Discuss
Introduction
The law of evidence concerning a defendant's bad character is one of the most contentious areas of criminal procedure. Historically, English law operated a strict exclusionary rule, preventing the prosecution from adducing evidence of a defendant's previous misconduct for fear that it would unduly prejudice the jury (Munday, 2021). The rationale was that a defendant should be tried for the offence charged, not for their past actions or general character. The Criminal Justice Act 2003 (CJA 2003) fundamentally reformed this area, replacing the common law with a new statutory scheme that created a structured, inclusionary approach. This essay will discuss the proposition that the main problem with this new law is the breadth of its definition of "bad character". It will be argued that while the expansive definition under the CJA 2003 does create significant issues of uncertainty and potential prejudice, to label it as the 'main' problem is an oversimplification. The complexity of the admissibility gateways, particularly the propensity gateway, and the difficulties surrounding the court's exclusionary discretion, arguably pose equally, if not more, significant challenges to the fairness of criminal trials.
The Breadth of the Statutory Definition
The foundation of the modern law is found in Part 11, Chapter 1 of the CJA 2003. Section 98 defines bad character evidence as "evidence of, or of a disposition towards, misconduct on his part, other than evidence which has to do with the alleged facts of the offence with which the defendant is charged". This immediately raises the question of what constitutes "misconduct". Section 112(1) provides a very wide definition, stating that misconduct means "the commission of an offence or of other reprehensible behaviour". While the "commission of an offence" is relatively straightforward, referring to previous convictions or cautions, the phrase "other reprehensible behaviour" is the source of much of the controversy.
The term "reprehensible" is not defined in the Act, leaving it to judicial interpretation on a case-by-case basis. This has led to a definition that is arguably both broad and inconsistent. The Court of Appeal has indicated that it should be given its ordinary meaning and involves some element of culpability or blameworthiness (Keane and McKeown, 2022). In R v Renda [2005] EWCA Crim 2826, evidence that the defendant associated with known drug dealers and had access to a firearm, neither of which was a criminal offence in itself, was deemed capable of being "reprehensible behaviour" and thus evidence of bad character. This illustrates how conduct that falls short of criminality can be brought before a jury, potentially painting the defendant in a negative light. Similarly, in R v D [2010] EWCA Crim 1485, it was suggested that a teacher having an affair with a 17-year-old pupil, while not illegal, could be considered reprehensible.
The breadth of this definition is a clear problem. It creates uncertainty for the defence, as it is not always possible to predict what aspects of a defendant's past might be judged "reprehensible" by a court. This can impact decisions on trial strategy, such as whether the defendant should give evidence. Furthermore, it risks admitting highly prejudicial information. The danger is that a jury, on hearing of behaviour they disapprove of, might engage in "moral prejudice", concluding that the defendant is a 'bad person' and therefore more likely to be guilty of the offence charged, regardless of the strength of the evidence (Choo, 2021). This undermines the core principle that a trial should focus on the facts of the specific allegation.
Are There More Significant Problems?
While the breadth of the definition is a serious concern, it is questionable whether it is the 'main' problem. The CJA 2003 contains a complex filtering mechanism, and the real difficulties may lie in how this mechanism operates in practice. Evidence of bad character is not automatically admissible; it must pass through one of the seven gateways for defendants listed in section 101(1). The definition in section 98 is merely the starting point.
One of the most problematic areas is the operation of gateway (d), which permits the admission of bad character evidence if "it is relevant to an important matter in issue between the defendant and the prosecution". This is most commonly used to show a defendant has a "propensity" to commit offences of the kind charged, or a propensity to be untruthful. The concept of propensity is itself highly prejudicial. As the Law Commission noted in its report preceding the Act, there is a "powerful and persuasive effect of previous convictions on a jury" (Law Commission, 2001, para 8.6). The risk of what is often called "forbidden reasoning" – where the jury reasons that 'he has done it before, so he must have done it this time' – is immense.
The case of R v Hanson [2005] EWCA Crim 824 provided crucial guidance, establishing a three-stage test for admitting evidence under gateway (d): there must be no reason to doubt the conviction; it must show a propensity to commit the type of offence charged; and it must be just to rely on it. However, applying this test is far from simple. Deciding whether one or two past convictions for theft show a 'propensity' to be dishonest is a difficult judgement call. The danger is that the focus of the trial can shift from an inquiry into the current charge to a trial of the defendant's past. Therefore, it could be argued that the inherent prejudice of using past behaviour to prove present guilt under gateway (d) is a more fundamental problem than the initial definition of what constitutes bad character.
The Discretion to Exclude
Furthermore, the statutory safeguards designed to mitigate the prejudice are themselves a source of difficulty. Section 101(3) provides that for evidence admitted through gateways (d) (propensity) and (g) (attack on another's character), the court must exclude it 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". This mirrors the general discretion to exclude unfair evidence under section 78 of the Police and Criminal Evidence Act 1984.
While this provides a vital safety net, the concept of "fairness" is broad and its application can be inconsistent. The decision requires a judge to balance the probative value of the evidence against its prejudicial effect, a task which is notoriously difficult. As Roberts and Zuckerman (2010) argue, the weighing of these factors is often an intuitive rather than a scientific exercise. The outcome can depend heavily on the individual judge's assessment. This introduces a significant degree of uncertainty into the admissibility process. It could be contended that the vagueness of the "fairness" test in s.101(3) is a greater problem than the vagueness of "reprehensible behaviour" in s.112, as the fairness test is the final and most critical safeguard against the admission of highly prejudicial evidence. The main problem is not just that a wide range of conduct is caught by the definition, but that the mechanism for filtering out the most prejudicial examples of that conduct is itself unpredictable.
Conclusion
In conclusion, the assertion that the main problem with the law on bad character is the breadth of its definition is a persuasive but incomplete analysis. The inclusion of "other reprehensible behaviour" within the meaning of misconduct in section 112 of the CJA 2003 has undeniably created a wide and somewhat uncertain gateway into the bad character provisions. This risks bringing a range of prejudicial, non-criminal conduct before the jury, which can undermine the fairness of the trial.
However, the definition is only the first step in a multi-layered process of admissibility. The subsequent stages present challenges that are arguably more significant. The very principle of admitting evidence to show propensity under gateway (d) carries a high risk of "forbidden reasoning" that may be impossible for a jury to ignore, regardless of judicial directions. Furthermore, the reliance on a broad, discretionary "fairness" test in section 101(3) to exclude such evidence means that the ultimate safeguard against prejudice is itself uncertain and inconsistently applied. Therefore, while the broad definition is a clear flaw in the legislative scheme, it is not the sole, or necessarily the 'main', problem. The more fundamental issues lie in the controversial use of propensity evidence and the inherent difficulties in balancing probative value against prejudicial effect, which are challenges that persist even after the initial question of definition has been settled.
References
Choo, A. (2021) Evidence. 6th edn. Oxford: Oxford University Press.
Criminal Justice Act 2003.
Keane, A. and McKeown, P. (2022) The Modern Law of Evidence. 14th edn. Oxford: Oxford University Press.
Law Commission (2001) Evidence of Bad Character in Criminal Proceedings. Law Com No 273. London: TSO.
Munday, R. (2021) Evidence. 10th edn. Oxford: Oxford University Press.
Police and Criminal Evidence Act 1984.
R v Campbell [2007] EWCA Crim 1472.
R v D [2010] EWCA Crim 1485.
R v Hanson [2005] EWCA Crim 824.
R v Renda [2005] EWCA Crim 2826.
Roberts, P. and Zuckerman, A. (2010) Criminal Evidence. 2nd edn. Oxford: Oxford University Press.
