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

they thought we had overstated the relevance of such behaviour to credibility, and
five because they thought we had understated it. By doing away with the common
law rule that character is indivisible we intend to encourage advocates and courts
to focus on the true relevance of the evidence which it is proposed to adduce.
13.25 The second criticism focused on the difficulty in practice of determining what is
relevant. Five respondents said that our proposal 29 would not be practicable.
The following response is typical:
It is, in my view, entirely artificial to dissect good character into
sections. If that were what reforms of the law were to require in this
area it seems to me they would lead to endless argument and be
difficult to apply.
13.26 The third criticism is linked to the second: limiting what counts as relevant
would give defendants an unfair advantage, by allowing them to paint a
misleading picture. For example, one person wrote,
This wording could, inadvertently, provide an unscrupulous
defendant with an advantage. “I would never do anything
indecent/improper to a little child”; he has previous convictions for
indecent assault on an adult. There are various other possibilities.
There is a good argument for saying that a person’s character cannot
be rigidly “compartmentalised”.
13.27 We acknowledge that dividing character into rigid classifications could lead to
injustice and that it is not desirable for a statutory provision to dictate what
propensity is relevant to another. It does not, however, seem to us that it would
be so hard to determine what bad character evidence is relevant in the light of an
assertion of good character in an individual case. To a certain extent, the
defendant’s claim sets the parameters, as one respondent (who supported the
proposal) wrote:
What is relevant must depend on the assertion made by the accused.
If the assertion is specific, e.g. “I have never been in trouble with the
law”, a specific rebuttal would be to adduce evidence of the
accused”s previous convictions. If, on the other hand, the accused
makes a broad assertion, e.g. “I am a person of unimpeachable moral
character”, then a much broader rebuttal becomes relevant, dealing
with virtually anything discreditable known about the accused, and
including his reputation.
13.28 What we seek is on the one hand to get away from the position that obtains
under the current law whereby “character” is seen as a whole, and on the other
hand to give the court enough flexibility to allow evidence of previous
misconduct to be given to contradict an assertion, even though it reveals a
propensity which is not identical to the propensity which the defendant claims
not to have. Thus our recommendations abandon the rule that character is
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