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ROSETTA, LEGAL
COLLEGE OF LAW
CHRISTLETON HALL CHRISTLETON
CHESHIRE, GBR CH3 7AB

Source: Blackstone's Criminal Practice 2007

Project ID: None

Blackstone's Criminal Practice 2007/Part F Evidence/Section F12 Character Evidence: Evidence of Bad Character of
Accused/Criminal Justice Act 2003: Evidence of bad character otherwise than as direct proof of guilt/'Attack on
Another Person's Character'

'Attack on Another Person's Character'

F12.33

For updates to this paragraph see Monthly Updates F12.33.

The CJA 2003, s. 101(1)(g), permits the prosecution to adduce evidence of bad character to counter an attack on another
person. Section 101(1)(g) is supplemented by s. 106, which details the circumstances in which such an attack occurs.
An accused may apply to exclude evidence the admission of which under s. 101(1)(g) would have an unfair effect on
the fairness of the proceedings (s. 101(3)).

Criminal Justice Act 2003, s. 106

(1) For the purposes of section 101(1)(g) a defendant makes an attack on another person's character if--

(a) he adduces evidence attacking the other person's character,

(b) he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal
Evidence Act 1999 to cross-examine a witness in his interests) asks questions in cross-examination that
are intended to elicit such evidence, or are likely to do so, or
(c) evidence is given of an imputation about the other person made by the defendant--

(i) on being questioned under caution, before charge,

about the offence with which he is charged, or
(ii) on being charged with the offence or officially
informed that he might be prosecuted for it.

(2) In subsection (1) 'evidence attacking the other person's character' means evidence to the effect that the other
person--
 (a) has committed an offence (whether a different offence from the one with which the defendant is
charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way; and 'imputation about the other
person' means an assertion to that effect.

(3) Only prosecution evidence is admissible under section 101(1)(g).

F12.34

'Attack'

The CJA 2003, s. 106, uses the word 'imputation', which had specific connotations under the Criminal Evidence Act
1898, s. 1(3)(ii). In the context of the CJA 2003, however, the term is more precisely defined. The accused must either
adduce evidence or he (or his representative appointed to cross-examine a witness whom the accused may not cross-
examine in person) must ask a question, the effect of which is to suggest that another person has committed an offence
or is otherwise of bad character within the meaning of the CJA 2003, s. 98. Thus the old law about what constitutes an
imputation is of peripheral relevance, though it might assist as to what is 'reprehensible' behaviour or disposition.
Questions asked of the accused on behalf of the prosecution do not trigger the provision (cf. Jones (1909) 3 Cr App R
67), although it appears, paradoxically perhaps, that questioning at interview may have this effect (s. 106(1)(c)).
Perhaps the authorities under the 1898 Act might be brought to bear on an accused who has been driven into making an
attack at interview, given that a frightened or blustering suspect might be particularly likely to overstate his case under
interrogation.
Evidence of the bad character of a non-defendant is admissible only with the leave of the court under the CJA 2003, s.
100 (see F14). It follows that an 'attack' for the purposes of s. 101(1)(g) will have been preceded by the granting of such
leave, and therefore the evidence or question must concern a matter that is important explanatory evidence or is of
substantial probative value in relation to an important matter in the case. A gratuitous attack designed merely to blacken
the non-defendant's character in an attempt to secure an unmeritorious acquittal will not pass muster under this
provision -- the 'attack' must be merited. It seems therefore to be unnecessarily punitive to provide that it should (subject
to the discretion of the court under s. 101(3)) be met with apparently unlimited revelations about the accused's own
character, but this appears to be the case. Under the Criminal Evidence Act 1898, a most controversial decision was
Selvey v DPP [1970] AC 304, wherein the imputation made by the accused, if true, showed that the complainant had
invented the allegation. This is clearly an attack, as is the assertion that the other person has committed the offence (also
an imputation at common law, Hudson [1912] 2 KB 464). The position of the Law Commission (Evidence of Bad
Character in Criminal Proceedings, Law Com No. 273, 2001) on whose recommendations s. 101(1)(g) was loosely
based, was that the accused should not lose his shield where the attack consists of evidence of bad character of the other
person that 'has to do with the alleged facts of the offence with which the defendant is charged, or is evidence of
misconduct in connection with the investigation or prosecution of that offence' (Law Commission Draft Bill, cl. 9(2)).
Thus the accused in Selvey and Hudson whose imputations were necessary to the development of their defences would
have been protected from the use of bad character evidence in rebuttal, and the 'attack' (which would still have had to
pass muster under what is now s. 100) would have been more in the nature of an attempt by the accused to discredit the
other person by reference, for example to evidence of previous convictions for dishonesty that are claimed to have a
bearing on credibility. In that case, to permit evidence of the accused's previous convictions for similar offences would
have something to commend it. As it stands, however, s. 101(1)(g) is so widely drawn as to compound all of the
unfairness of the old law as described by the Law Commission Report, and turns on its head the draft clause designed to
rectify the imbalance for the future. It is indicative of the philosophy of the 2003 Act that an accused who has the
temerity to suggest that another person committed the offence with which he is charged should face the revelation of his
bad character unless he can persuade a court that this would be unfair. Where the convictions have more apparent
bearing on the issue of commission of the offence than on veracity, the accused would appear to be at particular risk of
prejudice.
As with s. 101(1)(f) (see F12.31), the attack may be made in an out-of-court statement, including an interview in which
the accused casts an imputation (s. 106(1)(c)). Again there is no requirement that the evidence of the attack is adduced
by the defence, thus in one of the appeals heard with Renda [2006] 2 All ER 553 (that of Ball), B was charged with rape
and in the course of interview referred to the complainant as 'a slag', criticising her promiscuity in 'very disparaging
terms'. His defence at trial was that she was lying and perhaps motivated by a wish for vengeance for past slights. The
trial judge's decision to admit evidence of B's bad character on the strength of the specific slights in the interview which
had been adduced as part of the prosecution case was supported by the Court of Appeal as a proper exercise of his
discretion. Section 106, unlike s. 105 (which supplements s. 101(1)(f)), does not contain a provision permitting the
accused to disassociate himself from the imputation. However, the court's discretion to disallow the admission of
evidence of bad character could be invoked where the defence does not seek to maintain the attack.

F12.35

'On Another Person's Character'

Section 101(1)(g) of the CJA 2003, together with the supplementary provision of s. 106, appears to contemplate an
attack on a specific person. It would not therefore be sufficient, where a crime has clearly been committed by someone,
for the accused to say that he has not done it and to lay the blame on some unknown individual. Where a specific attack
is made, however, it does not matter that the person attacked is not a witness in the case. Thus the problems that arose
under the Criminal Evidence Act 1898, s. 1(3), which had to be amended in order to include imputations against the
deceased in a homicide case, do not arise in relation to the CJA 2003: an attack on any victim may trigger s. 101(1)(g),
as may an attack on any other non-witness. Nor is it necessary, for the same reason, to consider whether a person whose
hearsay statement is before the court and who is the subject of an attack by the defence is a 'witness': whether he is or
not, the attack still triggers the provision (cf. Miller [1997] 2 Cr App R 178).

F12.36

Where the Accused Does Not Testify

Under the Criminal Evidence Act 1898, s. 1(3), the accused who made an attack could resist the introduction of his own
bad character in retaliation because he was not putting his own character in issue, merely that of the witness. It followed
that his bad character was admissible only where specifically permitted by the 1898 Act, i.e. where he gave evidence
(see Butterwasser [1948] 1 KB 4). Under the CJA 2003, however, the accused's bad character may be deployed against
him whether he gives evidence or not. This reform was part of the package recommended by the Law Commission, and
it is submitted that it is sound in principle. Where the jury have to decide between competing versions of events, the
argument that they need to know the character of the person making the attack is as strong where the accused testifies as
where he declines to do so.

F12.37

Discretion

Under the CEA 1898, the courts were reluctant to exercise their discretion to exclude evidence of the accused's bad
character when he had infringed s. 1(3)(ii) by casting imputations -- even necessary imputations -- on the character of
prosecution witnesses (see, for example, Selvey v DPP [1970] AC 304, Burke (1985) 82 Cr App R 156 and Powell
[1985] 1 WLR 1364). If the court adopts the same restrictive approach under the CJA 2003, s. 101(1)(g), the result will
be that evidence of bad character will become far more widely admissible, and it has been argued above that the
discretion ought to be deployed more frequently to combat the greater risk of prejudice to individual defendants, where
the revelation of bad character would be out of all proportion to the damage done by the attack on the character of
another. Previous authorities which might remain of particular assistance include those applicable to the level of detail
that it is legitimate to include about earlier offences when the prime purpose of the evidence adduced by the prosecution
is to undermine the credibility of the attack made by the defendant (see McLeod [1994] 1 WLR 1500).
---- End of Request ----
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