R v BVY

Under section 100(1)(b) of the Criminal Justice Act 2003, bad-character evidence about a non-defendant is admissible only where it has substantial probative value on a matter of substantial importance. The test concerns the force of the evidence, not simple relevance. Its application is fact-sensitive and must take account of the case as a whole, including whether the material adds significantly to other evidence on the same issue.

Expressions in R v Brewster concerning material bearing on, or affecting, credibility do not replace the statutory threshold. They describe the practical assessment after the statutory test is applied. An appellate court will not interfere with the trial judge’s evaluative decision absent legal misdirection or a plainly wrong conclusion.

The appellant was convicted of two sexual assaults of C1, a child under 13, and oral rape of C2, also a child under 13. The defence denied all sexual activity. C1’s credibility was central to counts 1 to 4, and C2’s evidence was relied on independently for count 5.

At trial, the judge refused to admit a school record as C1’s bad-character evidence under section 100(1)(b) of the Criminal Justice Act 2003. The record noted one playground conversation before C1’s complaint. The defence contended that it showed untruthfulness about intimate matters. The appellant appealed against conviction, arguing that the judge applied the wrong admissibility test and that the resulting cross-admissibility direction rendered all convictions unsafe.

1. Appeal dismissed. The trial judge made no error of legal principle in refusing the proposed bad-character evidence, and his evaluation was not one that no reasonable judge could have made.

2. Section 100(1)(b) of the Criminal Justice Act 2003 imposes a higher threshold than mere relevance. Substantial probative value concerns the force of the proposed evidence: whether it substantially assists in proving the point for which it is advanced. The assessment is fact-sensitive and made in the context of the case as a whole. If the threshold is met, there is no residual discretion to exclude the evidence; consequently, the threshold must not be understated.

3. The court explained R v Brewster, [2010] EWCA Crim 1194. Its references to material having a bearing on, or affecting, the worth of a witness’s testimony did not formulate a separate or lower admissibility test. They addressed the potential relevance of bad character and the practical inquiry whether material is sufficiently persuasive to assist a fair-minded jury. The statutory requirement of substantial probative value remained governing.

4. The judge had applied that correct approach. He considered whether the material could give real assistance on C1’s credibility and expressly applied the substantial-probative-value threshold. The single, ambiguous school note did not concern an allegation of sexual conduct and did not add significantly to the credibility challenges already pursued through cross-examination and submissions. C1 had given specific evidence and made complaints to her mother. C2 also gave independent cogent evidence of the oral rape.

5. The judge was therefore entitled to conclude that the evidence lacked substantial probative value. There was no basis for treating any conviction as unsafe.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2024] EWCA Crim 1355.
• Crown Court — the judgment records unanimous convictions on 22 November 2022 for two sexual assaults of a child under 13 and rape of a child under 13. No citation for the Crown Court decision is stated. The sentence for rape was later amended under section 278 of the Sentencing Act 2020.