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

THE CORRECTIVE EVIDENCE MUST HAVE SUBSTANTIAL VALUE
Divisibility of character
13.22 An assertion about a person’s character may be about his or her character as a
whole, or about a particular trait or traits. At common law, there is authority for
the view that character is indivisible: an assertion about a particular aspect of a
person’s character can be rebutted by evidence about some other aspect. 12 One of
the main complaints about the first limb of section 1(f)(ii) was that the rule that
character is indivisible can lead to injustice. Thus if a defendant is charged with
an offence of assault, and claims always to have been honest, there is nothing in
the subsection to prevent previous convictions for offences of violence being
admitted. The defendant would have to rely on the court’s discretion to keep
those offences out. We were critical of this rule in the consultation paper, and
provisionally proposed
that the defendant should be open to cross-examination only on that
part of his or her character or truthfulness about which an assertion of
good character has been made. 13
13.23 Thirty-two respondents addressed this proposal. Fifteen agreed with it. Two
agreed that an element of divisibility should be introduced, but disagreed with
the form of the proposal. 14 Thirteen disagreed with it, either expressly or by
implication. 15
13.24 There were three main arguments deployed against the proposal. 16 First, that it is
unnecessary because the common law test of relevance applies so that irrelevant
evidence is not admitted. One example was given of a prosecution for stealing in
which “it would be irrelevant and therefore inadmissible that 20 years earlier the
defendant had pleaded to an indecent assault. This point is not just a matter of
discretion but of admissibility”. The respondent is quite right that such a
conviction would be logically irrelevant in such a case; few, if any, would disagree.
The difficulties arise because agreement is not so easily reached in more
mainstream cases. For example, in the consultation paper we expressed the
provisional view that “behaviour not involving dishonesty is unlikely to be
relevant to credibility”. 17 Ten respondents disagreed with this view: five because
12 Winfield (1939) 27 Cr App R 139. See para 2.59 above.
13 Provisional proposal 29 (emphasis in original). See paras 11.40 – 11.42.
14 Respondents commented that bad character evidence to refute an assertion of good
character should be limited to evidence going to credibility, and the fault with the current
law was that it permitted bad character evidence going beyond credibility.
15 In relation to many of our proposals, some respondents merely made a general statement
of agreement with our proposals, without addressing the issue specifically, or said that
where they did not mention a proposal specifically, it could be assumed they agreed with
it.
16 Four respondents thought it should be left to judicial discretion to disallow evidence which
is “patently inappropriate”. If previous misconduct is so irrelevant it should, in our view,
be inadmissible as a matter of law, not as a matter of discretion.
17 Provisional proposal 2(3).
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