(1)For the purposes of section 101(1)(g) a defendant makes an attack on another person’s character if—
(a)he adduces evidence attacking the other person’s character,
(b)he (or any legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (c. 23) to cross-examine a witness in his interests) asks questions in cross-examination that are intended to elicit such evidence, or are likely to do so, or
(c)evidence is given of an imputation about the other person made by the defendant—
(i)on being questioned under caution, before charge, about the offence with which he is charged, or
(ii)on being charged with the offence or officially informed that he might be prosecuted for it.
(2) In subsection (1) “evidence attacking the other person’s character” means evidence to the effect that the other person—
(a)has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b)has behaved, or is disposed to behave, in a reprehensible way;
and “imputation about the other person” means an assertion to that effect.
(3)Only prosecution evidence is admissible under section 101(1)(g).
Cases considering section 106 18
[2020] EWCA Crim 1314 · 13 October 2020Defines
The court held that a defendant makes an attack on character where counsel asks questions intended or likely to elicit evidence that a witness behaved, or is disposed to behave, reprehensibly. Personal knowledge by the defendant and the defendant's own testimony are unnecessary (see paras [100]-[103]).
[2018] EWCA Crim 1394 · 21 June 2018Interprets
The court construed the character-attack gateway as concerning questioning before the jury. Material advanced in an abuse application outside the jury’s presence could not itself found admission under the gateway (see paras [52]–[53]).
The court held that questioning suggesting a flawed police investigation might amount to an allegation of reprehensible conduct, but warned that the gateway must not inhibit legitimate cross-examination (see paras [52]; [59]–[60]).
[2017] EWCA Crim 556 · 28 March 2017
The court applied the statutory definition of an attack on another person’s character. Allegations that witnesses had committed, or conspired to commit, criminal falsehoods were allegations of criminal or reprehensible behaviour (see paras [11]; [14]).
What each judgment says about section 106 is in the case-law panel in the full Act.
379.Section 106 deals with evidence that becomes admissible as a result of the defendant attacking another person’s character (see section 101(1)(g)). A defendant attacks another person’s character if he gives evidence that they committed an offence (either the one charged or a different one) or have behaved in a reprehensible way – section 106(1)(a) and 106(2). This is similar to the definition of evidence of bad character in section 98 but it also includes evidence relating to the facts of the offence charged and its investigation and prosecution. Thus, a defendant would be attacking a prosecution witness if he claimed that they were lying in their version of events or adduced evidence of their previous misconduct to undermine their credibility. But a suggestion that a witness is mistaken is not intended to engage this provision.
380.A defendant also attacks another person’s character if he or his representative ask questions that are intended (or are likely) to elicit evidence of this sort or if the defendant makes an allegation of this nature when questioned under caution or on being charged with the offence and this is heard in evidence – (section 106(1)(b) and (c)).
381.Where a defendant has attacked another person’s character, evidence of his own bad character becomes admissible (but only by the prosecution – see section 106(3)). Evidence admissible on this basis may, however, be excluded under section 101(3).
382.Evidence admissible under section 101(1)(g) – as under section 101(1)(f) - will primarily go to the credit of the defendant. Currently a jury would be directed that evidence admitted in similar circumstances, under the 1898 Act, goes only to credibility and is not relevant to the issue of guilt. Such directions have been criticised and the new statutory scheme does not specify that this evidence is to be treated in such a way. However, it is expected that judges will explain the purpose for which the evidence is being put forward and direct the jury about the sort of weight that can be placed on it.