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

past behaviour in evidence, in the context of a trial about something else
entirely.”
6.48 It may be (as Lord Justice Schiemann suggested) that this danger could be
avoided in part by adopting a more flexible version of option 1 under which it
would be up to the prosecution to decide whether to disclose the record. This
solution would have disadvantages of its own – for example, practice would
inevitably vary from one prosecutor to another – but, even if it worked, it would
not meet the other objections to option 1. It would still allow the admission of
prejudicial evidence with little or no relevance to the issues in the case.
Distraction
6.49 Another practical disadvantage of option 1 is that, even if the defence did not
adduce evidence about the offences disclosed, the fact-finders’ attention would
still be distracted from the real issues in the trial. Lord Justice Schiemann,
although favouring option 1, acknowledged that this could be a justification for
limiting the admissibility of bad character evidence:
I accept reasons of convenience point towards the exclusion of some
facts because their investigation is likely to make it more difficult for
everyone to keep their eye on the ball. That may provide a rough and
ready reason for excluding convictions in relation to matters which
happened “x” years ago.
It may also provide a rough and ready reason for excluding
allegations of past misconduct which has not resulted in a
conviction. ...
The fairness of the criminal justice system
6.50 In the consultation paper we concluded that “There is a danger that unfairness
to those with criminal records would be built into the criminal justice system if
previous convictions were freely admitted”. 37 We pointed out that
once someone has a record, he or she is more likely to be questioned
than if he or she had no record; if at the trial a previous conviction is
admitted and is for a similar offence to the current charge, a
conviction is more likely to follow; 38 the record gets longer and so he
or she is even more likely to be questioned when there is next a crime
of that type committed in that locality. There is thus a cumulative
effect, 39 which could make it difficult for someone with a criminal
record to be acquitted. 40
37 Para 7.38.
38 See Appendix D to the consultation paper.
39 As described by, eg, C Tapper, “Proof and Prejudice” in E Campbell and L Waller (eds)
Well and Truly Tried (1982) p 207.
40 Para 7.23.
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