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

PART X
THE EXPLANATORY EXCEPTION
THE DEFECTS OF THE CURRENT LAW
Res gestae and background evidence
10.1 The present law is that evidence which falls within the “res gestae” or is
“background” evidence may be admitted as evidence. It does not therefore have
to be examined to determine whether it can be described as “similar fact”
evidence. In the consultation paper we identified four “indicators” which may
enable evidence to avoid the normal exclusionary rule on the basis that it is
background evidence. 1 They are as follows:
(1) the evidence may be close in time, place or circumstances to the facts or
circumstances of the offence charged; 2
(2) the evidence may be necessary to complete the account of the
circumstances of the offence charged, and thus make it comprehensible to
the jury; 3
(3) the accused may have had a relationship with the victim of the offence
charged, and the previous misconduct evidence may relate to this victim
rather than the victims of other offences;
(4) the evidence may assist in establishing the motive behind the offence
charged. 4
10.2 Background evidence is admitted because it is “so closely entwined and involved
with the evidence directly relating to the facts in issue that it would amount to
distortion to attempt to edit it out”. 5 However, highly prejudicial evidence can be
1 Para 2.81. The case law is discussed in some detail at paras 2.70 – 2.84 in the consultation
paper.
2 See Archbold, para 13–35: “the evidence must have clear probative value and the more
remote from the date of the offence the incident sought to be proved is, the clearer the
probative value must be.” See also Berry (1986) 83 Cr App R 7, 10, per Watkins LJ,
referred to at para 2.75 of the consultation paper, and Sidhu (1994) 98 Cr App R 59.
3 This is taken from the Court of Appeal’s judgment (per Purchas LJ) in the unreported case
of Pettman, 2 May 1985, CA No 5048/C/82: “where it is necessary to place before the jury
evidence of part of a continual background of history relevant to the offence charged in the
indictment and without the totality of which the account placed before the jury would be
incomplete or incomprehensible, then the fact that the whole account involves including
evidence establishing the commission of an offence with which the accused is not charged
is not of itself a ground for excluding the evidence.” This passage is also referred to in
Fulcher [1995] 2 Cr App R 251, 258D–E, per Kennedy LJ, and in Stevens [1995] Crim LR
649.
4 See Ball [1911] AC 47, 68.
5 Cross and Tapper, p 343.
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