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

doubt, apply for the evidence to be excluded by the judge or magistrates,
pursuant to the common law rule 5 or section 78(1) of PACE. The net result
would be that probative value would have to outweigh prejudicial effect.
11.6 We identified the disadvantages of this option: a significant danger of wrongful
convictions; past miscarriages of justice would be compounded; defendants
would be unlikely to admit the conduct if the consequence was the admission of
similar previous convictions; and difficult in practice to determine in a particular
case whether the conduct is admitted or denied.
11.7 Only four respondents specifically addressed this option and, of those, only one
gave it any support. That respondent was concerned that evidence of bad
character which tends to disprove an innocent explanation should be admissible.
We reject this option. Our recommended exception would make evidence which
tends to disprove an explanation given by the defendant admissible where its
value in so doing outweighs the prejudice attaching to it, but without the
attendant disadvantages of this option.
Option 3: adducing bad character evidence to show disposition 6
11.8 In the consultation paper we considered a reform proposed by the CLRC, 7 which
would allow evidence of “a disposition to commit the kind of offence with which
[the defendant] is charged … if the disposition which the conduct tends to show
is, in the circumstances of the case, of particular relevance to a matter in
issue …”. 8
11.9 We did not favour this option because: it would allow evidence of disposition to
be given without that evidence being “highly relevant”; and it proposed (in clause
3(2)(c)) that disposition evidence be admitted where it “tends to confirm the
correctness of an identification of the accused”. We noted that identification
evidence is recognised as giving cause for especial concern, 9 and we were
troubled by the prospect of it being supported by prejudicial evidence.
11.10 Only two respondents mentioned this option, and neither of them thought it was
preferable to other options. We do not pursue this option any further.
5 Sang [1980] AC 402.
6 Paras 10.37 – 10.46 of the consultation paper.
7 Although it was presented by the Committee as making no change to the then existing law,
it would in fact have extended the circumstances in which previous misconduct was
admissible. See para 10.38 of the consultation paper.
8 Clause 3(2) of the Bill accompanying the CLRC Evidence Report.
9 Hence the guidelines for trials involving disputed identification laid down in Turnbull
[1977] QB 224.
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