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

equiring a higher standard of legal relevance for character evidence
than for other evidence is questionable in the light of the low
probative value that character evidence generally has in relation to
both credibility and facts in issue. In any event, the suggestion that
bad character imputations should only be made where they would
substantially undermine the witness’s credibility is not far removed
from the existing common law boundaries on cross-examination.
According to Sankey LJ in Hobbs v Tinling [1929] KB 1, 50-51, such
questions are only proper if they are of such a nature that the truth of
the imputation conveyed would seriously affect the opinion of the
court on the credibility of the witness. The problem would seem to be
that trial judges are reluctant to circumscribe cross-examination to
this extent. More stringent limits on cross-examination as to credit
would not merely protect defendants but would also go a long way to
protect the dignity of victims who are so commonly castigated during
cross-examination.
Professor McEwan shared this view: “We should be instead be looking closely at
ways to control unacceptable cross-examination.” 21
9.12 Those who argued against provisional proposal 35(D) were concerned that the
test of “substantiality” was too vague and would provoke legal argument, and
that it would involve the court in the difficult task of determining when a
witness’s credibility is substantially undermined. We discuss the test of
substantiality and conclude that it is not too vague to be useful at paragraphs
7.8 – 7.17 above.
9.13 It is, however, clear that if a test of enhanced relevance were to apply only to
evidence which is relevant via credibility, as we suggested, then this would add
unwelcome complications to the law. There would be a high risk that advocates
and courts would become embroiled in analyses of the ways in which evidence is
said to be relevant. 22 In what follows, therefore, we have in mind a rule which
21 Jenny McEwan, “Law Commission Dodges the Nettles in Consultation Paper No. 141”
[1997] Crim LR 93, 102.
22 Eg, if it is part of the defence case that a witness for the prosecution is the culprit, the
advocate may initially argue that evidence of the witness’s character is relevant to his or
her credibility, so attracting the test of enhanced relevance. However, the advocate could
argue that the witness’s character is directly relevant to a fact in issue, in which case the
enhanced relevance requirement would not bite.
The difference an analysis can make is illustrated also by Edwards [1991] 1 WLR 207. It
was argued that the confession obtained from the defendant was fabricated, and in order to
support this contention the defence sought to adduce evidence of how the police officers
had fabricated confessions in other cases. On one analysis it is the defendant’s credibility
which is in fact at stake, namely the credibility of his evidence that he never made the
confession, and in that event a test of enhanced relevance limited to attacks on a witness’s
credibility would not be applicable.
But if the officers are cross-examined on the existence of the confession, which they
presumably were, then the evidence of what happened in the other cases reflects on their
credibility, and so the test would be satisfied.
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