imposed by s. 101. Scott Baker LJ made this point manifest in R v
Often the first inquiry is whether it is necessary to go through the ‘bad
character’ gateways at all. In this regard, s. 98 is not to be overlooked. It
excludes from the definition of bad character evidence which ‘has to do
with the alleged facts of the offence’ or evidence ‘of misconduct in connec-
tion with the investigation or prosecution of that offence’. While difficult
questions can arise as to whether evidence of background or motive falls to
be admitted under those exclusions in s. 98 or requires consideration under
s. 101(1)(c), it does not follow that merely because the evidence fails to
come within the s. 101 gateways it will be inadmissible. Where the exclu-
sions in s. 98 are applicable the evidence will be admissible without
Although Part 11 of the Criminal Justice Act 2003 did not eventually
adopt the Law Commission’s precise proposals, in its Final Report the
Commission saw it as axiomatic that ‘a distinction is drawn between
(i) evidence about the events for which the accused is being prosecuted
. . . and (ii) any evidence of bad character which goes outside that
central set of facts. This distinction is central to our scheme’.2This
general axiom—which, one could argue, begs the question whether the
‘central set of facts’ constitutes a universally or readily identifiable
entity—has been retained in s. 98(a).
To plot the boundary between the two species of misconduct—
misconduct that relates to the central set of facts and misconduct that
does not—it may be necessary both to determine what conduct actually
amounts to ‘bad character’ within the meaning of ss. 98 and 1123and to
ascertain exactly what the decidedly uncertain phrase, ‘evidence which
has to do with the alleged facts of the offence with which the defendant
is charged’, is intended to mean. The latter issue alone will concern us
here. The courts have now had to wrestle with this expression in several
different contexts. On more than one occasion they have given it a
surprisingly wide interpretation, not even demurring when in one
instance both counsel likened evidence admissible under s. 98(a) loosely
to the concept of res gestae.4The time may be ripe to meditate on what
misconduct justifiably ‘has to do with the alleged facts of the offence
with which the defendant is charged’.
One can readily see the sort of paradigm case that the expression
‘evidence which has to do with the alleged facts of the offence with
which the defendant is charged’ was meant to cover. Misconduct tightly
bound up with the commission of the principal offence was obviously
ought to have read, ‘the evidence may be admissible without more ado'. See also
Cross & Tapper on Evidence, 11th edn (Oxford University Press: Oxford, 2007) 428.
2 Law Commission, Evidence of Bad Character in Criminal Proceedings, Law Com. Report
273 (2001) para. 7.4.
3 This question was considered in R. Munday, ‘What Constitutes ‘Other
Reprehensible Behaviour’ under the Bad Character Provisions of the Criminal
Justice Act 2003?’  Crim LR 24.
, per Sir Christopher Holland.
Misconduct that ‘Has to Do with the Alleged Facts of the Offence . . .’