Using recent convictions as bad character evidence for historic offences

14 August 2019

Not reviewed after the date of publication

Question:

I am investigating allegations of historic sexual abuse by a young adult on his sister. He has convictions for sexual offences against females but the offences against his sister predate the convictions.

Can I use the convictions as evidence of his bad character, even though they occurred after the time of the alleged abuse I am investigating?

Answer:

Section 101 of the Criminal Justice Act 2003 provides the circumstances when a defendant's bad character evidence is admissible:

'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.'

Based on the information provided gateway (d) is likely to be the relevant one here. Section 103 expands on this by providing further information on the admissibility of evidence of a person's previous convictions in order to show a propensity to commit such crimes:

'103(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include -

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.

103(2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of -

(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.'

We are not aware of any provisions in the legislation that limit bad character evidence to the time prior to the current offence. In our view, bad character evidence can be used whether the conduct took place before or after the offence being prosecuted; as long as the provisions of the legislation are satisfied and the court deems the admission of the evidence to be fair. The case of R v Adenusi 2006 confirms this view. In this case it was held that the timing of the conduct was of no consequence and there was no legal justification for suggesting that in law a propensity at the time of the commission of the offence cannot be shown by reference to offences committed at a later time.

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