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

(2) had the defendant expressly claimed to possess that attribute, he or
she would have been regarded as implicitly asserting that he or she
is of good character,
the defendant should be regarded as so asserting, and should therefore
lose the shield. 10
13.17 Thirty-seven respondents addressed this issue. Twenty-seven agreed with the
provisional proposal, although some had slight reservations, and nine disagreed.
13.18 Respondents’ concerns fell into two categories. They feared that a defendant
might be taken to have made an assertion when none was intended. As one
person wrote, “The need for the implication to be clearly established should be
emphasised”. Alternatively, they thought these two proposals unworkable, or even
if workable, not worth the trouble they would entail.
13.19 An assertion about a person’s character may be inferred from, for example, what
he or she wears, such as where the defendant appears in court in clothing which
implies that he or she holds a position of trust that would not normally be held by
a person with a criminal record. It is therefore arguable that non-verbal
assertions ought to be within the ambit of the section and that it is defective
because it does not include such assertions. Thus if a defendant is to lose the
shield if he tells the court he is a vicar he should nonetheless be liable to do so
where he makes the same assertion in non-verbal form, such as by appearing in
court a dog-collar. 11
13.20 We are still of the view that it should make no difference whether the assertion is
made explicitly, or implicitly, or non-verbally: if the policy is that the defendant is
to lose the shield if he claims a good character he does not have, then he should
do so if he implies the same fact. Whilst it may be rare that a defendant will
convey a false impression by his or her conduct (including dress) during the
proceedings, nonetheless, in a case where a court thinks it is just to treat a
defendant as if he or she had made such an assertion, then the law should cater
for that.
13.21 The paramount test for leave is whether the interests of justice require the
corrective evidence to be admissible. The more doubt there is about whether an
assertion was made at all, or whether it was intended, the less likely it becomes
that the interests of justice will require it to be corrected.
10 Provisional proposal 27. See para 11.31.
11 In the recent case of Robinson [2001] Crim LR 478, [2001] EWCA Crim 214, the trial
judge held that the defendant was making an implied assertion of good character by
waving a Bible around when giving evidence. As any defendant may take an oath on a holy
book before giving evidence, it does not seem sensible to treat a defendant who brandishes
that book around as making any further assertion about his or her character. This was the
view of the Court of Appeal, with which we respectfully agree.
163