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

defendant could have a fair trial if the evidence were excluded. A negative
answer to this question would inevitably mean that the evidence did have
sufficient relevance to be admitted.
OUR RECOMMENDATIONS
Exceptions: non-defendants: substantial probative value
9.41 We recommend that leave may be given to adduce evidence of the bad
character of a person other than a defendant if it has substantial
probative value in relation to a matter in issue in the proceedings which
is of substantial importance in the context of the case as a whole. 47
Exceptions: non-defendants: substantial explanatory value
9.42 As we explain in relation to bad character evidence to be adduced against
defendants, 48 some character evidence is not strictly speaking probative, in that it
does not of itself prove any fact, but it is nevertheless significant in making other
evidence comprehensible. Some evidence about people other than defendants
may serve this kind of purpose in a trial, and we therefore recommend that
leave may be given to adduce evidence of the bad character of a person
other than a defendant if it has substantial explanatory value. 49
9.43 Thus, for example, in a case of intra-familial abuse, it was not only abusive
behaviour by the defendant on occasions other than that charged which was
valuable in explaining the case as a whole to the jury, but also abusive behaviour
by other members of the family.
The consequences for the defendant
9.44 Where the defendant does obtain leave to adduce evidence of another’s bad
character under either of these recommendations, this may make it possible for
the prosecution to apply for the defendant’s own bad character to be admitted. It
is possible that evidence of the defendant’s own bad character will attain a
probative value it did not have before the bad character evidence of the other
person was adduced, and so the prosecution might make an application under
the rules that we recommend in Parts X, XI, and XII respectively.
The relationship with section 41 Youth Justice and Criminal Evidence Act
1999
9.45 At the time of writing, section 41 of the Youth Justice and Criminal Evidence Act
1999 lays down rules for the admissibility of sexual history evidence of
complainants in sexual cases, as described above. Our recommendations would
involve no changes to those provisions. Where those provisions apply, our
proposed test of substantial probative value would have to be satisfied as well; but
47 This recommendation is given effect by cl 5 of the draft Bill.
48 See Part X below.
49 This recommendation is given effect by cl 4 of the draft Bill.
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