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

11.59 It is not for us, dealing as we are with matters of evidence, to address the
substantive question whether, as a matter of policy, the purpose of a person
charged under the Official Secrets Act should be capable of being proved by
reference solely to character. It is, however, within our remit to consider how, and
by reference to what mechanisms and tests, such evidence may be admitted given
that the explicit terms of the section require the person’s character to be
“proved”. There is nothing in section 1(2) which is inimical to the application of
the principles we have identified as appropriate to determining when evidence of
bad character may be admitted.
11.60 The statutory provisions in the draft Bill (which set limits on how certain matters
of character may be proved) will apply where the prosecution seeks to prove a
person’s known character under section 1(2). An application to admit such
evidence would be made under clause 8 and the evidence would only be
admitted if it were of substantial probative value, and the interests of justice
required it to be admissible, taking account of the risk of prejudice.
11.61 We recommend that the admissibility of evidence of the defendant’s bad
character pursuant to section 1(2) of the Official Secrets Act 1911 should
be determined by the above rules.
THE EFFECT OF AN EARLIER ACQUITTAL
11.62 The law as it stood at the time of the consultation paper had the effect that, no
matter how probative evidence of previous alleged offences might be in relation
to a new prosecution, if the defendant had previously been acquitted of them, no
evidence could be adduced of them. 50 We did not explore this issue in the
consultation paper, but simply proposed no change. We did, however, explore this
issue in depth in our double jeopardy consultation paper, and proposed that the
law should be changed. 51 This is no longer held to be the law in consequence of a
decision of the House of Lords last year in a case where evidence of previous
acquittals was admitted under the “similar fact” rubric. 52 The result of that
decision is to effect the change which we had thought was required: there is now
no special rule of inadmissibility for evidence of previous offences of which the
defendant has been acquitted. 53 This effect, which would apply to all the
exceptions we recommend but would be particularly applicable to the
incriminatory exception, is preserved by the terms of the draft Bill appended to
this Report. The defence would still be able to apply to have the evidence
excluded under section 78(1) of PACE.
50 The rule in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458.
51 See Double Jeopardy (1999) Consultation Paper No 156, Part VIII and provisional
proposal 24.
52 Z [2000] 2 AC 483.
53 We therefore did not make any recommendation for abolition of the Sambasivam rule in
Double Jeopardy and Prosecution Appeals (2001) Law Com No 267 paras 2.22 – 2.28.
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