Non-defendant bad character and s. 100 of the Criminal Justice Act 2003: A socio-legal analysis of admissibility gateways and trial tactics
| Author | Matt Thomason |
| DOI | http://doi.org/10.1177/13657127221140459 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
| Subject Matter | Articles |
Non-defendant bad character and
s. 100 of the Criminal Justice Act
2003: A socio-legal analysis of
admissibility gateways and
trial tactics
Matt Thomason
University of Nottingham School of Law, Nottingham, UK
Abstract
This article presents a socio-legal analysis of the use of non-defendant bad character evidence
in Crown Court criminal trials in England. Combining an in-depth doctrinal analysis of s. 100 of
the Criminal Justice Act 2003 with original qualitative empirical methods (interviews with trial
counsel and observations of real Crown Court trials), the article explores the real-life practical
operation of this rule of exclusion and its associated inclusionary exceptions, and the role that
non-defendant bad character can have on trial tactics of counsel. In doing so, it argues that
illogical Court of Appeal decisions on the use of bad character for credibility purposes are
causing confusion in practice, that the ‘tit-for-tat’gateway for defendant bad character is a
more significant hurdle than s. 100 itself, and that counsel often eschew bad character applica-
tions for fear of alienating the jury.
Keywords
bad character, Criminal Justice Act 2003, propensity, credibility, trial tactics
Introduction
In England and Wales, the rules which regulate the admissibility of bad character (BC) are found in
ss. 98–113 of the Criminal Justice Act (CJA) 2003. Defendant BC is admissible if it satisfies any of
the ‘gateways’within s. 101, while the gateways for non-defendant BC are found in s. 100. The BC
reforms contained within the CJA 2003 were a significant departure from the prior common law approach
and were not initially popular amongst legal commentators. Tapper (2004) argues that although one aim
of the reforms was simplification of the law, the provisions in the CJA 2003 are anything but simple.
Corresponding author:
Matt Thomason, University of Nottingham School of Law, Nottingham, UK.
E-mail: matt.thomason@nottingham.ac.uk
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(1) 26–50
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/13657127221140459
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Moreover, the inclusion of non-defendant BC evidence ultimately diluted the principles behind, and over-
riding objective of, the reforms, which were primarily focused on defendant BC. Further attacks con-
cerned the nebulous term ‘reprehensible behaviour’, evidence of which is considered BC for the
purposes of the CJA 2003 (Goudkamp, 2008; Munday 2005a; Waterman and Dempster, 2006).
Not all responses were hostile. Spencer (2006) and McEwan (2002) were members of a minority who
were largely in favour of the reforms immediately after they were enacted. Once the BC provisions had
time to develop through case law, Roberts (2022: 746 −751) concludes that much of the immediate
response from the legal community was a little harsh (although criticisms of complexity were well-
founded). Similarly, Redmayne (2015) argues that when one assesses the CJA 2003 on its own
merits, it is a vast improvement over the previous common law rules. Although Hunter cautions
against heralding the CJA 2003 as a turning point, arguing that ‘embedded cultural norms and practices
will not be altered by isolated statutory interventions’(2007: 264), Birch (2019) argues that one of the
greatest impacts has been to shift adversarial culture away from using ‘wink and nudge’tactics in the
cross-examination of non-defendants.
Other than Durston (2004a), who thought that s. 100 would have relatively little impact on the ground,
and recently Birch (2019), the academic focus on BC evidence almost exclusively relates to s. 101 and
defendants (Brown and Steventon, 2008; Durston, 2004b; Mirfield, 2009; Munday, 2005b, 2005c,
2005d, 2008; Redmayne, 2015; Tapper, 2004; Waterman and Dempster, 2006). A second gap in the
research literature is the dearth of empirical research to substantiate critics’theoretical and doctrinal con-
cerns with the provisions (Roberts 2022: 750−751). To date, the only published empirical research
project on the BC provisions of the CJA 2003 was undertaken in 2006 (Morgan Harris Burrows LLP,
2009). Court staff at three Crown Courts and three Magistrates Courts were asked to record applications
to adduce BC evidence, and some interviews were conducted with lawyers, court staff and the police.
1
Ultimately, the report focused primarily on defendant BC, with 731 of the 767 applications concerning
s. 101.
The findings related to the remaining 36 applications are of some interest. Of the 36 s. 100 applica-
tions, 26 concerned previous convictions, five concerned reprehensible behaviour and the remaining
data was missing. Gateway s. 100(1)(a) (‘important explanatory value’) was used in 14 of the applica-
tions, s. 101(1)(b) (‘substantial probative value’) was used for 15 applications, whilst three were admitted
following parties’agreement under s. 100(1)(c). It is unfortunately not specified in the report which appli-
cations under which gateway were successful, however it is stated that 15 of the 36 applications were
denied, of which eight were refused due to an ‘adverse effect on fairness’, whilst another four were
excluded due to case management concerns.
2
Very little can be concluded from this very small
dataset, in which court staff had to fit BC evidence and the reasons for admissibility or exclusion into
pre-determined categories which did not use the statutory language. More weight can be given to the
interviews, where confusion was found amongst all criminal justice professionals regarding the woolly
concept of ‘reprehensible behaviour’, so that they did not know when exactly s. 100 (and s. 101) CJA
2003 applied. However, the general tenor of responses was that the BC provisions of the CJA 2003
were an improvement over the previous law and were relatively clear and simple to understand. Due
to the low number of courts involved, and lack of transparency regarding the number of interviewees,
caution must be employed when interpreting the findings (Spen cer, 2016: 1.86−1.88). More positively,
Spencer (2006: 1.89) and Birch (2019: 844 −845) offer anecdotal evidence (conversations with judges
and barristers) that the CJA 2003 has led to a significant change in the way that cross-examination of
witnesses is conducted.
1. The number is not disclosed.
2. For the remaining three applications, the reason for refusal was listed as ‘other’.
Thomason 27
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