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

WHEN A DEFENDANT IS RESPONSIBLE FOR THE MISLEADING IMPRESSION
13.3 In order to lose the protection of the presumption preventing prejudicial
character evidence being adduced, the defendant must be responsible, directly or
indirectly, for the misleading impression. This was our position in the
consultation paper, as expressed in provisional proposal 28:
the shield should be lost if the assertion of the defendant’s good
character is made
(a) by the defendant in the course of his or her evidence in
chief, or in re-examination;
(b) by a witness for the defendant in the course of his or her
evidence in chief, or in re-examination, unless it is made in
response to a question which does not appear to the court to
have been intended to elicit the assertion;
(c) by the defendant or a witness for the defendant in crossexamination,
unless it is a reasonable response to the
question asked;
(d) by a prosecution witness, a co-defendant or a witness for a
co-defendant in cross-examination by or on behalf of the
defendant, if it is made in response to a question which
appears to the court to have been intended to elicit the
assertion; or
(e) in a hearsay statement adduced by or on behalf of the
defendant. 5
13.4 Twenty-four respondents addressed provisional proposal 28, or a paragraph
thereof. Fifteen expressly agreed with the proposal, and three did so impliedly.
Five had some reservations about the proposal or had additional comments to
make.
13.5 None of the respondents would exclude any of the circumstances outlined in
proposal 28. Only one respondent would extend the circumstances to include the
situation where the defendant calls witnesses of fact who are of good character:
It is not uncommon for a defendant of bad character to call as
defence witnesses a string of people of impeccable character to
convey the impression that, by association, he is one of them. The
shield should also be forfeit in these circumstances.
13.6 We do not agree that a defendant whose factual witnesses are of good character
should be taken to be making an assertion of his or her own good character by
their mere presence. We doubt very much that fact-finders will be misled,
especially if they hear of the witnesses’ impeccable characters but nothing about
the defendant’s character.
5 Para 11.39 of the consultation paper.
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