Evidence of Bad Character in Criminal ... - Law Commission

6.22 The position is somewhat different in the Crown Court, since the judge will
almost certainly have ascertained whether the defendant is of good character and
will remind a defence advocate who forgets to adduce evidence of that fact.
While Dr Lloyd-Bostock’s research suggests that by no means all jurors will infer
that the defendant has a record unless they are told otherwise, it seems likely that
most juries will include individual jurors who will draw that inference and may
voice it; and that, where it is drawn, it will be correct. We therefore agree that, in
the Crown Court at least, there is a problem which needs to be addressed. The
question is whether this consideration points inexorably to option 1.
IS OPTION 1 THE ONLY SOLUTION?
6.23 We agree that it is unsatisfactory for jurors to be left with neither information on
the subject of the defendant’s character nor guidance on what to make of the
absence of such information. The point at which we part company with the
argument is where it is suggested that the jury should therefore be given
information on the subject in every case, by disclosing the defendant’s record at
the start of each trial, rather than guidance on how to deal with its absence. It
seems to us that the proposed solution goes much further than is necessary to
meet the difficulty. The difficulty, in essence, is that there is information which
jurors would be likely to regard as relevant but which is withheld from them, and
which they are likely to realise is being withheld from them. The defendant’s
record is by no means the only information in relation to which this difficulty can
arise. Indeed, the Judicial Studies Board recommends that the following
direction be given where the judge thinks it may be of assistance in the particular
case:
You must decide this case only on the evidence which has been
placed before you. There will be no more. You are entitled to draw
inferences, that is come to common sense conclusions based on the
evidence which you accept, but you may not speculate about what
evidence there might have been or allow yourselves to be drawn into
speculation.
6.24 It seems to us that, in appropriate cases, this direction might usefully be extended
along the following lines:
One matter on which you have not heard evidence is whether the
defendant has committed offences before. You might from that be
tempted to infer that he or she has. There are good reasons for your
not being told about any previous convictions that he or she may
have. If fairness both to the prosecution and the defence required you
to be told, you would have been. As it is, however, there is no evidence
on the matter. It therefore has no bearing on your verdict, and you
must not speculate about it.
Where (in the Crown Court) no mention of good character has been made, we
assume that this will be because the defendant does have a criminal record. It
therefore seems reasonable to direct the jury in terms which, while not expressly
confirming that fact (which would be inconsistent with the judge’s role),
nevertheless confront the likelihood that the jury will be aware of it. Moreover,
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