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

person has acted in a way which, though arguably discreditable and therefore
prejudicial, would not amount to any criminal offence. It would similarly arise in
the case of attitudes or beliefs, as distinct from conduct, or personal qualities
(such as sexual orientation).
8.13 The focus of this report has changed somewhat from the consultation paper. We
are concerned to seek to achieve a single consistent approach to the admissibility
of evidence of bad character in respect both of defendants and non-defendants.
Thus the concept is to be applied to a wider range of persons and, in particular,
includes those of whom the fact-finders are not required to make a decision to
which criminal sanctions attach. Given the wider range of persons for whose
protection our recommendations seek to provide, it would not be satisfactory, in
our view, for the question whether evidence is even prima facie inadmissible to be
determined on the basis of the court’s guess whether the fact-finders would be
prejudiced by it. In particular, for reasons connected with ensuring that the
defendant has the maximum freedom to conduct his or her case, we do not
recommend that prejudicial impact should be a factor when determining whether
a non-defendant’s bad character should be adduced in evidence. The only
condition we require to be satisfied is that the evidence is of substantial probative
value on a matter of substantial importance in the context of the case as a whole.
It would undercut this approach to require the court to assess the likely
prejudicial effect of the evidence at the prior stage of deciding whether the
evidence in question is evidence of bad character at all, and therefore requires
leave to be adduced. Even in the case of a defendant’s character, we think the
perceived prejudicial impact of the evidence is best considered in relation to
whether leave should be granted, not at the stage of determining whether leave is
necessary.
8.14 It would be particularly unsatisfactory if the question whether leave is required
in the magistrates’ court were to depend whether the magistrates think the
evidence would prejudice them. One respondent wrote:
Magistrates might be tempted to turn the test on its head, quickly
and instinctively reaching the conclusion (perhaps based on
perceptions of experience) that a piece of evidence is likely to be more
probative than prejudicial. This might lead to decisions that the
evidence is not prejudicial and so does not come within the scope of
the exclusionary rule at all. If there was a tendency for this to happen,
full arguments might not be heard and the desired structured regime
for full consideration of admissibility of the evidence might be
truncated.
8.15 Another respondent thought, “The magistrate, having estimated the true
probative value of the evidence, is then to consider whether there is a risk that he
might treat the evidence as being of more probative value than it really is! Of
course he wouldn’t.” Unsurprisingly, some magistrates who responded had
rather more confidence in the ability of magistrates to keep their various
functions distinct.
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