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Under Criminal Justice Act 2003, later bad-character evidence may be admissible to establish propensity where its content is sufficiently specific and materially supports the historic allegation charged. A substantial temporal gap, including where the bad character post-dates the alleged offence, is relevant but not determinative.

The court must balance probative force against prejudice and the fairness of the proceedings. Careful editing and presentation may reduce unfair prejudice.

An appellate court will rarely interfere with a correctly directed bad-character ruling. It will do so only where the propensity assessment is plainly wrong or the discretion was exercised Wednesbury-unreasonably.

The appellant appealed convictions in the Crown Court at Hull for rape, indecent assaults and taking an indecent photograph of his daughter. The sexual allegations concerned conduct when she was aged between seven and 17. They were made after his 2008 arrest for offences involving indecent images of children, to which he pleaded guilty.

At the later trial, the judge admitted limited evidence of the appellant’s computer material as bad-character evidence. It showed an extensive and sustained interest in child sexual material and father-daughter incest, but the images themselves were withheld from the jury. The issue was whether that later material was admissible under the Criminal Justice Act 2003, notwithstanding the elapsed time and its prejudicial character.

1. The appeal was dismissed. The trial judge was entitled to admit the later computer material as evidence of bad character.

2. Under sections 101(1)(d) and 103 of the Criminal Justice Act 2003, the material was relevant to propensity. Its sustained and specific focus on child sexual offending and father-daughter incest could make the complainant’s historic allegation of incestuous rape more likely. That inference was strengthened by the independence of her earlier complaints and her apparent ignorance of the appellant’s later computer use.

3. The fact that the bad-character conduct occurred many years after the alleged offences did not prevent its admission. A long temporal gap, particularly where the later conduct post-dates the charge, may weigh against admissibility in other cases. Here, however, the specific nature of the later sexual interest supplied a sufficient answer to the temporal objection.

4. The absence of proof that the later conduct involved physical sexual assaults did not require exclusion. The statutory propensity regime was not confined to evidence which would previously have satisfied a similar-fact analysis.

5. The judge properly conducted the fairness balancing exercise required by section 101(3). He recognised the material’s prejudicial quality, but its probative force, the restriction to incest-related material, and the exclusion of the images themselves justified admission. The delay in complaint and the resulting availability of later evidence did not make the trial unfair.

6. Following R v Hanson [2005] 2 Cr App R 21, the court would interfere with a correctly directed admissibility ruling only if the propensity assessment were plainly wrong or the discretion Wednesbury-unreasonable. That approach also applied to subsequent, rather than prior, bad-character evidence. Neither demanding threshold was met.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2009] EWCA Crim 513.

• Crown Court at Hull — convicted the appellant after trial of rape, indecent assaults and taking an indecent photograph of a child. The trial judge admitted the challenged bad-character evidence.