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

X sets up a company, as sole shareholder and executive director. Its ostensible
purpose is to make investments on behalf of clients. X asks D to be a non-executive
director. X tells D that the company will seek to “minimise” corporation tax
payments, and D will occasionally be asked to sign off on misleading accounting
documents to that end. Over a number of months, both X and D sign off on false
accounting documents. Then X disappears overnight. The company’s client
account has been cleaned out. D is charged with false accounting and conspiracy
to defraud the company’s clients. D pleads guilty to the false accounting charges,
and the convictions are recorded. However, D pleads not guilty to conspiracy,
claiming to have been unaware of X’s fraud on the clients. At D’s conspiracy trial,
the prosecution will need to refer to D’s previous convictions and the wrong-doing
that lay behind them, because the false accounting documents were used to effect
the fraud on the clients.
D is charged with repeated sexual abuse of his sister. In order to explain why she
did not turn to her parents to be protected from her brother, the prosecution has to
explain the history of abuse within the family, which shows the defendant as a
victim of abuse himself as well as a perpetrator.
10.8 Where the evidence falls outside the central facts, however, and therefore under
our scheme requires leave to be admitted, we do not think it should be exempted
from the principles applicable to such evidence merely because it satisfies one or
more of indicators (2)–(4) in paragraph 10.1 above. Those principles dictate that
leave should not be given unless the evidence has substantial explanatory value.
The court must be satisfied that, without the evidence, the court or jury would
find it impossible or difficult properly to understand other evidence in the case
and that its value for understanding the case as a whole is substantial. 13 This test
applies whether the evidence relates to a defendant or anyone else. 14
10.9 Where the evidence is of a defendant’s bad character, however, we recommend an
additional test to be satisfied, namely that the interests of justice require it to be
adduced notwithstanding any prejudicial potential it might have.
10.10 The test for evidence of this kind, where it applies to a defendant, has the same
structure as for incriminatory evidence. The only difference from that test is that
the value of the evidence is not, strictly speaking, “probative”, in that it does not
directly prove anything; it explains other evidence. It is therefore not the probative
value of the evidence that must be weighed against the risk of prejudice, but its
value for understanding the case as a whole.
13 Clause 4 (a) and (b), cl 7 (1), (2) and (3).
14 For its application to non-defendants, see Part IX above.
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