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

(a) it falls within the central set of facts, or
(b) all parties agree it should be admitted, or
(c) the evidence is of a defendant’s bad character and is adduced by
that defendant.
(2) Leave may only be granted, where required, if the evidence falls within
one of a number of categories which are the subject of detailed provisions.
8.3 The recommendations made in this Part are given effect by clauses 1 and 2 of
the draft Bill.
DEFINING EVIDENCE OF BAD CHARACTER
The options considered in the consultation paper
8.4 In the consultation paper we discussed three different ways of drawing up a rule
excluding bad character evidence. 2 The first, option A, was as follows.
The most obvious approach is to confine the rule to evidence of
certain kinds of fact. It might be provided, for example, that the rule
should extend to any evidence that (or from which the fact-finders
are likely to infer that) the defendant has committed a criminal
offence, or done anything else that is likely to reflect adversely on the
defendant in the minds of the fact-finders, other than the commission
of the offence charged. 3
8.5 This approach seemed attractively straightforward but we were concerned that
distinguishing between conduct alleged to constitute the offence charged and
other conduct was not a simple matter. In particular, there were difficulties
inherent in the law on “background” evidence and so it would be hard to say
what was “background” and what part of the offence itself. 4 We therefore
provisionally rejected this option.
8.6 Whereas option A focused on the kinds of facts in question, option B focused on
the kinds of inferences the fact-finders are invited to draw, or, put another way,
the purpose of the evidence. We stated that it
would involve asking what kinds of inference the fact-finders would be
invited to draw from the evidence if it were admitted. In most cases
of the kind with which we are concerned, the fact-finders are asked to
infer that the defendant is likely to have committed the offence
charged either
2 Paras 9.74 – 9.92.
3 Para 9.75.
4 The law on background evidence was set out at paras 2.70 – 2.84 of the consultation
paper, and is described more briefly at para 10.1 of this report. We had in mind
particularly Ellis (1826) 6 B & C 145, 108 ER 406; Rearden (1864) 4 F & F 76, 176 ER
473; Bond [1906] 2 KB 389.
108