Study guide
6.4 Non-Defendant Bad Character & Co-Defendant Character
UK Bar — Criminal Litigation, Evidence and Sentencing Exam
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1 Chapter 1: Introduction & BSB Assessment Overview
1.1 BSB Centralised Assessment Structure & Regulations 1.2 Overriding Objective & Court Structure 1.3 Classification of Offences, Court Jurisdiction & Funding
2 Chapter 2: Commencing Proceedings, Charges & Allocation
2.1 Commencing Proceedings & Police Station Procedure 2.2 First Hearing & Classification of Offences 2.3 Allocation and Mode of Trial 2.4 Sending for Trial & Committal for Sentence 2.5 Youth Court & Special Allocation Rules 2.6 Sentencing Powers of the Youth Court
3 Chapter 3: Bail, Remand & Case Management
3.1 Right to Bail & Statutory Exceptions 3.2 Bail Conditions, Breach & Appeals 3.3 Remands, Adjournments & Custody Time Limits 3.4 Case Management & Pre-Trial Hearings 3.5 Prosecution & Defence Disclosure
4 Chapter 4: Indictments & Preparation for Trial in the Crown Court
4.1 The Indictment: Form, Content, Time Limits & Specimen Counts 4.2 Joinder, Severance, Amendment & Voluntary Bills 4.3 Arraignment, Pleas & Change of Plea 4.4 PTPH, Applications to Dismiss & Offering No Evidence
5 Chapter 5: Criminal Evidence — General Principles & PACE Exclusions
5.1 Preliminary Evidential Matters: Relevance, Admissibility & Tribunals 5.2 Burden and Standard of Proof & Presumptions 5.3 Confession Evidence & Mandatory Exclusion 5.4 Discretionary Exclusion of Unfair Evidence 5.5 Inferences from Silence
6 Chapter 6: Special Evidentiary Rules — Hearsay, Character & Identification
6.1 Hearsay Evidence & The Four Gateways 6.2 Hearsay Safeguards, Multiple Hearsay & Procedure 6.3 Defendant Bad Character Evidence 6.4 Non-Defendant Bad Character & Co-Defendant Character 6.5 Good Character, Proof of Convictions & Bad Character Procedure 6.6 Visual Identification & Turnbull Guidelines
7 Chapter 7: Witnesses, Privilege & Opinion Evidence
7.1 Witness Competence, Compellability & Special Measures 7.2 Oaths, Affirmations & Compelling Witness Attendance 7.3 Examination in Chief: Leading Questions, Memory Refreshing & Hostile Witnesses 7.4 Cross-Examination, Previous Inconsistent Statements & Re-Examination 7.5 Opinion Evidence & Expert Witnesses 7.6 Privilege, Public Interest Immunity & Immunity
8 Chapter 8: Trial Procedure in the Magistrates' Court & Crown Court
8.1 Magistrates' Court Trial Procedure 8.2 Summary Trial: Pre-Trial Rulings, Absence & Abuse of Process 8.3 Crown Court Trial Procedure 8.4 Jury Trial: Absence, Unrepresented Defendants & Abuse of Process 8.5 Speeches, Summing Up & Verdicts
9 Chapter 9: Sentencing Framework & Guidelines
9.1 Sentencing Framework, Principles & Procedure 9.2 Seriousness, Guilty Plea Reduction, Aggravation & Mitigation 9.3 Sentencing Procedure: Newton Hearings, Reports & Goodyear Indications 9.4 Custodial Sentences, Suspension & Release 9.5 Mandatory & Minimum Custodial Sentences 9.6 Community Orders, Fines & Discharges 9.7 Ancillary Orders, Costs & Dangerous Offenders
10 Chapter 10: Appeals & Post-Trial Remedies
10.1 Appeals from the Magistrates' Court (Crown Court & High Court Case Stated) 10.2 Rectifying Mistakes, Case Stated & Judicial Review 10.3 Crown Court Appeals (Court of Appeal Criminal Division & Supreme Court) 10.4 CACD Procedure: Rectification, Leave, Renewal, Loss of Time & Fresh Evidence 10.5 Prosecution Appeals, Attorney General's References & the CCRC
6.4 Non-Defendant Bad Character & Co-Defendant Character
Key Takeaways Explain This Topic AI
Under Section 100(1) of the Criminal Justice Act 2003, evidence of a non-defendant's bad character is admissible only if it is important explanatory evidence, has substantial probative value in relation to a matter of key importance in the case, or all parties agree.
Cross-examination of a non-defendant regarding bad character under Section 100 requires leave of the court under Section 100(4) unless agreed by all parties, with the court assessing probative value under Section 100(2).
A defendant of absolute good character is entitled as of right to a two-limbed Vye / Hunter judicial direction advising the jury on credibility (believability of testimony/interview) and propensity (less likely to have committed the offence).
Section 41 of the Youth Justice and Criminal Evidence Act 1999 imposes a strict statutory ban on cross-examination or evidence regarding a complainant's previous sexual behavior in sexual offence trials, subject to narrow statutory exceptions requiring judicial leave.
Leave under Section 41 YJCEA 1999 can only be granted if the proposed evidence falls strictly within Section 41(3) or (5) and excluding it would render a jury verdict unsafe under Article 6 ECHR (R v A (No 2)).
Last updated: August 2026
6.4 Non-Defendant Bad Character & Co-Defendant Character
While Section 101 of the Criminal Justice Act 2003 (CJA 2003) regulates bad character evidence relating to defendants, Section 100 CJA 2003 governs bad character evidence concerning non-defendants (including victims, prosecution witnesses, defense witnesses, and deceased persons). In addition, criminal trials frequently involve complex character interactions between co-defendants, good character directions for defendants of unblemished record, and statutory restrictions on questioning complainants in sexual offence trials under Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) . This section provides a comprehensive analysis of non-defendant bad character rules, co-defendant character admissibility, defendant good character entitlements under R v Vye and R v Hunter , and the strict judicial leave framework under Section 41 YJCEA 1999.
1. Non-Defendant Bad Character (Section 100 CJA 2003)
Under Section 100(1) CJA 2003 , evidence of the bad character of a person other than the defendant is admissible if and only if :
It is important explanatory evidence (s.100(1)(a)); OR
It has substantial probative value in relation to a matter which is of key importance in the context of the case as a whole (s.100(1)(b)); OR
All parties agree to the evidence being admitted (s.100(1)(c)).
Statutory Definitions & Assessment Factors (s.100(2)):
Important Explanatory Evidence (s.100(2)(a)) : Evidence without which the court or jury would find it impossible or difficult properly to understand other evidence in the case, and its value for understanding the case as a whole is substantial.
Assessing Probative Value (s.100(2)(b)) : In determining the probative value of non-defendant bad character under s.100(1)(b), the court must have regard to:
- The nature and number of the events or circumstances to which the evidence relates;
- When those events or circumstances took place ( time elapsed );
Where evidence concerns a witness's propensity to be untruthful, the extent to which that propensity is demonstrated by past convictions for perjury or fraud.
Mandatory Leave Requirement (s.100(4)):
Unless all parties agree, evidence of a non-defendant's bad character cannot be adduced without leave of the court . The application for leave must be made in writing under the Criminal Procedure Rules (CrimPR Part 21), giving full details of the proposed evidence and its relevance to a key issue in the case.
2. Co-Defendant Character Dynamics (s.101(1)(e) CJA 2003)
Where two or more defendants are tried jointly, character evidence often becomes a tactical weapon in "cut-throat" defences. Under Section 101(1)(e) CJA 2003 , Defendant A may adduce evidence of Defendant B's bad character if it has substantial probative value in relation to an important matter in issue between Defendant A and Defendant B .
Key Principles governing Co-Defendant Bad Character:
Propensity for Violence : If Defendant A claims that Defendant B committed the assault alone, Defendant B's convictions for violent offences are admissible under Gateway (e) to prove B's propensity for violence ( R v Phillips [2012] 1 Cr App R 25).
No Section 101(3) Fairness Exclusion : As established in Section 5.2, Section 101(3) applies only to Gateways (d) and (g). A judge has no power under Section 101(3) to exclude bad character evidence tendered by Defendant A against Defendant B under Gateway (e).
Section 78 PACE Inapplicable : Section 78 PACE 1984 applies solely to evidence tendered by the prosecution and cannot be invoked by Defendant B to exclude exculpatory character evidence adduced by Defendant A.
3. Defendant Good Character Directions ( Vye & Hunter Guidance)
A defendant who has no previous convictions, cautions, or reprimands is entitled as of right to a judicial direction on good character. The rules governing good character directions were codified by the Court of Appeal in R v Vye [1993] 1 WLR 471 and reaffirmed in the landmark authority R v Hunter [2015] EWCA Crim 631 .
The Two-Limbed Good Character Direction:
First Limb (Credibility) : Instructs the jury that the defendant's unblemished character is a positive factor that supports his credibility. It should be taken into account when deciding whether to believe his sworn testimony in court or his exculpatory statements made in police interview.
Second Limb (Propensity) : Instructs the jury that the defendant's good character makes it less likely that he acted in the manner alleged or committed the crime charged.
Absolute vs. Effective Good Character:
Absolute Good Character : Defendant has no record of any kind. Entitled to both limbs automatically.
Effective Good Character : Defendant has minor, spent, or irrelevant past cautions/convictions. The trial judge possesses a judicial discretion to treat the defendant as being of effective good character and grant a modified good character direction ( R v Hunter ).
Defendant Who Does Not Testify : A good character defendant who exercises his right to silence at trial and made no pre-trial exculpatory statements loses the first limb (credibility), but remains entitled to the second limb (propensity) .
4. Section 41 YJCEA 1999: Protection of Sexual Offence Complainants
To eliminate the historic practice of degrading sexual history cross-examination ("the whore line defence"), Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) sets up a strict statutory ban on defence evidence or cross-examination regarding a complainant's previous sexual behaviour in sexual offence trials.
General Prohibition (s.41(1) YJCEA 1999):
Except with the leave of the court, no evidence may be adduced and no question may be asked in cross-examination by or on behalf of the accused about any sexual behaviour of the complainant.
Statutory Gateway Exceptions (s.41(3) & s.41(5)):
Leave can only be granted if the judge is satisfied that one of the narrow statutory gateways applies:
s.41(3)(a) Non-Consent Issue / Contemporaneous Behaviour : The issue is not consent, or if consent is in issue, the sexual behaviour took place at or about the same time as the event giving rise to the charge.
s.41(3)(b) Rebutting Prosecution Evidence : The evidence relates to sexual behaviour alleged by the prosecution, and is required to rebut or explain prosecution evidence.
s.41(3)(c) Striking Similarity : The sexual behaviour is so similar to the behavior of the complainant taking place at or about the same time, or on the issue of consent, that the similarity cannot reasonably be explained as coincidence.
s.41(3)(d) Explanation of Physical Evidence : The evidence is necessary to explain physical evidence (e.g. presence of semen, injury, or infection) not caused by the accused.
Human Rights & R v A (No 2) ([2002] 1 AC 45):
Under s.41(2)(b) , leave cannot be granted unless excluding the evidence would render a conviction unsafe . In R v A (No 2) , the House of Lords held that Section 41 must be read compatibly with Article 6 ECHR (Right to a Fair Trial) under Section 3 of the Human Rights Act 1998. Where sexual history evidence is so relevant to the issue of consent that its exclusion would compromise a fair trial, Section 41(3)(c) must be construed flexibly to allow leave, avoiding an unsafe verdict.