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

PART XI
THE INCRIMINATORY EXCEPTION
INTRODUCTION
11.1 In Part VIII we explained our recommendation that leave should be required for
evidence of bad character which falls outside the central set of facts. This Part
describes the second of the exceptions for evidence of the bad character of a
defendant. This exception is for evidence of substantial probative value which
goes to a matter in issue. It will enable the prosecution, in certain circumstances,
to adduce evidence of the defendant’s bad character as part of the prosecution’s
case.
11.2 In Part X of the consultation paper we took the view that the present law, based
on the concept of similar fact, is unsatisfactory, and set out six options for
consideration. We start by explaining what the responses were to those options,
and how they have informed our recommendation. At the end of this Part, we
address three special cases where evidence of the defendant’s bad character
might form part of the prosecution case.
THE OPTIONS FOR REFORM AND THE RESPONSE ON CONSULTATION
11.3 The first option considered was for no change. We rejected that option in the
light of the problems we thought exist in the current law. 1 A substantial number
of respondents addressed this, but only a small minority thought the law should
be left as it is. Most of those thought that the difficulties are not attributable to
the law itself but are inherent in the nature of the problem.
Option 2: adducing bad character evidence to prove mens rea 2
11.4 This option would allow evidence of an accused’s previous convictions to be
adduced where the conduct is admitted but there is an issue whether it was
performed with any criminal knowledge or intent. For example, where a person
with convictions for burglary is charged with having entered a building as a
trespasser with intent to steal 3 and his defence is that he entered the building
only to sleep, 4 evidence of previous convictions for burglary would be admitted,
even without particular similarities between the past conduct and the charge.
11.5 We pointed out in the consultation paper that, in practice, this option would not
in fact lead to the automatic admission of previous convictions for the same
offence. The bare fact of the conviction would have little probative value but its
prejudicial effect could easily be more than trivial, and so the defence would, no
1 Paras 10.20 – 10.22 of the consultation paper.
2 Paras 10.23 – 10.36 of the consultation paper.
3 Contrary to the Theft Act 1968, s 9(1)(a).
4 See Cokar [1960] 2 QB 207, n 47 in Part IV above.
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