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

Evidence of criminal offences
8.10 Paul Roberts, Reader in Criminal Justice at Nottingham University, wrote:
However, the Commission seems unaware of potential drawbacks in
its own preferred scheme. For one thing, if the existing statute and
common law on a defendant’s previous misconduct were abrogated
without specific statutory replacement, the courts would be at liberty
to decide that the new statutory scheme was narrower in scope than
the old common law. The judges might, for example, decide to adopt
a practice of routinely allowing defendants’ credibility to be
impeached by evidence of their previous convictions of dishonesty
offences, the specific prohibition on questions tending to show
convictions currently contained in proviso (f) having been replaced
by the new, non-specific statutory wording. On one view of the
meaning of credibility, the prosecution might even be permitted to
adduce such evidence in chief, regardless of whether the defendant
testifies or not. No doubt this argument is tendentious, or even
disreputable, but that fact alone is not proof against its success. And if
this type of argument were to find favour with the courts, the
Commission’s carefully worded exceptions to its general exclusionary
rule would be pro tanto pre-empted, outflanked like an adjectival
Maginot Line. 7
8.11 We find this objection persuasive. We agree that, where the evidence in question
shows or tends to show that a person has committed a criminal offence, it should
not be possible for a court to by-pass the exclusionary rule by deciding that that
evidence is not prejudicial. Moreover, to be strictly accurate, evidence of a
conviction is not itself a form of bad character: it is merely what the court accepts
as prima facie conclusive evidence that the person convicted had committed the
offence of which he or she was convicted. It is the act of committing the offence
that amounts to bad character. We do not think it is necessary to exempt minor
criminal conduct (such as parking offences) from the exclusionary rule
altogether, on the basis that it is unlikely to be prejudicial: that can be taken into
account in deciding whether one of the exceptions to the rule applies. In our
view, evidence that a person has committed a criminal offence should
automatically count as evidence of that person’s bad character. This is one
respect in which our recommendation departs from our provisional proposal.
Evidence of bad character not amounting to an offence
8.12 Clearly, however, “bad character” cannot be defined solely in terms of
committing an offence. Evidence of conduct can be highly prejudicial even if that
conduct is not a crime. The conclusion reached in the preceding paragraph is
therefore not a complete solution to the problems inherent in making the
exclusionary rule hinge solely on the court’s assessment of the evidence’s likely
prejudicial effect. The problem would still arise in the case of evidence that a
7 P Roberts, “All the Usual Suspects: A Critical Appraisal of Law Commission Consultation
Paper No 141” [1997] Crim LR 75, 84–5.
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