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

Its prejudicial effect
9.16 It does not necessarily follow that just because evidence has little probative value
it should be inadmissible. As the ALRC said, “If one accepts the view that
[evidence of character] is of little value in a trial setting, that does not necessarily
justify its exclusion”. 27 However, the case for excluding evidence of bad character
of non-defendants rests not just on its general irrelevance, but also on its
potential for distorting the verdict by the prejudice which such evidence may
introduce in respect of a witness whose evidence may be crucial. That this is so is
demonstrable by the panoply of special rules and statutory provisions on limiting
cross-examination about the previous sexual experience of complainants in sex
cases where it is not merely the question of irrelevance which is to the fore but
also the invitation to prejudice which underpins its attractiveness as a tool for the
defence. In this respect we can see little reason, in principle, to treat witnesses
any less favourably than defendants in considering the level of probative value
which should be achieved before evidence should be admissible.
9.17 We note the words of Lord Steyn in A, where he accepted that past sexual
behaviour has been adduced to the unfair disadvantage of the complainant:
Nevertheless, it has to be acknowledged that in the criminal courts of
our country, as in others, outmoded beliefs about women and sexual
matters lingered on. In recent Canadian jurisprudence they have
been described as the discredited twin myths, viz “that unchaste
women were more likely to consent to intercourse and in any event,
were less worthy of belief”: R v Seaboyer (1991) 83 DLR (4th) 193,
258, 278C per McLachlin J. Such generalised, stereotyped and
unfounded prejudices ought to have no place in our legal system. But
even in the very recent past such defensive strategies were habitually
employed. It resulted in an absurdly low conviction rate in rape cases.
It also inflicted unacceptable humiliation on complainants in rape
cases. 28
9.18 Two questions arise: (1) does evidence of the bad character of non-defendants
also have potential for distorting the verdict? and (2) are there considerations
other than irrelevance and distortion of verdict which militate against admitting
such evidence? 29 The ALRC sought to justify a raised threshold on the grounds
that the existing law has “underestimated” the capacity of character evidence “to
26 Propensity evidence which the prosecution seeks to adduce about a defendant must be
about acts or omissions that are prima facie those of the defendant, relate to an issue in
dispute, and have a “probative value … which clearly outweighs the risk that the evidence
may have an unfairly prejudicial effect on the defendant” (cl 45). Clause 46 contains the
restrictions on evidence of a complainant’s sexual experience.
27 ALRC Interim Report No 26 (vol I), para 799.
28 [2001] UKHL 25, para [27]. See also A Zuckerman, The Principles of Criminal Evidence
(1989) pp 271–275.
29 We address the second of these questions at paragraph 9.19 below.
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