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

Would a test of enhanced relevance prevent the defendant from having a
fair trial?
9.28 A test of enhanced relevance would represent a restriction on the evidence that a
defendant may adduce. We have considered very carefully the argument that a
defendant should not be fettered in the presentation of his or her defence, and
especially whether there would be any danger of a wrongful conviction resulting
from a court’s refusal to permit bad character evidence which would be
permitted under the current law.
9.29 The question whether the defendant receives a fair trial also has significance in
the light of Article 6 of the European Convention on Human Rights. The
Strasbourg Court leaves evidential rules to the domestic courts and looks at the
totality of the evidence against someone when deciding whether there has been a
fair trial. 39 Moreover, following the incorporation of the Convention into English
law, where evidence is inadmissible on the ordinary rules of construction, the
English courts will consider whether the trial is thereby rendered unfair, with
explicit reference to Article 6 and the rights implicit in it. The approach a court is
recommended to adopt is described in general terms at paragraphs 3.21 – 3.36
above.
9.30 Given this context, would a rule preventing a defendant from putting certain
questions to a prosecution witness render the trial unfair, and thus infringe
Article 6? We do not think so, for the following reasons. We note two general
points first: that rules of evidence are a domestic matter, and the important
question is not whether a rule in the abstract is fair, but whether the defendant
has had a fair trial, and second, that there is no explicit right in the Convention to
adduce whatever evidence the defence wishes to adduce. 40 The right to present
one’s defence is a constituent part of the right to a fair trial.
9.31 The recent authority of A 41 is instructive in this regard. That case concerned the
application of sections 41–43 of the Youth Justice and Criminal Evidence Act
1999, which, subject to certain exceptions, provide that a defendant charged with
a sexual offence may not cross-examine a complainant about his or her sexual
behaviour on other occasions in support of a defence of consent. It was argued
that these provisions infringed the defendant’s right to a fair trial under Article 6.
The House of Lords agreed that a literal reading might result in the exclusion of
evidence necessary to a fair trial, particularly where the evidence was of a
previous sexual relationship between the complainant and the defendant himself.
With the help of section 3 of the HRA 1998, 42 however, their Lordships construed
39 See para 3.4 above.
40 See, eg, Breen [2001] EWCA Crim 1213 in which it was made quite clear that D was not
entitled to adduce evidence of a defence not recognised in English law.
41 [2001] UKHL 25.
42 See paras 3.29– 3.35 above.
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