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

the likelihood that he or she was lying in the case in hand, and therefore to a fact
in issue.
12.4 A defendant need not testify personally in order to make an attack on the
general credibility of another person. An attack is also made if evidence is given
of an attack made by the defendant out of court, on an occasion when he or she
has been cautioned. An example would be where the defendant, when
interviewed by the police, says of the principal prosecution witness, “You can’t
believe a word he says, given his record” and that part of the interview is
evidence in the case.
12.5 One of the advantages of our recommendations requiring leave for the
introduction by the defendant of evidence of a person’s bad character outside the
central set of facts 3 is that they ensure the court is clear about the purpose of the
defendant’s proposed attack on the other person. Thus any application by the
prosecution for leave to adduce the defendant’s character on the basis of
credibility may be judged by reference to the purpose, nature, extent and
effectiveness of the defendant’s attack. In that case only evidence of the
defendant’s character which relates to it will be admitted. Further, in the Crown
Court, requiring the defendant to obtain leave gives the judge the opportunity
before matters have gone too far to form a preliminary view whether permitting
the attack might in turn trigger a successful application by the prosecution to
adduce evidence of the defendant’s character. The judge can then give an
appropriate warning to the defence of the risk of pursuing the application in
good time for them to consider it out of hearing of the jury so that if, on
reflection, they think better of pursuing the application they may withdraw in
good order and without embarrassment before the jury.
12.6 Where, therefore, the defendant makes an attack on a person’s character on
matters which fall outside the central set of facts and the effect of that attack is to
suggest or support a suggestion that the person has a propensity to be untruthful,
then the question arises whether evidence which shows a similar propensity in the
defendant should itself be admissible.
The comparison
12.7 If the defendant’s own credibility is in issue and there is evidence available which
tends to show he or she also has a propensity to be untruthful, it could be
misleading if that information were kept from the fact-finders. One of the
guiding principles we have set out is that fact-finders should not be unnecessarily
misled. 4
3 See paras 8.26 and 8.31 above.
4 See para 5.9 above.
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