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

9.33 Presently, the evidence of W’s past might well be put in or allowed in under all
three scenarios or, at the least, under the latter two on the basis that as there is a
general dispute about the reliability of her evidence any evidence which might
reflect on her reliability as a witness could be admitted, especially if the
defendant does not himself have any previous convictions. Under an enhanced
relevance test, the court would force the advocate to consider and articulate why
it is that the evidence should be admitted as satisfying that test. The outcome
might be that a witness was saved a public humiliation for a cause which could
not sensibly have been thought to advance the defendant’s case. At the very least
the defence will have been forced to sharpen up the focus of its attack.
9.34 It follows, from the decision in A, that a requirement of enhanced relevance for
bad character evidence would risk infringing Article 6 only if the required level
of relevance were set so high that evidence sufficiently probative to be necessary
for a fair trial might nevertheless fail to satisfy it. This result could be avoided by
formulating the requirement in such a way that it will inevitably be satisfied
whenever the exclusion of the evidence might render the trial unfair. We
therefore do not accept that the introduction of a test of enhanced relevance
would necessarily risk infringing Article 6. That risk can be eliminated if the test
is properly formulated and applied.
OUR CONCLUSION
9.35 We think it right to have a rule of law that, where evidence of the bad character of
a non-defendant is barely or only minimally relevant, it should be excluded. We
have reached this conclusion because
(1) of the special power of bad character evidence to distort the fact-finding
process;
(2) of the need to encourage witnesses to give evidence, by making it known
that witnesses will not have their past exposed publicly where it is at best
of only minimal relevance to the questions in issue, such as whether they
are telling the truth; and
(3) it will give courts a clear supportive framework to control gratuitous and
offensive cross-examination which has little or no purpose other than to
intimidate or embarrass the witness or muddy the waters.
FORMULATING THE TEST OF ENHANCED RELEVANCE
9.36 We argued above that the risk of rendering the trial unfair by excluding relevant
defence evidence can be avoided by ensuring that evidence would not be
excluded if that would be its effect. We will need to do this if the rule we
recommend is not to infringe Article 6. One way to do it would be by expressly
formulating the test in terms of whether the defendant could have a fair trial if
the evidence were excluded. This would ensure that the trial was not rendered
unfair; but it would go further than we think necessary. Our object in raising the
standard of relevance is not to exclude as much bad character evidence as Article
6 will allow. Rather, it is to exclude only bad character evidence which is of trivial
relevance – the kind of evidence which cannot be said to be entirely irrelevant,
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