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

may do some good”. One of the three who were against the proposal conceded
that if our other proposals were to be implemented, section 27(3) would become
otiose. One respondent thought the provision should be amended, so that such
evidence could only be used in rebuttal.
11.54 Our view, that the provision is unnecessary under the current law, and would
continue to be so following our recommendations for incriminatory evidence,
was fortified by the views of respondents. The most common argument given in
support of our proposal was that the section is very rarely used. The Criminal
Bar Association commented that “if the prosecution does not have a sufficient
case without resorting to this provision, then the general thinking is that the
prosecution ought to fail”.
11.55 As no strong arguments have been put forward which cause us to change our
view from that in the consultation paper, we recommend that section 27(3) of
the Theft Act 1968 should be repealed. 46
THE OFFICIAL SECRETS ACT 1911, SECTION 1(2)
11.56 Section 1(2) of the Official Secrets Act 1911 allows the accused’s purpose (an
element of the offence) to be proved by reference to his or her “known character
as proved”. 47 In the consultation paper we invited views as to whether this
provision should be repealed or amended. 48 Eighteen respondents expressed a
view on this proposal, eight thinking it should be repealed, and eight thinking it
should not be changed. 49
11.57 The main argument in favour of repeal was that the provision is unfair to the
accused. Some respondents suggested that evidence introduced under this
provision should be required to meet a specific standard of probative value before
it is admitted. Those who opposed change pointed to the unusual nature of the
offence and the circumstances in which it arises, argued that “the difficulty of
proving this offence requires this special provision”, or referred to the fact that
the Attorney General’s consent is required as an important safeguard against its
abuse.
11.58 We have taken account of the views of experienced respondents that this is an
offence with unique difficulties for the prosecution, given that the subject matter
may inhibit the calling of certain types of evidence. The character of the accused
is not an element of the offence charged. It is merely one route by which one
element, namely purpose, may be proved.
46 See cl 20(3)(b) of the draft Bill.
47 See para 2.31 above.
48 Provisional proposal 42, para 14.3.
49 One advised amendment, rather than repeal, and one collective response was divided on
the matter.
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