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

7.5 In a criminal trial it is inevitable that assertions are to be made about the
defendant’s “bad character” in the sense that his or her conduct on, and related
to, the occasion in question is said by the prosecution to be criminal. Whenever
the trial is contested, it is highly likely that the defendant in putting forward the
defence will need to make imputations about the conduct of others. They may be
prosecution witnesses or they may not be witnesses at all. The imputations may
be as to their conduct on, or related to, the occasion in question or in relation to
the conduct of the investigation or prosecution. In our view, imputations of bad
character in relation to the events which are the subject of the trial or their
investigation or prosecution, whether made by the prosecution or the defendant,
must be admitted into evidence without fear of automatic penalty. They go to the
core of the case which the fact-finders have to determine.
7.6 It has been a defect in our law that the defendant, in putting a case which makes
imputations against the character of another, has had to run the risk that his or
her entire previous character will be adduced in evidence on the issue of his or
her credibility. This has led to a distortion of the issues and the evidence as
presented to fact-finders at trial, by tempting defendants either to avoid putting
their full case or to refrain from giving evidence to support it. The efforts of the
courts to ameliorate this defect, either by construing the 1898 Act accordingly, 2
or by exercising discretion, have served to draw attention to the problem but
have, perforce, addressed it inconsistently and unpredictably. We propose to
introduce fairness, consistency and predictability, by reforming the law so that
the defence, no less than the prosecution, should be able to make allegations of
bad character in respect of the events the subject of the trial, or related thereto,
and their investigation or prosecution, without running the risk that evidence of
the defendant’s bad character on other occasions will be adduced solely on the
issue of credibility.
7.7 By way of contrast, where any party to the trial wishes, without the consent of
another party, to adduce evidence of another person’s bad character which goes
outside the central set of facts, they must obtain the leave of the court. In
determining whether to give leave, the court must first apply a common basic
rule upon which all else will be built, namely: that a person’s bad character may
only be introduced into evidence if, and to the extent that, it is of substantial
probative or explanatory value in relation to the issues in the case. The single
standard of substantial probative or explanatory value is the one which should be
applied whether it is the prosecution, or the defendant, or a co-defendant, who
wishes to introduce the evidence and whether it is a defendant’s character or that
of a witness or another person who is involved in the events in issue which it is
2 Judicial effort in construction has largely been focused on what constitutes an
“imputation” that will lose the defendant his or her shield. The current approach to the
relevant section of the 1898 Act is described at paras 2.64 – 2.67 above.
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