Bad Character Evidence and Non-Party Witnesses under the Criminal Justice Act 2003
| Author | Gregory Durston |
| DOI | 10.1350/ijep.8.4.233.60207 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 233
BAD CHARACTER EVIDENCE AND NON-PARTY WITNESSES
T
(2004) 8 E&P 233–239
Bad character evidence
and non-party witnesses
under the Criminal Justice
Act 2003
By Gregory Durston
Senior Lecturer, Kingston University
Abstract The current extent to which a non-party witness in criminal
proceedings can be cross-examined about previous ‘bad character’ is both broad
and uncertain in its limits. The Criminal Justice Act 2003 will replace the
common law rules governing this area with a new statutory regime, contained
in s. 100 of the Act. This provision may slightly limit the theoretical extent to
which witnesses can be cross-examined about their past behaviour; however, its
boundaries remain unclear and will need to be elucidated by judicial decision.
he existing common law rules on the admissibility of evidence and cross-
examination relating to a witness’s bad character in England, Wales and
Northern Ireland will be abolished by s. 99(1) of the Criminal Justice Act
2003 and replaced by a new set of rules. These are due to be brought into force in
2005–06. The new statutory scheme will preserve the existing division between
witnesses who are defendants (to be governed by s. 101) and those who are not, who
will be subject to s. 100 (as will third parties who are not witnesses). Under s. 98 of the
2003 Act, ‘bad character’ is succinctly defined as ‘evidence of, or of a disposition
towards, misconduct’. Misconduct is further defined in s. 112 as the commission of
an offence or ‘other reprehensible behaviour’. This article will consider the impact of
the 2003 Act on those witnesses who are not also defendants and thus involves an
analysis of s. 100.
The current position
There are two reasons to adduce the bad character of a witness: first, to suggest that
he should not be believed on oath (i.e. to undermine his credit). Secondly, because it
is directly relevant to a fact in issue at the trial; for example, to suggest that the
alleged victim in an assault case is actually the aggressor, because of his previous
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