Character Evidence may be adduced in two forms:

either as evidence of character per se, or as evidence

to resolve another issue in determination. It is thus
possible to divide it into two categories: first, in which
resolving the character question is not important, and
the second in which character evidence is pertinent for
the disposal of case. The crucial distinction lies in the
relevance of the latter and the irrelevance of the
former as facts presented before the court.

CHARACTER AS
EVIDENCE
EVIDENCE LAW PROJECT WORK

Submitted by –
Riddhi Trivedi (500055633, R154216082)
Shashank Shekhar (500054906, R154216093)
Mridul Yash Dwivedi (500053232, R154216069)

BA., LL.B. (HONS.) WITH SPECIALIZATION IN CRIMINAL /

LABOUR / CONSTITUTIONAL LAWS
BATCH - 2
 TABLE OF CONTENTS
Chapter 01 - INTRODUCTION

Chapter 02 - EXCLUSIONARY PRINCIPLE: THE RATIONALE

Chapter 03 - CHARACTER WHEN ADMISSIBLE AS EVIDENCE

CHAPTER 04 - IDENTIFICATION & DESIGN

CHAPTER 05 - ADMISSIBILITY OF THE CHARACTER EVIDENCE IN CIVIL

SUIT

CHAPTER 06 – ADMISSIBILITY OF THE CHARACTER EVIDENCE IN

CRIMINAL SUIT

CHAPTER 07 – BAR ON PROOF OF PREVIOUS BAD CHARACTER

CHAPTER 08 – GOOD & BAD CHARACTER OF THE ACCUSED

CHAPTER 09 – CONCLUSION

1|Page
 Chapter 01
INTRODUCTION

“The business of the court is to try the case and not the man...”
1
This exposition, made in the case of Thompson v. Church , pertinently addresses the question
of admissibility of character evidence in trials. Though principally true, this question is
nevertheless fraught with complexities that have led most scholars to call it one of the most
controversial areas in the law of evidence.
Under Common Law, ‘character’ has traditionally referred to “...either a person’s reputation,
whether in general or in some particular respect, or his/her disposition to conduct himself in
some way or other”, though evidence is accepted of general reputation only. In 2001, the Law
Commission of UK recommended that ‘bad character’ be defined as behavior of which a
reasonable person might disapprove, thus couching it in objective terms. Being a recent
definition, and a departure from the general Common Law understanding of bad character
(imputation of any faults or vices), this definition has had little impact on Indian law.
Under the Indian Evidence Act, 1872 [“the Act”], sec.52-55 pertain to admissibility of character
evidence. These provisions apply to character evidence of parties. Specifically, s.54 lays down
that bad character in criminal proceedings is generally irrelevant. Further, the Explanation to s.55
includes both reputation and disposition in the definition of character.
Evidence on good character and bad character is treated differently. S.53 of the Act expressly makes
good character of the accused relevant in criminal cases, even though it is generally irrelevant. This is
especially important in order to explain ambiguous conduct, and when a charge rests on sole
testimony. However, when evidence of bad character is adduced, the general rule is

1 Thompson v Church 1 Root 312 (1791)

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that of exclusion, both, under Indian Law and Common Law. This rule is subject to certain
exceptions, developed under Common Law, and also recognized by Indian authorities.
Through the course of this paper, the rationale behind the prevailing rule on character evidence
will be analyzed, followed by the exceptions to those rules. It will be argued that the test of
relevance must be employed to determine admissibility of such evidence. Pertinently, this paper
is limited to the character of the accused, and not the prosecutor.

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 Chapter 02
EXCLUSIONARY PRINCIPLE: THE RATIONALE

Reliance is made on character evidence primarily to estimate the probability of the commission
or non-commission of an act. Different authorities, therefore, attach varying degrees of relevance
to character evidence. For instance, while accounting for bad character has been called a matter
of common sense, it has also been considered inadequate for want of ‘reasonable connection
between principal and evidentiary facts’. Consequently, there are differing reasons behind its
exclusion, relating to both standards of relevance.
The most compelling analysis of the exclusionary principle has been undertaken by Wigmore. He
himself sets two differing standards for criminal and civil cases. Bad character evidence has ‘too
much’ appreciable probative value in criminal cases, while it has none in civil cases, since no
moral quality is associated with the acts in question. In general, he identifies five arguments for
exclusion: first, that it carries little probative value; second, it detracts from the merits of the
case; third, prior misconduct acts as a handicap to the accused; fourth, it undermines individual
autonomy at every point in life; fifth, such exclusion is a ‘senseless product of history’.
Related to the aforementioned grounds is the issue of flawed reasoning. Phipson argues that
using character evidence compels employment of an ‘impermissible or forbidden mode of
reasoning’. The mere fact that the accused had acted in a certain manner, or possessed a state of
mind previously is insufficient to establish liability in the case at hand. In any matter, as a rule,
only that evidence which directly confronts the issues at hand is admissible. Further, character
evidence mostly flows out of hearsay. Based on this remoteness of reasoning, character evidence
is excluded.

Evidence of bad character, by its very nature, is of a kind that projects the accused in bad light,
reprehensible to the conscience of the judge/jurors. In that case, the law casts a presumption of

4|Page
prejudice. Consequently, introduction of bad character of accused as evidence carries the
undeniable threat of conviction based purely on a tendency of misconduct. Alternatively,
conviction may be an act of vindication, wherein punishment is afflicted in the case at hand,
rooted in the belief that accused would have escaped punishment on a previous occasion. These
situations Wigmore labels as those affording undue prejudice to the accused. It is submitted that
such prejudice, by placing undue reliance on the character of the accused, may even have the
devastating effect of undermining the presumption of innocence.
The issue of undue surprise is equally demonstrative of the pitfalls of admission of bad character
evidence. It is considered unjust to present the judge/jurors with overwhelming evidence of prior
misconduct, which the accused is unprepared to defend, and has adverse consequences on the
future of the accused as well.
Next, evidence of bad character is, at best, peripheral to the main issue. Therefore, attaching
undue relevance to such evidence leads to a confusion of the issues at hand, and necessarily
detracts attention from the main issues that require determination.
As mentioned previously, character evidence carries little probative value in civil cases, unless
the character itself be in issue. This is due to an evident detachment of the issue at hand from any
moral considerations. Whether libel was committed, or the contract breached are matters not
associated with the moral character of the defendant, throwing light on the probability on the
occurrence of the event.
Thus, even if character evidence be logically relevant in establishing a high likelihood of
commission of an offence, or explaining the conduct of a person, it is excluded on public policy
considerations. It is to prevent matters of prejudice, undue surprise and inconvenience, and
detraction from the main issues, that character evidence is inadmissible. With such perils
associated with the system, unwarranted prolongation of litigation is inevitable. Further,
prevailing system of criminal jurisprudence emphasizes rights of accused persons, in the light of
which such prejudice is remarkably unwanted.

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 Chapter 03
CHARACTER WHEN ADMISSIBLE AS EVIDENCE

S.54 of the Act stipulates that, in criminal cases, bad character of the accused is irrelevant.
However, it qualifies this general proposition by permitting bad character evidence for rebuttal.
Explanation II additionally clarifies that bad character evidence will be admissible when the
character of the accused is itself in issue, and S.55 makes character evidence admissible in
evaluation of damages. Other situations in which evidence of bad character may be adduced are
ones requiring identification, based on similar facts, and when it is relevant under other
provisions of the Act, such as s.8, to prove, inter alia, motive and preparation.
Currently, bad character evidence is prohibited if the purpose is only to show the propensity of the
accused towards commission of the impugned act. It is admissible for any other purpose.
Undoubtedly, evidence tending to show bad character of the accused in the latter cases, while
possessing probative value, also has a prejudicial effect. Wigmore emphasizes the need to strike a
balance between these two factors. In pursuance of the same, the prevailing test of admissibility is to
ensure that the prejudicial effect is offset by the probative value of the evidence. However, there is an
alternative approach. Evidence, which is relevant to the facts in issue, is admitted. It is not prohibited
if it has an incidental prejudicial effect on the accused, regardless of the magnitude.
Through the course of this section, the exceptions to the rule will be analyzed, and the
appropriateness of the second test- the test of relevance- will be argued.
 CHARACTER WHEN ADMISSIBLE AS EVIDENCE - Bad character of the accused may
be adduced in rebuttal, as per s.54. This occurs when the accused has himself/herself put his/her
character in issue by advancing evidence of good character u/s.53. This provision is made available
in order to grant prosecution an adequate opportunity of questioning, and undermining the veracity of
the good character evidence, in order to prevent accused from taking advantage of a character

6|Page
 2
that he/she does not possess. The case of R v. Butterwasser clarified in what situations the
accused can be said to have put his character in issue. It is when the accused, either through
his/her own testimony, or by presenting witnesses, advances evidence of his/her good character.
It does not become an issue merely by virtue of the accused questioning the reliability of
prosecution witnesses by presenting their bad character, or by the witnesses testifying to good
character incidentally, without premeditation.

WHEN CHARACTER IS IN ISSUE - Evidence of bad character is further admissible
when the character of the parties is itself in issue. This occurs when “the character is a matter on
which a decision...is necessary to reach to a result in a case on the basis of pleadings in civil cases
and of the charge and of the particulars in criminal cases.” For instance, in a suit for defamation, in
which the defendant pleads the defense of truth, suits for child custody, or those for divorce on the
grounds of cruelty, or u/s.110 of the Code of Criminal Procedure, s.400-401, Indian Penal Code
(habitually committing dacoity), the character of the accused is itself in issue. Quite pertinently, R v.
B, R v. A involved the rebuttal of presumption of doli incapax of two thirteen year old boys. The
Court held that this purpose cannot be achieved without investigating into the prior conduct and
history of the accused in order to show that they were capable of forming mens rea. It is submitted
that matters of this nature are not exceptions to the general rule, and therefore cannot be regulated by
s.54 in any case, inasmuch as they form a separate category in themselves. S.54 applies to instances
wherein character evidence is introduced as evidence of another issue before the Court. In matters of
this kind, bad character does not play any evidentiary rule, but is in fact the issue that requires
determination itself. For example, when divorce is sought on grounds of cruelty, the issue itself is the
character of the spouse. It is not adduced to prove a larger issue in question, or the degree of
probability. S.54 prohibits the use of character as evidence only.

CHARACTER AS AFFECTING DAMAGES - S.55 recognizes the principle that character
of the plaintiff in civil cases may be accounted for in order to mitigate damages payable. For
instance, in defamation cases, it is possible to adduce evidence to show that the reputation of the
plaintiff in the eyes of a reasonable man was already low, therefore, no significant injury is caused.
This is because “...a person should not be paid for the loss of that which he never had.”

2R v Butterwasser [1948] 1 KB 4

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 Chapter 04
IDENTIFICATION & DESIGN

Evidence of bad character may also be introduced in cases which tend to show a design, or a
specific pattern in the commission of the acts (similar fact evidence), or for the purpose of
identification, that is, relating an individual to the commission of certain acts.
3
The leading authority on this proposition is Makin v. Attorney-General, New South Wales . The
accused were convicted of the murder of an infant, found buried in their garden. Evidence was
sought to be introduced that corpses of infants were found in other gardens of the houses they had
previously occupied as well, all in circumstances wherein the couple had accepted caretaking of these
infants for paltry sums. This evidence was found admissible, for previous crimes were discussed not
to show mere propensity of commission due to their character, but in order to show a discernible
design, the presence of which makes the offences attributable to the accused.
Character evidence of the accused may also be introduced to relate commission of certain acts to a
4
certain person. Consider the case of Thompson v. R . ,A man was charged with committing acts of
indecent assault on two boys. Two powder puffs found on his person at the scene, and photo albums
of nude boys found in his drawer were sought to be introduced as evidence to indicate the propensity
of the accused towards such acts of perversion. The Court permitted admission of both, the powder
puffs, as well as the photo albums. It was justified on the basis that there was evidence to show that
the acts of indecent assault were committed by a person of such perversion. Possession of such
material in the drawer indicated that accused was a man of such sexual perversion. Thus, the
commission of the act could be related to him, and he could be identified as the perpetrator.

3 Makin v. Attorney General for New South Wales,1894

4 165 ALR 621

8|Page
It is submitted that while the discovery of powder puffs on his person may be incriminating
evidence, the possession of the photo albums showed nothing more than the propensity of the
accused to commit acts of the nature alleged. In that case, the purpose achieved by the adduction
of such evidence was to establish merely an increased likelihood of the accused to commit the
act. It is not sufficient to establish that he in actually committed the offence. The commission of
the offence, and the discovery of the photographs are not linked by any rational connection
between the two. As discussed previously, bad character evidence, produced to indicate merely
the tendency of the accused to commit an offence, and which indicates nothing else, is patently
inadmissible.
In any case, while the determination of the issue on facts might be flawed, Thompson
nevertheless stands as good authority to indicate that evidence indicating bad character may be
produced for the purpose of identification.
The authorities governing rules of admissibility for both these situations overlap. This is also the
area where the impact of contesting authorities on the tests regulating admissibility is evident
most starkly.
While most authorities, with compelling force, lay down that the test governing admissibility is
to ensure that the evidentiary value of the character evidence is significantly greater than the
prejudicial effect it carries, Murphy acknowledges that there is movement towards a test that
accounts for relevance only, and not for prejudice. It is submitted that the latter test is more
appropriate in determining admissibility of evidence which tends to show bad character of the
accused.
It is accepted that character evidence as indicating the propensity of the accused to commit an act is
inadmissible, based on flawed logical reasoning, as well as the scant probative value. A displays
pedophilic tendencies, therefore, A has committed this act of paedophile, is one such example. It is
therefore important, at the outset, to distinguish character evidence of this kind from evidence
adduced to prove other factors, such as design or identity. For example, X was previously accused of
three murders in the same neighborhood. All three were found killed by slitting the throat of the
victim after forced sexual intercourse. If a fourth corpse is found in similar circumstances, it will
vehemently indicate the involvement of X in this as well. While the first kind indicates nothing more
than the character of the accused, the second is proof of the identity of the perpetrator of the fourth
murder, within the meaning of s.9 of the Act. Since this evidence is crucial to reach the

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verdict at the trial for such murders, it cannot, and should not be excluded. Thus, it is established
that bad character evidence sought to be introduced must at least be relevant to the issue at hand,
irrelevant evidence being excluded.
Clearly, such character evidence possesses immense probative value. Exclusion of evidence with
significant probative value, merely because it has the effect of causing prejudice, is extremely
detrimental to the establishment of the guilt or innocence of the accused. Modern jurisprudence
emphasizes the presumption of innocence of the accused. Character evidence is in itself
insufficient to cause such colossal prejudice as to overturn this presumption itself. Therefore, any
prejudice caused is merely incidental to the issue (assuming first stage admissibility on the basis
of relevance alone). In that case, there appears no justification to exclude relevant evidence on
any incidental misgivings alone. Further, the magnitude of such prejudice must also be
considered irrelevant. There is no justification to permit the accused to obtain benefit of his own
bad conduct, if evidence of the same be found true. In fact, such an approach seems to favor
those who have conducted themselves most reprehensibly, for in two cases involving evidence of
the same probative value, the evidence indicating worse behavior will be excluded, on account of
the prejudicial effect outweighing the probative value. Clearly, to reward, say, a habitual offender
over first-time offender cannot prevail as a matter of policy.
Therefore, it is submitted that it is relevance, and relevance alone, that must be ascertained in
order to admit evidence of an incidental prejudicial nature. It is pertinent to note that the
introduction of the Criminal Justice Act, 2003 in the UK has expressly rendered all similar fact
evidence inadmissible. In fact, the Statute introduces seven ‘gateways’ of admitting bad character
evidence. Only one of these gateways is common to the Common Law exceptions- that of
admissibility when character is in issue. In fact, bad character evidence in Butterwasser
situations is now admissible. In the light of the above analysis, it will be easier to appreciate the
next exception, based on relevance of evidence under other provisions.

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 Chapter 05
ADMISSIBILITY OF THE CHARACTER IN CIVIL SUIT


INDIAN LAW
In civil action, as a general rule, evidence of character of any person concerned (a party to a suit)
is not admissible for the purpose of raising an inference as to his conduct. In other words, that a
party did or did not act may not be established in civil actions, by showing that his character is
such as to predispose him to one course or to the other. So the exclusion of evidence of a
character of a party as a basis of inference as to his conduct is practically absolute in civil cases.
In civil cases the evidence of character is generally inadmissible unless the character is of the
substance in issue. Under Section 52 the expression 'the character of any person concerned' is
used. Therefore, it may appear to include persons who are called as witnesses, but the content of
the section refers, only to the parties of the proceedings.

CHARACTER ADMISSIBLE IN CIVIL CASES - There are certain cases in which
character is a fact in issue or a relevant fact e.g. in a suit for libel, if the libel consisted in attributing
bad qualities to the plaintiff and the defendant justices the existence of these qualities, the existence
of these qualities would be a fact in issue and evidence of character may be led. The character of a
female chastity has been received in evidence in action for breach of promise for marriage. Best
states that "To admit character evidence in every case, or to reject it in every case, would be equally
fatal to justice; that to draw a line or to define with precision where it ought to be received and where
it ought to be rejected, is as embarrassing a problem as any Legislature can be called upon
5
to solve." In Abdul Shakur and others v. Kotwaleshwar Prasad and others , it has been held that
where the contention that certain promotes had been obtained from the insolvent while he was under
the influence of drink, has been found to be baseless, mere general bad character of the

5 Abdul Shakur and others Vs Kotwaleshwar Prasad and others, AIR 1958 All 54

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insolvent would be quite irrelevant in a civil case to prove want of consideration. This case involved
import of gold by air into the territory of India. The main issue was whether the same falls within the
purview of illegal import through land or sea under the Foreign Exchange Regulation Act. The Court
6
gave a purposive interpretation to the Act, and held import of gold through air illegal as well. The
Law Commission Report reviews the law relating to bad character evidence in England, and suggests
massive reforms. These reforms are suggested within the framework of the European Convention on
Human Rights. It considers the meaning and scope of ‘character’, ‘bad character’, and ‘disposition’
et cetera, and departs substantially from Common Law. These recommendations were considered for
the drafting of the Criminal Justice Act, 2003.

DEFENDANT’S GOOD CHARACTER IN CIVIL CASES - As Baron Martin noted in
7
Attorney General Radcliff , in most cases, no presumption would arise: ‘. . . from the good
character of the defendant, that he did not commit the breach of contract or of civil duty alleged
against him’. Of course, if a party to litigation has his credibility attacked by unwarranted
aspersions on his character, he can call evidence of his good character to rebut the allegation. A
defendant’s character can be attacked in civil proceedings with a view to undermining his credit,
just like that of any other witness. There is no special regime for defendants in civil trials, unlike
the situation that governs the accused in criminal proceedings. Thus, for example, a defendant
with previous convictions can have them put to him in cross-examination. Perhaps more
significantly, past misconduct can be indicative of present behavior in civil as well as criminal
matters and thus can be used to establish propensity under the common law ‘similar fact’
doctrine. The legal use of this type of evidence was neglected in civil cases, at least when
compared to the extensive jurisprudence on its criminal counterpart. It was only rarely mentioned
in judgements, and then often by reference to criminal case law on the topic.

6 Lakshmandas v. State, AIR 1968 Bom 400

7 [1922] 2 Ch. 490

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 Chapter 06
ADMISSIBILITY OF THE CHARACTER IN CRIMINAL SUIT


INDIAN LAW
In criminal proceedings, previous good character is relevant:-
In criminal proceedings, the fact that the person accused is of a good character, is relevant." In
criminal enquiries the relevancy of character evidence is different from civil cases.
In criminal cases, the accused is allowed to prove his good character, either in chief or by cross-
examination. But so far as concerns proof of the accused's good character by another witness,
what must be deposed to is, not particular good acts by him, but his general reputation in the
community. Strictly the witness‘s own opinion of his character is irrelevant, but in particular
considerable latitude is allowed and a witness is often asked to say what he knows of the
accused's character. The evidence of character is primarily relevant as to credibility i.e. it makes
his testimony more worthy of belief.
Good character in criminal cases is a weak evidence. However, in certain cases, good character
may become favorable evidence in favor of an accused in doubtful cases and where the
prosecution fails to prove the guilt of the accused beyond the reasonable doubts. Good character
presumably includes good reputation which a man may be in his own circle as well .as his real
disposition as distinct from what his friends and neighbors may think of him.
When the accused in a bribery case pleads and produces evidences of good character, which the
Court regards as satisfactory, it must be taken in consideration to decide whether the guilt is
proved beyond reasonable doubt Phipson states that "Good character is not a defense, for no one
would then be convicted, as everyone starts with a good character. The defendant is, however,
entitled to rely on the fact that he is of previous good character as making it less likely that he
would have committed the offence. If there is any room of doubt, his good character may be
thrown in the scales in his favor."

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 8
In Habeeb Mohammad v. State of Hyderabad it has been held that in criminal proceedings a
man's character is often a matter of importance in explaining his conduct and in judging his
innocence or criminality. Many acts of an accused person would be suspicious or free from all
suspicions when the character of the person by whom they are done is known. Even on the
question of punishment, an accused is allowed to prove general good character.

8 Habeeb Mohammad v. State of Hyderabad, [AIR l954 SC 51]

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 Chapter 07
BAR ON THE PROOF OF PREVIOUS BAD CHARACTER

The general evidence of good character of the accused is always relevant. This is not so with regard
to general evidence of bad character. In criminal proceeding the fact that the accused person has a
bad character is irrelevant and cannot be proved. The reason is that the prosecution must prove the
guilt of accused with the necessary evidence in support of the charge. But the prosecution cannot take
the help of bad character of the accused in order to establish its case. If the prosecution is allowed to
prove bad character of the accused, then that would prejudice the mind of the Court. It makes the
Court biased against the accused. If evidence of bad character of the accused is permitted t0 be
proved the Court may come to the conclusion that he has committed the offence in question.
Therefore, this would prejudice the fair trial to which the accused is entitled. However, there are
three exceptions to the rule of the irrelevance of bad character in criminal cases.
The first exception: The previous bad character is relevant in reply, if the evidence has been
given that he has good character. In Indian system of Law, an accused starts with a presumption
of innocence; his bad character is not relevant, unless he gives evidence of good character in
which case, by way of rebuttal, evidence of bad character may be adduced. The prosecution gets
the right to prove the bad character of the accused. In cases of defamation, malicious prosecution
etc., the question of reputation is to be considered. In such cases, the bad character of the party
may be adduced as evidence.
The second exception: The evidence of bad character can be proved in cases in which the bad
character is in issue. In case of binding over proceedings for keeping good behavior under Sections
109, and 110, Cr.P.C. and in proceedings for the offence of dacoity under Sections 400, 401, Indian
Penal Code. The bad character of the person involved would be a fact in issue. Under Section 110,
Cr.P.C., a person is to be bound down if he is by habit a robber. a house-breaker or is so desperate
and dangerous as to render his being at large hazardous. In an Inquiry under Section 110 Cr.P.C.

15 | P a g e
the very character of the accused is in question and so the evidence to that effect is admissible.
The evidence that the accused had committed similar criminal acts previously is admissible upon
the issue to decide whether the act was intentional or accidental. If the evidence of bad character
is introduced in order to establish a relevant fact which cannot be proved separately the evidence
of bad character is admissible.
9
In Public Prosecutor APHC v. Bandana Ramayya , it has been held that in a rape case, where
the medical evidence clearly points out that there was a forcible intercourse, the bad character of
the prosecutrix becomes irrelevant. If the bad character is itself a fact in issue, only then evidence
can be placed.
The third exception: A previous conviction is not admissible in evidence against the accused,
except where he is liable to enhanced punishment under Section 75 of the Indian Penal Code, on
account of previous conviction, or unless evidence of good character be given, in which case the
fact that the accused had been previously convicted of an offence is admissible as evidence of
bad character.
Under Section 75 of the IPC, a person who has been previously convicted by a Court of an
offence punishable under Chapter XII or Chapter XVII of the IPC with an imprisonment of three
years or more, is liable for enhanced punishment if he had, again committed an offence under
those chapters subsequently. may be proved as evidence of bad character
10
In re: Kamya , it has been held that only after conviction of the accused, the charge for the
previous conviction has to be framed for giving enhanced punishment. In such case, the prosecution
has to prove the previous conviction of the accused. The trial judge may, at his discretion, proceed or
refrain from proceeding, with the trial on the charge of previous conviction.

British Law - A defendant can call evidence to establish his ‘good’ character. * is may be

given during examination-in-chief by the defendant in person, by one of his witnesses, or be

elicited from a prosecution witness on his behalf during cross-examination. In British law only
Reputation is counted in Character and not Disposition.
11
In R. v. James , Rowtan the accused was tried for committing an indecent assault on a boy of
14 years and at the trial he gave evidence of his good character. ‘In order to rebut the evidence of

9Public 2004 Cr.L.J. 3510 AP

10 AIR 1960 AP 490

11 R v James & Karimi [2006] 2 WLR 887

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good character the prosecution called a witness and asked "what is the accused’s general
character for decency and morality?’ He said, "I do not know the opinion of my neighbours but
in my opinion and the opinion of my brothers who were also his pupils that he is a person
capable of the grossest indecency and flagrant immorality. The court said, this is evidence of
disposition, not evidence, of reputation and therefore inadmissible.
12
In R v Redgrave , the defendant was accused of an offence of gross indecency in a public
lavatory ( i.e a ‘homo,sexual’ offence). At his first trial he was allowed to adduce cards and
letters from various girlfriends, to suggest that he was not homosexual and thus was not likely to
have committed the offence of which he was accused. (For evidential purposes, if no other, these
must be considered analogous to specific creditable incidents.) * is trial produced a hung jury,
and a retrial was ordered. The (different) judge presiding at the second trial did not allow
evidence of the correspondence to be given and the defendant was convicted. The defendant
appealed on the basis that it was wrong for such evidence to have been excluded. Dismissing his
appeal, the Court of Appeal upheld the decision in Rowton forbidding the abduction of evidence
of specific incidents.

DEFENDANT’S BAD CHARACTER IN CRIMINAL SUITS - Prior to the advent of the
Criminal Justice Act 2003, the abduction of defendant bad character evidence in criminal cases
was governed by a complicated mixture of common law principles and statute. Thus, evidence
adduced to suggest guilt via propensity was largely ruled by the common law ‘similar fact’
doctrine. Evidence that was produced to undermine defendant credit was primarily regulated by
s. 1(3) of the 1898 Evidence Act (supplemented by common law provisions). One of the main
aims of the 2003 Act was to put all of the rules governing bad character in criminal cases,
whether for defendants, witnesses or third parties, and whether going to credit or directly to the
issue in a case, into a single statute. However, there were other concerns about the old regime,
several of which were explored in the Law Commission report, Evidence of Bad Character in
Criminal Proceedings which (in part) prompted the statutory reforms.

SECTION 101 OF CRIMINAL JUSTICE ACT 2003, DEFENDANT’S BAD

CHARACTER - In criminal proceedings evidence of the defendant’s bad character is admissible

(1) if, but only if—

12 R v Redgrave - [2007] All ER (D) 02 (Oct)

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(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question asked by
him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the
defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
Under s. 101(1)(a) defendant bad character evidence can be admitted with the agreement of ‘all
parties to the proceedings’. For practical purposes, in most situations, this will be contingent on
the accused person wishing to adduce it, although, presumably, there might be exceptional
circumstances in which a co-accused might object to its admission. Nevertheless, a defendant
could then have recourse to s. 101(1)(b), which allows him to adduce such evidence in person or
via an answer to a question ‘asked by him in cross-examination and intended to elicit it’.
Section 101(1)(c), in part, replicates a specialist provision that previously existed at common
law. It allows the adduction of a defendant’s previous misconduct if it is ‘important explanatory
evidence’. Guidance on what is meant by this is given in s. 102, which provides that it can be
admitted if, without it, the jury or court would find it ‘impossible or difficult properly to
understand other evidence in the case’ and (rather superfluously) its value for understanding the
case as a whole is ‘substantial’.
13
R v Beverley , the defendant was accused of participating in a conspiracy to import cocaine. He
had two previous convictions. One of these, from more than five years earlier, was for possession of
cannabis with intent to supply, and one was from two years previously, for simple possession of
cannabis. These were adduced at trial under s. 101(1)(d), as showing a propensity to commit the type
of offence with which he was charged. However, on appeal, the conviction was quashed, on the basis
that one of the convictions was old, and one was of a different character (simple possession), that
they involved a different type of drug, and related to offences of a vastly lesser degree of seriousness,
both in size and complexity, to the large-scale conspiracy charged in the

13 R v Beverley - [2006] All ER (D) 49 (May)

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instant case.Although, as these cases suggest, most situations where evidence is adduced under s.
101(1)(d) will require either an ‘unusual’ offence or one committed in an unusual manner, or,
alternatively, several previous offences, in exceptional cases this will not be so.
14
For example, in R v Isichei , a defendant’s single conviction for importing cocaine some six years
earlier was admitted under s. 101(1)(d), as it was adduced not to suggest a propensity to commit such
offences, but to support the identification of a complainant in an assault occasioning ABH and
robbery indictment, who had heard the defendant demanding money for ‘coke’.

14 R v Isichei - [2006] All ER (D) 50 (Aug)

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 Chapter 08
GOOD & BAD CHARACTER OF THE ACCUSED


GOOD CHARACTER OF THE ACCUSED - The accused will be regarded as a person of
good character if evidence is adducted or elicited to show that he has no previous convictions or no
convictions of any relevance or significance. A previous character whether good or bad will be
an indicator as to the present conduct of the person. It can affect the way a witness’s testimony is
viewed, i.e go to credit. In civil cases character evidence is inadmissible unless the character
evidence is itself in issue. The evidence is excluded from civil proceedings on grounds of public
policy. Due to the following reasons good character evidence is not admissible in civil
proceedings. -

i) Evidence of unconnected circumstances will prejudice the party

ii) The party would not have an opportunity to defend effectively as he would be unsure about
what part of his career would be attacked.

The accused having a good character is entitled to the benefit of the ‘direction’ consisting where
relevant of a propensity limb and credibility limb. Defendants in criminal cases with good
characters are always entitled to the ‘second limb’ of the direction on propensity. Defendants in
criminal cases with good characters who give evidence are also always entitled to a ‘first limb’
credibility direction.
Occasionally, ‘blemished’ defendants without previous convictions who admit to offences, or
those with previous convictions that are minor or distant, may be refused or granted good
character directions, depending on the circumstances of the case.

BAD CHARACTER OF THE ACCUSED - According to the Indian laws in criminal
proceedings the evidence of bad character of the accused is irrelevant and cannot be proved. But
the prosecution cannot take the help of bad character of the accused in order to establish it’s case.

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If evidence of bad character of accused is permitted to be proved the court may come to the
conclusion that he has committed the offence in question. Therefore this would prejudice the fair
trial to which the accused is entitled.
However there are three exceptions to this rule
i) When the accused gives evidence of good character then the prosecution has a right to prove
the bad character of the accused.
ii) The prosecution has a right to prove the bad character in cases in which the bad character is
itself in issue.
iii) A previous conviction is relevant as evidence of bad character of the accused.
Prosecution adduced evidence in the form of letters, diaries and subsequent conduct of the
accused to prove an abnormal psychology, sexual perversion and alcohol addiction as motive
behind the murder of his wife. The Court adjudged such evidence admissible, since the evidence
15
was relevant to the issue at hand, and was not merely evidence indicating bad character
Defendant bad character in criminal cases is now almost entirely regulated by Part 11 of the Criminal
Justice Act 2003, and s. 101 in particular. Bad character usually consists of convictions, but can
extend to other areas of reprehensible conduct in an individual’s life. Evidence of the accused’s ‘bad
character’ is inadmissible unless it falls within the scope of one of the gateways to admissibility in
section 101 (1) (a-g) of the Act. Whenever the prosecution (but not a co-defendant) attempts to
adduce such evidence under s. 101 (1) a trial judge has a discretion to refuse to admit it, whether
from the Act itself or as a result of s. 78 of the Police and Criminal Evidence Act 1984, even if one of
the gateways is, prima facie, satisfied. The similar fact doctrine developed at common law survives in
civil cases, despite being abolished in criminal trials. Such evidence appears to require less probative
force that was formerly the case in criminal hearings to be admitted in civil forums. However, the
court can have regard to a wider range of policy factors than was the case in criminal trials when
deciding whether to exclude such evidence.

15 Ashok Dubey v. State of Madhya Pradesh, 1980 MPLJ 300.

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 Chapter 09
CONCLUSION

Through the course of this paper, it was observed that character evidence may be adduced in two
forms: either as evidence of character per se, or as evidence to resolve another issue in
determination. An example of the former is to emphasize the good nature of a respectable man in
society, thereby imputing improbability of commission of an offence by him. While evidence of
this kind is normally admissible, character evidence per se which projects the accused in bad
light is inadmissible. This standard rule is perceivably subject to five exceptions. Bad character
of the accused/defendant may be adduced in rebuttal when he/she adduces his/her good
character. It may also be introduced when the character itself is in issue, or for the determination
of damages. Evidence of bad character may also be incidental, while attempting identification of
person or design, or as part of another relevant fact.
It is thus possible to divide the above situations in two categories: first, in which resolving the
character question is not important, and the second in which character evidence is pertinent for
the disposal of case. The crucial distinction lies in the relevance of the latter and the irrelevance
of the former as facts presented before the Court. The example quoted above, along with the first
exception, falls in the first category, while the remaining four fall in the second category. Based
on this categorization, it is possible to conclude that whenever evidence is adduced to prove only
the bad character of the accused, it is inadmissible, subject to one exception, of admissibility in
rebuttal. All other scenarios grant the status of relevance to evidence of bad character, either as
the substance in issue directly, or as incidental to another relevant fact. Such evidence is not
evidence of character, as much as evidence to resolve the issues at hand. Thus, when bad
character evidence proves something more than just character, it is admissible.
It was further submitted that while evaluating admissibility of character evidence, contrary to the
prevailing Common Law test of probative versus prejudicial value, the simple test of relevance

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must be employed. This is because, inter alia, prejudice being merely incidental when a fact is
relevant, it must not be allowed to trump its probative value which is crucial to the determination
of the issue.

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