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

Sexual Offences (Amendment) Act 1976. 24 We clearly lack a common
conception of relevance. 25
There is some truth in this. We believe, however, that a requirement that all bad
character evidence has to be of substantial probative value in order to be
admissible can be made more effective in practice by spelling out the factors
which a court should take into account when deciding whether evidence meets
the raised standard.
7.17 Thus we think that the concern that “substantial” is too vague is overstated. We
think there is merit in the flexibility of the term. We said in the consultation paper
that “we do not think it appropriate to prescribe in a statute which kinds of
conviction are and are not probative”, 26 and most of those who responded on the
point agreed. In our view, the gist of “substantial” in this context is “more than
minor or trivial” and that is the sense in which we use it.
Taking factors into account
7.18 The court, when deciding on admissibility of such character evidence, should be
assisted in making its decision on the extent of its probative value by being
required to have regard to all relevant matters, including such of a number of
factors set out in the statute as are relevant. These factors include: (i) the kind of
events or other things the evidence is about; (ii) how many of these there are; (iii)
when they are alleged to have happened or (in the case of a state of affairs) to
have existed; (iv) where the evidence is evidence of misconduct, and it is
suggested that the evidence has probative value by reason of similarity between
that misconduct and the alleged misconduct, the nature and extent of the
similarities and the dissimilarities between each of the alleged instances of
misconduct; (v) where the evidence is evidence of a person’s misconduct, and it
is suggested that that person is also responsible for the misconduct alleged, and
the identity of the person responsible for the misconduct alleged is disputed, the
extent to which the evidence shows or tends to show that the same person was
responsible each time.
7.19 When deciding on admissibility of bad character evidence the court should be
assisted in making its decision, both in relation to the assessment of probative
value and of the risk of prejudice, by being required to have regard to all relevant
matters, including such of a number of factors set out in the statute as are
relevant. We recommend that the legislation should set out the factors to
which a court is to have regard when assessing the probative value of bad
character evidence or where the interests of justice lie. 27
24 Z Adler, Rape on Trial (1987); S Lees, Carnal Knowledge: Rape on Trial (1995).
25 Jenny McEwan, “Law Commission Dodges the Nettles in Consultation Paper No. 141”
[1997] Crim LR 93, 102.
26 Para 6.63.
27 See cl 5(2), 9(7) and 10(8) of the draft Bill.
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