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

indivisible, but do not prescribe what counts as relevant. 18 They do, however, in
common with all the other categories of potentially admissible bad character
evidence for which leave is required, prescribe an enhanced degree of relevance:
bad character evidence is to be admissible only if it is of substantial relevance to
that part of the defendant’s character about which the magistrates or jury are
likely to be misled. Thus bad character evidence cannot be admissible under the
exception if it goes further than is necessary to correct the misleading
impression, and so the whole of a person’s character is not admissible merely
because he or she has falsely asserted good character.
THE INTERESTS OF JUSTICE TEST
13.29 The value of the evidence is only one side of the question for the court. The
ultimate test should be whether the interests of justice require the admission of
the evidence. In reaching a decision on admissibility, the court should take into
account the factors which militate against the admission of the evidence,
particularly the risk of prejudice.
Factors to take into account
13.30 A court should consider the following, when applying the interests of justice test:
(1) how much value the evidence has in correcting the false or misleading
impression;
(2) what other evidence on the matter is available; and
(3) how important it is in the context of the case as a whole to prevent the
false or misleading impression. 19
13.31 In assessing the value of the evidence, we envisage that the court will consider
the correspondence between the aspect of character for which the prosecution is
seeking leave and the aspect of character about which the fact-finders might be
misled, as well as matters generally concerning the quality of the evidence.
13.32 In applying the interests of justice test, the court must consider whether the false
impression can be or has been corrected in some less prejudicial way.
13.33 The requirement that it is in the interests of justice for the corrective evidence to
be admitted should be read in the context of the whole case, and the importance
to the case of the impression created. If a defendant creates a particular
impression as to his or her character, and the prosecution have evidence which
incontrovertibly shows that impression to be false, in one sense this evidence
does have substantial value in correcting the misleading impression. But it may
be that the impression created by the defendant is itself of very limited relevance
18
In the Bill, cl 20(1) repeals the common law rules governing the admissibility of evidence
of bad character.
19 These factors appear at cl 10(4)(b)(i), (ii) and (iii) respectively of the draft Bill.
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