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

distort the fact-finding process”. 30 These distortions arise because there is “a real
danger that evidence from which a character inference can be drawn will be
given disproportionate weight …”, and, particularly in the case of complainants
in sexual cases, the fact-finders will be inclined to make a general moral
assessment of the complainant. 31
9.19 The Australian and New Zealand views are confirmed by research in this
jurisdiction. The research concentrates on rape trials, where the problem seems
to be especially acute. It has been found that, in some cases, advocates ask
questions which are clearly irrelevant, or even questions which breach their own
professional code. 32 Professor Temkin has written of research into the views and
experience of barristers who prosecute and defend in rape trials. She found that
defence counsel tend to avoid hectoring and harassing witnesses, partly because
it can be counter-productive. She found also that both prosecuting and defence
counsel took seriously the limitations on sexual history evidence which were then
in force, and thought judges took them seriously too. Nevertheless, the
applications of defence counsel to cross-examine on the basis of the
complainant’s sexual history were frequently made and rarely turned down.
Discrediting the complainant was a “central strategy in the defence armoury” –
as confirmed by recent Home Office research 33 – and one that was likely to
succeed, despite the court’s power to control cross-examination and specific
legislative provisions designed to give the court control over the fairness of
attacks on the witness’s credibility. As Lord Steyn recently concluded, the regime
provided for by section 2 of the Sexual Offences (Amendment) Act 1976 had not
been effective in protecting complainants:
Section 2(2) provides that the judge shall only give leave “if and only
if he is satisfied that it would be unfair to that defendant to refuse to
allow the evidence to be adduced or the question to be asked.” The
statute did not achieve its object of preventing the illegitimate use of
prior sexual experience in rape trials. In retrospect one can now see
that the structure of this legislation was flawed. In respect of sexual
30 ALRC Interim Report No 26 (vol I), para 799.In its Final Report, the ALRC proposed a
general exclusionary rule prohibiting the use of evidence of character, reputation or
conduct, or tendencies to prove a tendency (cl 86), with an exception for evidence of
conduct, and a general rule for evidence of credibility, limiting it to evidence of substantial
probative value (cl 96(2)).
31 Ibid, para 807 ff.
32 See, eg, S Lees, Carnal Knowledge: Rape on Trial (1995) pp 136–142, 192–3, and 249. See
also Paul Rook, The English Crown Court for examples of cross-examination at Wood
Green Crown Court, and Helena Kennedy QC, Eve Was Framed (1992) ch 5. We note that
only one respondent expressly doubted that this problem exists.
33 Professor Temkin writes: “In the Home Office study, barristers considered that ‘the defence
has little choice but to seek to undermine the credibility of the complainant’”, referring to
A Question of Evidence? Investigating and Prosecuting Rape in the 1990s (1999) Home
Office Study 196, p 36: J Temkin, “Prosecuting and Defending Rape: Perspectives From
the Bar” Jo Law and Society 27(2) (2000) 219-48, 234. She also cites a report from the
Scottish Office which found the same approach: G Chambers and A Millar, Prosecuting
Sexual Assault (1986) Scottish Office Central Research Unit.
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