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

which goes directly to the central issue of whether the defendant’s version of
events is in fact true or false.
The additional value of the evidence
11.38 Evidence might have substantial probative value in relation to a central issue in a
case if taken on its own, but its value might be considerably reduced if there has
already been, or it is clear that there will be, other, less prejudicial, evidence to
prove the fact. We therefore think that the court should also have regard to what
the evidence in question adds to the other evidence in the case. 35
11.39 We can see no reason for any artificial limit to be included prescribing that
evidence of bad character going to a matter in issue must be adduced as part of
the prosecution’s case in chief. It may be that issues arise later in the case,
possibly as a result of evidence elicited or adduced by the defendant, which alter
the probative value of evidence of the defendant’s bad character. The essence of
the test should be the relationship between the probative value of the bad
character evidence and the risk of prejudice.
Statutory guidance
11.40 We have said at paragraph 5.3 above that the test to be applied by the court
should be capable of being applied predictably and consistently but be
sufficiently flexible to cater for the infinite variety of factual situations which will
occur. We believe this is best achieved by a test which leaves a court some room
for individual judgment, while guiding that judgment on the matters to be borne
in mind.
Provisional proposals on statutory guidelines
11.41 As part of our preferred option in the consultation paper we proposed that the
court be required to take certain factors into accounts, and we proposed that
they should include
(i) in the case of the evidence’s probative value,
(A) the extent (if any) to which the evidence tends to suggest that the
defendant has a propensity to act in the manner alleged;
(B) any similarities between the facts revealed by the evidence and
those now alleged;
(C) the extent to which any such similarities may reasonably be
attributed to coincidence; and
(D) any dissimilarities between the facts revealed by the evidence and
those now alleged; and
(ii) in the case of the evidence’s likely prejudicial effect,
35 See cl 8(3)(b)(i) and (ii) of the draft Bill.
147