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

for ex-prisoners, leave were required to prove that the defendant was a resident
of that hostel. 10
10.5 The fact that a rapist committed an assault in the course of the rape may of
course be relevant to a fact in issue: for example, it may suggest an absence of
consent. But, even if that fact has no real bearing on any issue in the case –
because the issue is not whether the complainant was raped but whether it was
the defendant who did it – it would in our view be unrealistic to suggest that the
prosecution may not prove that fact without first satisfying the court that the
interests of justice require that it be allowed to do so. The assault is relevant not
for any light it throws on the defendant’s character, and thus on the likelihood
that he committed the rape, but because it is part and parcel of what is alleged. 11
Therefore we believe that it should be admissible without more, and not required
to fall within an exception to the exclusionary rule.
10.6 Under our recommendations, this is achieved by the rule that bad character
evidence does not require leave if it has to do with the alleged facts of the offence
charged. Evidence which forms part of the narrative of the offence
(approximating to res gestae, or indicator (1) in paragraph 10.1 above) will
inevitably satisfy this requirement, and therefore does not require leave to be
adduced. 12
Explanatory evidence
10.7 The probative value of a fact is its value in proving the truth or falsity of a fact in
issue. Often, however, the value of the kind of fact which provides essential
background is not that a specific fact in issue can be inferred from it, but simply
that if the fact-finders did not hear of it they would find it harder to understand
the nature of what is alleged. Strictly speaking, it has explanatory value, not
probative value. Under the present law such evidence is admitted as
“background” evidence without any assessment of its potentially prejudicial
effect. The obvious examples of “explanatory evidence” arise in the contexts of
complex financial fraud and abuse of one person by another over a long period.
10 Cf Neale (1977) 65 Cr App R 304. In our Hearsay Report we referred to the difficulties
created for witnesses giving oral evidence when they are stopped, in the middle of a natural
account of an event, for fear that they are about to break a rule of evidence. See Law Com
245, paras 12.13 – 12.14 and paras 7.74 – 7.75 of the Hearsay Consultation Paper No 138
(1995). If this kind of evidence was prima facie inadmissible, more of those interruptions
would occur.
11 As Professor Murphy wrote in his response, “it is inevitable that some evidence involving
an aspect of the accused’s character should be introduced, but the evidence is admitted, not
because it involves character, but despite the fact that it does so”.
12 Clause 2(1) of the draft Bill. See paras 8.31 and 8.32 above.
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