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

PART XIII
THE CORRECTIVE EXCEPTION
13.1 The essence of the exception recommended in this Part is to allow evidence of a
defendant’s bad character to be adduced for its corrective value. The fact-finders
should not be left with a misleading impression of the defendant’s character. 1
This exception covers similar ground to that of the “good character” exception
under the present law. 2
13.2 In the consultation paper we made the following criticisms of the existing good
character exception. First, behind the present law lies the doctrine that character
is indivisible, which is not always a useful guide to whether evidence of bad
character should be admitted. We discuss this concept in detail at paragraphs
13.22 – 13.28 below. Second, good character is treated as bearing both on a
person’s propensities and on truthfulness, whereas, inconsistently, evidence of
bad character which is admitted to contradict a claim of good character goes only
to credibility. Third, it is presently unclear what kinds of assertions will trigger
the loss of the shield. 3 Fourth, a person might falsely claim good character
through his or her dress or conduct, but non-verbal assertions fall outside the
present exception. Fifth and finally, an anomaly may arise under the present law
where the defendant seeks to suggest a favourable contrast with other possible
culprits. If those others are prosecution witnesses in the defendant’s trial, such a
suggestion will amount to an “imputation” and the defendant will lose the
shield. 4 If they are not witnesses against the defendant, the suggestion may be
made without the loss of the shield. The rationale is supposedly that the
defendant is challenging the witnesses’ credibility and therefore the defendant’s
own bad character should be admissible. The reality is that the imputation is
about a propensity to commit the offence, not directly about the witnesses’
credibility at all. Under our recommendations, if a defendant made this kind of
imputation, it might render his or her bad character admissible under the
incriminatory exception, as we explain at paragraphs 13.51– 13.52 below.
1 Stephen Seabrooke argued persuasively that the correction of a false impression is the true
purpose of section 1(f)(ii): “Closing the Credibility Gap: A New Approach to section
1(f)(ii) of the Criminal Evidence Act 1898” [1987] Crim LR 231.
2 The first limb of s 1(f)(ii) of the 1898 Act. It is described briefly at paras 2.53 – 2.61
above.
3 Eg, it is not clear from the case law whether the section encompasses the mere repetition
in court of words claiming a good character uttered upon arrest: Solomon (1909) 2 Cr App
R 80. Nor is it clear whether a defendant asserts good character by claiming (truthfully) to
be, eg, a solicitor or church warden. It has been held that evidence of good character has
been given where the defendant had claimed to have been earning an honest living for a
considerable time (Powell [1985] 1 WLR 1364), or to have performed kind or honest deeds
on a previous occasion (Samuel (1956) 40 Cr App R 8).
4 Under the second limb of s 1(f)(ii). See para 2.64 above.
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