Mental Gymnastics and Intellectual Acrobatics: The Meanings of Statutory and Common Law ‘Bad Character’

Abstract

Historically the common law allowed the prosecution to prove the defendant's guilt by adducing not only factual evidence, but also evidence of his bad character. The latter could take the form of evidence that the defendant had done the same thing on previous occasions as he was charged with today. This was known as similar fact evidence (SFE). Under the Criminal Justice Act 2003 the common law rules as to the admissibility of evidence of bad character were abolished and replaced with a statutory scheme which is capable of being used to admit some, but by no means all, of what was SFE at common law. This article considers alternative meanings of the two-word phrase ‘bad character’; whether SFE which is not admissible under the Act is nevertheless admissible at common law; the relationship between the statutory scheme and the common law; and crucially, the jury direction at common law.