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

8.16 In view of this difficulty we have concluded that the concept of bad character
evidence, and thus the scope of the exclusionary rule, should not (as we proposed
in the consultation paper) be defined in terms of the effect that the evidence, if
admitted, would in fact be likely to have on the particular fact-finders. Rather, it
should, as far as possible, be defined according to objective criteria. It seems to us
that the most appropriate criterion for this purpose is whether a reasonable person
might disapprove of what the evidence reveals about the person to whom it
relates. If the definition of bad character were to include that which only the
wholly unreasonably intolerant or irrational might find morally dubious, the
court would become embroiled in a guessing game as to the particular moral
views of the fact-finders in the particular case. That would be wrong in principle
and utterly impracticable. If an advocate thinks that the magistrates or jury will
display unreasonable prejudices there are other avenues, concerning time, venue,
discharge of jurors, or even staying of the proceedings, by which the defendant
can be protected from that prejudice.
8.17 Sometimes, of course, even the question of whether a reasonable person would
disapprove of particular conduct will be a matter of opinion. Some kinds of
conduct are thought discreditable by some people, but are not criminal and are
thought by many to be morally inoffensive. In these cases we think a court should
be capable of deciding, in a judicial manner, whether disapproval is within the
range of responses open to a reasonable person. An affirmative answer would not
amount to judicial disapproval of the conduct in question, because the court
might recognise that some reasonable people would disapprove of it while others
would not.
DISPOSITION
8.18 We have considered whether evidence that a person has a disposition to commit
offences or otherwise to act in a way of which reasonable people might disapprove
should be within the concept of “bad character”. Although our terms of
reference refer to “previous misconduct”, we do not think it would be sensible to
draw a distinction between evidence of conduct and evidence of a disposition
which has not (or cannot be shown to have) manifested itself in conduct. For
example, a rule incorporating such a distinction would fail to require leave for
evidence that a man had admitted to a sexual interest in children, whilst denying
ever having acted on that interest; yet such an inclination would clearly be a
highly prejudicial fact about his character, and we think that whilst it may be right
to adduce it as evidence it should be justified before leave is given for it to be
adduced. The same would apply to evidence of manifestations of attitudes or
views which might be highly eccentric or obnoxious and capable of giving rise to
high levels of prejudice and which similarly should be subject to justification
before they may be adduced with leave.
Our recommendation
8.19 We recommend that evidence of a person’s bad character should be
defined as evidence which shows or tends to show that that person
(1) has committed an offence, or
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