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

The test of enhanced relevance
12.8 In accordance with our principle that evidence of bad character which goes
outside the central set of facts must have enhanced relevance, so in these
circumstances, the evidence which, it is said, shows the defendant has a general
propensity to be untruthful must have substantial probative value on that issue.
The interests of justice test
12.9 Wherever evidence of a defendant’s bad character is tendered by the prosecution
our scheme requires the court to take account of the risk of prejudice in deciding
whether to admit it. Therefore, even where the bad character evidence in
question has substantial value, and without it the fact-finders would have an
inaccurate impression of the defendant’s credibility as compared with the nondefendant’s
credibility, the overriding requirement is that the interests of justice
require the admission of the evidence, having taken account of the risk of
prejudice.
12.10 In making that judgment, the court must have regard to certain specific factors
designed to limit the introduction of evidence on a tit-for-tat basis to those cases
where it is truly required. The first is the extent to which the evidence sought to
be adduced has probative value on the issue of the defendant’s propensity to be
untruthful. The second is the need to avoid an inaccurate impression of relative
truthfulness in the context of the case as a whole. The third is whether the
defendant’s propensity to be untruthful may be shown by other evidence in the
case.
12.11 The court is not, in this connection, concerned with bad character in any respect
other than the relevance of the history of the defendant to his propensity to tell
the truth. As Sir John Nutting QC put it:
If the motive for putting to the witness his previous convictions is
limited to an attack on his credit, permission should be sought from
the Judge in advance so that a proper analysis can be made of what
aspects of the witness’s record relate to his credit. The most obvious
examples are lies on oath in previous trials and convictions for
dishonesty.
12.12 This should avoid the kind of unfairness that arose in S 5 where past convictions
which had no obvious relevance to credibility were admitted.
12.13 We recommend that leave may be given to the prosecution to adduce
evidence of the bad character of a defendant which is relevant only to
whether the defendant has a propensity to be untruthful if
(1) the evidence has substantial probative value in showing that the
defendant has such a propensity,
5 See para 4.50 above.
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