However, while it seems fairly certain that `bad character' goes beyond these two categories, it remains uncertain what its precise boundaries are. At least until the 1980s it seemed that homosexuality could amount to bad character (e.g., RVBishop1974), and passing remarks of the CourtOfAppeal in R v Redgrave (1981) suggested that evidence of heterosexuality might be considered evidence of good character (at least in a case involving an allegation of homosexual prostitution). The CriminalJusticeAct2003 provides at least a partial definition of bad character -- more on this point later.

Historical background

The admissibility of evidence of disposition was governed by the large body of case law that became known as the law of SimilarFactEvidence, except where the defendant`put his good character in issue' by calling witnesses to testify to his good character (see PuttingCharacterInIssue). In such circumstances, any relevant evidence of bad character could be adduced, including evidence of disposition and evidence of untruthfullness. The case of RVButterwasser1940 established that the defendant who adduced evidence of the bad character of a prosecution witness was not putting his own good character in issue, and so could not have his bad character revealed.

The modern position before 2003

Until the passage of CriminalEvidenceAct1898, the defendant could not testify in his own defence, so the common law had nothing to say about cross-examination as to his character -- disposition or truthfullness. With the 1898 Act came the right of the defendant to testify, and therefore be cross-examined. Consequently there are different rules governing the introduction of original evidence of bad character by the prosecution (see EvidenceInChiefOfBadCharacter), and evidence which the prosecution might wish to elicit in CrossExamination (see CrossExaminationAsToBadCharacter). In outline, under the 1898 Act the defendant could be cross-examined to show his untruthfullness only if he put his own character in issue, or if he put the character of a prosecution witness in issue, or if he gave evidence for the prosecution of a co-defendant. The 1898 Act also allowed for the defendant to be cross-examined on his propensity to commit offences, in similar circumstances to those in which SimilarFactEvidence would be admitted. However, this practice was discouraged by the courts, which preferred evidence of disposition to be adduced by a witness as evidence in chief, not by the prosecution during cross-examination.

The law on bad character evidence until 2003 had a number of features which were frequent sources of criticism.

In fact, the provisions of s.1(3) are often referred to as a `shield' for the defendant. Providing none of the conditions in s.1(3) are satisfied, and the similar fact rules did not apply, the defendant was shielded from having his bad character exposed.

Bad character after the 2003 Reforms

The law in this area has now been radically revised by the CJA2003 (although the relevant provisions are not yet in force at the time of writing).

Under the 2003 Act, `bad `character' has a broad definition: a `disposition towards misconduct'. s.112 defines misconduct as ``commission of an offence or other reprehensible conduct''. Undoubtedly a tendency to being untruthfull will constitute `reprehensible conduct', but it is not entirely clear what else will. The Crown Prosecution Service, for example, suggests that a tendency to leave unpaid debts, or to have had a child taken into the care of the local authority, will qualify.

Note that the definition of bad character includes not only previous convictions, but also a disposition toward commission of offences. Superficially this appears to be disadvantageous for the defendant, but such a conclusion would be misconceived. The definition of `bad character' sets out the kind of behaviour whose admissibility will be regulated by the Act; it does not set out what behaviour will be admissible. During the passage of the draft Bill through parliament, well-meaning objectors made the same mistake, and probably made the Act even more unfavourable to the defendant than it it now is. For example, the original formulation of bad character proposed by the Law Commission was

``...commission of an offence or behaviour that, in the opinion of the court, might be viewed with disapproval by a reasonable person''

This formulation was changed to ``reprehensible conduct'' after objections from civil rights-minded MPs who thought -- wrongly -- that a broad definition was harmful to the defendants' interests: the opposite is the case. Despite the way it appears on a casual reading, the Act does not allow for the admissibility of evidence that shows a disposition towards committing offences. So, for example, the fact that the defendant possessed pornography would not (despite what people are saying) automatically be admissible against him in a trial for, say, rape. On the contrary -- this evidence would be excluded, unless it fell within one of the categories in s.101(1).

However it is defined, evidence of bad character is admissible in the following circumstances (s.101-106):

So how are these new provisions different from the preceeding ones?

So, in summary, the substantial changes made by the 2003 Act are as follows.

The 2003 Act has the potential to weaken significantly the defendant's protection against his bad character being admissible as evidence. There are, however, a number of safeguards for the defendant. s.101(3) allows the defendant to challenge the admissibility of evidence of disposition or evidence of untruthfullness, if it is admitted under para (d) (disposition or untruthfullness) or (g) (attack on another person's character). The court must not admit it if it would have an adverse effect on the fairness of the trial. It is not entirely clear whether this creates a different protection for the defendant than that in s.78 of PACE, or not. The wording (`must' rather than `may') suggests an obligation rather than a discretion to exclude, if the evidence would lead to unfairness. However, whether this difference has a practical significance is doubtful. It is also an open question whether s.78 will apply to the other triggers in s.101 -- it can be argued that, because a test for fairness is imported in paras (d) and (g), the Act is intended not to provide a similar test for the other triggers. Even the CPS has expressed some bafflement about this issue. They suggest that it is most likely that s.78 will continue to apply, but it will rarely be relevant.

An additional safeguard is found in s.107, which allows the court to stop the proceedings if it appears that character evidence is `contaminated' (for example, falsified).

Note that it is not only the accused whose character may be put in issue; the purpose of cross-examination is to challenge the veracity of the evidence, and one way to do that is to show the poor character of the witness -- in particular, that is testimony cannot be trusted. Under the 2003 Act, s.100 defines the situations in which the bad character of a non-defendant can be adduced in evidence. In outline, the bad character of a non-defendant is admissible if it is `important explantory evidence', or has `substantial probative value'. s.101(3) gives examples of situations where bad character evidence has substantial probative value: first, where the witness's past misconduct has similar features to some other misconduct at issue; second, where it is suggested that the witness may, in fact, be the perpetrator of the offence for which the defendant is charged.

s.100 is a significant departure from the previous law, as it was essentially open season once a witness took the stand. Any evidence of bad character, even evidence of long-spent convictions, could be adduced to undermine the witness (although, to be fair, leave of the court was required in the specific instance of spent convictions). Under the new Act, leave of the court will be required before any evidence of bad character can be adduced against a non-defendant.

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