CR s.100(b) CJA 2003

The court will consider whether the evidence has some substantial probative value which is of “substantial” importance to the whole case.  The court must consider a number of factors set out in s.100(3) CJA:

• The nature and number of things to which the evidence relates;

• When those things are alleged to have happened;

• If it is suggested that the conduct is relevant because of its similarity to the present offence; then the degree of similarity;

• The extent to which it can be shown that the same person was responsible for each misconduct.

Often the Defendant is suggesting that the prosecution witness is lying, or fabricated evidence against them or that they are guilty of the offence themselves. Often the issue that arises under Gateway B is whether or not the credibility of the witness is of substantial importance to the whole case and whether or not the witness’s bad character it is of substantial probative value in relation to that issue.  

“The first question for the trial Judge under s 100(1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness's credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness' evidence”

 So you do not necessarily have to show bad character relating to dishonesty or untruthfulness, but such convictions are likely to add more weight to your argument.

For example, if you were trying to attack a person’s credibility to show that it was more likely the witness was lying in court, you would consider their previous bad character.  If they had a previous conviction for perverting the course of justice you could rely on this bad character in support of your application. The fact that they have lied before in court and you are suggesting they are lying in court now means that the weight of this bad character is relatively high and it is more likely that evidence will be allowed before the court.