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

to the witness’s general credibility, those answers were in fact given. For example,
the defendant might be given leave to put to the witness that she had been
summarily dismissed from a job for misconduct involving the spreading of
malicious and untrue rumours but which had not resulted in criminal
proceedings. The witness might not agree but might assert that she had resigned
to take up better paid employment. In that event, paragraph (d) requires the
court to take into account the fact that the questions have not revealed any
evidence of a tendency in the witness to be untruthful. The court might
conclude that in view of her denials, the attack on her turned out to have little of
substance in it. Alternatively, it might conclude that, even though the advocate
did not obtain the answers he wanted, the witness’s denials were so unconvincing
that the fact-finders would still be likely to get an inaccurate impression of the
defendant’s propensity to be untruthful as compared with the witness’s
propensity to tell lies.
12.19 Paragraph (e) requires the court to assess how inaccurate the impression the factfinders
would have of the defendant’s propensity to be untruthful in comparison
with the other person’s. Where a conviction is spent, paragraph (f) directs the
court to take that fact into account.
12.20 Paragraph (g) requires the court to consider the overall impact of allowing the
prosecution to ask such questions on the course of the trial: that is whether
admitting the evidence would run the risk of confusing or misleading the factfinders
or would unduly prolong the proceedings.
12.21 In the Crown Court the judge may advise the jury on how they are to approach
evidence admitted under this exception. Clearly, the purpose of any such evidence
is to shed light on the defendant’s propensity to tell the truth, and a judge would
probably remind the jury of that. It may be that, in cases where the evidence also
shows that the defendant has previously done the same kind of thing it will also
be appropriate for the judge to explain why it is not being put forward for that
purpose and to remind the jury they should not place undue weight on it. We
think this approach is more realistic than the direction required by the current
law, which is to the effect that the past behaviour is irrelevant to the question of
whether the defendant committed the offence and directing the jury to ignore it
for that purpose.
ATTACKS WHICH DO NOT RELATE TO THE PERSON’S PROPENSITY TO TELL
THE TRUTH
12.22 An advocate may try to demonstrate that a person whose evidence is admitted is
lying in the instant case in various ways and for different purposes. He or she
may be cross-examined on, or the defendant may adduce evidence bearing on
(1) the possibility that the person is biased because there is a history of
animosity between that person and the defendant;
(2) the possibility that that person is the real culprit; or
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