Authored By: Sophia Haley
University of Manchester
The Criminal Justice Act of 2003[1] (CJA) is an important piece of legislation in the United Kingdom that introduced a variety of reforms that changed the admissibility of character evidence within criminal trials. This article will explore the statutory gateways for the admission of bad character evidence by the CJA, focusing on Gateway (d) under Section 101 (1) (d) [2](Gateway (d) ) and Gateway (g) under Section 101 (1) (g)[3] (Gateway (g) ) of the CJA. This article will first analyse the role of the jury and the psychological factors that can influence their decision- making in criminal trials. It will then explain the rules regarding bad character evidence prior the 2003 and how these rules were reformed to become what is now known as the CJA. This article will then critically analyse Gateway (d), exploring it’s broad scope and how this can consequently foster prejudicial reasoning within the jury. Additionally, this article will then explore Gateway (g) and highlight the unfair allowance of pre-trial statements whilst also highlighting the expansive definition of an ‘attack’, all of which can lead to prejudicial outcomes. Finally, this article will explore a variety of reforms that have been suggested regarding the admissibility of evidence under these gateways. This article will overall contend that these character gateways can indeed threaten the fairness of a trial, undermining core democratic principes enshrined in the European Convention of Human Rights, such as Article 6[4].
The Jury
At the heart of the issue of bad character evidence in criminal proceedings, it is the jury’s response to evidence that threaten the fairness of a trial. Social psychologists have coined theories that have identified a bias in how individuals judge others. Theories include those such as ‘the halo effect’[5] in which positive or negative impressions of an individual can tend to influence overall perceptions and judgements. Additional theories include the Social Identify theory[6] in which individuals may categorise and other into in-groups (groups they identify with) and out-groups (groups they do not identify with), which in turn influenced the behaviour and attitude towards both groups. These behavioural psychology theories are certainly present in juries, in fact, a Home Office Study revealed that mock juries were most likely to convict when they knew about past convictions, even if the current evidence was weak[7]. This has led many academic scholars to question how the presumption of innocence could be maintained in court if it is compromised by current rules governing evidence, leaving greater room for potentially prejudicial reasoning in juries.
Pre-2003
Prior to the Criminal Justice Act 2003, there existed a much stricter and more rigorous approach of bad character evidence in which evidence was inadmissible. This ensured that prejudice was avoided within the court. However new reforms revered this approach, introducing a variety of gateways to which bad character evidence can be proven admissible.
Post-2003- The Criminal Justice Act 2003 (CJA)
In 2003, The Criminal Justice Act 2003 was introduced. Section 98[8] of the CJA defines bad character as evidence about a person’s misconduct. A person’s misconduct is defined in Section 112[9] of the CJA stating “the commission of an offence” or “reprehensible”. The new law allows such evidence to be admitted if it falls within the seven “gateways” stated under Section 101 (1)[10]. These included: Section 101 (1) (a)[11] all parties agree to its admission, Section 101 (1) (b)[12] it is introduced by the defendant themselves, Section 101(1) (c)[13] , it constitutes as important explanatory evidence necessary for the jury to understand the case, Section 101 (1) (d)[14], it is relevant to an important matter in issue between the prosecution and the defence such as propensity to offend under Section 103[15] of the CJA , Section 101 (1) ( e )[16] ,it has substantial probative value in an important matter between co-defendants, Section 101(1) (f)[17] , it has necessary to correct a false impression given by the defendant and finally Section 101 (1) (g)[18] in which the defendant has attacked another person’s character. These gateways are subject to certain protections such as those stated under Section 101 ( 3 )[19] of the CJA and section 78 of the Police and criminal evidence act 1984 [20] (PACE), which precludes that evidence must not be admitted if it would have an adverse effect on the fairness of proceedings. However, these protections are subject to limitations, the safeguard under s.101 ( e ) has a difficult threshold to reach to be triggered and the additional Reliance on PACE s.78 is discretionary. This article’s focus will be on Section 101 (1) (d) (Gateway (d) ) and Section 101(1) (g) (Gateway (g) ). The definition of propensity under Section 103 of the CJA for Gateway (d) states it is shown if the defendant has previous convictions for similar offences, there is a pattern of behaviour and untruthfulness. Moreover, the trigger for Gateway (g) to be invoked is defined in Section 106 of the CJA[21], stating an attack of another person’s character can be done by the evidence, questions, statements made by the defendant.
The problematic nature of Gateways D and G
Perhaps the most controversial of the ‘Gateways’ under the CJA is Gateway (d). This allows the prosecution to introduce the type of evidence if it is relevant to an important matter in issue between the parties. In practice, this often means showing the defendants propensity to commit offences of the same description or to be untruthful. While introduced to “rebalance the criminal justice in process in favour of victims”[22], this gateway arguably puts defendants’ protection at risk. One reason for this is that offences of the same ‘description’ will be widely interpreted, leading to over-broad and inconsistent application. In the case of R v Gilmore[23], the trial judge allowed three previous shoplifting convictions to be admitted under Gateway (d) to show a “propensity to steal” despite the actual offence being a different type of theft. Moreover, in the case or R v Urushadze[24] , shoplifting convictions were admitted showing a propensity for robbery[25]. This broadness allows bad character evidence to be easier to admit, suggesting the threshold for admissibility is too low[26]. An additional problem that arises within this gateway is the broad wording of Sections 101 to 103 regarding old convictions. In R v Royston Jackson[27] , despite the 20-year gap since the offence, it was still admitted for murder. This admissibility has been criticised for punishing a defendant for the past.
The second gateway to be assessed is Gateway (g). As seen in R v Weir[28], a defendant’s attack on the complainant’s character can lead to the gateway being opened. This gateway has sparked much controversy from academic scholars such as Goodman who contend it forces “criminal defendants into a perilous no-man’s land prior to a trial, a land not unlike the proverbial purgatory.”[29] In cases such as R v Renda; Ball; Akram; Osbourne and Razaq[30], this gateway can be triggered by statements made pre- trial. It appears unfair that during a pre-trial interview, where individuals are often placed in high-stressed unfamiliar environments, any remarks made, which can be driven by anger and distress, will be used against them[31]. Moreover, the definition of an attack under this gateway is strikingly broad.[32] Although R v Nelson[33] did indeed recognise that not every comment should be treated as an “attack”, this safeguard is not embedded in a statutory test, and it depends entirely on judicial discretion at trial. In R v Ball[34], the defendant made unpleasant remarks about the victim’s sexual history and referred the victim as being a “slag.”[35] This led to bad character under Gateway (g) being admitted. Moreover, in R v Lamaletie[36], it was held that saying someone started a fight could count as reprehensible behaviour and thus could constitute as an attack. As Parsons contends “the defendant’s shield shall be lost again”[37] and this broad definition of what constitutes as an attack invites further room for prejudicial reasoning within the jury.
Both gateways suggest, as Parson contends, we are moved towards a “conservative model”[38] of criminal justice, “reducing the de facto standard of proof”[39]. Moreover, as Parson further contends, the admissibility of bad character evidence can consequentially foster “prejudicial reasoning”[40] within the jury. Research was indeed found in the House of Commons Home Affairs Committee that exposed that knowledge of previous convictions increased the chance that the defendants will be found guilty[41]. As Levanon purports this “tragic error”[42] by which defendants could be falsely convicted based on their past misconduct, placing them “deeper in the claws of the recidivism statistics”[43]. However, as Lord Goldsmith purported in the House of Lords debate on the Criminal Justice Bill in 2003, “Public confidence in the justice system is diminished if people are able to walk free where there is compelling new evidence that they have committed serious offences”[44]. Indeed, cases such as Simon Berkowitz’s (a known prolific burglar) reflect the sentiment mentioned above, where the exclusion of past convictions prior-2003 allowed the jury to acquit those who were not innocent. However, the principles enshrined in Article 6 of the ECHR of the right to a fair trial is a cornerstone of democratic justice, and must be prioritised, thus is it more important in a democracy to acquit the guilty on case fact basis than to unknowingly prejudicially convict them based on character.
Proposal for reform
There is a growing consensus that the bad character gateways under CJA 2003 require reform. Particularly Gateways (d) and (g) require this. Interestingly, in a report on a Joint Committee on Human Rights, there was a recommendation that there should be a tightening of the admissibility for character gateways to be satisfied.[45] For Gateway (d) there was a recommendation of only relevant previous convictions being able to get through, only allowing convictions if they clearly relate to the fact of the current offence rather than allowing old convictions with no time or relevance limit[46]. In dealing with Gateway (g) scholars such as Goodman has suggested that this gateway should only be reformed “knowingly, intelligently and after the advice of trial counsel,”[47] suggesting a need for reform to restrict when pre-trial statements can trigger this gateway”[48]. Goodman further touches on ending the “perilous no-man’s land”[49] for defendants, suggesting that the heavy use of such gateways under the CJA makes it difficult for a defendant to plead not guilty, he interestingly suggests a conduct of research to see if criminal defendants would choose to testify under the post-2003 CJA gateways and compare that to the prior laws”[50]. Thus, for the operation of a fair trial, reforms should be considered concerning bad character evidence gateways to protect defendants.
Conclusion
To conclude, this article has examined two key gateways to bad character evidence and critically evaluated whether they undermined the fairness of trials in the United Kingdom. it has identified the broadness of Gateway (d) with offences of the same category are interpreted too widely and additionally highlighted the unfairness from the admissibility of old offences. Moreover, it has examined the unfairness of Gateway (g)’s due to its allowance for pre-trial statements to be admitted and its overly broad interpretation of what constitutes as an attack. In addition, this article has considered some of the potential calls for reform from Human rights bodies and academic scholars. This article contends that the gateways under bad character evidence can indeed threaten the fairness of a trial as the admissibility of the gateway arguably make it easier for prosecutors to use bad evidence, inviting room for prejudicial reasoning within the jury. Although some argue that these gateways serve as an important role in preventing individuals from evading justice, their operation also can pose a significant risk to the defendant’s protection within the trial process. This can be seen to give a rise to a tension of two important principles; however, this article has contended that the precedence must be afforded to the fundamental democratic principle enshrined in human rights law: the right to a fair trial.
Bibliography
Chambers Goodman.C ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91,
Cherry K, “The Halo Effect: Turns Out There Really Is More to a Book Than Its Cover” Verywell Mind (May 1, 2013) <https://www.verywellmind.com/what-is-the-halo-effect-2795906> accessed August 6, 2025
Levanon, L. ‘Bad character’, tragic errors and deep ignorance. (2019) Legal Studies, 39(4), 676-693.
McLeod S, “Social Identity Theory In Psychology (Tajfel & Turner, 1979)” (Simply Psychology, November 3, 2022) <https://www.simplypsychology.org/social-identity-theory.html> accessed August 6, 2025
Parsons S, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181.
Cases
R v Gilmore [2005] EWCA Crim 824, [2005] 2 Cr App R 21
R v Urushadze [2008] EWCA Crim 2498
R v Weir [2006] 1 WLR 1885
R v Renda; Ball; Akram; Osbourne and Razaq [2006] 1 WLR 2948
R v Nelson [2006] EWCA Crim 3412
R v Ball [2006] 1 WLR 2948
R v Lamaletie [2008] EWCA Crim 314
[1] Criminal Justice Act 2003
[2] Criminal Justice Act 2003, s 101(1)(d)
[3] Criminal Justice Act 2003, s 101(1)(g)
[4] European Convention on Human Rights (ECHR) Article 6
[5] Kendra Cherry, “The Halo Effect: Turns Out There Really Is More to a Book Than Its Cover” Verywell Mind (July 15th , 2024) <https://www.verywellmind.com/what-is-the-halo-effect-2795906> accessed August 6, 2025
[6] Saul McLeoud, “Social Identity Theory In Psychology (Tajfel & Turner, 1979)” (Simply Psychology, October 5, 2023) <https://www.simplypsychology.org/social-identity-theory.html> accessed August 6, 2025
[7] Home Affairs Select Committee, Second Report, 4 December 2002.
[8] Criminal Justice Act 2003, s 98.
[9] Criminal Justice Act 2003, s 112
[10] Criminal Justice Act 2003, s 101(1)
[11] Criminal Justice Act 2003, s 101(1)(a)
[12] Criminal Justice Act 2003, s 101(1)(b)
[13] Criminal Justice Act 2003, s 101(1) ( c )
[14] Criminal Justice Act 2003, s 101(1)(d)
[15] Criminal Justice Act 2003, s 103
[16] Criminal Justice Act 2003, s 101(1) ( e )
[17] Criminal Justice Act 2003, s 101(1)(f)
[18] Criminal Justice Act 2003, s 101(1)(g )
[19] Criminal Justice Act 2003, s 101(3)
[20] Police and Criminal Evidence Act 1984, s 78.
[21] Criminal Justice Act 2003, s 106
[22] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181.
[23] R v Gilmore [2005] EWCA Crim 824, [2005] 2 Cr App R 21
[24] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181.
[25] R v Urushadze [2008] EWCA Crim 2498
[26] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181.
[27] R v Royston Jackson [2007] EWCA Crim 247
[28] R v Weir [2006] 1 WLR 1885
[29] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.122
[30] R v Renda; Ball; Akram; Osbourne and Razaq [2006] 1 WLR 2948
[31] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.122
[32] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.122
[33] R v Nelson [2006] EWCA Crim 3412
[34] R v Ball [2006] 1 WLR 2948.
[36] R v Lamaletie [2008] EWCA Crim 314
[37] [37] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181. P.189
[38] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181. P.196
[39] R v Weir [2001] EWCA Crim 1837
[40] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181. P.195
[41] Simon Parsons, ‘The Criminal Justice Act 2003 – do the Bad Character Provisions Represent a Move Towards an Authoritarian Model of Criminal Justice?’ (2007) Mountbatten Yearbook of Legal Studies 181. P.195
[42] Levanon, L. (2019). ‘Bad character’, tragic errors and deep ignorance. Legal Studies, 39(4), 676-693. P.3
[43] Levanon, L. (2019). ‘Bad character’, tragic errors and deep ignorance. Legal Studies, 39(4), 676-693. P.3
[44] Lord Goldsmith, HL Deb 30 October 2003, vol 654, col 449.
[45] Joint Committee on Human Rights, Eleventh Report (Session 2002–03, HL 118, HC 118, 13 June 2003).
[46] Joint Committee on Human Rights, Eleventh Report (Session 2002–03, HL 118, HC 118, 13 June 2003
[47] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.119
[48] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.122
[49] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.122
[50] Chris Chambers Goodman, ‘The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act’ (2006) 70(2) Journal of Criminal Law 91, p.121
