At common law, the prosecution were generally prohibited from mentioning the accused's bad character or prior convictions.[1]

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The Accused's Bad Character

At common law, the prosecution were generally prohibited from mentioning the accused's bad character or prior convictions.

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 indictment, 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.

The argument has always been that there is considerable risk that bad character is accorded much more weight than that relevance warrants. As such its prejudicial effect may well outweigh its probative value and the jury, with little experience in assessing such matters, should be prevented from hearing about previous convictions.  That was supported when the Law Commission commissioned research which showed that knowledge of previous convictions may prejudice a jury or magistrates unfairly against the defendant. Mike Redmayne’s study considered the usual justifications for the exclusionary rule, namely irrelevance or the disproportionate and prejudicial impact on the jury. The conclusion was after reviewing the psychological research on character and statistical data on recidivism, that those with previous convictions are much more likely to offend than are those without a criminal record, which implies that evidence of bad character will usually be sufficiently probative to justify its admission as proof of guilt. There are no simple conclusions from this – probative value and potential prejudice both exist when the prosecution introduces the accused’s criminal record. Policing that line in the interests of a fair trial for the defendant and for the community at large was never going to be easy.  

The common law adopted a default policy of exclusion of such evidence. This has come under considerable scrutiny, firstly from the Auld Report on criminal courts. The Report came down strongly on increasing the scope of bad character evidence,

  1. …Professor Spencer and others have advanced the following arguments:
  1.  it is illogical for the law to allow a defendant to put in his good character to indicate lack of propensity but to deny the prosecution the opportunity to establish the converse when he has a bad one;
  2. jurors rapidly learn and magistrates and judges know that if there is no mention of a defendant's good character, he probably has a bad one, and so it permits the tribunal of fact to guess what it is not officially allowed to know;
  3. magistrates, in any event, soon recognise the regular offenders in their court;
  4. in the case of the exception where a defendant's character goes in because he has wrongly sought to establish his own good character or attacked a prosecution witness, the requirement on the judge to tell a jury that it goes only to credibility, not to propensity, is confusing and unreal;
  5. evidence showing that a defendant has committed offences of a similar type before statistically and logically suggests that he is more likely than those without such a record to commit such offences again, and should for that reason be regarded as relevant evidence - and some propensities can be more significant than others;
  6. though studies have shown that juries would be influenced to some extent by knowledge that the defendant has a criminal record, they do not show that juries would be unduly influenced by it;
  7. to remove the scope for possibly prejudicial speculation, fact-finders should be informed at the start of the trial whether the defendant has a criminal record and, if so, what it is;
  8. we should substitute weight for admissibility, confining the prosecutor to making active use of the criminal record or bad tendencies where they appear to be relevant to some disputed element in the case, and we should trust jurors and other fact finders to give it the weight it deserves;
  9. adequate safeguards against juries and other fact finders giving unduly prejudicial weight to such evidence would be to prevent prosecutors inflating its importance and to prohibit a conviction when there is no other prosecution evidence of substance; and
  10. such a system would be simpler and more honest.
  1.  Those are powerful pointers to the futility of a rule, whatever its form, for rendering inadmissible prejudicial matter inferential knowledge of which cannot and arguably need not be kept from fact finders. As I have said, magistrates will know, and so will most jurors - if not the first time they sit on a jury, the second time - that silence about a defendant's character probably means he has a criminal record. They may not know what it is, but they can speculate about it. Professional judges, sitting as fact finders in the magistrates' courts or on appeal in the Crown Court usually cannot avoid knowing the full details if an issue arises before them as to character. Prominent among the reasons for retaining a lay element in the administration of criminal justice is a belief in their worldly judgment and common sense. Magistrates and jurors are seemingly trusted now, where as a result of the conduct of a defendant's case his previous bad character goes in, to distinguish between its relevance to his credibility but not to his propensity, a distinction which must be incomprehensible to most jurors and, possibly to many magistrates. Yet they are not to be trusted as a generality to assess such evidence for themselves. In my view, 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 into this complex corner of the law.

The radical proposal of reading out convictions as a matter of routine was not supported in the Government’s White Paper on criminal justice. Section 101 of the Criminal Justice Act 2003 has put into force a more limited reform but the policy remains of extending the use of bad character evidence.

A brief review of the use of previous convictions in the rest of Europe shows considerable diversity:


Judges will have before them the accused's prior convictions. There are no specific rules about the admissibility of previous convictions. The dossier will contain the police record mentioning the previous convictions. The prosecutor may refer to them. It is up to the judge to determine the weight of this evidence.


The legal judge has the accused's previous convictions before him or her, but the lay judges and the jury do not. Prior convictions are generally only of relevance after conviction for sentencing. They are not normally admissible in evidence during the trial as evidence of guilt unless there is a striking similarity between the facts of the cases.


The trial judges have before them during the trial the prior convictions, together with all the facts concerning the background and personal life history of the accused. All these facts are made known to the whole court before it reaches its judgment.


The judges will have the accused's previous convictions before them during the trial. As a rule, prior convictions are only relevant in determining the scale of penalty.


Trial judges must have before them prior convictions of the accused during the trial. They count as evidence of the accused's character, and are usable to ascertain his or her responsibility and to determine the sentence.


The accused's criminal record will be in the dossier which the court will see. However, the record is relevant only when determining sentence and not guilt.


Judges have the accused's prior convictions before them during trial, but they are generally only relevant in sentencing.


The court has access to the accused's prior convictions. If the offence is such that a sanction other than a fine can be expected or if special cause otherwise warrants, reference can be made during the hearing to the penalties to which the accused person has previously been sentenced.

Other jurisdictions use such information more freely not merely because they employ an investigative mode of trial but also because they place more emphasis on the professionally trained judge rather than on a lay jury. The latter are assumed to be more likely to pre-judge a case on the basis of an accused's prior convictions than the former.

The Criminal Justice Act 2003

The common law position has been changed by the 2003 reforms. The old rules were repealed and the prosecution has been given greater scope to adduce such evidence under the seven gateways of section 101. 

‘Bad character’ is broadly defined under section 98,

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 clearly encompasses prior conduct which goes beyond convictions or cautions for criminal offences. It would include responsibility for crimes for which the accused has not been charged or prosecuted, or for actions which are not offences but people would regard as reprehensible.

Bad Character as an Element of the Offence

Under section 98(a), the prosecution can adduce evidence that ‘has to do with the alleged facts of the offence.’ Bad character, in the shape of a previous conviction, can be an element of another offence. In such circumstances, this conviction can be proved. Obvious examples are the offence of driving while disqualified under s.103 Road Traffic Act 1988 or that of possessing firearms being a person sentenced to three years or more imprisonment contrary to s.21 Firearms Act 1968.

It may be the conviction of another person that needs to be proved – when the charge is, for example, acting as a secondary party to a crime committed by a principal. The commission of the offence by a third person, normally prohibited by the provisions of section 100, has to be proved. The defence may also have reason to bring up the prior conviction, for example in pleas of autrefois convict.

The Seven Gateways

Bad character evidence is inadmissible unless it can be brought within one of the seven gateways of section 101

 (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 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.

 Where the prosecution wish to rely on an accused’s bad character, their first task is to satisfy the court that one of these gateways has been satisfied. The issue arises as to way in which the evidence may be put, once it has been admitted in evidence. For example, the evidence may be admitted to rebut evidence of the accused’s good character under (f) or because there has been an attack on a prosecution witness under (g). In both cases, it might be argued that the prior bad character should only be used to cast doubt on the credibility of the defendant and not as evidence of propensity, namely that he committed the crime. The Court of Appeal has held, however, that the use to which the evidence could be put depended upon the matters to which it was relevant rather than upon the gateway through which it was admitted. In Highton the accused attacked the prosecution witnesses, accusing them of fabricating the story of kidnapping and robbery. Under (g) the accused’s prior convictions for robbery and theft were introduced. These were clearly relevant to propensity and the judge invited the jury to consider this. Lord Woolf CJ upheld the conviction,

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

Once the evidence is in front of the jury, it may be used as proof of any matter to which it is relevant regardless of the gateway by which it was admitted. If the evidence is being used unfairly, then there may be an application to exclude it under section 101(3) or under section 78 of the Police and Criminal Evidence Act 1984.

Gateway 1: all parties to the proceedings agree to the evidence being admissible

This requires no further explanation.

Gateway 2: the evidence is adduced by the defendant himself

Although it seems unlikely that the defendant would wish to allude to previous convictions, there may be good tactical reason. For example, the prior record might provide some supporting evidence to the defence story (‘I was on probation so I wasn’t likely to have done this…’) or the charge relates to one category of offence (sexual assault, for example) and the defendant wishes to demonstrate to the jury that they have no prior convictions for such acts. In such cases it might be necessary to admit to other offences in a different category. This would come under section 101(1)(b)

Gateway 3: important explanatory evidence 

This has been discussed in relation to the cross examination of witnesses and the limits that  section 100 imposes on the questioning of witnesses about any prior disreputable conduct which might affect the jury’s assessment of the witness’s credibility. Sections 100(1)(a) and 101(1)(c) both allow prosecution or defence to introduce essentially background evidence which has no immediate relevance to any fact in issue but without which the trier of fact would be left in the dark Often this is uncontentious but such background evidence may well reveal the disclosure of prior criminal actions by the accused.

In Sidhu the defendant was charged with a conspiracy to possess explosives. Following an undercover police investigation, the appellant and his two co-defendants were arrested in connection with a suspected plot to further the cause of setting up an independent Sikh state, Khalistan, in India. In pursuit of that objective the appellant had attended the house of his co-defendants where they had taken Semtex explosive, which had been supplied to them by an undercover police officer. During the course of interviews with the police, the appellant refused to account for his presence at the house and maintained that he was a law- abiding citizen. He denied any involvement with a terrorist organisation. He did not give evidence.  The disputed evidence admitted by the trial judge involved a video recording, made in Pakistan, of him as one of a group of heavily armed people practising the use of various weapons and singing in support of the Khalistan Liberation Force. The Court of Appeal held that, the recording was not admissible to rebut his statement that he was a law-abiding citizen and was not involved with a terrorist organisation. But the appellant's association with those preparing to advance the cause of Khalistan by violent means was plainly relevant.

This decision supports the Pettman principle which states that evidence is admissible, even where it indicates prior disreputable conduct by the accused, ‘where it is necessary to place before the jury evidence of part of a continual background or 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.’ This was applied in Sawoniuk, a war crimes case where expert evidence of Nazi policy towards the Jews was admitted.  

…we incline to the view that the admission of this evidence could be upheld on a broader basis. Criminal charges cannot be fairly judged in a factual vacuum. In order to make a rational assessment of evidence directly relating to a charge it may often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences are said to have been committed. This, as we understand, is the approach indicated by this court …

Section 101(1)(c) puts the common law on a statutory footing. In Campbellthe defendant was convicted of kidnapping and murdering his 15 year old niece. The prosecution advanced evidence of the accused’s Internet activity involving access to teenage sex sites and downloading of material from those sites as well of his attempts to photograph other teenage girls. The Court of Appeal held that, without this evidence, the jury would have been left with an incomplete and distorted account of the relationship between the appellant and the victim.

These common law principles are encompassed in section 102 which provides a definition of ‘important explanatory evidence’

s.102 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.

Gateway 4: relevant to an important matter in issue between the defendant and the prosecution


The key gateway will be section 101(1)(d) admitting bad character evidence where, ‘it is relevant to an important matter in issue between the defendant and the prosecution.’ There is one restriction under subsection (3) 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.

There are three stages to consider when proposing adducing bad character evidence as proof of a crime:

  1. To what issue that the court needs to decide is this evidence relevant?
  2. Does it have sufficient probative force to make it just to admit it?
  3. Would the admission of such evidence make the proceedings unfair whether as a result of prejudice or for any other reason?

These issues have been debated by the common law and the area has been generally known as ‘similar fact’ evidence. Although the common law rules on bad character have been abolished by section 99, the jurisprudence will inevitably affect the interpretation of section 100.

  1. To what issue that the court needs to decide is this evidence relevant?

An important preliminary step is to identify the ‘matters in issue between the defendant and prosecution’ to which the bad character evidence is relevant. These matters encompass the facts in issue revealed in the offence charged – whether the accused did the act with the necessary mental element and whether any defence applied? The common law always, albeit reluctantly, recognised that the defendant’s prior convictions or other bad conduct could be relevant to and probative of such matters. The basic approach was shown in Makin The classic example of this is Makin v Attorney-General for New South Wales in which the defendants were tried for the murder of a baby. The couple had accepted a child from its mother, alleging that they would adopt and care for it on payment of a small sum of money. A baby's body was found buried in the garden and the accused were charged with the murder. The prosecution sought to adduce evidence from other mothers that the couple had received their children on the same basis. They also were allowed to show that thirteen other such bodies had been found in gardens of three other houses occupied by the defendants. The evidence showed that the Makins had probably committed murders other than the one with which they were charged. The relevance of such evidence was that it tended to rebut any defence of accident or natural causes. Lord Herschell delivered the judgment of the Privy Council,

In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. 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 indictment 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 commission 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 have been otherwise open to the accused. 

Makin establishes the general rule is that evidence of the accused's disposition is normally inadmissible: in Brown, the defendants were charged with shopbreaking and the prosecution sought to show that one of the accused had broken into another shop five days previously, during the lunch hour and using a skeleton key. All of these were characteristics of the alleged offence but the evidence was excluded. Simply being a shopbreaker is not evidence of committing the particular offence with which they were charged. But it qualifies the general rule by accepting that evidence of the commission of crimes other than the one charged can be admissible if it is probative with regard to an issue in this particular case. In other words, it has a purpose other than persuading the jury that the defendant is a disreputable character, namely it shows that the defendant did the act or omission charged with the requisite mental element or that it rebutted a possible defence. Section 101 reflects this. What are such issues?

  1. a fundamental fact in issue is to demonstrate to the satisfaction of the jury that the accused was responsible for the act charged. Prior convictions can have such probative value where they show a particular modus operandi or abnormal propensity as in Straffen where the accused had been committed to Broadmoor after being found unfit to plead to a charge of manually strangling two small girls. He escaped and was at large for 4 hours. During that time, another young girl, Linda Bowyer, was strangled. The defendant admitted being in the neighbourhood and that he had seen her. On trial for the third killing, evidence of the other murders was admitted.

Abnormal propensity is a means of identification...It is an abnormal propensity to strangle young girls and to do so without any apparent motive, without any attempt at sexual interference, and to leave their bodies where they can be seen and where, presumably, their deaths would be detected. In the judgment of the court, that evidence was admissible because it tended to identify the person who murdered Linda Bowyer with the person who confessed in his statements to having murdered the other two girls a year before, in exactly similar circumstances

Another issue may be that of identity – that it was the accused who committed the crime, for example, by showing the accused to be a member of a particular class or group. In Thompson  the defendant was accused of gross indecency with two boys. He did not deny that the offences had taken place but denied that he was the person involved. However the offender, whoever he was, had made a second rendezvous with the boys and they had taken the police to the place. On that occasion, the defendant met the boys and gave them money. He was arrested without any further offence taking place. The prosecution were allowed to use evidence that the accused had two powder puffs on him on arrest and that he had indecent photographs of boys in his flat. The House of Lords upheld the conviction on the basis that the accused's sexuality could be seen as confirming the boys' identification of him as the offender.

  1. another fundamental fact in issue is to demonstrate to the satisfaction of the jury that the accused possessed the necessary mental element for the crime. Prior convictions can have considerable relevance where, for example, the defence is that of accident or lack of intent. Evidence of previous similar acts would rebut a defence of accident as in Smith. In 1915 the defendant was tried for the murder in July 1912 of Beatrice Mundy by drowning her in the bath.  He had been through a bigamous form of marriage with her in 1910 and she believed herself to be his wife. After her death, Smith 'married' Alice Burnham in November 1913. She died in the same manner in December that year. On December 17th 1914, he 'married' Margaret Lofty - she died, also in her bath, on December 18th! Although only charged with one murder, the prosecution were allowed to advance evidence that the second and third 'wives' had died in identical circumstances: all the ‘brides’ were in the bath, had apparently slipped backwards, hit their heads on the taps and died through drowning.  Smith had benefited from all three wills.  Smith's unlucky marital history is clearly relevant to the offence charged because the defence claimed that Beatrice's death was an accident.  The evidence of the fate of Alice and of Margaret made that claim look not just less likely but incredible.

And then comes in the purpose and the only purpose for which you are allowed to consider the evidence as to the other deaths. If you find an accident which benefits a person and you find that the person has been sufficiently fortunate to have that accident happen to him a number of times, benefiting him each time, you draw a very strong, frequently irresistible inference, that the occurrence of so many accidents benefiting him is such a coincidence that it cannot have happened unless it was design. 

  1. the Crown may well need to address subsidiary issues around the circumstances of an offence 'guilty knowledge'. Did the accused 'know' a particular fact or circumstance: were the goods stolen? was the substance an illegal drug? Previous convictions are obviously relevant to the issue of what the accused knew. This is reflected in section 27 of the Theft Act 1968. Where a person is charged with handling stolen goods, evidence of other dishonest handling  is admissible,
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27.- (3) Where a person is being proceeded against for handling stolen goods … the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods:-

a) evidence that he has had in his possession, or has undertaken or assisted in the retention, removal, disposal or realisation of, stolen goods from any theft taking place not earlier than twelve months before the offence charged; and

b) ...evidence that he has within the five years preceding the date of the offence charged been convicted of theft or of ...

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