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Bad Character provisions

The admissibility of bad character evidence in criminal proceedings is set out in Articles 82A - 82J of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (as amended by the Criminal Procedure (Jersey) Law 2018) and applies in all criminal proceedings.

Defendant’s Bad Character (Art 82E-I)

Evidence of the defendant’s bad character is admissible if, but only if, one of seven gateways is made out in Art 82E(1). If the gateway is made out leave is not required but notice is required.

Defendant’s Gateway 1

All parties agree to the evidence being admissible. (Art 82E(1)(a))

Defendant’s Gateway 2

The evidence is adduced by the defendant themselves or given in answer to a question asked by the Defendant in cross-examination and intended to elicit it. (Art 82E(1)(b))

Defendant’s Gateway 3

It is important explanatory evidence.

It is important explanatory evidence if:

  1. without it the Court/jury would find it impossible or difficult properly to understand other evidence in the case; and

  2. its value for understanding the case as a whole is substantial. (Art 82E(1)(c))

In proceedings for an offence alleged to have been committed by a defendant over the age of 21, evidence of a conviction for an offence when under the age of 15 is not admissible unless the court is satisfied that the interests of justice require the evidence to be admitted. (Art 82E(4))

Defendant’s Gateway 4

It is relevant to an important matter in issue between the defendant and the prosecution (Art 82F) but only prosecution evidence is admissible. (Art 82F(2))

Matters in issue between the defendant and the prosecution include the question whether the defendant has a propensity to commit offences of the kind with which they are charged except where their having such a propensity makes it no more likely that they are guilty of the offence. Such propensity may be established by evidence that they have been convicted of an offence of the same description (ie if the statement of offence in a summons or indictment would be in the same terms) or of a similar nature or type with which the defendant is charged (provision as to what constitutes similar nature or type may be specified in Regulations).

This does not apply if the Court is satisfied, by reason of the length of time since the conviction or any other reason that it would be unjust for it to apply in the case.

The matters in issue between the defendant and the prosecution also include the question whether the defendant has a propensity to be untruthful except where it is not suggested that the defendant’s case is untruthful in any respect. (Art 82F(1)(b))

The Court must not admit evidence under Art 82F if, on the application by the defendant to exclude it, it appears to the Court that the admission of the evidence would have such an ad-verse effect on the fairness of the proceedings that the Court ought not to admit it. (Art82E(2))

See Art 82E(3) - particular regard to length of time between matters and offence charged.

Defendant’s Gateway 5

It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant (Art 82H(1)) and it is evidence:

  1. which is to be (or has been) adduced by the co-defendant; or

  2. which a witness is to be invited to give (or has given) in cross-examination by the co-defendant.

But evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible only if the nature or conduct of the defendant’s defence is such as to undermine their co-defendant’s defence.

Defendant’s Gateway 6

It is prosecution evidence having a probative value to correct a false impression given by the defendant (Art 82I) and goes no further than is necessary to correct the false impression. (Art82I(3)) It does not apply if the defendant withdraws or dissociates themselves from the false impression. (Art 82I(6))

The defendant gives a false impression by an express or implied assertion which is apt to give the Court/jury a false or misleading impression about the defendant. (Art 82I(2))

The defendant is responsible for making an assertion if it was:

  1. made by the defendant in the proceedings; 

  2. made under caution by the defendant;

  3. made by the defendant’s witness; 

  4. made under cross-examination by the defendant; 

  5. made out of Court and the defendant adduces evidence of this. (Art 82I(5))

Or the defendant gives a false impression where it appears to the Court that the defendant, by means of their conduct in the proceedings (other than in evidence but including appearance or dress), is seeking to give a false/misleading impression then, the Court may, if just to do so, treat the defendant as responsible for an assertion.

Defendant’s Gateway 7

The defendant made an attack on another person’s character. (Art 82G) ie that the person has committed an offence (including the one charged) or has behaved in a reprehensible way. Only prosecution evidence is admissible. (Art 82G(2))

The attack can be made by adducing evidence or by intentionally eliciting it in cross-examination or by evidence given of what the defendant said when questioned or charged.

The Court must not admit evidence under Art 82G if, on application by the defendant to exclude it, it appears to the Court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit it. (Art82E(2))

See Art 82E(3) - particular regard to length of time between matters and offence charged.

Non-defendant’s Bad Character (Art 82J) 

Evidence of the bad character of a person other than the defendant is admissible if, and only if, one of the three gateways is made out. (Art 82J(1)(a)(b)&(c))

Non-defendant’s Gateway 1

It is important explanatory evidence. (Art82J(1)(a))

Evidence is important explanatory evidence if:

  1. without it, the Court/jury would find it impossible or difficult to understand other evidence in the case; and

  2. its value for understanding the case as a whole is substantial.

Leave of the Court is required.

Non-defendant’s Gateway 2 

It has substantial probative value in relation to a matter which is 1) a matter in issue in the proceedings; and 2) is of substantial importance in the context of the case as a whole. (Art 82J(1)(b))

In assessing the probative value of the evidence the Court must have regard to the following four factors (and to any others it considers relevant)

  1. the nature and number of the events, or other things, to which the evidence relates;

  2. when those events or things are alleged to have happened or existed;

  3. where

    1. the evidence is evidence of a person’s misconduct; and

    2. it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

  4. where

    1. the evidence is evidence of a person’s misconduct;

    2. it is suggested that that person is also responsible for the misconduct charged; and

    3. the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time.

Leave of the Court is required.

Non-defendant’s Gateway 3

All parties agree to the evidence being admissible. (Art 82J(1)(c))

Leave of the Court is not required.

Definitions

"Bad character" in criminal proceedings means "evidence of, or of a disposition towards, misconduct". (Art 82C PPCE)

“Misconduct” means the commission of an offence or other 'reprehensible behaviour'. (Art 82A)

"Reprehensible behaviour" should be looked at objectively, taking into account whether the public would ordinarily regard such conduct as reprehensible.

An application for evidence of bad character to be adduced on the basis of “reprehensible behaviour” generally need not require evidence of that behaviour to be proven to the criminal standard. This may circumvent the need for arguments about whether the alleged conduct amounted to an offence where it has not resulted in a charge or conviction.

Evidence of bad character expressly excludes:

  1. evidence which has to do with the alleged facts of the offence with which the defendant is charged (Art 82C(a)); or
  2. evidence of misconduct in connection with the investigation or prosecution of that offence. (Art 82C(b))

Assumption of truth (Art 82B)

Art 82B places on a statutory basis the general practice of the Courts to assume the truth of evidence put before it for the purpose of ascertaining that it is relevant and/or of probative value.

However, the Court need not assume that the evidence is true if it appears to the Court, on the basis of the material before it, or of any evidence it hears, that no Court or jury could reasonably find it to be true. (Art 82B(2))

Issued: November 2019

Reviewed: 20 August 2025