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

(3) by attacking the person’s reputation for truthfulness, which may amount
to a full attack on the person’s character. 8
12.23 Evidence of the person’s bad character on occasions other than covered by the
central set of facts may bear on any of these matters or for purposes other than
propensity to tell the truth. The exception described in this Part covers only the
third. If the defendant adduces evidence of another’s bad character for some
other reason, that might render the defendant’s own character admissible under
the incriminatory exception (clause 8) but it would not do so under the
credibility exception.
12.24 For example, if the advocate wishes to persuade the fact-finders that the witness
is the real culprit, he or she may refer to previous convictions of the witness which
indicate that he or she is disposed to commit, or has a history of committing, the
kind of offence with which the defendant is charged. In such a case, if the
defendant has a similar history, that may, by reason of the defence pursued attain
increased probative value so as to become potentially admissible under the
incriminatory exception. We thought the point was well put by Sir John Nutting
QC:
I add this thought. The test of what the motive is in putting the
record to the witness should not be the only test. If there is a sensible
possibility that the Jury will regard the introduction of the witness
record as indicative of propensity, the defendant should lose the
shield in a similar fashion whatever the motive for introducing the
evidence.
8 See A Zuckerman, The Principles of Criminal Evidence (1989) pp 247–248.
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