(1)For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—
(a)the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b)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.
(2)Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of—
(a)an offence of the same description as the one with which he is charged, or
(b)an offence of the same category as the one with which he is charged.
(3)Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.
(4)For the purposes of subsection (2)—
(a)two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;
(b)two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
(5)A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.
(6)Only prosecution evidence is admissible under section 101(1)(d).
[F138 (7)Where—
(a) a defendant has been convicted of an offence under the law of any country outside England and Wales (“the previous offence”), and
(b) the previous offence would constitute an offence under the law of England and Wales (“the corresponding offence”) if it were done in England and Wales at the time of the trial for the offence with which the defendant is now charged (“the current offence”),
subsection (8) applies for the purpose of determining if the previous offence and the current offence are of the same description or category.
(8)For the purposes of subsection (2)—
(a)the previous offence is of the same description as the current offence if the corresponding offence is of that same description, as set out in subsection (4)(a);
(b)the previous offence is of the same category as the current offence if the current offence and the corresponding offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).
(9) For the purposes of subsection (10) “foreign service offence” means an offence which—
(a)was the subject of proceedings under the service law of a country outside the United Kingdom, and
(b) would constitute an offence under the law of England and Wales or a service offence (“the corresponding domestic offence”) if it were done in England and Wales by a member of Her Majesty's forces at the time of the trial for the offence with which the defendant is now charged (“the current offence”).
(10) Where a defendant has been found guilty of a foreign service offence (“the previous service offence”), for the purposes of subsection (2)—
(a)the previous service offence is an offence of the same description as the current offence if the corresponding domestic offence is of that same description, as set out in subsection (4)(a);
(b)the previous service offence is an offence of the same category as the current offence if the current offence and the corresponding domestic offence belong to the same category of offences prescribed as mentioned in subsection (4)(b).
(11)In this section—
“Her Majesty's forces” has the same meaning as in the Armed Forces Act 2006 ;
“service law”, in relation to a country outside the United Kingdom, means the law governing all or any of the naval, military or air forces of that country. F138]
370.Section 103 relates to evidence of a defendant’s bad character that is admissible because it is relevant to an important matter at issue between the defendant and the prosecution (see section 101(1)(d)). Evidence might be relevant to one of a number of issues in a case. For example, it might help the prosecution to prove the defendant’s guilt of the offence by establishing their involvement or state of mind or by rebutting the defendant’s explanation of his conduct. Only prosecution evidence is admissible on this basis – section 103(6) – and the defendant may apply to have the evidence excluded under section 101(3).
371.Section 103(1)(a) makes it clear that evidence that shows that a defendant has a propensity to commit offences of the kind with which he is charged can be admitted under this head. For example, if the defendant is on trial for grievous bodily harm, a history of violent behaviour could be admissible to show the defendant’s propensity to use violence. Evidence is not, however, admissible on this basis if the existence of such a propensity makes it no more likely that the defendant is guilty. This might be the case where there is no dispute about the facts of the case and the question is whether those facts constitute the offence (for example, in a homicide case, whether the defendant’s actions caused death).
372.Where propensity is an issue, subsection (2) provides that this propensity may be established by evidence that the defendant has been convicted of an offence of the same description or category as the one with which he is charged. This is subject to subsection (3), which provides that the propensity may not be established in this way if the court is satisfied that due to the length of time since the previous conviction or for any other reason that would be unjust.
373.An offence of the same description is defined by reference to how the offence appears on an indictment or written charge. It therefore relates to the particular law that has been broken, rather than the circumstances in which it was committed. An offence will be of the same category as another if they both fall within a category drawn up by the Secretary of State in secondary legislation. An order establishing such categories will be subject to the affirmative procedure (see section 330(5)). The categories must contain offences that are of the same type (section 103(4)), for example, offences involving violence against the person or sexual offences.
374.Section 103(1)(b) makes it clear that evidence relating to whether the defendant has a propensity to be untruthful (in other words, is not to be regarded as a credible witness) can be admitted. This is intended to enable the admission of a limited range of evidence such as convictions for perjury or other offences involving deception (for example, obtaining property by deception), as opposed to the wider range of evidence that will be admissible where the defendant puts his character in issue by for example, attacking the character of another person. Evidence will not be admissible under this head where it is not suggested that the defendant’s case is untruthful in any respect, for example, where the defendant and prosecution are agreed on the facts of the alleged offence and the question is whether all the elements of the offence have been made out.