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

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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. 131
it is almost certain that evidence of sexual experience which is ruled admissible under section 41 will have substantial probative value, with the result that it would be ruled admissible under our recommendations too. Our recommendations, however, cover a far wider range of cases and people than does section 41, as they are not restricted to complainants, nor to sexual cases, nor even to witnesses. D is charged with rape. He wants to ask the complainant about her convictions for possession of unlawful drugs. It is not “sexual behaviour” so section 41 does not apply. He will, however, have to obtain leave under clause 4 or 5 of our draft Bill. D is charged with indecent assault. He says the complainant consented. He wants to question the complainant about his sexual experiences with a mutual friend. He will have to obtain leave under section 41(3) of the 1999 Act. If, and only if, evidence of those sexual experiences count as “bad character” then he will have to obtain leave under clause 4 or 5 of our draft Bill as well. 132
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The Law Commission (LAW COM No 273)
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THE LAW COMMISSION EVIDENCE OF BAD
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v Paragraph Page Severance of defen
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vii Paragraph Page The relevance of
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ix Paragraph Page Ensuring a fair t
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xi Paragraph Page PART XIV: THE CO-
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ABBREVIATIONS In this paper we use
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OUR APPROACH 1.4 We are aware that
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1.10 We are unable to say whether,
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1.21 In assessing the probative val
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PART II THE PRESENT LAW 2.1 In this
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2.8 The following sections address
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such case is Lewis 23 where evidenc
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efused severance, the judge should
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2.26 A relatively recent line of ca
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On a prosecution under this section
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likely that by way of analogy a “
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offence other than that wherewith h
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section 1(f)(i). This was because t
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there is no such thing known to our
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the prosecution” within section 1
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Their Lordships held that a prior c
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down guidelines for the exercise of
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judged objectively and particular c
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defendants, S, was permitted to add
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2.95 This approach was confirmed in
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the trial, taking all the circumsta
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Denmark case, the trial was before
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a prosecution, it might lead to a c
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triangulation of interests of the a
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may depart from the language of the
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convention. If this test is satisfi
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THE PROBLEMS IN DETAIL (I): EVIDENC
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category into which the evidence fa
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there are many other instances wher
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evidence to be given of any act of
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(ii) The use that can be made of ba
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consequences. This puts a premium o
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(b) testify but not contest the con
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their clients’ records would be r
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has considerable force. This argume
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four respondents who argued that wh
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inconsistencies in the witnesses’
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explanation is that judges must not
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THE NEED FOR CHANGE 4.80 The law on
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PART V GENERAL PRINCIPLES 5.1 In Pa
Page 93 and 94: (2) the nature of the misconduct ma
Page 95 and 96: Simplicity 6.5 Option 1 appealed to
Page 97 and 98: admitted automatically even though
Page 99 and 100: expected to play some part. A regim
Page 101 and 102: since the purpose of such a directi
Page 103 and 104: The risk of prejudice 6.33 In the c
Page 105 and 106: defendant with a previous convictio
Page 107 and 108: past behaviour in evidence, in the
Page 109 and 110: 6.55 A practical difficulty with th
Page 111 and 112: solution would thus be to allow evi
Page 113 and 114: PART VII OVERVIEW OF OUR RECOMMENDA
Page 115 and 116: sought to put before the fact-finde
Page 117 and 118: helpful” in assessing that person
Page 119 and 120: THE PURPOSE OF THE EVIDENCE 7.20 Th
Page 121 and 122: (a) it falls within the central set
Page 123 and 124: Evidence of criminal offences 8.10
Page 125 and 126: 8.16 In view of this difficulty we
Page 127 and 128: (iii) the accused may have had a re
Page 129 and 130: 8.32 We recommend that (1) all othe
Page 131 and 132: PART IX EXCEPTIONS APPLICABLE TO NO
Page 133 and 134: sections 102-103, which provide tha
Page 135 and 136: extends to all bad character eviden
Page 137 and 138: distort the fact-finding process”
Page 139 and 140: could itself lead to unfairness.) 3
Page 141 and 142: the legislation so as not to exclud
Page 143: ut which adds very little. We are n
Page 147 and 148: admitted as “background” withou
Page 149 and 150: X sets up a company, as sole shareh
Page 151 and 152: PART XI THE INCRIMINATORY EXCEPTION
Page 153 and 154: Option 4: the Australian common law
Page 155 and 156: 11.18 Four of the five respondents
Page 157 and 158: consultation paper we gave an examp
Page 159 and 160: 11.35 In that case the similar defe
Page 161 and 162: (A) the risk of the fact-finders at
Page 163 and 164: stolen goods (section 27(3)(a)) or
Page 165 and 166: 11.59 It is not for us, dealing as
Page 167 and 168: the likelihood that he or she was l
Page 169 and 170: (2) the defendant has suggested tha
Page 171 and 172: (3) by attacking the person’s rep
Page 173 and 174: WHEN A DEFENDANT IS RESPONSIBLE FOR
Page 175 and 176: example, it was impossible to edit
Page 177 and 178: THE CORRECTIVE EVIDENCE MUST HAVE S
Page 179 and 180: indivisible, but do not prescribe w
Page 181 and 182: incompetent questioning) into makin
Page 183 and 184: 13.46 We understand the concern tha
Page 185 and 186: PART XIV THE CO-DEFENDANT EXCEPTION
Page 187 and 188: (1) the degree to which D2’s defe
Page 189 and 190: allow D1 to undermine D2’s defenc
Page 191 and 192: prosecution witnesses. The responde
Page 193 and 194: (5) there were a series of factors
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The operation of the exception 14.4
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PART XV THE QUALITY OF TENDERED EVI
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The current law 15.9 The question h
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improbability that different compla
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collusion or contamination the pros
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Responses on consultation 15.32 Thi
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15.38 We make no equivalent recomme
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two of those suggested a presumptio
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offences. There was sufficient conn
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separate trials. 17 No argument for
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Boardman 20 that it was simply aski
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statement in advance. 7 If one part
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A DUTY TO GIVE REASONS The common l
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equires magistrates to give reasons
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PART XVIII THE COLLECTED RECOMMENDA
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(3) the evidence adduced in support
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(1) rules on whether leave is requi
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Criminal Evidence Bill 1 DRAFT OF A
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2 3 Non-defendant’s bad character
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Criminal Evidence Bill 3 6 Defendan
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4 Criminal Evidence Bill (a) the de
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Criminal Evidence Bill 5 (d) in a c
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6 Criminal Evidence Bill appears ju
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Criminal Evidence Bill 7 12 Trying
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8 Criminal Evidence Bill (b) the ci
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Criminal Evidence Bill 9 (a) a ruli
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10 Criminal Evidence Bill “defend
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Criminal Evidence Bill 11 (2) The r
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12 SCHEDULES Criminal Evidence Bill
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14 Short title and chapter Extent o
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(5) recent dissimilar conviction; 6
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A.13 A recent dissimilar previous c
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square brackets; this tended to occ
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ASSISTING IN REACHING VERDICT A.30
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APPENDIX B PERSONS AND ORGANISATION
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The Right Honourable Lord Justice P
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