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

(2) the defendant has suggested that another person has such a
propensity,
(3) the evidence adduced in support of that suggestion does not have
to do with the offence charged, and is not evidence of misconduct
in connection with the investigation or prosecution of that offence,
(4) without the evidence of the defendant’s bad character the factfinders
would get a misleading impression of the defendant’s
propensity to be untruthful in comparison with that of the other
person, and
(5) the interests of justice require the evidence to be admissible, even
taking account of its potentially prejudicial effect.
12.14 This recommendation is reflected in clause 9. Leave may only be sought under
this clause by the prosecution (subsection (8)). 6 If a co-defendant wishes to
attack an accused’s general credibility that would have to be done, if at all, under
clause 11, as described in Part XIV.
D is charged with conspiracy to defraud. His advocate obtains leave to crossexamine
one of the prosecution witnesses on her multiple convictions for theft, on
the basis that they show she is generally untruthful. D can then expect his own
conviction for perjury to be adduced by the prosecution under the credibility
exception.
12.15 As with the incriminatory exception, we believe it is desirable for the courts to be
given guidance in applying this exception. 7 They will be particularly apposite on
the issue whether the interests of justice require the evidence to be admissible.
The draft Bill makes detailed provision in subsection (7) of clause 9.
12.16 The court should thus take into account the nature and number of the events to
which the defendant’s attack relates, and of those to which the evidence which the
prosecution wishes to adduce in response relates.
12.17 Certain of the factors are tailor-made for this exception. Paragraph (c) requires
the court to consider how important the defendant’s propensity to be untruthful
and the other person’s propensity to be untruthful are, in the context of the case
as a whole.
12.18 Paragraph (d) requires the court particularly to have regard to the question
whether, although the defence advocate might have asked a witness questions
which were clearly intended to elicit answers which would have been damaging
6 A simple false claim of good character by a defendant about his or her own propensity to
tell the truth on oath might prompt the prosecution to seek leave to admit evidence
showing that the defendant does have a general tendency to lie, but this will be under
cl 10. See Part XIII below on corrective evidence.
7 See para 7.19 above.
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