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

PART VII
OVERVIEW OF OUR RECOMMENDATIONS
7.1 The overall aim is that all the rules on admissibility of evidence of a person’s bad
character should be set out in one statute. This entails replacing the existing
mélange of rules deriving from statute and common law with a single
comprehensive set of rules. 1
7.2 At the heart of our proposals are five fundamental considerations, namely:
(1) No person who is involved in a criminal trial should be subject to a
gratuitous and irrelevant public attack on their character.
(2) To adduce evidence of a person’s bad character in a public forum is,
prima facie, such an invasion of their privacy and so prejudicial to them
that it should not be adduced where any relevance it may have to the
issues the fact-finders have to decide is of no real significance or is only
marginal.
(3) The fact-finders in any criminal trial must have all relevant material
placed before them so as to enable them to perform their function,
consistent with doing justice to the parties whose accounts they have to
judge.
(4) Wherever it is appropriate for aspects of a person’s character to be
adduced in evidence it should only be permitted to the extent that it is
relevant for the fact-finders to be aware of it for the performance of their
task.
(5) In the case of evidence of the bad character of a defendant, the probative
value must be sufficient to outweigh the prejudicial effect of the evidence
(except where the evidence is being adduced by one defendant about
another).
7.3 There are three organising principles of the new structure for the rules on
evidence of bad character.
INSIDE OR OUTSIDE THE CENTRAL SET OF FACTS
7.4 First, a distinction is drawn between (i) evidence about the events for which the
accused is being prosecuted, the investigation and the prosecution for offences
arising out of those events (“the central set of facts”), and (ii) any evidence of
bad character which goes outside that central set of facts. This distinction is
central to our scheme.
1 Clause 20 of the draft Bill abolishes the existing common law on admissibility of bad
character evidence, and repeals s 1(e) and (f)(i) – (iii) of the 1898 Act which govern the
admissibility of bad character evidence in cross-examination of the defendant.
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