Criminal Evidence

Under s 101 of the Criminal Justice Act 2003 (CJA 2003), evidence of propensity should not readily slide in under the guise of “important background evidence”. Evidence which is admitted under gateway (c) should not readily be used, once admitted, for a purpose, such as propensity, for which additional safeguards or different tests have first to be met.

There must be a danger in admitting evidence merely as “explanatory”, however important, if the use to which it is really intended to put it is as evidence of propensity, where the statutory tests and safeguards are different. The statutory test for gateway (c) should therefore be applied cautiously where it is argued to overlap with propensity.

Alternatively, PACE, s 78 might well require such evidence to be excluded where it really amounts to evidence of propensity which would not be admitted as such.