Correct on the date of publication - 16 February 2026
Question:
Is the practice of ‘similar facts’ evidence continued to be used and under what circumstances is bad character evidence admissible in court?
Answer:
Similar facts evidence is an expression that refers to facts which have occurred in one incident, and which may be used as evidence against a defendant in a case based on a different, but similar, incident. Such evidence often involves a defendant's previous misconduct which in normal circumstances cannot be put before a court (during a trial) and before it is allowed the issues are considered with great care.
The basic principle is that the importance of the facts must be sufficiently weighty so that they exceed the prejudicial effect they may have on the defendant's case.
The Criminal Justice Act 2003 (CJA) reformed the existing common law rules regarding admissibility of ‘similar facts’ evidence and abolished the common law rules governing the admissibility of evidence of bad character in criminal proceedings. The key provisions are sections 98 to 103 of the CJA.
Section 98 of the CJA defines the sort of evidence whose admissibility is to be determined under the statutory scheme relating to evidence of 'bad character', which is evidence of, or of a disposition towards, misconduct (defined in section 112 as the 'commission of an offence or other reprehensible behaviour') on their part. Section 101 of the CJA provides that evidence of a defendant's bad character is admissible in specific circumstances.
The gateways in which 'bad character' evidence relating to a defendant is admissible in proceedings are:
- all parties to the proceedings agree to the evidence being admissible;
- 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;
- it is important explanatory evidence;
- it is relevant to an important matter in issue between the defendant and the prosecution,
- it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,
- it is evidence to correct a false impression given by the defendant; or
- the defendant has made an attack on another person's character.
Sections 102 to 106 contain provision supplementing the gateways to admissibility.
Rule 21 of the Criminal Procedure Rules 2025 gives information on bad character evidence and how it may be introduced. A prosecutor or co-defendant who wants to introduce evidence of a defendant’s bad character must serve a notice on the court officer and each other party. A defendant who wants to introduce evidence of his or her own bad character must give notice, in writing or orally, and in the Crown Court, at the time give notice of any direction the defendant wants the judge to give the jury about the defendant’s character.
The police and prosecutors have a joint responsibility to consider bad character in every case but the question of admissibility of the bad character evidence lies with the court.
Case law guidance:
R v Hanson (2005) three unrelated cases were considered by the Court of Appeal when guidance (which was not to be taken as comprehensive) was given relating to the bad character provisions of the Criminal Justice Act 2003. The court issued statements relevant to several of the aspects.
R v Blake (2006) held that previous convictions did seek to show a propensity on the part of B to commit likened offences to that of which he was accused. It had been clearly relevant for the jury to consider the previous convictions when considering the identification issue because that was the clear intention of Parliament when enacting the legislation referred to in this case.
R v Assani (2008) provides guidance on submitting evidence under gateways (e), (f) or (g). The judge had regarded that the character evidence submitted had not created a false impression and even if it had the admission of the evidence relating to a historical incident would not have been capable of correcting it with any probative value as required under section 105(1)(b) of the 2003 Act.
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