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

The risk of prejudice
6.33 In the consultation paper 23 we distinguished two kinds of prejudice – “reasoning
prejudice”, the tendency to give bad character evidence undue weight in
determining whether the defendant is guilty as charged, and “moral prejudice”,
the tendency to convict through distaste for the defendant without being truly
satisfied that he or she is guilty as charged at all. 24 Moral prejudice is particularly
likely where the evidence of bad character discloses crimes for which the accused
has not been punished. We thought there was a danger that bad character
evidence could give rise to both these kinds of prejudice. 25 We said that “in the
absence of convincing evidence that fact-finders will not be affected by prejudice,
our provisional view … is that proposals should err on the side of caution”, and
regarded this as a serious objection to option 1. 26
6.34 The respondents who considered this provisional conclusion were almost equally
divided on it. Supporters of option 1 thought the danger of prejudice was
overstated. Some did not address the danger at all. Many asserted that the
Commission, and society generally, should “trust the jury”. 27
6.35 Several respondents thought it patronising of us to think that jurors will be
susceptible to prejudice. On the other hand, Phillips LJ wrote “Why do we
assume that the jury will give it more weight than it deserves? Perhaps because
we feel that we should risk doing so ourselves – that human nature carries with it
the risk that such evidence will carry greater prejudice than its probative weight
merits.” We think it is legitimate to expect the training and experience which
magistrates and judges have to reduce their susceptibility to prejudice. We
recognise, however, that it is impossible to know how successful the training and
experience is in this respect. 28
23 Paras 7.7 – 7.15.
24 Both terms are taken from A Palmer, “The Scope of the Similar Fact Rule” (1994) 16
Adel LR 161, 169. The Jury Study found that if the defendant had a previous conviction
for an indecent assault on a child, the mock jurors were not only more likely to convict
him, but were also more likely to believe that he would commit other offences in the
future, was more deserving of punishment and was more likely to lie on oath. See
Appendix D to the consultation paper.
25 See para 7.36.
26 Para 9.19.
27 Several respondents explicitly endorsed the views of David Pannick QC expressed in his
article, “Juries can cope with a defendant’s form” The Times 8 October 1996. More
recently, though, he has written, “[The Government’s] proposal that juries should be told
about defendants’ previous convictions is wrong in principle and flawed in practice. … It
does not make sense to give a dog a bad name.” The Times 17 July 2001.
28 At paras 9.13 – 9.14 of the consultation paper we referred to studies which cast doubt on
the ability of judges to be immune to prejudice. One of these is a study of 35 Dutch cases
where Roderick Munday concludes that, in 13 of the cases, the judges’ decisions had been
“critically affected” by the defendant’s criminal records: “Comparative Law and English
Law’s Character Evidence Rules” (1993) 13 OJLS 589, 597. In the same study reference is
made to an experiment which showed that the order in which information is presented to
trained judges affected the likelihood of conviction, which was higher where the record was
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