What is bad character evidence under Section 98 of the CJA?

During criminal proceedings, the prosecution may attempt to admit ‘bad character evidence’ to support their case. If it is admitted, bad character evidence can potentially have a major impact on a criminal trial.

We discuss what bad character evidence actually is and how it may be used in the following article.

Please note that the following article is for informational purposes and should not be taken as legal advice. If you need legal support with a criminal trial and the prospect of bad character evidence being used against you, then please get in touch and our team can advise you.

What is bad character evidence?

The admissibility of bad character evidence in court proceedings is defined in Section 98 of the Criminal Justice Act (CJA) 2003:

“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 –

1. Has to do with the alleged facts of the offence with which the defendant is charged, or
2. Is evidence of misconduct in connection with the investigation or prosecution of that offence”

‘Misconduct’ is defined in Section 112 of the CJA as: “the commission of an offence or of other reprehensible behaviour”

In Layman’s terms, bad character evidence is anything that would call someone’s character into question during a criminal trial, but which is not directly related to the facts of the offence or the corresponding proceedings.

What are some examples of bad character evidence?

There are a wide range of potential examples of bad character evidence. Exactly what could be used by the prosecution will vary depending on the circumstances, but typical examples, include:

• Previous convictions
• Previous cautions
• Non-cooperation with the police
• Behaviour that reflects negatively on the defendant

Rap or drill lyrics are one particularly contentious example of bad character evidence that has often been used in criminal trials. Between 2020 and 2023, more than 70 criminal trials utilised rap evidence, including lyrics, music videos, and audio recordings, to support police and prosecutors' cases.

The use of rap and drill lyrics has come under significant scrutiny. There is an understandable concern that using drill music as bad character evidence would diminish its place as a form of artistic expression, particularly as many other genres of music use similarly violent language and imagery.

What are the bad character gateways?

Section 101 of the CJA notes that evidence of the defendant’s bad character is admissible if, but only if:

1. All parties to the proceedings agree to the evidence being admissible
2. 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
3. It is important explanatory evidence
4. It is relevant to an important matter in issue between the defendant and the prosecution
5. It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
6. It is evidence to correct a false impression given by the defendant; or
7. The defendant has made an attack on another person’s character.

If the relevant piece of bad character evidence can pass through one or more of these gateways, then it will be admissible in court. That said, the court will still have the discretion to exclude the evidence even if it passes through one of the gateways.

Are you facing a criminal trial?

We understand that the prospect of facing a criminal trial where bad character evidence may be used against you can be extremely distressing. Regardless of your circumstances, it is important that you raise the most robust legal defence possible.

Our criminal defence solicitors have over 45 years of experience in representing individuals accused of a wide range of charges. Our experience, along with our notable expertise, means that we are in the best possible position to offer you a strong legal defence, working with you to have your charges dismissed at an early stage of the proceedings or if conviction is unavoidable, to ensure that you receive the lowest possible sentence.

We are highly skilled at handling and presenting the various types of evidence which are relied on by the prosecution during criminal trials, including anything which is put forward as evidence of bad character. Our experience ensures that we are able to identify any flaws in the use of bad character evidence, as well as highlight any contrasting evidence which supports your position.

We are accredited by the Law Society for Criminal Litigation, and our previous experience means that we are able to clearly demonstrate a strong track record of success that has led us to establish strong relationships with many of the country’s leading criminal defence barristers.

If you are facing a criminal charge and believe you will be subject to bad character evidence from the prosecution, we are here to provide you with the support you need.

Related matters:

• Types of evidence used in law
• Police powers to search phone and social media accounts
• Rap on Trial: Lyrics as Evidence in UK Courts

Fees and funding

Our team will always be open and honest when it comes to legal fees.

If you need to attend court in relation to criminal charges, you may be eligible for Legal Aid Whether you can access Legal Aid will depend on whether the grant of public funding is justified on a means and interest of justice basis.

Where you do not qualify for Legal Aid, the alternative will be to fund the case on a private basis.          

To find out more about the way we handle fees (both Legal Aid and private fees) please use the links provided below:

• Our Fees – Crime Cases
• Do I Qualify for Criminal Legal Aid?
• Bespoke Crime Private Fee Service
• Will Your Private Legal Costs Increase?

Contact our criminal defence lawyers today

If you are due to attend the police station, require any urgent specialist advice, or immediate representation, please do not hesitate to get in touch.

You can contact our dedicated criminal defence lawyers in London, Birmingham, and Manchester by telephone on:

• Brent & Camden London Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333
• City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you quickly.

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