3.7 Bad character - non-defendant

Question 1

When is evidence of a non-defendant’s bad character admissible?

Answer 1

Section 100(1) Criminal Justice Act 2003
… if and only if—
(a) [explanatory]
it is important explanatory evidence,
(b) [probative]
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) [agreement]
all parties to the proceedings agree to the evidence being admissible.

Question 2

When is evidence “important” and “explanatory” for the purposes of admission under Section 100(1)(a) CJA?

Answer 2

Section 100(2) Criminal Justice Act 2003
…if—
(a) [understand evidence]
without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) [understand whole case]
its value for understanding the case as a whole is substantial.

Question 3

What must the court have regard to in considering whether evidence has “substantial probative value” for the purposes of Section 100(1)(b) CJA?

Answer 3

Section 100(3) Criminal Justice Act 2003
… (and to any others it considers relevant)—
(a) [nature and number]
the nature and number of the events, or other things, to which the evidence relates;
(b) [when]
when those events or things are alleged to have happened or existed;
(c) [similarities]
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) [same person?]
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.

Question 4

Who can adduce evidence under Section 100 Criminal Justice Act 2003?

Answer 4

Either side.

Question 5

What must a party do before adducing evidence of a non-defendant’s bad character?

Answer 5

Section 100(1)(c) Criminal Justice Act 2003
obtain agreement,

OR

Section 100(4)
obtain leave of the court

Question 6

What does “matter in issue” mean for the purposes of Section 100(1)(b)(i)?

Answer 6

Credibility or a disputed fact.

Question 7

When might a defendant want to adduce evidence of a non-defendant’s bad character?

Answer 7

To suggest that the non-defendant committed the offence.

Question 8

What does “substantial” mean for the purposes of Section 100(1)(b)?

Answer 8

Substantial means capable of influencing the jury’s decision. This depends on the number, nature and age of the instances of misconduct.