Criminal Evidence

Once evidence of a defendant’s bad character is found to be admissible pursuant to CJA 2003,  s 101(1)(e), that section does not confer any power on the court to exclude that evidence on the grounds of unfairness.

Admissibility under that sub-section depends solely on the court’s assessment of the quality of the evidence. However, the rules made under s 111, in relation to bad character evidence do confer power on the court to exclude such evidence in circumstances where there has been a breach of a prescribed requirement. Cases in which a breach of the procedural rules will entitle a court to exclude evidence of substantial probative value will be rare.

A court should be most reluctant to exclude evidence of that quality by reason of a breach of the procedural code; nonetheless, there will be cases where the only way in which the court can ensure fairness is by excluding evidence, even when it reaches the quality described in s 101(1)(e).