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

stolen goods (section 27(3)(a)) or previous convictions (section 27(3)(b)) in
order to prove that the defendant knew or believed the goods to be stolen. 40
The defects of the current law and the proposals in the consultation
paper
11.49 We have set out the problems in this subsection at paragraphs 4.17 – 4.23 above.
11.50 In the consultation paper, we considered the possibility of proposing that
evidence of previous convictions should be admissible in handling cases where
the accused admits the conduct alleged, but denies criminal knowledge. This
option was proposed by the CLRC in its Evidence Report, 41 and was adopted by
the Royal Commission. 42 It has one striking advantage over the existing provision
in that it enables the prosecution to rely only on previous convictions, whereas
paragraph (a) permits evidence of the mere fact that the defendant has had stolen
goods in his or her possession, albeit without knowledge or belief that they were
stolen.
11.51 However, we suspected that if this proposal were implemented, its effect could be
easily avoided by disputing some other ingredient of the offence. For example, if
it were disputed that the goods in question were stolen, it would not be possible
to invoke the proposed rule as there would be an outstanding issue in the case
other than knowledge. We had little doubt that this would seriously undermine
the usefulness of this option, and we rejected it in the consultation paper. 43
11.52 We provisionally proposed that section 27(3) be repealed, and that handling cases
be dealt with under the same rules as other cases. 44 There are many other
instances where the mental element of an offence may be difficult to prove, and
previous misconduct might be of assistance – though this may be less of a
problem now that inferences can be drawn from a defendant’s failure to give
evidence 45 – and we see no reason to single out one such offence for special
treatment. Evidence of previous misconduct is not necessarily more probative, or
less prejudicial, in the case of handling than in any other case. We did not think
that any special rule for handling cases was needed or justified.
The response on consultation
11.53 Thirty-three respondents addressed this proposal explicitly. Of those, 27
respondents were in favour of the provisional conclusion and three were against.
Two respondents favoured the second option, and one thought the provision
should remain as it is on the basis that it “does little, if any, harm and sometimes
40 The case law on this provision is described at paras 2.27 – 2.30 above.
41 Para 92.
42 Report of the Royal Commission, ch 8 para 31, and Recommendation 192.
43 Provisional proposal 43(2). Paras 14.11 – 14.12.
44 Provisional proposal 44. Para 14.13.
45 Criminal Justice and Public Order Act 1994, s 35. See para 4.40 above.
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