“Substantial Probative Value” Re-affirmed: Hartley, R. v ([2025] EWCA Crim 904) and the Elevated Threshold for Non-Defendant Bad-Character Evidence

Introduction

In Hartley, R. v ([2025] EWCA Crim 904) the Court of Appeal (Criminal Division) was asked to decide whether the trial judge erred in refusing the defence leave to adduce a recording of a 999 call as evidence of the complainant’s bad character, and whether a late-served Victim Personal Statement (VPS) should similarly have been admitted to undermine the complainant’s credibility. The appellant, James Hartley, had been convicted of assault by penetration and sentenced to nine years’ imprisonment, alongside a concurrent 16-month sentence for assault occasioning actual bodily harm (ABH) to which he had pleaded guilty.

The appeal squarely raised the correct interpretation of section 100 of the Criminal Justice Act 2003 (“CJA 2003”)—the gateway for non-defendant bad-character evidence. Although the statutory language has stood unchanged since 2003, appellate guidance on how strictly the phrase “substantial probative value” ought to be applied has occasionally drifted. Hartley restates and clarifies that threshold, warning against satellite disputes that threaten to overwhelm the real issues the jury must decide.

Summary of the Judgment

The Court of Appeal (LJ Holroyd presiding) dismissed the appeal and refused leave to adduce fresh evidence. Key holdings include:

The 999 recording, though relevant to collateral events in September 2021, lacked “substantial probative value” in relation to any issue of substantial importance in the trial—namely whether Mr Hartley digitally penetrated the complainant on 29 January 2022.
The evidence risked creating a satellite trial over who was telling the truth about an earlier altercation and would have distracted the jury.
Procedural non-compliance (an oral, last-minute application) further fortified the Recorder’s discretion to refuse the evidence, though the judge nevertheless considered it on merit.
The VPS—while “fresh” within section 23 Criminal Appeal Act 1968—added nothing of real weight; any apparent inconsistencies were minor, explicable, and did not undermine the conviction.

Analysis

A. Precedents Cited

The Judgment’s principal authority is R v Brewster and Cromwell [2010] EWCA Crim 1130; [2010] 2 Cr App R 20, where the Court asked whether proffered evidence was “sufficiently persuasive to be worthy of consideration by a fair-minded tribunal”. Although Brewster loosened the grip of an absolute rule against collateral controversies, Hartley re-emphasises that the test is still exacting.

Other precedents—some only implicit—frame the analysis:

R v Hanson & Others [2005] EWCA Crim 824 – The leading case on defendant bad-character, cited here to draw a contrast: even for defendant propensity, similarity, frequency and recency matter.
R v Reynolds [2021] EWCA Crim 10 – Reiterated that section 100 is “narrow” and concerned with exceptional cases where credibility is pivotal.
R v Hunter [2015] EWCA Crim 631 – Discussed jury directions on bad character; Hartley notes no direction was required where no bad-character evidence was admitted.

B. Legal Reasoning

Statutory Gateway (s.100 CJA 2003). The Court parsed section 100(1)(b): evidence of a non-defendant’s misconduct is admissible only if it has substantial probative value on a matter of substantial importance. Section 100(3) then mandates consideration of (i) the number of such events, (ii) their temporal proximity, and (iii) degree of similarity.
Application to the 999 Call. • Temporal Gap—Four months before the charged offence; no direct nexus.
• Dissimilarity—The earlier incident involved mutual allegations of assault, not sexual penetration.
• Single Event—Insufficient to show a propensity to lie. On these metrics, the call fell well below the statutory threshold.
Risk of “Satellite Litigation.” Following Brewster, the Court stressed that juries should not be diverted into collateral fact-finding that does little to illuminate the main charge. Introducing the call, especially late in the trial, would have spawned disputes over voice-tone, background noises and sequence of events—anathema to focused adjudication.
Procedural Default. Criminal Procedure Rules (CrimPR 21.2) require written notice for bad-character applications. Although a judge may entertain a late oral application (R v Naeem [2019] EWCA Crim ) the Recorder exercised permissible discretion in refusing.
Strength of the Prosecution Case. Even assuming marginal relevance, exclusion did not imperil safety of the conviction: corroborative evidence included (a) the appellant’s spontaneous admissions to his sister and (b) medical findings consistent with digital penetration.

C. Impact and Prospective Significance

Re-centring the Section 100 Threshold. Practitioners sometimes treat credibility as an automatic passport for cross-admitting collateral misconduct. Hartley cautions that “substantial probative value” remains a high bar despite the subjective allure of impeaching a complainant.
Procedural Discipline. Late, informal applications risk summary refusal. Defence teams must flag potential bad-character evidence early, or give compelling reasons for delay.
Judicial Economy. The judgment reinforces appellate backing for trial judges who police the scope of a trial to prevent mini-trials on peripheral issues. Expect trial judges to reference Hartley when curtailing collateral credibility forays.
Victim Personal Statements (VPS) Boundaries. The decision underscores that VPSs are for sentencing and rarely fertile ground for credibility challenges at trial or on appeal.

Complex Concepts Simplified

Bad-Character Evidence (Non-Defendant) – Information showing someone other than the defendant has behaved badly on another occasion. Admissible only through section 100.
Substantial Probative Value – Evidence that is strongly helpful in proving (or disproving) something crucial in the case, not merely “somewhat relevant.”
Satellite Litigation – Side-issues that mushroom into significant factual disputes, distracting the jury from the core allegations.
Section 23 Criminal Appeal Act 1968 – Governs when “fresh evidence” can be introduced on appeal; four criteria must be satisfied including admissibility, credibility, relevance, and overall justice.

Conclusion

Hartley is most valuable for its measured articulation of when—and when not—to admit non-defendant bad-character evidence. By reaffirming a stringent reading of “substantial probative value,” the Court of Appeal equips trial judges with sturdy authority to exclude collateral material that threatens to derail the trial’s focus. The decision simultaneously nudges practitioners toward greater procedural rigour and discourages opportunistic fishing expeditions for credibility attacks. In short, Hartley does not create wholly new law, but it crystalises existing principles into a concise, practice-oriented precedent—likely to be cited whenever section 100 is invoked in the future.