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

11.18 Four of the five respondents who commented on this option were in support of
the Australian statutory scheme. We address the points they made in the
following paragraphs.
11.19 In the consultation paper we set out three drawbacks to the Australian statutory
scheme. 22 First, we were unsure what it might mean for the probative value of
evidence to outweigh the risk of prejudice substantially, or for evidence to have
significant probative value as opposed to some probative value. Secondly, we
thought the effect of the rules was that tendency and coincidence evidence
would sometimes be inadmissible even if its probative value outweighed its
prejudicial effect. Thirdly, we thought the Australian statutory scheme
unnecessarily complicated.
Option 6
11.20 The preferred option in the consultation paper 23 was to allow bad character
evidence to be adduced if
(i) it is relevant to a specific fact in issue; and
(ii) on the assumption that the evidence is true, the degree to which it is
relevant to that fact (in other words, its probative value) outweighs the
risk that, if admitted, it might
(A) result in prejudice;
(B) mislead, confuse or distract the fact-finders; or
(C) cause undue waste of time.
11.21 Of those making specific comments on this proposal, 27 respondents were in
favour and ten were against it. The responses from consultees on this option and
on option 5 informed our views on the following issues.
OUR CONCLUSIONS
A test of enhanced relevance
11.22 The Australian statutory scheme requires the bad character evidence itself to
have “significant” probative value, whereas our preferred option did not set a
standard of enhanced relevance for the probative value of the evidence. As will
have been seen from our recommendation for a test of enhanced relevance for all
evidence of bad character which goes outside the central set of facts, 24 we now
accept that there is a meaningful difference between evidence having some
probative value and having substantial probative value. We think evidence which
the prosecution wishes to adduce as part of its case against the defendant should
meet this test of enhanced relevance.
22 See paras 10.64 – 10.70.
23 Provisional proposal 16, set out at paras 10.73 – 10.85.
24 See para 7.7 above and the discussion of “substantial” at paras 7.8 – 7.17 above.
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