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

solution would thus be to allow evidence of a defendant’s past
conduct to be adduced only if a psychiatrist were able to give
evidence that the defendant has a personality defect that “causes”
him or her to commit sexual offences. 57
We added that the increased danger of prejudice in cases involving sexual
offences must not be forgotten.
6.61 If, in a particular case, evidence of some personality defect or disposition is
especially relevant because it is abnormal, then (unless it is also especially
prejudicial) it should be admissible. For the purposes of evaluating option 2,
however, the question is whether evidence of previous sexual offences should be
admissible without the need to show such relevance, merely because both the offence
charged is also sexual. We are still of the view that the case for such a rule has not
been made out. Indeed, since sexual misconduct tends to be more prejudicial
than other misconduct, the arguments for a general exclusionary rule seem if
anything to be stronger in this case. We reject this option.
OPTION 3: ALLOW EVIDENCE OF THE DEFENDANT’S PREVIOUS MISCONDUCT
TO BE ADDUCED ONLY WHERE IT IS AN INGREDIENT OF THE OFFENCE
CHARGED
6.62 At the opposite extreme to option 1 is option 3, under which previous
misconduct would hardly ever be admissible. The only exception would be where
the misconduct is actually an element of the offence alleged. The defendant’s
previous disqualification, for example, is an element of the offence of driving
while disqualified. Subject to that necessary exception, previous offences could
not be adduced even if their probative value were overwhelming.
6.63 However sceptical one might be of the value of bad character evidence, there are
clearly some cases in which it is so probative that it should be admitted.
Understandably, this option received no support at all, and we reject it.
OPTION 4: A SINGLE INCLUSIONARY RULE WITH AN EXCEPTION FOR
EVIDENCE WHOSE LIKELY PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE
VALUE 58
6.64 A few respondents favoured introducing the record at the beginning of a trial as
a matter of course, as in option 1, but would also give the court a discretion to
exclude previous convictions which were too prejudicial. This amounts to our
option 4. While it meets some of our objections to option 1, it also sacrifices one
of option 1’s main attractions – namely its (supposed) simplicity. We think it
would make for complexity and delay if a judicial discretion had to be exercised
in every case where a defendant has a criminal record.
57 Para 9.36.
58 Paras 9.58 – 9.69.
98