The Accused’s Extraneous ‘Bad Character’

Abstract This chapter is concerned with evidence of the accused’s extraneous misconduct, a topic previously known as ‘similar fact evidence’ at common law, but better described as ‘bad character’ evidence coherently with the legislative framework established by the Criminal Justice Act 2003, ss.98–113. Evidence is extraneous when it does not directly concern disputed primary facts. Extraneous bad character evidence is traditionally regarded as unfairly ‘prejudicial’, and presumptively inadmissible at common law especially when inviting propensity-based inferences of guilt. Conceptual analysis clarifies the meaning of ‘prejudice’, which may entail moral disrepute and/or defective reasoning, and relates it to the normative value-structure of criminal adjudication. Elaborated theoretical rationales for excluding bad character evidence are critically reviewed. The statutory framework of the CJA 2003’s bad character provisions is sketched, highlighting issues of definitional scope, range of application, and general procedural requirements. Each of section 101’s seven admissibility ‘gateways’ is then explored in detail, incorporating extensive discussion of recent case-law applications, and points of comparison with the pre-Act common law position. The four prosecution gateways admit: important explanatory evidence (c); fairly relevant bad character (encompassing propensity inferences) (d); evidence to correct a false impression (including misleading assertions of good character) (f); and tit-for-tat retaliation to an imputation attacking another person’s character (g). Gateway (e) regulates bad character in issue between co-accused. The operation of particular statutory provisions, as elucidated in a burgeoning Interpretational jurisprudence, is critically evaluated in light of legislative objectives and litigation practice. Overall appraisal of these provisions’ operation to-date is complicated by endless variation in factual circumstances, appellate court deference to contextual fact-specific judicial rulings at first instance, and the dearth of reliable empirical data describing current trial practice (imperfectly mirrored in criminal appeals).