(1)Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true.
(2)In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true.
Cases considering section 109 20
[2025] EWCA Crim 1317 · 16 October 2025Interprets
The court interpreted the provision as requiring relevance and probative value to be assessed on the assumption that the bad character evidence is true. That assumption supplies context but does not decide admissibility; the statutory gateway must still be applied (see paras [75]-[80]).
The court proceeded on the basis that subsection (2) did not apply, so the assumption in subsection (1) governed the admissibility assessment (see paras [75]-[76]).
[2020] EWCA Crim 284 · 28 February 2020Interprets
Section 109 was applied to require assessment of relevance and probative value on the assumption that the evidence was true, unless no court or jury could reasonably find it true. That assumption did not settle admissibility; the court still had to assess the statutory conditions and the practical ability of a jury to resolve the issue. (see paras [34]; [37]-[38])
[2019] EWCA Crim 1144 · 13 June 2019
The court applied the statutory assumption that evidence is true when assessing its relevance or probative value, subject to section 109(2). (see paras [31]; [36])
The court upheld the judge’s conclusion, after a voir dire, that the identification evidence was not evidence which no jury could reasonably find true. It therefore remained admissible for the statutory assessment. (see paras [32]; [36])
What each judgment says about section 109 is in the case-law panel in the full Act.
389.Section 109 requires a court, when considering the relevance or probative value of bad character evidence, to assume that the evidence is true. This reflects the distinction between the roles of the judge and jury: it is for the jury to form a view on matters of fact, such as the reliability of the evidence, and for the judge to rule on issues of law. However, there may be occasions where evidence is so unreliable that no reasonable jury could believe that it was true. In these circumstances, intended very much to be exceptional cases, Section 109(2) makes it clear that the judge does not have to assume the evidence is true. In making this decision, the court should normally make its decision based on the papers before it; however there may be exceptional circumstances in which a separate hearing on the issue (a voir dire) might be necessary. This reflects the current common law position as established in R v H [1995] 2 AC 596 which considered the admissibility of similar fact evidence in cases of alleged collusion.