Hearsay Evidence

Introduction

**Character evidence** — and in particular **bad character** evidence — is one of the most heavily examined topics in the **Criminal Litigation (FLK2)** part of SQE1. The common-law rule that a defendant's previous misconduct is generally inadmissible was comprehensively replaced by the **Criminal Justice Act 2003 ('CJA 2003')**, which created a statutory code. This chapter explains the **statutory definition of bad character (s. 98)**, the **seven gateways** through which a defendant's bad character may be admitted (**s. 101(1)(a)–(g)**), the separate regime for **non-defendant bad character (s. 100)**, the **procedure** under CrimPR Part 21, and the court's powers to **exclude** otherwise-admissible evidence under **s. 101(3)** and **s. 78 PACE 1984**.

Assessment focus

For SQE1 FLK2 you must be able to identify when evidence amounts to **bad character** within **s. 98 CJA 2003**, and — crucially — when evidence falls **outside** that definition so that no gateway is needed. You should know all **seven gateways** in **s. 101(1)** and be able to apply the most heavily tested ones: **gateway (d) (propensity)** and **gateway (g) (attack on another's character)**. Questions are single best answer questions ('SBAQs') set in **realistic client scenarios**: you will be asked to select the correct gateway, to apply the **R v Hanson [2005] EWCA Crim 824** three-part propensity test, to distinguish the **double-substantial test** for non-defendant bad character under **s. 100**, and to identify when the court should **exclude** evidence under **s. 101(3)**. This is a closed-book assessment — learn the section numbers, the gateways and Hanson from memory.

Study tips

1) Memorise the **s. 98** definition and the **two exclusions** — evidence to do with the facts of the offence, and evidence about the investigation/prosecution — which need **no gateway**. 2) Learn the **seven gateways (a)–(g)** in order; they are **exhaustive**. 3) For **gateway (d)** always apply the **Hanson** three-part test (propensity? more likely guilty? unjust to rely?) and remember **a single conviction may suffice**. 4) For **non-defendant** bad character use **s. 100**, with the **double-substantial test** under s. 100(1)(b). 5) Remember **s. 101(3)** allows exclusion of **gateways (d) and (g) only**; **s. 78 PACE 1984** remains a residual discretion for **all** prosecution bad character evidence.