the unlikely event that they
are now willing to support him; but if they are not, he is not entitled to compel
their attendance in order to cross-examine them in the hope of persuading them
to retract. A witness summons is liable to be set aside if it is issued against a per-
son whose evidence would not support the case of person seeking to secure his
attendance;49 and furthermore, the party calling a witness can only cross-examine
him if the court can be persuaded that the witness is ‘hostile’: which means ‘not
desirous of telling the truth to the court at the instance of the party calling him’.50

5.24 The presumption created by section 74(3) is that the person convicted
‘committed that offence’. So its scope is limited. Although a person convicted is
presumed to have committed the offence, he is not thereby presumed to have
done so in the manner revealed by any supplementary documentation relating to
the offence which is admissible by section 75. And the more fundamentally, the
presumption is not applicable to convictions imposed by courts outside the UK
and the EU. So in these situations, the Crown is in a weaker position and in some
cases may wish to attempt to call the original witnesses. But it will not necessarily
fail if it does not. Although in these situations there is no presumption that the
evidence is true, it is still of course admissible. And in practice, the tribunal of fact
will often be convinced by it, even in the face of D’s denials.

5.25 Things become more difficult if the evidence of previous misconduct consists
of something other than a criminal conviction. Where this is so, and the evidence
is disputed, the court may well be faced with the unwelcome spectre of satellite liti-
gation. In determining whether to admit evidence of bad character principle the
court is required by section 109 to make the decision on the assumption that the
evidence is true (see §5.47 below). However if the court admits the evidence on
the assumption it is true, the defence can still adduce its own evidence at the trial
to show that the prosecution version of events is wrong.51 So where bad character
evidence is admitted and the underlying facts of the previous misbehaviour are
difficult to prove and disputed, this is likely to result in disputed evidence about

47 Ibid.
48 A line of argument conclusively rejected by the Court of Appeal in O [2009] EWCA Crim 2919;
and to similar effect, Lunkulu [2015] EWCA Crim 1350, [107].
49 See inter alia R v Marylebone JJ, ex pte Gatting and Embury (1990) 154 JP 549, [1990] Crim LR 578.
50 Archbold (2016) §8-199.
51 I am grateful to Judge John Phillips for this point.

157
5.26–5.28 Evidence of Bad Character

the details of the earlier offence being called at trial. As previously mentioned,52
the need to prevent too much time being spent on ‘satellite issues’ is something
judges should bear in mind when an application to call bad character evidence is
decided. As the Court of Appeal said in Hanson, ‘Where past events are disputed
the judge must take care not to permit the trial unreasonably to be diverted into
an investigation of matters not charged in the indictment.’53

5.26 The sentence imposed for the previous offence will not usually be relevant,
but if it sheds light upon the details of the previous offence it is proper for the
tribunal of fact to be told about it; as, for example, where a defendant seeks to
explain away a previous conviction as a trivial infringement of the law where the
heavy sentence imposed for it suggests that it was not.54 But conversely, where a
lenient sentence was imposed, this does not preclude the Crown from putting the
previous conviction before the court on the basis that the offence was serious.
In Wynes55 a swimming instructor was convicted of the rape of a 10-year-old
pupil, the Crown having adduced evidence of his previous conviction for down-
loading child pornography in order to suggest that he was sexually interested in
children. To this offence he had pleaded guilty, and been conditionally discharged,
the agreed basis of plea being that he had downloaded the material by accident.
On appeal against the rape conviction the Court of Appeal rejected his argument
that, in these circumstances, the Crown should not have been permitted to dispute
the agreed basis of his earlier plea.

5.27 It should go without saying that where the prosecution are permitted to lead
evidence of bad character in the form of previous convictions, they also have the
right, within limits, to cross-examine the defendant about the details of them—
and they are not restricted to evidence of the bare fact of the conviction.56

Proving Bad Character: Cautions and Fixed Penalty Notices

5.28 As a matter of law, a caution does not have the same legal status as a convic-
tion. In the daily practice of the courts, however, cautions are regularly adduced to
prove the commission of a previous offence in cases where bad character evidence
is in principle admissible; and in 2010 this practice was approved by the Court
of Appeal in Olu.57 There is no statutory basis for this practice, as there is for UK
and EU convictions with section 74 of PACE. But in Olu the Court of Appeal

52 See §§1.75–1.79 above.

53 [12].
54 Nelson [2012] EWCA Crim 1171, and §4.76 above.
55 Wynes [2014] EWCA Crim 2585, (2015) 179 JP 42.
56 Smith (James William) [2006] EWCA Crim 1355.
57 Olu [2010] EWCA Crim 2975, [2011] 1 CrAppR 33.

158
Practical Issues 5.29–5.31

pointed out that, in principle, cautions are only administered against suspects who
are p
repared to admit their guilt. The suspect’s admission that he committed the
offence therefore amounts in law to a confession which, by virtue of sections 76
and 82 of PACE, is admissible as evidence against the person who confessed.58

5.29 Although admissible as evidence, a caution is, for obvious reasons, less con-
clusive as evidence of the commission of a crime than a conviction. With cautions
is there no statutory rule, as with UK and EU convictions, that the person who
received one is presumed to have committed the offence. Furthermore, doubts
can arise as to the sincerity of the confession on the basis of which the caution was
supposedly administered. As the Court of Appeal said in Olu:
[72] … a court would be shutting its eyes if it assumed that where a person was not
legally represented, the consequences of admitting an offence and accepting a caution
were fully explained to a person in a manner that he understood the serious adverse
consequences that would follow and what he was giving up by not exercvising his right
to legal advice—namely that what he was admitting would give him a criminal record,
that the caution would be maintained on the PNC record for very many years and that it
would be used against his interests in certain circumstances.
It follows that magistrates and juries should be more skeptical about cautions than
about convictions; and where they have a discretion to exclude, judges be ready to
exclude them if there are doubts about the process leading up to them.

5.30 There is no formal statutory procedure for proving cautions, as there is for
proving convictions (see §5.8ff above). So if the defendant (or witness) disputes
the fact that he was cautioned, or the details, it will probably not be possible to
resolve the issue by producing a printout from the PNC, and to establish the truth
it will in principle be necessary to produce the original record made by the officer
who administered the caution.59

5.31 If cautions are admissible as evidence of past criminal offences, this is not
the case with fixed-penalty notices (FPNs) or other procedures under which the
police or some other agent of the state is empowered to order a suspect to pay a
given sum of money, or else face prosecution. These were held not to be admissible
in Hamer,60 where the Court of Appeal said that FPNs and PNDs61 are different

58 The decision in Olu was contested DJ Branston in his interesting article ‘A Reprehensible Use of

Cautions as Evidence of Bad Character?’ [2015] Crim LR 594; I am not persuaded by his arguments
and sought to answer them in ‘Cautions as Character Evidence: A Reply to Judge Branston’, ibid, 611.
59 Kavallieratos [2006] EWCA Crim 2819. By CJA 2003 s 133, it would also be possible to produce a

photocopy, provided it is ‘authenticated’.

60 Hamer [2010] EWCA Crim 2053, [2011] 1 CrAppR 3 (23).
61 Penalty Notices for Disorder.

159
5.32–5.34 Evidence of Bad Character

from cautions because a person who accepts one does not thereby admit that he
has committed the offence. In so holding, it pointedly remarked:
Although it is claimed that such notices deliver ‘swift, simple and effective justice’, it
appears that the term ‘justice’ has caused confusion.62

May Bad Character be Established by Proving a Previous

Allegation, as Against a Previous Conviction?

5.32 There is no doubt that a person’s bad character may be established by prov-
ing he has committed offences of which he has not been convicted, where this can
be done by producing witnesses to give direct oral evidence alleging he committed
them. But can the prosecution (or the defence, where they wish to attack a pros-
ecution witness) attempt to show a person’s tendency towards a certain type of
misbehaviour by producing, not witness evidence as to what he did on an earlier
occasion, but merely evidence that on a previous occasion someone who is not to
be called as a witness has made a complaint against him?

5.33 In most situations this will not be possible. The evidence of the previous
allegation constitutes hearsay, as now defined by section 114 of the CJA 2003,
because it is ‘a statement not made in oral evidence in the proceedings’ and would
be called ‘as evidence of [a] matter stated in it’: ie, to suggest that the person
concerned did the thing which the previous complainant said he did.63 In prin-
ciple, therefore, it would be admissible only if one of the conditions set out in
section 114(1)(a)–(d) are met64—which usually they would not be.

5.34 It is for this reason that, as we saw in §5.31, a fixed-penalty notice is not
admissible as evidence that the person concerned committed the offence.
Although issued under statutory powers, as far as the law of evidence is con-
cerned it is merely an out-of-court allegation by the official issuing the notice
that the person concerned has committed an offence. The same is true of a CRIS

62 Though this decision was overlooked in M [2013] EWCA Crim 2238, where the Court of Appeal

assumed that FPNs could in principle be used—albeit holding that the one in question was insuffi-
ciently relevant, and rightly excluded on that basis.
63 Evidence of an out-of-court allegation would not fall foul of the hearsay rule if it was adduced for

a purpose other than establishing the truth of the matter contained in it: for example, where a prosecu-
tion witness has been accused by the police of committing a criminal offence, and the defence wish to
show that because of this she might have falsely accused the defendant of a crime in order to distract
the attention of the authorities from herself: Kelly [2015] EWCA Crim 817.
64 Section 114(1) is as follows: ‘(1) In criminal proceedings a statement not made in oral evidence in

the proceedings is admissible as evidence of any matter stated if, but only if—(a) any provision of this
Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section
118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) the court
is satisfied that it is in the interests of justice for it to be admissible.’

160
Practical Issues 5.35–5.36

(Crime Record Information System) report, which, despite its formal name, is
merely a note made by a police officer in an official record that the subject of the
report is suspected of having committed an offence—for which reason the Court
of Appeal has ruled that these are also inadmissible as evidence of bad character.65
And for the same reason, it is not permissible to adduce as evidence of the com-
mission of an offence the fact that a person has been formally charged with an
offence for which he is currently awaiting trial.66

5.35 In some cases the out-of-court allegation will be in principle admissible

because one of the exceptions to the hearsay rule applies—for example, where the
person who made the complaint is not available and cannot be produced to give
oral evidence.67 But then there is a further problem, in that the hearsay evidence,
though admissible in principle, is doubly problematic: first, because it is hearsay, a
type of evidence which the law traditionally regards with suspicion because it may
be unreliable and is difficult to check, and secondly, because it is evidence of bad
character, which the law traditionally regards with suspicion for fear that it will be
given excessive weight. Of course, it is possible to imagine some circumstances in
which such evidence could be both convincing and highly relevant, for example,
where over a period of time a series of allegations have been made, all by different
people, none of whom had any apparent motive to fantasise or lie. But in other
cases, evidence of this sort will be of little weight and the courts would be wise to
exclude it in cases where they have the power to do so, even where it is potentially
admissible.

The Legal Status of Acquittals68

5.36 Convictions, as we have seen, are admissible as evidence to show that the
person convicted committed the offence—and convictions imposed by UK and
EU courts give rise to a rebuttable presumption that the convicted person was
truly guilty. There is by contrast no equivalent rule in relation to acquittals. In
law an acquittal gives rise to no presumption that the acquitted person was inno-
cent: much less does an acquittal establish this conclusively. So, as the House of
Lords held in the leading case of Z,69 it was open to the Crown, when prosecuting

65 Braithwaite [2010] EWCA Crim 1082, [2010] 2 CrAppR 18 (128); Warren [2010] EWCA Crim
3267.
66 Miller [2010] EWCA Crim 1153, [2010] 2 CrAppR 19 (138); Cudjoe [2012] EWCA Crim 1230.
67 Criminal Justice Act 2003 s 114(1)(c) and s.116. In Edwards and Rowlands [2005] EWCA Crim
3244 (p 310 below) the Court of Appeal expressly said ([1], (vii)) that an allegation could sometimes
be evidence of bad character.
68 For a thoughtful discussion of the underlying issues, see Mike Redmayne, Character in the

Criminal Trial (Oxford, OUP, 2015) 186ff.

69 Z [2000] 2 AC 483.

161
5.37–5.39 Evidence of Bad Character

for a rape, to recycle the evidence of three earlier and similar rapes, for each of
which the defendant had been acquitted. Similarly, the Court of Appeal in Smith
(David)70 held (unsurprisingly) that the same could be done where a prosecution
for the earlier offence had been launched and then stayed as an abuse of process.
(Although if the prosecution seeks to adduce such evidence, the court may of
course refuse to admit if it thinks that it is weak.)71

5.37 But in this type of case, can the defence adduce the previous acquittal as
evidence suggesting innocence? And if it can, how much weight is the tribunal of
fact required to give to it? If the rule in Hollington v Hewthorn (see §5.16 above)
is still good law outside the cases where it has been reversed by statute, the answer
to the first question is ‘no’, and in consequence the second question does not arise.
And in this spirit—though without reference to that case—the Court of Appeal
in Hamidi72 held that where a defendant was prosecuted for cheating the revenue,
part of the evidence against him being an earlier fraud, he was not entitled to call
evidence that the earlier fraud had been investigated by a VAT tribunal which had
‘cleared’ him. In so holding, the Court of Appeal said that if judges sometimes do
admit evidence of acquittals, this is only because ‘the rules of evidence are relaxed
by way of instinctive concession to the defence’.73

5.38 However in two earlier cases,74 different constitutions of the Court of Appeal
dealt with appeals in cases where the defence had been permitted to adduce evi-
dence of the fact that, in criminal proceedings arising from the earlier incident,
the defendant had been acquitted, and the defence complained of the fact that the
judge had misdirected the jury as to the weight given to these earlier proceedings.
In both cases it was assumed (again, without reference to the rule in Hollington v
Hewthorn) that it was proper for the acquittals to be adduced and the judge was
criticised for not telling the jury to give greater weight to them. Neither of these
cases were considered in Hamadi and in consequence the legal position is cur-
rently uncertain.

5.39 So in principle what should the answer be? If common sense prevailed, then
the answer would be as follows: (i) the decision in Hollington v Hewthorn would
be comprehensively overruled and the rule deriving from it would cease to exist;
(ii) in the type of case discussed in the preceding paragraphs the previous acquit-
tal would be admissible in evidence; (iii) but its evidential worth would usually be
low, because normally an acquittal only means that the tribunal of fact was not
persuaded of the defendant’s guilt, not that it was convinced that he was innocent.

70 Reported together with Edwards and Rowlands [2005] EWCA Crim 3244, p 310 below.
71 As in Mustapha [2007] EWCA Crim 1702.
72 Hamidi and Cherazi [2010] EWCA Crim 66; to similar effect, McNeish [2015] EWCA Crim 2251.
73 At [39].
74 Boulton [2007] EWCA Crim 942, and Mustapha [2007] EWCA Crim 1702.

162
Practical Issues 5.40–5.43

Requirement to Give Notice of Bad Character

Evidence: The Criminal Procedure Rules

5.40 Section 111 of the CJA 2003 creates a power to make Rules so far as may
be ‘necessary or expedient for the purposes of this Act’ and sketches out a list of
matters they should cover, at the head of which is a requirement for those wishing
to adduce evidence of bad character to give notice. The latest version is now to be
found in Part 21 of the Criminal Procedure Rules 2015, which is reproduced in
Appendix III.

5.41 The Rules are clearly written and readers should consult them for details. In
broad terms, the Rules require a party wishing to adduce evidence of bad character
of a non-defendant to make an application to the court, and a party wishing to
adduce evidence of the bad character of a defendant to give notice to the court
and to all other parties within specified time-limits of various ‘trigger’ events,
which differ according to whether the case is to be heard in a crown court or in a
magistrates’ court. A party who wishes to oppose the introduction of the bad char-
acter evidence is also required to give notice within a stated time-limit. The Prac-
tice Direction, the relevant parts of which are also reproduced in Appendix III, set
out the forms that are to be used for these purposes. The Rules also give details of
the information that an application or a notice must contain. They also specify the
procedure that the court must follow when dealing with an application or a notice.

5.42 Compliance with the notice requirements set out in the Rules is not manda-
tory, and Rule 21.6 gives the court a wide power to dispense with them. It is as
follows:
The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice
Direction, or to be made or given orally.

5.43 It is obviously necessary for the court to have power to waive the require-
ment for advance notice of bad character evidence, because there will be many
cases in which the ‘gateway’ through which it becomes admissible is only opened
at the trial: for example, where, at trial, the defendant makes an unexpected attack
upon the character of another person, thereby opening ‘gateway (g)’.75 But the
court may, of course, allow bad character evidence to be given even where the
requirements of notice could have been complied with, if it thinks the interests
of justice require this. (In practice, non-compliance with the official time-limits

75 As happened in Dowds—see Bovell and Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27

(401), p 248 below. In Letts and Chung [2007] EWCA Crim 3282, [21], the Court of Appeal said that it
would be helpful if the Rules were amended to take account of this.

163
5.44–5.45 Evidence of Bad Character

is very common, and it is often only at hearings in immediate preparation for the
trial that the question of bad character evidence is first raised.)

5.44 But the courts should not waive the need to comply with the notice require-
ments too lightly, because they exist to serve a purpose: to give the side against
which the evidence is to be called a proper chance to challenge it if it is inaccu-
rate, and so to make sure that the decision of the court is based so far as possible
on the truth and not on falsehood. Where the prosecution, without good reason,
seeks to adduce evidence of a defendant’s bad character without due notice, and
the defence seriously wish to contest it but are unable to do so effectively because
it is too late, the court should refuse to waive compliance with the time limits;76
and similarly if one co-defendant tries to ambush another;77 and similarly if a
defendant, without prior notice, attempts to adduce bad character evidence about
a prosecution witness at the trial.78 Where, on the other hand, the defence are
not prejudiced by the delay, the court is free to admit bad character evidence if
it thinks it might help the court to reach a factually accurate result, even though
the notice requirements have not been complied with. In R (on the application of
Robinson) v Sutton Coldfield Magistrates’ Court79 the Divisional Court rejected the
defence argument that the court should waive compliance with the notice require-
ments only where it found ‘exceptional circumstances’. As Sir Igor Judge robustly
put it in a later case, ‘It is difficult in this Court to imagine that we should regard a
conviction for murder as unsafe as a means of disciplining the Crown Prosecution
Service and encouraging them, on other occasions, to be more efficient than they
were here.’80

Deciding Applications to Admit Bad Character Evidence

and Applications for Such Evidence to be Excluded

5.45 This subject has been covered in the previous chapters of this book. To
recapitulate:
(1) Evidence, or questions, revealing a non-defendant’s ‘bad character’, as restric-
tively defined in section 98, are admissible only with leave (§3.50 above).

76 And if this situation arises it may lead to the conviction being quashed—as in S [2012] EWCA

Crim 3077.
77 Musone [2007] EWCA Crim 1237, [2007] 1 WLR 2467, [2007] 2 CrAppR 29 (379); §4.118 above.
78 Stapleton [2014] EWCA Crim 1983.
79 R (on the application of Robinson v Sutton Coldfield Magistrates’ Court [2006] EWHC 307 Admin,

(2006) 170 JPN 83.

80 Moran [2007] EWCA Crim 2947, [32]. Other cases in which a similar approach was taken are

Culhane and Chin [2006] EWCA Crim 1053; Delay (sic) [2006] EWCA Crim 1110; 170 JP 581; Crandle
and Cullen [2006] EWCA Crim 2663; Hassan [2007] EWCA Crim 1287; and Hassett [2008] EWCA
Crim 1634. In Hassan the Court of Appeal said that the Crown’s delay in giving notice was ‘deplorable’,
but was satisfied that the defendant was not prejudiced by it, partly because the judge had adjourned
the case for a day to allow the details of the previous conviction to be properly researched.

164
Practical Issues 5.46

(2) Evidence, or questions, revealing the ‘bad character’ (as so defined) of a

defendant are admissible if any of the ‘gateways’ listed in section 101(1)(a)–(g)
are open. In principle, where one of these ‘gateways’ is open the evidence is
admissible as of right, and not by leave; but although there is no require-
ment of judicial leave, as such, the court has wide discretionary powers to
suppress evidence of bad character where, as usual, it is the Crown that seeks
to adduce it.
(3) Section 101(3) of the Act imposes on the court a duty to exclude evidence of
the defendant’s bad character that would otherwise be admissible through
the ‘gateways’ provided by section 101(1)(d) and (g) where it appears to the
court that admitting it would make the trial unfair; section 103(3) imposes a
duty on the court to exclude evidence of the defendant’s bad character other
wise admissible under section 103(2) if the court is satisfied that to apply
section 103(2) would be unjust; and section 108(2) and (3) confer a more
general discretion to exclude such evidence if the evidence relates to criminal
convictions imposed on the defendant when he was under 14.
(4) As far as evidence of the defendant’s bad character is concerned, admissibil-
ity is also subject to the court’s general discretion to exclude prosecution
evidence under section 78 of PACE 1984, and—to the extent that it adds any-
thing to section 78—the court’s common law discretion to exclude evidence
that is more prejudicial than probative (see §§1.55ff above).
(5) Objections to the admission of evidence of the defendant’s bad charac-
ter based on the European Convention on Human Rights and the Human
Rights Act 1998 will usually be ill-founded (§§1.35ff above).
(6) The court’s decision to admit or reject evidence of bad character is usually
seen by the appeal courts as ‘fact specific’, and therefore not open to appeal
unless it was manifestly unreasonable (§1.80).

5.46 As previously mentioned, the case law makes it very clear that evidence of
bad character ought to be excluded if the prosecution are seeking to adduce it to
bolster up a case that is weak (§§1.69ff). How strong or otherwise the prosecution
case is may not be clear until their witnesses have given evidence, and in Giyma81
the Court of Appeal indicated that where this is so, it may be wise to postpone the
decision to admit the bad character evidence until the close of the prosecution
case. But in the earlier case of HSD82 the Court of Appeal stressed that there can
be no hard and fast rules about this; it will always ‘depend on the circumstances of
the case and the views of counsel and the court’.

81 Giyma [2007] EWCA Crim 429, [2007] Crim LR 890.

82 HSD [2006] EWCA Crim 1703.

165
5.47–5.48 Evidence of Bad Character

Assumption of Truth in Assessment of

Relevance or Probative Value

5.47 In deciding whether to admit evidence of bad character, sections 100 to 106
of the Act require the court to make decisions about whether such evidence is
‘relevant’ and ‘important.’ In making such a decision, section 109 requires the
court to assume that the evidence is true, unless its falsity is very obvious:
(1) Subject to subsection (2), a reference in this Chapter to the relevance or probative
value of evidence is a reference to its relevance or probative value on the assumption
that it is true.
(2) In assessing the relevance or probative value of an item of evidence for any purpose
of this Chapter, a court need not assume that the evidence is true if it appears, on the
basis of any material before the court (including any evidence it decides to hear on
the matter), that no court or jury could reasonably find it to be true.83
An example of the operation of this section is Mitchell.84 D1, who was accused of
shooting at a policeman, claimed in his defence that it was D2, his co-defendant,
who had pulled the gun and that it had gone off accidentally when he (D1) was try-
ing to confiscate it from him. In response to this D2 was permitted to adduce, via
‘gateway (e)’, evidence of D1’s having once invented a similar story in an attempt
to explain away his unlawful possession of a knife. To this D1 objected, saying that
this earlier incident was only relevant if, as D2 claimed, the earlier explanation had
been a lie. Upholding his conviction, the Court of Appeal said that the judge was
required, when deciding whether to admit this piece of evidence, to assume that
the previous incident was as D2 alleged.

Duty to Stop the Case Because the Evidence

is ‘Contaminated’85

5.48 The basic rule is that the weight (if any) to be given to any piece of evidence
is a matter for the jury, not the judge. So, if the prosecution evidence, if believed,
shows the defendant to be guilty, the judge should not stop the case merely because
he finds it unconvincing. As the Court of Appeal held in Galbraith,86 the judge
who finds the prosecution evidence unconvincing should only stop the case where
he or she ‘comes to the conclusion that the prosecution evidence, taken at its high-
est, is such that a jury properly directed could not properly convict upon it.’

83 Section 109 confirms the position under the previous law: see R v H [1995] 2 AC 596.
84 Mitchell [2010] EWCA Crim 783.
85 The paragraphs that in this edition are now numbered §§5.48, 49, 50, 51, 53, and 54 were quoted
with approval by the Court of Appeal in Lamb [2007] EWCA Crim 1766, [39].
86 Galbraith (1981) 73 CrAppR 124.

166
Practical Issues 5.49

5.49 To this rule, there are a number of exceptions where the judge is required
or permitted to stop the case because he considers the prosecution evidence to be
of poor quality, notably where it consists of eye-witness identification.87 To these
exceptions, the CJA 2003 added a new one relating to evidence of bad character.88
Where the case against the defendant consists of a series of incidents, described
by a series of witnesses, the court must stop the case if it comes to the conclusion
that the witnesses have colluded, or that their evidence is the result of suggestion,
to the point where a conviction on the evidence would be unsafe. Section 107 is
as follows:
(1) If on a defendant’s trial before a judge and jury for an offence—
(a) evidence of his bad character has been admitted under any of paragraphs (c)
to (g) of section 101(1), and
(b) the court is satisfied at any time after the close of the case for the prosecution
that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evi-
dence to the case against the defendant, his conviction of the offence
would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it
considers that there ought to be a retrial, discharge the jury.
(2) Where—
(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and
(b) the circumstances are such that, apart from this subsection, the defendant
could if acquitted of that offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the court is satisfied
as mentioned in subsection (1)(b) in respect of it.
(3) If—
(a) a jury is required to determine under section 4A(2) of the Criminal Procedure
(Insanity) Act 1964 (c. 84) whether a person charged on an indictment with
an offence did the act or made the omission charged,
(b) evidence of the person’s bad character has been admitted under any of para-
graphs (c) to (g) of section 101(1), and
(c) the court is satisfied at any time after the close of the case for the prosecution
that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of the evi-
dence to the case against the person, a finding that he did the act or
made the omission would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it
considers that there ought to be a rehearing, discharge the jury.
(4) This section does not prejudice any other power a court may have to direct a jury to
acquit a person of an offence or to discharge a jury.

87 Turnbull [1977] QB 224; and also where it consists of nothing but the extra-judicial confession

of a person who is mentally handicapped: Mackenzie (1996) 93 CrAppR 98.

88 And, by s 125, a further one in relation to unconvincing hearsay.

167
5.50–5.52 Evidence of Bad Character

(5) For the purposes of this section a person’s evidence is contaminated where—
(a) as a result of an agreement or understanding between the person and one or
more others, or
(b) as a result of the person being aware of anything alleged by one or more others
whose evidence may be, or has been, given in the proceedings,
the evidence is false or misleading in any respect, or is different from what it would
otherwise have been.

5.50 This provision comes from the Law Commission, which thought the exist-
ing law did not provide sufficient safeguards against the problem of ‘contaminated
evidence’ in such cases. In R v H the House of Lords took the position that the
question whether the evidence was ‘contaminated’ was a matter that affected its
weight, and therefore a matter for the jury; where the possibility of collusion had
been raised at the trial, the proper course was for the judge to leave the case to the
jury, with a direction not to accept the evidence unless satisfied that it was reli-
able and not tainted by collusion. The judge, they said, is entitled ‘to rule it out as
providing a basis for corroboration only if no reasonable jury could accept it as
reliable’.89 The Law Commission, by contrast, thought that where the judge him-
self was satisfied that there had been ‘contamination’ of the evidence, he should be
required to stop the case.

5.51 Unfortunately the provision is not clearly drafted—and has the potential
to cause difficulty and confusion as a result. One of the obscurities is the mean-
ing of ‘contaminated’: an expression that section 107(5) does little to clarify. The
word ‘contaminated’ and what is now section 107(5) both originate from the Law
Commission’s Report90 at p 223, of which the following explanation is given:
By virtue of subsection (5), evidence might be ‘contaminated’ as a result of: deliberate
fabrication of allegations resulting from an agreement between witnesses; concoction
of an allegation by one person (no conspiracy); collusion between witnesses to make
their evidence sound more credible falling short of concoction of allegations; deliberate
alteration of evidence or unconscious alteration of evidence, resulting from having
become aware of what the evidence of another will be or has been.
From this, it seems that evidence can be ‘contaminated’ by accident, as well as by
design.91

5.52 Although section 107 is very long, its scope is in fact comparatively narrow:
as the Court of Appeal pointed out in Renda, where it said:
We are … concerned to ensure that section 107 should not be misused. There will, of
course, be occasions when counsel is justified in submitting that a conviction would be

89 R v H [1995] 2 AC 596, 612 (Lord Mackay).

90 Evidence of Bad Character in Criminal Proceedings (Law Com no 273, Cm 5257, October 2001).
91 For a practical example, involving discussions between two small children and their mother, see

Card (n 94 below).

168
Practical Issues 5.53–5.54

unsafe because evidence admitted under section 101(1)(c)–(g) proved to be contami-

nated. That, however, does not provide any justification for a submission which, in truth,
is no more than a reiteration of the arguments advanced by counsel against the admis-
sion of this evidence. Section 107 deals with a particular situation where the evidence
of ‘bad character’ has been admitted and proves to be false or misleading in the circum-
stances described in section 107(5).92
5.53 By section 107(1)(b), the duty that section 107 imposes on the judge to stop
the case only arises where ‘the court is satisfied … that the evidence is contami-
nated’ (emphasis added). The court has no duty—and indeed no power—to stop
the case merely because it thinks the evidence may be affected by collusion or sug-
gestion; and even where the complainants are members of the same family a judge
may properly decide that the complaints are not so tainted.93 Where the court is
satisfied that the evidence is contaminated, then it must consider ‘the importance
of the evidence to the case against the defendant’. If it concludes that its impor-
tance is such that a conviction based wholly or partly on such evidence would be
unsafe, it must stop the case. As the Court of Appeal pointed out in Card, in this
situation it is not a matter of discretion.94

5.54 Where the issue of suggestion or collusion has been raised, but the judge is
not persuaded that the bad character evidence has been contaminated in this way,
the case should be left to the jury with an appropriate warning. In N(H) the Court
of Appeal said this:95
[41] … in any case where the evidence of complainants is treated as cross admissible
the jury will need to exclude collusion or innocent contamination as an explanation
for the similarity of the complaints before they can assess the force of the argument that
they are unlikely to be the product of coincidence. Save in an obvious case, in which the
evidence has plainly excluded the risk of collusion and innocent contamination and no
point is taken on behalf of the defendant, a direction to the jury will be required. Where,
however, the evidence is not treated as cross admissible, the need to provide the jury with
guidance upon the risk of collusion and/or innocent contamination will depend upon
the particular circumstances of the case. The need for directions which meet those cir-
cumstances is amply demonstrated by the judgments of the Court in Paul W and Lamb.96
In Paul W 97 the Court concluded that notwithstanding a specific direction to the jury
that the evidence of one complainant could not provide support for the evidence of
another, a direction as to the risk of collusion and contamination was required because
one complainant knew the substance of the complaint of another before making his own
complaint, and the defence in each case was that any indecent touching had been acci-
dental. In Lamb, when at trial the evidence had been treated as cross-admissible, and the

92 Renda [2005] EWCA Crim 2826, p 276 below, [27].

93 PR [2010] EWCA Crim 2741, [55]–[58].
94 Card [2006] EWCA Crim 1079, [2006] 2 CrAppR 28, [2006] Crim LR 1058, [22] (the case is

reported as C in [2006] 1 WLR 2994).

95 N(H) [2011] EWCA Crim 730, [2011] 1 CrAppR 12.
96 [2007] EWCA Crim 1766.
97 [2003] EWCA Crim 2168.

169
5.55–5.57 Evidence of Bad Character

defendant had specifically raised the issue of innocent contamination, it was not enough
for the judge to warn only of the risk of deliberate falsehood when no such possibility
has been asserted.
Similarly, if the judge takes the view that the contamination is not such as to make
a conviction on the evidence unsafe.98

5.55 Section 107 only applies to a situation where the evidence is evidence of
‘bad character’ as defined by section 98, and as we have seen, section 98 excludes
from the definition of ‘bad character’ any evidence which ‘has to do with the
alleged facts of the offence with which the defendant is charged’. In the light of
this, s ection 107 clearly applies where D is prosecuted for an offence against V1,
and the prosecution adduce as supportive evidence the similar incidents described
by W1 and W2, in respect of whom D has not been charged. But what about the
situation where D faces charges in relation to W1 and W2 as well? Is the evidence
in relation to W1 and W2 then evidence about ‘the alleged facts of the offence’,
and therefore outside the definition of ‘bad character’ in section 98, and hence
outside the scope of section 107? By reason of section 112(2), the answer is ‘no’:
section 107 does indeed apply here. By section 112(2):
Where a defendant is charged with two or more offences in the same criminal proceed-
ings, this Chapter (except section 101(3)) has effect as if each offence were charged in
separate proceedings; and references to the offence with which the defendant is charged
are to be read accordingly.
5.56 Under section 107, the judge’s duty to stop the case arises irrespective of
whether there has been a submission by the defence. However, by section 107(1),
the scope of the section is expressly limited to jury trials. So it would not apply to
a trial before judge alone under Part 7 of the Act.

The Judge’s Power to Stop the Case for Other Reasons

5.57 Of course, it must be remembered that the judge at a jury trial has vari-
ous powers to stop a case at common law, quite apart from the limited power
conferred by section 107. In particular, the judge has the power to discharge the
jury where a piece of damaging evidence has been let in which should have been
excluded; he may exercise this power on his own initiative, or on the application
of the defence, and if the defendant is unrepresented the judge must tell him of
his right to apply.99 Where this situation arises, the judge has a discretion: he

98 As we saw from the passage quoted from N(H) (ibid) the Court Appeal in Lamb [2007] EWCA

Crim 1766 stressed the importance of directing the jury about the risks of ‘innocent’ contamination,
as well as deliberate collusion—and quashed the conviction because the jury’s attention had not been
sufficiently drawn to this.
99 See generally Archbold: Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell,

2016) §4–316; Blackstone’s Criminal Practice (2016) §D13.63.

170
Practical Issues 5.58–5.59

may decide to discharge the jury, or he may decide to let the trial proceed and
warn the jury against acting on the evidence when he sums up. In deciding which
course to take, he will have to assess the damage the inadmissible evidence is likely
to cause, and this will depend both on the nature of the inadmissible evidence
and the strength of the rest of the evidence. In practice, the Court of Appeal will
usually respect the judge’s decision.100 In Arthurton v The Queen,101 however, the
Privy Council quashed a conviction when, at a trial for unlawful sexual intercourse
in which the prosecution case consisted almost entirely of the uncorroborated
evidence of the complainant, the jury was improperly informed that a similar
accusation had been made against him in the past; here, they thought, the preju-
dice arising from the inadmissible evidence could not be eliminated by a judicial
warning.102 By contrast, in Edwards and Rowlands103 the Court of Appeal upheld a
conviction where, at a trial for drug offences, evidence of one defendant’s previous
convictions for offences of minimal relevance had been improperly admitted, the
Court of Appeal taking the view that they were ‘insignificant in relation to the real
issue in the case’, and that the judge had cured the problem by telling the jury to
ignore them.104

5.58 Whether the judge finds himself in this position depends, of course, on
whether the evidence of bad character was admissible or not. Whilst in general
terms the admissibility of bad character evidence is something that can and should
be resolved ahead of trial, there are situations where its relevance and admissibil-
ity may depend on matters that may or may not arise in the course of it. Where
the judge foresees this, he may decide to delay a ruling on the admissibility of the
defendant’s previous convictions until towards the end of the prosecution case.

5.59 There are also situations in which the judge can properly stop the case, where
after hearing the evidence for both sides he or she believes the totality of the evi-
dence to be so weak that it would not be safe to leave the case to the jury.105 As we
have seen (§§1.69–1.74 above), when deciding whether evidence of the defend-
ant’s bad character should be admitted, an important consideration is that evi-
dence of this sort should not be used to bolster up a case which is inherently weak.
The same principle should be born in mind at the other end of a trial, when the
evidence for both sides has been heard. If evidence of the defendant’s bad charac-
ter was originally admitted to supplement what appeared to be a solid case, and by
the end of the trial the other pieces of evidence have been ‘blown out of the water,’

100 See, for example, Brown [2006] EWCA Crim 827, [2006] Crim LR 995.
101 [2004] UKPC 25, [2005] 1 WLR 949.
102 As to whether the previous complaint might now be admissible in England as part of the pros-

ecution case, see §5.32–5.35 above.

103 [2005] EWCA Crim 3244, p 310 below.
104 To similar effect see also Enright, reported together with Edwards and Rowlands (ibid).
105 In particular, where it depends on eye-witness identification.

171
5.60–5.61 Evidence of Bad Character

it would be proper for the judge to stop the case if evidence of the defendant’s dis-
position to commit the sort of offence of which he is accused is the only evidence
which remains intact.

Reasons for Decisions

5.60 When courts make rules in relation to evidence of bad character, the CJA
2003 requires them to give reasons. This is provided by section 110, which is as
follows:
(1) Where the court makes a relevant ruling—
(a) it must state in open court (but in the absence of the jury, if there is one) its
reasons for the ruling;
(b) if it is a magistrates’ court, it must cause the ruling and the reasons for it to be
entered in the register of the court’s proceedings.
(2) In this section ‘relevant ruling’ means—
(a) a ruling on whether an item of evidence is evidence of a person’s bad character;
(b) a ruling on whether an item of such evidence is admissible under section 100
or 101 (including a ruling on an application under section 101(3));106
(c) a ruling under section 107.

Directing Juries

Evidence of the Defendant’s Bad Character

5.61 When the new law on bad character evidence arrived, the Judicial Studies
Board issued Specimen Directions, as was then the practice. Although popular with
judges faced with the task of directing juries, these Specimen Directions became
unpopular with the Court of Appeal because unmeritorious defendants sought to
use deviations from them as grounds for challenging meritorious convictions. This
led to these directions being withdrawn, and their replacement in 2010 with the
Crown Court Bench Book, a 400-page manual which, instead of providing judges
with boiler-plate text to incorporate into judgments, explains the legal issues and
aims to help them construct directions using their own words.107 The change
was not universally popular among trial judges, some of whom badly missed the
Specimen Directions. In response to this a much shorter supplementary document
was then published, called the Crown Court Bench Book Companion. In 2016 this
was superseded by an improved version, now called the Compendium—which like

106 A ruling under s 101(3) must deal with the matters mentioned in s 101(4): Dhooper [2008]

EWCA Crim 2892.

107 The text is available online at www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/

Training/benchbook_criminal_2010.pdf; also available online are the periodic updates.

172
Practical Issues 5.62–5.64

its predecessor, and the Crown Court Bench Book itself, will be available online.108
With the kind permission of the authors, the relevant s ections of the Compendium
are reproduced as Appendix IV. These give judges practical guidance, expressed in
simple terms, on all the main points that are likely to arise when directing juries on
issues relating to bad character evidence, together with suggested forms of words
for use in framing directions. As this guidance is now readily available to readers,
only a few basic points will now be mentioned here.

5.62 The first and most basic point is that, where bad character evidence has
been adduced, judges are expected to direct juries as to its relevance and as to the
use they are entitled to make of it. This is so whether the evidence is adduced by
the Crown, by a co-defendant, or—as occasionally happens—by the defence.109
The purpose for which it may be used will usually be related to the ‘gateway’
through which the evidence was admitted, but this will not invariably be so. The
principle, as we saw earlier, is ‘when it’s in, it’s in’ (above §4.6, and §§162–171);
judges are entitled, and expected, to direct juries as to the relevance of the bad
character evidence to any matter to which it is logically relevant, even if it was
admitted for another reason. And the converse of this is also true. Where the evi-
dence is only relevant in one respect, the judge is expected to make this clear in
his direction too (above, §4.166). All this is obviously important. Where appeals
against conviction in bad character cases succeed, failure to give an adequate direc-
tion as to the relevance of the evidence is commonly the reason.110

5.63 Secondly, since the 2003 reform a common reason for adducing evidence
of the defendant’s bad character is to demonstrate his propensity to commit the
type of offence for which he is currently on trial. The ramifications of this were
discussed at some length in Chapter 4 (§§4.18–4.102 above) and useful practical
advice for judges can be found in the Compendium. A particular point to mention
here is that, according to the case law, whether the bad character evidence shows
a disposition to commit the offence of which D now stands accused is a matter
for the jury, the judge’s role being limited to ruling whether it is capable of show-
ing this. Where the inference is obvious—as for example where it shows a bizarre
sexual preference111—judges sometimes overlook this, thereby paving the way for
convicted defendants to appeal.112

5.64 It is now well established that evidence of propensity is not to be adduced in

cases where the rest of the evidence is weak (see §§1.66ff above). In some cases, the

108 https://www.judiciary.gov.uk/wp-content/uploads/2011/05/Crown-Court-Compendium-Part-

I-Legal-Summaries-Directions-Examples-May-2016.pdf.
109 Gosney [2007] EWCA Crim 984; Harper [2007] EWCA Crim 1746.
110 As, for example, in DF [2011] EWCA Crim 2168, [2012] Crim LR 215.
111 As in Roderick [2012] EWCA Crim 2276.
112 Roderick (ibid), where—rather surprisingly—given the facts, the appeal succeeded; a more

robust line was taken in Baxendale [2012] EWCA Crim 174.

173
5.65–5.67 Evidence of Bad Character

weakness or otherwise of the rest of the prosecution evidence will still be in dis-
pute when the time comes for the judge to direct the jury. In such a case the judge
should direct the jury to leave the bad character evidence out of account unless it
finds the contested pieces of evidence to be convincing.113

5.65 Thirdly, there are cases where the bad character evidence is put forward in the
sort of ‘similar fact’ scenario described as ‘scenario two’ in Chapter 4 (see §§4.88ff
above, and in particular, §4.91): for example, where the defendant is accused of
three indecent assaults against three children, the totality of whose evidence adds
up to a strong case, or where D is accused of four robberies, all with rather similar
features, to each of which he is connected by a certain amount of circumstantial
evidence, none of which when taken on its own is overwhelming. Here the judge
should direct the jury along the lines set out in the Compendium. In such a case
the issue is whether they are persuaded of the defendant’s guilt beyond reasonable
doubt by the evidence when considered as whole; the judge should not therefore
tell the jury that they must be satisfied that witness X is telling the truth before
they can use his evidence to help them decide if what witness Y has said is also
true. As explained earlier (above, §4.93) there could be cases of this type in which
it would be appropriate to give a ‘propensity’ direction as well: but in most cases, it
would be wise to leave the issue to the jury on one basis or the other.

5.66 In Chohan114 the Court of Appeal described Judge Mort’s direction to the
jury in that case as ‘impeccable’115 and commended it as an example; and it
received a second commendation in Campbell—though this time with the quali-
fication that, in simple ‘disposition’ cases, judges should not trouble juries with
explanations about what impact (if any) the defendant’s record could have upon
his credibility.116 Judge Mort’s direction is set out in full in the Court of Appeal
judgment in Chohan, which is printed with the other leading cases in Appendix V.

Bad Character and ‘Good Character’ Directions

5.67 In Vye,117 and then in Aziz,118 it was held that a defendant of ‘good c haracter’
is entitled to a two-part direction, making it clear that (i) his good character
renders his statements more worthy of belief and (ii) his good character also makes
it less likely that he committed the offence of which he is accused. These decisions

113 As was done in Norris [2013] EWCA Crim 712.

114 Reported with Edwards [2005] EWCA Crim 1813, [2006] 1 CrAppR 3 (31), p 253 below, [77].
115 Subject to one minor point on which the law was differently stated subsequently in Hanson

[2005] EWCA Crim 824, [2005] 1 WLR 3169, p 238 below.

116 Campbell [2007] EWCA Crim 1472, [2007] 2 CrAppR 28 (261), [2007] 1 WLR 2798, [35]; and

see §4.99 above.

117 Vye (1993) 97 CrAppR 134
118 Aziz [1996] AC 41.

174
Practical Issues 5.68–5.69

proceeded on the generous basis that ‘good character’ means nothing more than
the absence of criminal convictions: no positive evidence of good character is
required.119 Subsequent case law made the rule even more generous by inventing
the gloss that a defendant with a criminal record might count as of ‘effective good
character’ if his previous convictions were ancient or for offences of no signifi-
cance to the offence now charged, and such a person was in principle entitled to
at least some modified version of a Vye direction too. After the rules relating to
bad character evidence were reformed in 2003 this widened version of the rule
about good character directions raised the spectre of a conflict of judicial duties,
with judges being required to include in their directions to the jury both a bad
character direction and a Vye direction. A possible situation, it was thought, might
occur where—as sometimes happens—the bad character evidence is adduced by
the defence to support the argument that, though a rogue, the defendant has never
previously committed the type of offence for which he is currently on trial.

5.68 In Hunter and others120 a five-judge Court of Appeal took a hard look at
the case law that had extended Vye and Aziz and resoundingly condemned it.
A defendant is only ‘entitled’ to a Vye direction, it said, where he has no crim-
inal convictions, and no other reprehensible conduct is proved or admitted or
adduced against him. Beyond that, it is a matter of judicial discretion as to whether
a defendant who falls short of this is treated as having ‘effective good character’,
and if so, what sort of direction is given in response to it. In particular, it is not
the case that a Vye direction is required wherever the evidence of the defendant’s
convictions are adduced by the defence: as they were in Hunter and others, where
the defendants were on trial for sexual offences and had put their criminal records
in evidence to support the line of argument ‘I may be a rogue, but I am not a sex
offender.’

5.69 A variation on this theme is where the defendant who has no previous con-
victions, but against whom bad character evidence has been admitted in the form
of some other kind of reprehensible behaviour: for example, where at a fraud trial,
evidence of previous frauds that did not result in prosecution.121 In Hunter the
Court of Appeal identified this as another situation in which the trial judge has
discretion as to how to deal with the situation:
[83] Where the defendant has no previous convictions or cautions, but evidence is
admitted and relied upon by the Crown of other misconduct, the judge is obliged to
give a bad character direction. S/he may consider that as a matter of fairness they should
weave into their remarks a modified good character direction. However, there will be

119 As to which see Munday, case note on Hunter (n 120 below).

120 Hunter and others [2015] EWCA Crim 631, [2015] 2 CrAppR 9; noted by Roderick Munday
[2015] CLJ 388 and by Elaine Freer [2015] 5 Archbold Review 4; reaffirmed in Morgans [2015] EWCA
Crim 1997, (disapproving Styles [2015] EWCA Crim 1619).
121 As in Doncaster [2008] EWCA Crim 5, [2008] Crim LR 709.

175
5.70–5.71 Evidence of Bad Character

occasions when this will undoubtedly offend Lord Steyn’s absurdity principle. This must
therefore be left to the good sense of trial judges. This too is a broad discretion. Where a
judge has declined to give a direction or has given a modified good character direction
to a defendant in this category, this court should have proper regard to the exercise of
discretion by the judge who has presided over the trial.
5.70 In the hope of reducing the flow of defence appeals to which the case law
stemming from Vye and Aziz had given rise, the Court of Appeal in Hunter also
made it clear that, where the judge has a discretion as whether to give any kind of
good character direction, the manner in which he decides to exercise it will not
ground an appeal unless it was plainly unreasonable.

Evidence of the Bad Character of a Non-defendant

5.71 A direction about the bad character of a non-defendant should also be

tailored to the way in which that evidence is relevant. If it is relevant because it
enables the background to the case to be understood, or because it is relevant to
a specific issue, its relevance in these ways ought to be explained. Where the non-
defendant is a witness, the evidence of his bad character may be relevant because
it undermines his credibility.122 If the non-defendant is a witness, and the bad
character evidence has been admitted in relation to his credibility, the direction
should explain that persons whose characters are bad may be less likely to tell the
truth than those whose characters are good, but it does not follow that they are
incapable of doing so.123

122 As explained earlier (§3.23 above), the credibility of a witness may properly be dented not only

by evidence showing he has a proven propensity to lie, but also on the ground that he is a rogue, and
rogues are less worthy of belief than honest citizens.
123 And even witnesses who lie in one part of their evidence may still be truthful in another: see EPI

Inc v Symphony plc [2004] EWHC 2945 (Ch), [2005] 1 WLR 3456.

176
Appendix I

Criminal Justice Act 2003

(PART 11, CHAPTER 1)

The Criminal Justice (Evidence) (Northern Ireland) Order 2004, SI 2004/1501

(NI 10) contains provisions which are virtually identical. For the benefit of Northern
Ireland users, the numbers of the equivalent articles of Part II of the Order are set out
in italics after the section numbers of the CJA 2003 which they reproduce.

98 (NI art 3) ‘Bad character’

References in this Chapter to evidence of a person’s ‘bad character’ are to evi-

dence of, or of a disposition towards, misconduct on his part, other than evidence
which—
(a) has to do with the alleged facts of the offence with which the defendant is
charged, or
(b) is evidence of misconduct in connection with the investigation or prosecu-
tion of that offence.

99 (NI art 4) Abolition of common law rules

(1) The common law rules governing the admissibility of evidence of bad
character in criminal proceedings are abolished.
(2) Subsection (1) is subject to section 118(1) in so far as it preserves the rule
under which in criminal proceedings a person’s reputation is admissible for
the purposes of proving his bad character.

100 (NI art 5) Non-defendant’s bad character

(1) In criminal proceedings evidence of the bad character of a person other than
the defendant is admissible if and only if—
(a) it is important explanatory evidence,

177
Appendix I

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole,
or
(c) all parties to the proceedings agree to the evidence being admissible.
(2) For the purposes of subsection (1)(a) evidence is important explanatory
evidence if—
(a) without it, the court or jury would find it impossible or difficult
properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3) In assessing the probative value of evidence for the purposes of subsection
(1)(b) the court must have regard to the following factors (and to any others
it considers relevant)—
(a) the nature and number of the events, or other things, to which the
evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where—
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of
similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between
each of the alleged instances of misconduct;
(d) where—
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the miscon-
duct charged, and
(iii) the identity of the person responsible for the misconduct charged
is disputed,
the extent to which the evidence shows or tends to show that the same
person was responsible each time.
(4) Except where subsection (1)(c) applies, evidence of the bad character of
a person other than the defendant must not be given without leave of the
court.

101 (NI art 6) Defendant’s bad character

(1) In criminal proceedings evidence of the defendant’s bad character is admis-

sible if, but only if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) 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,
(c) it is important explanatory evidence,
178
Criminal Justice Act 2003 Part 11, Chapter 1

(d) it is relevant to an important matter in issue between the defendant

and the prosecution,
(e) it has substantial probative value in relation to an important matter in
issue between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
(2) Sections 102 to 106 contain provision supplementing subsection (1).
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an
application by the defendant to exclude it, it appears to the court that the
admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3) the court must
have regard, in particular, to the length of time between the matters to which
that evidence relates and the matters which form the subject of the offence
charged.

102 (NI art 7) ‘Important explanatory evidence’

For the purposes of section 101(1)(c) evidence is important explanatory

evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to
understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.

103 (NI art 8) ‘Matter in issue between the defendant and the prosecution’

(1) For the purposes of section 101(1)(d) the matters in issue between the
defendant and the prosecution include—
(a) the question whether the defendant has a propensity to commit
offences of the kind with which he is charged, except where his hav-
ing such a propensity makes it no more likely that he is guilty of the
offence;
(b) the question whether the defendant has a propensity to be untruthful,
except where it is not suggested that the defendant’s case is untruthful
in any respect.
(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences
of the kind with which he is charged may (without prejudice to any other
way of doing so) be established by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is
charged, or
(b) an offence of the same category as the one with which he is charged.

179
Appendix I

(3) Subsection (2) does not apply in the case of a particular defendant 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 for it to apply in his case.
(4) For the purposes of subsection (2)—
(a) two offences are of the same description as each other if the statement
of the offence in a written charge or indictment would, in each case,
be in the same terms;
(b) two offences are of the same category as each other if they belong to
the same category of offences prescribed for the purposes of this sec-
tion by an order made by the Secretary of State.
(5) A category prescribed by an order under subsection (4)(b) must consist of
offences of the same type.
(6) Only prosecution evidence is admissible under section 101(1)(d).
(7) Where—
(a) a defendant has been convicted of an offence under the law of any
country outside England and Wales (“the previous offence”), and
(b) the previous offence would constitute an offence under the law
of England and Wales (“the corresponding offence”) if it were done in
England and Wales at the time of the trial for the offence with which
the defendant is now charged (“the current offence”),
subsection (8) applies for the purpose of determining if the previous
offence and the current offence are of the same description or category.
(8) For the purposes of subsection (2)—
(a) the previous offence is of the same description as the current offence
if the corresponding offence is of that same description, as set out in
subsection (4)(a);
(b) the previous offence is of the same category as the current offence if
the current offence and the corresponding offence belong to the same
category of offences prescribed as mentioned in subsection (4)(b).
(9) For the purposes of subsection (10) “foreign service offence” means an
offence which—
(a) was the subject of proceedings under the service law of a country out-
side the United Kingdom, and
(b) would constitute an offence under the law of England and Wales or a
service offence (“the corresponding domestic offence”) if it were done
in England and Wales by a member of Her Majesty’s forces at the time
of the trial for the offence with which the defendant is now charged
(“the current offence”).
(10) Where a defendant has been found guilty of a foreign service offence
(“the previous service offence”), for the purposes of subsection (2)—
(a) the previous service offence is an offence of the same description as
the current offence if the corresponding domestic offence is of that
same description, as set out in subsection (4)(a);

180
Criminal Justice Act 2003 Part 11, Chapter 1

(b) the previous service offence is an offence of the same category as the
current offence if the current offence and the corresponding domes-
tic offence belong to the same category of offences prescribed as men-
tioned in subsection (4)(b).
(11) In this section—
“Her Majesty’s forces” has the same meaning as in the Armed Forces Act
2006;
“service law”, in relation to a country outside the United Kingdom, means
the law governing all or any of the naval, military or air forces of that
country.

104 (NI art 9) ‘Matter in issue between the defendant and a co-defendant’

(1) Evidence which is relevant to the question whether the defendant has a pro-
pensity to be untruthful is admissible on that basis under section 101(1)(e)
only if the nature or conduct of his defence is such as to undermine the co-
defendant’s defence.
(2) Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-
examinationby the co-defendant,
is admissible under section 101(1)(e).

105 (NI art 10) ‘Evidence to correct a false impression’

(1) For the purposes of section 101(1)(f)—

(a) the defendant gives a false impression if he is responsible for the mak-
ing of an express or implied assertion which is apt to give the court or
jury a false or misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative
value in correcting it.
(2) A defendant is treated as being responsible for the making of an assertion if—
(a) the assertion is made by the defendant in the proceedings (whether or
not in evidence given by him),
(b) the assertion was made by the defendant—
(i) on being questioned under caution, before charge, about the
offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he
might be prosecuted for it,
and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,

181
Appendix I

(d) the assertion is made by any witness in cross-examination in response

to a question asked by the defendant that is intended to elicit it, or is
likely to do so, or
(e) the assertion was made by any person out of court, and the defendant
adduces evidence of it in the proceedings.
(3) A defendant who would otherwise be treated as responsible for the making
of an assertion shall not be so treated if, or to the extent that, he withdraws it
or disassociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct
(other than the giving of evidence) in the proceedings, is seeking to give the
court or jury an impression about himself that is false or misleading, the
court may if it appears just to do so treat the defendant as being responsible
for the making of an assertion which is apt to give that impression.
(5) In subsection (4) ‘conduct’ includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than
is necessary to correct the false impression.
(7) Only prosecution evidence is admissible under section 101(1)(f).

106 (NI art 11) ‘Attack on another person’s character’

(1) For the purposes of section 101(1)(g) a defendant makes an attack on

another person’s character if—
(a) he adduces evidence attacking the other person’s character,
(b) he (or any legal representative appointed under section 38(4) of the
Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine
a witness in his interests) asks questions in cross-examination that are
intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the
defendant—
(i) on being questioned under caution, before charge, about the
offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he
might be prosecuted for it.
(2) In subsection (1) ‘evidence attacking the other person’s character’ means evi-
dence to the effect that the other person—
(a) has committed an offence (whether a different offence from the one
with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way;
and ‘imputation about the other person’ means an assertion to that effect.
(3) Only prosecution evidence is admissible under section 101(1)(g).

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107 (NI art 12) Stopping the case where evidence contaminated

(1) If on a defendant’s trial before a judge and jury for an offence—

(a) evidence of his bad character has been admitted under any of para-
graphs (c) to (g) of section 101(1), and
(b) the court is satisfied at any time after the close of the case for the
prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of
the evidence to the case against the defendant, his conviction
of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence
or, if it considers that there ought to be a retrial, discharge the jury.
(2) Where—
(a) a jury is directed under subsection (1) to acquit a defendant of an
offence, and
(b) the circumstances are such that, apart from this subsection, the defend-
ant could if acquitted of that offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the court is
satisfied as mentioned in subsection (1)(b) in respect of it.
(3) If—
(a) a jury is required to determine under section 4A(2) of the Criminal
Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an
indictment with an offence did the act or made the omission charged,
(b) evidence of the person’s bad character has been admitted under any of
paragraphs (c) to (g) of section 101(1), and
(c) the court is satisfied at any time after the close of the case for the
prosecution that—
(i) the evidence is contaminated, and
(ii) the contamination is such that, considering the importance of
the evidence to the case against the person, a finding that he
did the act or made the omission would be unsafe,
the court must either direct the jury to acquit the defendant of the
offence or, if it considers that there ought to be a rehearing, discharge
the jury.
(4) This section does not prejudice any other power a court may have to direct a
jury to acquit a person of an offence or to discharge a jury.
(5) For the purposes of this section a person’s evidence is contaminated where—
(a) as a result of an agreement or understanding between the person and
one or more others, or
(b) as a result of the person being aware of anything alleged by one or more
others whose evidence may be, or has been, given in the proceedings,
the evidence is false or misleading in any respect, or is different from what it
would otherwise have been.
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Appendix I

108 (NI art 13) Offences committed by defendant when a child

(1) Section 16(2) and (3) of the Children and Young Persons Act 1963 (c. 37)
(offences committed by person under 14 disregarded for purposes of evi-
dence relating to previous convictions) shall cease to have effect.
(2) In proceedings for an offence committed or alleged to have been commit-
ted by the defendant when aged 21 or over, evidence of his conviction for
an offence when under the age of 14 is not admissible unless—
(a) both of the offences are triable only on indictment, and
(b) the court is satisfied that the interests of justice require the evidence
to be admissible.
(2A) Subsection (2B) applies where—
(a) the defendant has been convicted of an offence under the law of any
country outside England and Wales (“the previous offence”), and
(b) the previous offence would constitute an offence under the law
of England and Wales (“the corresponding offence”) if it were done
in England and Wales at the time of the proceedings for the offence
with which the defendant is now charged.
(2B) For the purposes of subsection (2), the previous offence is to be regarded
as triable only on indictment if the corresponding offence is so triable.
(3) Subsection (2) applies in addition to section 101.

109 (NI art 14) Assumption of truth in assessment of relevance or probative

value

(1) Subject to subsection (2), a reference in this Chapter to the relevance or pro-
bative value of evidence is a reference to its relevance or probative value on
the assumption that it is true.
(2) In assessing the relevance or probative value of an item of evidence for any
purpose of this Chapter, a court need not assume that the evidence is true if
it appears, on the basis of any material before the court (including any evi-
dence it decides to hear on the matter), that no court or jury could reason-
ably find it to be true.

110 (NI art 15) Court’s duty to give reasons for rulings
(1) Where the court makes a relevant ruling—
(a) it must state in open court (but in the absence of the jury, if there is
one) its reasons for the ruling;
(b) if it is a magistrates’ court, it must cause the ruling and the reasons for
it to be entered in the register of the court’s proceedings.

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Criminal Justice Act 2003 Part 11, Chapter 1

(2) In this section ‘relevant ruling’ means—

(a) a ruling on whether an item of evidence is evidence of a person’s bad
character;
(b) a ruling on whether an item of such evidence is admissible under sec-
tion 100 or 101 (including a ruling on an application under section
101(3));
(c) a ruling under section 107.

111 (NI art 16) Rules of court

(1) Rules of court may make such provision as appears to the appropriate
authority to be necessary or expedient for the purposes of this Act; and the
appropriate authority is the authority entitled to make the rules.
(2) The rules may, and, where the party in question is the prosecution, must,
contain provision requiring a party who—
(a) proposes to adduce evidence of a defendant’s bad character, or
(b) proposes to cross-examine a witness with a view to eliciting such
evidence,
to serve on the defendant such notice, and such particulars of or relating to
the evidence, as may be prescribed.
(3) The rules may provide that the court or the defendant may, in such circum-
stances as may be prescribed, dispense with a requirement imposed by virtue
of subsection (2).
(4) In considering the exercise of its powers with respect to costs, the court
may take into account any failure by a party to comply with a requirement
imposed by virtue of subsection (2) and not dispensed with by virtue of
subsection (3).
(5) The rules may—
(a) limit the application of any provision of the rules to prescribed
circumstances;
(b) subject any provision of the rules to prescribed exceptions;
(c) make different provision for different cases or circumstances.
(6) Nothing in this section prejudices the generality of any enactment confer-
ring power to make rules of court; and no particular provision of this section
prejudices any general provision of it.
(7) In this section “prescribed” means prescribed by rules of court.

112 (NI art 17) Interpretation of Chapter 1

(1) In this Chapter—

“bad character”is to be read in accordance with section 98;

185
Appendix I

“criminal proceedings” means criminal proceedings in relation to which the

strict rules of evidence apply;
“defendant”, in relation to criminal proceedings, means a person charged
with an offence in those proceedings; and “co-defendant”, in relation to a
defendant, means a person charged with an offence in the same proceedings;
“important matter” means a matter of substantial importance in the context
of the case as a whole;
“misconduct” means the commission of an offence or other reprehensible
behaviour;
“offence” includes a service offence;
“probative value”, and “relevant” (in relation to an item of evidence), are to
be read in accordance with section 109;
“prosecution evidence” means evidence which is to be (or has been) adduced
by the prosecution, or which a witness is to be invited to give (or has given)
in cross-examination by the prosecution;
“service offence” has the same meaning as in the Armed Forces Act 2006;
“written charge” has the same meaning as in section 29 and also includes an
information.
(2) Where a defendant is charged with two or more offences in the same crimi-
nal proceedings, this Chapter (except section 101(3)) has effect as if each
offence were charged in separate proceedings; and references to the offence
with which the defendant is charged are to be read accordingly.
(3) Nothing in this Chapter affects the exclusion of evidence—
(a) under the rule in section 3 of the Criminal Procedure Act 1865 (c. 18)
against a party impeaching the credit of his own witness by general
evidence of bad character,
(b) under section 41 of the Youth Justice and Criminal Evidence Act 1999
(c. 23) (restriction on evidence or questions about complainant’s
sexual history), or
(c) on grounds other than the fact that it is evidence of a person’s bad
character.

113 Armed forces

Schedule 6 (armed forces) has effect.

186
Appendix II

The Criminal Justice Act 2003 (Categories of Offences)

Order 2004, SI 2004 No. 3346
Made 15th December 2004
Coming into force 29th December 2004

The Secretary of State, in exercise of the powers conferred upon him by section
103(4)(b) of the Criminal Justice Act 20031 hereby makes the following Order, a
draft of which has been laid before and approved by a resolution of each House
of Parliament:
1.—(1)This Order may be cited as the Criminal Justice Act 2003 (Categories
of Offences) Order 2004 and shall come into force 14 days after the day on which
it is made or on the day that sections 98 to 110 of the 2003 Act (Evidence of Bad
Character) come into force, whichever is later.
(2) In this Order ‘the 2003 Act’ means the Criminal Justice Act 2003.
2.—(1) The categories of offences set out in Parts 1 and 2 of the Schedule to this
Order are hereby prescribed for the purposes of section 103(4)(b) of the 2003 Act.
(2) Two offences are of the same category as each other if they are included in
the same Part of the Schedule.
Scotland of Asthal Q.C.
Minister of State
Home Office
15th December 2004

SCHEDULE

Article 2
Prescribed Categories of Offences

Part 1 Theft Category

1. An offence under section 1 of the Theft Act 19682 (theft).

2. An offence under section 8 of that Act (robbery).

1 2003 c.44.
2 1968 c.60.

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Appendix II

3. An offence under section 9(1)(a) of that Act3 (burglary) if it was committed

with intent to commit an offence of stealing anything in the building or part of a
building in question.
4. An offence under section 9(1)(b) of that Act (burglary) if the offender stole
or attempted to steal anything in the building or that part of it.
5. An offence under section 10 of that Act (aggravated burglary) if the offender
committed a burglary described in paragraph 3 or 4 of this Part of the Schedule.
6. An offence under section 12 of that Act4 (taking motor vehicle or other con-
veyance without authority).
7. An offence under section 12A of that Act5 (aggravated vehicle-taking).
8. An offence under section 22 of that Act (handling stolen goods).
9. An offence under section 25 of that Act (going equipped for stealing).
10. An offence under section 3 of the Theft Act 19786 (making off without
payment).
11. An offence of—
(a) aiding, abetting, counselling, procuring or inciting the commission of an
offence specified in this Part of this Schedule; or
(b) attempting to commit an offence so specified.

Part 2 Sexual Offences (Persons Under the Age of 16) Category

1. An offence under section 1 of the Sexual Offences Act 19567 (rape) if it was
committed in relation to a person under the age of 16.
2. An offence under section 5 of the Sexual Offences Act 19568 (intercourse with
a girl under thirteen).
3. An offence under section 6 of that Act9 (intercourse with a girl under sixteen).

3 Section 9 was amended by sections 139 and 140 of and paragraph 17 of Schedule 6 and Schedule 7

to the Sexual Offences Act 2003 (c.42); section 26(2) of the Criminal Justice Act 1991 (c.53) and
section 168(2) and paragraph 26 of Schedule 10 to the Criminal Justice and Public Order Act 1994
(c.33).
4 Section 12 was amended by section 37(1) of the Criminal Justice Act 1988 (c.33); section 119(2)

and Part I of Schedule 7 to the Police and Criminal Evidence Act 1984 (c.60); section 37 of the Vehicles
(Crime) Act 2001 (c.3).
5 Section 12A was inserted by section 2(1) of the Aggravated Vehicle-Taking Act 1992 (c.11) and was

amended by section 285(1) of the Criminal Justice Act 2003 (c. 44).
6 1978 c. 31.
7 1956 c.69; section 1 was substituted by section 142 of the Criminal Justice and Public Order Act

1994 (c.33).
8 Sections 5 to 7 and 10 to 15 of the Sexual Offences Act 1956 (c.69); section 54 of the Criminal

Law Act 1977 (c.45); section 1 of the Indecency with Children Act 1960 (c.33); section 128 of the
Mental Health Act 1959 (c.72) and section 3 of the Sexual Offences (Amendment) Act 2000 (c.44) were
repealed by sections 139 and 140 of and paragraph 11(a) of Schedule 6 and Schedule 7 to the Sexual
Offences Act 2003 (c.42).
9 Section 6 was amended by section 10(1) and paragraph 14 of Schedule 2 to the Criminal Law Act

1967 (c. 80).

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Criminal Justice Act 2003 (Categories of Offences) Order 2004, SI 2004 No.3346

4. An offence under section 7 of that Act10 (intercourse with a defective) if it

was committed in relation to a person under the age of 16.
5. An offence under section 10 of that Act (incest by a man) if it was commit-
ted in relation to a person under the age of 16.
6. An offence under section 11 of that Act (incest by a woman) if it was com-
mitted in relation to a person under the age of 16.
7. An offence under section 12 of that Act11 (buggery) if it was committed in
relation to a person under the age of 16.
8. An offence under section 13 of that Act12 (indecency between men) if it was
committed in relation to a person under the age of 16.
9. An offence under section 14 of that Act (indecent assault on a woman) if it
was committed in relation to a person under the age of 16.
10. An offence under section 15 of that Act (indecent assault on a man) if it was
committed in relation to a person under the age of 16.
11. An offence under section 128 of the Mental Health Act 195913 (sexual
intercourse with patients) if it was committed in relation to a person under the
age of 16.
12. An offence under section 1 of the Indecency with Children Act 196014
(indecent conduct towards young child).
13. An offence under section 54 of the Criminal Law Act 197715 (inciting a girl
under 16 to have incestuous sexual intercourse).
14. An offence under section 3 of the Sexual Offences (Amendment) Act 200016
(abuse of a position of trust) if it was committed in relation to a person under the
age of 16.
15. An offence under section 1 of the Sexual Offences Act 200317 (rape) if it was
committed in relation to a person under the age of 16.
16. An offence under section 2 of that Act (assault by penetration) if it was com-
mitted in relation to a person under the age of 16.
17. An offence under section 3 of that Act (sexual assault) if it was committed in
relation to a person under the age of 16.

10 Section 7 was substituted by section 127(1)(a) of the Mental Health Act 1959 (c.72).
11 Section 12 was amended by section 143 of the Criminal Justice and Public Order Act 1994 (c.33);
sections 1 and 2 of the Sexual Offences (Amendment) Act 2000 (c.44) and section 119 of and Part V of
Schedule 6 to the Police and Criminal Evidence Act 1984 (c.60).
12 Section 13 was amended by section 2(2) of the Sexual Offences (Amendment) Act 2000 (c.44).
13 1959 c.72; section 128 was amended by section 129 of and paragraph 29 of Schedule 15 and

Schedule 16 to the National Health Service Act 1977 (c.49); section 148 of and paragraph 15 of
Schedule 3 to the Mental Health Act 1983 (c.20); and section 57 of and paragraph 2 of Schedule 1 to
the Registered Homes Act 1984 (c.23) and section 116 of and paragraph 2 of Schedule 4 to the Care
Standards Act 2000 (c.14).
14 1960 c.33; section 1 was amended by section 39 of the Criminal Justice and Court Services Act

2000 (c.43) and section 52 of the Crime (Sentences) Act 1997 (c.44).
15 1977 (c.45); section 54 was amended by section 119(2) and Schedule 7 to the Police and Criminal

Evidence Act 1984 (c.60).

16 2000 c.44.
17 2003 c.42.

189
Appendix II

18. An offence under section 4 of that Act (causing a person to engage in sexual
activity without consent) if it was committed in relation to a person under the age
of 16.
19. An offence under section 5 of the Sexual Offences Act 2003 (rape of a child
under 13).
20. An offence under section 6 of that Act (assault of a child under 13 by
penetration).
21. An offence under section 7 of that Act (sexual assault of a child under 13).
22. An offence under section 8 of that Act (causing or inciting a child under 13
to engage in sexual activity).
23. An offence under section 9 of that Act (sexual activity with a child).
24. An offence under section 10 of that Act (causing or inciting a child to engage
in sexual activity).
25. An offence under section 14 of that Act if doing it will involve the commis-
sion of an offence under sections 9 and 10 of that Act (arranging or facilitating the
commission of a child sex offence).
26. An offence under section 16 of that Act (abuse of position of trust: sexual
activity with a child) if it was committed in relation to a person under the age
of 16.
27. An offence under section 17 of that Act (abuse of position of trust: causing
or inciting a child to engage in sexual activity) if it was committed in relation to a
person under the age of 16.
28. An offence under section 25 of that Act (sexual activity with a child family
member) if it was committed in relation to a person under the age of 16.
29. An offence under section 26 of that Act (inciting a child family member to
engage in sexual activity) if it was committed in relation to a person under the age
of 16.
30. An offence under section 30 of that Act (sexual activity with a person with
a mental disorder impeding choice) if it was committed in relation to a person
under the age of 16.
31. An offence under section 31 of that Act (causing or inciting a person with a
mental disorder impeding choice to engage in sexual activity) if it was committed
in relation to a person under the age of 16.
32. An offence under section 34 of that Act (inducement, threat, or deception
to procure activity with a person with a mental disorder) if it was committed in
relation to a person under the age of 16.
33. An offence under section 35 of that Act (causing a person with a mental
disorder to engage in or agree to engage in sexual activity by inducement, threat or
deception) if it was committed in relation to a person under the age of 16.
34. An offence under section 38 of that Act (care workers: sexual activity with a
person with a mental disorder) if it was committed in relation to a person under
the age of 16.
35. An offence under section 39 of that Act (care workers: causing or inciting
sexual activity) if it was committed in relation to a person under the age of 16.
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Criminal Justice Act 2003 (Categories of Offences) Order 2004, SI 2004 No.3346

36. An offence of—

(a) aiding, abetting, counselling, procuring or inciting the commission of an
offence specified in this Part of this Schedule; or
(b) attempting to commit an offence so specified.

EXPLANATORY NOTE

(This note is not part of the Order)

Section 103(2)(b) of the Criminal Justice Act 2003 provides that a defendant’s
propensity to commit offences of the kind with which he is charged may (without
prejudice to any other way of doing so) be established by evidence that he has
been convicted of an offence of the same category as the one with which he is
charged. Section 103(4)(b) provides that two offences are of the same category as
each other if they belong to the same category of offences prescribed for the pur-
poses of that section by an order made by the Secretary of State.
The categories prescribed by this Order are theft and sexual offences (persons
under the age of 16). Each category consists of offences of the same type.

191
Appendix III

The Criminal Procedure Rules October 2015

PART 211 EVIDENCE OF BAD CHARACTER

Contents of this Part

When this Part applies rule 21.1
Content of application or notice rule 21.2
Application to introduce evidence of a non-defendant’s bad character rule 21.3
Notice to introduce evidence of a defendant’s bad character rule 21.4
Reasons for decisions rule 21.5
Court’s power to vary requirements under this Part rule 21.6

When this Part applies

21.1. This Part applies—
(a) in a magistrates’ court and in the Crown Court;
(b) where a party wants to introduce evidence of bad character, within the
meaning of section 98 of the Criminal Justice Act 2003.

Content of application or notice

21.2.—(1) A party who wants to introduce evidence of bad character must—
(a) make an application under rule 21.3, where it is evidence of a non-defendant’s
bad character;
(b) give notice under rule 21.4, where it is evidence of a defendant’s bad character.
(2) An application or notice must—
(a) set out the facts of the misconduct on which that party relies,
(b) explain how that party will prove those facts (whether by certificate of con-
viction, other official record, or other evidence), if another party disputes
them, and
(c) explain why the evidence is admissible.

1 The Rules are reproduced here without the notes and references that appear in the official version,

which can be found online at www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/crim-

proc-rules-2015-part-21.pdf.

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The Criminal Procedure Rules October 2015

Application to introduce evidence of a non-defendant’s bad character

21.3.—(1) This rule applies where a party wants to introduce evidence of the bad
character of a person other than the defendant.
(2) That party must serve an application to do so on—
(a) the court officer; and
(b) each other party.
(3) The applicant must serve the application—
(a) as soon as reasonably practicable; and in any event
(b) not more than 14 days after the prosecutor discloses material on which the
application is based (if the prosecutor is not the applicant).
(4) A party who objects to the introduction of the evidence must—
(a) serve notice on—
(i) the court officer, and
(ii) each other party
not more than 14 days after service of the application; and
(b) in the notice explain, as applicable
(i) which, if any, facts of the misconduct set out in the application that
party disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible, and
(iv) any other objection to the application.
(5) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless each party other than the
applicant—
(i) is present, or
(ii) has had at least 14 days in which to serve a notice of objection;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980(a) (ruling at pre-trial
hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987(b), or section 31 or 40 of
the Criminal Procedure and Investigations Act 1996(c) (ruling at pre-
paratory or other pre-trial hearing in the Crown Court).

193
Appendix III

Notice to introduce evidence of a defendant’s bad character

21.4.—(1) This rule applies where a party wants to introduce evidence of a
defendant’s bad character.
(2) A prosecutor or co-defendant who wants to introduce such evidence must
serve notice on—
(a) the court officer; and
(b) each other party.
(3) A prosecutor who wants to introduce such evidence must serve the notice
not more than—
(a) 28 days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 14 days after the defendant pleads not guilty, in the Crown Court.
(4) A co-defendant who wants to introduce such evidence must serve the
notice—
(a) as soon as reasonably practicable; and in any event
(b) not more than 14 days after the prosecutor discloses material on which the
notice is based.
(5) A party who objects to the introduction of the evidence must—
(a) apply to the court to determine the objection;
(b) serve the application on—
(i) the court officer, and
(ii) each other party
not more than 14 days after service of the notice; and
(c) in the application explain, as applicable—
(i) which, if any, facts of the misconduct set out in the notice that party
disputes,
(ii) what, if any, facts of the misconduct that party admits instead,
(iii) why the evidence is not admissible,
(iv) why it would be unfair to admit the evidence, and
(v) any other objection to the notice.
(6) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless the party who served the notice—
(i) is present, or
(ii) has had a reasonable opportunity to respond;
(c) may adjourn the application; and

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The Criminal Procedure Rules October 2015

(d) may discharge or vary a determination where it can do so under—

(i) section 8B of the Magistrates’ Courts Act 1980 (ruling at pre-trial
hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987, or section 31 or 40 of the
Criminal Procedure and Investigations Act 1996 (ruling at prepara-
tory or other pre-trial hearing in the Crown Court).
(7) A party entitled to receive a notice may waive that entitlement by so
informing—
(a) the party who would have served it; and
(b) the court.
(8) A defendant who wants to introduce evidence of her or her own bad
character must—
(a) give notice, in writing or orally—
(i) as soon as reasonably practicable, and in any event
(ii) before the evidence is introduced, either by the defendant or in reply
to a question asked by the defendant or another party’s witness in
order to obtain that evidence;
and
(b) in the Crown Court, at the same time give notice (in writing, or orally) of any
direction about the defendant’s character that the defendant wants the court
to give the jury under rule 25.14 (Directions to the jury and taking the verdict)

Reasons for decisions

21.5. The court must announce at a hearing in public (but in the absence of the
jury, if there is one) the reasons for a decision—
(a) to admit evidence as evidence of bad character, or to refuse to do so; or
(b) to direct an acquittal or a retrial under section 107 of the Criminal Justice
Act 2003.

Court’s power to vary requirements under this Part

21.6.—(1) The court may—

(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the
Practice Direction, or to be made or given orally;
(c) dispense with a requirement for notice to introduce evidence of a defend-
ant’s bad character.
(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.
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Appendix III

APPLICATION TO INTRODUCE EVIDENCE OF A NON-DEFENDANT’S2

BAD CHARACTER
(Criminal Procedure Rules, rule 21.3)

Case details
Name of defendant:
Court:
Case reference number:
Charge(s):

This is an application by [the prosecutor]

[ .............................................................(name of defendant)]
I want to introduce evidence of the bad character of .....................................
(non-defendant’s name) on the following ground(s) in the Criminal Justice
Act 2003:
 it is important explanatory evidence: s.100(1)(a).
 it has substantial probative value in relation to a matter which:
(a) is a matter in issue in the proceedings, and
(b) is of substantial importance in the context of the case as a whole:
s.100(1)(b).
How to use this form
1. Complete the boxes above and give the details required in the boxes below.
If you use an electronic version of this form, the boxes will expand. If you
use a paper version and need more space, you may attach extra sheets.
2. Sign and date the completed form.
3. Send a copy of the completed form to:
(a) the court, and
(b) each other party to the case.
Notes:
1.
You must send this form so as to reach the recipients within the time
prescribed by Criminal Procedure Rule 21.3(3). The court may extend that
time limit, but if you are late you must explain why.
2. A party who objects to the introduction of the evidence must serve notice
under Criminal Procedure Rule 21.3(4) not more than 14 days after ser-
vice of this application.

2 Available online at www.justice.gov.uk/courts/procedure-rules/criminal/forms-2015#Anchor5.

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1) Facts of the misconduct. If the misconduct is a previous conviction, explain

whether you rely on (a) the fact of that conviction, or (b) the circumstances of
that offence. If (b), set out the facts on which you rely.

2) How you will prove those facts, if in dispute. A party who objects to the
introduction of the evidence must explain which, if any, of the facts set out
above are in dispute. Explain in outline on what you will then rely to prove those
facts, e.g. whether you rely on (a) a certificate of conviction, (b) another official
record (and if so, which), or (c) other evidence (and if so, what).

3) Reasons why the evidence is admissible. Explain why the evidence is admis-
sible, by reference to the provision(s) of the Criminal Justice Act 2003 on which
you rely.

4) Reasons for any extension of time required. If this application is served late,
explain why.

Signed:................................................................................................[prosecutor]
[defendant / defendant’s solicitor]
Date:..............................................

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Appendix III

NOTICE OBJECTING TO EVIDENCE OF A NON-DEFENDANT’S

BAD CHARACTER3
(Criminal Procedure Rules, rule 21.3(4))

Case details
Name of defendant:
Court:
Case reference number:
Charge(s):

This notice is given by [the prosecutor]

[ ................................................... (name of defendant)]
I object to the introduction of the evidence which [the prosecutor]
[ ........................................ (name of co-defendant)] applied to introduce
on…………. (date) because:
 that evidence is not admissible.
 I object to the application for the other reason(s) explained below.

How to use this form

1. Complete the boxes above and give the details required in the boxes
below. If you use an electronic version of this form, the boxes will expand.
If you use a paper version and need more space, you may attach extra sheets.
2. Sign and date the completed form.
3. Send a copy of the completed form to:
(a) the court, and
(b) each other party to the case.
Note:
You must send this form so as to reach the recipients not more than 14 days after
service of the application to which you object. The court may extend that time
limit, but if you are late you must explain why.

3 Available online at www.justice.gov.uk/courts/procedure-rules/criminal/forms-2015#Anchor5.

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1) Facts of the misconduct in dispute. Whatever reasons you have for objecting
to the application, explain (a) which, if any, facts of the misconduct set out in it
you dispute, and (b) what, if any, facts you admit instead.

2) Reasons for objecting to the application. Explain, as applicable:

(a) why the bad character evidence is not admissible, by reference to the
provision(s) of the Criminal Justice Act 2003 relied on in the application.
(b) what other objection you have to the application.

3) Reasons for any extension of time required. If this notice is served late,
explain why.

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Appendix III

NOTICE TO INTRODUCE EVIDENCE OF A DEFENDANT’S

BAD CHARACTER4
(Criminal Procedure Rules, rule 21.4(2))

Case details
Name of defendant:
Court:
Case reference number:
Charge(s):

This notice is given by [the prosecutor]

[............................................................... (name of co-defendant)]
I want to introduce evidence of the bad character of ...............................
(defendant’s name) on the following ground(s) in the Criminal Justice Act
2003:
 it is important explanatory evidence: s.101(1)(c).
 i t is relevant to an important matter in issue between that defendant and
the prosecution: s.101(1)(d).
 it has substantial probative value in relation to an important matter in
issue between that defendant and a co-defendant: s.101(1)(e).
 it is evidence to correct a false impression given by that defendant:
s.101(1)(f).
 that defendant has made an attack on another person’s character:
s.101(1)(g).
How to use this form
1. Complete the boxes above and give the details required in the boxes
below. If you use an electronic version of this form, the boxes will expand.
If you use a paper version and need more space, you may attach extra sheets.
2. Sign and date the completed form.
3. Send a copy of the completed form to:
(a) the court, and
(b) each other party to the case.

4 Available online at www.justice.gov.uk/courts/procedure-rules/criminal/forms-2015#Anchor5.

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Notes:
1.
You must send this form so as to reach the recipients within the time pre-
scribed by Criminal Procedure Rule 21.4(3) or (4). The court may extend
that time limit, but if you are late you must explain why.
2.
A party who objects to the introduction of the evidence must apply to the
court under Criminal Procedure Rule 21.4(5) not more than 14 days after
service of this notice.

1) Facts of the misconduct. If the misconduct is a previous conviction, explain

whether you rely on (a) the fact of that conviction, or (b) the circumstances of
that offence. If (b), set out the facts on which you rely.

3) Reasons why the evidence is admissible. Explain why the evidence is admis-
sible, by reference to the provision(s) of the Criminal Justice Act 2003 on which
you rely.

4) Reasons for any extension of time required. If this notice is served late,
explain why.

Signed:................................................................................................[prosecutor]
[co-defendant / co-defendant’s solicitor]
Date:.....................................

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Appendix III

APPLICATION TO EXCLUDE EVIDENCE OF A DEFENDANT’S

BAD CHARACTER5
(Criminal Procedure Rules, rule 21.4(5))

Case details
Name of defendant:
Court:
Case reference number:
Charge(s):

This is an application by [the prosecutor]

[............................................................... (name of defendant)]
I object to the introduction of the evidence of which [the prosecutor]
[.............................. (name of co-defendant)] served notice on....................
(date) because:
 that evidence is not admissible.
 I am the defendant named in that notice and it would be unfair to admit
that evidence.
 I object to the notice for the other reason(s) explained below.
How to use this form
1. Complete the boxes above and give the details required in the boxes
below. If you use an electronic version of this form, the boxes will expand. If
you use a paper version and need more space, you may attach extra sheets.
2. Sign and date the completed form.
3. Send a copy of the completed form to:
(a) the court, and
(b) each other party to the case.
Note:
You must send this form so as to reach the recipients not more than 14 days after
service of the notice to which you object. The court may extend that time limit,
but if you are late you must explain why.

5 Available online at www.justice.gov.uk/courts/procedure-rules/criminal/forms-2015#Anchor5.

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1) Facts of the misconduct in dispute. Whatever reasons you have for objecting
to the notice, explain (a) which, if any, facts of the misconduct set out in it you
dispute, and (b) what, if any, facts you admit instead.

2) Reasons for objecting to the notice. Explain, as applicable:

(a) why the bad character evidence is not admissible, by reference to the
provision(s) of the Criminal Justice Act 2003 relied on in the notice.
(b) if you are the defendant named in the notice, why it would be unfair to
admit the evidence. (You can object on this ground under section 101(3)
of the Criminal Justice Act 2003 only if the notice gives as grounds for
admitting the evidence (i) that it is relevant to an important matter in
issue between you and the prosecution, or (ii) that you have made an
attack on another person’s character.)
(c) what other objection you have to the notice.

3) Reasons for any extension of time required. If this application is served late,
explain why.

Signed:...............................................................................................[prosecutor]
[defendant / defendant’s solicitor]
Date:...........................................

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Appendix IV

Excerpts from the Crown Court Bench Book Compendium (Sir David Maddison,
Professor David Ormerod, HHJ Tonking and HHJ wait)*

11. GOOD CHARACTER OF A DEFENDANT

ARCHBOLD 4-484; BLACKSTONE’S F13.3 TO F13.6; CrimPD 66
Legal Summary
1. For centuries it has been accepted that evidence of the accused’s good charac-
ter is admissible in criminal trials. In the modern era the courts have accepted
that good character evidence may admissible (i) to bolster the accused’s cred-
ibility and (ii) as relevant to the likelihood of guilt. This has been repeatedly
accepted by the Court of Appeal, most prominently in Vye1 and by the House
of Lords in Aziz2 and by the 5 member Court of Appeal in Hunter.3
2. The words of Lord Steyn in Aziz should always be borne in mind: judges
“should never be compelled to give meaningless or absurd directions.” No
direction should be given if it is “an insult to common sense” or misleading.
3. Whenever a direction is given the judge must adopt an appropriate form of
words to convey the significance of the evidence of good character.
4. In Hunter the Court states the principles derived from Vye4 and Aziz5 by which
it remains bound.
“a) The general rule is that a direction as to the relevance of good character to a
defendant’s credibility is to be given where a defendant has a good character
and has testified or made pre-trial statements [‘credibility limb’].
b) The general rule is that a direction as to the relevance of a good character to
the likelihood of a defendant’s having committed the offence charged is to be
given where a defendant has a good character whether or not he has testified
or made pre-trial answers or statements. [‘propensity limb’]
c) Where defendant A, of good character, is tried jointly with B who does not
have a good character, a) and b) still apply.
d) There are exceptions to the general rule for example where a defendant has
no previous convictions but has admitted other reprehensible conduct and

* Reproduced by kind permission of the authors.

1 [1993] 1 WLR 471.
2 [1996] AC 41.
3 [2015] EWCA Crim 631.
4 and others [1993] 1 WLR 471; [1993] 3 All ER 241; [1993] 97 CrAppR 134.
5 [1996] AC 41.

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The Crown Court Bench Book Compendium

the judge considers it would be an insult to common sense to give directions

in accordance with Vye. The judge then has a residual discretion to decline to
give a good character direction.
e) A jury must not be misled.
f) A judge is not obliged to give absurd or meaningless directions.” [68]
5. It is also important to note what Vye and Aziz did not decide:
a) that a defendant with no previous convictions is always entitled to a full
good character direction whatever his character;
b) that a defendant with previous convictions is entitled to good character
directions;
c) that a defendant with previous convictions is entitled to the propensity limb
of the good character directions on the basis he has no convictions similar or
relevant to those charged;
d) that a defendant with previous convictions is entitled to a good character
direction where the prosecution do not seek to rely upon the previous convic-
tions as probative of guilt.
e) that the failure to give a good character direction will almost invariably lead
to a quashing of the conviction;” [69]
6. The Court offered guidance as to the approach to be adopted, identifying 5
categories relating to good character: see paragraph 10 below.
7. If defence advocates do not take a point on the character directions at trial
and or if they agree with the judge’s proposed directions which are then given,
these are good indications that nothing was amiss. [98]
8. The Court noted, per curiam: “as a matter of good practice, if not a rule, defend-
ants should put the court on notice as early as possible that character and char-
acter directions are an issue that may need to be resolved. The judge can then
decide whether a good character direction would be given and if so the precise
terms. This discussion should take place before the evidence is adduced. This has
advantages for the court and for the parties: the defence will be better informed
before the decision is made whether to adduce the evidence, the Crown can con-
duct any necessary checks and the judge will have the fullest possible information
upon which to rule. The judge should then ensure that the directions given accord
precisely with their ruling.”[101]
9. Where there are co-Ds whose character may warrant a different direction
from that of the accused, two situations arise:
(1) If D1 merits a good character direction and D2 has a bad character
(whether the jury have heard about it or not) it is incumbent on the
judge to direct the jury about D1’s good character: Cain.6
(2) If D1 merits a good character direction and D2 does not qualify for a
good character direction (but nor has his bad character been revealed).
There is a danger in this situation that a good character direction given

6 [1994] 1 WLR 1449.

205
Appendix IV

in relation to D1 alone will lead the jury to speculate and conclude that
D2 is likely to have a bad character. It is nevertheless incumbent on the
judge to give the good character direction to D1, although the judge then
has discretion as to what to say about D2. In most situations a warning
against speculation is appropriate.

Directions
10. All directions on this topic must be crafted in accordance with the law as set
out in the case of Hunter.7 Hallett LJ VP gave the judgment of the Court. In
paragraphs 76 to 88, from which the italicised passages below are citations,
she set out the need or potential need for directions as to good character in
the following five categories. The italicised passages in the paragraphs below
are quotations from the judgment in Hunter:
(1) Absolute good character: This category applies where “a defendant …
has no previous convictions or cautions … and no other reprehensible con-
duct alleged, admitted or proven”, whether or not he has adduced evi-
dence of positive good character.
It is only in this category that there is a requirement upon the trial
Judge to give a full good character direction i.e. one containing both the
“credibility limb” (if D has given evidence or made an out of court state-
ment on which he relies) and the “propensity limb” (see paragraph 2(b)
below). ”The judge must tailor the terms of the direction to the case before
him/her, but in the name of consistency, we commend the Judicial College
standard direction in the Crown Court Bench Book8 as a basis”.
See Examples 1 and 2 below. Example 1 replicates this standard direction
verbatim. Example 2 and the subsequent examples use it as a basis.
(2) Effective good character: Where “a defendant has previous convictions
or cautions recorded which are old, minor and have no relevance to the
charge, the judge must make a judgement as to whether or not to treat the
defendant as a person of effective good character … It is for the judge to
make a judgement, by assessing all the circumstances of the offence/s and
the offender, to the extent known, and then deciding what fairness to all
dictates … If the judge decides to treat a defendant as a person of effective
good character … s/he must give both limbs of the direction, modified as
necessary to reflect the other matters and thereby ensure that the jury is not
misled”. See Example 3 below.

7 [2015] EWCA Crim 631.

8 The Crown Court Bench Book: Directing the Jury—March 2010.

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The Crown Court Bench Book Compendium

(3) Previous convictions/cautions adduced under [section 101(1)(b) CJA

2003] by the defence:
“Defendants frequently adduce previous convictions or cautions … which
are not in the same category as the offence alleged, in the hope of obtaining
a good character direction on propensity from the judge.”
A defendant in this position has no entitlement to either limb of the
good character direction. The judge has a broad “open textured” discre-
tion whether or not to give any good character direction, and if so in
what terms. See Example 4 below, in which only the “propensity limb”
is referred to.
(4) Bad character adduced under section 101 relied on by the prosecution:
“Where a defendant has no previous convictions or cautions, but evidence
is admitted and relied on by the Crown of other misconduct, the judge is
obliged to give a bad character direction. S/he may consider that as a matter
of fairness they should weave into their remarks a modified good character
direction …This too is a broad discretion … Where the defendant has pre-
vious convictions and bad character is relied upon it is difficult to envisage
a good character direction that would not offend the absurdity principle.”
(5) Bad character adduced by the defence under section 101 and not relied
on by the prosecution:
“That leaves the category of defendants who have no previous convictions
but who admit reprehensible conduct that is not relied on by the Crown
as probative of guilt.” As in categories (3) and (4) above, the judge has a
broad “open textured” discretion whether or not to give any good char-
acter direction, and if so in what terms.
11. A full good character direction is as follows:
(1) Good character is not a defence to the charge.
(2) However, evidence of good character counts in D’s favour in two ways:
(a) his good character supports his credibility and so is something
which the jury should take into account when deciding whether
they believe his evidence (the ‘credibility limb’); and
(b) his good character may mean that he is less likely to have commit-
ted the offence with which he is charged (the ‘propensity limb’).
(3) It is for the jury to decide what weight they give to the evidence of good
character, taking into account everything they have heard about the
defendant.
12. Where D is of good character but has not given evidence, he is entitled to a
full good character direction if he has made an out of court statement (usu-
ally to the police) on which he relies, and to a good character direction lim-
ited to the “propensity limb” if he has not made such a statement.

207
Appendix IV

13. It will be necessary to give the jury a direction at some stage of the summing
up about the inferences that may, or must not, be drawn from D’s not having
given evidence: see Chapter 17-5. See Examples 5 and 6 below.
14. Where the prosecution relies on disputed evidence of previous misconduct
on the part of a defendant otherwise entitled to a good character direction,
the judge should direct the jury that:
(1) if they are sure the evidence is true, they may take it into account as evi-
dence of bad character, adding an appropriate bad character direction
(as to which see Chapter 12 below); whereas
(2) if they are not sure the evidence is true, they should disregard it, adding
an appropriate good character direction.
See Example 7 below.
15. A good character direction must never mislead the jury or lead to absurdity.
16. The judge should discuss with the advocates, in the absence of the jury and
before closing speeches, the need for and form of any good (and bad) char-
acter direction to be given.
17. If a defendant who receives a good character direction has a co-defendant
about whom there is no evidence of character the Judge should discuss with
the advocate for the co-defendant, whether the jury should be directed “not
to speculate” about his character (see Example 8 below) or whether, as will
commonly be the preferred option, no direction should be given. Practices
differ as to whether, if given at all, to give such a direction immediately after
the good character direction or at some different point of the summing up.
It is suggested that juries will have recognised by this stage of the case that
whereas they have evidence about one defendant’s good character they know
nothing about the character of a co-defendant, and so any direction can
properly be given immediately after the good character direction.

Example 1: [category (1) above]: Standard direction—relevance to D’s credibility

and propensity—good character is a positive feature of D’s case—weight is for the
jury.
You have heard that the defendant is a man in his middle years with no previous con-
victions. Good character is not a defence to the charges but it is relevant to your con-
sideration of the case in two ways. First, the defendant has given evidence. His good
character is a positive feature of the defendant which you should take into account
when considering whether you accept what he told you. Secondly, the fact that the
defendant has not offended in the past may make it less likely that he acted as is now
alleged against him.
It has been submitted on behalf of the defendant that for the first time in his life
he has been accused of a crime of dishonestly. He is not the sort of man who would be
likely to cast his good character aside in this way. That is a matter to which you should
pay particular attention.

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However, what weight should be given to the defendant’s good character and the
extent to which it assists on the facts of this particular case are for you to decide. In
making that assessment you may take account of everything you have heard about him.

Example 2: [category (1) above]: D has no previous convictions/cautions and there is

evidence from character witnesses.
You know/it is agreed that the defendant has no convictions or cautions for any crimi-
nal offence and you have also heard unchallenged evidence from witnesses who spoke
about his personal qualities. {Here summarise the evidence or tell the jury that this
will be summarised later}. He is a man of previous good character.
This does not mean that he could not have committed the offence/s with which he
is charged but his good character is something you should take into account in his
favour in two ways.
First: D gave evidence and you should take his lack of convictions/cautions and
his personal qualities into account when you are deciding whether you believe his
evidence.
Secondly: the fact that D is now {specify} years old, that he has the qualities about
which you have been told and that he has not committed any previous offence may
mean that it is less likely that he would have committed the offence/s of {specify}.
You should take D’s good character into account in his favour in the two ways I have
just explained. It is for you to decide what importance you attach to it.

Example 3: [category (2) above]. D has spent convictions but the judge has decided
that he should be treated as someone of “effective good character”.
You know/it is agreed that the defendant has two convictions for {specify}. These
offences, which are relatively minor, were committed more than 25 years ago when D
was still a teenager.
Because of their nature and age he is to be regarded as if he were a person of previ-
ous good character.
This does not mean that he could not have committed the offence/s with which he
is charged but it should be taken into account in his favour in two ways:
First: D gave evidence and the fact that he is to be treated as someone of good char-
acter is something that you should take into account when you are deciding whether
you believe his evidence.
Secondly: the fact that D is now {specify} years old and has not committed any
offence for over 25 years [if appropriate and has never committed any offence of
{specify}] may mean that it is less likely that he would have committed the offence/s
with which he is charged.
You should take the fact that D is to be regarded as a person of good character into
account in his favour in the two ways I have just explained. It is for you to decide what
importance you attach to it.

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Appendix IV

Example 4: [category (3) above]: D has introduced his previous convictions because
they are dissimilar to the charges which he faces at trial. The judge decides to give a
good character direction limited to the propensity limb.
You know/it is agreed that D has convictions for offences of {specify}. D introduced
this evidence because he wanted you to know that he has never been convicted of any
offence involving {specify}.
How should you approach the fact that he has no previous convictions for any
offence similar to the charge he now faces? This is obviously not a defence to the charge
but it may make it less likely that he has committed an offence of {specify}.
You should take this into account in D’s favour. It is for you to decide what impor-
tance you attach to it.

Example 5: D is of good character; he has not given evidence but made an out of court
statement on which he relies; direction on credibility and propensity limbs.
You know/it is agreed that the defendant has no cautions or convictions for any crimi-
nal offence. He is a man of previous good character.
This does not mean that he could not have committed the offence/s with which he
is charged but his good character is something you should take into account in his
favour in two ways.
First, although the defendant did not give evidence he did give an account to the
police when he was interviewed and he relies on that account in this case. You should
take his good character into account when you are deciding whether you accept what
he said in that interview. Bear in mind however that this account was not given under
oath or affirmation and was not tested in cross-examination.
Secondly: the fact that D has not committed any previous offence may mean that it
is less likely that he would have committed the offence/s of {specify}.
You should take D’s good character in his favour in the two ways I have just
explained. It is for you to decide what importance you attach to it.
NOTE: It will be necessary to give the jury a direction at some stage of the sum-
ming up about the inferences that may, or must not, be drawn from the defend-
ant’s not having given evidence—see Chapter 17-5 below.

Example 6: D is of good character; he did not make any out of court statement and
has not given evidence; direction on propensity limb only.
You know/it is agreed that the defendant has no convictions or cautions for any crimi-
nal offence. He is of good character.
This does not mean that he could not have committed the offence/s with which
he is charged but it may mean that it is less likely that he would have committed the
offence/s.
You should take this into account in D’s favour. It is for you to decide what impor-
tance you attach to it.

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NOTE: It will be necessary to give the jury a direction at some stage of the sum-
ming up about the inferences that may, or must not, be drawn from the defend-
ant’s not having given evidence—see Chapter 17-5 below.

Example 7: D is charged with assaulting V; evidence that D is of positive good char-

acter, but the jury have also heard evidence, which D disputes, of his previous bad
character/misconduct.
You know that the defendant has no previous conviction or caution for any criminal
offence and you have heard from witnesses who spoke about his personal qualities
{about which I will remind you in due course}. On the other hand you have also
heard evidence that the defendant assaulted V on a number of previous occasions,
something which D denies.
How should you approach the evidence of these alleged previous assaults?
If you are sure that one or more of these alleged previous assaults occurred, you
should consider whether this shows that D had a tendency to be violent towards V. If
you are sure that he did have such a tendency you could treat this as some support for
the prosecution’s case, but this would only be part of the evidence against him and you
must not convict him wholly or mainly on the strength of it. If you are not sure that
he did have such a tendency, then his previous conduct could not support the prosecu-
tion’s case against him.
If, on the other hand, you are not sure that any of these alleged previous assaults
occurred you must ignore them completely and must treat the defendant as a man of
previous good character.
This does not mean that he could not have committed the offence/s with which he
is charged but his good character is something you should take into account in his
favour in two ways.
First: D gave evidence and you should take his lack of convictions/cautions and
his personal qualities into account when you are deciding whether you believe his
evidence.
Secondly: the fact that he has not committed any previous offence may mean that it
is less likely that he would have committed the offence/s of {specify}.
You should take D’s good character into account in his favour in the two ways I have
just explained. It is for you to decide what importance you attach to it.

Example 8: Co-defendant about whom there is no evidence of character (if any direc-
tion is required)
You have heard nothing at all about the character of the co-defendant and you must
not speculate about it.

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Appendix IV

12. BAD CHARACTER

12-1 General Introduction
ARCHBOLD 13-1, 4, 5 and 102; BLACKSTONE’S F12 and 22; CrimPR 21
1. The admission of evidence of the bad character of defendants and non-
defendants is governed by the statutory regime of CJA 2003, ss.98–113.
2. When considering the admission of evidence the court must also look to its
case management duties under the Crim PR and in particular r.3.2 and r.3.10.
This will involve consideration of the purpose for which it is proposed to
admit evidence of bad character whether by agreement or otherwise before
it goes before the jury. In R (Robinson) v. Sutton Coldfield Magistrates’ Court9
it was accepted that the Court’s discretion to extend the time limit under
CrimPR 21.6 was not limited to exceptional cases.
3. Judges must have in mind that no evidence is admissible unless it is relevant
to the issues in the case; and there is a duty to consider in advance all evidence
that the parties propose to place before the jury.
4. For the purposes of determining the admissibility of bad character evidence,
its relevance or probative value is on the assumption that it is true, but the
Court need not assume it is true if it appears on the basis of any material
before the court, that no court or jury could reasonably find it to be true:
s.109. See also Dizaei.10
5. While evidence admitted under s.98(a) and (b) is admitted as evidence directly
relevant to the offence rather than under the criteria of s. 100 and any gate-
way under s.101, it will be prudent to have in mind the statutory safeguards
attaching to the admission of evidence under ss.100 and 101 and to consider
appropriate directions to the jury on the use to which it should put and, if
appropriate, the weight they should attach to that evidence.
6. Once evidence of bad character, whether of a defendant or non-defendant,
is admitted it may, depending on the facts be used by the jury for other pur-
poses. As Lord Woolf noted in Highton
“A distinction must be drawn between the admissibility of evidence of bad char-
acter, which depends upon it getting through one of the gateways, and the use to
which it may be put once it is admitted. The use to which it may be put depends
upon the matters to which it is relevant rather than upon the gateway through
which it was admitted. It is true that the reasoning that leads to the admission
of evidence under gateway (d) may also determine the matters to which the evi-
dence is relevant or primarily relevant once admitted. That is not true, however,
of all the gateways. In the case of gateway (g), for example, admissibility depends
on the defendant having made an attack on another person’s character, but once
the evidence is admitted, it may, depending on the particular facts, be relevant

9 [2006] EWHC 307 (Admin).

10 [2013] EWCA Crim 88.

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not only to credibility but also to propensity to commit offences of the kind with
which the defendant is charged.”
7. In every case the judge, when identifying the purpose for which evidence may
be used, should also identify any potential misuse of such evidence arising e.g.
from prejudice, and warn against such use.
8. Where the apparent weight of evidence admitted under these provisions
comes to be diminished in the light of other evidence, careful directions must
be given to the jury to assist them in assessing weight and deciding whether or
not there is real significance to the evidence.
9. Where evidence of D’s previous conviction/caution or sentence has been
blurted out in error, so not admitted under any of the “gateways” in s.101, it
will be usual, if the jury is not discharged, after considering the matter with
the advocates to direct the jury that it has no relevance to the issues before
them and to ignore it.

12-2 Directions applicable to all CJA s.101(1) “gateways”

ARCHBOLD 13-25; BLACKSTONE’S F12.1 and 15
Directions
1. In the case of disputed bad character evidence the jury must be reminded
of the evidence on both sides (whether it be prosecution and defence or
co-accused and defence) and warned to rely only on evidence which has been
proved (prosecution) or raised to the required standard (co-defendant).
2. Where D has disputed that he is guilty of an offence of which he has been pre-
viously convicted, where the conviction has been proved, it is to be presumed
that he committed that offence unless the contrary has been proved on the
balance of probabilities. See PACE s.74(3); C.11
3. In many cases evidence of bad character will have been admitted through
more than one gateway or have become relevant to more than one issue; in
such cases directions must be given in respect of all relevant matters in rela-
tion to each gateway.
4. The issues to which the evidence is potentially relevant must be identified in
detail and the jury directed about the limited purpose(s) for which the evi-
dence may be used (explanatory of other evidence, relevant to an issue includ-
ing propensity or “hallmark”, rebutting a defence, credibility, correcting a false
impression etc.).
5. It is of equal importance to identify any purpose/s for which the evidence may
not be used.

11 [2010] EWCA Crim 2971.

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6. The jury must be directed to decide the extent to which, if at all, the evidence
establishes that for which the party relying upon it contends (e.g. propensity/
credibility).
7. Depending on the nature and extent of the convictions or other evidence of
bad character, consideration should be given to a direction on the effect of the
bad character evidence on the credibility of D.
NOTES:
1. Examples of directions on the use to which evidence of bad character may
and may not be put are set out in further sections of this Chapter relating to
specific gateways.
2. In addition to directing the jury in the summing up, it may help them at the
time that the evidence is presented to tell them, in short form, of its relevance
and the purposes for which they may, and may not, use it.

12-3 S.101(1)(a)—Agreed evidence

ARCHBOLD 13-27; BLACKSTONE’S F12.16
Legal Summary
1. See the General Introduction at 12-1.
2. S101(1)(a) allows for evidence of bad character of a defendant to be admitted
by agreement between all the parties. Agreement can be tacit.12
3. Caution is required in admitting evidence under s.101(1)(a). Even in cases in
which the evidence is agreed, it is wise for the judge to seek clarification from
the advocates as to what is agreed, and for what purpose, so that the judge can
consider how best to direct the jury in summing up.
4. Where the Crown invites D1 to agree his convictions under s.101(1)(a), D2
may be put in an awkward position.13 It is expected that advocates will draw
to the judge’s attention any agreed bad character.14 The matter of the uses to
which that can be put by the jury and how they are to be directed can then be
ventilated with advocates.
5. In some cases where bad character evidence has been admitted by agreement,
it will be capable of being used as “propensity evidence”. There must be a care-
ful direction by the judge on the possible uses to which the bad character
evidence can be put by the jury. Whether bad character evidence can be used
to show propensity will depend on the nature of the evidence, the nature of
the charge, the similarity of the bad character evidence with the nature of the
offence charged, and all the other relevant circumstances of the case.

12 Marsh [2009] EWCA Crim 2696.

13 Harper [2007] EWCA Crim 1746.
14 Johnson [2010] EWCA Crim 385.

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Directions
6. Identify the evidence of bad character.
7. Whenever the court is told that bad character is to be admitted by agreement
there should be an enquiry before the evidence goes before the jury as to its
relevance. This will ensure the parties have considered all its implications
and enable the judge to have in mind all relevant aspects of the evidence for
summing up.
8. While evidence may be admitted by agreement the court retains duties of
case management: i.e. ensuring that any evidence that goes before the jury is
relevant to the issues and presented in the shortest and clearest way (prefer-
ably in the form of Agreed Facts).
9. Agreed evidence of bad character will usually be evidence that would have
been admitted, if contested, through another gateway and the jury must be
directed accordingly: see the further sections of this Chapter.
10. Depending on the nature and extent of the convictions or other evidence of
bad character that have gone before the jury a direction as to the effect of the
evidence on D’s credibility may be required.
11. Where the evidence is relevant only to credibility, a direction should make it
clear that it would be wrong and illogical to consider that the fact that D has
been convicted or has behaved badly in the past means it is more likely that
he did so on this occasion.
12. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.

Example
You have heard about D’s convictions/cautions/behaviour. This is/these are set out in
{paragraph no. of} the Agreed Facts and the Prosecution and Defence agree that this is
relevant evidence. There are certain ways in which you may use—and others in which
you must not use—this evidence.
[Here give appropriate directions, depending on the issues to which the evi-
dence is relevant: see other sections in this Chapter.]

12-4 S.101(1)(b)—Evidence of bad character adduced by the defendant

ARCHBOLD 13-28; BLACKSTONE’S F12.17
Legal Summary
1. See the General Introduction at 12-1.
2. Where the bad character evidence is admitted under s.101(1)(b) it may be
used by the jury for any purpose for which it is relevant.15

15 Highton [2005] EWCA Crim 1985; Edwards [2005] EWCA Crim 3244; Campbell [2007] EWCA

Crim 1472.

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“In our judgment it would be inappropriate in a gateway (b) situation for a

defendant to have carte blanche to make such points as he wishes about his
previous record, without facing the possibility that his record does him no
favours where credibility is concerned”.16
3. When summing up, the judge’s task is to explain to the jury for what pur-
pose the evidence may, and may not, be used.17 The jury need careful direc-
tion on the uses to which evidence of previous convictions admitted under
s.101(1)(b) might be put.18
4. In some instances, it may be inappropriate for the jury to use the evidence as
evidence going to credibility: Tollady.19 The guidance to the jury may need
to include: warning against the danger of placing undue reliance on the bad
character, that the evidence of bad character must not be used to bolster a
weak case, and that the jury must ignore the bad character if they thought
the case against D is a weak one. The jury should also be told that they should
not assume that D is guilty simply because of his bad character.
5. A D may choose to adduce evidence of his bad character irrespective of
whether or not a co-accused agrees.
6. Where evidence of bad character is not intentionally adduced by D (for
example it is blurted out in error) the jury must be directed to ignore the
evidence unless it is admissible under one or more of the other gateways.

Directions
7. Identify the evidence of bad character.
8. If D elects to adduce evidence of his own bad character that would otherwise
have been admissible through one of the other gateways of s.101(1) the jury
must be given directions on the use(s) to which the evidence may and may
not be put.
9. If D elects to adduce evidence of relatively minor bad character, for fear
that the jury might speculate that it was something worse, the jury must be
directed that they know about his convictions only so that they know about
of the whole background and, if appropriate, that the character evidence
does not make it more or less likely that D committed the offence.
10. If the evidence of bad character is minor and relates to matters of a com-
pletely different character from that with which D is being tried, the judge
has a discretion, after consideration with the advocates, to give D the benefit
of the “propensity limb” of the good character direction: see Chapter 11.
11. Depending on the nature and extent of the convictions or other evidence of
bad character a direction as to the effect of the evidence upon D’s credibility
may be required.

16 Speed [2013] EWCA Crim 1650.

17 Edwards [2005] EWCA Crim 3244 at para.3; Campbell [2007] EWCA Crim 1472 at paras 37–38.
18 Edwards and Rowlands [2005] EWCA Crim 3244 at para 104.
19 [2010] EWCA Crim 2614.

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12. Where the evidence is relevant only to credibility, a direction should make it
clear that it would be wrong and illogical to consider that the fact that D has
been convicted or has behaved badly in the past means it is more likely that
he did so on this occasion.
13. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.
Example
D has told you of his convictions for {specify}. There are certain ways in which you
may use—and others in which you must not use—this evidence.
[Here give appropriate directions, depending on the issues to which the evi-
dence is relevant: see other sections in this Chapter.]

12-5 S.101(1)(c)—Important explanatory evidence

ARCHBOLD 13-29; BLACKSTONE’S F12.18 and 28
Legal Summary
1. See the General Introduction at 12-1.
2. Section 101(1)(c) allows for the bad character evidence of D to be adduced by
either the Crown or a co-accused where it is important explanatory evidence.
There is no requirement for the prosecution to satisfy the interests of justice
test under s.101(1)(3).
3. The gateway is a narrow one.20 S.102 provides that “Evidence is impor-
tant explanatory evidence if (a) without it, the court or jury would find it
impossible or difficult properly to understand the other evidence in the case, and
(b) its value for understanding the evidence as a whole is substantial.”21 Care is
needed to avoid too readily admitting evidence under s.101(1)(c) that ought
to be admitted if at all under s.101(1)(d); “Gateway C is, we emphasise, not a
substitute for gateway D. It is not possible to dress up a failed case of gateway D as
gateway C.”22 Care is also needed to avoid satellite litigation, particularly since
it may often be necessary for a jury to receive evidence describing, perhaps in
some detail, the context and circumstances.23
4. The overlap with s 98 of the Act (allowing evidence to do with the facts of the
alleged offence) should also be borne in mind.24 See also McKintosh25

20 Gillespie [2011] EWCA Crim 3152; Lee [2012] EWCA Crim 316.
21 Emphasis added.
22 See D,P,U [2012] EWCA Crim 1474 [22] per Hughes LJ. “There is an inevitable tension between
admitting previous convictions of a defendant as important explanatory evidence and not for propen-
sity”: Frain [2007] EWCA Crim 397; D [2008] EWCA Crim 1156; Saint [2010] EWCA Crim 1924; See
also Sheikh [2012] EWCA Crim 907
23 Sawoniuk [2000] 2 Cr App R 220.
24 See Lunkulu [2015] EWCA Crim 1350; Sullivan [2015] EWCA Crim.
25 [2006] EWCA Crim 193.

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5. This section is capable of applying to adduce evidence of previous gang

feuds: Okokono.26
6. The jury need more than simply a narration of the evidence. It is helpful to
address with advocates, as soon as the admissibility of the evidence is raised,
the question of how it is proposed that the bad character evidence is to be
used and how the jury is to be directed. Having an agreed account is help-
ful where possible. Evidence admitted under gateway (c) is capable of being
used by the jury for any other purpose, and in some cases it will be necessary
to give a specific warning as to the ways in which the evidence might assist
the prosecution case.27

Directions
7. Identify the evidence of bad character.
8. Explain why the evidence is put before them e.g. how the defendant came to
be in prison or had contact with the complainant.
9. Explain any further purpose/s for which the conviction/s or reprehensible
behaviour may be used.
10. Depending on the nature and extent of the convictions or other evidence of
bad character a direction as to the effect of the evidence upon the defendant’s
credibility may be required.
11. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.
Example: evidence admitted only as important explanatory evidence
You have heard that the incident of violence that is the subject of the charge took place
while D and V were in prison. The fact that they were in prison does no more than
provide the setting for this incident and it would have been impossible to understand
events without knowing this.
But the fact that D was in prison does not make it more or less likely that he com-
mitted this offence and provides no support for the prosecution case, neither does it
make it more or less likely that V attacked D.

12-6 S.101(1)(d)—Relevant to an important matter in issue between the

defendant and the prosecution
ARCHBOLD 13-37; BLACKSTONE’S F12.18 and 36
Legal Summary
1. See the General Introduction at 12-1.
2. S.101(1)(d) allows for evidence of D’s bad character to be admitted where it
is relevant to an important matter in issue between D and the prosecution.

26 [2014] EWCA Crim 2521.

27 Lee [2012] EWCA Crim 316.

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One way in which a matter can be an important matter in issue between

them is when the prosecution seeks to rely on the evidence of bad character
to demonstrate a propensity to commit the offence. But s.101(1)(d) is not
restricted to the admissibility of propensity evidence. Evidence of bad charac-
ter may for example be relevant to prove D’s presence or identity or to rebut
coincidence, without engaging propensity.
3. Where evidence is admitted as propensity evidence there are four sub-gateways
within s.101(1)(d):
(1) If it shows he has a propensity to commit “offences of the kind with
which he is charged”: s.103(1)(a).
(2) The prosecution may use s.103(1)(a) to show that the defendant has a
propensity to commit offences of the kind with which he is charged by
showing he has previously committed an offence “of the same descrip-
tion” as this offence.
(3) The prosecution may use s.103(1)(a) to show that the defendant has a
propensity to commit offences of the kind with which he is charged by
showing he has previously committed an offence “of the same category”
(4) S.103(2)-(5): Evidence of the defendant’s bad character is admissible if it
“shows he has a propensity to be untruthful”: s.103(1)(b).
4. In Hanson28 the Court of Appeal offered general guidance on the questions to
be addressed:
(1) Does the history of conviction(s) establish a propensity to commit
offences of the kind charged?
(2) Does that propensity make it more likely that the defendant committed
the offence charged?
(3) Is it unjust to rely on the conviction(s) of the same description or
category; and, in any event, will the proceedings be unfair if they are
admitted?
5. The section is not limited to propensity: Richardson,29 Cambridge.30
6. Bad character ought not to be adduced under s 101(1)(d) to bolster a weak
case: Darnley,31 McDonald.32
7. The sentence for the earlier conviction is not usually helpful in determining
admissibility: Nelson.33
8. There is no minimum number of events necessary to demonstrate a propen-
sity: Hanson, Brown,34 Burdess;35 cf Bennabou.36

28 [2005] EWCA Crim 824.

29 [2014] EWCA Crim 1785.
30 [2011] EWCA Crim 2009.
31 [2012] EWCA Crim 1148.
32 [2011] EWCA Crim 2933.
33 [2012] All ER (D) 42 (May).
34 [2011] EWCA Crim 80.
35 [2014] EWCA Crim 270.
36 [2012] EWCA Crim 3088.

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Appendix IV

9. Large numbers of convictions can be admitted under this gateway provided

they are relevant to a matter in issue and the judge has considered the poten-
tial unfairness: Blake.37
10. Particular care is needed with hazardous evidence such as identification
evidence: Dossett,38 Eastlake,39 Holmes,40 Ngando.41
11. Incidents which have occurred since the incident which is currently the
matter of trial may be admitted under s 101(1)(d): Adenusi;42 A.43
12. Particular care is needed in cases where bad character evidence of indecent
image possession is relied on as evidence in sexual contact offences: D,P,U
[2012] 1 Cr App R 8, where Hughes LJ stated:
“… Possession of child pornography may, depending on the facts of the case,
demonstrate a sexual interest in children which can be admissible through
gateway D upon trial for offences of sexual abuse of children. It will not
always be so. There may be a sufficient difference between what is viewed
and what is alleged to have been done for there to be no plausible link.” The
Court of Appeal accepted that it would have been preferable if the details of
the offences had been available, but concluded that since V was an immature
teenager known to L since he was aged 9, L would have regarded him as a
child. The images showed L’s sexual interest in children and they were poten-
tially relevant under 101(1)(d).

Directions
14. Identify the evidence of bad character.
15. If the evidence is disputed the jury should be directed that they must be sure
matters have been proved before they can rely on them.
16. If there has been an explanation of it by the defence so that the conclu-
sions to be drawn from it are disputed, identify the differences and their
consequences.
17. Identify in detail the issue/s to which the evidence is and is not potentially
relevant e.g. propensity, credibility, identity.
18. Direct the jury that it is for them to decide to what extent, if any, the evidence
helps them to decide the issue/s to which it is potentially relevant.
19. Depending on the nature and extent of the convictions or other evidence of
bad character that have gone before the jury a direction as to the effect of the
evidence upon D’s credibility may be required.

37 [2006] EWCA Crim 871.

38 [2013] EWCA Crim 710.
39 [2007] EWCA Crim 603.
40 [2014] EWCA Crim 420. (NB: There is a s 4(2) reporting restriction order in relation to this case

pending retrial, and the case has been removed from Bailii.)
41 [2014] EWCA Crim 506.
42 [2006] EWCA Crim 1059. See also Imiela [2013] EWCA Crim 2171.
43 [2009] EWCA Crim 513.

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20. If the evidence is exclusively within the limits of s. 101(1)(d) the jury should
be warned against prejudice against D or over reliance on evidence of bad
character and that they must not convict D wholly or mainly on the basis
of previous convictions or bad behaviour. If the evidence is in reality “hall-
mark” evidence and directly relevant to the issue in the case a warning not to
convict wholly or mainly in reliance upon it would be inappropriate.
21. On a multi-count indictment, the issue of cross admissibility should be con-
sidered: see Chapter 13.
22. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.

Example 1: Propensity
You have heard that D has previous convictions for {specify}. You heard this because
the prosecution say that they show that he has a tendency to commit offences of this
type and so it is more likely that D was {specify: e.g. the aggressor in this incident/ the
person who was driving the car /the person who stole the goods}.
The defence say that the previous convictions are {specify: e.g. old/ of a different
nature} and do not show that D has a tendency to act as alleged.
It is for you to decide whether these previous convictions do in fact show that D has
a tendency to behave in this way.
If you are not sure that his previous convictions show that he has such a tendency
then you must ignore them: they are of no relevance to the issues in the case.
But if you are sure that they do show such a tendency then this may support the
prosecution case. It is for you to say whether it does and if so to what extent. But the
fact that someone has {specify} in the past does not prove that he did so on this occa-
sion. D’s previous convictions may only be used as some support for the prosecution
case. You must not convict him wholly or mainly because of them.

Example 2: Support for evidence of identification

You have heard that D was picked out on a VIPER identification parade. [See C hapter
15-1 Visual identification.]
The prosecution say that the man picked out on that identification parade was the
man who {e.g. burgled the house}. The defence say the identification was mistaken.
I have already told you about the risks surrounding evidence of identification and
that you should look to see whether the evidence of identification is supported by other
evidence. The prosecution say that the identification evidence is supported by D’s pre-
vious convictions, which demonstrate that he {e.g. has committed 3 other burglaries
in the same street within the last 2 years} and the prosecution say that this makes it
more likely that the identification evidence is correct.
The defence accept that D has these convictions {e.g. for burglary} but they remind
you that {e.g. the estate on which the burglary was committed was an area of high
crime and that there are many other people who have committed burglaries in that
area}.

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Appendix IV

The fact that D has {e.g. committed burglaries in the same street} cannot prove he
did so on this occasion but it is evidence you may take into account as support for the
prosecution case. How far it supports the prosecution case will depend on your view of
(a) how much of a coincidence it is that the person identified as the burglar in this case
has {e.g. committed burglaries on the same street in the past} and (b) the defence point
about the number of other people who have {e.g. committed burglaries on this street}.
D’s previous convictions may only be used as some support for the prosecution case.
You must not convict him wholly or mainly because of them.

Example 3: Propensity to be untruthful—bearing only on D’s credibility

D has said that … {specify}. It is for you to decide whether that is or may be true.
When you are deciding this question you may take into account D’s previous convic-
tions for {specify e.g. perverting the course of justice, by giving a false name when
driving whilst disqualified, and committing perjury, by making a false accusation that
someone else had assaulted his brother when in fact D had done so}.
The prosecution say that those convictions are significant because they show that
D is prepared to tell lies to avoid responsibility for offences he has committed and has
lied to you for the same reason.
The defence accept that D has these convictions but say they are irrelevant
because … {specify: e.g. they happened many years ago}.
You should bear in mind that just because someone has told lies in the past does not
mean that he is telling lies now. You must decide whether these convictions help you
when deciding whether his evidence is, or may be, true or whether you are sure that it
is untrue, but you must not convict him wholly or mainly because of them.

12-7 S.101(1)(e)—Substantial probative value in relation to an important

matter in issue between the defendant [D1] and a co-defendant [D2]
ARCHBOLD 13-69; BLACKSTONE’S F12.67
Legal Summary
1. See the General Introduction at 12-1.
2. CJA 2003, s.101(1)(e) allows D1 to adduce evidence of the bad character of D2
if that evidence has “substantial probative value in relation to an important
matter in issue between” them. This will usually arise when the defendants
are engaged in “cut-throat” defences. The approach to admissibility is set out
clearly in Phillips.44 The test for admissibility is quite different from that under
s.101(1)(d), and there is no discretion to exclude the evidence if the condi-
tions of s.101(1)(e) and s.104 are satisfied.
3. Evidence that can be adduced under s.101(1)(e) is not limited to evidence
directly suggesting that D2 is more likely to be the offender (e.g. evidence of
D2’s previous convictions for similar behaviour). It can include evidence that

44 [2011] EWCA Crim 2935. See also Daly [2014] EWCA Crim 2117

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undermines D2’s credibility where that is an important matter in issue,45 even

though the bad character evidence against D2 does not establish a propensity
for untruthfulness.
4. Where the sole purpose of the evidence is to balance D2’s attempt to under-
mine D1’s case the direction can be given quite shortly.46 In Phillips Pitchford
LJ explained:
“The judge has a responsibility to explain to the jury the issues upon which the
evidence was relevant and the need for a sequential approach to it: (i) Is it true?
(ii) Does it establish the propensity claimed? (iii) Does it assist in resolving the
issues between the defendants? (iv) Does a resolution of the issue between the
defendants assist the jury to reach their decision as to guilt of one or other or both
of them? It does not seem to us that the admission of the pre-indictment evidence
would have resulted in unfairness to the co-accused.”
5. In Passos-Carr47 the Court of Appeal accepted that:
“in an appropriate case, evidence of propensity to be violent can be evidence of
substantial probative value as to issues between two defendants in a cut throat
case where two defendants blame each other.” However considerable care will be
needed not to confuse the jury.48
6. In Turnbull,49 it was noted that in applying the test in Phillips:
“the judge will need to bear in mind whether or not that evidence is disputed. If
it is, and there is a risk that the jury may not accept that it constitutes evidence
of bad character, then the judge may be depriving a co-accused of potentially
substantial probative evidence if he relies on that evidence in order to exclude
other bad character evidence in the event that the jury are not sure that it does
demonstrate bad character. This is not a problem, however, where the evidence
admitted takes the form of convictions.”

Directions
7. Identify the evidence of D1’s bad character.
8. In relation to D1:
(1) if the evidence of his bad character is disputed, the jury may take it into
account as part of the case against him only if they are sure that it is true;
(2) it is for the jury to decide to what extent if at all the evidence which they
are sure is true, or which is not disputed, demonstrates the matter in
issue (e.g. whether D1 has a propensity to commit offences of the type
charged or to be untruthful);

45 Lawson [2006] EWCA Crim 2572; Rosato [2008] EWCA Crim 1243.
46 Rosato [2008] EWCA Crim 1243 at para 26.
47 [2009] EWCA Crim 2018.
48 Najib [2013] EWCA Crim 86.
49 [2013] EWCA Crim 676 para.24.

223
Appendix IV

(3) the jury should be warned against prejudice against D1 arising from the
evidence and against over-reliance on it, and directed that they must
not convict D1 wholly or mainly on the basis of it; and
(4) depending on the nature and extent of the evidence, there may have to
be a direction as to the effect of the evidence on D1’s credibility.
9. In relation to D2:
(1) if the evidence of D1’s bad character is disputed, the jury may take it
into account as part of the case for D2 if they think that it is or may be
true (though not if they are sure that it is untrue);
(2) it is for the jury to decide to what extent if at all the evidence of D1’s
bad character which they think is or may be true, or which is not dis-
puted, demonstrates the matter in issue (e.g. whether or not D2 was
involved in the offence charged).
10. The direction is likely to be complex, should be discussed with the advocates
before it is given, and should be provided to the jury in writing.
11. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.

Example 1: Undisputed evidence of D1’s bad character

Scenario: D1 and D2 are jointly charged with an offence of violence. Each accepts
that he was present at the scene, but says that the other committed the offence
alone. On the application of D2, evidence has been admitted under CJA 2003
s.101(1)(e) that D1 has previously been convicted of offences of violence.
D2 introduced the fact that D1 has previous convictions for crimes of violence. He
did so because he says that they show that D1 has a tendency to use unlawful violence
and it was D1 alone who used the violence on this occasion. How should you approach
this question? Your approach to this will be different depending on whether you are
considering the case for D2 or the case against D1.
When considering D2’s case: if, having regard to all of the evidence about D1’s
convictions {if appropriate: including what D1 himself has told you}, you decide that
they show that D1 has, or may have, a tendency to use unlawful violence, you may
take that into account as some support for D2’s case that the offence was committed
by D1 alone and that D2 was not involved.
However, when considering the case against D1, because it is for the prosecution
to prove his guilt, it is only if you are sure that D1’s convictions show that he has a
tendency to use unlawful violence that you may use this as some support for their case.
The amount of support provided by any such tendency is for you to decide. You
must remember that such a tendency would only form part of the evidence. You must
not convict D1 wholly or mainly because of it or allow his previous convictions to
prejudice you against him.
Finally, in D1’s case, if you are not sure that D1 has a tendency to use unlawful
violence his convictions are of no relevance and you must ignore them.

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Example 2: Disputed evidence of D1’s bad character

Scenario: D1 and D2 are jointly charged with an offence of violence. Each accepts
that he was present at the scene, but says that the other committed the offence
alone. On the application of D2, evidence from D2 himself and from a witness
called on his behalf that D1 had committed numerous past assaults with which
he has never been charged has been admitted under CJA 2003 s.101(1)(e). D1
disputes this evidence.
You have heard evidence from D2 and his witness that D1 has committed many
assaults in the past for which he was never arrested. D2 says that this shows that D1
has a tendency to use unlawful violence and it was D1 alone who used the violence
on this occasion. D1 disputes that he has committed any assault in the past or that he
has such a tendency. You will have to consider these matters separately in relation to
each defendant.
When considering D2’s case you will have to decide whether some or all of the evi-
dence of past assaults by D1 is, or may be, true. If you decide that some or all of it is,
or may be, true, and that it shows that D1 has or may have a tendency to use unlawful
violence, you may use such a tendency as some support for D2’s case that the offence
was committed by D1 alone and D2 was not involved.
When considering the use of the evidence in the case against D1 the position is dif-
ferent. First you must decide whether you are sure that any of the disputed evidence of
past assaults is true. If you not sure that any of it is true, you must ignore it completely
when considering the case against D1.
If you are sure that some or all of this evidence is true, you will then have to con-
sider whether it shows that D1 has a tendency to use unlawful violence. If you are sure
that it does show that D1 has such a tendency, you may use it as some support for the
case against him.
The amount of support provided by any such tendency is for you to decide. You
must remember that such a tendency would only form part of the evidence. You must
not convict D1 wholly or mainly because of it or allow his previous convictions to
prejudice you against him.
Finally, if you are not sure that D1 has a tendency to use unlawful violence his
convictions are of no relevance and you must ignore them.
NOTE: If D1 is otherwise of good character see also Chapter 11 Good Charac-
ter: Directions paragraph 14 and Example 7.

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12-8 S.101(1)(f)—Evidence to correct a false impression given by the

defendant about himself
ARCHBOLD 13-73; BLACKSTONE’S F12.85
Legal Summary
1. See also the General Introduction at 12-1 above.
2. CJA 2003, s.101(1)(f) governs the admissibility of bad character evidence by
the prosecution against D to correct a false impression D has sought to cre-
ate in interview, under caution, or in evidence by D himself or by another at
the invitation of the defence.50 Merely denying the offence will not trigger
s.101(1)(f). Section 101(1)(f) only applies if D has given a false impression:
Rahim.51
3. For the purposes of s.101(1)(f) the question whether the defendant has given
a “false impression” about himself, and whether there is evidence which may
properly serve to correct such a false impression within s.105(1)(a) and (b)
is fact-specific.
4. Section52 105(3) allows D to avoid being deemed responsible for a relevant
assertion “if, or to the extent that, he withdraws it or disassociates himself
from it,” but merely by conceding in cross-examination that he had lied, a
defendant did not dissociate himself.53
5. Particular care will be needed if the admission of evidence under s.101(1)(f)
might impact on a co-accused.54
6. Recent examples include Verdol,55 Garrett,56 Ovba.57

Directions
7. Identify the evidence of bad character.
8. If the evidence is disputed the jury should be directed that they must be sure
matters have been proved before they can rely on them.
9. If there has been an explanation of it by the defence so that the conclu-
sions to be drawn from it are disputed, identify the differences and their
consequences.
10. Identify in detail the issue(s) to which the evidence is and is not potentially
relevant. Since the evidence has been admitted to correct a false impression
this is likely to include a direction as to the effect upon credibility.
11. It is also essential to review any directions by reference to Chapter 12-2:
Directions applicable to all CJA s.101(1) “gateways”.
50 CJA 2003, s 105. see eg Verdol [2015] EWCA Crim.
51 [2013] EWCA Crim 2064.
52 Renda [2005] EWCA Crim 2826 para 19.
53 Renda [2005] EWCA Crim 2826.
54 Hickinbottom [2012] EWCA Crim 783.
55 [2015] EWCA Crim 502.
56 [2015] EWCA Crim 757.
57 [2015] EWCA Crim 725.

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Example: Evidence to correct a false impression given by the defendant, going to

credit and propensity
In his evidence D said that he was not the sort of person who would {specify}. As a
result of that, the prosecution were allowed to present evidence that in the past he had
been convicted of {specify}.
What use can you make of that evidence?
The prosecution say that the evidence of his convictions shows that he was trying
to mislead you when he said he would never {specify}. The defence say that it was not
misleading because {specify}. If you are sure D was trying to mislead you about this/
these things that does not mean he was trying to mislead you about everything, but it
is evidence that you can use when deciding whether or not he was a truthful witness.
If you are not sure he was trying to mislead you then his previous convictions will not
help you to decide whether or not what he said in evidence was true.
The prosecution also say that the evidence of his previous convictions can help you
in another way. They say that those convictions for {specify} show that he is a man
who is more likely to {specify}. The defence say that the convictions are {e.g. so old,
not really of the same kind} and so do not show he would be more likely to {specify}.
If you are not sure that they show that D1 has such a tendency, you should ignore
them: they would be irrelevant.
If you are sure that they show that D has such a tendency, you may use them as
some support for the case against him. How much support, if any, they provide is for
you to decide, but remember that the convictions only form a part of the evidence in
the case and you should not convict D only or mainly because he has been convicted
in the past. Neither should you be prejudiced against him because of his past record.

12-9 S.101(1)(g)—Defendant’s attack on another person’s character

ARCHBOLD 13-78; BLACKSTONE’S F12.91
Legal Summary
1. See also the General Introduction at 12-1 above.
2. CJA 2003, s.101(1)(g) allows for the Crown to adduce evidence of a defend-
ant’s bad character where the defendant has attacked the character of another
person whether by statements made in interview or by asking questions in
cross-examination intended or likely to elicit such evidence or by giving evi-
dence. Admissibility is subject to the discretion in s.103. If the attack made by
D (particularly if made in interview) is on the character of a non-witness who
was also a non-victim it would be unusual for evidence of D’s bad character
to be admitted.58
3. It may be that evidence is admitted under “gateway (g)” which the Crown
had initially unsuccessfully sought to adduce under “gateway (d)”, but which
becomes admissible because of the way the defence is run. Once the evidence

58 Nelson [2006] EWCA Crim 3412.

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is admitted, it might, depending on the particular facts, be relevant not only

to credibility but also to propensity to commit offences of the kind with which
the defendant was charged.59 The jury will need careful direction on the uses
to which it may be put.
4. If the evidence is relevant only to credibility, that needs to be made clear. If the
evidence is relevant to a matter in issue between the Crown and defence other
than credibility (e.g. propensity) the jury will need to be directed accordingly.
In Lafayette60 the Court of Appeal explained:
“In many cases at least some of the bad character evidence admitted under gate-
way (g) will also be admissible under gateway (d) and thus entitle the judge
to give a propensity direction (see Highton [2005] EWCA Crim 1985). What is
the position to-day if the evidence which is admissible under gateway (g) is not
admissible under gateway (d) to show propensity? For example, what should the
judge say if the evidence under gateway (g) showed only previous convictions for
offences of dishonesty and/or drugs offences and/or offences of violence, from any
of which the jury would not be entitled to conclude that they showed on the part
of the defendant a propensity to commit the kind of offences with which he is
charged? We think that the better course is for the direction to be so fashioned in a
“gateway (g) only case” that the jury understand that the relevance of these kinds
of previous convictions goes to credit and they should not consider that it shows
a propensity to commit the offence they are considering, at least if there is a risk
that they might do so. That is not to say that the words “credit” and “propensity”
should be or need to be used.”

Directions
5. Identify the evidence of bad character.
6. If the evidence is disputed the jury should be directed that they must be sure
matters have been proved before they can rely on them.
7. If there has been an explanation of it by the defence so that the conclusions to
be drawn from it are disputed, identify the differences and their consequences.
8. Direct the jury that where a defendant makes an attack upon another person’s
character the jury are entitled to know of the character of the person making
the attack so that they can have all the information about that person and the
defendant when deciding where the truth lies.
9. It is also essential to review any directions by reference to Chapter 12-2: Direc-
tions applicable to all CJA s.101(1) “gateways”.
Example: Evidence relating to attack made by the defendant on a prosecution witness
You have heard that D has previous convictions for {specify}. The reason you heard
about them was because D has alleged that W is/has {specify} and you are entitled

59 Highton [2005] EWCA Crim 1985 para 10.

60 [2008] EWCA Crim 3238; Williams [2011] EWCA Crim 2198.

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to know about the character of the man who makes these allegations when you are
deciding whether or not they are true.
[Here specify the arguments of the prosecution and the defence.]
You should bear in mind that just because D has previous convictions, this does not
necessarily mean that he is telling lies. You must decide whether these convictions help
you when you are considering whether or not he is telling the truth; but you must not
convict him of this offence because he has been convicted in the past.

12-10 S.100—Non-defendant’s bad character

ARCHBOLD 13-11; BLACKSTONE’S F14.1
Legal Summary
1. The admissibility of evidence of a non-defendant is governed by CJA 2003,
ss.98 and 100.
2. Where evidence of the non-defendant’s behaviour is to do with the facts of the
alleged offence or misconduct in the investigation, it can be admitted under
s.98 even if the behaviour amounts to bad character. Otherwise evidence of
bad character of a non- defendant is admissible only under s.100. There are
3 gateways:
(1) By agreement between the parties.61
(2) Where the bad character evidence is important explanatory evidence.62
(3) Where the bad character is of substantial probative value in relation to
matter which (i) is a matter in issue in the proceedings and (ii) is of sub-
stantial importance in the context of the case as a whole63 having regard
to s.100(3).
3. This final gateway allows for evidence to be adduced which goes to the
issue (e.g. D accused of ABH claims he was acting in self defence against V’s
aggression and adduces V’s record for violence) or where it goes to the non-
defendant’scredibility alone.64 The types of evidence adduced as bad charac-
ter ought to be strictly monitored. Rarely will mere allegations as opposed to
convictions or cautions be admitted.65 That is not to say that such material
will never be admissible. It is of course vital to assess to what issue the bad
character is relevant: Luckett.66

61 Such agreements should be drawn to the attention of the judge: Johnson [2010] EWCA Crim 385
62 See also Chapter 13-5. This is a narrow gateway when read in conjunction with s 100(2). S 100(2)
“without it … the jury would find it impossible or difficult properly to understand other evidence in
the case, and its value for understanding the case as a whole is substantial.”
63 Garnham [2008] EWCA Crim 266.
64 The test to be applied in such cases is set out in Brewster [2010] EWCA Crim 1194. See also Weir

(Yaxley-Lennon) [2005] EWCA Crim 2866 at para 73.

65 Miller [2010] EWCA Crim 1153; Braithwaite [2010] EWCA Crim 1082.
66 [2015] EWCA Crim 1050.

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4. In determining whether allegations of bad character against a non-defendant

are sufficiently probative to be admitted regard should be had to the likely
difficulty the jury would face in understanding the remainder of the evidence
if such allegations against a non-defendant were adduced.67
5. If the bad character relates to a complainant in a sexual case YJCEA s.41
applies.
6. Avoidance of satellite litigation is a relevant consideration.
“Failure to give a direction that is no more than assistance in applying common
sense to the evidence should not automatically be treated as a ground of appeal,
let alone as a reason to allow an appeal.”68

Directions
7. Identify the evidence of bad character.
8. Where the evidence is disputed the jury must decide:
(1) if the evidence is adduced by the prosecution whether they are sure it
is true;
(2) if adduced by the defence, whether it may be true.
9. Identify the issue/s to which the evidence is potentially relevant.
10. The jury should be directed that it is for them to decide the extent to which,
if any, the evidence of bad character of the non-defendant assists them in
resolving the potential issue/s.
11. Depending on the nature and extent of the convictions or other evidence of
bad character, there may need to be a direction as to the effect on the cred-
ibility of the person if he was a witness.

Example
You have heard that W has convictions for offences of violence namely {specify}. You
heard about W’s convictions because D claims that it was W who started this incident
and says that W’s convictions support this.
The fact that W has these convictions does not mean that he must have used unlaw-
ful force on this occasion but it is something that you may take into account when you
are deciding whether or not the prosecution have made you sure that it was D, and not
W, who started the violence and that D’s use of force was unlawful.

67 Dizaei [2013] EWCA Crim 88.

68 Cited in Campbell [2007] EWCA Crim 1472 para20; Kelly [2008] EWCA Crim 1456.

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13. CROSS ADMISSIBILITY

ARCHBOLD 13-9, 38 and 63a; BLACKSTONE’S F12.58
Legal Summary
1. If the indictment against D comprises more than one count the issue may
arise as to whether the evidence relating to one count is “cross admissible” in
relation to another, and if so to what uses it may legitimately be put by the
jury.
2. Cross admissibility is not an appropriate term to describe the admissibility of
evidence from a previous incident that does not form part of the indictment.69
3. CJA 2003 s.112(2) provides: “Where a defendant is charged with two or more
offences in the same criminal proceedings, this Chapter (except s.101(3)) has
effect as if each offence were charged in separate proceedings; and references to
the offence with which the defendant is charged are to be read accordingly.”70
4. The leading authority is Freeman and Crawford71 which confirms that evi-
dence may be cross admissible in one or both of the following ways72
(1) “(1) The evidence may be relevant to more than one count because it rebuts
coincidence, as for example, where the prosecution asserts the unlikelihood
of a coincidence that separate and independent complainants have made
similar but untrue allegations against the defendant. The jury may be per-
mitted to consider the improbability that those complaints are the product
of mere coincidence or malice (i.e. a complainant’s evidence in support of
one count is relevant to the credibility of another complainant’s evidence on
another count–an important matter in issue: s.101(1)(d))”; and/or
(2) “The jury may be sure of the accused’s guilt upon one count and if, but
only if, they are also sure that guilt of that offence establishes the accused’s
propensity to commit that kind of offence, the jury may proceed to consider
whether the accused’s propensity makes it more likely that he committed an
offence of a similar type alleged in another count in the same indictment
(evidence of propensity: s.101(1)(d) and s.103(1)(a)).”
5. In both categories the evidence which is being adduced is evidence of bad
character against the defendant under CJA 2003, s.101:73 see Chapter 13.
6. Whichever approach is employed, the jury must reach separate verdicts on
each count and for each defendant.

69 Suleman [2012] EWCA Crim 1569.

70 Wallace [2007] EWCA Crim 1760; Chopra [2006] EWCA Crim 2133.
71 [2008] EWCA Crim 1863. See also the very helpful analysis in McAllister [2008] EWCA Crim

1544 para 31.

72 N(H): [2012] EWCA Crim 1568 para 31.
73 McAllister [2008] EWCA Crim 1544 para 13.

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7. Under the coincidence approach:

(1) Cross admissibility of evidence does not involve “propensity” evidence
in the way in which that term is used under CJA 2003. The jury is not
being invited to reason from propensity; they are merely being asked
to recognise that the evidence in relation to a particular offence on an
indictment may appear stronger and more compelling when all the evi-
dence, including evidence relating to other offences, is looked at as a
whole.74 In H75 Rix LJ pithily observed: “the reality is that independent
people do not make false allegations of a like nature against the same
person, in the absence of collusion or contamination of their evidence.”
(2) The jury will need to exclude collusion or innocent contamination as
an explanation for the similarity of the complainants’ evidence before
they can assess the force of the argument that they are unlikely to be
the product of coincidence.76 The jury is being invited to consider
the improbability that the complaints are the product of mere coinci-
dence or malice.77 The more independent sources of evidence, the less
probable the coincidence. That is so only if the sources are genuinely
independent. The jury are not being invited to reason from propen-
sity. If they conclude that D is guilty on other counts they may also
have concluded that he has a relevant propensity, but they are not being
invited to reason from a propensity that they have found to his guilt.
8. Under the propensity approach evidence from one count is admissible against
another under s.101 as if the counts were being tried as separate trials. The
jury is being invited to reason that if D is guilty of one incident that dem-
onstrates he has a propensity for such offending and that propensity may
be relevant when they consider a further count. They are reasoning from a
propensity they have found to liability for other counts.
9. In some rare cases it may be appropriate to direct the jury that the evidence
that is cross admissible is capable of being used to rebut coincidence and for
propensity type reasoning. The leading case is N(H).78 Care needed to be
taken by the judge before giving both directions. It it is important to avoid
double accounting—i.e. the jury cannot use evidence from count 1 to rebut
coincidence that D committed count 2 and then, having become sure of guilt
on count 2, use that as propensity evidence to convict D on count 1.
10. Latham LJ in Freeman and Crawford said:79
“In some of the judgments since Hanson, the impression may have been given
that the jury, in its decision making process in cross-admissibility cases should

74 McAllister at [14].
75 H [2011] EWCA Crim 2344 para 24.
76 [2011] EWCA Crim 730.
77 Cross [2012] EWCA Crim 2277.
78 [2011] EWCA Crim 730 para 31.
79 [2008] EWCA Crim 1863 para 20.

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first determine whether it is satisfied on the evidence in relation to one of the

counts of the defendant’s guilt before it can move on to using the evidence in
relation to that count in dealing with any other count in the indictment. A good
example is the judgment of this court in S.80 We consider that this is too restric-
tive an approach. Whilst the jury must be reminded that it has to reach a verdict
on each count separately, it is entitled, in determining guilt in respect of any
count, to have regard to the evidence in regard to any other count, or any other
bad character evidence if that evidence is admissible and relevant in the way we
have described. It may be that in some cases the jury will find it easier to decide
the guilt of a defendant on the evidence relating to that count alone. That does
not mean that it cannot, in other cases, use the evidence in relation to the other
count or counts to help it decide on the defendant’s guilt in respect of the count
that it is considering. To do otherwise would fail to give proper effect to the deci-
sion on admissibility.”

Directions
11. The terms ‘coincidence approach’ and ‘propensity approach’ are used here in
the sense explained in the legal summary above.
12. In any case in which a cross-admissibility direction is contemplated, it is
essential to discuss with the advocates in the absence of the jury and before
closing speeches the need for and form of any such direction. While the
examples in this chapter are expressed as oral directions, the jury will inevi-
tably be assisted by some form of written direction.
13. In a ‘coincidence approach’ case, the jury should be directed as follows:
(1) They must consider each count separately.
(2) However, the prosecution rely on similarities between the evidence of
the complainants [identify the similarities].
(3) If the complainants have or may have concocted false accusations
against D, any such similarities would count for nothing, and the jury
should reject each complainant’s evidence.
(4) If there was no concoction but a complainant had or may have learned
what the other/s had said or were going to say about D, and had or
may have been influenced by this, consciously or unconsciously, when
making his/her own accusations, any such similarities would count for
nothing, and the jury should take this matter into account when decid-
ing how far they accept the evidence of the complainant concerned.
(5) If the jury are sure that there has been no such concoction/influence
they should consider how likely it is that two (or more) people would,
independently of each other, make similar accusations and yet both/all
be lying / mistaken. If the jury thought this unlikely they could, if they

80 [2008] EWCA Crim 544.

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thought it right, treat the evidence of each of the complainants as sup-

porting that of the other/s.*
(6) When deciding how much support, if any, the evidence of one com-
plainant gives to another the jury should take into account how similar
their accusations are, since the jury might take the view that the closer
the similarities the more likely it is that the complainants were telling
the truth.
* The directions in paragraphs (3) and (4) above should only be given if the
issue has arisen in evidence. If the issue has not arisen, the direction in para-
graph 5 should be modified accordingly.
See Example 1 below.
14. In a ‘propensity approach’ case the jury direction should be based on Chap-
ter 12-6: Bad Character s.101(1)(d). See also Example 1 in that chapter; and
Example 2 below.
15. Depending on the evidence and issues in the case, a direction based on both
coincidence and propensity approaches may be appropriate. However, such
a direction is likely to be complex and, unless great care is taken, confusing.
It is suggested that such a direction be given, if at all, only in cases where
the evidence on one or more counts is significantly stronger than that on
the other(s), and in which the jury might therefore convict on the stronger
count(s) first, and then treat that as establishing a propensity on D’s part to
commit offences of the kind charged in the other count(s). Examples would
be where there is a recording of D’s committing one of the offences charged
in the indictment; where one or more witnesses say that they saw D com-
mitting one of the offences charged; or where D is said to have confessed to
committing one of the offences charged.
16. If a direction based on both approaches is given, then to avoid the risk of the
impermissible double counting referred to in paragraph 3 above, it is sug-
gested that the jury be directed to consider the propensity approach first: see
Example 3 below.

Example 1: The ‘coincidence’ approach

Scenario: D is charged in count 1 with a sexual assault on V1 and in count 2 with
a similar sexual assault on V2. The only prosecution evidence comes from V1 and
V2 themselves. D claims that V1 and V2 have concocted false accounts.
I have already told you that you must consider each count separately.
However, the prosecution rely on the similarities between the allegations made by
V1 and V2. [Set out the similarities e.g. in relation to the nature, circumstances,
periods of time and locations of the alleged offences.]
D claims that the allegations are similar because V1 and V2 have got together to
make up false accusations against him. If you decide that this has or may have hap-
pened, the similarities would obviously count for nothing, and you would reject the
evidence of both V1 and V2.

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Even if you are sure that that V1 and V2 have not made up false allegations
together, you should consider whether either V1 or V2 might have learned what the
other was saying about D and have been influenced, knowingly or unknowingly, when
making his/her own allegations. If you decide that this has or may have happened,
the similarities between that complainant’s evidence and the evidence of the other
complainant would not take the prosecution’s case any further, and you would have to
take any influence of that kind into account when deciding how far you accepted that
complainant’s evidence.
However, if you are sure that there has been no such concoction or influence, you
should consider how likely it is that two people, independently of each other, would
make allegations that were similar but untrue. If you decide that this is unlikely, then
you could if you think it right, treat V1’s evidence as supporting that of V2, and vice
versa.
When deciding how far, if at all, the evidence of each supports the other, you should
take into account how similar in your opinion their allegations are. This is because
you could take the view that the more similar independent allegations are the more
likely they are to be true.

Example 2: The ‘propensity’ approach

Scenario: D is charged in count 1 with a sexual assault on V1 and in count 2 with a
sexual assault on V2. The prosecution evidence on count 1 is (a) the account given
by V1 and (b) a video recording which the prosecution say was made by D as he
committed the offence. The prosecution evidence on count 2 is only the account
given by V2. D claims that V1 and V2 have concocted false accounts and denies
that he is the person shown in the recording.
I have already told you that you must consider each count separately.
However if, but only if, you are sure that the person shown in the recording of
events in count 1 is D and that he committed that offence, you should next consider
whether that shows that he has a tendency to commit offences of the kind charged in
count 2.
If you are not sure that D has such a tendency then your conclusion that he com-
mitted the offence charged in count 1 does not support the prosecution’s case on
count 2. But if you are sure that D does have such a tendency then you may take this
into account when you are deciding whether D is guilty of count 2.
Bear in mind however that even if a person has a tendency to commit a particular
kind of offence, it does not follow that he is bound to do so. So if you are sure that D
does have a tendency to commit offences of the kind charged in count 2, this is only
part of the evidence against him on that count, and you must not convict him wholly
or mainly on the strength of it.

235
Appendix IV

Example 3: Both approaches

Scenario: D is charged in count 1 with a sexual assault on V1 and in count 2 with
a similar sexual assault on V2. The prosecution evidence on count 1 is (a) the
account given by V1 and (b) evidence given by V1’s mother that she saw D sexually
assaulting her daughter. The prosecution evidence on count 2 is only the account
given by V2. D claims that V1 and V2 have concocted false accounts and that V1’s
mother is lying.
I have already told you that you must consider each count separately.
However there are two ways in which the evidence on one count might support the
prosecution’s case on the other. You should consider these two ways in the following
order.
First consider count 1, where the prosecution rely not only on the evidence of V1
but also on that of her mother. If, having considered their evidence, you are sure that
D is guilty of count 1, you should go on to consider whether that shows that he has a
tendency to commit offences of the kind charged in count 2.
If you are not sure that D has such a tendency, then your conclusion that he com-
mitted the offence in count 1 does not support the prosecution’s case on count 2. But
if you are sure that D does have such a tendency then you may take this into account
when you are deciding whether D is guilty of count 2.
Bear in mind however that even if a person has a tendency to commit a particular
kind of offence, it does not follow that he is bound to do so. So if you are sure that D
has a tendency to commit offences of the kind charged in count 2, this is only part
of the evidence against him on that count, and you must not convict him wholly or
mainly on the strength of it.
The second way in which the evidence on one count might support the prosecution’s
case on the other is this. The prosecution also rely on similarities between the allega-
tions made by V1 and V2, [Set out the similarities e.g. in relation to the nature,
circumstances, periods of time and locations of the alleged offences.]
D claims that the allegations are similar because V1 and V2 have got together to
make up false accusations against him. If you decide that this has or may have hap-
pened, the similarities would obviously count for nothing, and you would reject the
evidence of both V1 and V2.
Even if you are sure that V1 and V2 have not made up false allegations together,
you should consider whether either V1 or V2 might have learned what the other was
saying about D and have been influenced, knowingly or unknowingly, when making
her own allegations. If you decide that this has or may have happened, the similari-
ties between that complainant’s evidence and the evidence of the other complainant
would not take the prosecution’s case any further, and you would have to take any
influence of that kind into account when deciding how far you accepted that com-
plainant’s evidence.

236
The Crown Court Bench Book Compendium

However, if you are sure that there has been no such concoction or influence, you
should consider how likely it is that two people, independently of each other, would
make allegations that were similar but untrue. If you decide that this is unlikely, then
you could, if you think it right, use V1’s evidence as support for the evidence of V2. For
the same reason, if you had not already reached a conclusion on count 1 on the basis
of the evidence of V1 and her mother, you could use the evidence of V2 as support for
their evidence.
When deciding how far, if at all, the evidence of each complainant supports the
other, you should take into account how similar in your opinion their allegations are.
This is because you could take the view that the more similar independent allegations
are, the more likely they are to be true.

237
Appendix V

Leading Cases
R v Hanson, Gilmore and P [2005] EWCA Crim 824, [2005]
1 WLR 3169, [2005] 2 CrAppR 21 (299) 238
R v Bovell and Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401) 248
R v Edwards, Fysh, Duggan and Chohan [2005] EWCA Crim 1813,
[2006] 1 CrAppR 3 (31) 253
R v Highton, Van Nguyen and Carp [2005] EWCA Crim 1985, [2005]
1 WLR 3472, [2006] 1 CrAppR 7 (125) 266
R v Renda, Ball, Akram, Osbourne, Razaq and Razaq [2005] EWCA
Crim 2826, [2006] 1 WLR 2948, [2006] 1 CrAppR 24 (380) 276
R v Weir, Somanathan, Yaxley-Lennon, Manister, Hong and De [2005]
EWCA Crim 2866, [2006] 1 WLR 1885, [2006] 1 CrAppR 19 (303) 288
R v Edwards and Rowlands, McLean, Smith, Enright and Gray [2005]
EWCA Crim 3244, [2006] 1 WLR 1524, [2006] 2 CrAppR 4 (62) 310

R v Hanson, R v Gilmore; R v P [2005] EWCA Crim 824, [2005] 1 WLR 3169,

[2005] 2 CrAppR 21 (299), CA, 22 March 2005; Rose LJ (Vice-President),
Hughes and Hallett JJ

A. Nicol QC, J. Lindsay, P. Bradley and S Tierney for the applicants

B. Houlder QC, G. Bridge, S. Powis and M. Maxwell-Burnside for the Crown

The Vice President, Rose LJ:

1. All members of the constitution have contributed to this judgment.
2. We have heard these three applications together because they raise similar questions
in relation to the admissibility of evidence of a defendant’s bad character under the recently
introduced provisions in sections 98 to 113 of the Criminal Justice Act 2003. These a bolish
the long established common law rules governing the admissibility of evidence of bad char-
acter and introduce a raft of new provisions.
3. Before turning to the individual cases, it is first convenient to set out our conclusions
in the light of the helpful submissions made to us by counsel as to the way in which trial
judges should approach their task when confronted by a prosecution application to adduce
such evidence. These comments are not intended to be a comprehensive treatise on the new
provisions. Their primary focus is on the issues raised in these applications.
4. The starting point should be for judges and practitioners to bear in mind that
Parliament’s purpose in the legislation, as we divine it from the terms of the Act, was to
assist in the evidence based conviction of the guilty, without putting those who are not
guilty at risk of conviction by prejudice. It is accordingly to be hoped that prosecution

238
Hanson et al

applications to adduce such evidence will not be made routinely, simply because a defend-
ant has previous convictions, but will be based on the particular circumstances of each case.
5. Section 101(1) provides seven possible gateways through which evidence of a
defendant’s bad character is admissible. The ones likely to be most commonly relied upon
by the prosecution are (d), where the evidence is relevant to an important matter in issue
between the defendant and the prosecution, (f), where the evidence is to correct a false
impression given by the defendant and (g), where the defendant has made an attack on
the character of another person who will often, though not always, be the victim of the
alleged crime, whether alive or dead.
6. The present applications are concerned only with the Crown wishing to rely
upon evidence of previous convictions rather than other evidence of bad character. By
section 103(1) matters in issue for the purpose of section 101(1)(d) include:
(a) the question whether the defendant has a propensity to commit offences of the kind
with which he is charged, except where his having such a propensity makes it no more
likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it
is not suggested the defendant’s case is untruthful in any respect.
By section 103(2) a defendant’s propensity to commit offences of the kind with which he is
charged may be established (without prejudice to any other way of doing so), by evidence
of conviction of an offence of the same description or category as the one with which he is
charged, but by section 103(3), this does not apply if the Court is satisfied that this would
be unjust ‘by reason of the length of time since the conviction or for any other reason’. The
Criminal Justice Act 2003 (Categories of Offences) Order 2004, Statutory Instrument 2004
No 3346, prescribes offences in the categories of theft and sexual offences against persons
under the age of 16.
7. Where propensity to commit the offence is relied upon there are thus essentially three
questions to be considered:
1. Does the history of conviction(s) establish a propensity to commit offences of the kind
charged?
2. Does that propensity make it more likely that the defendant committed the offence
charged?
3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any
event, will the proceedings be unfair if they are admitted?
8. In referring to offences of the same description or category, section 103(2) is not
exhaustive of the types of conviction which might be relied upon to show evidence of pro-
pensity to commit offences of the kind charged. Nor, however, is it necessarily sufficient,
in order to show such propensity, that a conviction should be of the same description or
category as that charged.
9. There is no minimum number of events necessary to demonstrate such a propensity.
The fewer the number of convictions the weaker is likely to be the evidence of propensity.
A single previous conviction for an offence of the same description or category will often
not show propensity. But it may do so where, for example, it shows a tendency to u nusual
behaviour or where its circumstances demonstrate probative force in relation to the offence
charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire
setting are comparatively clear examples of such unusual behaviour but we attempt no

239
Appendix V

exhaustive list. Circumstances demonstrating probative force are not confined to those
sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be
admissible to show propensity to steal. But if the modus operandi has significant features
shared by the offence charged it may show propensity.
10. In a conviction case, the decisions required of the trial judge under section 101(3)
and section 103(3), though not identical, are closely related. It is to be noted that word-
ing of section 101(3)—‘must not admit’—is stronger than the comparable provision in
section 78 of the Police and Criminal Evidence Act 1984—‘may refuse to allow’. When
considering what is just under section 103(3), and the fairness of the proceedings under
section 101(3), the judge may, among other factors, take into consideration the degree of
similarity between the previous conviction and the offence charged, albeit they are both
within the same description or prescribed category. For example, theft and assault occa-
sioning actual bodily harm may each embrace a wide spectrum of conduct. This does not
however mean that what used to be referred as striking similarity must be shown before
convictions become admissible. The judge may also take into consideration the respective
gravity of the past and present offences. He or she must always consider the strength of
the prosecution case. If there is no or very little other evidence against a defendant, it is
unlikely to be just to admit his previous convictions, whatever they are.
11. In principle, if there is a substantial gap between the dates of commission of and
conviction for the earlier offences, we would regard the date of commission as generally
being of more significance than the date of conviction when assessing admissibility. Old
convictions, with no special feature shared with the offence charged, are likely seriously to
affect the fairness of proceedings adversely, unless, despite their age, it can properly be said
that they show a continuing propensity.
12. It will often be necessary, before determining admissibility and even when consider-
ing offences of the same description or category, to examine each individual conviction
rather than merely to look at the name of the offence or at the defendant’s record as a
whole. The sentence passed will not normally be probative or admissible at the behest of the
Crown, though it may be at the behest of the defence. Where past events are disputed the
judge must take care not to permit the trial unreasonably to be diverted into an investiga-
tion of matters not charged on the indictment.
13. As to propensity to untruthfulness, this, as it seems to us, is not the same as pro-
pensity to dishonesty. It is to be assumed, bearing in mind the frequency with which the
words honest and dishonest appear in the criminal law, that Parliament deliberately chose
the word ‘untruthful’ to convey a different meaning, reflecting a defendant’s account of
his behaviour, or lies told when committing an offence. Previous convictions, whether for
offences of dishonesty or otherwise, are therefore only likely to be capable of showing a pro-
pensity to be untruthful where, in the present case, truthfulness is an issue and, in the earlier
case, either there was a plea of not guilty and the defendant gave an account, on arrest, in
interview, or in evidence, which the jury must have disbelieved, or the way in which the
offence was committed shows a propensity for untruthfulness, for example, by the making
of false representations. The observations made above in paragraph 9 as to the number of
convictions apply equally here.
14. As to section 101(1)(g), pre-2003 Act authorities will continue to apply when assess-
ing whether an attack has been made on another person’s character, to the extent that they
are compatible with section 106.
15. If a judge has directed himself or herself correctly, this Court will be very slow to
interfere with a ruling either as to admissibility or as to the consequences of noncompliance
240
Hanson et al

with the regulations for the giving of notice of intention to rely on bad character evidence.
It will not interfere unless the judge’s judgment as to the capacity of prior events to estab-
lish propensity is plainly wrong, or discretion has been exercised unreasonably in the
Wednesbury sense: Associated Provincial Picture Houses v Wednesbury Corpn. [1948] 1 KB
223 (compare Makanjuola (1995) 2 CrAppR 469 at 473E).
16. Furthermore, if, following a ruling that evidence of bad character is admissible, ade-
fendant pleads guilty, it is highly unlikely that this Court will entertain an appeal against
conviction (see Chalkley and Jeffries [1998] QB 848, 859A, 860A, 861G, 864G).
17. In cases of the kind we are considering, it is the Crown which begins the process
of applying to adduce evidence of bad character. It must specify the relevant gateways.
The form of application (BC2), prescribed by Rule 23E, inserted into the Crown Court
Rules 1982 by Statutory Instrument 2004 No 2991 (L18)1 requires that the Crown set out
‘a description of the bad character evidence and how it is to be adduced or elicited in the
proceedings including the names of any relevant witnesses.’ Form BC 3, similarly prescribed
for the use of the defence, calls for particulars of why it is contended that the evidence ought
not to be admitted. It follows from what we have already said that, in a conviction case the
Crown needs to decide, at the time of giving notice of the application, whether it proposes
to rely simply upon the fact of conviction or also upon the circumstances of it. The former
may be enough when the circumstances of the conviction are sufficiently apparent from its
description, to justify a finding that it can establish propensity, either to commit an offence
of the kind charged or to be untruthful and that the requirements of section 103(3) and
101(3) can, subject to any particular matter raised on behalf of the defendant, be satisfied.
For example, a succession of convictions for dwelling-house burglary, where the same is
now charged, may well call for no further evidence than proof of the fact of the convic-
tions. But where, as will often be the case, the Crown needs and proposes to rely on the
circumstances of the previous convictions, those circumstances and the manner in which
they are to be proved must be set out in the application. There is a similar obligation of
frankness upon the defendant, which will be reinforced by the general obligation contained
in the new Criminal Procedure Rules 2005 to give active assistance to the court in its case
management (see rule 3.3). Routine applications by defendants for disclosure of the cir-
cumstances of previous convictions are likely to be met by a requirement that the request
be justified by identification of the reason why it is said that those circumstances may show
the convictions to be inadmissible. We would expect the relevant circumstances of previous
convictions generally to be capable of agreement, and that, subject to the trial judge’s rul-
ing as to admissibility, they will be put before the jury by way of admission. Even where the
circumstances are genuinely in dispute, we would expect the minimum indisputable facts
to be thus admitted. It will be very rare indeed for it to be necessary for the judge to hear
evidence before ruling on admissibility under this Act.
18. Our final general observation is that, in any case in which evidence of bad character
is admitted to show propensity, whether to commit offences or to be untruthful, the judge
in summing-up should warn the jury clearly against placing undue reliance on previous
convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to
prejudice the minds of a jury against a defendant. In particular, the jury should be directed:
that they should not conclude that the defendant is guilty or untruthful merely because he
has these convictions; that, although the convictions may show a propensity, this does not

1 For the relevant part of the Criminal Procedure Rules 2015, see Appendix III above.

241
Appendix V

mean that he has committed this offence or been untruthful in this case; that whether they
in fact show a propensity is for them to decide; that they must take into account what the
defendant has said about his previous convictions; and that, although they are entitled, if
they find propensity as shown, to take this into account when determining guilt, propensity
is only one relevant factor and they must assess its significance in the light of all the other
evidence in the case. We do not purport to frame a Specimen Direction but the Judicial
Studies Board may wish to consider these observations in relation to their helpful Specimen
Direction No 24 on bad character.
19. We turn, now, to consider each of the applications.

Hanson:
20. On 26th January 2005, at Bradford Crown Court, following a pre-trial ruling by
Mr Recorder Babb, this applicant pleaded guilty to theft, a plea acceptable to the Crown
as an alternative to the single count of burglary in the indictment. He was sentenced to
9 months’ detention in a young offender institution. He applies for leave to appeal against
conviction and the Registrar has referred that application to the Full Court.
21. The circumstances were that, between about 2.00 and 3.30 pm on Saturday
24th July 2004, a carrier bag containing approximately £600 in cash was stolen from Paul
James’ bedroom within the private living quarters at a public house in Halifax. The appli-
cant had been drinking in the bar during the early afternoon. At some stage, after 2.00 pm,
but before 3.30, he had been given permission to enter the kitchen behind the bar, to make
up a bottle for his child.
22. The Crown’s case was that a stairway from the kitchen was the only effective means
of access to Mr James’ bedroom. It was the prosecution case that the applicant was the
only person with the opportunity to enter the bedroom and steal the money at that time.
Furthermore, the statement of the landlord, Mr Calland, was of considerable significance.
He described the applicant asking his mother to lend him some money. She said she did not
have any. Later, Mr Calland noticed the applicant go through into the back of the public
house. He did not question it, ‘as his mum lived upstairs’.
23. About an hour after he had asked his mum for some money, the applicant came to
the bar and ordered some drinks for himself and a group of four or five others for which he
paid with a £10 note. About an hour later he ordered another round and this time he paid
with a £20 note.
24. In interview by the police, the applicant denied the offence. He claimed that he had
not gone upstairs and there was, in any event, another means of access to Mr James’ room.
He said that he and Mr James did not get on and this was why he had been accused of
responsibility for the disappearance of the money. The police established that there was
another means of gaining access to the bedroom, via another staircase and door, but the
Crown’s case was that the door had been locked and there were no signs of it being tam-
pered with.
25. The applicant having earlier pleaded not guilty to the burglary count, the matter
came on for trial on 26th January 2005. Prior to the jury being sworn, the Crown sought
leave for details of the applicant’s previous convictions for dishonesty to be admitted, pur-
suant to section 101(1)(d). The Crown submitted that the convictions were relevant to an
important matter in issue between the defence and prosecution, namely, whether the appli-
cant had a propensity to commit offences of this kind and whether he had a propensity to
be untruthful within 103(1)(b).
242
Hanson et al

26. Counsel for the applicant in the Court below, as before us, resisted the application,
maintaining that the applicant’s previous convictions for dishonesty did not demonstrate
a propensity to commit burglary, and did not demonstrate a propensity to be untruthful
as opposed to dishonest. The defence further submitted that, even if the conditions
required by gateway (d) were met, the evidence should be excluded under section 103(3).
The Recorder ruled that there was no doubt that the applicant had a bad character, within
the meaning of sections 98 and 112 of the Act. He was satisfied, under gate way (d), that evi-
dence of that bad character was relevant to propensity to commit offences of the kind with
which he was charged. He had regard to the length of time between the applicant’s previous
convictions and the matters forming the subject of the offence before the court, as required
under section 101(4). The application to admit on the basis that the applicant had a pro-
pensity to be untruthful, the Recorder concluded, had been less easy to determine and he
said that he would have lacked sufficient information to determine that the applicant was
shown to have a propensity to be untruthful. He therefore refused to admit the evidence via
that route. The admissions of previous convictions was always likely to have an affect on the
fairness of proceedings. But to accede to the defence submission to exclude the applicant’s
bad character would be tantamount to saying that if a defendant’s record was bad enough
it would always be excluded, whereas a defendant with one or two convictions was likely to
have his bad character put before the jury. The Recorder concluded that admissibility of the
evidence of the applicant’s bad character, under (d), would not have such an adverse effect
on the fairness of the proceedings that it ought not to be admitted.
27. No issue was raised before the Recorder in relation to the adequacy of the prosecu-
tion’s notice of intention to rely on the previous convictions, although, in fact, no written
notice had been given. Although the Recorder was not invited to admit in evidence the
applicant’s convictions when he was aged under 14, and the offences of dishonesty relied
on by the prosecution were all within the theft category in Part 1 of the Schedule to the
categories of offences order, he looked at the previous dishonesty offences globally, without
considering, or apparently being invited by counsel to consider, the relevance to propensity
of the individual convictions. In this respect, for the reasons given earlier, he was in error.
For example, convictions for handling and aggravated vehicle taking, although within the
theft category, do not, in our judgment, show, without more pertinent information, pro-
pensity to burgle as indicted or to steal, to which the applicant pleaded guilty. The appli-
cant’s robbery conviction, albeit also within the theft category, might, had it been analysed,
have been regarded as being so prejudicial as to adversely affect the fairness of the proceed-
ings in relation to the offence charged. But the applicant had a considerable number of con-
victions for burglary and theft from a dwelling, which were plainly properly admissible to
show propensity to commit an offence of the kind here charged. The other evidence against
the applicant was powerful, particularly that of Mr Calland, which we have rehearsed.
28. If, as the Recorder anticipated, appropriate directions were given to the jury, the
convictions would not have had such an adverse effect on the fairness of the proceedings
that they ought not to be admitted. Accordingly, although, as it seems to us, the Recorder’s
ruling could and should have been more narrowly confined, it was in substance correct.
The Recorder was also correct to rule that the convictions for dishonesty were not, without
more information, admissible to show propensity to be untruthful. It cannot generally be
a sound objection to admissibility that the defendant has a very large number of previous
convictions capable of showing propensity. This, as it seems to us, merely makes the evi-
dence more compelling.

243
Appendix V

29. In the event, following the ruling and legal advice, the applicant unambiguously
pleaded guilty to theft. As explained earlier, a plea of guilty is generally a bar to an appeal
against conviction. We are wholly unpersuaded by Mr Nicol, by reference to Bailey, Brewin
and Ghangi [2001] EWCA 733, the comment on that decision in Archbold news on
27th June 2001, paragraph 13 in Lord Bingham’s speech in Attorney-General’s Reference (No
2 of 2001) [2004] 2 AC 72, or otherwise, that the circumstances of the applicant’s plea of
guilty afford him any basis for appealing against his conviction. No unfairness resulted from
the Recorder’s ruling. The conviction was safe. It was for those reasons that we yesterday
refused his application for leave to appeal against conviction.

Gilmore
30. On 11th February 2005, at Wood Green Crown Court, following a trial before
Mr Recorder Etherington QC, this applicant was convicted of theft and sentenced to four
months’ imprisonment. His application for leave to appeal against conviction has been
referred to the Full Court by the Registrar.
31. The facts were these. Between 22nd and 29th July 2004 a fax machine and two adult
videos, which belonged to the complainant, were stolen from his locked garden shed in
Enfield. On 29th July, at about 12.30 in the morning, police noticed the applicant in a road
nearby, carrying a bag filled with electrical items and a torch. The applicant told the police
that he had found the bag and torch next to some rubbish bins in the alleyway directly
behind the complainant’s garden and he believed it to be rubbish. He had taken the bag
to see if the electrical items worked. The police then noticed that the complainant’s shed
door had been broken into and they alerted the complainant. He confirmed that the bag
recovered from the applicant contained his property, which had been stored in the shed.
32. The prosecution case was that the applicant had stolen those items, or had taken
them from the alleyway knowing perfectly well that they belonged to somebody else. The
defence case was that the applicant had seen the property in the alleyway and climbed over
a gate to take it, believing it to be abandoned as rubbish. The applicant gave evidence in his
defence.
33. The issue for the jury was therefore whether the applicant had stolen the property
from the shed or whether he had found it abandoned in the alleyway. If they found that
it had not been abandoned, then they had to be sure that the appellant knew the property
belonged to somebody else.
34. The appellant gave evidence and that evidence included a reference to the three con-
victions for shoplifting to which he said he had pleaded guilty. It is to the Recorder’s ruling,
admitting evidence in relation to those convictions, that this application is directed. The
first of those three offences was committed on 4th March 2004 and conviction followed
the following day. The second offence was committed on 21st March and the third on 13th
April. The convictions in relation to the second and third offences took place on 30th June.
The material before the Recorder, at the time of his ruling, indicated that the defendant had
pleaded guilty to two of those three offences.
35. No written notice of intention to rely on the previous convictions was given in
accordance with the Crown Court (Amendment No 3) Rules of 2004. Objection was taken
by the defence to the Crown’s failure to provide such notice. But it was conceded by the
defence that there was no prejudice in dealing with the application to extend the time limits.
36. The Recorder, on 10th February 2005, took into account, as he was entitled to, that
it was only since 14th January 2005, and the decision of this Court, differently constituted
244
Hanson et al

in Bradley [2005] EWCA Crim 20, [2005] 1 CrAppR 397, that it had been appreciated that
the provisions of this part of the 2003 Act applied to trials taking place after 15th December
2004, whether or not the proceedings were instituted before that date.
37. The rules provide in 23E(7) that the Crown Court may allow oral notice and shorten
or extend time limits if it is in the interests of the justice to do so. In our judgment, the
Recorder’s exercise of discretion, in relation to notice, bearing in mind in particular the
conceded absence of prejudice, was impeccable.
38. It is correct, as Mr Nicol submits, that the Recorder in his ruling identified the dates
of conviction of the three offences rather than the dates of commission of the offences. In
the present case, having regard to the respective dates which we have rehearsed, that is of
no significance. All three of these shoplifting offences were committed within a six week
period, ending 3 months before the date of the offence charged. The Recorder was fully
entitled to conclude that the offences showed a recent persistent propensity to steal. He
was also entitled to conclude, bearing in mind, in particular, that the material before him
showed pleas of guilty to two of the three offences and there was no further information
about the offences before him, that none of them showed a propensity to be untruthful.
There was substantial evidence against the applicant apart from the convictions. He had
been found, after midnight, in a dark alley, leading to the garden in which was the shed from
which the goods had been stolen. He had a torch in his possession. His explanation was
that he had found the goods stacked by rubbish and had seen them there two days before.
In our judgment, the previous convictions were plainly relevant to the issue of whether his
possession of the goods, in those circumstances, was innocent or criminal. They established
propensity to steal, and that propensity increased the likelihood of guilt. There is not, nor
could there be, any criticism of the way in which the Recorder dealt with these matters in
his summing-up. There is no arguable ground that Gilmore’s conviction is unsafe. It was for
these reasons that his application for leave to appeal against conviction was refused.

P
39. On 24th January 2005 at Wolverhampton Crown, following a trial before His Honour
Judge Eades, the applicant was convicted on counts 1 and 2 of indecent assault on a female
and on counts 3, 5 and 6 of rape. He was acquitted on count 4 of anal rape. On 4th March
he was sentenced, in total, to an extended sentence of 10-and-a-half years, the custodial
term of which was 8 years and the extended period of licence two-and-a-half years. He
applies for leave to appeal against conviction and that application has been referred to the
Full Court by the Registrar.
40. In July 1993 the applicant had pleaded guilty to indecent assault on an 11 year old
girl and had been sentenced to two years’ probation.
41. The facts were that the applicant met his wife, the complainant’s mother, before that
conviction. The complainant and her twin brother were born in May 1994, and there was
another sister born in 1996.
42. When the complainant was born, the applicant was living at a bail hostel. Some time
later, at his instigation, his wife moved in with his mother. At about Christmas 1996, he
was allowed back to live with the family as a result of him having entered into a contract
with social services whereby he undertook never to be alone with his children or to dress or
bathe them, or to do anything that might trigger his fantasies, to which, in a moment, we
shall return. The other members of the family agreed to that.

245
Appendix V

43. On 4th July 2002, the complainant was interviewed on video by police officers,
f ollowing concerns on the part of the social services that their agreement with the applicant
had been broken. At that time the complainant made no allegation of sexual impropriety
against the applicant. The following month the complainant and her siblings were removed
from the family by the social services and were placed with foster parents.
44. In March 2004 the complainant girl made a series of revelations to her foster mother
which led to the police investigating. In consequence, on 11th May 2004 the applicant was
arrested. In interview, he gave an account which foreshadowed the evidence which he was
to give before the jury. The details of the offences are immaterial for present purposes. It
suffices to say that count 1, of indecent assault, related to an occasion in the applicant’s car,
when the girl said he had inserted his finger into her vagina; count 2, of indecent assault, had
occurred, she said, in the applicant’s mother’s bedroom. Again, the applicant had inserted
his finger into her vagina. Counts 3 and 4, of rape (and it will be recalled that the applicant
was acquitted on count 4) had occurred, the girl said, downstairs in the living room. Counts
5 and 6, of rape, had occurred in the applicant’s bedroom, when the complainant’s twin
brother was on a Playstation.
45. The prosecution case was based, in part, on the evidence of the complainant but, in
significant part also, on the medical evidence of injuries to her hymen and vagina which
were described as being consistent with digital or penile penetration, the latter being slightly
the more likely. There was no anal damage found. The prosecution also relied on the appli-
cant’s previous conviction, in 1993, as showing a propensity, making it more likely that he
had committed these offences.
46. The defence case was that the complainant had made up the allegations in order to
procure the applicant’s removal from the family home, which would have enabled the girl
to leave her foster parents and move back home. Any injuries, according to the defence,
must have been caused either accidentally or by someone else.
47. The defendant gave evidence that he had fantasies about girls of 9 years and upwards
which had continued since the time of his previous conviction and they could be triggered
by a variety of events. He denied any form of sexual misbehaviour towards the complain-
ant. The issue for the jury was therefore the credibility of the complainant and the appli-
cant, in the context of the medical evidence.
48. The Crown sought to have the applicant’s 1993 conviction admitted under
gateways (d), (f) and (g). The judge ruled it was admissible under (d) and (g) but not
under (f). No objection before the judge was taken by the defence in relation to the lack of
written notice by the prosecution of intention to rely on the conviction.
49. The crucial question before us is whether the judge was entitled to admit evidence
of the 1993 conviction. He concluded, correctly, that the earlier offence was of the same
description and the same category, within the Criminal Justice Act 2003 (Categories of
Offences) Order 2004 (SI 2004/3346),2 as the offences charged. He expressly took into
account the length of time since the previous offence and said that ‘a defendant’s sex-
ual mores and motivations are not necessary affected by the passage of time.’ He said
that the passage of time was not here sufficient to make the admission of the evidence
unjust. He concluded that it had significant probative value, and its admission would not
adversely affect the fairness of the proceedings. He therefore admitted the evidence under
(d). He also admitted it under (g) on the basis that what the defendant had said in inter-

2 Set out in Appendix II above.

246
Hanson et al

view was a false allegation giving rise to an attack on the complainant’s character within
section 106(1)(c)(i) and (2)(b). He declined to admit the evidence under (f), to correct a
false impression, because of the defendant’s assertion that the complainant had a motive
to have the defendant removed from the matrimonial home. In that respect the judge was
right. The suggestion made in interview did not amount to the giving of a false impression,
which, as section 105(1) makes clear, must be ‘about the defendant’.
50. In our judgment, the judge’s conclusions as to (d) and (g) are unassailable. We do
not accept Mr Nicol’s submission that the judge imposed a burden on the defence in rela-
tion to lapse of time. Nor is the fact that the conviction was spent under the Rehabilitation
of Offenders Act 1974 relevant. What the defendant said in interview was an attack on
the girl’s character. It is true, as Mr Nicol reminded us, that the interview took place some
months before the 2003 Act came into force. He submitted that the conviction, therefore,
had to be excluded under section 101(3), on the ground that, at the time of the interview,
an attack or imputation on a prosecution witness, made only in interview, would not have
triggered the provisions of section 1(3) of the Criminal Evidence Act 1898. Whether or not
this argument was put before the trial judge, we do not accept it. The law of admissibility in
a trial is that in force at the time of trial. There is no question of the defendant being tried
for conduct which was not a crime at the time of its commission. Nor do we accept that the
evidence had to be excluded because the defendant was not warned at the time of the inter-
view of the possible consequences of what he said. Anyone who makes a self-serving asser-
tion of significance in interview can expect the Crown to seek to adduce, at the subsequent
trial, relevant and admissible evidence to refute it. In this case, that included the evidence of
the defendant’s earlier conviction.
51. Mr Nicol was also critical of the summing-up. There was undoubtedly an error by
the judge as to why the evidence had been admitted. But this was corrected. Mr Nicol makes
a further criticism of the judge’s direction on credibility. We have not heard full argument
as to whether it is right or indeed necessary to give a credibility direction where evidence of
bad character has been admitted under this Act, nor as to whether the nature of the direc-
tion should be dependent on the gateway through which the evidence has been admitted.
But, in this case, the defendant’s credibility was so inextricably bound up with whether he
had committed the offences that no sustainable criticism can be made of this aspect of the
summing-up.
52. Mr Nicol also criticised the judge’s failure to warn the jury that the fact that the social
services had taken the girl away in 2000 was not of itself evidence that the defendant had
breached his agreement with the social services. It was not, in our judgment, incumbent on
the judge to give such a warning. But, in any event, its absence cannot possibly render the
verdicts unsafe. The jury cannot have failed to appreciate that their deliberations should
focus on the credibility of the defendant and the complainant, in the context of the medical
evidence. That this happened is demonstrated by their acquittal on count 4 alleging anal
rape.
53. There is no reason to regard P’s conviction as, even arguably, unsafe. It was for these
reasons that we refused him leave to appeal.

Applications for leave to appeal refused.

247
Appendix V

R v Bovell; R v Dowds [2005] EWCA Crim 1091, [2005] 2 CrAppR 27 (401), CA,
25 April 2005; Rose LJ (Vice-President), Gibbs and Stanley Burnton JJ

J Anders and M Hurst for the applicants

B Houlder QC, V Vyas and S Knight for the Crown

The Vice-President, Rose LJ:

1. These two applications for leave to appeal against conviction have been referred to
the Full Court by the Registrar. Although they are unrelated, we have heard them together
because they provide further examples of the application of the bad character provisions
in sections 98 to 113 of the Criminal Justice Act 2003 which were considered by this Court,
differently constituted, in R v Hanson, Gilmore and P [2005] EWCA Crim 824.3
2. These cases afford no basis for further general guidance, but we think it desirable to
mention two additional matters. First, it is necessary for all parties to have the appropriate
information in relation to convictions and other evidence of bad character, whether in rela-
tion to the defendant or to some other person, in good time. That can only be achieved if
the rules in relation to the giving of notice are complied with. It is worth mentioning that
the basis of plea in relation to an earlier conviction may be relevant where it demonstrates
differences from the way in which the prosecution initially put the case. In other words, a
mere reference to the statement of a complainant in an earlier case may not provide the
later court with the material needed to make a decision as to the admissibility of the earlier
conviction. Secondly, it is apparent that difficulties may arise in relation to the preservation
and storage of information, having regard to the present provisions of paragraph 5.8 in the
Current Code of Practice made under Part II of the Criminal Procedure and Investigation
Act 1996. That provides for the retention of relevant material until a convicted person is
released from custody, or discharged from hospital, in cases where the court imposes a
custodial sentence or a hospital order, or, in all other cases, for 6 months from the date of
conviction.
3. It is not feasible for this Court, today, to propose any amendment of that provision.
But consideration as to whether it should be amended in the light of the obligations arising
from the bad character provisions of the Criminal Justice Act 2003 ought, as it seems to us,
to be given, in particular by the prosecuting authorities.
4. We turn to the case of Bovell. He was convicted at Woolwich Crown Court, on 27th
January 2005, following a trial before His Honour Judge Moss, of wounding with intent.
The following day he was sentenced to five-and-a-half years’ imprisonment and an order
for forfeiture of golf clubs was made under section 1(2) of the Prevention of Crime Act
1953.
5. In outline, the facts were that, on 5th September 2004, the applicant was involved in
an altercation with a shopkeeper, Singh Harjinder Nazran, outside his shop. The culmina-
tion of the incident was that Mr Nazran was stabbed three times, twice to the leg and once
in the buttock. The applicant ran away before the police arrived. The prosecution case was
that the applicant had deliberately stabbed Mr Nazran, intending serious harm.
6. The defence case was that it was the applicant who had been attacked by
Mr Nazranand he, the applicant, was acting in self-defence.
7. Mr Nazran gave evidence that the incident occurred after 7 o’clock in the evening.
He knew the applicant. The applicant asked for credit. Mr Nazran refused. A little later, the

3 See p 238 above.

248
Bovell and Dowds

applicant returned. He was aggressive. So much so that the complainant put his daughter,
who was with him, inside the shop. The applicant was accompanied by his girlfriend, who
had a golf club. The applicant walked up to him, seized the golf club from his girlfriend,
which she immediately snatched back, and came towards the complainant face-to-face.
According to the complainant, the applicant was ranting and raving and stabbed him in the
top part of his left thigh. At first he felt nothing, but, as he turned to get a piece of wood, his
leg gave way. There upon he was stabbed in the buttock by the applicant.
8. At hospital there were found to be two cuts in his leg. They were stitched together
and the wound in his buttock was also stitched.
9. The defence sought to adduce before the jury, under section 100 of the Criminal
Justice Act 2003, evidence of the bad character of Mr Nazran. The material then available
was a conviction for handling stolen goods in October 1993, when the complainant was 20,
for which he was fined and a conviction for robbery, committed in 1993, for which he had
been sentenced to 4 years’ imprisonment, following a guilty plea. The details of that offence
of robbery then provided were that Mr Nazran had attacked his victim, placed a bag over
his head, threatened him and stolen his property.
10. The defence submitted that these convictions were relevant and admissible, in
accordance with section 100(1)(b), that is to say, they had substantial probative value. It
was said that they showed Mr Nazran’s propensity to act violently and also went to his
credibility.
11. The trial judge concluded that he could not imagine a jury giving any weight to the
previous convictions at all. They were over a decade ago, and neither of them involved,
on the information then before the court, a weapon. He was not persuaded that they had
substantial probative value and he declined to permit evidence in relation to them to be
adduced. It is that aspect of the matter which is at the heart of the present application and
to it we shall shortly return.
[12. and 13. The court described further evidence called by the prosecution, which cor-
roborated Mr Nazran’s account.]
14. The applicant, in evidence, said that he had gone to the shop initially to buy a drink.
He was a few pence short and asked if he could owe the balance. The complainant had
sworn at him. He, the applicant, had sworn back and called the complainant a ‘drunken
idiot’. He had gone to his girlfriend’s to get the money he needed. He went back to the shop
followed by his girlfriend, who had a golf club, although he did not. He had reached for
the golf club because he was afraid of the complainant’s dog, but she had snatched it back.
Someone had hit him from behind and on the side and he suspected that that was Mr Doal.
He had been winded by that. He was slumped over and heard a knife drop. He picked it up
and waved it around in front of him at leg height, to frighten the complainant, not to harm
him. He did not intend to make any contact with the complainant. He just wanted to stop
the hitting. He saw blood on the knife and the complainant running away. He panicked and
ran away himself, throwing away the knife. He denied, in cross-examination, having had the
knife with him. It had, he said ‘just appeared’.
15. The grounds of appeal challenge the judge’s refusal to accede to the defence applica-
tion to put the complainant’s previous conviction and a caution before the jury. As a result
of disclosure which has taken place in connection with this appeal, it appears that in the
robbery, (committed in 1993, but for which the complainant was not tried until 1996 or
1997) the complainant, had carried a knife. That, as is apparent from the ruling which he
gave, was not something which the judge knew about.

249
Appendix V

16. The submission is made by Mr Anders, on behalf of the applicant, that, had he
known about that, the judge might very well have reached a different decision and permit-
ted the jury to hear the evidence in relation to the complainant’s robbery conviction.
17. It has also emerged that, in May 2001, the complainant was accused of violence and,
in consequence, charged with an offence of wounding with intent, contrary to section 18
of the Offences Against the Person Act. That was a matter which was not known at the time
of trial. It is now known that the charge was not, ultimately, pursued. On the day on which
he made the allegation against the complainant in the present case, the victim stressed that
he did wish to proceed. Two days later, it appeared that there was a dearth of witnesses of
the incident about which he complained. Four days after the allegation had been made, the
officer in the case expressed concern about the credibility of the victim. The matter was not
pursued because the victim, in a written statement, on 18th June, withdrew the allegation
against the present complainant, for reasons which, even now, are not known.
18. The submission made by Mr Anders, in relation to that section 18 charge is that it
gave rise to evidence within section 100(1) which was substantially probative in relation to
the allegation made against this applicant. Therefore, it is said, had the judge known of the
material now available, both in relation to the carrying of a knife in the robbery offence in
1993, and the events of 2001, he would have admitted evidence of both those matters in
relation to the character of the complainant. Mr Anders submits that, that being so, it is
impossible for this Court to be sure of the safety of the conviction. It might be that had the
jury known of these matters, their verdict would have been different.
19. In response, on behalf of the Crown, Mr Houlder QC submits that, so far as the1993
robbery is concerned, the judge’s conclusion may or may not have been different had he
known of the knife. So far as the events in 2001 are concerned, Mr Houlder submits that
they do not give rise to evidence, still less of evidence of substantial probative value, within
the terms of section 100(1)(b), and the learned judge, even had he known about those
matters, could and would not properly have permitted them to be elicited before the jury.
20. In any event, Mr Houlder submits, had material of either of the kinds now relied
on, in relation to the complainant’s bad character, been admitted by the judge, it would
have been inevitable that the judge would have acceded to a prosecution request, either
to adduce evidence of, or to cross-examine the applicant about, his previous convictions.
They, as is apparent from his record, were numerous in relation to dishonesty and, more
specifically, he had been imprisoned in 1997 for possessing an offensive weapon in a public
place and, in September 2001, he had been imprisoned for three separate offences of com-
mon assault. Those matters, submitted Mr Houlder, demonstrated not just dishonesty but
a propensity to use violence and the possession of an offensive weapon. Had that material
been before the jury, who had also known of the complainant’s 1993 conviction for rob-
bery and the accusation of section 18 wounding in 2001, their verdict would have been no
different. There is no ground to question the safety of the conviction when there is also
borne in mind the significant other evidence in the case, in particular, confirmation of the
complainant’s account by both Mr Doal and Miss Drummond. The jury had seen all the
witnesses and, of particular significance, one of the wounds sustained by the victim was to
his left buttock which, Mr Houlder submits, is an unlikely source of wounding if the appli-
cant had been acting as he claimed, either accidentally or in self-defence. Furthermore, the
applicant admitted that he himself used insulting words towards the complainant and the
complainant’s cousin. The jury would, inevitably, have come to the same conclusion. In any
event, submits Mr Houlder, the events in 2001 would not have been admitted in evidence
by the trial judge, even had he known about them.
250
Bovell and Dowds

21. As it seems to us, it may be that the judge’s decision with regard to the admissibility
of the robbery offence, in 1993, might have been different had he known that the complain-
ant had then been carrying a knife. It is to be noted, however in relation to that offence,
that, notwithstanding he was only prosecuted for it some years later, when fingerprint evi-
dence come to light, the complainant immediately admitted his guilt. This would have been
relevant to the judge’s decision. It seems to us to be unlikely in the extreme that the judge,
had he known of the events in 2001, would have admitted the allegation of a section 18
offence made against the complainant. We say that, first, because we entertain considerable
doubt as to whether the mere making of an allegation is capable of being evidence within
section 100(1). As the allegation was, in the circumstances which we have identified, with-
drawn, our doubt on this aspect is increased.
22. It is apparent from the circumstances, as we have summarised them, that if there
was to be any question of the section 18 allegation being admitted before the jury, it would
necessarily have given rise to investigation of the other subsequent matters, including the
aspersions on the credibility of the victim, the want of independent confirmation of his
account, and the fact that he had withdrawn the allegation. An excursion into those s atellite
matters is, as it seems to us, precisely the sort of excursion which, as was suggested in
paragraph 12 of the judgment in Hanson, a trial judge should be discouraged from embark-
ing upon. All of this adds to the unlikelihood of the judge permitting evidence of the 2001
events even if they had been known about at trial.
23. As it seems to us, even if the judge had admitted the complainant’s conviction for
robbery and even if, which for the reasons we have given, we think highly unlikely, he had
admitted the allegation of section 18 wounding, we are entirely unpersuaded that that
might have affected the jury’s verdict. We say that in part because of the inevitable con-
sequences of the jury learning of the applicant’s record and in part because of the other
powerful evidence against the applicant.
24. Despite Mr Anders’ able submissions, we are unpersuaded that it is arguable that
Bovell’s conviction is unsafe.
25. We turn to Dowds. On 28th January 2005, at Nottingham Crown Court, following a
trial before Miss Recorder Dix-Dyer, he was convicted of burglary and he was subsequently
sentenced to 2 years’ detention in a young offender institution. A coaccused called Travis
Leleu, had pleaded guilty on 26th January and he received a similar sentence.
26. The facts were that, at about 8 o’clock on the evening of 30th August 2004, a house
in Beeston was burgled. Entry was gained by the co-accused using a key. There was no
evidence that anything had actually been stolen; indeed, the Crown’s case was that, in con-
sequence of that entry, the applicant had left some items there, in particular, an orange and
brown shoe box containing trainers and a poster. It appeared that the co-accused was claim-
ing squatter’s rights and had left a bag of his own in the premises.
27. The applicant had been seen, by someone living near the burgled house, carrying the
box, prior to leaving it in the premises.
28. It was the prosecution case that the burglary enterprise was joint, involving both the
applicant and the co-accused. The applicant’s defence was that he had never gone into the
house and he had no idea how the items connected to him had come to be inside.
29. The applicant had, on two previous occasions, pleaded guilty to an offence of
burglary. It is at the heart of this appeal whether the learned Recorder ought properly to
have permitted evidence in relation to those convictions, dating from when the applicant
was aged 16 and 18 (he now being 19) to be before the jury.

251
Appendix V

30. It was conceded at trial by Mr Hurst, then as now appearing for the applicant, that in
the course of giving evidence, the applicant made an attack on another person’s character,
within section 101(1)(g) of the Act. That came about in the following way. In the course of
his evidence in-chief, Mr Hurst asked the applicant a question, which in his submission to
us, he described as intended to elicit part of the background, but which in fact elicited from
the applicant an answer which Mr Hurst had not been expecting. The answer was, in effect,
that, on the day before the burglary of which the applicant was accused, his coaccused,
Leleu, had committed another burglary.
31. The submission which Mr Hurst makes is that, notwithstanding this was undoubt-
edly an attack on another person’s character, the learned Recorder, in the exercise of her
discretion, when addressing the fairness of the proceedings under section 101(3) ought
not to have admitted evidence of the applicant’s two convictions for burglary. The sole
basis advanced by Mr Hurst for the claim of unfairness in admitting the evidence is that
the defendant’s motive in giving the answer which he did may not have been to attack the
coaccused.
32. As it seems to us, there are two difficulties with that proposition. First, in our judg-
ment, it cannot have been Parliament’s intention that, in order to assess ‘adverse effect on
the fairness of the proceedings’, a trial judge should conduct some sort of investigation
on the voir dire or otherwise as to why a defendant gave the answer which he did. Impact
on the fairness of the proceedings must be assessed, in our judgment, by reference to mat-
ters other than what the particular defendant’s intention in giving an answer may or may
not have been. Secondly, having regard to the account of the applicant’s evidence set out in
detail, in particular, at pages 20 and 21 of the transcript of the summing-up, it is difficult to
the point of impossibility to accept that the defendant’s motive in giving the answer which
he gave was not to cast an aspersion upon his co-accused. The applicant gave an account
of what occurred, including his co-accused kicking in the door of the premises, and he,
the applicant, storming off because he did not like what the co-accused was doing. For a
person with two fairly recent previous convictions for burglary, that is an account which,
to put it no higher, would not seem to sustain the suggestion that the applicant’s reason
for the answer he gave was not to be critical of the accused. That is particularly so, bearing
in mind that the whole thrust of the applicant’s defence was that only the co-accused was
involved in this burglary and he, the applicant, was not. It is, in that context, perhaps worth
commenting that evidence in relation to the applicant’s bad character would, as it seems
to us, have been admissible, under section 101(1)(f), to correct a false impression given by
the defendant. It is unnecessary further to explore that aspect of the matter. But it suffices
to say that, in our judgment, despite Mr Hurst’s submissions, there is no basis for suggest-
ing that the learned Recorder exercised her discretion under the statute in a way which was
other than correct. That being so, Dowds’ application does not, in our judgment, afford any
arguable ground for challenging the safety of his conviction. Accordingly his application is,
likewise, dismissed.

Applications for leave to appeal refused.

252
Edwards et al

R v Edwards; R v Fysh; R v Duggan; R v Chohan [2005] EWCA Crim 1813,

[2006] 1 CrAppR 3 (31), CA, 29 June 2005; Rose LJ (Vice-President),
Holland and Richards JJ

F Arshad, J Lynn, J McCrindell and J Samuels for the applicants B Houlder QC and
A Bassano for the Crown

The Vice-President, Rose LJ:

1. These four cases have been listed and heard together because they provide further
examples to add to those previously considered by this Court in Hanson and Others [2005]
EWCA Crim 824, p 183 above and Bovell and Dowds [2005] EWCA Crim 1091, p 193 above
of the admissibility of bad character under sections 98 to 113 of the Criminal Justice Act 2003.
2. Because of grounds which have been advanced in the cases of Fysh and Duggan in
particular, in relation to alleged non-compliance in the respective summings-up with
observations made by this Court in paragraph 18 of Hanson, it is convenient, before turn-
ing to the individual cases, to make some general observations in relation to that part of
that judgment.
3. The guidance proffered in paragraph 18 of Hanson as to what a summing-up should
contain was, as is apparent from the last sentence of the paragraph, not intended to provide
a blueprint, departure from which will result in the quashing of a conviction. What the
summing-up must contain is a clear warning to the jury against placing undue reliance on
previous convictions, which cannot, by themselves, prove guilt. It should be explained why
the jury has heard the evidence and the ways in which it is relevant to and may help their
decision, bearing in mind that relevance will depend primarily, though not always exclu-
sively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the
evidence has been admitted. For example, some evidence admitted through gateway (g),
because of an attack on another person’s character, may be relevant or irrelevant to propen-
sity, so as to require a direction on this aspect. Provided the judge gives such a clear warning,
explanation and guidance as to use, the terms in which he or she does so can properly differ.
There is no rigid formula to be adhered to. That said, there is, in the case of Chohan, a sum-
ming-up by Judge Mort which seems to us to be almost impeccable and which could serve
as a model in many cases where evidence of bad character is admitted. We shall rehearse the
relevant passage in that summing-up when dealing with Chohan’s application.
4. We turn, first, to the case of Edwards. On 24th February 2005, at Manchester Crown-
Court, following a trial before Mr Recorder Finestein, this applicant was convicted on two
counts of common assault, on counts 1 and 2, and of having a bladed article in a public
place on count 4. He was acquitted on count 3, of having an offensive weapon. He was sen-
tenced to 2 months’ imprisonment on each of the counts of common assault consecutively
to each other, and to a further 8 months consecutively for possession of a bladed article.
His total sentence was therefore 12 months’ imprisonment, and an order was made under
section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for forfeiture of the
knife. His applications for leave to appeal against conviction and sentence were referred to
the Full Court by the Registrar.
5. The facts were these. On 30th April 2004 two police officers stopped the applicant,
who was driving a motor vehicle along Queen’s Road, Manchester. They asked to see his
licence and searched his car. They discovered a bottle of ammonia, which gave rise to
count 3, in relation to which, as we have said, he was acquitted. The officers sought to arrest

253
Appendix V

the applicant. A scuffle ensued. The officers and the applicant sustained minor injuries. The
applicant was taken to a police station where he voluntarily handed over a lock-knife, which
gave rise to count 4. It was the prosecution case that the applicant had assaulted the officers
while they were lawfully seeking to arrest him and that he had no good reason for being in
possession of the lock-knife. It was the defence case that the police officers had carried out
an unprovoked assault on the applicant. He claimed to have a good reason for being in pos-
session of the lock-knife, namely, he had used it on a fishing trip a couple of days previously,
and had then completely forgotten about it.
6. The first of the officers to give evidence, Police Constable Smithwaite, described the
applicant swearing at him and being generally obstructive when he, the officer, reached his
car. There was a struggle inside the car as the other officer, Constable Bryson, went to get
the keys. Then there was a struggle outside the car, during which the officers restrained the
applicant by getting him onto the floor. The officer admitted in cross-examination that,
during this altercation, he had himself sworn at a passer-by. Constable Bryson gave a similar
account of the aggressive and uncooperative nature of the applicant’s behaviour. A further
officer described the knife as being located, not as the applicant claimed on his belt, but
down the front of his trousers inside his jeans.
7. In interview, the applicant essentially said nothing in response to questions; he read
a prepared statement, denying the offences and saying he had been mistreated by the police.
8. At the outset of the trial, the prosecution sought to adduce evidence of the appli-
cant’s previous convictions for robbery and dwelling-house burglary in 1992 in relation
to the issue of credibility pursuant to section 101(1)(d). The Recorder ruled, at that stage,
that, due to the age of the offences, it would not be right to allow that material to go before
the jury. However, during the course of the prosecution case, the defence mounted a severe
attack on the prosecution witnesses. Accordingly, the prosecution case made a further appli-
cation to introduce evidence of bad character, under gateway (g), because of that attack.
9. On behalf of the defence, Miss Arshad accepted that the defendant had attacked the
character of the two prosecution witnesses. But she invited the Recorder to exclude the
evidence under section 101(3) on the basis that, by reason of the length of time, it would
be unjust for the evidence to be admitted, bearing in mind that the offences were 13 years
old; and their prejudicial effect, it was said, would outweigh their probative value. The
Recorder ruled that, in view of the sustained attack on the character of the police, the jury
was e ntitled to know about the 1992 conviction and he would direct the jury to give such
weight to them as they saw fit.
10. The applicant gave evidence. He said that he was gratuitously and offensively treated
by the police, whereas he had not been guilty of any bad conduct towards them. They had
assaulted him and had caused him pain in the manner they applied and pulled down the
handcuffs. Constable Smithwaite had told a passer-by to ‘fuck off ’. He said the lock-knife
was not his. Two days earlier it had been handed to him by a friend, on a fishing expedition
to cut the lines. He had hooked the knife onto his jeans (the ones which he was wearing at
the time of his arrest). It had been there for two days, and he had simply forgotten about it.
He called his friend to confirm that he was the source of the knife. A young woman also gave
evidence of the manner of application of the handcuffs by the police officers.
11. In passing sentence, the Recorder said that the applicant had behaved in a wholly
aggressive way in assaulting the police, acting in their duty. Fortunately, the injuries were
not serious, but the offences were so serious that only a custodial sentence was appropriate.
12. The appellant, who is 34 years of age, has a large number of previous convictions
since 1991, mainly for driving and theft related offences. But, in 1992, as we have indicated,
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he was convicted of robbery and burglary from a dwelling and also assault occasioning
actual bodily harm.
13. The submission which is made to this Court by Miss Arshad, on behalf of the appel-
lant, is confined to a single ground of appeal, namely, that the previous 1992 convictions
ought not to have gone before the jury. She submits that, when he ruled against the first
application to admit that evidence under gateway (d), the Recorder had expressed the view
that to admit that evidence would have so adverse an effect on the fairness of the proceed-
ings that it ought not to be admitted at that stage. It is apparent from the transcript of the
first ruling on 21st February that the Recorder, having referred to the offences being com-
mitted 13 years ago, said:
to allow that in at this stage would seem to be on balance to have such an adverse effect
on the fairness of the proceedings that the court ought not to admit it.
He went on to say:
I have to balance the type of conviction that would go before the jury as against the
allegation that the defendant faces, and in the context of this case, there are offensive
weapons, be it CS gas or a knife and incidents of effectively common assault on police
officers, and to allow that in for these offences it seems to me would have an adverse effect
on the fairness of the proceedings, but more fundamental as I have indicated, I think it
is the age of the conviction which plainly must be taken into account, and, having regard
to the balancing act that I have to do, … I think it is perfectly clear on the authorities that
these should not be allowed in, and so I do not allow them in.
That conclusion as to the impact of the 1992 matters on the fairness of the proceedings,
Miss Arshad submits, was a finding which bound the Recorder when the later application
was made, following the attack upon the prosecution witnesses.
14. As it seems to us, the difficulty with that submission is that the fairness of the pro-
ceedings and the impact on it of admitting the evidence, has to be gauged at the time at
which the application is made and by reference to the gateway under which admissibility is
sought. At the initial stage there had been no attack on the character of the prosecution wit-
nesses. In that regard, when dealing with the matter at the time of the second application,
the Recorder, as appears from the transcript, said this:
I have come to the conclusion that there is a difference now between the prosecution
arguments, the difference being a sustained attack upon the character of the police, and
it seems to me that, even though these convictions are of a serious nature and of some
age, the jury are entitled to know about this conviction, that I think they would be misled
seriously if they did not know of this matter.
In our judgment, that was a conclusion which was not only open to the Recorder, it is one
which he was, in the circumstances as we have described them, right to reach.
15. The second submission made by Miss Arshad is that, in admitting the evidence
under gateway (g) because of its relevance to credibility and permitting the jury to know
of a conviction in relation to the defendant’s capacity to tell the truth, the learned Recorder
adopted the wrong approach. He ought, Miss Arshad submits, to have admitted, rather than
this conviction for a very serious offence of dishonesty, different convictions to be found in
the applicant’s record in more recent years.
16. The difficulty with that submission, as it seems to us, is that the convictions in more
recent years included four convictions for offences of violence. Had the Recorder admitted
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those, it might well have been said that they had a significantly prejudicial effect against the
defendant when he was facing charges of using violence: an impact which far outweighed
the probative value of those offences. It is therefore, in our view, an impossible conten-
tion that the learned Recorder was wrong to admit an offence of dishonesty, but not to
admit offences of violence. In those circumstances, there is, as it seems to us, no arguable
ground of appeal in relation to conviction so far as Edward’s is concerned. That application
is refused.
[17. and 18. The court allowed the appeal against sentence.]
19. We turn to the case of Fysh. On 9th February 2005 at Norwich Crown Court, fol-
lowing a trial before His Honour Judge Worsley, this appellant was convicted of having
an offensive weapon, on count 2, and common assault on count 3. On 23rd March he was
sentenced to nine months on count 2 and five months concurrently on count 3. The total
sentence was therefore 9 months’ imprisonment. He appeals against conviction by leave of
the single judge.
20. The facts were these. On 18th September 2004 the appellant went to the home in
South Lynn of a man called Nicholas Moore. The appellant’s friend drove him there in a
Rover car, but remained in the car throughout. The appellant knocked on Mr Moore’s door.
He answered. The appellant accused Mr Moore of assaulting his son. Voices were raised.
Mr Moore and his wife said that the appellant struck Mr Moore with some form of cosh,
made from a sock containing something hard. Two 999 calls were made during the incident.
The first by Mrs Moore, in which she at first described the weapon as a baseball bat, but,
later in the conversation, said it was a sock containing, possibly, coins. There was a similar
confusion in a second similar call.
21. The woman police constable called to the incident described Mr Moore as having an
injury to the right side of his face, by his eye. There was redness, swelling and a small cut but
she conceded that she had got the location wrong when she was cross-examined.
22. The appellant was known to the Moore family as, twenty years earlier, he had been
engaged to Mr Moore’s sister.
23. When the appellant was arrested and interviewed he said nothing. He was, how-
ever, picked out on identity parades by four witnesses. It was the prosecution case that the
appellant had a cosh of the character which we have described and, when he confronted
Mr Moore at his house, he deliberately struck out at him twice, and one of those blows
struck Mr Moore’s eye causing injury. It was the defence case that the appellant had been
at Mr Moore’s home on this day, but he had not touched Mr Moore with a weapon or
anything else.
24. The judge indicated that, whether the appellant gave evidence or not, he would have
to consider whether bad character was admissible, and he contemplated that it might be,
under gateways (g) and/or (d) of section 101. He also indicated that he would not go back
beyond 1986, in relation to the appellant’s record, in the event that he allowed evidence to
be admitted of previous convictions.
25. The evidence for the prosecution came from Mr Moore and Mrs Moore and from
Stephen Coe and Spencer Canon who had been sitting in the kitchen of the Moores’ house.
Mr and Mrs Moore and Stephen Coe all described the appellant as using a weapon of the
kind which we have described or, so far as Stephen Coe is concerned, he said he saw it raised
above the appellant’s head, though he did not actually see him strike Mr Moore. Spencer
Canon also referred to the appellant holding what he described, initially, as a rounders bat,
but later, after discussion with others, he realised was an old sock.

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Edwards et al

26. The Crown applied to adduce previous convictions of the appellant, not by any
means all of them, but those starting with a conviction for common assault in 1999. The
application also related to an offence of theft by shoplifting, in May 2002, making a false
statement in order to obtain benefit or payment, including three offences taken into consid-
eration, in August 2002, battery, in March 2002 and a further offence of theft by shoplifting
in August 2002.
27. The learned judge ruled that these convictions were evidence of bad character,
admissible under one of the gateways, in particular, gateways (d) and (g) and he concluded
that there was no basis for excluding those convictions from being admitted.
28. The learned judge concluded that propensity to untruthfulness was an issue under
gateway (d).
29. The submission which is made by Mr Lynn, on behalf of the appellant is that the
judge was wrong to permit this evidence to be adduced. Mr Lynn points out that there was
some confusion at the time of trial in February as to the rules applicable. The new Criminal
Procedure Rules had not come into force and the old Crown Court rules, in particular rule
23 E3, appeared to govern the position. Those rules have now been replaced since April
2005 by the new Criminal Procedure Rules.4
30. In the light of the applicable rules Mr Lynn submits, first, that no notice was given
by the prosecution of their intention to rely upon these convictions and there was no reason
why appropriate notice could not have been given. By reason of the absence of notice,
Mr Lynn submits that there was prejudice to the defence in two respects. First, there was a
lack of time for him to prepare an argument against admissibility under the new statutory
provisions. He accepts that he did not seek from the judge an adjournment, and that the
judge said that, if he needed time further to consider the matter, he could have it. As it seems
to us, there can have been no prejudice on this basis.
31. The second basis for prejudice, Mr Lynn submits, is that the facts were not agreed
because no notice had been given and no adequate pre-trial enquiries had, in consequence,
been made. The defendant was cross-examined about the facts of one of these offences.
Mr Lynn submits the defendant was embarrassed in consequence, because the explanation
which he had to give in relation to one of the offences was that it did not involve entry into
someone else’s home, and the victim of the offence was his girlfriend. Clearly, it is unfortu-
nate that there was cross-examination in those circumstances.
32. As this Court has previously pointed out, (see Bovell and Dowds para 2) it is impor-
tant that provisions in relation to notice are observed so that adequate enquiries can be
made on both sides as to the circumstances of offences, in so far as those circumstances may
be relevant when the question of the admissibility of previous convictions arises. But, in
the circumstances of this case, we are unpersuaded that the unfortunate cross-examination
to which we have referred was such as, even arguably, to render the appellant’s conviction
unsafe. We say this in view of the limitation placed by the learned judge on the number of
the appellant’s abundant previous convictions which could be placed before the jury and
having regard to the nature of the evidence against the appellant which, on any view, was
substantial and came from a number of sources.
33. The second ground which was advanced in oral submissions by Mr Lynn was that
the learned judge, in admitting previous convictions for offences of dishonesty, failed to
consider the question of whether such offences gave rise, in the terms of the statute, to a
propensity to be untruthful (see section 103 (1)(b)). As this Court has previously pointed

4 See Appendix III above.

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out, dishonesty does not necessarily equate with a propensity to be untruthful. It may be
that the offences of theft by shoplifting, had the appeal centred on that aspect of the matter
alone, could properly be regarded as not showing a propensity to be untruthful, rather than
merely dishonesty. That cannot, however, be said in relation to the offences of benefit fraud,
committed on four occasions.
34. Mr Lynn accepted that, in any event, if the evidence was properly admissible under
gateway (g), as well as under gateway (d), there could not be the same objection to the
admissibility of the offences of dishonesty. Mr Lynn submitted that the judge’s basic con-
sideration, as he put it, in relation to admissibility was under gateway (d). He submits that if
the convictions had not been admitted, there was a real likelihood that the appellant would
have been acquitted. It is, at that point, convenient to refer to the observation made by the
judge in the course of his ruling as to bad character. He said this:
So far as gateway (g) is concerned, yes, it is an inevitable consequence of the defendant’s
case that the prosecution witnesses have to be attacked by counsel as having made this
up and put their heads together, as was put squarely to them, and rightly to them, by
Mr Lynn, cooked up a story, invented a malicious and unpleasant story, a fraud.
As it seems to us, once it is accepted, as it was in the court below and is here, that the attack
on the prosecution witnesses amounted to an allegation of conspiracy to put their heads
together, in order falsely to implicate the appellant, the judge’s ruling under gateway (g)
was, as he described it himself ‘inevitable.’ In our judgment, there is no substance in the
grounds of appeal so far as Fysh is concerned.
35. We add this, by reference to one of the written grounds not supported in oral sub-
mission before us today by Mr Lynn, that there is no sustainable criticism to be made of
the terms in which the learned judge summed up this matter to the jury. It is correct that
he did not have the advantage, if such it be, of this Court’s judgment in Hanson, in relation
to the distinction between a propensity to untruthfulness and dishonesty. In the course of
his summing-up he equated the two. But the judge’s summing-up followed, closely, the
Specimen Direction given by the Judicial Studies Board, in December 2004, in relation to
the admissibility of evidence of bad character and the blemish upon it which we have iden-
tified it does not give rise to any reason for regarding the appellant’s conviction as unsafe.
Fysh’s application is therefore refused.
36. We turn to the case of Duggan. On 4th March 2005, at Snaresbrook Crown Court,
following a trial before Mr Recorder Marshall, this applicant was convicted of wounding
with intent to cause grievous bodily harm and sentenced to 5 years’ imprisonment. His
application for leave to appeal against conviction and sentence was referred to the Full
Court by the Registrar. The incident giving rise to the charge occurred on the evening of
25th April 2004, in the Walkabout Public House on Upper Street, Islington. There was an
altercation between the applicant and a woman called Susan Green. She sustained an injury
from glass to the outside of her right hand, a deep laceration of her right middle finger, a
black eye and a bruised jaw.
37. It was the prosecution case that the applicant had deliberately punched the com-
plainant in the face, whereupon she had raised her hands in protection and the applicant
then thrust a glassed object towards her, injuring her hand. The defendant’s case was that
the complainant had thrust a pint glass towards his face and, as he raised his hand to protect
himself, the bottle he was holding had collided with the glass, so that injuries were caused to
the complainant’s hand. He said that his arm must have inadvertently connected with the

258
Edwards et al

complainant’s face, causing the bruising. The central issue was self-defence in the context
of which of the two was the aggressor.
38. The evidence from Susan Green was that, on her way back from buying a round of
drinks, she was bumped into from behind so her drink spilled. She tapped the applicant
on the shoulder and spoke to him, but he was offhand. She asked whether he was going to
apologise and he effectively spat out the word ‘no’ and threw his drink in her face. She there-
upon threw her drink on him. At that stage, he punched her in the face with a clenched fist,
straight to the eye. She was shocked. She held up her hands to protect herself; her glass by
this stage had gone out of her hands. She could not say what the man had in his hands and
she was not able to say precisely what happened after that. She denied in cross-examination
that her hand injury was sustained when she was punched in the face. The two incidents
were separate and her hand had been injured after she had been punched. She had done
nothing violent. Evidence confirmatory of her account was given by Beth Howells, who
said that it might have been 10 to 12 seconds after the punch that she saw the attack with
the glass.
39. A Policewoman Constable came to the scene. When she arrived, the applicant was
being aggressive and shouting at the door staff: ‘You’re a fucking cunt’. She warned him
about his behaviour and he shouted: ‘Your mother blows fucking Pakis’. She arrested him
for a public order offence. Details were taken by another officer, in relation to the assault on
Susan Green and the applicant was arrested for that. He continued to be racially abusive.
When he was told he was being arrested for a racially aggravated public order offence, he
claimed, falsely as he later said, to be a member of the British National Party and proud of
it. He continued with similar insults and refused to give his name. He declined the services
of a solicitor and did not answer any questions in interview.
40. He gave evidence that he had been drinking and watching football during the day.
He had eight beers over three or four hours but was not drunk. The atmosphere in the pub
had been ‘lovely.’ The complainant had bumped into him rather than the other way round.
She had moved her glass to his face and he was afraid she was going to glass him, so he
brought up his arm to protect himself. He had a bottle of beer in his hand, which must have
broken the complainant’s glass. He assumed, although he had not felt it, that his arm must
have carried on and must have hit her on the face. He had been asked to leave by a bouncer.
41. He said in relation to his previous convictions, as to the rulings about which we shall
in a moment come, that he always pleaded guilty. He was not in fact a member of the BNP
but he did not dispute what the police officer said he had said. He claimed that he was upset
because he was being arrested for nothing at all. He described himself as a gentleman. Both
of the witnesses against him were lying.
42. The learned judge ruled, in relation to the admission of evidence of bad character,
that although the Crown’s application was out of time, and that no notice in accordance
with the rules had been given, it was in the interests of justice that the application should
succeed because no prejudice had resulted to the defence from the lack of notice.
43. The Recorder said that the applicant’s convictions for assault and theft, in 1998, and
for an offence contrary to section 5 of the Public Order Act 2003 were clearly bad character
within the meaning of section 98. In addition the applicant had pleaded guilty to a racially
aggravated section 5 Public Order Act offence, which arose from the events following his
arrest for the wounding of Miss Green. That offence also, in the Recorder’s judgment, came
within the definition of bad character. He rejected a defence submission that that evidence
came within the exception in section 98(b) as being ‘misconduct in connection with the
investigation … of that offence.’
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44. The Recorder ruled that the applicant’s behaviour, after the offence, was admissible
as being relevant to his demeanour and state of mind at the time of the offence. It was clearly
capable of informing the jury of what was happening so soon after the crucial events. There
was no prejudice in admitting the evidence, such as to lead to exclusion under s ection 78
of the Police and Criminal Evidence Act and therefore the evidence was admissible.
45. The Crown sought to admit the previous convictions under gateway (d), on the basis
that the matters in issue between the parties were who attacked whom and whether the
applicant was telling the truth in relation to self-defence. The Recorder ruled that the con-
victions for violence or disorder were relevant to the issue of self-defence. They showed a
clear pattern of attacking people, so that the Crown could properly adduce the evidence to
establish propensity. The Recorder said he was not satisfied that the applicant’s honesty was
a substantial issue, so that his conviction for theft ought to be admitted.
46. Having referred to section 101(3) and (4) the Recorder said he was satisfied that the
evidence would not have such an adverse effect on the fairness of the proceedings that it
ought to be excluded: on the contrary, it was capable of informing the jury of precisely what
they needed to know. Although the first assault was committed when the applicant was 16,
it could not be said to be one-off in view of his more recent offending in November 2002.
Although the offences were not of the same description or category, for the purposes of
section 103(2) and (4), that did not preclude admissibility.
47. There was an issue about whether the earlier conviction was for assaulting occasion-
ing actual bodily harm or, as the applicant maintained, for common assault. That is one of
the aspects which give rise to this application for leave to appeal. We shall return to it a little
later. The learned Recorder ruled that the underlying facts in relation to the conviction in
1998, for which no memorandum of conviction was then available, should not be admitted.
[48. and 49. The court discussed matters relevant to sentence.]
50. On behalf of the applicant, Mr McCrindell advances a number of grounds of appeal
in seeking to challenge the applicant’s conviction. First, he says, rightly, that it was not
until the morning of the trial that antecedents were obtained and there had been no previ-
ous notice of an intention to rely on the applicant’s previous convictions. Mr McCrindell
refers to paragraph 2 in the judgment of this Court in Bovell and Dowds, which stressed the
importance of the rules being adhered to, so that, in particular, the defence are in a posi-
tion to deal with the matters on which the prosecution rely, and both sides can make such
enquiries as may be necessary with regard to the circumstances of convictions sought to
be relied on. Mr McCrindell points out, rightly, that, if the rules had been complied with,
everyone would have been clear as to exactly what evidence was to go before the jury.
51. So far as the admissibility of the convictions is concerned, Mr McCrindell stresses
the difficulties arising from the want of notice in investigating the nature of what was said
to be an assault occasioning actual bodily harm. It is apparent from the memorandum of
conviction, which has been obtained since trial, that the offence of which the applicant was
previously convicted, which was the subject of dispute (it is to be noted the only subject of
dispute) was common assault, not assault occasioning actual bodily harm. So far as that is
concerned, however, the learned judge directed the jury that it was probably best to assume
for safety ‘that it was a conviction of common assault.’
52. So far as the applicant’s aggressive behaviour after the incident and following the
arrival of the police officers is concerned, Mr McCrindell makes no complaint about want
of notice in relation to that because statements from prosecution witnesses served on the
defence described that conduct on which the prosecution wished to rely. The want of notice
in relation to the convictions, as it seems to us, did not give rise to any prejudice so far
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Edwards et al

as the defence were concerned. Clearly, it may well have been prejudicial had the matter
proceeded wrongly on the basis that the offence was assault occasioning actual bodily harm,
rather than merely common assault. But, by virtue of the direction given by the Recorder in
his summing-up, it is apparent that the case did not proceed on that basis.
53. The second ground advanced by Mr McCrindell is that the material before the court,
on the basis of which the bad character evidence was admitted, was of poor quality, in that
it was derived from the Police National Computer. The difficulty with that submission, as it
seems to us, is that there was nothing in dispute by the defence, in relation to the material
from the Police National Computer, apart from the nature of the assault to which we have
already referred. There is, in consequence, no substance in that ground.
54. The third ground advanced by Mr McCrindell is that the bad character evidence
should not have been admitted. In particular, in that regard, he refers to the speech of Lord
Phillips of Worth Matravers in the civil, similar fact, case of O’Brien v Chief Constable of
South Wales Police [2005] UKHL 26, [2005] 2 AC 354. At paragraphs 12 and 52 Lord Phillips
observed that the statutory provisions with which this Court is presently concerned ‘require
an enhanced relevance in order to ensure that the ambit of the trial remains manageable.’
As it seems to us, there was an enhanced relevance in relation to the earlier convictions
and the events after these offences, so far as the applicant’s behaviour is concerned. In our
judgment, such matters were capable of establishing propensity to violence relevant to the
crucial issue as to who was the aggressor.
55. There are further grounds, 4, 5 and 6, in relation to the use of unchallenged racist
language. But for the reasons which we have already indicated, the learned Recorder was
entitled to conclude that they showed a high level of aggression on the applicant’s part,
immediately following the incident giving rise to the section 18 offence.
56. Ground 7 is a further complaint about reliance on the Police National Computer
with which we have sufficiently dealt.
57. Grounds 8 to 12 are critical in various respects of the summing-up. It is said that, in
Mr McCrindell’s words, ‘this went a little bit too far’, when the learned Recorder said that
the prosecution case was that the applicant was an aggressive man who had been aggres-
sive on this night. Something which goes a little bit too far, even if it does—and we are not
persuaded that it does—is an insubstantial basis on which to suggest that a summing-up is
so defective as to render a conviction arguably unsafe.
58. Mr McCrindell relies on the observations made in paragraph 18 of this Court’s judg-
ment in Hanson, and submits that further directions in accordance with that judgment
ought to have been given. Of course, that judgment was not available at the time of the
Recorder’s summing-up, and we have already, at the beginning of this judgment, referred to
the way in which paragraph 18 in Hanson should be understood.
59. The further criticism is made that, in the summing-up, the Recorder’s use of the phrase
‘you have been permitted to hear of these convictions,’ in the context of an explanation by the
Recorder as to why those convictions were before the jury, was terminology which might
induce in the jury’s mind a belief that the Recorder himself had already decided that the
convictions were determinative of issues which the jury had to decide. We are wholly unper-
suaded that that is a possible interpretation of that passage in the summing-up. In our judg-
ment, without descending into further detail, there is no substance in any of the criticisms
of the summing-up. Accordingly, leave to appeal against conviction is refused.
[60. and 61. The court allowed the defendant’s appeal against sentence.]
62. We come, finally, to the application of Chohan. On 8th February 2005, at Manchester
Crown Court, following a trial before His Honour Judge Mort, this applicant was convicted
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on count 1 of robbery, on count 2 of possession of an imitation firearm while committing a

schedule 1 offence and on count 3 of possession of an imitation firearm with intent to cause
fear of violence. He was sentenced to 10 years’ imprisonment on count 1 and to 3 years’
imprisonment concurrently on each of counts 2 and 3. The total sentence was therefore
10 years’ imprisonment. His application for leave to appeal against conviction has been
referred to this Court by the Registrar.
63. The facts were these. A couple of days prior to the incident which formed the basis of
the three counts, an 89 year old man called Sidney Marsh was visited at home by the appli-
cant, who claimed that his mother had been robbed and he was looking for the culprits.
He said he had written their descriptions on a piece of paper which he gave to Mr Marsh.
64. On 19th May 2003 Mr Marsh was again at home, in Solway Close, Oldham. The
applicant arrived and shouted through the window: ‘I’ve found those lads.’ He walked into
the kitchen, shook the complainant by the shoulders, produced what appeared to be a gun,
pointed it at Mr Marsh’s chest and said: ‘I want a fiver.’ Mr Marsh went to get a £5 note and
the man took his wallet from him. That gave rise to counts 1 and 2. Astonishingly, when his
robber had left his home, this 89 year old victim gave chase. He told a neighbour he had been
robbed. Two women neighbours gave chase for a short while and confronted the man, who
pointed a gun at them, giving rise to count 3. They backed off. He made good his escape.
65. The identification of the robber as the applicant rested upon a prosecution witness
called Donna Marsh. She happened to be nearby, in Lee Street, when, she said, the applicant,
whom she knew as ‘Tony,’ ran past her. The issue, essentially, was whether she was right. The
two women neighbours who had given chase, although they gave descriptions of the man
they chased, were unable to pick him out on an identification parade.
66. Donna Marsh described seeing the man running away. She had a clear view of him.
She turned and said ‘Hello.’ He replied. She knew him as Tony. He was an Asian man, about
30, five feet eight or nine, stocky and wearing a hat. She had his face in sight for a minute or
so. He had a gun in his hand. At this time, that is May 2003, she had known him for about a
year. Her evidence (and to the circumstances in which it was admitted in this form we shall
come in a moment), was that she had seen him a lot, indeed every other day for a year or
so, because she bought heroin from him. She was taking heroin three or four times a day.
She used to meet him at the bottom of Lee Street, the street in which he was when she saw
Mr Marsh’s assailant running away. She also met him at The Junction pub.
67. On 25th August 2004 she picked out the applicant on a VIPER parade as being the
man she had seen the previous May. The reason why there had been so long a lapse of time
between the offence of robbery and the VIPER parade was because, for most of that period,
from a time starting two days after the commission of this offence, the applicant had been
out of this country.
68. She said that she had not wanted to say that she was a heroin user. That was why, in
the first statement which she made to the police, she only referred to knowing the applicant
from seeing him around and in a pub. She thought she had mentioned the gun in her first
statement, but it was not there. She said she had no reason to invent her evidence.
69. There were submissions made to the learned judge in relation to two different
categories of evidence namely Donna Marsh the appellant’s previous convictions. In rela-
tion to Donna Marsh she made a second statement on 8th January 2005 describing the
basis on which she was able to recognise the applicant, namely the frequency of their
encounters during heroin dealings. The prosecution sought to adduce it, under gateway (c)
of section 101(1), that is to say, that it was ‘important explanatory evidence’: explanatory,
of course, in relation to the basis of her identification.
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70. The judge ruled that, in such a case, it was inevitable that the jury, who would have
to be directed as to the caution necessary in identification by reference to Turnbull [1977]
QB 224, would have to consider the circumstances in which the witness claimed to be able
to identify the defendant. It would, the judge concluded, be difficult properly to understand
other evidence in the case without knowing the background of the heroin dealings which,
he concluded, went to the heart of matters.
71. The wording of section 101(3) of the Act, whereby the court must not admit evi-
dence under gateways (d) or (g) if it appears that it would have such an adverse effect on
the fairness of the proceedings that the court ought not to admit it, suggested, the judge
said, that section 78 of the Police and Criminal Evidence Act was not applicable in relation
to gateways (d) and (g). But, he concluded, even if he was wrong, he would not exercise his
discretion in this case to exclude the evidence, bearing in mind the vital importance to the
identification by Donna Marsh of the explanatory evidence.
72. Submissions were also made in relation to the applicant’s previous convictions, of
which there are a considerable number. The application related to a robbery/assault with
intent to rob, in 1992, and three burglaries in 2000. The Crown sought to adduce that evi-
dence as to those convictions under gateway (d) on the basis that they were relevant to an
important matter in issue, namely, a propensity to commit the type of offence with which
the applicant was charged. They fell under subsection (1)(a), in that they were of the same
description or category as the offence charged and, therefore, were admissible, subject to
section 103(3), in relation to the length of time since the conviction, or any other matter,
which rendered them inadmissible. The judge concluded that, despite the lapse of time, it
was not unjust to admit the robbery conviction in 1992, bearing in mind the applicant’s
continuing criminality thereafter and the fact that it was a serious robbery at knife-point,
which was material in the present case. Furthermore, the three burglaries in 2000 were
relevant because they involved very similar methods of operation, namely gaining entry,
by falsity, into the homes of the elderly. The judge concluded that it would not have such
an adverse effect on the fairness of the proceedings that they ought not to be admitted.
Furthermore, so far as the robbery in 1992, was concerned, although that offence was old,
it demonstrated a propensity to commit offences involving the use of a weapon against a
householder.
73. The defendant in evidence said that he had not been at Mr Marshall’s house on
19th May, nor had he had a gun. He had never been a drug dealer. He had gone to Pakistan
soon after the offence because his wife’s mother was there and she had been taken ill. He
said that, in interview, he had not known what was meant by the name Donna Marsh: he
only knew her by her first name. He claimed to have recognised her when he came to court.
He had known her for several years, as they were both heroin users. He claimed, and it is to
be emphasised that this was denied by Donna Marsh, that he had had a sexual relationship
with her. He suggested that she must have lied about seeing him running away from the
robbery because he had not told her that he had remarried.
74. On behalf of the applicant, Mr Samuels submits that the judge was wrong to
admit Donna Marsh’s second statement describing the heroin dealing with the applicant.
Mr Samuels accepted, rightly, that only a fraction of the applicant’s record went before the
jury by reason of the judge’s ruling. He submits that it would have been possible to edit the
statement in relation to the heroin dealing, in order to disclose a frequency of encounters,
without disclosing the reason for those encounters. The prejudice arising from the allega-
tion of heroin dealing was such that the judge ought not to have admitted the statement
in the form which he did. It is to be noted that whereas initially the defence based upon a
263
Appendix V

challenge to the frequency of the association between the applicant and Donna Marsh, it
later changed to a claim of deliberate dishonesty by her, promoted by malice.
75. In our judgment, the circumstances of this case, in relation to identification, were
such that no sustainable criticism can be made of the judge’s decision to admit in evidence
the witness Donna Marsh’s second statement. Only if that was done, as it seems to us, would
it be possible for her sensibly to explain, not least, in the face of the different defences
emanating from the applicant, the basis of her ability to identify him in the circumstances
which she did.
76. So far as the admission of the 1992 robbery and the three dwelling-house burglaries
in 2000 are concerned, Mr Samuels was frank enough to concede that the circumstances
of the three burglaries were, as he put it, ‘uncomfortably close’ to the offence charged. As
it seems to us, that was a reason not for excluding the evidence of those convictions but
for admitting it. The judge’s exercise of discretion, in relation to the admission of these
convictions was, as it seems to us, impeccably performed. No suggestion is made that he
took into account inappropriate considerations or failed to take into account appropriate
considerations. Accordingly, the application for leave to appeal against conviction on behalf
of Chohan fails.
77. Before leaving the case of Chohan, it is, as we foreshadowed at the beginning of
this judgment, perhaps helpful to refer to the summing-up of His Honour Judge Mort in
Chohan’s case:
In this case you have heard evidence that Mr Chohan has a bad character, in the sense
that he has got criminal convictions and you have heard, it is alleged, that he otherwise
misconducted himself by supplying heroin to Donna Marsh. It is important that you
understand why you have heard this evidence and how you can use it. As I will explain
in more detail later, you must not convict Mr Chohan only because he has got a bad
character. You have heard of this bad character because, first of all, in relation to the alle-
gation that he was supplying drugs to Donna (and bear in mind it is her allegation that
that is the position) it may help you to understand other evidence in the case, namely
how is it that Donna Marsh was so confident that the man running past her on Lee
Street, running away from Mr Marsh [all] and from the two women, was the defendant.
The reason being because she was seeing him several times a day when acquiring drugs
from him. So it may help you to consider the accuracy and reliability of her identifica-
tion and it may help you to understand the case as a whole. You have heard, in relation
to the previous convictions, of his bad character and it may help you to resolve an issue
that has arisen between the defence and the prosecution, namely the question whether
he has a propensity or a tendency or an inclination to commit offences of the kind with
which he is charged. If you think it is right, you may take the previous convictions into
account, in deciding whether or not Mr Chohan committed the offences with which he
is now charged. The prosecution rely on the robberies in 1992 because they show that he
has a tendency to use weapons to threaten violence to steal and two instances have been
given to you where a sheath knife was used, one in order to steal and one whereby theft
actually took place and it is said, ten years on, now he is using a handgun. The prosecu-
tion rely on the burglaries in 2000 because they say that they show that the defendant has
a tendency to use bogus explanations to trick his way into older people’s homes in order
to steal from them … So the prosecution’s case there is that it is, on this occasion, a com-
bination of pretending to be looking for people who have robbed his mother, asking for a
pen and paper to write down the description of the alleged robberies and then using the

264
Edwards et al

pretext, coming back and saying: ‘We have found them’ going in, producing the gun and
stealing a wallet. So the Crown are saying here there is a tendency to commit robberies
with a weapon and to target the elderly with bogus explanations and, therefore, they say
it makes it more likely that he is guilty of the offence. The defence, on the other hand, say,
first of all, these robberies were ten years ago, he described himself, ‘I was about 16 or 17
at the time, the burglaries were three years old, I always pleaded guilty to offences that
I had been arrested for’ and it is, in fairness to the defence, a matter which you can take
into account, deciding what impact the convictions had on his truthfulness. Mr Samuels
put it in a well known phrase from Casablanca of ‘rounding up the usual suspects’ and
that is what obviously you must be very careful about…
If you do conclude that, at the time of these offences in May, 2003, Mr Chohan did
have a propensity to commit offences of that type, namely robberies with weapons or
targeting the elderly with bogus explanations to get entry into the property, then you can
consider whether it makes it more likely that he committed the offences in May, 2003.
You have to decide to what extent, if at all, his character helps you when you are consider-
ing whether or not he is guilty. You must not convict simply because of his convictions,
nor mainly because of them. The propensity or tendency amounts to some additional
evidence pointing to guilt, but please bear in mind, even if he did have such a tendency,
it does not necessarily prove that he would commit further offences or that he has com-
mitted these offences.
You are also entitled to consider the evidence of Mr Chohan’s previous convictions in the
following way. If you think it right, you may take into account, when deciding whether
or not his evidence to you was truthful, because a person with convictions for dishonesty
may be less likely to tell the truth, but it does not follow that he is not capable of telling
the truth. Indeed, Mr Chohan says, ‘The fact that on the previous occasions I have been
arrested and I have always held my hands up means that, when I plead not guilty, I am
likely to be telling the truth’ and you decide to what extent his character helps you when
judging his evidence. So that is the extent to which the evidence of his previous convic-
tions may be used for the particular purposes I have just indicated, if you find it helpful.
That approach is not only, rightly not criticised by Mr Samuels in this case, but, subject to
one refinement in relation to the distinction drawn between propriety of dishonesty and
propriety to untruthfulness in para 13 of Hanson, it provides an impeccable summing-up
which may well afford useful guidance in other cases where summing up the significance
of previous convictions.
78. For the reasons which we have given, Chohan’s application for leave to appeal against
conviction is refused.
79. Although we have not, in the course of this judgment, referred expressly to the
written submissions provided for the Court’s benefit by Mr Houlder QC, on behalf of the
Crown, we are greatly indebted to him for the submissions which he made in relation to
each of these cases.

Edwards: appeal against sentence allowed, application for leave to appeal against conviction
refused.
Fysh: appeal against conviction dismissed.
Duggan: appeal against sentence allowed, leave to appeal against conviction refused.
Chohan: application for leave to appeal against conviction refused.

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Appendix V

R v Highton; R v Van Nguyen; R v Carp [2005] EWCA Crim 1985, [2005]

1 WLR 3472, [2006] 1 CrAppR 7 (125) CA, 28 July 2005; Lord Woolf
(Chief Justice), Moore-Bick and Richards JJ

P Du Feu, M Goldwater and T Munyard for the applicants

F Horlick, W Baker and P. Ashman for the Crown

Lord Woolf CJ:

This is the judgment of the Court.

The general position

1. We are hearing these three appeals together because they each concern the bad
character provisions contained in the Criminal Justice Act 2003 (the ‘2003 Act’), Part XI,
Chapter 1, sections 98–113. There are already 3 previous decisions of this Court dealing
with these provisions. The cases are those of Hanson [2005] EWCA Crim 824 (p 238 above),
Bovell and Dowds [2005] EWCA Crim 1091 (p 248 above) and Edwards, Fysh, Duggan and
Chohan [2005] EWCA Crim 1813 (p 253 above). The principal issue which arises on these
appeals is whether evidence admitted under section 101(1)(g) as a result of an attack by
the defendant on another person’s character is admissible as evidence of a propensity to
commit offences of the kind with which the defendant is charged, or is only admissible in
relation to his credibility, that is, as evidence tending to show that he is likely to be untruth-
ful. That issue did not arise in those earlier appeals and this judgment is the first judgment
relating to it.
2. The issue arises because section 101 of the 2003 Act identifies 7 different gateways,
atleast one of which must be complied with before evidence of a defendant’s bad character
is admissible in criminal proceedings. However, the 2003 Act does not expressly identify the
purpose for which the bad character evidence can be used if it passes through one of those
gateways and is therefore admissible. Two different interpretations are contended for by
counsel appearing for the appellants and the Crown. The appellants contend that the pur-
poses for which admissible evidence of bad character can be used are confined by the terms
of the gateway through which the evidence is admitted. The Crown, on the other hand,
contends that once the evidence becomes admissible by passing through any gateway, it can
be used for any purpose for which bad character evidence is relevant in the particular case.
3. The dimensions of the issue are apparent when the relevant provisions of the sections
of the 2003 Act are considered.
[4.–7. The court set out sections 98, 101, 102 and 103 in full, together with parts of
section 112 and paraphrased sections 104, 105 and 106.]5
8. If […] we return to section 103(1), it is to be noted that it deals with propensity.
The argument before us was as follows: as subsection 101(1)(d) is the only gateway that is
referred to in section 103(1), the reference it contains to propensity makes it clear that it is
only if the evidence is admitted under section 101(d) that bad character evidence can be
used to show a propensity on the part of the defendant to commit the offences of which he
is charged or a propensity to be untruthful.
9. In our view, however, the force of this argument is diminished for a number of rea-
sons. First, section 103(1) prefaces section 103(1)(a) and (b) with the word ‘include.’ This

5 These provisions are set out in Appendix I above.

266
Highton et al

indicates that the matters in issue may extend beyond the two areas mentioned in this
subsection. More importantly, while this argument can be advanced in relation to section
101 (d), it can also be advanced in respect of the other parts of sub-section (1), in particular
in relation to section 101(1)(a) and (b). In addition, section 101(1) itself states that it is
dealing with the question of admissibility and makes no reference to the effect that admissi-
ble evidence as to bad character is to have. We also consider that the width of the definition
in section 98 of what is evidence as to bad character suggests that, wherever such evidence
is admitted, it can be admitted for any purpose for which it is relevant in the case in which
it is being admitted.
10. We therefore conclude that a distinction must be drawn between the admissibility of
evidence of bad character, which depends upon it getting through one of the gateways, and
the use to which it may be put once it is admitted. The use to which it may be put depends
upon the matters to which it is relevant rather than upon the gateway through which it
was admitted. It is true that the reasoning that leads to the admission of evidence under
gateway (d) may also determine the matters to which the evidence is relevant or primarily
relevant once admitted. That is not true, however, of all the gateways. In the case of gateway
(g), for example, admissibility depends on the defendant having made an attack on another
person’s character, but once the evidence is admitted, it may, depending on the particular
facts, be relevant not only to credibility but also to propensity to commit offences of the
kind with which the defendant is charged.
11. This approach underlines the importance of the guidance that was given in the case
of Hanson and others as to the care that the judge must exercise to give the jury appropri-
ate warnings when summing up. (We refer in particular to para 18 of that judgment and
para 3 of the judgment of Edwards and its commendation of the summing up of Judge
Mort in the case of Chohan). In Edwards The Vice-President, Lord Justice Rose said:
What the summing up must contain is a clear warning to the jury against placing undue
reliance on previous convictions, which cannot, by themselves, prove guilt. It should be
explained why the jury has heard the evidence and the ways in which it is relevant to and
may help their decision. Bearing in mind that relevance will depend primarily, though
not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003,
through which the evidence has been admitted. For example, some evidence admitted
through gateway (g), because of an attack on another person’s character, may be relevant
or irrelevant to propensity, so as to require a direction on this aspect. (para 3) (emphasis
added)
12. Protection is also provided for the defendant at the stage of admissibility by the
terms of section 101(3) if the admission of the evidence could cause unfairness, and by the
reference in section 103(3) to convictions which it would be unjust to admit as evidence of
a propensity to commit offences of the kind with which he is charged because the Court is
satisfied, ‘by the reason of the length of time since the conviction or for any other reason’
that it would be unjust for sub-section 103(2) to apply. In this context, there is a very close
relationship between the requirements of fairness and the general requirement of the rules
of evidence that, unless evidence is relevant, it should not be admitted.
13. Those provisions protect against unfairness arising out of the admission of bad
character evidence under section 101(1)(d) or (g). The question also arises as to whether
reliance can be placed on section 78 of Police and Criminal Evidence Act 1984 (‘PACE’).
The application of section 78 does not call directly for decision in this case. We, therefore,
do not propose to express any concluded view as to the relevance of section 78. However,
267
Appendix V

it is right that we should say that, without having heard full argument, our inclination is
to say that section 78 provides an additional protection to a defendant. In light of this pre-
liminary view as to the effect of section 78 of PACE, judges may consider that it is a sensible
precaution, when making rulings as to the use of evidence of bad character, to apply the
provisions of section 78 and exclude evidence where it would be appropriate to do so under
section section 78, pending a definitive ruling to the contrary. Adopting this course will
avoid any risk of injustice to the defendant.
14. In addition, as section 78 serves a very similar purpose to Article 6 of the European
Convention on Human Rights, following the course we have recommended should avoid
any risk of the court failing to comply with Article 6. To apply section 78 should also be
consistent with the result to which the court would come if it complied with its obligation
under section 3 of the Human Rights Act 1998 to construe sections 101 and 103 of the 2003
Act in accordance with the Convention.

The appeal of Highton

The facts
15. Having given this general guidance, we turn to the appeal of Edward Paul High-
ton (‘Highton’). Highton is now 24 years of age. On 28 February 2005, at Oxford Crown
Court, he was unanimously convicted of two counts of kidnapping, two offences of robbery
and one count of theft. He was sentenced to four and a half years’ imprisonment on each
count to run concurrently. Highton’s application for leave to appeal against conviction was
referred directly to this Court by the Registrar. We give Highton leave to appeal. Highton
had a co-accused, Dean Wilson. He was also convicted of the counts on which Highton was
convicted. In addition, he pleaded guilty to a separate offence of theft. He received a total of
six and a half years’ imprisonment.
16. The prosecution’s case was that on 29 September 2004, the two victims, S tephen
Duckett and Alan McPherson, were kidnapped by Dean Wilson in Milton Keynes and
forced to drive to Highton’s house in Oxford. At that house, they were robbed at knife-
point and thereafter, taken to a cash point where Highton withdrew and stole £330 from
Duckett’s account. It was said by the Crown that Highton and Wilson were engaged in a
joint enterprise.
17. The defence’s case was that the two victims went to Oxford voluntarily to buy drugs.
Neither the robberies nor the kidnapping took place, and the cash was stolen by the dealer
from whom the victims were trying to buy the drugs. They said that the victims had origi-
nally lied to the Police in their statements, stating that Highton had been present in Milton
Keynes at the alleged kidnapping, which they stated was at random by two strangers. Not
surprisingly in these circumstances the credibility both of the defendants and of the com-
plainants, that is to say who was speaking the truth, was one of the main issues at the trial.
18. Wilson and Highton both had previous convictions, details of which were allowed
to go before the jury. Wilson had convictions for various offences of dishonesty and for
offences of violence, including convictions for two robberies in 2002. Highton also had
convictions for offences of dishonesty and for offences of violence, including four offences
of assault occasioning actual bodily harm, one of causing grievous bodily harm, two relat-
ing to the possession of offensive weapons, and one of affray, all in the period 1998 to 2004.

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Highton et al

19. The grounds of appeal were:

(a) that the judge wrongly admitted the appellant’s previous convictions under
section101(g) of the 2003 Act.
(b) that he also wrongly directed the jury as to the significance of the appellant’s convic-
tion in relation to the issue of propensity.

Our conclusions
20. There was no answer to the contention that this was a case that fell within section
101(1)(g). Mr Du Feu based his argument upon section 101(3). He argued that the judge
should exclude evidence as to Highton’s previous convictions as a matter of discretion
under that subsection. Against the co-defendant, Wilson, the prosecution also relied on
section 101(1)(d). Section 101(1)(d) was never clearly relied upon by the prosecution
against Highton. Furthermore, at the end of the argument, Judge Jack said with regard to
Highton ‘he is not at risk from a propensity argument’.
21. However, when the judge came to sum up, he unfortunately does not appear to have
recalled his exchange with Mr Du Feu, since when dealing with the evidence as to bad char-
acter he told the jury:
Well, plainly that is a substantial attack on the prosecution witnesses’ character, and in
those circumstances, the law says that it is only right that you should hear what character
those who are making such an attack bear. But you also heard about their characters
because it may help you to resolve an issue in the case, which is this: the prosecution
argue that the defendants have a propensity to commit offences of the sort that you are
considering. You may therefore use the evidence of the defendant’s bad character in rela-
tion to those two matters which explains why you have heard about it, but only if you
find it helpful to do so.
22. The evidence having been properly admitted through the section 101(1)(g) gateway,
for the reasons we have explained, it can be, in the appropriate circumstances, relied upon
as evidence of a propensity to commit offences of the kind with which the defendant is
charged as well as as evidence going to the defendant’s credibility. However, in the course
of the exchange which took place between the judge and Mr Du Feu during argument, the
judge led counsel and the appellant to believe that he would not direct the jury that they
could take his previous convictions into account when deciding whether he was guilty of
the offences with which he was charged. In those circumstances, the judge was in error in
summing up in the terms that he did.
23. This was not a case where the judge was required to exclude the previous convictions
under section 101(3). Mr Du Feu candidly acknowledged that he did not ask the judge to
exclude the evidence, but any such application would have been doomed to fail. It may
be worth pointing out, however, that the exclusion of evidence under the provisions of
section 101(3) depends on there being an application by the defendant. If no such applica-
tion is made, no criticism can be made of the judge for failing to act of his own motion
under this section.
24. The appellant’s previous convictions, which included convictions for offences of vio-
lence and for the possession of offensive weapons, did provide evidence of a propensity to
commit offences of the kind with which he was charged. In addition, the judge did direct
the jury carefully as to the limits of the value of character evidence. In the result, therefore,

269
Appendix V

we have come to the conclusion that, while the judge did make the error that we have identi-
fied in this summing up, the error was not such as to make the verdicts of the jury unsafe.
Accordingly, Highton’s appeal is dismissed.

The appeal of Dong Van-Nguyen

The background to the appeal

25. On 16 February 2005, at the Crown Court of Manchester before His Honour Judge
Ensor, Dong Van-Nguyen was convicted of cultivating a controlled drug, namely a plant of
the genus cannabis. He was sentenced to 30 months’ imprisonment. In addition, an order
was made for the forfeiture and the destruction of the cannabis. We gave Mr Van Nguyen
leave to appeal, his application for leave having been referred to the Court by the Registrar.
26. Mr Van Nguyen was jointly indicted with his brother. The brother pleaded guilty to
the same offence.
27. 19 Halliwell Street West, in Manchester, is the property of a Housing Associa-
tion. The tenancy was in the name of the appellant’s father, who had become a tenant on
15 April 2004.
28. On 15 May 2004, the appellant had a visit from a Police Constable Ludlow who was
investigating the appellant’s complaint of having had £10 stolen in a public lavatory. The
police constable did not enter the premises but spoke to the appellant on the doorstep.
29. On 11 August 2004, the police called again at the premises. On this occasion, it was
to search for a wanted man who used to live at the premises. The reason for the visit was
unconnected with this appeal. When the police arrived, they saw the appellant run upstairs
to the loft. He remained there until he was approached by officers.
30. Upon entry into the house, the police found a large quantity of cannabis and other
material. They also found a total of 193 cannabis plants in various stages of maturity.
A large number were little more than seedlings, but there were 85 large mature plants
which the police estimated would have yielded 1.3 kg of cannabis at a value of between
£3,800 and £6,400 pounds. The plants were in the dining room and in one of the upstairs
bedrooms. These rooms had been converted into growing rooms and had been fitted with
lighting, heating equipment, fans, silver foil and various electrical equipment. In addition,
two empty containers of methadone were found. But fingerprints of the appellant were
not found on any of the cannabis plants or the equipment used in the cultivation process.
Fingerprints of the appellant’s brother were, however, found. It was the appellant’s case
that he had no knowledge that the plants were cannabis plants, he was not involved in the
cultivation and he had been living in the premises for only 3 weeks. However, in the cir-
cumstances, he could hardly deny he was aware that plants that were controlled drugs were
being grown in the premises and did not do so. This meant that the only live issue in the
cases was whether the appellant was engaged in the cultivation of the plants. Was this joint
enterprise or was it solely the activity of the brother?
31. At the outset of the trial, Mr Goldwater, who appeared on behalf of the appellant,
made an application to His Honour Judge Ensor, the trial judge, to exclude evidence of
an interview which had taken place between the appellant and the police. This was evi-
dence that indicated that he took heroin and used methadone. Mr Baker, on behalf of the
prosecution, contended that the evidence was relevant and admissible at common law and
admissible under the provisions of section 101(1)(d) of the 2003 Act. He argued that the
important issue to which it was relevant, was whether the appellant knew that the plants

270
Highton et al

were cannabis, and the fact that the appellant was very conversant with the drug scene made
it more likely that he would know that they were cannabis. He contended that there was an
obvious link between those who took drugs of any kind and those who took cannabis. The
judge accepted the prosecution’s submissions and allowed the evidence to be given.
32. As a result of the evidence being admitted, during the course of the defendant’s cross
examination, the prosecution suggested that his heroin addiction meant that he would be
desperate for money to fund his habit and that was the reason for his becoming involved in
the cultivation of cannabis.
33. In addition, the appellant had previous convictions consisting of 4 offences of shop-
lifting in 2001. The prosecution served notice to introduce these convictions under the
provisions of section 101. The introduction was not resisted and in the event they were
introduced by the appellant himself when he gave evidence. This was no doubt because the
appellant wished to establish that he had no convictions for drug offences. However, the
prosecution suggested that the shoplifting offences were carried out to fund his addiction.
There was no evidence to support this assumption. There was no evidence, for example,
that the goods which were stolen had a significant re-sale value.
34. The appellant was also cross-examined on the basis that his connections with drug
dealers through his purchases of heroin would mean that he had ready means of access to
persons who could dispose of the cannabis crop.
35. Finally, the prosecution relied on the complaint which the appellant made of being
robbed of £10 and which resulted in Police Constable Ludlow making the initial call to the
house. The prosecution alleged the robbery demonstrated that the defendant, at the time,
had been trying to buy drugs in the toilet. This it was suggested, showed that he was the sort
of person who did heroin deals in the lavatories of public houses and that the person from
whom he was buying heroin could be the dealer in the cannabis that was being cultivated.
36. Mr Goldwater contended with some justification that, since the appellant accepted
that he thought the plants were probably some form of controlled drug, the offence for
which he was charged did not depend on it being established that he knew the drug that
was being grown was cannabis. What was critical was that the appellant was engaged in the
cultivation of cannabis.

The summing up
37. The very experienced trial judge summed up to the jury that they had to be satisfied
that ‘cannabis was being cultivated, the defendant played a part in the cultivation and that
he knew it was cannabis.’ He also made it clear that the case for the prosecution was that this
was a joint enterprise between the appellant and his brother. The judge also gave a perfectly
adequate direction about the relevance of lies which the appellant had undoubtedly told.
38. Mr Goldwater’s complaint about the trial and the summing up following the ini-
tial ruling is that, because of the emphasis that was being placed upon the fact that the
appellant was a heroin consumer, the real issue was being lost sight of. The issue was not
whether he knew that the plants were cannabis but solely whether he was engaged in the
cultivation of the plants which he accepted he appreciated were probably some form of
drug. He submits accurately that the judge failed to give the jury any assistance as to how
to approach the defendant’s admission that he was a heroin user, its relevance or the weight
to be attached to it.

271
Appendix V

Conclusion
39. In our view Mr Goldwater’s submission is well-founded. Once the appellant had
admitted that he thought the plants were a controlled drug of some kind and thereby ruled
out any possibility of a defence under section 28(3) of the Misuse of Drugs Act 1971, it
did not matter for the purposes of proving the offences whether he knew they were can-
nabis. The only issue was whether he was involved in growing them and we do not think
that any knowledge he might have had of the precise nature of the plants was likely to shed
much light on that question. In our view, therefore, the judge was wrong to hold that the
evidence was relevant to an important issue between the defendant and the prosecution so
as to render it admissible under section 101(1)(d).
40. Another criticism that is made of the judge’s ruling was that he did not take into
account section 101(3), namely the adverse affect on the fairness of the proceedings. By
section 110 of the 2003 Act, the court must give reasons for any ruling on the admissibility
of evidence under section 101 and on any application made under section 101(3) to exclude
evidence on the grounds of unfairness. In the present case the judge’s ruling clearly dealt
with the question of admissibility, but he made no mention of section 101(3) in the ruling,
nor did he give any reasons for holding that it would not be unfair to admit it. However, it
had been the subject of argument and we do not accept that the admission of evidence that
the appellant was a heroin addict was unduly prejudicial, provided that the jury was given
a proper direction about its place in the case as a whole. The judge may have been techni-
cally wrong to regard the situation as one where the evidence could be admitted under
section 101(1)(d) as relating to an important matter in issue, but it certainly assisted in
understanding the issues in the case.
41. There is the further problem that, having allowed the evidence of the appellant’ sher-
oin addiction to be put before the jury, its relevance was not explained to the jury. In our
judgment, there is force in Mr Goldwater’s submission that the fact that a person is addicted
to heroin does not mean that he is more likely to recognise a cannabis plant than someone
who is not addicted to heroin. More importantly, the fact that he is addicted and therefore a
user of drugs in their processed form, is not evidence he was engaged in their cultivation or
even that he has an enhanced ability to identify a particular controlled drug.
42. What is unfortunate about the trial is that once the evidence of the appellant’s heroin
addiction was placed before the jury, it became the centre of focus of the trial. It was a
major subject of cross-examination and played a disproportionate part in the trial, not least
because of the nature of the cross-examination of the appellant when he gave evidence.
43. The fact was that the only evidence that the appellant was engaged in cultivation was
that he lived in the house where cultivation was taking place and behaved as though he had
something to hide when the police arrived at the house. Having regard to this, it was incum-
bent upon the judge to clearly explain to the jury that the appellant’s heroin addiction was
no more than background to the offence alleged. A warning of its limited relevance did not
appear in the summing up, which indeed contained no guidance on the use to which the
evidence might be put. It should have done so because the focus of the trial was distorted
as a result of the cross-examination which took place and the emphasis on the appellant’s
addiction. Accordingly, we have come to the conclusion that this conviction is unsafe.

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The appeal of Anthony Carp

The background
44. On 9 February 2005 at the Crown Court at Taunton, Anthony Carp was convicted of
2 counts of common assault. He was sentenced in respect of the first assault to two months’
imprisonment suspended for 2 years and in relation to the second offence, he was sentenced
to 4 months’ imprisonment, consecutive to the sentence on count 1, suspended for 2 years.
He was also ordered to pay £400 towards the costs of the prosecution.

The facts
45. The victim of both assaults had cohabited with the appellant for many years. At the
time of the two alleged incidents, and for some time previously, she and the appellant had
been living together in the appellant’s house. There is no doubt that the relationship at
times was stormy. The appellant had obtained an injunction against the complainant as he
claimed that she had been violent towards him.
46. On New Year’s Eve 2003, the couple had an argument in a public house. They both
made their separate ways home where the row continued. The complainant alleged that she
was slapped by the appellant who also punched her in the face. This was the first assault. On
9 January 2004, there was another incident in the home in which the complainant alleged
that she had been assaulted by the appellant who had punched her in the face. On both
occasions, the complainant had been drinking.
47. It was the appellant’s case that he had acted in self defence.
48. At the start of the prosecution’s evidence, the defence applied under section 100 of
the 2003 Act to cross-examine the complainant about her violent background. The Recorder
granted the application. At the commencement of the appellant’s case, the Recorder also
ruled that a number of the previous convictions of the appellant could be admitted in
evidence under section 101(1)(g). They included a number of offences of violence (includ-
ing wounding with intent, assault occasioning actual bodily harm, and assault on a police
officer) in the period 1982 to 1993; offences of theft, handling and deception dealt with in
1993; and two drink-related driving offences (failing to provide a specimen, and driving
with excess alcohol) in 2000 and 2004.
49. In his evidence, the appellant admitted that he had been a tear-away in the past but
he did not attack women. A baby-sitter who was regularly employed by the complainant
and the appellant gave supporting evidence of an incident in September 2003. On that
occasion the complainant had returned home very drunk. She abused the appellant and
physically assaulted him by hitting him on the head with a cordless phone and slapping him.
50. The appellant now appeals against his conviction by leave of the single judge. In sup-
port of the appeal, he relies on 3 grounds:
(i) that evidence of the convictions admitted under the section 101(1)(g) is relevant
only in relation to credibility, as would have been permissible if the case were being
determined under the old law.
(ii) that if evidence of previous convictions admitted under section 101(1)(g) can be
relevant to propensity in either sense, the judge should not have admitted evidence
of the convictions for theft and deception;
(iii) the Recorder failed properly to direct the jury as to the relevance of previous convic-
tions or to warn them of the dangers of placing too much reliance on them.

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Appendix V

51. At the start of the presentation of the case for the prosecution, counsel for the
defence applied under section 100 of the 2003 Act to cross-examine the complainant about
her violent background. That background included a significant psychiatric history, inci-
dents of self-harm, at least one incident of violence towards the appellant and the grant
of an injunction restraining the complainant from using violence against the appellant.
The application under section 100 was granted by the Recorder. As the evidence of the
complainant’s character was admitted under section 100, an application by the prosecution
under section 101(1)(g) of the 2003 Act was irresistible and the Recorder ruled that the
previous convictions were admissible.
52. In his summing up, the Recorder said, having referred to the complainant’s conduct:
You also heard that the defendant has previous convictions for a number of offences
of violence, last being April 1993; a number of offences of dishonesty, last of those also
being in 1993; and two drink related offences, which took place during the time of the
defendant’s relationship with Miss Byron. This has been given in evidence because the
defendant has attacked the character of Miss Byron and it is right in those circumstances
that you should know the character of the person making the attack as well.
You may use the evidence of the defendant’s bad character, his previous convictions in
the following ways. First, if you think it is right you may take it in to account when decid-
ing whether or not the defendant’s evidence is truthful. A person with previous convic-
tions for dishonesty may be less likely to tell the truth but of course it doesn’t follow that
he is incapable of doing so. You must decide to what extent if at all his character helps you
when judging his evidence. If you think it is right you can also take into account when
deciding whether or not the defendant committed the offences—with which he is now
being charged—his previous convictions.
These allegations are of violence and Miss Byron has also said that she had been drinking
when he had allegedly committed these offences. You have got to decide to what extent
if at all his convictions help you when you are considering whether or not he is guilty,
but bearing in mind that his bad character itself cannot prove anything, it cannot prove
anything. It cannot prove his guilt on its own. It would therefore be wrong to jump to the
conclusion that he is guilty just because of his bad character.

Conclusion
53. Since the appellant had attacked the character of the complainant, evidence of his
bad character became admissible under section 101(1)(g), subject only to the judge’s duty
to exclude it under section 101(3) if he considered that to admit it would render the pro-
ceedings unfair. Here the convictions which were relied on did not occur so long ago that
it could be said that in the circumstances the evidence was so prejudicial that it must have
been wrong for the evidence to be admitted. The Recorder exercised his discretion and there
is no basis upon which this Court can properly interfere with the exercise of the Recorder’s
discretion.
54. As we have already made clear, the fact that the evidence of the appellant’s bad char-
acter was admitted under section 101(1)(g) does not prevent the evidence from being used
for purposes other than establishing the appellant’s credibility. It could be used to show
that he was more likely to commit the offences with which he was charged. That is to say,
the evidence could be used to show a propensity on his part to commit the sort of assaults

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Highton et al

with which he was charged, subject to the question of relevance and the evidence not being
unduly prejudicial.
55. The appellant relies on paragraphs 7–13 of the judgment of the Vice-President
RoseLJ in Hanson. We do not consider that the guidance given by Rose LJ in these para-
graphs is inconsistent with the approach adopted by the Recorder, but it is necessary to
deal with one particular aspect of the appellant’s case which arises out of what was said in
paragraph 13 of the judgment in that case.
56. Although the second ground of appeal in this case is apparently directed to the
admissibility of the appellant’s previous convictions, it is apparent from counsel’s skeleton
argument and the advice on appeal that what it is really directed to is the use of which that
evidence may properly be put. Mr Munyard submitted that the Recorder was wrong to
direct the jury that they could take the appellant’s bad character into account when decid-
ing whether his evidence was truthful without any further qualification. In Hanson the
court pointed out that convictions for dishonesty (and the same applies to convictions for
other kinds of offences) do not necessarily provide reliable evidence of a propensity to be
untruthful: it all depends on the nature and circumstances of the conviction. Accordingly,
it is said, the Recorder should have warned the jury that they could not place any weight on
the fact that the appellant had previous convictions when considering whether they could
believe what he said.
57. Since the appellant’s previous convictions included three offences of obtaining by
deception in addition to offences of theft, this is not a particularly meritorious point. In
our view his convictions for obtaining by deception were evidence of a propensity to be
untruthful and in that context his convictions for theft added little. (The Recorder did not
suggest that previous convictions for offences of violence were relevant in this context).
It would have been better, therefore, if the Recorder had given the jury more detailed guid-
ance on the relevance of the appellant’s convictions to the issue of his truthfulness, but in
the circumstances of this case we do not think that his failure to do so affected the outcome
of trial so as to render his convictions unsafe.
58. In the course of argument Mr Munyard submitted on behalf of the appellant that the
Recorder was wrong to have admitted evidence of his two drink-related driving offences.
The Recorder was asked to exclude them in the exercise of his powers under section 101(3),
but he decided that in all the circumstances they were relevant to the offences with which
the appellant was charged and that it would not be unfair for them to be admitted. We
can see no grounds on which the exercise of his discretion in this matter can properly be
challenged.
59. In paragraph 18 of the judgment in Hanson, Vice-President Rose LJ emphasises the
need for warnings to be given to a jury not to place undue reliance on previous convictions.
In particular, the jury should be directed that they should not conclude that the defendant
is guilty or untruthful merely because he has convictions. Looking at the language used by
the Recorder, we find that the Recorder gave the necessary warnings in a manner which
adequately brought home to the jury the need to take proper care when deciding how much
weight, if any, to place on the appellant’s previous convictions. In particular he dealt sepa-
rately with issues of truthfulness and guilt and indicated how different convictions might
be relevant to those issues. We therefore do not accept that there is any substance in any of
the grounds of appeal relied upon by the appellant and dismiss his appeal.

Appeals of Highton and of Carp dismissed.

Appeal of Van Nguyen allowed.
275
Appendix V

R v Renda; R v Ball; R v Akram; R v Osbourne; R v Razaq and Razaq [2005]

EWCA Crim 2826, [2006] 1 WLR 2948, [2006] 1 CrAppR 24(380), CA,
10 November 2005; Judge LJ (President), Bean J and Sir Charles Mantell

A. Felix, J. Hillis, W.N. Goldstein, L. Jones, R. Cifonelli and J. Stone for the appellants
G. Ong, R. Newbury, M. Lavery, M. Parry-Evans and R. Whittaker for the Crown
The President, Sir Igor Judge LJ:

General
1. These six appeals were listed together, and heard consecutively over two days. Each
required consideration of one or more practical problems arising from the ‘bad character’
provisions in Part II, Chapter 1, of the Criminal Justice Act 2003.
2. It will not be necessary or useful for us to set out these provisions in the judgment.
In coming to our conclusions, in each case we had an overall view of the structure of this
chapter together with the specific legislation said to apply directly to the point in issue. In
addition, we shall not spell out all the detailed evidence in support of either sides’ case. We
only focus attention on those parts of the evidence relevant to our decisions.
3. We have some general observations. Several of the decisions or rulings questioned in
these appeals represent either judgments by the trial judge in the specific factual context of
the individual case, or the exercise of a judicial discretion. The circumstances in which this
Court would interfere with the exercise of a judicial discretion are limited. The principles
need no repetition. However we emphasise that the same general approach will be adopted
when the Court is being invited to interfere with what in reality is a fact specific judgment.
As we explain in one of these decisions, the trial judge’s ‘feel’ for the case is usually the critical
ingredient of the decision at first instance which this Court lacks. Context therefore is vital.
The creation and subsequent citation from a vast body of so-called ‘authority,’ in reality rep-
resenting no more than observations on a fact-specific decision of the judge in the Crown
Court, is unnecessary and may well be counterproductive. This legislation has now been in
force for nearly a year. The principles have been considered by this Court on a number of
occasions. The responsibility for their application is not for this Court but for trial judges.
4. Finally, even if it is positively established that there has been an incorrect ruling or
misdirection by the trial judge, it should be remembered that this Court is required to ana-
lyse its impact (if any) on the safety of any subsequent conviction. It does not follow from
any proved error that the conviction will be quashed.
5. In the context of these appeals, although other points arose from time to time, it
would be useful to set out the provisions which are of direct relevance in each individual
appeal.
6. Renda
(a) Creation of a false impression by a defendant (s101(1)(f) and s105(1))
(b) Withdrawal of a false impression (s105(3))
(c) Reprehensible behaviour other than the commission of an offence (s112(1))
(d) Discharge of the jury for ‘contamination’ (s107)
7. Ball
Evidence ‘given’ of an imputation made during questioning under caution (s101(1)(g)
and s106(1)(c))

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Renda et al

8. Akram
Complainant’s bad character (s100)
9. Osbourne
(a) Bad character of complainant and defendant’s witness (s100)
(b) Duty to give reasons (s110(1))
10. Razaq and Razaq
Complainant’s bad character and limits to cross-examination (s 100)

Renda
11. This is an appeal by Raymond Renda against a conviction for attempted robbery
on13th May 2005 at the Inner London Crown Court before HHJ Van Der Werff and a jury.
12. At the date of the hearing of the appeal he had not been sentenced. He appeals with
leave of the single judge.
13. The facts are straightforward. At about 2 am on 10th November 2003, the complain-
ant, Robert Flint, was walking home along Mile End Road in Stepney Green London.
At about the same time the appellant left a nearby public house, and was walking along
Mile End Road in the opposite direction. Their paths crossed, and the appellant stood
beside Mr Flint and asked him for money. When Mr Flint responded that he did not have
any, and carried on walking, the appellant then fell in to walk beside him, continually press-
ing him for money. The appellant put his right hand into his jacket pocket saying, ‘What
is this I have got in my pocket?.’ Hardly surprisingly, Mr Flint began to feel frightened, and
the appellant continued to follow him, ordering him to turn into Whitehorse Lane, which,
as it happened, was the street in which Mr Flint lived. As Mr Flint walked up the path to his
flat the appellant followed him, still asking him for money, and, under an archway, seized
hold of him by the neck, swinging him round and pushing him against the gate, saying ‘Give
me your money now.’ Mr Flint pushed the appellant away, and into a hedge, and ran to his
front door, but before he had time to open the door, the appellant returned and pushed him
against the wall with his hand on his neck.
14. Two police officers in a passing police car saw what they believed to be a fight, and
stopped, and separated the combatants. Mr Flint immediately complained that the appel-
lant had followed him home and tried to rob him. The appellant denied that he had done
anything at all, asserting that he was on his way home from the pub and that the allegation
must be some sort of joke. When interviewed the appellant declined to answer any ques-
tions, but submitted a prepared statement in which he denied that he had attempted to rob
the complainant: rather, after making a false accusation, the complainant had attacked him.
15. The issue at trial was therefore straightforward. The jury had to decide whether any
offence at all had been committed, and their decision largely depended on their judgment
of Mr Flint’s veracity, and, if he gave evidence, the veracity of the appellant.
16. The issues in this appeal arise from the appellant’s evidence. He sought to enhance
his credibility by asserting that he had been a serving soldier in HM Armed Forces, who
had, while so employed, sustained a serious head injury, which had resulted in long-term
brain damage. He said that at the date of his arrest he was in regular employment as a
security guard.
17. The Crown was in possession of evidence to show that although it was true that the
appellant had served in the armed forces, his serious head injury had not been sustained

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Appendix V

while he was in the course of his duties, but while he was on holiday, driving his own
vehicle. Although it was also true that he had been employed in a security capacity, checking
‘passes,’ this had been short-term employment only. He was no longer in gainful employ-
ment. If this evidence was correct, the appellant was seeking to convey a misleading impres-
sion about his life and history.
18. The additional material available to the Crown included the defendant’s antecedent
history and police computer print-outs, and a report prepared by a psychiatrist instructed
by the Crown. This material showed not only that there had been a number of reported
crimes of violence for which the appellant was alleged to have been responsible, but that
on an earlier occasion, in July 2001, when he was found unfit to plead to a count of assault
occasioning actual bodily harm, the jury was satisfied as a fact that the appellant had
approached someone from behind and struck him about the head with a large wooden
table leg. The case had been disposed of by way of an absolute discharge.
19. Our attention was drawn to some earlier authorities, which considered the impact
of s 1(3)(ii) of the Criminal Evidence Act 1898. However it is unnecessary to refer to them
in this judgment. It is most unlikely to be useful to refer to authorities which were no more
than factual examples of occasions when it was decided that an individual defendant had
put his character in issue. For the purposes of s101(1)(f) the question whether the defend-
ant has given a ‘false impression’ about himself, and whether there is evidence which may
properly serve to correct such a false impression within s105(1)(a) and (b) is fact-specific.
In the present case the appellant was plainly seeking to convey that he was a man of positive
good character.
20. When the appellant was cross-examined he continued to maintain that he had been
in regular employment as a security guard, and that he had not been dismissed from that
employment. He did however concede that when he described himself as a security guard,
his duties amounted to no more than checking passes. He agreed that he had not sustained
his head injury during the course of his military duties as a soldier, but while he was on
holiday in a car accident. In short, in cross-examination, he was forced to concede the truth.
21. It was submitted that in these circumstances the appellant should be treated as hav-
ing withdrawn or disassociated himself with any false assertion relating to the claim that
he had sustained injury while in the course of his duties. Accordingly s105(3) should apply,
and it was therefore no longer appropriate to treat him as having given evidence which
was ‘apt to give the … jury a false or misleading impression about’ him. We do not agree.
Our reason is simple. There is a significant difference between the defendant who makes
a specific and positive decision to correct a false impression for which he is responsible,
or to disassociate himself with false impressions conveyed by the assertions of others, and
the defendant who in the process of cross-examination is obliged to concede that he has
been misleading the jury. A concession extracted in cross-examination that the defendant
was not telling the truth in part of his examination-in-chief will not normally amount to a
withdrawal or disassociation from the original assertion for the purposes of s105(3).
22. The Crown sought leave to ask questions about this incident of violence. Judge Van
Der Werff decided that it would not be prudent or right for the Crown to explore, through
the appellant’s own testimony, the details of his psychiatric history, not least because the
appellant himself might not be in a position to deal with it properly. He made a preliminary
ruling that the Crown was entitled to ask questions about the appellant’s military service,
the circumstances of the accident, and his subsequent employment. It was appropriate for
the jury to understand that the appellant had been charged with assault occasioning actual
bodily harm, and that although he was found unfit to plead, he was also found by the jury to
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Renda et al

have committed the physical act of assault. The case was disposed of by way of an absolute
discharge.
23. The judge was very concerned that the jury should not labour under a false impres-
sion about the appellant. He rejected a submission that the Crown should not be allowed
to adduce the facts of the assault because proper notice had not been given. Counsel for
the Crown submitted that these matters had arisen for consideration during the appellant’s
evidence, so that it was impractical to have given any notice. The judge ruled that the Crown
could ask about the facts of the assault which were relevant to the issue of credibility.
24. Before us it was argued that the judge’s rulings were wrong. An absolute discharge
following a finding that the defendant was unfit to plead did not constitute a criminal con-
viction, nor did it constitute ‘reprehensible behaviour’ amounting to misconduct for the
purposes of the ‘bad character’ provisions in Part II of the Criminal Justice Act 2003. We
agree that the appellant was not ‘convicted’ of a criminal offence. We also accept that as a
matter of ordinary language, the word ‘reprehensible’ carries with it some element of cul-
pability or blameworthiness. What however we are unable to accept is the mere fact that the
appellant was found unfit to plead some 18 months after an apparent incident of gratuitous
violence has occurred, of itself, connotes that at the time of the offence his mental acuity
was so altered as to extinguish any element of culpability when the table leg was used in
such a violent fashion. On the face of it, this was reprehensible behaviour, and there was no
evidence before Judge Van Der Werff to suggest otherwise.
25. Accordingly, this material was available to help refute the false impression as of posi-
tive good character given by the appellant in his evidence-in-chief. Recognising as the judge
did, that this was not an entirely straightforward issue, he was at pains to explain to the
jury the precise status of the earlier court proceedings, and in particular, how the process
encompassed in the phrase ‘not fit to plead’ works, and what it involves, and that the appel-
lant was not convicted, and indeed had no convictions. He also explained that its relevance
in this particular case was confined to helping the jury decide whether the appellant had
tried to present himself as a ‘rather better man’ than he actually was, and whether he was in
truth, as the jury might consider he was seeking to convey, deserving of sympathy. If they
were sure that he had tried to give a false impression about himself, then the jury was enti-
tled to see how it affected the way in which they should approach the evidence about events
on 10th November 2003. All that was fairly done.
26. The remaining point arising in this appeal arises from a submission that the judge
should have stopped the case because the evidence had become contaminated. The point
arose in this way. When the issue of the table leg incident was first raised, counsel for the
appellant conceded that the finding by the jury amounted to a conviction. After further
research she concluded, rightly, that it was not. Accordingly she sought the discharge of
the jury on the basis that the evidence before it was ‘contaminated’ for the purposes of
s107.
27. We can deal briefly with this submission. For the reasons we have given, the evidence
was not in fact ‘contaminated.’ We are however concerned to ensure that s107 should not
be misused. There will, of course, be occasions when counsel is justified in submitting that
a conviction would be unsafe because evidence admitted under s101(1)(c)–(g) proved to
be contaminated. That however does not provide any justification for a submission which,
in truth, is no more than a reiteration of the arguments advanced by counsel against the
admission of this evidence. S107 deals with a particular situation where the evidence of
‘bad character’ has been admitted and proves to be false or misleading in the circumstances
described in s107(5). Unless the case falls squarely within that statutory provision, the
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Appendix V

Court of Appeal Criminal Division is the appropriate court in which the correctness of the
judge’s decision should be questioned.
28. For these reasons, this appeal will be dismissed.

Ball
29. This is an appeal by Nathan Ball against his conviction on two counts of rape on
18th April 2005 in the Crown Court at Sheffield before His Honour Judge Keen QC and
a jury. The two counts related to incidents of penetration of the mouth and sexual inter-
course with the same woman on 21st January 2005.
30. This unpleasant incident needs very little narrative explanation. Prior to 21stJanuary
2005 the complainant and the appellant had been involved in a very casual sexual relation-
ship. Consensual sexual intercourse had taken place after heavy alcohol consumption in
circumstances devoid of any hint of affection.
31. On 21st January the pair were drinking in the same public house. There was evidence
of some very unpleasant language by the appellant generally and at least in part insulting
of the complainant. In any event, they left the premises together. They started to make their
way to the rear of a nearby supermarket, and began intimate touching of each other. In
the course of this foreplay the complainant fell over and hurt her knee. The appellant was
unsympathetic and became aggressive. According to the complainant, she was no longer
willing to have sexual intercourse with him, and she made her position absolutely clear.
Nevertheless he forced her to take his penis in her mouth, and then proceeded to sexual
intercourse. When it was over she reported that the appellant had said to her, ‘What are
you going to do now, go off and get me done for rape? Look at you, you’re nowt but a slag’.
32. The appellant’s case was that this sexual activity took place with the
complainant’sconsent. She appeared to be entirely happy afterwards, but she may have
become aggrieved because she thought or understood from what people were saying that
the appellant was using her. Perhaps she recollected or heard about the appellant’s earlier
disparaging remarks about her in the public house, and this provoked her to make a false
allegation of rape. In short, the complainant was lying, motivated by a wish for vengeance.
33. No further summary of the conflicting and mutually contradictory accounts of the
incident is needed. We must however refer to the contents of the interviews between the
appellant and the police. The appellant told the police that most of the men in the local
public house had had sexual intercourse with the complainant. He criticised the complain-
ant’s sexual promiscuity in very disparaging terms. She was easy. ‘She’s a bag really, you
know what I mean, a slag.’ This echoed the comment attributed to the appellant by the
complainant after sexual intercourse.
34. When the appellant gave evidence, the Crown submitted that his bad character aris-
ing from previous convictions and breaches of court orders, should properly be deployed
in cross-examination. The judge rejected a number of different bases advanced by the pros-
ecution, including in particular, that he should admit this evidence simply on the basis
of the direct attack on the complainant’s credibility based on the appellant’s instructions
that the allegations of rape were fabricated. If we may say so, the judge’s approach to this
part of the case seems to have been impeccable.
35. However, the judge was troubled by the attack made against the complainant by the
defendant in the course of the police interviews. In effect, the appellant asserted that the
complainant had behaved or was disposed to behave in a reprehensible way. Accordingly
an attack had been made on the complainant’s character for the purposes of s101(1)(g),

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Renda et al

as explained and expanded in s 106, and in particular s106(1)(c). Evidence was given ‘of
an imputation about the other person made by the defendant—(i) on being questioned
under caution, before charge’. The judge considered whether to exclude the evidence under
s101(1)(3) on the basis that its admission would have an adverse effect on the fairness of
the proceedings. He concluded that cross-examination about the appellant’s bad character
should be permitted.
36. Although a number of minor matters were raised in argument, we need only address
the complaint directed by Mr Hillis at the judge’s ruling that the appellant could be cross
examined about his previous convictions. No criticism is made of the way in which the
judge dealt with these issues in his summing up. The complaint is directed at his ruling.
37. Mr Hillis began his argument by submitting that a major difficulty in this case a
rose from the impact of s41 of the Youth Justice and Criminal Evidence Act 1999, which
although restricting evidence or questions by the defence about a complainant’s sexual his-
tory, did not extend to the prosecution. We agree that this is a feature of s 41, but it does
not advance the argument further. The appellant chose to make the observations reported
by the police. If what he said was relevant and served to support the allegation of rape, this
evidence was admissible, and for the purposes of s106(1)(c) was indeed ‘given.’ The answers
by the appellant in his interview purported to be exculpatory in nature (there was no rape:
it was consent) but were said by the Crown, with every justification, to provide evidence
which indicated an attitude to the complainant which at least carried with it the implication
that the appellant believed that she would have agreed to sexual intercourse with him, and
any other man, at any time and in any circumstances, and that if and when she purported
to be unwilling to have sexual intercourse, any such refusal should be disregarded as quite
meaningless. In reality, therefore, and somewhat unusually, answers which might have been
treated as exculpatory alone, and possibly not admissible on that basis, formed part of the
prosecution case adduced by the Crown. The highlight, at its most stark, was the epithet,
‘slag’, used by the appellant in the interviews to describe the complainant which echoed
what she claimed he had said to her after sexual intercourse had finished. The Crown also
contended that the remark about rape attributed to him by the complainant was inconsist-
ent with a genuine belief that she was consenting to what happened.
38. In our judgment this evidence was properly before the jury as part of the prosecu-
tion case. It did not represent (and the judge would have been alert to any such danger) any
sort of device to enable the Crown to make an application to put the appellant’s previous
convictions before the jury. Once the evidence was properly given, within s106(1)(c) the
judge would have been entitled to exclude it as a matter of discretion. He was well aware of
the need to exercise that discretion. No arguable basis for interfering with his decision has
been shown.
39. Accordingly this appeal is dismissed.

Akram
40. This is an appeal against conviction and sentence by Adil Akram. On 18th March
2005 he was convicted of dangerous driving at Burnley Crown Court before Mr Recorder
Wright and a jury. On 29th April 2005 he was sentenced to 18 months detention in a Young
Offender Institution and disqualified from driving for 3 years and until an extended driving
test was passed.
41. The essential facts can be summarised very briefly. On 1st August 2004 Rokab
Afzalwas driving his car in Nelson, in Lancashire, carrying a passenger, Adnan Khan.

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They became rather concerned about a potential problem with the steering of the car, so
Mr Afzal stopped and got out. While he was there he was approached by a man called Kais
Anwar, and they exchanged some unpleasantries. Thereafter a red Peugeot car pulled up
on the opposite side of the road, and Kais Anwar went to speak to the driver. After he had
done so the red Peugeot revved its engine and drove at the complainant, knocking him over.
Fortunately Mr Afzal was not seriously hurt, and he was able to get up and run away into a
nearby school. The red Peugeot then drove away from the scene.
42. The prosecution case was that the driver of the red Peugeot was the appellant, recog-
nised both by Mr Afzal and his passenger Mr Khan. The defence case was that the identifica-
tion was wrong. The appellant had spent the whole of the day, and at the relevant time was
at his girlfriend’s house. His girlfriend gave evidence to the same effect.
43. The appellant was aware of four specific areas of evidence with which it was proposed
to test the evidence of Mr Afzal. The appellant and he had been friends for some time, but
eventually a problem arose between them, the precise origins of which depended on which
of them was explaining it. From the appellant’s point of view he asserted an earlier assault
by the complainant in which the complainant counter-asserted that he was the victim. This
was described as the ‘cricket bat incident.’ There was also a falling out over a car stereo or
cassette player which went missing from the appellant’s car. According to him, either the
complainant, or his associates, stole the car stereo in order to exert a measure of self-help to
encourage the appellant to pay a debt: that, too was contentious. It was further suggested on
the appellant’s behalf that on the day when it was alleged that he had been driving the red
Peugeot car he was assaulted by associates of Mr Afzal, on his instructions. The final area of
contention arose from the fact that Mr Afzal had been charged with an offence of kidnap.
44. The applicable statutory provision is to be found in s100 of the Criminal Justice
Act 2003. The Recorder allowed questions to be asked of the complainants about both the
cricket bat and car stereo incidents. The allegation of assault on the same day as the offence
was not pursued. The Recorder refused the application by the appellant to introduce or
cross-examine Mr Afzal about the kidnap charge. This decision forms the basis of com-
plaint before us.
45. It was suggested by the appellant at trial, and before us, that the purpose of this
evidence was not to establish that Mr Afzal was a person of ‘bad character,’ but in order
to demonstrate that others, as well as the appellant himself, might have had a motive for
attacking him. The jury knew of the ‘bad blood’ between the two men, and according to the
argument by Mr Goldstein, it was essential to the defendant’s case to establish that Mr Afzal
had other enemies in addition to and beyond the appellant.
46. The problem with this argument is simple. The evidence of ‘bad blood’ between
the complainant and the appellant was introduced by the appellant, after permission
had been sought and given for it to be raised. Moreover, at the time when the dangerous
driving occurred, the alleged kidnap incident remained some four weeks into the future.
Mr Afzal made his complaint, and identified the appellant as the driver of the Peugeot car
on the day when the incident happened. On any view, therefore, the dangerous driving can-
not have been a response to or some sort of revenge for the kidnap incident. Beyond that,
however, even if the kidnap incident had occurred before the dangerous driving, it remains
difficult for us to see why, even if the kidnap incident had indeed occurred, the victim of
dangerous driving should wrongly attribute responsibility for it to Mr Afzal rather than to
the individual who, on this analysis, was falsely accusing Mr Afzal of kidnap. In any event,
the best that could be said at this stage of the case was that this was a bare allegation, itself
wholly unproved.
282
Renda et al

47. On these facts, there is no justifiable complaint against the Recorder’s decision
about the proper application of s 100 of the 2003 Act. The appeal against conviction will
be dismissed.
[48. The court dismissed Akram’s appeal against sentence.]

Osbourne
49. This is an appeal by Lee Osbourne against his conviction for robbery at Cardiff
Crown Court before HHJ Griffith-Williams QC, the Recorder of Cardiff, and a jury.
50. The appellant was jointly charged with Alex Jenkins, whose application for leave to
appeal against conviction was abandoned.
51. The essential facts can be briefly summarised. In the early hours of 9th September
2004, the police were called to a public house known as the Grasshopper, following a report
that the licensee, Russell Cleverley, had been robbed of £200 in cash from the till. The appel-
lant denied any involvement in robbery, and the defence positively called into question
whether a robbery had taken place at all. The appellant, a man with a lengthy list of previ-
ous convictions suggested that Mr Cleverley fabricated the complaint of robbery in order
to cover up his own misconduct as the licensee at the Grasshopper.
52. The precise details of the incident need no repetition. Mr Cleverley knew the appel-
lant personally. At the end of drinking up time that evening very few people were left in the
Grasshopper. They included the appellant and Alan Jenkins, who would not leave. After a
while Mr Cleverley was threatened by them. Keys to the gaming machines were demanded.
The appellant struck him across the left cheek and went with him to the till and demanded
money. Mr Cleverley gave him £200 from the till. Jenkins was present at the other side of
the bar and told the appellant to take Mr Cleverley upstairs and get the tape. This was a
reference to the CCTV tape, which was then removed and destroyed.
53. Mr Cleverley’s allegation was supported by a fairly considerable body of additional
evidence, but no further narrative of the evidence available to the Crown is required.
54. The material available to the defence extended to four linked areas of alleged mis-
conduct by Mr Cleverley as a licensee. His general conduct and management of the prem-
ises produced persistent till shortages. The premises were regularly misused for after hours
drinking, free to both staff and late customers, with consequent stock depletion. During
these ‘parties’ drug misuse occurred, condoned if not encouraged by Mr Cleverley who
participated in the activity. The fourth criticism was directed to Mr Cleverley’s personal use
of cocaine on the night of the offence itself.
55. As Mr Cleverley was a non-defendant, the admissibility of any evidence of bad char-
acter or misconduct or reprehensible behaviour depended on s100 of the Criminal Justice
Act 2003. In brief, to be admissible, such evidence was required to be important explana-
tory evidence, or evidence with a substantial probative value in the context of the case as
a whole. S100 was analysed by the Recorder. He decided that counsel for the appellant
was entitled to deploy all the material, with the exception of the generalised allegation
of drug misuse during after hours drinking sessions. If true, the allegations of general till
shortages and the provision of free drink, and so on, lent support to the allegation that
any shortage in the till might be attributed to the landlord’s misconduct, rather than an
alleged robbery. If Mr Cleverley used cocaine on the night of the offence itself, that might
significantly undermine his complaints against the appellant. However, the Recorder was
unable to conclude that the drug-taking allegation fell within the rules governing admis-
sibility prescribed by s100.

283
Appendix V

56. The complaint is that the Recorder’s decision was wrong. The excluded material
impacted on Mr Cleverley’s general credibility but it went further, and served to demon-
strate that he was lying when he claimed that he had been the victim of an offence. Moreo-
ver, it was argued, that this material added credibility to the defendant’s account to the
police in interview.
57. The problem with Mr Jones’ fundamental contention can be summarised briefly. The
allegation that the premises were misused generally for drug offences did not help to dem-
onstrate why or support the conclusion that Mr Cleverley was or may have been inventing a
fictitious crime. In the Recorder’s view this allegation therefore lacked the explanatory impor-
tance and substantial probative value which was required to be satisfied before evidence of
the bad character of a non-defendant could be admitted. These decisions have always to
be reached in a particular factual context. We lack what is sometimes described as the trial
judge’s ‘feel’ for the case. We should therefore hesitate before interfering with his conclusion
in a matter of judgment. In our view even if this line of questioning may have had some mar-
ginal relevance, given that the Recorder permitted the proper development of lines of ques-
tioning which had a direct and significant impact on the issue to be decided by the jury, the
prohibition against Mr Jones developing this particular line of cross-examination could have
had no bearing on the outcome of the trial. That said, in our judgment the Recorder’s deci-
sion was right. This particular material did not satisfy the admissibility provisions in s100.
58. A further complaint arising under s 100 is directed against the judge’s decision that
a defence witness, Welsh, an employee of Mr Cleverley, described by the complainant as a
friend, could be cross-examined about his bad character. His evidence purported directly to
undermine Mr Cleverley’s allegation that he had been the victim of violence on the night in
question. In short, he gave evidence which served to support the assertion that Mr Cleverley
had indeed invented the claim that he had been robbed.
59. Welsh had as recently as February 2003 been sentenced to two years’ detention for
an offence of serious violence. The judge agreed with the Crown that he could be cross
examined about it. The evidence of the conviction fell within s 100, particularly germane to
the fundamental question whether or not a robbery had taken place. Without knowing of
Welsh’s character, the jury would have been deprived of important evidence of substantial
probative value in relation to the issue of the credibility of Welsh’s evidence on the vital
question whether Mr Cleverley had fabricated his complaint, or whether in truth he was
rightly to be regarded as a victim.
60. We cannot find any principled basis for interfering with the judge’s decision. In
agreeing that Welsh could be cross-examined about his previous conviction, the judge
observed that the jury was entitled to know about Welsh’s character. With respect we would
suggest that this was an over-parsimonious compliance with the duty of the court under
s110(1) of the 2003 Act to give reasons for any rulings made under s100. However, as the
decision itself was correct, the absence of detailed reasons does not impinge on the safety of
the conviction. Accordingly this appeal will be dismissed.

Razaq and Razaq

61. Ajaz Razaq is the son of Abdul Razaq. On 18th March 2005 in the Crown Court at
Isleworth, before Ms Recorder Gupta and a jury, both were convicted of assault occasioning
actual bodily harm and affray. Another son of Abdul Razaq, Shabaz Razaq, was similarly
convicted. Each was sentenced to a total of 15 months imprisonment. Ajaz Razaq and Abdul
Razaq appeal against conviction with leave of the single judge.

284
Renda et al

62. An unpleasant incident occurred at about 6 pm in the early evening of 21st D ecember
2003. There was an altercation outside a taxi office run by Perwaz Razaq who was later
acquitted of witness intimidation. In the result Tarab Raja sustained a superficial laceration
to the left side of his face, some 4 cms long, abrasions and bruising to the front upper chest,
soft tissue swellings to the head, abrasions to the elbow and knee, and cuts to his fingers.
63. For ease of reference, and to avoid misunderstanding, we shall throughout the rest of
this judgment refer to Ajaz Razaq as Ajaz, Abdul Razaq as Abdul, Shabaz Razaq as Shabaz,
Perwaz Razaq as Perwaz and Tarab Raja as Tarab.
64. The case for the Crown was that as a result of a telephone call from Shabaz indicat-
ing that he could now collect £100 he was owed, Tarab was tricked into going into the taxi
office. He was there set upon by Shabaz and Abdul, who were later joined by Ajaz. The two
brothers were armed with knives: the father was wielding a metal pole.
65. The defence was that Tarab was the aggressor. He attacked Shabaz, whose father
Abdul, and subsequently whose brother Ajaz intervened to protect him. Neither of these
appellants behaved aggressively or violently save to the extent necessary to protect Shabaz.
66. The precise details of the evidence need no further narrative. Although it was virtu-
ally impossible to discover the issues from the defence case statement by Ajaz, in reality the
jury had to decide whether one or both of these appellants was or may have been acting in
what throughout the trial was described as ‘self-defence of another.’ For resolving that ques-
tion, the credibility of all the protagonists required close analysis.
67. Two further aspects of the evidence require specific mention. Abdul was a man
with previous convictions: so was Shabaz. Ajaz was not. He was a man of good charac-
ter. The first defendant on the indictment was Abdul: Ajaz came next, then Perwaz, and
finally Shabaz. This led, as we shall explain, to some tactical manoeuvrings. In the end, each
defendant gave evidence.
68. Tarab, too, had previous convictions. The full information about him was that he
was cautioned in April 1997, when he was 15 years old, for assault occasioning actual bodily
harm, and cautioned again in September 1998 for theft. We were told that the assault was a
very serious incident which resulted in the victim being rendered unconscious in the street.
Quite apart from cautions, notwithstanding ‘not guilty’ pleas, he was convicted in July 2000
of violent disorder, grievous bodily harm with intent, and wounding, and sentenced to a
total of 30 months’ detention at a Young Offender Institution. These convictions repre-
sented two distinct and serious incidents of violence. In addition, in April 2004, he was
fined £100 for breach of the peace.
69. This leads to the second general aspect of the evidence, arising in the case of Ajaz.
Apart from good character, his evidence-in-chief was exceptionally brief. He simply adopted
what he had said in his police interviews. This amounted to a denial of any direct involve-
ment. He had seen a fight between his brother and Tarab. He did not see any metal pole,
and he had no weapon himself. He pushed the protagonists apart, and in turn was pushed
back onto the floor. Apart from accepting that Ajaz’s presence at the incident, as we have
already noted, the defence case statement said absolutely nothing of value. It stated that
the defendant denied assaulting Tarab and denied using or threatening unlawful violence
by himself or any other person. As to witnesses, he was not accepting the evidence of any
prosecution witness which implicated him ‘as being responsible for any criminal offence’.
If one bothers to read further on, the statement asserts that it ‘does not purport to set out
every aspect of the defendant’s case in detail’. In truth it said virtually nothing which was
not fully encompassed in the ‘not guilty’ plea.

285
Appendix V

70. We can now come to the issues raised in the appeal.

71. After Tarab had given his evidence-in-chief, counsel for Ajaz, not we emphasise,
counsel for Abdul, applied under s100 of the Criminal Justice Act 2003 to cross-examine
Tarab about his previous convictions.
72. When the application was made, the Recorder observed that at that stage there was
nothing in the defence case statement to suggest that Ajaz was acting in self defence, or
indeed that Tarab had initiated the violence. She was concerned that Tarab’s conviction
for violent disorder had also involved Shabaz when he, too, had been convicted of violent
disorder. Thereafter the argument that Tarab’s convictions should be admitted was taken up
by counsel by Shabaz, although at this stage he did not adopt the argument on his behalf.
73. The Recorder rejected the application on the basis that the defendant who was mak-
ing it failed to establish for the purposes of s100(1)(b) that Tarab’s bad character was of
substantial probative value in the case against Ajaz. In reaching her conclusion, she was alert
to the contents of Ajaz’s interview and the defence case statement. This perhaps distracted
her from addressing what was said to be Tarab’s ‘propensity for violence,’ and whether, as
was inevitably the case, that his credibility, too, was impugned by conviction after not guilty
pleas to three different offences.
74. After this ruling, an application was then specifically made on behalf of Shabaz to
introduce the full story of Tarab’s previous history. The end result was that permission
was given to counsel to cross-examine in general terms that the witness was a violent man,
basing it on the previous convictions for violence, and, according to the transcript of the
ruling, but not apparently followed up at trial, the caution for assault.
75. In the result Tarab was cross-examined by Abdul and Ajaz without reference to his
previous convictions, and then by Shabaz about the convictions for violence and the over-
all circumstances of each offence, including his ‘not guilty’ pleas. Neither Abdul nor Ajaz
sought leave to further cross-examine, but it is implicit in the arguments that we have heard
that the cross-examination on Shabaz’s behalf was adopted and later deployed on their
behalf. The long-term consequence was that Shabaz’s previous convictions also went before
the jury. Abdul’s did not.
76. The major complaint made by Abdul and Ajaz was that the judge was wrong to reject
Ajaz’s application to cross-examine Tarab about his previous convictions. We shall assume
for present purposes that her ruling limited the cross-examination to the specific incidents
of violence represented by the conviction in July 2002. Complaint was made on behalf of
Abdul that the full details of both cautions and the subsequent breach of the peace should
also have been admitted. Given Tarab’s age at the date of the matters which gave rise to the
cautions, and assuming that the facts relating to them might also have been admitted, we
can see no reason to interfere with the conclusion that this material lacked the substantial
probative value required by and did not properly fall within s100(1).
77. Abdul has no legitimate complaint. He never made an application nor sought in
anyway to introduce Tarab’s previous convictions into evidence. We understand the tactical
considerations which may have inhibited his counsel from doing so at trial, but it can only
be in exceptional circumstances that a defendant who is unprepared to make or expressly
associate himself with an application for leave to cross-examine a prosecution witness may
realistically complain at the judge’s decision rejecting an application to the same effect by
a co-accused. We can see no reason why a defendant has a justifiable complaint if tactical
forensic manoeuvres have failed to produce the hoped for result.

286
Renda et al

78. Ajaz has a sounder basis for complaint. We have some sympathy for the Recorder
who was faced with a sparse and deficient defence case statement, and perhaps insufficient
focus in argument on the specific allegations made directly against Ajaz by Tarab. Never-
theless, in our judgment insufficient weight was given to the critical importance of Tarab’s
direct evidence implicating him. In the result, however, Tarab was cross-examined about his
critical convictions, and that material, and the character of the complainant making allega-
tions against Ajaz was before the jury.
79. Apart from some generalised unspecific complaint, Mr Cifonelli did not identify any
particular prejudice sustained by Ajaz which was not cured by the successful application on
behalf of Shabaz. This ground of appeal therefore fails.
80. The Recorder’s directions about the use to be made of Tarab’s previous convictions
are criticised. She had, of course, to exercise a very careful judgment not to direct the jury
about Tarab’s convictions in such a way to produce an inappropriately adverse reaction to
the fact that Shabaz was himself involved in one of those offences.
81. She directed the jury that this material might help them to understand the other
evidence in the case, including ‘the character of the person who brings these charges and
the case as a whole.’ She suggested that the jury might be helped to resolve the issue whether
Tarab was lying, and pointed out that a person of bad character may be less likely to be tell-
ing the truth than someone of good character. Later in the summing up she directed that
the previous convictions of Shabaz could be taken into account when deciding whether or
not his evidence was truthful, linking it to the case of Tarab, pointing out that a person of
bad character may be less likely to tell the truth. She completed her summing up observing
that the jury had to decide to what extent, if at all, Tarab’s ‘character helps you when judg-
ing his evidence’. She also gave a full good character direction in relation to Ajaz covering
credit and propensity.
82. There is force in the complaint that the Recorder did not give any detailed directions
about the potential relevance of Tarab’s previous convictions for violence to the issue of
propensity, and therefore to their possible bearing on the critical question whether or not
he may have been the aggressor rather than the victim. It is however difficult to imagine
that the jury would have failed to consider and given appropriate weight to those convic-
tions when they considered which of the protagonists was the aggressor. The Recorder had
expressly referred to the assistance this evidence might give to help understand ‘the case as a
whole’, and whether Tarab was lying ‘about his actions during the incident.’ These directions
should have been more direct and specific. It needed no more, than perhaps a single clause
encompassing words such as, ‘may be taken into account by you when considering whether
Tarab Raja was the victim or the aggressor.’ That said, in our judgment, in the context of
this case, the deficiencies we have identified do not undermine the safety of the convictions.
[83. and 84. The court rejected a further ground of appeal, based on an alleged misdirec-
tion in relation to the law relating to the use of force in the defence of another.]
85. Having concluded that none of the individual complaints, taken on its own, impugns
the safety of these convictions, we reconsidered whether the convictions were rendered
unsafe by the cumulative effect of the problems we have identified. Having done so, we have
concluded that these convictions are safe. Accordingly the appeals are dismissed.

All appeals dismissed.

287
Appendix V

R v Weir, Somanathan, Yaxley-Lennon, Manister, Hong and De [2005] EWCA

Crim 2866, [2006] 1 WLR 1885, [2006] 1 CrAppR 19 (303), CA, 11 November
2005; Kennedy LJ, Bell and Dobbs JJ

S. James, R. Kovalevsky QC, P. Mylaganam, A.R.H. Urquart, F. Chamberlain, D. Kapur and

A. Dalgleish for the appellants
R. Vardon, G. Etherton, N. Lobbenberg, A. Vigars and L. Mabley, for the Crown

Lord Justice Kennedy:

Introduction
1. We heard these five appeals consecutively on 20th and 21st September 2005. They
were listed together because they raised points in relation to the Bad Character provisions
of the Criminal Justice Act 2003 which have not previously been considered by the Court
of Appeal, but the points raised are different in each case. There is no overlap. We therefore
deal with the appeals separately in judgments to which all three members of the court have
contributed, but it is convenient to begin by setting out those parts of the Act which are
relevant in relation to one or more of the appeals.
2. The 2003 Act
[The Court set out sections 98, 99, 100, 101, 102, 103, 104, 110 and part of section 112 of
the Act.]6

Anthony Albert Weir

3. On 21st March 2005 in the Crown Court at Manchester this 44 year old appellant was
convicted of sexual assault by touching a girl under the age of 13, contrary to section 7 of
the Sexual Offences Act 2003. He was subsequently sentenced to an extended sentence, the
custodial element of which was 15 months imprisonment. As the sentence was in excess of
30 months he is required to comply with the notification provisions of Part 2 of the Act for
an indefinite period, not, as stated by the Judge when sentencing, for ten years, but that is
not a matter with which have been concerned when considering his appeal.
4. The alleged victim J was a ten year old girl living in the same street as the appellant,
who lived with his partner and her children C and T. J and C were friends, and sometimes
J slept at C’s home. J said that when she did so on Saturday 4th July 2004 the appellant
assaulted her by touching her vagina over her night clothes. According to J he had exposed
himself to her on four or five previous occasions, and on Sunday 5th July he told her that
he used to pay girls £5 to watch him masturbate, and asked her if she wanted to watch.
She refused, but on that Sunday when he took the children swimming he peeped into the
cubicle when she was naked, and then forced three pounds into her hand. J complained to
her mother on the following Sunday, and the police were then informed. When interviewed
the appellant denied that anything improper took place. He had not exposed himself to
the girl, and on Saturday 4th July his partner was away but his friend Dean Allen was with
him, and he had only gone into the children’s bedroom to check that all was well. On the
Sunday when he took the children swimming he had said nothing about masturbation.
He had not spied on J, and although he did give her some money it was only to purchase

6 These are set out in Appendix I above.

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Weir et al

food from the café. His case in relation to the Saturday evening was supported by Dean
Allen, who detected no abnormality.
5. On 16th February 2005, at a plea and directions hearing, the prosecution applied to
adduce evidence that on 9th August 2000 the appellant was cautioned for taking an inde-
cent photograph of a child, contrary to section 1 of the Protection of Children Act 1978.
The application was granted, and it is that decision which is challenged in this appeal. It is
common ground that the relevant statutory provisions are those to be found in the sections
101(1)(d), 103(1)(a), 103(2)(b) and 103(4)(b) of the Criminal Justice Act 2003.
6. On 15th December 2004 the Secretary of State exercised his powers under sec-
tion103(4)(b) by making the Criminal Justice Act 2003 (Categories of Offences) Order
2004 which came into force at the same time as sections 98 to 110 of the 2003 Act. Para-
graph 2 of the Order provides—
(1) The categories of offences set out in Parts 1 and 2 of the Schedule to this Order are
hereby prescribed for the purposes of section 103(4)(b) of the 2003 Act.
(2) Two offences are of the same category as each other if they are included in the same
Part of the Schedule.
Part 1 of the Schedule sets out offences in the theft category. Part 2 is headed ‘Sexual
Offences (Persons under the age of 16) Category’. It includes the section 7 offence with
which the appellant was charged before the Crown Court, but contains no reference to the
offence in respect of which he had received a caution.
7. Mr James, for the appellant, therefore submits that as the offence in respect of which
the caution was administered was not, for the purposes of section 103(2)(b) an offence
of the same category as the one with which he was charged the evidence of the caution
should not have been admitted. The Order, Mr James submits, is plainly selective. It does
not include every possible offence, and unless categorisation is determinative of admis-
sibility (where, as in this case, offences are not of the same description and thus within the
ambit of section 103(2)(a)) then what is the point of categorisation? That was an argument
which appealed to Mitting J at Preston Crown Court in the unreported case of O’Neil 22nd
February 2005, but that was a case in which no relevant categorisation Order had been
made by the Secretary of State, and it is not clear whether the attention of the judge was
drawn to paragraphs 131 to 1327 of the paper prepared by Professor John Spencer QC for
the Judicial Studies Board. As Professor Spencer points out, and as we accept, it is neces-
sary to look carefully at the opening words of section 103(2). They show that a defendant’s
propensity to commit offences of the kind with which he is charged can be proved in ways
other than by evidence that he has been convicted of an offence of the same description or
an offence of the same category. Unless that approach is adopted no proper weight is given
to the use of the word ‘may’ followed by the words in brackets, and the conclusion makes
good sense because it allows for the admission of, for example, the fact that the defendant
has previously asked to have taken into consideration offences of the kind with which he is
now charged, despite the fact that an offence taken into consideration, like a caution, is not
a conviction (see Nicholson [1947] 2 All ER 535, (1948) 32 CrAppR 98).
8. Of course if the evidence sought to be adduced is evidence of convictions satisfying
the requirements of paragraph (a) or (b) then the task of deciding admissibility is made
easier, so the categorisation process does have an effect, and that seems to us to answer the
question which Mr James posed.

7 §§4.68 and 4.69 in the revised version printed in this book (above p 99).

289
Appendix V

9. For those reasons, although we do not agree with the trial judge that ‘an offence
contrary to section 1 of the 1978 Act can properly be regarded (for the purposes of sec-
tion 103(2)(b) of the Criminal Justice Act 2003) as being within the same category as an
offence contrary to section 7 of the 2003 (Sexual Offences) Act’ we do agree with the alter-
native line of reasoning adopted by the judge, and reflected in this judgment. That renders
it unnecessary for us to consider the alternative submission put forward by Mr Vardon for
the respondent that the evidence of the caution would in any event be admissible pursuant
to section 101(1)(g) because the defendant had in effect attacked the character of the com-
plainant. The appeal against conviction therefore fails, and is dismissed.

Romanathan Somanathan
10. On 20th January 2005 in the Crown Court at Croydon this 42 year old appellant was
convicted of two offences of rape, and he was subsequently sentenced to nine years impris-
onment. In his notice of appeal he seeks an extension of time of approximately four months
in which to seek leave to appeal against conviction, and his applications for an extension
of time and leave to appeal against conviction were referred to this court by the registrar.
During the course of the hearing we granted the necessary extension of time (the delay was
attributable to the time required to obtain transcripts) and we granted leave to appeal. We
turn now to outline the case.

Outline of the allegations and the trial

11. Mrs WA [the complainant] is now 30 years of age. She came to England from
auritius in 1996 and married, but her marriage broke down and in 2002 she was buying
M
a new flat. At that time she started to attend the Hindu Temple at Thornton Heath where
the appellant was the main priest or Aya. It was the prosecution case that after several con-
versations, on the telephone and at the Temple, the appellant visited her flat on 11th July
2002 to conduct a poojah (or blessing), and that whilst there he raped her. Thereafter he
continued to contact her and she continued to attend the Temple. He visited her flat again
in September 2002, ostensibly to give her a gift he had obtained on a religious trip to the
Himalayas, and it was the prosecution case that he then raped her for a second time. She
became pregnant, she said by him, and an abortion was performed on 26th November
2002. She said that she made efforts to approach people at the Temple about the appellant,
but the community appeared closed to her, and it was not until November 2003 that she
complained to the police.
12. The appellant was then interviewed on 11th March 2004 and denied any offending.
He said that he did visit the complainant’s home in July 2002 to conduct a poojah, but
there was no impropriety, and in September 2002 he never even went to her home. He also
denied having had any previous problems, in particular when he worked at Tooting. The
false allegations made against him were, he said, attributable to members of the Mauri-
tian community who wanted to give his Temple a bad name. In his defence case statement
served on 16th August 2004 the appellant relied on his answers given during the course of
his interview under caution, and added that the complainant ‘is not a witness of truth and
has some ulterior motive in making and indeed pursuing this complaint.’
13. At the start of the trial on 11th January 2005 Ms G. Etherton for the prosecution
applied to call three witnesses as evidence of bad character, pursuant to Chapter 1 of Part 11
of the Criminal Justice Act 2003. Those witnesses were [Ms IM], [Ms VA] and [Mr S]. The

290
Weir et al

first two were young women who said that at a vulnerable time in their lives they were
subjected to sexually charged approaches made by the appellant similar to those which
the complainant would say were made to her. The other two women were not visited by
the appellant at home because proposed visits were abandoned when he discovered that
they would not be alone, and in neither case was there any allegation of rape. Mr S was the
founder and chairman of the Board of Trustees of the Temple at Tooting, and he was able
to give evidence as to the appellant’s behaviour when employed there, and as to the reasons
why his employment was brought to an end.
14. The application to call the three witnesses was resisted by Mr Squirrel, who was then
appearing for the appellant, and the main argument put forward was that the relevant pro-
visions of the 2003 Act did not apply to this trial because the investigation and the initial
criminal proceedings took place before the relevant provisions came into force. As a result
of a subsequent decision of this court it is now clear, and before us it has been common
ground, that the defence argument was misconceived, and the judge was right to reject it.
During the course of his submissions Mr Squirrel was asked by the judge whether if the new
Act applied he could argue against the inclusion of evidence of bad character, and he replied
‘well, it is going to be difficult, I concede that.’ A little later, counsel expressly conceded that
the applications fell within section 101(1)(f) and (g) of the 2003 Act, but invited the judge
to make use of his power to exclude under section 101(3) of the 2003 Act, and possibly also
under section 78 of the Police and Criminal Evidence Act 1984.
15. Having regard to the way in which the application was advanced it is not surpris-
ing that the judge, after deciding that the 2003 Act did apply, was succinct in dealing with
the requirements of that Act. He found that the application was properly made under
section 101(1)(f) and (g) if not under (d) as well and continued—
I have thought hard about my discretionary power under subsection 3 to exclude the
evidence, but do not do so. Much of this proposed evidence would have been admissible
under the old law in any event.
The trial then began, and on the following day, 12th January 2005, Miss Etherton sought
a ruling that the statement of VA should be read pursuant to section 23 of the Criminal
Justice Act 1988. Evidence was called as to the circumstances under which her statement was
obtained, and as to the steps taken to secure her attendance at court. They were conceded to
have been appropriate steps, but it was nevertheless submitted, principally by reference to
section 26 of the 1988 Act, that the statement should not be read because the evidence was
important and could not be challenged. As to that the judge said—
There is no doubt that this witness is an important and significant one. She gives evi-
dence of similar fact to the extent of the grooming process that this defendant allegedly
employed to wear down the resistance of those that he targeted. However, in my judg-
ment, Mr Squirrel falls into error in saying that the evidence cannot be challenged. The
defendant has challenged her account in interview, and, moreover, the defence is as able
to controvert the evidence in the statement as ever it was … And I have come to the
conclusion that, having thought about the matter carefully, that the statement ought to
be read in the interests of justice, and so doing will not cause an unfairness within the
meaning of this section or section 78 of the Police and Criminal Evidence Act, and con-
sequently I allow Miss Etherton’s application.

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16. The jury then heard the rest of the evidence of the complainant and they heard
e vidence from two witnesses to whom she complained in June or July and in N ovember
2002. They also heard from IM and the statement of VA was read. They heard from
Mr S (of Tooting Temple) and they heard from Professor Lipner, professor of Hinduism at
Cambridge University [part of whose expert evidence was then described].
The prosecution case concluded with evidence in relation to the interview with the
appellant on 11th March 2004, and there were also schedules in relation to telephone con-
tacts between the complainant and the appellant.
17. The appellant gave evidence on his own behalf, but the defence which he advanced
was not as foreshadowed in his interviews and in his Defence Case Statement. He said that
he fell out with Mr S at Tooting because Mr S was running the Temple as a business. He
thought Mr S was worried that the appellant was too popular, and he added that by the end
he was unhappy and ‘my contract was not renewed by agreement.’ As to the complainant
he gave details of his dealings with her, maintaining that she attempted to seduce him, and
said—
[the complainant] has lied because she was obsessed with me and I rejected her—three
times she tried to get me and failed. I accept I didn’t mention this in interview; only
afterwards did I learn about things.
Referring to IM and VA as well as the complainant the appellant said—
All three women have collaborated and told lies about me.
At this stage it is unnecessary for us to refer to the summing-up. We will deal with specific
criticisms made in relation to it later in this judgment.

Issues on appeal
18. Having set the scene we can now summarise the issues raised in this appeal. They
are as follows—
(a) That the judge was wrong to admit the bad character evidence (ie the evidence of
IM,VA and Mr S) because none of it was admissible under section 101(d)(f) or (g) of
the 2003 Act.
(b) That the judge gave inadequate reasons for admitting the evidence, a point only taken
during the course of submissions to us.
(c) That the judge’s directions to the jury in relation to bad character evidence were
inadequate.
(d) That the evidence of Professor Lipner as to the likelihood of a woman making an
allegation against a Hindu priest was inadmissible and prejudicial.
(e) That the judge should not have permitted the statement of VA to be read, and failed to
give adequate directions in relation to it, and—
(f) That each of the convictions is thus rendered unsafe.’
For the purposes of this appeal it was common ground that the convictions stand or fall
together.

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Relevant legislation
19. In this appeal the following sections of the 2003 Act are relevant, and the relevant
parts of those sections are to be found set out in our introduction to all five appeals—
Section 99(1)
Section 101(1)(d), (f) and (g)
Section 101(3)
Section 103(1)(a) and (b)
Section 105(6)
Section 110
It will also be necessary to refer in due course to sections 23 to 26 of the Criminal Justice Act
1988, and to section 78 of the Police and Criminal Evidence Act 1984.

Chronology
20. For certain purposes it is important in this case to bear in mind the sequence of
events as disclosed by the evidence, so we summarise the chronology.
21. In 1998 the appellant ceased to work at Tooting Temple after being there for two
years, and moved to Hendon. In November 2001 he left Hendon to open his own T emple
at Thornton Heath.
22. In about June 2002 the appellant was consulted by the complainant. She says that he
went to her home to perform a poojah on 11th July 2002 and that was when the first rape
took place. The complainant had intended her friend [Ms P] to be present for the poojah
but she was unable to attend. However, according to the complainant, very soon after the
rape she spoke to [Ms P] and to another friend [Ms EL] about what had occurred, and EL
gave evidence of that conversation at the trial. She said that in about June or July 2002 she
was at Manchester University when telephoned by the complainant in distress. She said
that her priest had come to her house, didn’t want to leave, and had bolted the door. He had
pinned her to the floor and she struggled. She couldn’t fight him off. He said they should be
together. She said no several times, but afterwards she felt weak and dirty. She said he forced
her, she didn’t want to, and EL understood she meant something sexual.
23. In August/September 2002 the appellant was in India with his family and, according
to the complainant, it was in September 2002, soon after his return, that he visited her home
with a gift and raped her for the second time. She then became pregnant and consulted
a Marie Stopes Clinic with a view to an abortion. She told DB, a nurse at the clinic, that
the putative father was the priest at the Temple, and DB gave evidence to that effect. The
abortion on 26th November 2002 was preceded by a scan on 22nd November 2002, which
showed the foetus to be just over seven weeks old, indicating that conception took place
early in October.
24. In about February or March 2003 VA was planning a fast, and consulted the appel-
lant. According to her sexual approaches then began which she initially terminated by
threatening to tell his wife what he was doing. He then, in about March 2003, offered to
do prayers at her house and she agreed because she wanted the house blessed. When he
telephoned to say he was on his way she said that her brother was with her and looking
forward to meeting him. The appellant then cancelled his visit, saying that he was getting
late for the Temple. Later he rang to say that she must be alone for the blessing, which VA

293
Appendix V

did not accept, pointing out that her father was a priest. According to her the appellant then
became offensive, and she terminated the conversation and changed her telephone number.
25. It was at about the same time, in March 2003, that IM, who is the sister-in-law of VA,
consulted the appellant, and according to her suggestive conduct of which she complained
continued until July 2003.
26. Meanwhile the complainant was still in contact with the appellant and taking part
in ceremonies at the Temple. In April 2003 she says that she went to Windsor with her son
to visit Legoland, and stayed in a family room at an hotel. According to the appellant she
asked him to perform a poojah at Windsor, and provided him with a railway ticket. When
he got there she took him to her hotel bedroom where she made advances to him, which
he rejected, and he then left. The complainant accepted that under pressure she told the
appellant of her proposed visit to the hotel and was scared that he might follow her, but he
did not do so.
27. On 6th May 2003 the complainant paid £150 to the appellant for a poojah. She was
about to have an operation and, according to her, wanted a poojah in another Temple with
people around, but the appellant found out and insisted that he would do it.
28. In July 2003 the appellant was to perform a service at the home of IM, who arranged
for her sister-in-law VA to be present, although the appellant had told her that she should
not have any family member present. About two hours before the proposed service, at a
time when the appellant knew that VA was to be present, the appellant telephoned to cancel
the service, saying, according to IM, that he had to have an eye operation. When she saw
him a couple of days later there was no sign of any operation, and he said that his eyes had
recovered. According to the appellant he did not cancel services at the homes of either VA
or IM when he knew that they would not be alone, nor did he say anything to IM about
an eye operation. He was due to meet a priest from India, and simply told her that he had
another appointment.
29. The appellant stated that on 11th September 2003, after a summer visit to India, he
took a gift to the complainant at her home which she rejected. That, he said, was disrespect-
ful, and although she subsequently visited the Temple he ignored her because she had been
disrespectful.
30. The appellant asserted that in October 2003 he finally rejected the complainant, and
the last recorded telephone call between them was in that month.
31. In November 2003 the complainant went to the police. They then obtained state-
ments from the complainant, VA and IM, whose name was given to the police by VA, and,
as we have already said, on 11th March 2004 the appellant was interviewed by the police.

Issue 1—Admissibility of bad character evidence

32. We turn now to the first of the issues which arise in this appeal, reminding ourselves
that at the outset in the court below it was accepted that the criteria set out in section 101(1)
(d) (f) and (g) were satisfied. Had that not been the case no doubt a distinction would
have been drawn between the evidence of IM and VA on the one hand and the evidence of
Mr S on the other. His evidence would also have been divided into two parts—the first
relating to the reasons for the appellant’s departure from Tooting, and the second relating
to what the witness saw or heard relating to the appellant’s behaviour whilst at Tooting.
33. Mr Kovalevsky QC, for the appellant, submitted to us that none of the bad character
evidence (ie none of the evidence of IM, VA or Mr S) should have been admitted under
section 101(1)(d) because none of it was relevant to any important matter in issue between

294
Weir et al

the defendant and the prosecution. As Miss Etherton, for the respondent, pointed out, sec-
tion 101(1)(d) does have to be read in the light of section 103(1), which makes it clear
that for the purposes of section 101(1)(d) matters in issue include a propensity to commit
offences of the kind charged, and a propensity to be untruthful.
34. Mr Kovalevsky submitted, correctly, that the sole issue was whether the complain-
ant’s account was true, and he went on to submit, again correctly, that before the implemen-
tation of the 2003 Act the evidence of IM and VA, if not that of Mr S, would only have been
admitted if it satisfied the requirements of similar fact evidence, as set out in DPP v P [1991]
2 AC 447. Mr Kovalevsky then submitted, contentiously, that the coming into force of the
2003 Act has not significantly altered the test for admissibility of similar fact evidence. In
support of that proposition he relied upon certain passages from the speech of Lord Phillips
in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 354, and upon the reference
made to those passages in Edwards and others [2005] EWCA Crim 1813 (p 199 above).
35. As Mr Kovalevsky recognised, O’Brien was not a criminal case, and we remind our-
selves that section 99(1) of the 2003 Act expressly provides that—
The common law rules governing the admissibility of evidence of bad character in crimi-
nal proceedings are abolished (our emphasis).
At paragraph 12 of his speech in O’Brien Lord Phillips said—
Where a defendant to a criminal charge has a criminal record, his propensity to commit
crime will normally have some relevance to the question of whether he committed the
offence with which he is charged. As a general rule such evidence has nonetheless been
held to be inadmissible on the ground that its prejudicial effect is likely to outweigh
its probative value. Exceptions have, however, been made to this general exclusion. The
nature and extent of those exceptions have proved a frequent preoccupation of the appel-
late courts and, on at least four occasions, of your Lordships’ House. They are now to
be found codified in sections 101 to 106 of the Criminal Justice Act 2003, which were
brought into effect in December last year.
We consider that passage, which is not an essential part of the reasoning in O’Brien, to be
capable of being misunderstood. The 2003 Act completely reverses the pre-existing general
rule. Evidence of bad character is now admissible if it satisfies certain criteria (see section
101(1)), and the approach is no longer one of inadmissibility subject to exceptions (see also
the Explanatory Notes to the Act Paragraph 358 and the observations of Professor John
Spencer QC in his paper for the Judicial Studies Board at paragraphs 37 and 143).8
36. In paragraph 33 of his speech Lord Phillips said—
The test of admissibility advanced by Lord Mackay in Director of Public Prosecutions v P
still requires similar fact evidence to have an enhanced relevance or substantial probative
value before it is admissible against a defendant in a criminal trial. This is because such
evidence usually shows that the defendant is a person of bad character and thus risks
prejudicing a jury against the defendant in a manner that English law regards as unfair.
Instead of applying Lord Mackay’s simple test, the trial judge now has to apply his mind
to the matters set out in sections 101 to 106 of the 2003 Act. These preserve, however, by
rules of some complexity, the requirement that the similar fact evidence should have an
enhanced probative value.
8 § 37 of the original text appears as §1.48 in the revised text printed in this book (at p 17 above);

§143 of the original text has been deleted.

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Appendix V

That is also reflected in paragraph 52 of the speech. The Act does not say anything about
‘enhanced probative value’ or ‘enhanced relevance’ (the words used in Edwards and o thers).
Paragraph 363 of the Explanatory Notes does refer to an ‘enhanced relevance test’ but only
in relation to section 100 of the Act. The terms of that section clearly impose a higher test in
respect of the introduction of a non-defendant’s bad character than the test for the intro-
duction of a defendant’s bad character. If the evidence of a defendant’s bad character is rel-
evant to an important issue between the prosecution and the defence (section 101(1)(d)),
then, unless there is an application to exclude the evidence, it is admissible. Leave is not
required. So the pre-existing one stage test which balanced probative value against prejudi-
cial effect is obsolete (see also section 99(1)).
37. In the context of this case we are satisfied that all of the bad character evidence
which the prosecution sought to adduce satisfied the requirements of section 101(1)(d). In
substance it was the case for the prosecution that over a prolonged period, beginning when
she was emotionally vulnerable, the complainant was subjected by the appellant to sexually
charged behaviour which on two occasions culminated in rape. The defendant’s response
was one of complete denial. He did not simply say that there was never any rape. He denied
that he had behaved improperly at any time. It was therefore plainly relevant to an impor-
tant matter in issue between the parties, namely the credibility of the complainant on the
one hand and the defendant on the other, for the prosecution to show that the behaviour
to which the complainant said that she had been subjected (other than the actual offences
of rape) followed a pattern used by the defendant in relation to two other women who
attended the Temple at Thornton Heath, that his behaviour towards women at Tooting gave
cause for concern, and that, contrary to his assertion in interview that he had no problems
at Tooting, he left his post there because of his behaviour and because he was untruthful,
thus exhibiting a propensity to be untruthful (see section 103(1)(b)).
38. That brings us to the second stage of the procedure required by the statute, namely
the application of section 101(3). In this case counsel for the defendant did apply to exclude
the evidence, and bearing in mind the provisions of Article 6 of the European Convention,
we consider it important that a judge should if necessary encourage the making of such
an application whenever it appears that the admission of the evidence may have such a
adverse effect on the fairness of the proceedings that the court ought not to admit it. As
Miss Etherton accepts, section 101(3) does require the judge to perform a balancing exer-
cise, and that exercise does require the judge to look carefully at the evidence sought to be
adduced.
39. In our judgment the probative force of the evidence of IM and VA was consider-
able because, if accepted, it lent powerful support to what the complainant said about the
appellant’s technique. Without going into detail the evidence of each woman showed that
the appellant sought to strike up a relationship with them when they were at a low ebb in
their lives. He belittled their former or intended partners, he admired their clothes, and
suggested what colours they should wear, he acquired telephone numbers and addresses
and then telephoned regularly, often late at night. He spoke of dreaming of them, of being
married to them in a past life, and of the Gods now sending them to him. He offered gifts
and did things to their hands and hair in the Temple which were inappropriate because
they were only done when a girl became a woman or by her husband. Finally he sought to
visit each of them at home when they were alone, and only in the case of the complainant
did he succeed. There was no significant indication of collusion although, as we have noted,
IM and VA were related by marriage, and one gave the name of the other to the police.
The admission of that highly relevant evidence could not in our judgment, have such an
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Weir et al

adverse on the fairness of the proceedings that the court ought not to have admitted it, not
least because the appellant knew precisely who the witnesses were, and what they would
say, so he would be able where appropriate to challenge what they had said, and to adduce
evidence to the opposite effect.
40. Turning to the evidence of Mr S, we take a similar view of his evidence as to the rea-
sons why the appellant ceased to work at Tooting. The appellant had told the police officers
that he had no trouble there, and it was highly probative to show that he had been dismissed
because he lied to Mr S and because of behaviour which Mr S had witnessed, or put to the
appellant. With all of that the appellant could be expected to deal. If Mr S had been allowed
to give evidence about complaints made in relation to the appellant’s behaviour which he
received from unidentified third parties and which were not put to the appellant such evi-
dence by its nature would have been very difficult for the appellant to meet, and should
therefore in fairness to the appellant have been excluded pursuant to section 101(3), but
there was no such evidence tendered in this case. Mr S was quite clear that his concerns,
arising from what he saw and heard, were put to the appellant. For example he was asked—
Q. Did you speak to him about the concerns that were being raised or coming to your
attention about his attitude to some women?
A. Yes on several occasions I have spoken to him, even spoken about his dress.
41. Similarly in relation to the lies which, according to Mr S, the appellant told about his
contact with a French family, even to the extent of swearing on God. It is quite clear from
the evidence that what mattered to Mr S was the appellant’s response to him and the appel-
lant was well able to deal with that.
42. We therefore conclude that the judge was right to admit all of the evidence pursu-
ant to section 101(1)(d) having given consideration to the application made under section
101(3).
43. Our conclusions in relation to section 101(1)(d) make it possible for us to deal
more succinctly with the other gateway provisions. We accept that a simple denial of the
offence or offences alleged cannot, for the purposes of section 101(1)(f), be treated as a
false impression given by the defendant. But that was not the situation in this case. The
appellant put himself forward as a man who not only had no previous convictions but also
enjoyed a good reputation as a priest, particularly at Tooting, where he had previously been
employed, and was the victim of a conspiracy hatched up by members of the Mauritian
community at Thornton Heath. That, as Mr Kovalevsky accepted, opened the gateway for
the admission of evidence as to what happened at Tooting, but he invited our attention to
section 105(6) which states that evidence is admissible under section 101(1)(f) ‘only if it
goes no further than is necessary to correct the false impression.’ We accept that is a statu-
tory reversal of the previous common law position that character is indivisible (Winfield
[1939] 27 CrAppR 139), but we do not accept Mr Kovalevsky’s submission that all that
was required in this case to correct the false impression was for Mr S to state that deci-
sions had been taken not to renew the appellant’s contract because of complaints that had
been received. The gateway having been opened the prosecution was entitled to adduce a
full account of what, according to their witness, brought the Tooting contract to an end.
A slightly more difficult question is whether the evidence of IM and VA would be admis-
sible to correct a false impression given by the appellant. Miss Etherton submitted that it
was because of the appellant’s allegations in interview about a conspiracy. We prefer to put
it slightly differently. In our judgment the evidence of the two women was admissible under
section 101(1)(f) because part of the false impression given by the appellant in interview
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Appendix V

and, as it turned out later by calling seven character witnesses, was that he was a priest who
had never behaved inappropriately towards female worshippers at his Temple.
44. We note that the provisions of section 101(3) do not apply to subsection (1)(f),
and we see no reason to doubt that section 78 of the 1984 Act should be considered where
section 101(1)(f) is relied upon (see the judgment of Lord Woolf CJ in Highton and others
[2005] EWCA Crim 1895 (p 266 above) at paragraph 13, and the views of Professor Spencer
at paragraph 21 of the paper to which we have already referred).9 In this case for the reasons
which we have already given when dealing with the application of section 101(3) to section
101(1)(d) we do not see any way in which, in relation to subsection (1)(f), section 78 would
assist the appellant.
45. We turn now to the final gateway provision relied upon, namely that the appellantat
interview and thereafter made an attack on the complainant’s character (section 101(1)(g)).
Mr Kovalevsky accepts that he did so, but he submitted that the opening of that gateway
should not be regarded as rendering all available evidence of bad character admissible. That
is a somewhat difficult submission because in the first place it must be noted that section
105(6) has no application to section 101(1)(g), and, secondly, it is clear from the decision
in Highton that once this gateway is open the evidence admitted may be used not only in
relation to credibility but also in relation to propensity. In our judgment the attack on the
character of the complainant clearly opens the door to all of the evidence on which the
prosecution sought to rely, subject to the requirements of section 101(3), which we have
already considered in relation to section 101(1)(d).

Issue 2—The judge’s reasons

46. We accept that the judge’s reasons for deciding as he did were brief, but they have
to be considered in the light of the argument advanced before him. The principal issue
was whether the 2003 Act applied. He was right about that. It was accepted by the defence
that the gateway provisions were satisfied, so the only other issue was the application of
section 101(3) of the 2003 Act or section 78 of the 1984 Act. The significant difference
between those provisions is to be found in the mandatory opening words of section 101(3),
but they do not apply until the court reaches its conclusion as to whether the admission
of the evidence would have such an adverse effect on the fairness of the proceedings that
the court ought not to admit it. In other words the first step is for the judge to perform the
balancing act, and it is clear to us that is what the judge did. That is what he was referring
to when he spoke of his discretionary power under subsection (3) to exclude evidence. We
accept that he could have expressed himself better, but we do not regard infelicity of expres-
sion as an effective ground of appeal.

Issue 3—Directions to the jury

47. Mr Kovalevsky submits that the judge failed to direct the jury properly as to the use
that could be made of the bad character evidence of IM, VA and Mr S. In particular it is
said that the judge failed to refer to the possibility of collusion or innocent contamination
as required by H [1995] 2 AC 596 and, secondly, he did not invite the jury to consider the
similarities between the accounts.

9 This paragraph appears as §1.59 in the revised text of the commentary printed in this book

(at p 22 above).

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Weir et al

48. Collusion was never raised as an issue in this case but the possibility of innocent
contamination was put to and rejected by IM. During the course of the evidence the
judge did caution the jury about the way in which they should approach evidence of bad
character, and he returned to the topic in his summing-up, saying at page 38G of the tran-
script in relation to VA—
Bear in mind the direction I gave you about that, but consider both her account and
that of [IM]. In the absence of collaboration and putting minds together and fabricating
these allegations that they make, is it likely that these women have separately invented
these incidents?
You heard from Mr S, the owner of the Tooting Temple. I referred to his evidence when I
gave you a direction about character generally. His evidence is admissible to counter the
defendant’s assertion in interview that there was never any problem at Tooting, and also
the defendant has made an attack on the truthfulness of [the complainant].
That, as it seems to us, in the context of this case, satisfied the requirements of H, and earlier
in his summing-up the judge had referred to the evidence of VA and IM as evidence capable
of supporting the complainant. He said—
Now, these incidents and aspects of their evidence, if you accept them, are capable of
supporting [the complainant’s] account of the defendant’s course of conduct or course
of behaviour towards her, and the prosecution say that together they show a picture of
the targeting of vulnerable women at uncertain times in their lives and a purposeful
course of grooming towards a situation from which he could take advantage. Now, that
is a matter for your judgment.
The judge went on to deal with the evidence in detail. In our judgment he cannot be criti-
cised for failing to spell out similarities between the accounts, and indeed had he done so he
would have been assisting the prosecution rather than the defence.

Issue 4—Professor Lipner

[49. The court held that Professor Lipner’s evidence was properly admitted.]

Issue 5—The statement of VA

50. VA made her statement on 1st March 2004 but later indicated that she did not wish
to attend to give evidence, and the judge heard evidence from which he was able to con-
clude that all reasonable efforts had been made to locate her. That is not disputed. He then
had to consider whether her statement could be read, having regard to the factors set out
in section 26 of the Criminal Justice Act 1988, namely (1) the contents of the statement;
(2) the risk of unfairness to the accused having particular regard to whether it was likely
to be possible for the accused to controvert the statement, and (3) any other circumstances
that appeared to the court to be relevant. The judge considered those statutory provisions
and in a ruling set out earlier in this judgment decided that the statement could be read.
Mr Kovalevsky submitted that his conclusion was wrong because the witness was important
and if she could not be produced and cross-examined her evidence should not be adduced
at all. In our judgement that cannot be accepted, not least because it would frustrate one
important purpose of the statute, which was to prevent a prosecution from being hampered

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by intimidation of witnesses. The reality was, as we have already indicated, that the appel-
lant was well able to deal with the statement of VA and, as Miss Etherton points out, his
counsel was able to put his case not only to the complainant but also to IM. We consider
that the judge’s carefully considered decision to allow the statement to be read cannot be
faulted.
51. Then it is said that the judge failed properly to direct the jury in relation to the
statement which had been read. When the statement was read the judge warned the jury to
bear in mind that because the witness did not attend they were deprived of the opportunity
to hear her cross-examined, and he repeated that warning in his summing-up, saying at
page 8G of the transcript—
Remember that Mr Squirrel was deprived of the opportunity to cross-examine her and
challenge her evidence, and take that into account when you assess how much weight to
put upon what that witness says, bearing in mind that it was a statement made to a police
officer in contemplation of criminal proceedings. So tread carefully, and bear in mind Mr
Squirrel was not able to put his case to her in the way that he did, for example, to [IM].
52. Mr Kovalevsky submitted that the direction was inadequate because the witness was
important, and drew our attention to the decision of this court in McCoy 10th December
1999, unreported save in [2000] 6 Archbold News 2. In that case the statement read was that
of the victim of what was alleged to be a wounding with intent to do grievous bodily harm
who identified his attacker. His evidence was, as this court found, ‘wholly crucial to the case.’
It was not entirely clear why he did not attend, and the judge was precipitate in allowing
his statement to be read before giving sufficient time to exhaust the possibility of his being
brought to court. It was in that context that Laws LJ said at paragraph 25 of the transcript—
If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case
where identification is the true issue, it must be incumbent on the trial judge to ensure
that the jury realise the drawbacks which are imposed on the defence if the prosecution
statement is read to them. It is not enough simply to say that counsel has not had the
opportunity of cross-examining. A lay jury may not appreciate the significance of that
fact. The judge must at least explain that it means that they may feel quite unable to
attach anything like as much weight to the evidence in the statement as they might if it
was tested in cross-examination; and where appropriate it would be necessary, certainly
desirable, for the judge also to indicate to the jury by way of illustration the sort of
matters that might well be put in cross-examination in the particular case.
53. In the present case the evidence of VA was important, but it was not crucial, and the
judge in his direction drew attention not only to the lack of opportunity to cross-examine
but also to the question of how much weight should be put on what the witness said. He
also illustrated what might have been put to her had she attended by referring to the cross
examination of IM. In those circumstances it seems to us that he did all that was required
of him in this case, where the situation was different to that which arose in the case of
McCoy.

Conclusion
54. Thus we conclude that the appellant has failed to substantiate any of his grounds of
appeal, and accordingly this appeal against conviction is dismissed.

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Stephen Yaxley-Lennon

The Background
55. On 18th April 2005, in the Luton Crown Court, this appellant was convicted by a
majority of 11–1 of assault occasioning actual bodily harm (Count One) and by a majority
of 10–2 of assault with intent to resist arrest (Count Two). He was sentenced to 12 months
imprisonment on Count One and 3 months imprisonment concurrent on Count Two. He
appeals by way of leave of the single judge.

The prosecution case

56. The incident in question took place in Luton at around 3am on 4th July 2004. The
victim was an off duty police officer called Dalton. He and his neighbours Mr and Mrs Bye
were woken by an argument in the street between the appellant and his girlfriend Jenna
Vowles. Although living in the same street, Dalton and the Byes did not know each other.
Concerned by the screaming and raised voices, the three of them went into the street from
their homes.
57. The appellant was described as being ‘on a short fuse’ and that ‘something had riled
him’. Miss Vowles was sobbing and hysterical wanting nothing to do with him. Dalton,
concerned for Miss Vowles, told the appellant that he should let her go home alone. He
indicated that he was a police officer and showed the appellant his warrant card. He tried
to bring the appellant to the ground. Both men fell to the ground. The appellant managed
to get to his feet and kicked Mr Dalton in the head. Dalton had thrown no punches. Dalton
then stood up and told the appellant that he was arresting him for assaulting a police officer.
It was subsequently decided that such an arrest would not be prudent and that the Byes,
who had witnessed the whole incident, would ascertain the appellant’s address.

The defence case

58. In interview and in evidence, the appellant said that he had been out clubbing. He
had drunk one bottle of Smirnoff Vodka. He and Jenna Vowles had an argument. She had
dropped her mobile phone and was on her hands and knees trying to pick it up. The eye
witnesses must have assumed that he was the aggressor. Dalton came up to him. He asked
the appellant what he was doing. His breath smelled of alcohol. Jenna was not sobbing or
crying. Dalton told him he was not going home and pushed him around, pushing him in
the face and pulled his legs from under him. He did not produce a warrant card or say he
was a police officer. The appellant did not kick him. It was only at the end when Dalton was
threatening him that he indicated he was a police officer. The appellant did not believe him.
He suggested that Mr Bye knew Dalton as he addressed Dalton by his Christian name, tell-
ing him to leave it and go home. The appellant and Jenna then ran home.
59. Jenna Vowles gave evidence along the same lines of the appellant, describing the
argument as a tiff, but that they were happily going home when the incident broke out.

Background to the judge’s ruling

60. During evidence in chief of Jenna Vowles, counsel for the appellant asked her
whether she or the appellant had taken any drugs that evening. She replied ‘No.’

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61. In cross examination, counsel for the Crown asked her the following questions:
Q. You were asked questions by Mr Urquhart about what you had been drinking. Yes?
A. Yeah.
Q. An you say you had had four drinks and you were a bit tipsy. Correct?
A. Yeah.
Q. And then he asked you about whether you had taken any drugs. Correct?
A. Yeah.
Q. Just tell about drugs please for a moment. What do you want to tell us about drugs?
A. I don’t take drugs.
Q. Never taken drugs?
A. No.
Q. Never possessed drugs?
A. Yes.
Q. Yes. Tell the jury about that.
A. I was cautioned in November for possession of drugs.
Q. Which drug?
A. It was cocaine.
Q. Cocaine.
A. It was in my possession. There were two empty bags which I was clearing out my
house. I put them in my bag so my parents wouldn’t find them.
It was at this point that the judge asked the jury to retire. There then followed discussions
between counsel and court.
62. The Crown whilst conceding that they should have made an application to introduce
the caution, said that they would not have raised the issue had the witness not been asked
about drugs in evidence in chief. They submitted that the evidence was relevant to the ques-
tion of credibility.
63. The defence having taken instructions made an application for the discharge of the
jury on the basis that the wording of section 100(1)(b) could not include issues relating to
credibility and thus the evidence did not relate to a matter in issue in the proceedings. The
judge said that it was premature to discharge the jury at that point without more and that
he may have to re-visit the decision at a later point.
64. It was agreed between the parties and the court that the witness should be asked
further questions about her caution. The witness was then called and questions were put to
her in the absence of the jury. Following the voir dire, defence counsel submitted that the
evidence could not fall under section 100 (1)(a) or (b).
65. The judge ruled that Jenna Vowles’s caution for possession of cocaine had substantial
probative value to her credibility, which was an important issue in the case. It had been put
that she was lying to support her boyfriend’s case and there was a stark difference between
the Crown and Defence accounts. He gave leave for the Crown to ask further questions to
the witness in front of the jury, but indicated that he was going to direct the jury that so
far as credit is concerned they should ignore the evidence completely, as it could not really
help the prosecution prove that she had been lying about what happened in relation to the
events of the incident, given that she did not lie in relation to the caution. In the light of the
judge’s comments, counsel for the crown did not cross examine further on the matter in the

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presence of the jury. Counsel for the appellant re-examined the witness on the background
facts leading to the caution.

Direction in summing up
66. When summing up to the jury, the learned judge gave a strongly worded direction
to the jury, as follows:
One exchange between Mr Heimler and her (Vowles) concerned this question of cocaine.
I need to deal with it. You have heard about it. Can I ask you to disregard it completely? It
has got about as much to do with this case as the price of tomatoes. First of all the caution
took place well after this incident itself occurred. … Secondly—and it is important—
although her credibility is in issue, clearly just as much as all the witnesses credibility is
in issue, the effect of drugs on that is unknown. It has got really no issue, no bearing on
any issue in this case. …. I am directing you to disregard her previous caution completely
because it cannot help you decide what happened in the street that night. … In fairness
please just disregard that completely.

Grounds of appeal
67. The ground of appeal is that the judge erred in holding that the evidence of the cau-
tion was admissible and rejecting the defendant’s application to discharge the jury.
68. The appellant’s submissions are put on two bases: Firstly, that the evidence did not
relate to a matter in issue in the proceedings as the section does not encompass matters of
credibility. Second that even if credibility is encompassed by the section, the evidence did
not pass the test of admissibility as it had no substantial probative value in relation to the
question of credibility and was not of substantial importance in the context of the case as a
whole. It was submitted that the evidence had very little value in relation to credibility and
no relevance at all to the offence in question because (a) the caution did not relate to an
offence of dishonesty or showing evidence of untruthfulness; (b) it related to an incident
after the events in issue; (c) the witness by agreeing to be cautioned had accepted her guilt;
(d) the witness was frank about her caution in evidence; and (e) there was no suggestion
that she was under the influence of drugs during the incident itself.
69. The appellant also submits that the conviction is unsafe in the light of the majority
verdicts on each count on the basis that the evidence could have adversely affected their
view of the witness despite the judge’s strong warning.
70. On behalf of the respondent, it is submitted that Section 100(1) must cover the issue
of credibility, for were it not to do so, unfairness would ensue. It was submitted that the
evidence of the caution was relevant to credibility, but it was conceded that it was difficult
to suggest that the evidence had substantial probative value in relation to credibility in the
light of the witnesses’ answers.
71. Their primary submission therefore is that the conviction was safe and that the
strong warning given by the judge corrected any harm done by the introduction of the
evidence.

Judgment
72. We now deal with the submissions and the questions arising therefrom.

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Does section 100 (1) cover issues of credibility?

73. Although couched in different terms from the provisions relating to the introduc-
tion of the defendants bad character, in our view, section 100(1) does cover matters of
credibility. To find otherwise would mean that there was a significant lacuna in the legisla-
tion with the potential for unfairness. In any event, it is clear from paragraph 362 of the
Explanatory Notes that the issue of credibility falls within the section.

Did the judge err in coming to the conclusion that the evidence of the caution had
substantial probative value in relation to the witness’s credibility?
74. In our view he did err for a number of reasons, including those which were put for-
ward by the judge himself when directing the jury to ignore the evidence of the caution. It
follows, ther12efore, that we find that the evidence of the caution was inadmissible under
section 100.

Is the verdict unsafe as a result of the inadmissible evidence being in front of the jury?
75. Mr Urquhart conceded that had the judge found the evidence to be inadmissible but
nevertheless declined to discharge the jury, he would have difficulty persuading the court
that the judge had exercised his discretion wrongly. Although the exercise of discretion was
not the basis upon which the judge declined to discharge the jury, the practical effect is still
the same. We have to take a view therefore whether in the light of the admission of the evi-
dence of the caution, the conviction is unsafe. We have considered the evidence as a whole
and in particular the very strong warning given to the jury and come to the conclusion that
the verdicts in this case, despite being majority verdicts are not unsafe. This appeal against
conviction is therefore dismissed.

Simon Charles Manister

76. On 15 April 2005 in the Crown Court at Bristol, this appellant was convicted of three
offences of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.
77. A, the complainant in each case, was born on 12 March 1990 so she was thirteen at the
time of the alleged offences; the appellant was thirty-nine. He was a friend of the girl’s father
and he moved into the family home on 23 July 2003 and stayed there until December 2003.
78. A alleged that the appellant touched her sexually on a number of occasions, but the
allegations which led to the three counts in the indictment were: Count 1, placing his hand
between her legs in the region of her vagina, then on her breasts, both over her clothes, in
December 2003 soon after he left her family home; Count 2 (an allegation of rape of which
he was found not guilty but guilty of indecent assault), full sexual intercourse in mid Febru-
ary 2004; and Count 3, forcibly kissing her, touching the outside of her leg and her bottom
and then between her legs in the area of her vagina, all over her clothes, before putting his
hand under her upper clothing and bra and touching her breast, on 27 February 2004. All
the offences were alleged to have been committed in his car.
79. A did not make any allegation against the appellant until just over a week after the
last, alleged incident, when she was arrested for shoplifting. She was interviewed on three
occasions, and the video recordings of the interviews stood as her evidence in chief. In the
first interview on 9 March 2004 she spoke of the appellant’s relationship with her family
and her sympathy for him because he said he had cancer, although it turned out to be a
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swollen gland in his throat. She spoke of the appellant touching her up on occasions and
gave her account of events which led to Counts 1 and 3. At the end of the interview she
asked what she should do if she later remembered something else. The interviewing officer
said A could come back and speak on tape, and asked her if she had told as much as she
could. She said, ‘Yes.’
80. The second interview was on 19 May 2004. A spoke slowly and it was difficult for
the officer to get much out of her. She said that on an occasion in about mid February the
appellant had spoken about paying her for sex, which disgusted her, and he tried to kiss her.
She spoke of an earlier occasion just before Christmas when she was in his house and he
came down naked after a shower. She spoke of him threatening to kill himself on 27 Febru-
ary 2004. She was asked if there was anything else she wanted to say, and she answered ‘No.’
81. On 28 June 2004 she was interviewed for a third time because she had more to say,
and she spoke of the appellant kissing her, pulling her jeans and thong down to her ankles
and having sexual intercourse with her in his car on the occasion in mid February 2004. He
had ejaculated onto the seat. She had not spoken about it before because she thought people
would be mad at her, and she was embarrassed.
82. The appellant had no previous convictions. His case, when interviewed by the police
and in his evidence at trial, was that nothing of a sexual nature had occurred between him
and A. None of the allegations upon which the indictment was based were true. In inter-
view he said that he and A had a friendship; he gave her a little bit of confidence; he never
thought that she thought there was more to their friendship, and he told her ‘just be mates.’
In his evidence, he said that his relationship with A was just a friendship where he wanted to
help a friend, a teenager. He was someone who was just there, a sounding board, someone
to talk to. He accepted that, looking back, it was an emotionally unhealthy relationship, but
he had not done any of the improper things that A said he had done.
83. The prosecution relied on various matters in support of the allegations. Semen with
the appellant’s DNA was found on his car seat. It could not be related to A or any particular
woman, and the appellant said it was the result of unprotected sex with other, adult women.
84. There were records of a large number of mobile telephone calls between the appel-
lant and A. He had sent her a card with the message, ‘Be mine as I miss you lots,’ which A
had hidden under her mattress where it was found by her sisters.
85. The judge ruled that evidence of an earlier sexual relationship with another girl was
admissible in evidence, as a result of which the appellant formally admitted, as agreed facts,
that from October 1998 to September 2001 he had had a sexual relationship with B, a girl
who was sixteen at the start of the relationship, when the appellant was thirty-four.
86. The judge also ruled admissible the evidence of C, a sister of A, and fifteen at the
material time, that after going to the gym with the appellant he had told her, ‘Why do you
think I’m still single? If only you were a bit older and I a bit younger.’ The appellant denied
saying that; it was put to C in cross-examination that she had made it up.
87. The verdict of not guilty of rape but guilty of indecent assault on Count 2 must mean
that the jury was sure of sexual intercourse, unlawful because of A’s age, in mid February
2004, but not sure that A did not consent, or not sure that the appellant was reckless as to
whether she consented. In those circumstances, the prosecution does not seek to uphold
the appellant’s conviction for indecent assault on Count 2 in the light of the decisions of
the House of Lords in J [2004] UKHL 42, [2005] 1 AC 562 and of this court in WR [2005]
EWCA Crim 1907.
88. The appellant was never charged with unlawful sexual intercourse, and the effect of
those decisions is that on 15 April 2005 when Count 2 was left to the jury, it was too late
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to prosecute the appellant under section 6(1) of the Sexual Offences Act 1956 for having
unlawful sexual intercourse as an alternative to the allegation of rape, because section 37(2)
of, and paragraph 10(a) of Schedule 2 to, the 1956 Act provided that no such prosecution
could be commenced more than twelve months after the alleged sexual intercourse in mid-
February 2004. In accordance with J and WR, the alternative of indecent assault could not be
left to the jury either. A prosecution for unlawful sexual intercourse could not be commenced,
so it was also impermissible to commence a prosecution for indecent assault by leaving it to
the jury as an alternative to rape. In those circumstances the appeal against conviction on
Count 2 must succeed and the conviction for indecent assault on that count is quashed.
89. The remaining appeal against the convictions for indecent assault on Counts 1 and 3
is based on a number of grounds, but primarily on the contention that the judge was wrong
to rule the evidence of B and C admissible.
90. The relevant sections in Part 11, Chapter 1, of the Criminal Justice Act 2003 are sec-
tions 98, 99(1), 101(1)(3) and (4), 102, 103(1) and 112(1).
91. So far as the potential evidence of an earlier sexual relationship between the appel-
lant and B was concerned, the trial judge concluded that for a man of thirty-four to institute
a sexual relationship with a girl of sixteen was properly to be described as reprehensible
behaviour, and that this brought the relationship within ‘gateway’ (d) of section 101(1). It
showed a propensity to be attracted to girls of an age which was inappropriate for persons
of the appellant’s age. Since this was the context of the evidence, the passage of five or six
years since the earlier relationship was not of significance for the purposes of s ection 101(4).
Having formed a clear view in respect of gateway (d), the judge did not think it necessary
to form a view on the additional gateway (f), to correct a false impression, argued by the
Crown; he thought it more difficult, but he would not shut it out.
92. The judge ruled that the potential evidence of what the appellant was alleged to
havesaid to A’s sister, C, was admissible as ‘part of the background as to what is going on
in this family, involving the defendant, that the jury was entitled to hear and which, if they
accept the evidence, may be useful to them.’
93. Mr Chamberlain challenged both rulings, as he resisted them at the trial. In respect
of the sexual relationship with B, he contended that a perfectly legal relationship could not
involve the commission of an offence, which we accept; nor could it, being countenanced
by the law, amount to ‘reprehensible behaviour.’ There was no exploration of the details of
the relationship. What if the appellant had married B? It could not, therefore, amount to
misconduct or a disposition towards misconduct. The disputed evidence of what the appel-
lant said to C indicated restraint on his part.
94. In our combined view, the judge was wrong to conclude that the sexual relationship
between the appellant and B, without more, amounted to ‘evidence of, or of a disposition
towards, misconduct on his part’ and therefore evidence of ‘bad character’ for the purposes
of section 98, and therefore sections 101, 102 and 103 of the Act. The definition of ‘miscon-
duct’ in section 112(1) is very wide. It makes it clear that behaviour may be reprehensible,
and therefore misconduct, though not amounting to the commission of an offence. The
appellant was significantly older than B. But there was no evidence, or none that the Crown
put forward and the judge ruled admissible, of grooming of B by the appellant before she
was sixteen, or that her parents disapproved and communicated their disapproval to the
appellant, or that B was intellectually, emotionally or physically immature for her age, or
that there was some other feature of the lawful relationship which might make it ‘reprehen-
sible.’ Indeed it might be inferred from the simple agreed facts that the relationship with
B was a serious one, with some real emotional attachment, because it lasted some time.
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95. However, once it is decided that evidence of the appellant’s sexual relationship with
B did not amount to ‘evidence of bad character’, the abolition of the common law rules
governing the admissibility of ‘evidence of bad character’ by section 99(1) did not apply. We
have no doubt that evidence of the relationship was admissible at common law, in the par-
ticular circumstances of this case, because it was relevant to the issue of whether the appel-
lant had a sexual interest in A. It was capable of demonstrating a sexual interest in early or
mid-teenage girls, much younger than the appellant, and therefore bore on the truth of his
case of a purely supportive, asexual interest in A. It was not in our judgment unfair to admit
the evidence (see section 78 of the Police and Criminal Evidence Act 1984).
96. Although the judge came to his conclusion as to the admissibility of the appellant’s
relationship with B by a different route, his direction to the jury as to its possible relevance
was fair and accurate. He directed them that it was for the jury to decide whether it had any
relevance. He reminded them that the age of consent was sixteen. ‘It is something that you
can take into account in deciding whether he might have been attracted to [A]. It does not
mean that he would have behaved as she says that he behaved; that is assaulting her sexually.
To state the obvious, you can be attracted to someone without assaulting them’.
97. So far as C’s evidence was concerned, the judge did not expressly rule on whether it
amounted to evidence of ‘bad character’ for the purposes of the Act, or was simply relevant
as part of the background as to what was going on in the sister’s family, involving the appel-
lant. Unattractive as the alleged conversation was, we do not consider that it could safely
be judged to amount to reprehensible conduct on the appellant’s part. But his words, with
their implied admission of sexual attraction to fifteen year old C, were again, in our view,
clearly relevant to the issue of whether the appellant was sexually attracted to A, and there-
fore admissible for the same reasons which applied to the sexual relationship with B. It was
not unfair to admit C’s evidence.
98. The judge did not direct the jury as to the potential relevance of C’s evidence, but
it must have been plain that it fell in the same category as the admission in respect of B,
namely something which the jury could take into account in deciding whether the appel-
lant was sexually attracted to A.
99. We therefore reject the challenge to the admissibility of the appellant’s conduct in
respect of B and C.
100. Mr Chamberlain challenged the judge’s direction in respect of the appellant’s char-
acter. Having indicated in the summing-up that he would give a full ‘good character direc-
tion’ he did so in the terms of the standard direction suggested by the Judicial Studies Board
which, accordingly, concluded by telling the jury that they were entitled to take into account
all that they had heard about the appellant. This, Mr Chamberlain contended, was likely to
be understood by the jury to refer to his earlier relationship with B, and, therefore, to qualify
the terms of the good character direction as a whole. We cannot accept this. The relevance
of the appellant’s lack of convictions, to be taken into account in his favour both as to his
credibility and the lesser likelihood of committing the offences of which he was accused,
was clearly described to the jury who, nevertheless, had to take account of all they had
heard. We see no mischief in that.
101. It was contended that the judge should have given the jury a specific warning to
exercise caution in relation to A’s evidence in the light of what Mr Chamberlain suggested
were weaknesses or implausibilities in her evidence. In particular she told the police in
her first two interviews that nothing else had happened, before alleging sexual intercourse,
amounting on the face of it to rape, in the third. But the case of Makanjuola [1995] 1 WLR
1348, to which we were referred simply says that a judge ‘may’ give a special warning, and
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we can not fault the judge’s decision not to do so in this case. The judge pointed up the pos-
sible weaknesses or implausibilities as he reminded the jury of relevant evidence and issues.
102. It was argued that the judge made comments which might have suggested that
A’s shoplifting was caused by the appellant’s behaviour towards her, when he should have
directed them that the reprimand for shoplifting was central to her credibility; and that he
raised matters which were not canvassed by counsel on either side, including the possibility
that A was attracted to the appellant and may have consented to what happened. But the
jury was clearly reminded of her shoplifting and the judge’s comments all related to ques-
tions which would have come to the minds of worldly members of the jury, and were fairly
balanced. We reject the final, and associated submission that the summing-up was ‘overly
favourable’ to the Crown’s case.
103. For all these reasons we reject the challenges to the conduct of the appellant’s trial.
His convictions on Counts1 and 3 were safe and his appeals against those convictions are
dismissed.
[104. and 105. The court dismissed the defendant’s appeal against sentence.]

Hong Qiang He and De Qun He

106. On 10 March 2005, in the Crown Court at Southwark, these appellants were con-
victed of violent disorder (Count 1), contrary to section 2(1) of the Public Order Act, 1986.
Each now appeals against his conviction.
107. A co-defendant, Feng He, was convicted of the same count of violent disorder. A
further co-defendant, Pin Shuen Chan was acquitted of the count of violent disorder on
the judge’s direction, but convicted of wounding with intent to cause grievous bodily harm
(Count 2).
108. The counts arose out of a running fight between two groups of young men in
Chinatown in west central London on the evening of 9 September 2004. Various weapons
including knives and baseball bats were used. Parts of the concluding events were captured
on CCTV in Shaftesbury Avenue.
109. The CCTV film was alleged to show the appellant De Qun He (‘De’) being struck
on the head after which he ran away up Shaftesbury Avenue. A group was seen fighting and
moving in the direction taken by Hong Qiang He (‘Hong’). Hong was said to have used a
baseball bat before falling to the ground. Pin Shuenn Chan (‘Chan’) was said to have walked
towards the group and then run to where Hong was lying, before bending over and stabbing
him twice in the leg. De was seen to return, pick up an advertising board, and wave it in a
threatening manner towards the group fighting over Hong. Hong was helped to his feet and
his friends moved up the street and around the corner. Two of the friends were carrying
baseball bats. De put down the advertising board and went with them. They turned into
Gerrard Place where some got into a car in which some of the weapons were deposited.
Feng He drove the car away. Two got out of the car in King William IV Street, including
Hong who was bleeding badly from leg wounds. The car was driven off but soon stopped by
police. The driver and the one remaining occupant, De, were arrested. Metal bars wrapped
in cellophane, lawn edge cutters and a hammer were found in the boot.
110. Hong, De and Feng He were alleged to belong to one group, and Chan, who was
arrested in Shaftesbury Avenue, to the other.
111. When interviewed, Hong said he went to the scene to calm the situation. He did
not know if he went to Shaftsbury Avenue. He was hit on the head and stabbed twice, and
taken away in a car.

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Weir et al

112. De was not interviewed.

113. Chan said he armed himself with a knife, fearing that he would be attacked. He was
set upon by others who were armed with knives. He denied using the knife to stab someone,
but he was not very clear and did not remember.
114. None of the defendants gave evidence. They put their characters in. Feng He and
Chan had no previous convictions. Hong had a caution and De a Conditional Discharge.
The judge gave a good character direction in respect of all.
115. The issues in the case of each defendant were his involvement in events and whether
he might have been acting in lawful defence of himself or another.
116. The appeals revolve around the admission of evidence, adduced on behalf of Chan,
that the appellants were known to the police from previous incidents. On 19 November
2002 they had been the victims of a knife attack but had refused to provide statements. On
6 June 2004 they had been arrested on suspicion of committing a serious assault but had
been released without charge after the alleged victims refused to provide statements.
117. Counsel for Chan submitted that evidence of both incidents was admissible by vir-
tue of section 101(1)(e) of the Act which provides that:
In criminal proceedings evidence of the defendant’s bad character is admissible if, but
only if…
(e) it has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant.
118. The judge rejected this submission, rightly in our view, because he did not consider
that being the subject of the conduct of others on 19 November 2002, and failing to make
witness statements, demonstrated ‘reprehensible behaviour’, still less the commission of an
offence; nor did the mere fact of arrest on 6 June 2004, without evidence to support a
charge against either appellant. So neither previous matter could amount to ‘misconduct’
as defined in section 112(1) or, therefore ‘bad character’, as defined in section 98 for the
purpose of section 101(1)(e).
119. However, the judge concluded that the fact that evidence of the previous matters
was not admissible as ‘bad character’ did not exclude its relevance. He took the view that
it is potentially relevant to Mr Chan’s defence, namely that he was attacked. In this regard
the position between defendants on the one hand and the prosecution and defendants
on the other is quite different. In short a greater latitude is allowed to a defendant and if
there is evidence that some defendants are to be found at or about the scene of distur-
bances such as the one with which we are concerned then it may assist the jury in decid-
ing whom to believe. This is not necessarily one and the same thing as bad character.
There is no conduct reprehensible or otherwise necessarily inherent in the circumstances
by which someone may be surrounded, but equally the repetition of such circumstances
may be relevant … in the light of the defence actually advanced by Mr Chan… I make
this ruling, of course, under the common law.
120. No doubt there are cases where previous conduct of a defendant is of probative
value and therefore relevant to a matter in issue between him and the prosecution or him
and a co-defendant, yet the ‘bad character’ provisions of Chapter 1 of Part 11 of the Act
relating to the defendant’s ‘misconduct’ do not apply. In such cases, section 99(1) of the Act
whereby the common law rules governing the admissibility of evidence of ‘bad character’
in criminal proceedings are abolished does not exclude the relevant material because it

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does not amount to ‘evidence of bad character.’ But this was not such a case. The evidence
of events on 19 November 2002 and 6 June 2004 could only be relevant if it might show
that either appellant had a propensity to violent conduct and therefore bear on Chan’s case
of self-defence. To show such a propensity it had to amount to ‘reprehensible behaviour’,
‘misconduct’ and, therefore ‘bad character.’ By the same measure as events on 19 November
2002 and 6 June 2004 could not amount to reprehensible behaviour, misconduct or, there-
fore bad character, they could not bear on Chan’s case. There was no room for relaxing this
approach simply because it was a defendant, Chan, who sought to introduce the evidence,
rather than the prosecution.
121. On the face of the CCTV evidence, interpreted by police officers who knew the
appellants, and unchallenged by evidence at trial from the appellants, there was a strong
case against each appellant on Count 1, but the admission of the earlier incidents may have
poisoned the well so far as their own case of self-defence were concerned, making their
convictions unsafe. Their appeals against conviction are accordingly allowed.
122. It is not therefore necessary to consider Hong’s second ground of appeal, but we
doso for completeness. The prosecution relied on two alleged lies by Hong, in his police
interview. Mr Kapur argued that the judge erred when directing the jury: ‘You must
first decide whether the defendant did, in fact, deliberately tell these lies.’ Those words,
Mr Kapur contended, removed from the jury the decision as to whether the statements
were lies at all, which was contested. However, that argument depends on a partial reading
of the summing-up. The judge had hitherto referred to the ‘alleged lie’, it being ‘alleged that
he lied,’ and to ‘the lies alleged’ and ‘the alleged lies.’ The jury must have understood that it
was for them to decide whether either statement by Hong was in fact a deliberate untruth.
The remainder of the judge’s direction on the topic was fair and accurate. We see no merit
in this ground of appeal.

Weir’s and Somonathan’s appeals against conviction dismissed.

Manister’s appeal against conviction allowed in part; appeal against sentence dismissed.
Hong’s and De’s convictions quashed.

R v Edwards and Rowlands; R v McLean; R v Smith; R v Enright and Gray

[2005] EWCA Crim 3244, [2006] 1 WLR 1524, [2006] 2 CrAppR 4(62), CA,
21 December 2005; Scott Baker LJ, Gross and Ramsey JJ

K Davey, M Roochove, J Stanniland, T Moores and I Wade for the appellants A Shaw,
L Matthews, S Foster and J Weeks for the Crown.

Lord Justice Scott Baker:

1. We heard these appeals consecutively on 25 November 2005. Since each of the convic-
tion appeals raises issues relating to the bad character provisions in sections 98 to 112 of
the Criminal Justice Act 2003 we are giving one judgment dealing with all four cases. Before
turning to the individual cases we wish to make one or two general observations that have
occurred to us when considering these appeals.
(i) Often the first enquiry is whether it is necessary to go through the ‘bad character’
gateways at all. In this regard, section 98 is not to be overlooked. It excludes from the defi-
nition of bad character evidence which ‘has to do with the alleged facts of the offence’
or evidence ‘of misconduct in connection with the investigation or prosecution of that

310
Edwards & Rowlands et al

offence.’ While difficult questions can arise as to whether evidence of background or motive
falls to be admitted under those exclusions in section 98 or requires consideration under
section 101(1)(c), it does not follow that merely because the evidence fails to come within
the section 101 gateways it will be inadmissible. Where the exclusions in section 98 are
applicable the evidence will be admissible without more ado.
(ii) Applications to admit bad character evidence may well arise at an early stage giving
rise to real difficulty for the trial judge. Some applications e.g. under section 101(1)(b) can-
not be refused; others, for instance brought under section 101(1)(e) may well be difficult
to refuse (of which more in a moment). The parties would be well advised to reflect, at the
time of the application, as to the use to which such evidence is likely to be put and be in a
position to assist the judge in this regard. There can be difficulties for the judge in summing
up when bad character evidence that has been admitted turns out, for whatever reason, to
have only marginal relevance to the issues before the jury.
(iii) Under the new regime it is apparent that Parliament intended that evidence of bad
character would be put before juries more frequently than had hitherto been the case. The
judge’s role is to determine admissibility under the statutory gateways and any questions of
exclusion, for example under sections 101(3), 103(3) or section 78 of the Police and Crimi-
nal Evidence Act 1984. Once evidence of bad character is admitted (and not excluded)
questions of weight are for the jury, subject to: (a) the judge’s powers under 107 (stopping
the case where the evidence is contaminated) and (b) the judge’s direction as to relevance
and to other matters, as to which see Hanson [2005] 2 CrAppR 21 (p 238 above) para 18
and Highton [2005] 1 WLR 3472 (p 266 above) para 11.
(iv) Where evidence of bad character is admitted, the judge’s direction is likely to be of
the first importance. It will need to cover the matters canvassed in Hanson and Highton.
It may also need to pull threads together on an issue where the ground may have shifted
considerably since the evidence was admitted. In an appropriate case, the judge’s direction
may need to underline that given the course taken by the trial, the evidence of bad character
is by then of very little weight indeed.
(v) Simply because an application to admit evidence of bad character is made by a code-
fendant, the judge is not bound to admit it. The gateway in section 101(1)(e) must be gone
through. Sections 101(1)(d) and (e) give rise to different considerations. In determining an
application under 101(1)(e) analysis with a fine tooth comb is unlikely to be helpful; it is
the context of the case as a whole that matters. Section 112 makes this clear by its definition
of what amounts to an important matter in issue.
(vi) There are a number of other points about the position of co-defendants:
(a) the gateways under sections 101(1)(d), (f) and (g) are not open to them as only pros-
ecution evidence, as defined in section 112, is admissible: see sections 103(6), 105(7)
and 106(3).
(b) section 104(1) is not exhaustive of the scope of section 101(1)(e). It limits evidence
relevant to a defendant’s propensity to be untruthful.
(c) whether a defendant’s stance amounts to no more than a denial of participation(see
Varley 75 CrAppR 24), or gives rise to an important matter in issue between a defend-
ant and a co-defendant will inevitably turn on the facts of the individual case.
(vii) Whilst we note the observation of the Vice-President in Bovell [2005] 2 CrAppR
27 para 21 that the court entertained considerable doubt whether the mere making
of an allegation is capable of being evidence within 100(1), we are persuaded that it so

311
Appendix V

c apable, at any rate when considering the effect of section 109 in relation to an issue under
section 101(1)(d). This is an area, however, in which it is important to guard against satellite
litigation (see Bovell para 22). Further, it is appropriate to proceed with caution and with
due regard to the judge’s discretion to exclude evidence.
(viii) Finally we reiterate two points that have been made in the previous decisions of
this court but which we think are worth repetition:
(a) ‘admissibility’ and ‘use’ give rise to different questions;
(b) the ‘feel’ of the trial judge is very important and this court will only interfere where
the conviction is unsafe.

Edwards and Rowlands

2. In this appeal the following sections of the Criminal Justice Act 2003 are referred to:
sections 98, 101(1)(e), 101(1)(g), 101(3), 101(4), 104(1), 106.
3. On 15 April 2005 both these appellants were convicted in the Crown Court at Ipswich-
before Judge Newton and a jury of conspiracy to supply a class A drug, ecstasy, and sen-
tenced to ten years imprisonment. A charge of possessing ammunition without a certificate
against Rowlands was severed from the indictment. A co-defendant, Mitchell, was found
not guilty of conspiracy under section 17 of the Criminal Justice Act 1967.
4. Rowlands appeals against conviction with the leave of the single judge, but leave
was only given on one ground rather than all three. Both Edwards and Rowlands renew
their applications for leave to appeal against sentence after refusal by the single judge.
As Rowlands’ grounds of appeal against conviction are to an extent interlinked, we have
granted leave on the remaining grounds.
5. The facts of the case are as follows. At 12.45pm on 16 September 2004 Rowlands was
observed by the police as he arrived at Edwards’ home address at 25 Collingwood Fields,
East Bergholt, appearing to remove something from the boot of his car. A few minutes later
officers entered the house to execute a search warrant. Edwards, who was wheelchair-bound
following a serious road accident 6 weeks earlier, and his brother-in-law Rowlands, were
both present at the house. Officers took possession of a vacuum sealed package which was
found on top of a black bin liner on the cooker. A second similar sized package was recov-
ered from Edwards’ bed in the lounge. The packages were found to contain a total of 10,190
ecstasy tablets. One of the packages contained Edwards’ fingerprints. Latex gloves, contain-
ing Edwards’ DNA and traces of ecstasy were also recovered along with £2,830 in cash.
6. During the police search of the property a young man called Stewart Mitchell (the
co-defendant who was found not guilty) entered the property and was arrested. A struggle
ensued after he tried to grab the money and run away.
7. It was the prosecution case that between 31 August and 16 September 2004 Rowlands
and Edwards had participated in a conspiracy together and with unknown persons to sup-
ply ecstasy to another. In the alternative it was alleged that Edwards had the ecstasy in his
possession with intent to supply it to another.
[8.–15. The court detailed the defendants’ evidence, in the course of which each one cast
the blame upon the other.]
16. This was therefore a cut-throat defence. If the drugs did not belong to both Edwards
and Rowlands they must have belonged to one or other of them. Edwards case was that his
brother-in-law, a trusted friend, came to his house and without warning produced a large
quantity of ecstasy. He pulled a package out and said, ‘look at this’. Edwards told him to
remove it.
312
Edwards & Rowlands et al

17. Prior to the start of his cross-examination, counsel for Edwards sought to ask
owlands about his bad character. This was supported by the Crown. He wished to cross
R
examine Rowlands about three matters:
(i) his previous convictions;
(ii) the live cartridge found at his home; and
(iii) the antique firearm which, so it appears, was perfectly lawfully held by him.
18. The judge’s ruling was that he allowed cross-examination about the previous convic-
tions and the cartridge. He said he did not prevent questioning on the firearm, but that it
was a matter for counsel to deal with in the way they thought fit. Rowlands appeals on the
following grounds.
(i) the judge was wrong to allow a co-defendant to cross examine him on his previ-
ous convictions pursuant to section 101(1)(e), as his defence did not undermine
his codefendant and his conviction for handling could not properly be regarded as
evidence relevant to his propensity for truth.
(ii) He was also wrong to allow cross-examination pursuant to section 101(1)(g) as
only prosecution evidence is admissible under this gateway. Alternatively, the judge
failed to exercise his discretion under sections 101(3) and 101(4) in respect of the
length of time between the previous convictions and the offence for which he was
being tried.
(iii) The judge was wrong to rule that the cartridge and firearm found at his house was
evidence of bad character as defined by section 98 and permit questioning thereon.
The cartridge was the subject of a severed count and should therefore be properly
regarded as evidence in connection with the alleged offence and or evidence of mis-
conduct in connect with the investigation. The possession of an antique firearm is
not a criminal offence and cannot be regarded as either evidence of disposition or
misconduct. Alternatively, the cross-examination about the cartridge and firearm
was more prejudicial then probative.
The single judge gave leave on the third ground, but refused leave on the first two.
19. Rowlands’s previous convictions comprised the following:
—— criminal damage in 1983, for which he was fined;
—— handling in 1992, for which he was fined £50;
—— criminal damage in 1993 for which he was conditionally discharged for 12 months;
—— religiously aggravated harassment in 2004 for which he was fined.
20. All Rowlands’s previous convictions were put before the jury by his co-defendant
in cross-examination. He was not cross-examined on them by the Crown. It is difficult to
see how any of them could possibly have had any relevance in the case except possibly the
handling to which we shall return in a moment.
21. The position about the gun and the cartridge was that Rowlands admitted possession
of them. They were in a shoe box. He said he had found them when digging in the garden.
This was not disputed by the Crown.
22. We take first ground 3. Section 98 provides:

313
Appendix V

References in this Chapter to evidence of a person’s ‘bad character’ are to evidence of, or
a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged,
or—
(b) is evidence of misconduct in connection with the investigation or prosecution of that
defence.
23. It is difficult to see how evidence of lawful possession of an antique firearm can
amount to evidence of, or a disposition towards, misconduct. The judge did not prevent
questioning on it, but doubted its relevance. In our view it was not evidence of bad charac-
ter and therefore no question of admissibility under section 101 arose. As to the cartridge,
Mr Roochove, for Rowlands, submits that it comes within either subsection 98(a) or (b)
and thus does not fall for consideration under section 101. As Ramsey J pointed out in
argument, material falling within section 98(a) or (b) could very well be brought into the
trial quite apart from through the provisions of Chapter I of Part II of the Criminal Justice
Act 2003. The words in section 98(a) ‘has to do with the alleged facts of the offence’ are
quite widely drawn and it seems to us are wide enough to cover the cartridge in this case,
which had originally been the subject matter of the count joined in the same indictment,
albeit subsequently severed. It is irrelevant for the purposes of the present issue whether
there was a single cartridge or an arsenal of weapons. In the light of the explanation of
Mr Rowlands, apparently accepted by the Crown, it is difficult to see what relevance the
cartridge had, in the event, to the jury’s verdict.
24. As to the previous convictions, it is now conceded that the judge was in error to
admit the evidence under section 101(1)(g)—the defendant has made an attack on
another person’s character. It was a co-defendant, not the Crown, who made the applica-
tion. This gateway is not concerned with issues between co-defendants (see section 106
and particularly 106(3) which provides, that only prosecution evidence is admissible under
section 101(1)(g)). (See also Hanson para 5).
25. That leaves section 101(1)(e). Here the evidence is admissible only if it has substan-
tial probative value in relation to an important matter in issue between a defendant and a
co-defendant. Mr Roochove’s submission is that Rowlands’ defence was no more than a
denial of participation (see Varley). His co-defendant had accepted by way of admission
under section 10 of the Criminal Justice Act 1967 that:
—— cash found on the premises was his;
—— his fingerprints were found on the package containing the drugs;
—— his fingerprint was discovered on a latex glove that contained traces of ecstasy.
However, we do not think that these admitted facts take this case outside section 101(1)(e).
This was in reality a cut-throat defence. The judge was entitled, indeed required, to look at
the whole picture.
26. It should be borne in mind that the judge’s discretion not to admit evidence in
sections 101(3) and (4) does not apply to the gateway in section 101(1)(e). However, the
passage of time between a previous conviction and the offence charged referred to in
section 101(4) may be a very relevant matter to which the judge should draw attention
when he sums up to the jury.

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Edwards & Rowlands et al

Our attention was also drawn to section 104(1) which provides:

Evidence which is relevant to the question whether the defendant has a propensity to be
untruthful is admissible on that basis under section 101(1)(e) only if the nature or con-
duct of his defence is such as to undermine the co-defendant’s defence.
27. But the judge still had to be satisfied that the evidence had substantial probative
value before it was admissible through the gateway in section 101(1)(e). This question is
ultimately a question for the judge on his ‘feel’ of the case. It is not clear from his ruling
that he fully considered this issue. We are very doubtful whether, had we been in the same
position as the judge, we would have concluded that the evidence crossed this threshold.
Once admitted however, what weight the jury was to attach to the evidence was an entirely
different matter. The Vice-President gave this warning in Hanson at paragraph 18:
Our final general observation is that, in any case in which evidence of bad character is
admitted to show propensity, whether to commit offences or to be untruthful the judge
in summing up should warn the jury clearly against placing undue reliance on previous
convictions. Evidence of bad character cannot be used simply to bolster a weak case, or
to prejudice the minds of a jury against a defendant. In particular, the jury should be
directed; that they should not conclude that the defendant is guilty or untruthful merely
because he has these convictions. That, although the convictions may show a propensity,
this does not mean that he has committed this offence or been untruthful in this case;
that whether they in fact show a propensity is for them to decide; that they must take into
account what the defendant has said about his previous convictions; and that, although
they are entitled, if they find propensity as shown, to take this into account when deter-
mining guilt, propensity is only one relevant factor and they must assess its significance
in the light of all the other evidence in the case.
28. We come then to the judge’s summing up. He said this:
During the course of this trial you have heard evidence that both defendants have pre-
vious matters recorded against them, but you will recall those previous convictions, as
they are called, are of a dissimilar nature and are, for the most part, some considerable
time ago. You may think that they are of little or no relevance to this trial.
He continued a little later:
Both defendants have given evidence and you may therefore think that it is right to take
all those matters into account when deciding whether or not the defendant’s evidence to
you was truthful. The defendants, of course, argue that in making a clean breast before
you and relying on the positive character evidence that each of them is more likely to be
telling the truth. You must decide because the facts are for you, to what extent, if at all,
the character of each of them helps you in deciding whether you believe their evidence.
29. This seems to us to be very close to advising the jury to ignore the previous convic-
tions. The judge gave no direction about the cartridge or the antique firearm. This is hardly
surprising as they had faded into insignificance in the case. The prosecution had said noth-
ing about them in their final speech; nor had they sought to rely on Rowlands’ previous
convictions.
30. The handling offence was committed 13 years before the trial. The jury was not made
aware of its circumstances and, it seems to us, that it can have had only the most marginal
relevance to the question whether Rowlands was telling the truth about the drug offences
315
Appendix V

with which he was charged. That apart, none of the previous convictions can have had any
relevance either to propensity to truthfulness or the commission of drug related offences.
31. At page 35 the judge, when dealing with Rowlands evidence, reminded the jury
that he had earlier given them a direction about his convictions and also that there was an
admission about the gun and the cartridge.
32. There was a strong case against Rowlands who was, in effect, caught red handed.
Each defendant blamed the other for the considerable quantity of drugs that was found in
the house where they were. The introduction of the previous convictions of Rowlands by
his co-defendant was admitted by the judge. They were, however, insignificant in relation to
the real issue in the case. The judge effectively told the jury to ignore them and in our view
the conviction is safe.
33. [The court dismissed the appeal against sentence.]

McLean
34. The sections of the Criminal Justice Act 2003 referred to in this appeal are sections
101(1)(d), 101(1)(e), 101(3), 104(1) and 112.
35. On 5 July 2005 in the Crown Court at Taunton McLean was convicted of two counts
of section 18 wounding with intent before Judge Hume Jones and a jury. Because the
appellant had a qualifying previous conviction he was given an automatic life sentence.
The determinate sentence was 5 years on each count concurrently. A co-defendant called
Saunders was acquitted of one offence of wounding with intent.
36. McLean’s application for leave to appeal against conviction has been referred to the
full court by the registrar. We grant leave.
37. By count 1 McLean and Saunders were jointly charged with wounding Julian O’Toole
with intent to cause grievous bodily harm. By count 2 McLean alone was charged with
wounding Adrian Green with like intent.
38. The Crown’s case was on the following lines. On 8 July 2004 O’Toole (the victim
in count 1) received a phone call from Saunders suggesting he went to 5 Regal Court to
collect some money he was owed. At the flat were three men, the appellant, Saunders and
a man called Johnny.
39. When O’Toole and his brother Adrian Green (the victim in count 2) arrived at the
flat they were invited into the living room where McLean was present. Johnny appeared at
the door and went to attack O’Toole with a baton, with Saunders saying, ‘hit him, hit him.’
McLean produced a knife from under a cushion and struck out at O’Toole’s head. Green
tried to stop this. O’Toole saw Saunders with a knife and he was pushed into the kitchen
by Saunders and Johnny. Saunders tried to stab O’Toole. Johnny was wielding the baton.
Meanwhile McLean turned on Green and struck him on the head. Green managed to get
out and slipped down the stairs. At the bottom of the stairs he was attacked by McLean with
a knife, which Green held onto in order to try and defend himself. McLean then went back
upstairs to join Saunders in the attack on O’Toole.
40. McLean’s case was that he had no involvement in the attack whatever. O’Toole was
attacked by two men; one of them must have been Saunders. As to count two, Green pro-
duced a knife. He only responded in self defence, possibly kicking Green in the face and
then punching him and banging his hand to try to make him release the weapon.
41. Saunders’ case was that he was not a party to a plan or the attack on O’Toole. The
injuries to both victims were caused by McLean and Johnny. Also, McLean had a propensity
for violence which made it more likely he would have fought with O’Toole and Green.

316
Edwards & Rowlands et al

42. When interviewed, McLean said he was not present at the time of the attack. Saunders
said he had played a minor role in the attack. He threw a single punch and then retreated to
another room from which he heard the attack. In evidence, Saunders said he took no part
in the attack at all. Johnny hit O’Toole and Green with a butt and McLean attacked O’Toole
and Green with a knife.
43. The Crown sought to adduce during the prosecution case evidence of McLean’s
previous convictions under sections 101(1)(d) as relevant to an important matter in issue
between the defendant and the prosecution, namely whether the defendant had a propen-
sity to commit offences of violence. The offences were: wounding with intent using a knife
in May 1998, two offences of battery in July 2001 and affray in May 2004. The judge rejected
the application.
44. However, the following day the co-defendant Saunders sought to adduce evidence
of McLean’s bad character under section 101(1)(e) on the ground that it had substantial
probative value in relation to an important matter in issue between the defendant and the
co-defendant.
45. The judge ruled that the separate versions put forward by the two defendants was an
important matter in issue between McLean and his co-defendant and that McLean’s bad
character had substantial probative value. The grounds of appeal are:
(i) The judge erred in granting the application of the co-accused to produce evidence
of the (McLean’s) bad character under section 101(1)(e) of the Criminal Justice Act
2003 when the judge had hitherto refused the Crown’s application for leave to adduce
the same evidence under section 101(1)(d) of the Criminal Justice Act 2003 on sub-
stantially the same grounds.
(ii) It was perverse of the judge to resolve the same arguments differently on the second
application where the arguments in the case were so similar under section 101(1)(d)
on the Crown’s application and under section 101(1)(e) on the application of the
co-accused.
(iii) The bad character evidence of (McLean) neither had ‘substantial probative value’ nor
went to ‘an important matter in issue between the defendant and a co-defendant.’
46. The judge in admitting the evidence ruled as follows:
There is therefore an issue set up between these two defendants, it may not be what is cus-
tomarily called a cut-throat defence in that the one is not making the affirmative allegation
that the other was responsible for the crime or crimes, but there is an issue between the
defendants, their separate versions create an issue between the defendants. Is that an impor-
tant issue, matter in issue? It seems to me that it must be an important matter in issue. The
next question I have to ask myself is whether or not the co-defendant that is Mr McLean’s
bad character has substantial probative value in relation to that important issue. It seems to
me that it must be right that if one defendant who is saying he was not involved in violence
and the other one is saying he was not involved in the violence, but one has got previous
convictions of violence it seems to me that on the basis of Regina v Price there must be,
it must be relevant, sorry, it must have substantial probative value in relation to the issue
between the two defendants and so I find this gateway is open and therefore it must be right
that Mr Warren can adduce the evidence of bad character, of Mr McLean’s bad character. So
far as the position is concerned in relation to my ruling of yesterday, it seems it has been said
it must follow that if I rule it out yesterday, I should rule it out today. It seems to me that
there are different considerations between an application made by the Crown to adduce

317
Appendix V

evidence of bad character and evidence, applications between defendants to adduce bad
character. It seems only common sense to me there must be different considerations when
one is considering the position between two defendants as opposed to the applications
made by the Crown and it seems to me that therefore because I ruled against the Crown
yesterday I am not bound to rule against Mr Warren today.
47. No complaint is made of the summing up which seems to us to have dealt appro-
priately with the issues in the case. The sole complaint is that the judge should not have
admitted evidence of McLean’s previous convictions as relevant to propensity to commit
offences of violence.
48. The first two grounds of appeal are both directed to the point that the judge rejected
the Crown’s application to adduce evidence of McLean’s previous convictions under sec-
tion 101(1)(d) on 28 June 2005, yet very soon afterwards on the next day acceded to the
codefendant’s application under section 101(1)(e) on substantially the same grounds and
argument. In our view the defence may have been somewhat fortunate to have resisted suc-
cessfully the Crown’s application under section 101(1)(d). The main reason for the judge’s
decision appears to have been that McLean’s earlier violence was in response to longstand-
ing problems that he had been unable to resolve and that this was distinguishable from the
violence in the charges. When the judge rejected the Crown’s application he said, ‘there is
no propensity here shown to such an extent that it would be relevant and, in any event, it
seems a bit unfair.’
49. Different considerations applied to the co-defendant’s application which was made
under a different provision, namely section 101(1)(e). The question for this court is
whether the judge properly applied the relevant provisions on this application; it matters
not that he may previously have been in error on the Crown’s application, even if his factual
conclusions on that application appear, to an extent, in conflict with his later conclusions.
50. The judge correctly directed himself that he first had to decide whether there was
an important matter in issue between the two defendants and secondly whether the bad
character had a substantial prohibitive value. He referred to Price [2005] EWCA Crim 1359
as illustrating that the propensity to violence of D1 may be relevant as making it less likely
that the offender was D2. It was important which of McLean or Saunders was more likely to
have been O’Toole’s assailant and the fact of McLean’s section 18 conviction was of substan-
tial probative value. See Weir and others [2005] EWCA Crim 2866 (p 288 above) para 120.
51. The judge concluded that although this was not perhaps a cut-throat defence in
the classic sense, their separate versions of what had occurred created an important issue
between them. This seems to us to be plainly correct. Each individual tells an entirely dif-
ferent story as to what went on. Mr Stanniland, for McLean, sought valiantly to distinguish
between important issues and ancillary issues, his argument really coming to this, that
although there was a series of ancillary issues between the defendants there was no impor-
tant issue. We remind ourselves that ‘important matter’ is defined in section 112 as a matter
of substantial importance in the case as a whole and this, as Sir Igor Judge P pointed out
in Renda and others [2005] EWCA Crim 2826 (p 276 above) para 3, is very much a matter
for the ‘feel’ of the judge. The judge went on to consider whether the previous convictions
of McLean had substantial probative value to the issue between the defendants. He said it
seemed to him that if each defendant was saying he was not involved in the violence and
one has previous convictions for violence that must have substantial probative value on the
issue between them.
52. Mr Stanniland argued that the judge’s ruling against him was even more perverse
when one took into account that section 101(1)(e) provided a more stringent test than
318
Edwards & Rowlands et al

section 101(1)(d) and yet he had admitted the evidence under the former but not the lat-
ter. We are not, however, persuaded by any of Mr Stanniland’s grounds. The judge applied
the correct test and, contrary to Mr Stanniland’s third ground of appeal, the bad charac-
ter evidence did, in our view, have substantial probative value. The appeal is accordingly
dismissed.
53. Before leaving this case we make two further comments. It was not a case where the
judge had any discretion to refuse to admit the evidence under section 101(3) and, in fair-
ness, it was never suggested that he had. Once the section 101(1)(e) gateway was open the
evidence was in. Nor did section 104(1) apply because the issue was propensity to violence
not a propensity to untruthfulness.

Smith
54. The sections of the Criminal Justice Act 2003 referred to in this appeal are sections98,
100, 101(1)(c), 101(1)(d), 101(3), 101(4), 103(1) and 109(1).
55. On 17 June 2005 in the Crown Court at Newport, Isle of Wight sitting at Portsmouth
before Judge Hetherington and a jury this appellant, aged 62, was convicted of five counts
of gross indecency with a child (counts 3–7) and sentenced to 21 months imprisonment on
each count concurrently. He was acquitted of rape, count 9. Further counts of rape, count 1,
indecency with a child, count 2, and indecent assault on a female, count 8, had been stayed as
an abuse of process before the trial. He appeals against conviction by leave of the single judge.
56. There were three complainants: TAM who was born on 17 October 1976, her sis-
terDB who was born on 18 November 1979 and SR who was born on 21 June 1988.
57. The three counts that were stayed as abuse of process were count 1, rape, on TAM
between October 1989 and October 1993 when she was aged between 13 and 17; count 2
gross indecency with a child on DB between November 1988 and November 1991 when she
was aged between 9 and 10; and count 8 indecent assault on TAM on the 3 February 1998
when she was aged 21.
58. The remaining counts on which Smith was tried and convicted related to SR. The
9thcount, on which Smith was acquitted, alleged that he had raped TAM in October 1992.
The counts on which he was convicted alleged sexual abuse of SR over the period of June
1993 to June 1995, when she was in the age range 5 to 7.
59. The reason why counts 1, 2 and 8 were stayed as an abuse of process was that the
Hampshire Police had written to Smith in June 2 1998 saying no further action would be
taken against him in respect of these matters.
60. The application to stay was resisted by the Crown and the judge made his ruling
on14 April 2005. The judge indicated when ruling on the stay that the Crown might wish
to apply to adduce the evidence that underlay these counts as evidence of bad character
under the Criminal Justice Act 2003. The Crown duly made such an application and the
judge ruled in its favour on 10 May 2005. The terms of the application were to adduce the
following evidence:
A. Allegations by TAM:
(i) That the defendant raped TAM when she was about nine years old.
(ii) That the defendant indecently assaulted TAM between the ages of five to nine.
(iii) That on 3 February 1998 the defendant indecently assaulted TAM.
(iv) That on 9 February 1998 the defendant told TAM to ‘drop the case’.
(v) Supporting evidence of the above: [three persons named]

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B. Allegation by DB:
That the defendant indecently assaulted DB when she was aged about nine or ten on
several occasions.
61. The underlying question on this appeal is whether the judge was right to admit the
evidence in the light of section 101(3). Section 101(3) provides:
The court must not admit evidence under subsection (1)(d) or (g) if, on an application
by the defendant to exclude it, it appears to the court that the admission of the evidence
would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it.
And section 101(4):
On an application to exclude evidence under subsection (3) the court must have regard,
in particular, to the length of time between the matters to which the evidence relates and
the matters which form the subject of the offence charged.
62. The facts are these. Smith was arrested in March 1998 following an alleged indecent
assault on TAM. The police were then investigating three matters. The first was a complaint
by TAM that sometime between 1989 and 1991 Smith had given her a lift in a van, driven her
somewhere and raped her. He denied giving her a lift in any vehicle. That became count 1,
the first of the stayed counts. Next, DB claimed he had committed an act of gross indecency
with her in his garden shed at Coronation Gardens between 1988 and 1991 where he lives.
He denied ever allowing DB into his shed. That became count 2, the second of the stayed
counts. Third was TAM complaint that Smith gave her a lift in his van to a different loca-
tion on 3 February 1998 and indecently assaulted her. This became count 8, the third of the
stayed counts. As is apparent, the third of the three events took place shortly before Smith
was arrested, the other two some years before.
63. On 2 June 1998 the Hampshire Constabulary wrote to Smith in these terms:
On the 9th of March 1998 you were arrested and detained by Detective Constable Hardy
in connection with an allegation of attempted rape and indecent assault. A full report has
now been submitted by the investigator to myself. This in turn has been forwarded to the
Crown Prosecution Service for their advice. After careful consideration, it has been decided
that no further action will be taken against you in relation to these alleged offences.
64. The judge said in his ruling that the letter would have been intended by the prosecu-
tion and understood by the defendant as an unequivocal statement that no further action
would be taken. He said he did not think it would have been interpreted by the defendant,
nor should it have been, as meaning that in the event no further complaint came forward
or further evidence emerged that the decision might be revisited and the prosecution might
be launched.
65. The position was indeed as set out in that letter for a period of about five years, but
then fresh allegations against Smith emerged and these eventually came to form the subject
matter of counts 3–7 and count 9 of the indictment.
66. We should add that we were told that nowadays letters are no longer written in such
unqualified terms as the letter of 2 of June 1998. There is usually now a qualification in
terms such as, ‘unless new evidence emerges.’
67. Smith and his family moved to 11 Parsonage Road, Sandown on 21 November 1988.
The third complaint SR, lived at 6 Parsonage Road with her family. In 2002 she alleged that

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Edwards & Rowlands et al

in 1993 to 1995 when she was aged between five and seven, Smith committed a number of
acts of indecency with her in his garden shed. TAM made a further statement to the police
in February 2004 in which she alleged that she had been raped on her way home in October
1992 when she was about sixteen years old. That was count 9 on which the jury acquitted.
68. SR’s evidence relating to count 3–7 was as follows. She used to go to Smith’s house
and play with his son Matt. She said that there was a wooden garden shed at the bottom
of the garden on the right hand side. She said that when Matt went into the house Smith
would invite her into the shed. She said that she would go inside the shed thinking that he
wanted to show her his tools. Smith would undo his trousers and make her touch his penis.
She said he would tell her it was a natural thing to do and there was nothing wrong with it.
She said he would pretend to be tightening his belt; he would then take out his penis and
would start touching himself and demonstrate how he put his hand around it. She said he
would then tell her it was her turn. She did not tell her mother as she was too scared and she
also thought there was nothing wrong. She said she did not know why she kept going back
to the house. On the final occasion she refused to touch him and he said, ‘just do it.’ She said
that by this stage she had realised what she was doing was wrong. In cross-examination she
said she had bonded with Smith and that he made her feel loved. He was friendly towards
her and she was friends with him as she did not really get on well with her mother. She
accepted that in 2003 she made an allegation that somebody at a party had been punched
and held by the throat. She said that she later withdrew this allegation because she had
problems at the time and did not wish to take the matter to court. She described her rela-
tionships with other members of her family in 2002 and 2003 as volatile and that at times
she was depressed and had attempted to take her own life. She did not recall TAM or DB
although she had heard of the latter.
69. In re-examination she said that the first people she told about the allegations were
her father and Tina Dempsey in 2003. She did not wish to pursue the allegations as she was
friends with Smith’s son Matt and she did not want it to appear as if she did not wish to go
to his house.
70. Smith categorically denied the allegations in interview. When he gave evidence he
said that there was a shed at Parsonage Road but that it was a home-made wooden lean-to
adjacent to the side entrance to the house. He used it for welding and small engine work.
He never dealt with fish or lobsters in the shed. He said the shed was less then 3ft wide and
he did not allow children anywhere near the electric welder. He did not recall SR ever being
in the shed and he denied ever touching her.
71. The evidence that the judge was invited to admit was the evidence of TAM and DB
that would have supported the stayed counts and also some more general allegations of
TAM that she had made in her witness statement of February 1988 about what happened to
her between the ages of five and nine. This was a series of indecent assaults and being shut
in the lobster pot in the shed, on Shanklin beach when she was sixteen that she referred to in
her March 2004 statement and other incidents in the garden shed when Smith tried to make
her touch his penis. Thus in summary the Crown was seeking the admission of evidence
from TAM that (a) supported the stayed charges 1 and 8 and (b) went to other indecency
by Smith towards her and also evidence from DB that supported charge 2.
72. The judge in a conspicuously clear and careful ruling started with section 98 noting
that references to bad character in Part II of the 2003 Act are to evidence of, or to a disposi-
tion towards misconduct on Smith’s part. The description, therefore, was widely drawn.
73. The judge in our view rightly rejected the submission that the evidence was admis-
sible through gateway 101(1)(c) as important explanatory evidence. He turned then to
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Appendix V

s ection 101(1)(d) and concluded that the question for him was whether the evidence was
capable of establishing a propensity on the part of the defendant to commit the offences
charged. By section 103(1) matters in issue between defendant and the prosecution include
whether the defendant has propensity to commit offences of the kind with which he is
charged. Whether it did or not, i.e. the weight to be attached to it would be a matter for the
jury. He referred to para 18 of the judgment of the Vice-President in Hanson to which we
have already referred in paragraph 27. The judge rightly observed that this was a case of
misconduct or disposition towards it rather than convictions, and secondly that the num-
ber and pattern of incidents could be important as more indicative of a propensity than a
single incident. He also reminded himself of para 9 of the judgment in Hanson observing
that what had to be looked at was probative force. He then went on to say:
I note that all incidents in this case involve young girls, or young women aged 21 at a
maximum, all known to the defendant and I make no findings as to how well known,
they were not strangers. Secondly, there are strong connections made by the garden shed,
references made to it at respective houses in Coronation Gardens by DB, at Parsonage
Row by SR and at Coronation Gardens by TAM. Thirdly, it seems to me that there is a
discernable pattern to the abuse allegedly taking place in the shed with fishing tackle and
the smell of fish. I do not overlook the fact of course that there are some obvious differ-
ences as well.
And a little later:
I conclude that there is ample evidence to conclude that the defendant did have a pro-
pensity. The material sought to be produced to that issue is relevant to and probative of
that propensity.’
He accordingly concluded that the section 101(1)(d) gateway was open.
74. He then went on to consider section 101(3) he noted that the material was old and
that by analogy with the observations in Hanson about old convictions it ought only to be
admitted if it showed continuing propensity. He observed that the counts had been stayed
not because the defendant would not receive a fair trial but because it would be unfair to
try him. There was some prejudice which he said went to the fairness of being tried and the
possibility of being convicted. It was fairly minimal and could be dealt with by telling the
jury the reason why they were no longer trying the stayed counts. As to the defence conten-
tion that the evidence was being introduced to bolster a very weak case, he said that it was
not for a court to judge the witnesses in advance and evidence should not be excluded on
this ground. Any issues about collusion and contamination were for the jury.
75. The court’s discretion in section 101(3) is widely phrased and the test is whether the
court thinks the admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it. Provided in exercising his discretion
the judge has in mind the time factor in section 101(4) (which the judge did in this case)
this court will not ordinarily interfere with the decision unless there has been some error
in principle.
76. Absent some error of principle in the present case, it is difficult to find any justifi-
able basis for concluding that the judge erred in the exercise of his discretion. Did he err in
principle? Here the argument is that it is quite simply wrong for someone who has been told
he will not be prosecuted in respect of certain allegations to find himself facing the selfsame
allegations, not as charges but as prosecution evidence, in a criminal trial.

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Edwards & Rowlands et al

77. The relevant underlying principle seems to us to be this. Prima facie all evidence that
is relevant to the question whether the accused is guilty or innocent of the offence charged
is admissible. In Z [2000] 2 AC 483 it was accepted by the defendant that the evidence of the
three complainants in respect of whose complaints he had been acquitted was relevant to
the question whether he was guilty of the offence of rape with which he had been charged.
The issue was not whether the defendant was guilty of having raped the three other com-
plainants; he was not being put on trial again for those offences. The only issue was whether
he was guilty of the fresh allegation of rape. Lord Hope said at p.487 that the guiding prin-
ciple was that prima facie all evidence which is relevant to the question whether the accused
is guilty or innocent of the offence charged is admissible. He said that the objection to the
admissibility of the evidence was based on Lord MacDermortt’s statement in Sambasivam
v Public Prosecutor, Federation of Malaya [1950] AC 458, 479 that the effect of the verdict of
acquittal pronounced by a competent court after a lawful trial is not restricted to the fact
that the person acquitted cannot be tried again for the same offence. He said that it is bind-
ing and conclusive in all subsequent proceedings between the parties of the adjudication.
Lord Hope went on:
But I agree with my noble and learned friend Lord Hutton that the observation which
is contained in the second of these two statements is in need of qualification in order to
confine its application to its proper context. The principle which underlines both state-
ments is that of double jeopardy. It is obvious this principle is infringed if the accused
is put on trial again for the offence of which he has been acquitted. It is also infringed if
any other steps are taken by the prosecutor which may result in the punishment of the
accused on some other ground for the same offence. But it is not infringed if what the
prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the
purpose of punishing the accused in any way for the offence of which he has been acquit-
ted, but in order to prove that the defendant is guilty of a subsequent offence which was
not before the court in the previous trial.
78. If evidence of previous allegations is in principle admissible notwithstanding that
the accused was acquitted of charges based on those allegations in a previous trial, it is
difficult to see why in principle evidence relating to allegations that have never been tried
(i.e. because of a stay for abuse of process) should not be admissible. The defendant’s pro-
tection comes through the judge’s discretion under section 101(3) or, in an appropriate
case, through section 78 of the Police and Criminal Act 1984.
79. Mr Moores, who has appeared before us for Smith as he did in the court below, sub-
mits that Smith was in effect tried on the charges that were stayed. We cannot accept this.
The jury was not required to return any verdict; it simply heard evidence that the Crown
claimed on the basis of propensity supported the charges that were before the jury. In this
regard it should be noted that Smith was acquitted of the only remaining offence in respect
of which either TAM or her sister were complainants.
80. There is one other point with which we wish to deal. The judge correctly identified
at paragraph 14 of his ruling that what he had to decide was whether the evidence had the
capacity to establish propensity to commit the offences charged. Whether it actually did so
was a matter for the jury. As Kennedy LJ pointed out in Weir and others [2005] EWCA Crim
2866 (p 236 above) para 7 a defendant’s propensity to commit offences of the kind charged
can be proved in ways other than by evidence that he has been convicted of an offence of
the same description or an offence of the same category.

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Appendix V

81. Mr Moores questions whether an allegation that is untested by a judicial or quasi

judicial finding is evidence of a defendant’s bad character within the opening words of
section 101. He refers to Bovell para 21 where the Vice-President expressed considerable
doubt as to whether the mere making of an allegation is capable of being evidence within
section 100(1). That was said in the context of an allegation of wounding with intent made
and withdrawn by the victim against the complainant. As the Vice-President said, if the
allegation was to be admitted there would have to be an investigation of relevant-matters.
Section 100 is dealing with a non-defendant’s bad character, whereas section 101 is deal-
ing with a defendant’s bad character. We are persuaded that the allegations in the present
case are capable of constituting evidence under section 101, particularly in the light of
section 109(1) which provides that:
Subject to subsection (2), a reference in this Chapter to the relevance or probative value
of evidence is a reference to its relevance or probative value on the assumption that it is
true.
Accordingly we do not have any difficulty with the fact that the evidence admitted by the
judge was in the category of allegations rather than convictions. Whether or not the allega-
tions were true was a matter for the jury.
82. Mr Moores submitted that the protection of section 101(3) was illusory if the judge
did not conduct an assessment of the weight of the evidence sought to be admitted. We note
the similarity in wording between section 101(3) and section 78 of the Police and Crimi-
nal Evidence Act 1984. Each section requires the judge to exercise a discretion based on the
particular circumstances of the case and an assessment of the adverse effect, if any, on the
fairness of the proceedings of the introduction of the evidence. Whilst the judge in exercis-
ing that discretion will have regard to the potential weight of that evidence it is not his job
to usurp the jury’s function of deciding what evidence is accepted and what rejected. But
obviously if, for example, it is inherently incredible that would be likely to be a strong factor
against admitting it. We wish to emphasise the broad nature of the judge’s discretion under
this subsection. The judge’s job is to police the gateway not to embark on the jury’s job of
evaluating the evidence. We reiterate the cautionary words of the Vice-President in Bovell
about the undesirability of descending into satellite litigation. We have considered carefully
the judge’s exercise of discretion in the present case and we are unable to find any fault with it.
83. A peripheral point taken by Mr Moores is that item A(iv) in the Crown’s application
that on 9 February 1998 Smith told TAM to drop the case was not evidence of bad character
as defined in section 98. Even if that is correct, it makes no difference as the evidence was
admissible anyway.
84. There is a second ground of appeal that the court should allow the appeal on
the‘lurking doubt’ basis referred to in Cooper [1969] 1 QB 267. This submission seems to
us to come very close to saying that if the relevant provisions of the Criminal Justice Acts
2003 are applied as the judge, in our view correctly applied them, an unsafe conviction and
therefore an unjust result necessarily follows. We do not agree. No complaint whatsoever
was made about the way in which the judge summed up this case and we are unpersuaded
that the conviction is unsafe.
85. Our conclusion in this appeal is as follows. There could have been no justifiable
complaint about the admission of the ‘bad character’ evidence but for the letter and fol-
lowing it the stay previously ordered by the judge. That stay does not, in principle render
the evidence inadmissible. The judge’s exercise of discretion under section 101(3) cannot

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Edwards & Rowlands et al

be faulted as Wednesbury unreasonable as submitted by Mr Moores and the appeal must

be dismissed.
86. We understand the Crown’s desire to put the whole picture with regard to TAM
andDB’s evidence before the jury in this case. We do, however, give a word of caution for the
future about the general undesirability of the jury being required to explore satellite issues
one stage removed from the charges they are trying unless this is really necessary. Prosecu-
tors should keep this in mind.

Enright and Gray

87. The sections of the Criminal Justice Act 2003 referred to in this appeal are sections
98 and 101(1)(b).
88. On 10 February 2005 in the Crown Court at Luton before Judge Foster and a jury
Kevin Enright and Rosalind Gray were both convicted possessing a class A drug, ecstasy,
with intent to supply (count 1); possessing a class B drug, amphetamine, with intent to
supply (count 3); and possessing another class B drug, cannabis resin, with intent to supply
(count 5). Earlier on 26 July 2004 Gray had pleaded guilty to possession of cocaine. Each
received concurrent sentences of four year’s imprisonment. Enright appeals against convic-
tion by leave of the single judge. Gray renews her application for leave to appeal against
sentence after refusal by the single judge.
89. The facts of the case are as follows. On 31 October 2003 police officers attended 59
Pelham Court in Hemel Hempstead with a search warrant. Upon entering the property they
found Enright and Gray in bed together. The officers began to search the bedroom and found
capsules containing white powder on Enright’s side of the bed. Enright was then arrested.
The search continued and a bag containing a resinous substance and some paper wraps was
found on Gray’s side of the bed. Two bags containing tablets were also found on Gray’s side
of the bed. Gray was arrested and then taken into the bathroom in order to be strip searched.
Gray took off her dressing gown and leant forwards into the laundry basket. A police officer
then found a large lump of cannabis resin in the basket and four clear plastic bags containing
a hard brown substance in her dressing gown pocket. Pills, hollow pills, electronic scales and
a penknife were later found in the living room and a small lump of resin and four self-seal
bags were found in the kitchen. Enright and Gray were both taken to Hemel Hempstead
Police Station. A forensic scientist later confirmed that all the substances seized from the
flat were controlled drugs. In total 84.5 ecstasy tablets, 19 capsules containing a total of 7.63
grams of amphetamine and just over 200 grams of cannabis resin were seized.
90. The prosecution case was that Enright and Gray were running a small scale drug
dealing business together from their flat. This could safely be assumed from the volume of
drugs and the positions of the drugs found in the flat coupled with the electronic scales,
the knife, the re-sealable bags and the hollow capsules which were also found in the flat.
Enright’s case was that he knew nothing at all about the presence of the drugs; they were
nothing to do with him.
91. The issue for the jury was whether Enright was aware of the presence of the drugs
inthe flat and if so, whether he and Gray were in possession of those drugs with the inten-
tion of supplying them to others.
92. Included in the Crown’s witnesses was John McCawley, who was Gray’s former hus-
band. They had been divorced for over 10 years but Gray had stayed with him on a short
term basis. He said he saw her taking crack cocaine almost everyday and he saw her with a
large amount of cannabis resin. Gray had packets of cocaine, some of which were for her

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Appendix V

own use. People were contacting Gray on her mobile phone although he said he did not
hear her ‘setting up anything’. Gray told him she was not dealing in drugs. On 20 October
2003 he asked Gray to leave and then went to work. When he returned Gray had gone but
she had stolen some items from the house. He contacted the police two days later as she had
neither apologised nor returned any of the items to him.
93. The Crown made a successful application to adduce the convictions of Gray in the
light of her counsel’s cross-examination of McCawley. Enright’s counsel elected to crossex-
amine the police officer and lead evidence of his convictions. He said he had a catalogue of
convictions, some for theft going back to the 1970s and 80s. More recently most were drink-
related including assaults, criminal damage, driving offences and assaulting a police officer.
In 2003 he was convicted of possession of a small amount of amphetamine (1 gram).
94. One reason why Enright’s counsel took this course was to minimise the potentially
prejudicial effect of evidence that when the police raided the flat and arrested him he was
handcuffed.
95. Enright’s sole complaint on the character issue relates to the direction the judge gave
the jury. His grounds of appeal read:
The judge erred and/or misdirected the jury by directing them that they were entitled to
regard the appellant’s previous convictions, admitted by the appellant voluntarily under
s101(1)(b) Criminal Justice Act 2003, as evidence upon which they could find that he was
either more likely to have committed the disputed offences or that he was not truthful.
In other words the judge should not have allowed the jury to treat Enright’s previous con-
victions as being relevant to propensity or untruthfulness.
96. The judge’s direction to the jury begins at page 34 line 17. He said:
In this case you have heard evidence that both defendants have bad character in the sense
that they have criminal convictions. It is important that you should understand why you
have heard this evidence, and how you may use it. As I will explain in more detail later,
you must not convict only because a defendant has bad character.
He then dealt with Gray before going on to deal with Enright. He said:
You also have heard about Mr Enright’s extensive criminal record, as well as his expla-
nation for it. You have heard about this because of the questions by his barrister to PC
Guinan, the officer in the case, as well as, of course, Mr Enright told you about it himself
when he gave evidence.
You may use the evidence of either defendant in this regard … of either of the defendants’
bad character in the following ways: if you think it right, you may take it into account
when deciding whether a particular defendant’s evidence to you was truthful. A person
with a bad character may be less likely to tell the truth, but it does not follow that he, or
she, is incapable of doing so. You must decide to what extent, if at all, his character, or the
character, helps you when judging each defendant’s evidence.
If you think it right, you may also take it into account when you are deciding whether
or not either defendant has committed the offences for which they are now charged.
You must decide to what extent, if at all, character helps you when you are considering
whether or not he, or she, is guilty. But bear in mind that bad character cannot by itself
prove guilt. It would therefore be wrong to jump to the conclusion that he, or she, is
guilty just because of bad character.

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You have heard about Mr Enright’s one conviction for simple possession of amphet-
amine and Miss Gray’s one conviction for the simple possession of cocaine. You may
feel that the other offences, of a completely different type (Mr Enright’s convictions for
assault, driving matters, criminal damage; Ms Gray’s conviction for theft) have no bear-
ing whatsoever upon the likelihood of these defendants having committed these drugs
offences now.
As regards Mr Enright’s convictions for theft and other offences of dishonesty, bear in
mind that these are old and stale and occurred when he was a much younger man.
You must also bear in mind what either defendant has said about those convictions.
97. The thrust of the submissions of Mr Wade, who appeared before us for Enright a
she did in the court below, was originally this. The use to which evidence of bad character
can be put depends entirely on the gateway through which it has been admitted. The law
does not authorise the use of bad character evidence for the purpose of establishing pro-
pensity to commit the offence or propensity to be untruthful unless it was admitted for that
purpose under section 101(1)(d) ie relevant to an important matter in issue between the
defendant and the prosecution. Here it was adduced under section 101(1)(b) at the defend-
ant’s instigation. Section 101(1)(b) provides:
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.
98. It was allowed in, submits Mr Wade, only for whatever purpose the defendant
required it. Thus it could not be used either as evidence of propensity to commit the offence
or as evidence of propensity to be untruthful.
99. In our view section 101(1) deals merely with the issue of admissibility. It does not-
deal with the relevance of the evidence once admitted, any more than it deals with the
weight to be attached to it.
100. Bad character in section 98 is broadly defined. Its relevance will vary from case to
case. Once admitted (no matter through which gateway) it can be used for any purpose for
which it is relevant. The Lord Chief Justice made this clear in Highton.
101. Mr Wade, appreciating that what the Lord Chief Justice said in Highton has taken
the rug from under his feet on his specific point, has directed his argument more generally
to what the judge said in his summing up. The judge told the jury that Enright’s bad char-
acter might mean he was less likely to tell the truth and that his one previous drug offence
might have some bearing on his having committed the drug offences with which he was
charged. But he pointed out:
—— all the other offences were of a completely different kind;
—— his dishonesty offences were old and stale and committed when he was much younger;
—— he had no history of drug dealing;
—— he volunteered his convictions;
—— what the jury made of the evidence and whether it helped was a matter for them;
—— a person of bad character is not necessarily incapable of telling the truth;
—— they could not convict just because of a defendant’s bad character.
102. The case was tried very soon after the relevant provisions in Part II of the C
riminal
Justice Act 2003 came into force. The judge did not have the help that subsequent
authorities from this court have given. He did his best and followed the Judicial Studies

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Appendix V

Board S pecimen Direction. In truth, however, the evidence of the appellant’s bad character
had very little, if any, probative value. Enright’s previous convictions played no part in pros-
ecuting counsel’s final speech. Ms Weeks, for the prosecution, accepts that the judge should
have given the jury a clearer and stronger direction. In submissions to the judge before he
summed up she submitted that the convictions had no relevance to propensity and she
accepted before us that the convictions cannot show a propensity for untruthfulness when
the circumstances relating to them were never explored. There were in any event ancient.
103. There are one or two passages in the part of the summing up to which we have
referred that are potentially unfavourable to Enright, for example that a person of bad char-
acter may be less likely to tell the truth. But viewed as a whole the summing up came close
to advising the jury that Enright’s convictions had little bearing on the issues they had to
decide.
104. In our judgment the judge should have given a clearer direction to the jury that the
evidence of his bad character did not assist the Crown on either untruthfulness or propen-
sity. The drug offence was at best of marginal relevance and the dishonesty convictions were
never explored to see whether they showed propensity for untruthfulness. But, when all is
said and done the evidence against Enright was strong. When the police arrived they found
drugs and drugs paraphernalia all over the flat.
105. There is a second ground of appeal that the judge should not have prohibited the
jury from returning verdicts on the alternative counts of possession just because they had
convicted of possession with intent to supply. Mr Wade’s reasoning appears to be that the
evidence shows that there were different sources and different amounts of drugs found
in different places in the flat and the jury was deprived of the opportunity of finding that
Enright was not involved with all of the drugs. In our view this argument is hopeless.
Having found Enright guilty of the more serious offences it was inappropriate for the jury
to go on to consider alternatives.
106. Enright’s appeal against conviction is accordingly dismissed.
107. Gray did not appear before us and was not represented. Her case did, however,
appear in our list as a non-counsel renewed application for leave to appeal against sentence.
It appears from correspondence with the Criminal Appeal office that counsel was prepared
to appear on a pro bono basis on her behalf that he would have done had he been made
aware of the listing date. There appears to have been some confusion within the office. It is
unnecessary to explore where any fault lies. In the circumstances we adjourn Gray’s applica-
tion to be heard by a different court on another day.

Appeals of Edwards, Rowlands, McLean, Smith and Enright dismissed.

Gray’s appeal adjourned.

328
INDEX

References in roman numerals are to the pages in the prefaces and references in bold
are to pages in the Appendices. Otherwise references are to paragraph numbers in the
commentary.

absolute discharge, admissibility as a allegations, admissibility as evidence of

conviction or reprehensible behaviour bad character
(Renda) 2.11, 278–279 defendants 2.10, 4.136, 5.1, 5.32–35,
acquittals as bad character evidence 234–237, 263–264, 283–284, 287,
absence of conviction 311–312, 323–324
distinguished 5.32–33 witnesses/non-defendants 3.24–38,
admissibility of findings of 229–230, 251
fact (Hollington v Hewthorn alleged facts of the offence charged,
rule) 5.37–39 exclusion of evidence to do with
case law (CJA 98(a))
Boulton 5.38 acts committed at same time and place
D 3.38 as main offence 2.29
Hamidi 5.37–38 common law rules 2.6
McNeish 5.37 gateway (c) alternative 2.29
Mustapha 5.36, 5.38 gateway (e) alternative
Smith (David) 5.36, 323 4.110
Z 5.36, 323 gateway (g) alternative 2.27, 2.36,
proof of acquittal: see proof of 4.144
convictions/acquittals gateways as belt and braces
proof of innocence/presumption of alternative 2.30–31
innocence 2.8, 5.36–39, 323 guilty plea to component offence
admissibility of alleged facts: see alleged as 2.28
facts of the offence charged, exclusion of Law Commission proposals 1.14,
evidence to do with (CJA 98(a)) 2.4–6, 4.144
admissibility of bad character evidence: previous misconduct as
see Criminal Justice Act 2003; defendants motive 2.32–33
(admissibility of bad character previous offence as legal
evidence (CJA 101)); non-defendants ingredient 2.32–33
(admissibility of bad character evidence) unidentified non-defendant 3.48
(CJA 100) application to adduce bad character
admissibility of findings of fact evidence, procedure
(Hollington v Hewthorn rule) 5.37–39 CPR 5.40–41, 192–193, 241
acquittals, applicability to 5.37–39 judicious use 1.69, 5.1, 238–239
civil court findings 5.17 Law Commission proposals 1.14, 1.16,
convictions subsequent to offence under 3.50
consideration 4.101 magistrates’ courts and Crown Court
criminal proceedings 5.16 compared 1.87

329
Index

pre-2003 1.6 misconduct: see misconduct in

summary (Hanson) 241 connection with the investigation or
assumption of truth (CJA 109) 2.21, prosecution of offence, exclusion as
4.119, 5.25, 5.47, 311–312, 324 ‘bad character’ evidence (CJA 98(b))
attack on another person’s character: see notice of intention to adduce (CJA
gateway (g) (attack on another person’s 111) 5.40–44
character) reasons for decisions (CJA 110) 5.60
Auld Report 1.17 text 2.1
bad character evidence pre-CJA (2003)
bad character evidence, availability of (common law) (exclusionary rule):
information 5.2–7 see also Criminal Justice Act 2003;
amendment of Code of Practice 5.5, defendants (admissibility of bad
248 character evidence (CJA 101)); Law
Bichard Report 5.4 Commission proposals; non-defendants
data protection issues 5.5 (admissibility of bad character evidence)
decentralized approach 5.2–4 (CJA 100)
defendants’ lawyers’ access 5.6 abolition of common law rules (CJA
inaccuracy of records 5.4, 5.9 99): see Criminal Justice Act 2003,
retention periods 5.5 abolition of common law rules
spent convictions (Rehabilitation of (CJA 99)
Offenders Act) 5.7 at sentencing stage 1.1
bad character evidence (definition for at trial stage 1.2
purposes of CJA) (CJA 98) 1.21, Auld Report 1.17
2.1–38 evaluation of evidence 1.23
acquittals: see acquittals as bad character evidence to correct a false
evidence; proof of convictions/ impression 4.123
acquittals evidence relevant to matter in
alleged facts of the offence charged: see issue 4.19–27, 4.104
alleged facts of the offence charged, important explanatory evidence 4.8,
exclusion of evidence to do with (CJA 4.17
98(a)) radical criticism 1.4–12
applicable law (admissibility) (law in European practice 1.10
force at time of trial) 247 fairness considerations 1.8
application procedure: see application unrealistic nature of the
to adduce bad character evidence, rule 1.9
procedure wrongful acquittals 1.11
categorisation as evidence of reasons for
bad character vs exclusion as, fair play principle 1.3, 1.4
relevance 2.37 pre-trial disclosure
commission of an offence: see considerations 1.4
commission of an offence or other in sex cases 1.7
reprehensible behaviour (CJA112(1)); statutory provisions not repealed by the
reprehensible behaviour (CJA 106(2) CJA 1.22
(a)/CJA 112(1)) technical criticisms of
convictions: see convictions as bad inconsistency of application 1.6
character evidence inconsistency between treatment of
evidence of third party’s bad character defendant and other people 1.7
not excluded under CJA 98 witnesses 1.7
3.3–7 Bermuda 4.17
‘has to do with’ 2.29, 4.61 Bichard Report 5.4
legislative history 2.4 burden of proof
lifestyle evidence 2.38 PACE 74 5.12, 5.23

330
Index

readier admissibility of defendant’s bad jurisprudence

character evidence, effect 1.38–39 Card 5.53
Galbraith 5.48
case to answer 1.70 Lamb 5.48, 5.54
cautions as bad character evidence Mackenzie 5.49
(Olu) 5.28–30 N (H) 5.54
co-defendants: see gateway (e) (evidence R v H 5.50
with substantial probative value for an Renda 5.52, 279–280
important issue between co-defendants) Turnbull 5.49
commission of an offence or other Law Commission proposals 1.15, 1.22,
reprehensible behaviour (CJA 5.50
112(1)) 2.8–10: see also convictions as limitation to evidence of bad character
bad character evidence; reprehensible (CJA 98) 5.55
behaviour (CJA 106(2)(a)/CJA 112(1)) limitation to jury trials (CJA
evidence of 107(1)) 5.56
acquittal 2.8 convictions as bad character evidence
conviction 2.8–10, 5.23–24 absolute discharge distinguished
‘disposition towards’ 2.19–26 278–279
less than conclusive evidence 2.9 acquittals distinguished 5.36, 5.38
out of court allegations 2.10, 4.136, admissibility of findings of fact: see
5.1, 5.32–35, 234–237, 263–264, admissibility of findings of fact
283–284, 287, 311–312, 323–324 (Hollington v Hewthorn rule)
‘offence’ 2.11 allegations distinguished/exclusion as
nature of offence, relevance 2.11–12 hearsay 5.32–35
‘other reprehensible behaviour’ case law
2.13–19: see also reprehensible Bovell 249–251
behaviour (CJA 106(2)(a)/CJA C (JW) 5.23
112(1)) Dowds 251–252
common law rules: see bad character Gatting 5.23
evidence pre-CJA (2003) (common law) Gilmore 244–245
(exclusionary rule); Criminal Justice Hanson 5.18, 5.21, 241–242
Act 2003, abolition of common law rules Humphris 5.20
(CJA 99) Kavallieratos 5.20
consent of all parties (CJA 101(1)(a)) Lunkulu 5.23
(gateway (a)) 1.62, 4.4, 5.45, 214–215, O’Leary 5.23
266–267 P 1.50, 4.50, 246–247
contaminated evidence (CJA 107) R (Wellington) 5.20
5.48–56: see also stopping the case Renda 278–279
(common law) Steen 5.22
accidental contamination 5.51 Wynes 5.26
‘contaminated’ (CJA 107(5)) 5.50–52, cautions distinguished (Olu) 5.28–30
279–280 commission of an offence (CJA 112(1)),
‘could not properly convict’ 5.48, 5.50 as evidence of 2.8–10
‘court is satisfied’ requirement (CJA proceedings relating to
107(1)(b)) 5.53–54 distinguished 5.34
ex proprio motu obligation 5.56 rebuttable presumption 2.8, 5.12,
jury directions 5.54 5.23–24
non-discretionary obligation 5.53 ‘conviction’ (CJA 103(2)) 4.82–83
grounds details of convictions, need for 5.18
collusion between witnesses 5.49 right to cross-examine 5.27
poor quality of evidence 5.49 satellite issues 5.25
unconvincing hearsay 5.49 sources of information 5.19–20

331
Index

fixed penalties (Hamer) 5.31 approaches to

jury directions/warning against placing coincidence approach 4.91, 232,
undue reliance on 1.34, 5.57, 216, 233–235
241–242, 253, 267, 275, 315 joint approaches 4.92–93, 236–237
of non-defendants/witnesses: propensity approach 4.90, 232, 235
see witnesses (admissibility of case law
bad character evidence/cross- Adenusi 4.93
examination) (CJA 100), convictions Chopra 4.92
proof of: see proof of convictions/ Freeman and Crawford 4.92, 4.93,
acquittals 231, 232–233
proof of offences in absence of H 4.86, 232
conviction 5.32 Hussein 4.93
sentence, relevance 5.26 Lowe 4.93
stale convictions: see stale convictions Ludlow 4.84
sufficiency to establish propensity (CJA McAllister 4.93
103(2)) 5.15 N (H) 4.93, 232
crimes of violence: see murder/crimes of O’Leary 4.93
violence, admissibility of bad character Sullivan 4.93
evidence Wallace 4.85, 4.91
Criminal Justice Act 2003: see also Law jury directions 231–237
Commission proposals Law Commission proposals 1.15, 1.22,
abolition of common law rules 2.31
(CJA 99) 1.21, 1.23–24, 1.47–49, cross-examination of defendants: see also
4.32, 4.45, 4.106 n194, 238, 309 witnesses (admissibility of bad character
as reversal of common law evidence/cross-examination) (CJA 100)
rules 1.49, 4.45, 295, 297 attack on another person’s character
rules falling outside CJA 98 definition (gateway (g)) and 4.138–142, 4.172,
of bad character evidence 2.6 227
applicability to historic CEA 1898 provisions 1.21, 1.51,
offences 1.81–84 4.96, 4.105, 4.111–112, 4.126, 4.137,
interpretation by the courts/conformity 4.138–141, 4.147, 4.153–154, 247, 278
with legislature’s intentions 1.47–53, correction of false impression
1.57, 4.45–62, 4.134 (gateway (f)) 4.123, 4.126, 4.134,
legislative history 3.3, 4.24–25, 4.34 4.137, 226, 278–279
practical impact 1.85–91, 3.11, 3.12–23 on detail of previous convictions 4.76,
summary of bad character evidence 5.27, 250
provisions 1.21 evidence in chief distinguished 1.6, 1.14
Criminal Procedure Rules 2015 (CPR), failure to give notice, possible
Part 21 (evidence of bad character) effect 257
application to introduce (non- ‘important explanatory evidence’
defendant) 5.41, 193 (gateway (c)) 280–281
court’s power to vary propensity for untruthfulness cases (CJA
requirements 5.42–44, 195 103(1)(b)) 4.95–96
notice of (defendant) 4.118, 5.40–44, satellite issues, risk of 4.118
194–195 similar offences (CJA 103(2)) 4.76
obligation to give active assistance to the substantial probative value
court 4.21 (gateway (e)) 4.111–113, 4.115–116,
reasons for decisions 195 284, 314–315–316
text 192–203 when D has not given evidence 210
cross-admissibility of evidence/joinder of Crown Prosecution Service (CPS) policy
counts (CJA 112(2)) 2.31, 4.84–93: see defendants 5.1
also contaminated evidence (CJA 107) non-defendants 5.1

332
Index

deceased non-defendants 3.44–46 dishonesty convictions, admissibility

admissibility of evidence attack on another person’s character
from 3.45 (gateway (g)) 4.161, 228–229
defendants (admissibility of bad case law
character evidence (CJA 101)) Carp 275
admissibility through more than one Chohan 264–265
gateway 4.3 Edwards 4.160, 255–256
admissibility and use of evidence Fysh 257–258
distinguished 266–267 Gilmore 1.50
attack on another person’s character: Hanson 1.50, 4.47, 4.98, 240,
see gateway (g) (attack on another 242–243
person’s character) Highton 268–270
consent of all parties Winfield 4.127, 4.130, 297–298
(gateway (a)) 1.62, 4.4, 5.45, Yaxley-Lennon 3.16, 302–304
214–215, 266–267 evidence to correct false impression
CPS policy 5.1 (gateway (f)) 4.57, 4.127, 297–298
European practice 1.10, 1.37 propensity for untruthfulness (CJA
evidence from the defence (gateway 103(1)(b)) 3.19–20, 242–244: see
(b)) 4.5–6, 215–217, 286 also propensity for untruthfulness
evidence wrongly admitted 4.3 n4 (CJA 103(1)(b))
exclusion of prima facie admissible dishonesty distinguished 4.47, 4.57,
evidence, court’s powers 1.55–65: 240, 242–244, 257–258
see also exclusion of evidence, courts’ rules pre-CJA 2003 4.57
powers/obligations (CJA 101(3) and drugs offences
103(3)) knowledge of drugs-dealing as
basis for exercise 1.66–80 important explanatory evidence
fairness 1.25–34, 1.35–46: see also (Chohan) 4.15, 262–265
fairness of proceedings/fair trial lifestyle evidence 2.38
(ECHR 6), effect of CJA 101 similarity of offences 4.55, 4.59, 4.133,
important explanatory evidence: see 4.145, 270–272
gateway (c) (important explanatory drugs-taking
evidence) credibility as witness and 3.16 n12
limitation to CJA 98 definition of ‘bad as reprehensible behaviour/bad
character’ 4.2: see also bad character character evidence 2.15, 2.25, 2.30,
evidence (definition for purposes of 270–272, 283–284
CJA) (CJA 98)
propensity evidence: see propensity (bad enhanced relevance test 3.9, 3.28, 4.21,
character evidence relevant to an 4.45, 261, 295–296
important matter in issue (gateway EU Council Framework Decision
(d))); propensity to commit offences 2008/675/JHA of 24 July 2008 4.66,
of the kind with which charged 4.177, 5.8, 5.14
(CJA 103(1)(a)) (gateway (d)); European bad character practice 1.10
propensity for untruthfulness (CJA European Convention on Human Rights
103(1)(b)) (ECHR)
stale convictions: see stale convictions, compliance obligation (Human Rights
defendants’ bad character evidence Act 1998) 1.46, 1.60, 2.18, 4.150,
(CJA 101(4)/CJA 103(3)) 5.45, 268
text 1.21, 4.1 fair trial (ECHR 6) 1.35–46, 2.18, 5.45,
weak case considerations: see weak 268: see also fairness of proceedings/
case, risk of adducing bad character fair trial (ECHR 6), effect of CJA 101
evidence to support/discretion to private and family life (ECHR 8) 2.18,
reject 3.41, 4.150–151

333
Index

evidence from the defence (CJA 101(1) fairness of proceedings/fair trial

(b)) 4.5–6, 215–217 (ECHR 6), effect of CJA 101: see also
evidence relevant to an important matter: weak case, risk of adducing bad
see propensity (bad character evidence character evidence to support/discretion
relevant to an important matter in issue to reject
(gateway (d))) alleged prejudicial effect 1.25–46
exclusion of evidence, courts’ as balancing act 2.18, 255, 296, 298
powers/obligations (CJA 101(3) burden of proof/presumption of
and 103(3)) innocence and 1.38–39
alleged facts of the offence charged: see compatibility with ECHR 6 1.35–46
alleged facts of the offence charged, Criminal Procedure (Scotland) Act 1995,
exclusion of evidence to do with s 275A (admissibility of previous
(CJA 98(a)) convictions for sex offences) 1.44
attack on another person’s character critical date 255
(gateway (g)) 1.21, 1.56, 4.22, 4.153, effect on readiness to convict 1.11,
4.157–161, 4.174–180 1.26, 1.28, 1.85–91
case law equality of arms 1.40–41
Apabha 1.64 failure to give reasons for ruling 272
Hanson 240 gateway (d) 1.21, 1.56, 4.22, 243, 246,
Highton 1.60, 269–270 263, 272, 296–297
Somanathan 1.61 gateway (e) 4.117–118
evidence to correct a false impression gateway (g) 1.21, 1.56, 4.22, 4.153,
(gateway (f)) 1.62–63 4.157–161, 4.173–180, 246–247,
evidence other than evidence of 255–256, 280–281
person’s bad character (CJA intention, relevance 4.160, 252
112(3)) 1.57 non bis in idem principle (ECHR
evidence of relevance to an Protocol 7:4) 1.45–46
issue between co-defendants PACE 78 1.56, 3.53, 267–268
(gateway e) 1.64–65 stale convictions 4.173–180, 240, 246,
evidence relevant to an important 255, 267, 322
matter in issue (gateway (d)) 1.21, weak case considerations 1.32–34
1.56, 4.22 false impression: see gateway (f) (evidence
hearsay evidence 1.57, 1.59, 1.73, 3.25, to correct a false impression)
4.65, 4.75, 5.17, 5.19–20, 5.22, 5.33, findings of fact: see admissibility of
5.35, 5.49 findings of fact (Hollington v Hewthorn
important explanatory evidence rule)
(gateway (c)) 1.62–63 fixed penalties as bad character evidence
‘just’/‘fairness’ 240 (Hamer) 5.31
PACE 78 (general discretionary ‘forbidden chain of reasoning’ 4.20,
power) 1.55–65, 240 4.36, 4.44, 4.84–93
prosecution evidence 1.55
stale convictions (CJA 103(2)) 1.56, gangland evidence 4.17, 4.63–65
3.23, 4.54 n95 evidential issues 4.65
weak case, as protection against: see weak gateway (a) (consent of all parties) 1.62,
case, risk of adducing bad character 4.4, 5.45, 266–267
evidence to support/discretion to jury directions 214–217
reject gateway (b) (evidence from the
exclusionary rule: see bad character defence) 4.5–6
evidence pre-CJA (2003) (common law) court’s right to use other than as
(exclusionary rule) intended by defence 4.6, 266–267
expert evidence (gateway (d)) 4.94 directions 216–217

334
Index

limitation to relevant evidence of D1’s innocence as evidence

purposes 215–216 of D2’s guilt 4.120
gateway (c) (important explanatory exclusion of evidence having
evidence) 4.7–17 adverse effect on fairness of
alleged facts of the offence charged (CJA proceedings (CJA 101(3)),
98(a)) alternative 2.29 non-applicability 4.117–118
case law 4.10–17 gateway (d) distinguished 4.123
Bermuda (Myers, Brangman and jury directions 222–225
Cox) 4.17 Law Commission proposals 4.104
Malone 2.30 live issue requirement 4.109
Martin 2.30 possibility of exclusion 1.64–65
pre-CJA 2003 4.10 evidence ‘to do with’ (CJA 98(a) and
common law principle 4.8, 4.17 (b)), limitation to 4.110
evidence essential to understanding of propensity for untruthfulness
the case (CJA 102(a)) 1.63, 4.7–8, (CJA 103(1)(b)) and
4.15–16, 217, 218, 229, 262–265, 287 (CJA 104(1)) 4.111–118
evidence of group dynamics 4.14 satellite issues 1.64, 4.118
exclusion, possibility of 1.62–63 gateway (f) (evidence to correct a false
gangland evidence 4.17 impression) 4.123–137
gateway (d) as alternative 4.12, 4.17 assertions other than by defendant
‘important’ and ‘explanatory’ as dual or defendant’s witness (CJA
requirement 4.7 105(2)) 4.126, 4.130
judicial discretion 1.61–63, 281 Explanatory Notes 4.130 n234
judicial leave 4.9 case law
jury directions 217–218 Amponsah 4.133
Law Commission proposals 4.9 B (Richard William) 4.137
relevance to relationship with claimant Cadogan 4.133
requirement 4.12 D 4.137
satellite issues 217 Dowds 4.134, 252
substantial value for understanding the Eyidah 4.132
case as a whole (CJA 102(b)) 1.63, Garrett 4.133
4.7, 4.16, 229 Hickinbottom 4.133
gateway (d) (evidence relevant to Kiernan 4.133
an important matter in issue Lewis 4.132
(propensity)): see propensity (bad Renda 4.134, 277–280
character evidence relevant to an Somanathan 4.135
important matter in issue (gateway (d))) Stokes 4.133
gateway (e) (evidence with substantial Verdol 4.133
probative value for an important issue Winfield 4.127, 4.130
between co-defendants) case law pre-2003, continuing
adduction vs use (CJA 104(2)) 4.121 applicability 240
admissible evidence (CJA 104) 4.104 ‘character is indivisible’ principle (CJA
assumption of truth (CJA 109) 4.119, 105(6)) 4.127, 4.130, 4.135
5.47 clean record claim 4.136
CEA 1898 provisions common law basis 4.123
distinguished 4.111–412 cross-examination and 4.123, 4.126,
common law principles as 4.134, 4.137, 226, 278–279
basis 4.104–105 dishonesty convictions,
cross-examination and 4.111–113, admissibility 4.57, 4.127, 297–298
4.115–116, 284, 314–315–316 evidence of sexual misbehaviour
cut-throat defences 3.20 n21, 4.108, 4.137
4.114–118, 4.160, 4.164, 222, 312, 314, exclusion of gateway (f) evidence
317–318 (PACE 78) 4.137
335
Index

false impression as to character, jury directions 227–229

limitation to 4.132 Law Commission proposals 2.36,
gateway vs nature of evidence as factor 4.141–144
determining use 4.166–172 ‘on any person’ 4.153–154
implied assertion (CJA 105(1), (4) and co-defendant 4.153, 4.160
(5)) 4.125, 4.130 dead person 4.154
jury directions 226–227 non-witness/non-victim 4.153
Law Commission proposals 4.124–128 ‘reprehensible behaviour’ (CJA 106(2)
possibility of exclusion 1.62–63 (b)) 4.144, 4.148–151, 280–281:
satellite issues 4.136 see also reprehensible behaviour
withdrawal or disassociation from (CJA 106(2)(a)/CJA 112(1))
assertion 4.134, 226, 278 good character evidence
gateway (g) (attack on another person’s admissibility
character) civil proceedings 1.27
alleged facts of the offence charged (CJA common law rules, retention
98(a)) alternative 2.27, 2.36, 4.144 1.23
assertion made while under caution/on criminal proceedings 1.27
being charged (CJA 106(1)(c)) defendant 1.1, 1.2, 1.7
4.156–157, 246–247, 276, 280–281 witness 1.7
‘attack on another person’s character’ witness (subsequent evidence of bad
(CJA 106) 4.142–151 character) 3.16
case law evidence to correct a false impression
Ahmed 4.144 (gateway (f)) and 4.123, 4.127,
Ball 4.156–157, 276, 280–281 4.133, 4.135, 4.136, 4.137: see also
Bishop 4.149, 4.151 gateway (f) (evidence to correct a false
Butterwasser 4.140 impression)
Carp 274–275 indivisibility of character rule
Chrysostomou 4.145 4.127
Clark 4.145 jury directions 204–211
Dowds 4.121, 4.134, 4.153, 4.160, guardsman’s defence 3.36, 3.42, 4.151
251–252
Fryer and Tedstone 4.172 hearsay evidence 1.57, 1.59, 1.73, 3.25,
Hanson 4.146, 4.154 4.65, 4.75, 5.17, 5.19–20, 5.22, 5.33, 5.35,
Highton 4.166–168, 269–270 5.49
Littlechild 4.146 Hollington v Hewthorn rule: see
Nelson 4.153 admissibility of findings of fact
Singh (James Paul) 4.165 (Hollington v Hewthorn rule)
Turner 4.147 homosexual behaviour: see also sexual
Woodhead 4.145, 4.146 behaviour, admissibility of evidence/
CEA 1898, criticisms of 4.138–140 questions about
credibility test, whether use of admitted imputation as attack upon a
evidence limited to 4.166–172, 267, person’s character (gateway
274–275 (b)) 4.149–151
cross-examination on 4.111, 4.121, reprehensible behaviour, whether 2.17,
4.138–142, 4.172, 227 4.62, 4.149–151
dishonesty convictions, admissibility similar offences/propensity
228–229, 255–256, 269–270, 4.57
274–275 Human Rights Act 1998 1.46, 1.60, 2.18,
exclusion of evidence having adverse 4.150, 5.45, 268
effect on fairness of proceedings
(CJA 101(3)) 1.21, 1.56, 4.22, 4.153, important explanatory evidence: see
4.157–161, 4.173–180, 246–247, gateway (c) (important explanatory
280–281 evidence)
336
Index

important matter in issue: see propensity undue reliance on convictions 1.34,

(bad character evidence relevant to an 5.57, 216, 241–242, 253, 267, 275, 315
important matter in issue (gateway (d))) jury directions (defendant’s bad
‘indivisibility of character’ 4.96–97, character)
4.127, 4.130, 297 adequate direction, importance 5.62
information relevant to bad character: usurping jury’s role 5.63, 324
see bad character evidence, availability of case law
information Baxendale 5.63
Campbell 5.66
joinder of counts: see cross-admissibility of Carp 275
evidence/joinder of counts (CJA 112(2)) Chohan 5.66, 264–265
judicial discretion 1.55–80 DF 5.62
alleged crimes not resulting in Edwards 5.65
conviction 3.27–29 EPI Inc v Symphony plc 5.71
important explanatory Gosney 5.62
evidence 1.61–63 Harper 5.62
limited scope for review of 3.29, Norris 5.64
240–241, 276, 284, 322 Roderick 5.63
non-defendants’ bad character Specimen Directions (Judicial Studies
evidence 1.65, 3.51–52 Board) 3.61
judicial leave jury directions (defendant’s good
important explanatory evidence character) 5.67–70
(gateway (c)) 4.9 case law
Law Commission proposals 1.14, 1.16, Hunter 5.68–70, 204–207
3.50, 4.9, 4.22 Vye/Aziz 5.67–70
non-defendants and (CJA 100(4)) 3.9, Compendium (2016) 204–211
3.50–53 judicial discretion 5.69–70
application by defence and jury directions (non-defendant’s bad
prosecution distinguished 3.53 character) 5.71
discretion to refuse 3.51–52
PACE 3.53 Law Commission proposals 1.13–17
power to exclude (gateways (d) and (g)) ‘an important matter in issue between
(CJA 101(3)) 1.21, 4.22, 322–323 co-defendants’ 4.106
jury directions (Compendium) ‘an important matter in issue’
bad character (general introduction) (propensity) 4.19–22, 4.25–26
212–213 application to adduce evidence,
bad character procedure 1.14, 1.16, 3.50
(non-defendant) 229–230 attack on another person’s
cross-admissibility/joinder of counts character 2.36, 4.141–144
233–237 bad character (definition) 2.4–6
gateways (general) 213–214 contaminated evidence 1.15, 1.22, 5.50
gateway (a) 214–215 cross-admissibility of evidence 1.15,
gateway (b) 214–217 1.22, 2.31
gateway (c) 217–218 factors influencing 1.13
gateway (d) 218–222 important explanatory evidence 4.9
gateway (e) 222–225 joinder of counts 1.15, 1.22, 2.31
gateway (f) 226–227 judicial leave 1.14, 1.16, 3.50, 4.9, 4.22
gateway (g) 227–229 misconduct 1.14, 2.4
good character of defendant 204–211 as rationalisation of existing
identification 263 rules 1.13
propensity/weak cases 5.64 repeal of Theft Act 1968, s 27
‘similar facts’ 5.64 (handling stolen goods) 1.22

337
Index

single rule approach/gateways 1.14 pre-CJA 2003 1.11, 1.67–68, 1.90, 4.10,
summary of proposals 1.14 4.57
leave to appeal: see judicial leave proposed Order 4.67
legislative history 3.3, 4.24–25, 4.34 similar offences/propensity 1.72, 4.3,
lifestyle evidence 2.38 4.28, 4.37, 4.52–53, 4.60, 4.68, 4.69,
260–261, 269–270, 273–275, 317–318
‘matter in issue between the defendant disputed issue requirement 4.37,
and the prosecution’ (CJA 103): see 4.39
propensity (bad character evidence frequency of occurrence,
relevant to an important matter in issue relevance 4.73
(gateway (d))) identification cases 4.56
mental illness striking similarity requirement
case law 4.62, 240
Renda 2.11, 279 ‘substantial probative value’ 3.14, 4.3,
Tine 2.16, 3.33 4.105, 4.118, 249–251, 284, 309–310,
Toohey 3.33 316–319
connection with the offence
charged 3.33 non-defendants (admissibility of bad
reprehensible behaviour, whether/ character evidence) (CJA 100): see also
eligibility as bad character bad character evidence (definition for
evidence 2.11, 2.16, 3.33–34 purposes of CJA) (CJA 98); witnesses
misconduct in connection with the (admissibility of bad character evidence/
investigation or prosecution of offence, cross-examination) (CJA 100)
exclusion as ‘bad character’ evidence Note: for most of the material relating
(CJA 98(b)) 2.34–37 to non-defendants: see witnesses
attack on another person’s character (admissibility of bad character
(gateway (g)) and 2.36 evidence/cross-examination)
definition (CJA 112(1)) 2.1 (CJA 100)
examples 2.35 CPS policy 5.1
Law Commission proposal 1.14, 2.4 credibility (‘substantial probative value
misconduct of non-defendant 3.5, 3.31 in … a matter in issue’) 3.4, 3.8–11,
pre-CJA 2003 2.34 284
murder/crimes of violence, admissibility deceased non-defendants 3.44–46
of bad character evidence 286–287 ‘defence of incrimination’ 3.2
attack on another person’s character enhanced relevance test (CJA
(gateway (g)) 4.165, 255–256 100(1)) 3.9, 3.28
convictions for dishonesty 228 evidence essential to understanding of
correction of false impression (gateway the case (CJA 100(2)(a)) 3.8–9, 3.52,
(f)) 2.11, 4.133, 278–279 229
credibility (‘substantial probative value evidence of previous conduct (CJA
in … a matter in issue’) 3.14, 100(3)(b)) 3.7
249–251, 284 implication in the offence 3.2, 3.5–7
‘evidence that has to do with’ (CJA judicial leave requirement (CJA
98(a)) 2.29, 4.61 100(4)) 3.9, 3.50–53
expert evidence 4.94 jury directions 229–230
gangland evidence 4.17 Law Commission’s Report and Draft
‘important explanatory evidence’ Bill 3.3–4
(gateway (c)) 2.30, 4.3, 4.10, 4.12, legislative history 3.3
4.17 satellite issues 3.52, 229
jury directions 211, 218, 222, 223, 224, substantial value for understanding the
225, 230 case as a whole (CJA 100(2)(b))
mental illness and 3.34, 279 3.8–9, 3.52, 229, 264–265, 287

338
Index

text 3.1 common law principle/relationship with

unidentified non-defendants 3.47–49 CJA 101(1)(d) 4.19–27
notice of intention to adduce bad connection with offence
character evidence (CJA 111/CPR 21.4) requirement 4.40
5.40–44, 194–195 disputed issue requirement 4.36–40
case law defining the ‘disputed issue’ 4.39
Bovell 4.78, 248 enhanced relevance test 4.21, 4.45
Dowds 248 evidence from the defence (gateway
Fysh 257 (b)) 4.5–6
Gilmore 244–245 exclusion of evidence having adverse
Hanson 243 effect on fairness of proceedings (CJA
Hassan 5.44 101(3)) 1.21, 1.56, 4.22, 243, 246,
Robinson 5.44 263, 272, 296–297
Wallace 4.85 frequency 4.72–4.74
co-defendants 4.118 gateway (e) distinguished 4.122,
content (CPR 21.2) 192 318–319
forms 196–203 how often 4.72–4.74
notice objecting to non-defendant’s bad judicial leave and 4.22
character evidence 198, 244 jury directions 218–222, 270–272
variation of requirements (CPR 21.6) Law Commission proposals 4.19–22,
195, 244–245 4.25–26
waiver/importance of compliance 4.78, legislative history 4.24–25, 4.34
4.85, 5.43–44, 243, 257 ‘relevant to an important matter
in issue’: see also disputed issue
PACE, judicial leave 3.53 requirement above
presumption of innocence 1.38–39, 2.8, ‘an important matter’ (CJA
4.120, 5.36 112(1)) 4.18, 4.30, 4.32
previous convictions: see convictions drafting problems 4.23–27
as bad character evidence; stale ‘in issue’ 4.31
convictions; witnesses (admissibility live issue requirement 4.25,
of bad character evidence/cross- 4.36–40
examination) (CJA 100), convictions ‘matter in issue’ (CJA 101(d) and
proof of convictions/acquittals 5.8–11 CJA 103(1)(a) compared) 4.23,
by Channel Island/Isle of Man 4.30–33
courts 5.10 ‘to do with’ (CJA 98(a))
by ‘foreign’ or British colony distinguished 2.31
courts 5.9 satellite issues 1.78, 217, 230, 251,
identification issues 5.11 311–312, 324, 325
by UK/EU courts (PACE 73) 5.8 shedding light on disputed
Council Framework Decision matter 4.41–62
2008/675/JHA of 24 July 2008 coincidence cases 4.43
5.14 evidence relating to specific fact at
legal effect (PACE 75 and 75) issue 4.19, 4.42
5.12–14 multiple accusation 4.44
propensity (bad character evidence pre-CJA 2003 4.19
relevant to an important matter in ‘single act propensity’ 4.73 n 136
issue (gateway (d))) 4.18–102 ‘substantial probative value’ test
admissibility of evidence of propensity vs ‘relevant to an important
(CJA 103(1)(a)) 1.48, 4.26, 4.28–35 matter’ 4.21
as alternative to gateway (c) 4.12, 4.17, propensity to commit offences of the kind
4.53 n95 with which charged (CJA 103(1)(a))
assumption of truth 2.21, 311–312 (gateway (d))

339
Index

case law: see similar offences (offences of admissibility of convictions

the same description/same category) subsequent to offence under
(CJA 103(2)-(10)), case law consideration 4.101
cross-admissibility/joinder of counts: frequency, relevance 4.74
see cross-admissibility of evidence/ propensity, evidence of 4.50, 4.74
joinder of counts (CJA 112(2)) reasons for decisions (CJA 110) 5.60,
disputed issue requirement 4.36–40 272
defining the ‘disputed issue’ 4.39 reprehensible behaviour (CJA 106(2)(a)/
effect of CJA 103(1)(a) on admissibility CJA 112(1))
of propensity evidence 1.48, 4.26, absolute discharge 279
4.28–35 definition 2.14
expert evidence, admissibility 4.94 as evidence of bad character 2.13–19
‘forbidden chain of reasoning’ 4.20, examples 2.15, 3.25
4.36, 4.44, 4.84–93 examples of excluded acts 2.16
gangland evidence 4.17, 4.63–65 sexual behaviour 2.15, 2.17–18,
as ‘important matter’ (CJA 103(1) 4.148–151, 280–281
(a)) 4.28–35 of witness 3.23, 3.30
legislative history 4.24–25, 4.34 robbery: see murder/crimes of violence,
similar cases: see similar offences admissibility of bad character evidence;
(offences of the same description/ theft, admissibility of bad character
same category) (CJA 103(2)–(10)) evidence
similar fact evidence 1.15, 4.44, 4.76,
4.84–93, 5.65, 291, 295–296, 317–318 satellite issues, risk of 1.64, 1.75, 1.78,
stale convictions, discretion to 2.21, 3.27, 3.52, 4.54 n99, 4.80, 4.118,
reject 1.56, 4.54 n95, 255 4.136, 5.25
weak cases and 1.70–72 Bovell 217, 230, 251, 312, 324, 325
propensity for untruthfulness (CJA Scots law, ‘defence of incrimination’ 3.2
103(1)(b)) sentencing, character evidence and 1.1,
case law 1.2
Campbell 4.99–100 sex offences as bad character evidence in
Fysh 257–258 sex cases 4.50–51
Hanson 1.50, 3.19–22, 4.4–47, 4.98, in case of attack on another person’s
4.99, 4.115, 240, 242–244 character (gateway (g)) 4.145, 4.147,
cross-examination and 4.95–96 280–281
important issue between co-defendants frequency of offence, relevance 2.74,
(gateway (e)), relevance to (CJA 239–240
104(1)) 4.111–118 rape cases 1.79, 2.74, 4.74, 4.147
previous convictions as evidence weak/strong case divide 1.30, 1.31
of 3.14–23, 4.95–100 sexual behaviour, admissibility of
propensity for dishonesty evidence/questions about: see also
distinguished 4.47, 4.99, 240, homosexual behaviour
242–244, 257–258, 265, 274–275 defendants 1.7
ECHR rights as protection 2.18, 3.41
rape n.58, 4.150–151
admissibility of foreign conviction 5.16 non-sexual offence cases 3.39–43
admissibility of new evidence 1.83 as ‘other reprehensible behaviour’ (CJA
allegation of consent as attack upon the 112(1)) 2.15, 2.17–18, 4.148–151,
character 4.147 280–281
as bad character evidence in non-sex sex life of complainant in sexual offence
cases 4.38 cases (YJCEA 41) 1.7, 3.35–43, 281
as bad character evidence in sex compliance with CJA 100
cases 1.79, 2.74, 4.74, 4.147 requirements 3.43

340
Index

credibility (‘substantial probative ‘striking similarity’ requirement 1.49,

value in … a matter in issue’) 4.44, 4.45, 4.57, 4.62, 4.70, 5.1,
3.37–41 239–240
sexual offence cases 1.50, 2.23, 4.50 theft 4.47, 4.48, 4.59, 240, 242–244,
correction of false impression 263–265
(gateway (f)) 4.137 Categories of Offences Order 2004,
possession of pornography 4.51, Part I 4.67, 4.69, 187–188, 239
4.57 similar offences (offences of the same
similar offences/propensity 1.30, description/same category) (CJA
4.12, 4.37, 4.38, 4.50, 4.51, 4.83, 103(2)–(10)), case law 4.45–62
4.90–93, 5.65, 188–191, 220, 246–247, B (Richard William) 4.50, 4.178
289–290, 304–308, 321–323 Bernasconi 4.73
similar fact evidence (including cross- Bovell 4.78
admissibility) 1.15, 4.44, 4.76, Bowman and Lennon 4.73
4.84–93, 5.65, 291, 295–296 Brima 1.51, 4.56
jury directions 5.64 Brown 4.73
similar offences (offences of the same Campbell 1.83, 4.53
description/same category) (CJA Chohan 4.15, 4.48
103(2)–(10)) 4.66–93 Cundell 4.53
Categories of Offences Order 2004 (text) Cushing 4.59
187–191 D, P and U8 4.51
Council Framework Decision 2008/675/ Dolan 4.57
JHA of 24 July 2008, implementation Dossett 4.60
of 4.66–67, 4.177, 5.8, 5.14 Duggan 1.50, 4.45 n70, 4.52, 5.9,
cross-examination, right to 258–261
4.76 Fyle 4.62
frequency of occurrence, Hanson 1.49, 1.50, 1.52, 1.69, 1.90,
relevance 2.74, 4.72–74, 239–240 4.45–47, 4.56, 4.62, 4.69, 4.70–71,
murder/crimes of violence: see murder/ 4.72, 4.75, 5.1, 5.16, 5.21, 219,
crimes of violence, admissibility 242–244, 253
of bad character evidence, similar J 4.60
offences/propensity Jackson 4.73
offences of the same category (CJA Kamara 4.73
103(2)(b)) Kelly 4.94
Category of Offences Order 2004 Long 4.73
4.67, 187–191 M 4.77
need to establish propensity McGarvie 4.74
4.70–71 McKenzie 4.54
relationship between CJA 103(1)(a) and Malcolm D 4.73
CJA 103(2) 4.68–69 Manister 1.50, 2.23, 4.50, 4.62,
‘without prejudice to any other way of 304–308
doing so’ 4.69, 289–290 Ngyuen 4.83
sexual offences 1.30, 4.12, 4.37, 4.38, Nicholas 4.61
4.50, 4.51, 4.83, 4.90–93, 5.65, 220, Osbourne 4.52 n91
246–247, 289–290, 304–308, 321–323 P 1.50, 4.50, 239–240, 246–247
Categories of Offences Order 2004, Purcell 4.54
Part II 188–191 Shrimpton 4.73
similar offences gateway (rejected Smith 321–323
government draft) 1.20, 4.25 Somanathan 1.49, 4.3, 4.21, 4.45,
stale convictions (CJA 103(3)) as means 294–297
of excluding evidence 4.79–81 Sullivan 4.73
standard/burden of proof 5.15 Tully and Wood 4.59, 4.71

341
Index

Urushadze 4.71 legislative history 3.3, 4.24–25, 4.34

Weir 1.31, 1.49, 1.50, 1.52, 1.54, 4.50, legislature’s intention x, 1.47–53, 1.69,
4.69, 4.82, 289–290 238, 240
Whitehead 4.54 statutory context 3.3
Williams 4.53 terms of the Act v, 1.69, 238
stale convictions stopping the case (common law)
case law 5.57–59: see also contaminated evidence
B (Richard William) 4.178 (CJA 107)
Berry 3.16 alternatives available to the judge 5.57
Bovell 249–251 case law
Brewster 3.16, 3.23 Arthurton 5.57
Clark 4.178 Brown 5.57
Davis 4.12, 4.54 n95 Edwards and Rowlands 5.57
Doherty 3.16 Enright 5.57
Edwards 255 for inadmissibility of evidence 5.57–58
Edwards & Rowlands 313, 314 for weakness of the evidence 5.59
Enright 327–328 substantial probative value: see gateway
Garnham 3.16 (e) (evidence with substantial probative
Gilmore 246–247 value for an important issue between
Hanson 4.175, 243–244 co-defendants); witnesses (admissibility
Manister 306 of bad character evidence/cross-
Murphy 4.173 examination) (CJA 100), substantial
P 246–247 probative value requirement (CJA
Smith 320, 322 100(1)(b))
Sweet-Escott 3.15–16
Yaxley-Lennon 3.16 theft, admissibility of bad character
defendants’ bad character evidence evidence
(CJA 101(4)/CJA 103(3)) 4.12, 4.54 admissibility of theft as bad character
n95, 4.173–180, 206 evidence in cases other than theft
Compendium (2016) 221, 227 254–255
conviction while under 14 (CJA 108) credibility (‘substantial probative value
4.177–179 in … a matter in issue’) 3.14–16,
date of commission vs date of 3.22, 3.23
conviction 4.173, 240, 245 dishonesty convictions 1.50,
discretion to reject 1.56, 4.54 n95, 4.47, 4.57
255 as offence of dishonesty 3.19,
exclusion of evidence having adverse 255–256
effect on fairness of proceedings drug-taking as evidence of 2.30
(CJA 101(3)) 4.173–180, 240, as evidence to correct a false impression
243, 246, 255, 322 (gateway (f)) 2.11, 4.133
as means of excluding evidence frequency of offence, relevance 4.73
otherwise admissible under CJA ‘important explanatory evidence’
103(2) 4.79–81 (gateway (c)) 4.3, 4.10, 4.15
PACE 78, applicability 1.56, 4.180, similar offences/propensity 4.47,
267–268 4.48, 4.59, 4.71, 4.73, 240, 242–244,
reclassification of offence 4.178 263–265
non-defendants’ bad character evidence Categories of Offences Order 2004,
(CJA 100) 3.15–16, 3.23, 249–251 Part I 4.67, 4.69, 187–188, 239
statutory interpretation, guidelines/aids Theft Act 1968, s 27 1.22
Explanatory Notes 1.48, 1.54, 4.34, truth, assumption of 2.21, 4.119, 5.25,
4.130 n234 5.47, 311–312, 324

342
Index

violent crimes: see murder/crimes of in connection with the investigation

violence, admissibility of bad character or prosecution of the offence 3.31
evidence credibility (‘substantial probative
value in … a matter in issue’)
weak case, risk of adducing bad character 3.26, 3.32
evidence to support/discretion to reject ‘of substantial importance in the …
v, ix–x, 1.29, 1.32–34, 1.66–174, 5.46, case as a whole’ 3.32
5.59, 5.64, 216 Rowton 3.32
‘case to answer’ compared 1.70 convictions
case law CPA 1865 and CJA 100
Britzman 1.33, 1.51 distinguished 3.12, 3.30
Chand 1.73, 4.56 credibility (‘substantial probative
Darnley 1.71, 219 value in … a matter in issue’)
Hanson 1.69, 5.1, 238–239, 241, 315, considerations 3.4, 3.13–16,
338 249–251, 284, 286–287
McDonald 219 as evidence of propensity to
Rowlands 315–316 untruthfulness 3.14–23
Simmerson 1.51 notification to defence of witness’s
Slater 1.67–68 criminal record 3.18
Smith 322 rebuttable presumption of guilt
Straffen 1.27 n39, 1.29, 1.72 (PACE 73-75), cross-examination
Weir 1.31, 307–308 of witness to 5.23–24
fair trial considerations (ECHR 6) 1.35 stale convictions 3.15–16, 3.23,
gateway (d) cases 1.69–72, 4.56, 4.80, 249–251
219 ‘crucial evidence’ and 299–300
PACE 1984 1.57 effect/applicability of CJA 100 1.89,
witnesses (admissibility of bad character 3.11, 3.12–23
evidence/cross-examination) (CJA applicability to
100): see also cross-examination of cross-examination 3.3
defendants as limitation on cross-
admissibility/inadmissibility of evidence examination 1.7 n10,
admissible evidence tangential to the 3.2–3, 3.11
case 3.27 pre-CJA 2003 1.7
in close connection with the offence judicial leave requirement (CJA
charged 3.34 100(4)) 3.50–53
evidence inadmissible as evidence in mental illness (Toohey)
chief 3.26 3.33–34
of misconduct in connection with the sex offence complainants
investigation or prosecution 3.5, (YJCEA 41) 1.7, 3.35–43, 281:
3.31 see also sexual behaviour,
‘not of substantial importance’ 3.32 admissibility of evidence/questions
alleged crimes not resulting in about
conviction 3.24–30 substantial probative value requirement
collateral finality 3.30 (CJA 100(1)(b))
enhanced relevance test (CJA credibility and 3.4, 3.8–11, 3.13–16,
100(1)) 3.9, 3.28 3.23, 3.32, 284, 286–287
judicial discretion 3.27–29 enhanced relevance test (CJA
out-of-court allegations/ 100(1)) 3.9, 3.28
hearsay 3.24–38, 229–230, 251 possibility of exclusion 1.65,
reprehensible behaviour 3–30, 3.25 3.51–52
alleged lies sexual offences 3.37–41

343
344

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Essential Tips for Mental Well-Being
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Essential Tips for Mental Well-Being
2 pages
Black Dog Institute Mental Health Toolkit
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Law of Contract Class Notes
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Separation of Judiciary in Bangladesh
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29 Interpretation of Statutes
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83 pages
Interpretation Statutes 1917
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26 pages
Article 147,148,149,150,151,152,153 Explanation and Elements
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A.M. No. MTJ-01-1368. October 23, 2003. JUDGE JOSE GODOFREDO M. NAUI, RTC vs. JUDGE MARCIANO C. MAURICIO, SR.
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Criminal Appeal
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Criminal Appeal
3 pages
Cyberstalking and Its Legal Aspects
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Cyberstalking and Its Legal Aspects
5 pages
BNSS Bare Act (ARREST)
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BNSS Bare Act (ARREST)
14 pages
Reports of Experts - Appeals
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40 pages
People Vs Catubig (2001)
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People Vs Catubig (2001)
6 pages
Law Exam: Robbery with Homicide
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Law Exam: Robbery with Homicide
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Constitutional Law 2 Cases - Jasmin, Leonard Francis
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Constitutional Law 2 Cases - Jasmin, Leonard Francis
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People Vs Judge Yadao
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People Vs Judge Yadao
1 page
Bimal Borang Present: Sri Pranab Sarma, Ajs Judicial Magistrate 1 Class Kaliabor:Nagaon
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Diploma of Investigation and Enforcement Group Assignment Coversheet
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Mistake of Fact in Criminal Liability
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The Causes and Human Rights Implications of Over-Incarceration and Overcrowding in Detention Facilities in The Philippines
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3 pages
CLJ 1 Reviewer
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14 pages
LEAH P. ADORIO v. HON. LUCAS P. BERSAMIN
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Delos Reyes vs. Rodriguez
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Delos Reyes vs. Rodriguez
10 pages
Federal Investigation Agency FIA ACT 1974
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Midwife Legal Responsibilities and Crimes
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27 pages
Affidavit for Attempted Rape Case
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Affidavit for Attempted Rape Case
4 pages
Process To Compel Appearance of Person Under BNSS
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Robbery-Homicide Case Review 1982
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36 pages
Female Serial Murderers: Directions For Future Research On A Hidden Population From The
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Supreme Court
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7 pages
People v. Aminnudin 163 Scra 402 (G.r. No. 74869)
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Ram Deo Mahto V State of Bihar
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NJ Bail Reform: A National Model
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2 pages
(Desk-1) Quarterly List of Officers of The Indian Police Service and State Police Service As On 25/11/ 2020
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43 pages
Vinay Chandra Mishra Contempt Case Summary
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