Bad Character Evidence and Reprehensible Behaviour
| Date | 01 April 2008 |
| DOI | 10.1350/ijep.2008.12.2.116 |
| Published date | 01 April 2008 |
| Author | James Goudkamp |
| Subject Matter | Article |
BAD CHARACTER EVIDENCE AND REPREHENSIBLE BEHAVIOUR
Bad character evidence
and reprehensible
behaviour
By James Goudkamp*
Visiting Fellow, Faculty of Law, University of Wollongong
Abstract The Criminal Justice Act 2003 ushered in a new system for determining
the admissibility of bad character evidence in criminal proceedings. Unfortu-
nately, this system is riddled with anomalies and plagued by obscurity. These
problems contaminate its core as it is unclear what constitutes ‘bad character’
evidence. This uncertainty is in large part due to the fact that the Act offers little
clue as to the meaning of the words ‘reprehensible behaviour’, evidence of
which is ‘bad character’ evidence. Accordingly, this article asks whether the
decisions in which the expression ‘reprehensible behaviour’ has fallen for
consideration shed light on its content. It is concluded that the authorities offer
scant guidance and have introduced several difficulties.
Keywords Bad character evidence; Reprehensible behaviour; Criminal Justice
Act 2003
ne of the objectives of the new regime governing the admissibility of
bad character evidence provided for by the Criminal Justice Act
20031(‘the Act’) was to replace the complex pre-existing law on the
DOI:1350/ijep.2008.12.2.291
116 (2008) 12 E&P 116–140 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
O
1 The new regime is housed in Pt 11 Chap. 1. See generally Colin Tapper, ‘Criminal Justice Act 2003:
Evidence of Bad Character’ [2006] Crim LR 533.
* Email: james.goudkamp@magd.ox.ac.uk.
The author is grateful to Professor Colin Tapper and Professor Paul Roberts for their helpful
suggestions on drafts of this article. He has also had the benefit of many lengthy discussions about
this area of law with Mr Scott Robertson.
subject2with a set of clear and coherent rules. Regrettably, this goal has not, for
the most part, been realised. As is so often the case with legislative ‘reforms’,3the
new framework is regressive in several respects.4Key aspects of it are bedevilled by
obscurity and it has consequently acquired a thick encrustation of case law
despite being in its infancy.5One of the more contentious features of the
framework is the meaning of the expression ‘reprehensible behaviour’, evidence
of which is ‘bad character’ evidence. The use of that expression has been
trenchantly criticised by several commentators on the grounds that its meaning is
intolerably unclear.6
This article surveys the decisions in which the words ‘reprehensible behaviour’
have fallen for consideration. It will be argued that these decisions provide scant
guidance as to the precise contours of this pivotal concept. In the course of this
argument two worrying features of the case law will be exposed. First, that the
effect of evidence falling within or outside the scope of the expression ‘repre-
hensible behaviour’ is widely misunderstood. Secondly, that there is a tendency
on the part of judges to bypass the preliminary issue of whether the evidence in
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 117
BAD CHARACTER EVIDENCE AND REPREHENSIBLE BEHAVIOUR
2 The Law Commission described the earlier law as (Law Commission, Evidence of Bad Character in
Criminal Proceedings, Law Com. Report No. 273, Cm 5257 (2002) para. 1.7):
a haphazard mixture of statute and common law rules which produce[d] inconsistent and
unpredictable results, in crucial respects distort[ed] the trial process, ma[d]e tactical consider-
ations paramount and inhibit[ed] the defence in presenting its true case to the fact-finders
whilst often exposing witnesses to gratuitous and humiliating exposure of long forgotten
misconduct.
Similarly, Sir Robin Auld, in his Review of the Criminal Courts of England and Wales (2001) at ch. 11,
para. 113, remarked that ‘the law in this area is highly unsatisfactory in its complexity and
uncertainty’.
3 For a useful discussion of the notion of reform see Peter Cane, ‘Reforming Tort Law in Australia: A
Personal Perspective’ (2003) 27 Melbourne University Law Review 649 at 650–1.
4 See Johan Steyn, ‘Dynamic Interpretation Amidst an Orgy of Statutes’ [2004] 9 European Human
Rights Law Review 245 for a scathing indictment of recent attempts to ‘reform’ the criminal justice
system. Lord Steyn described these attempts as (at 246):
based on half-baked ideas[,] … adopted in haste, published with minimal consultation, and
puffed up to be the ideal solution for solving problems of crime but then abandoned very soon
after and replaced by yet another solution said to be the perfect one.
5 For an overview of some of this case law see Adrian Waterman and Tina Dempster, ‘Bad Character:
Feeling Our Way One Year On’ [2006] Crim LR 614.
6 See especially Roderick Munday, ‘What Constitutes “Other Reprehensible Behaviour” under the
Bad Character Provisions of the Criminal Justice Act 2003?’ [2005] Crim LR 24. See also Gregory
Durston, ‘Bad Character Evidence and Non-Party Witnesses under the Criminal Justice Act 2003’
(2004) 8 E & P 233 at 235; RvRenda (2006) 70 JCL 300 at 306; RvWeir (2006) 70 JCL 307 at 314;
A. J. Roberts, ‘Criminal Justice Act 2003 Part II—Bad Character Provisions’ [2006] Crim LR 433;
Waterman and Dempster, above n. 5 at 616–17; A. J.Roberts, ‘Whether Evidence of Oral Aggression
Admissible’ [2007] Crim LR 712.
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