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

6.65 More fundamentally, it is axiomatic that only relevant evidence should be
admitted. Not all evidence of bad character is relevant to the issue of guilt. The
admission of irrelevant bad character evidence might not matter if it were not
prejudicial; but often it is. It can lead to a person being convicted on inadequate
evidence, or where the fact-finders are not in fact sure that the charge has been
made out. Therefore, bad character evidence which is not relevant should in our
view be excluded as a matter of course, not merely as a matter of discretion. We
therefore favour a general rule excluding bad character evidence (subject to
exceptions) rather than a general inclusionary rule subject to a discretion to
exclude.
OPTION 5: AN EXCLUSIONARY RULE WITH A SINGLE EXCEPTION FOR
EVIDENCE WHOSE PROBATIVE VALUE OUTWEIGHS ITS LIKELY PREJUDICIAL
EFFECT 59
6.66 In our view, this option is something of an over-simplification. First, it offers no
scope for excluding evidence whose probative value does outweigh its likely
prejudicial effect. This might be desirable where, for example, the probative value
outweighs the prejudicial effect, but both are of negligible significance, and
introducing the evidence would simply distract the fact-finders from the real
issues. Second, option 5 amounts to the complete abandonment of any attempt
to minimise reliance on judicial discretion, the unpredictability of which we have
identified as a defect of the present law. Our preference is for an exclusionary
rule subject to exceptions which are not wholly dependent on judicial discretion,
but are, as far as possible, objectively defined. We therefore reject option 5.
CONCLUSION: THE GENERAL APPROACH WE RECOMMEND
6.67 Our preference, therefore, is still for a structure along lines similar to option 6 –
namely, an exclusionary rule with a specified exception or exceptions. Moreover,
we now believe that the problems discussed in the consultation paper are best
resolved by means of a general approach which extends to evidence of the bad
character of witnesses and other non-defendants, rather than defendants alone.
In the next Part we give an overview of this scheme.
59 Paras 9.70 – 9.71.
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