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

13.7 We remain of the view that it must be the defendant who, directly or indirectly,
causes the misleading assertion to be put before the court. A defendant will be
responsible within our recommendation if the assertion is made
(1) by the defendant in the proceedings in the course of giving evidence, or
through his or her representative;
(2) in an assertion made out of court by the defendant after caution, and
evidence of the assertion is before the court;
(3) by a defence witness;
(4) by any witness in cross-examination by the defendant, unless the question
was not intended to produce the answer given; or
(5) by anyone out of court, and the defendant adduces evidence of it.
13.8 Whether the defendant is responsible for an assertion is not the end of the
matter; corrective evidence will only be admissible if the interests of justice so
require. This enables the court to take all the circumstances in which the
assertion was made into account. See paragraphs 13.29 – 13.36 below.
The non-testifying defendant
13.9 In some of the circumstances set out in paragraph 13.7 above the defendant may
not have testified at all. This can arise under the present law, where a defence
witness makes a false claim of good character on the defendant’s behalf. In that
situation, the prosecution can cross-examine the witness so as to show that the
assertion is false or misleading and, if the witness does not admit it the
prosecution can call evidence in rebuttal. 6
13.10 In the consultation paper we discussed whether the prosecution ought to be
permitted to correct a misleading impression created by the defendant other than
in cross-examination or in rebuttal. 7 Such a situation might arise where the claim to
good character is made in a hearsay statement, adduced by or on behalf of the
defendant (as we proposed in the consultation paper) or where it is made by the
defendant in an interview with the police which is put in by the defence or the
prosecution (as we now recommend).
13.11 A false assertion of good character made by a defendant in the police interview
will fall within the clause if it is admitted as part of the defence case or as part of
the prosecution case. If it is the prosecution who are seeking to put the interview
in for other evidential purposes, which is more usually the case, the false assertion
may be edited out and the defence may request this. If the defence do not agree
to its deletion, it seems fair that the court should have the option of allowing
evidence which corrects the assertion. The prosecution might want to include a
false assertion of good character made by the defendant in interview where, for
6 Redd [1923] 1 KB 104; see also Waldman (1934) 24 Cr App R 204.
7 We sought respondents’ views in proposal 31 (see para 11.48) and they were broadly
supportive.
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