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

to the issues in the case; and, if so, evidence which serves only to correct that
impression cannot have much value in the context of the case as a whole.
13.34 In addition to these matters, where the court is considering whether the two
conditions are met, it must have regard to a number of factors. Those which
address the nature and extent of the misleading impression which has triggered
the application for leave are:
• the nature and degree of falsity or extent to which the fact-finders would be
misled by the material sought to be corrected;
• by whom and in what circumstances the assertion was made, including the
extent to which the defendant is personally responsible for the assertion;
• and the effect on the conduct of the trial in terms of the time that would be
spent hearing the corrective evidence and its distorting effect.
13.35 A court might take into account the circumstances in which the assertion was
made in the following way. For example, where the assertion is made by a
witness, whether that witness was called by the prosecution, the defendant or a
co-defendant, any connection between the witness and the defendant, what the
witness said, how misleading it was, and the weight which might be accorded to
it, as well as how spontaneous it appeared to be. Another example might be where
a defence witness gives an unsolicited (and false) eulogy in response to a
question in cross-examination. In such a case the defendant will be prima facie
responsible, but the court may decide that it would not, in the circumstances, be
fair to admit corrective evidence.
Unknown to the witness, the court has already heard about some of the defendant’s
convictions. The court is content simply to ignore what the witness has said.
The witness is the defendant’s mother. The court decides not to place too much
weight on what she says and does not allow the prosecution to prove he does not
have the good character she claims for him.
D has convictions for theft. His employer, who does not know this, speaks about D’s
trustworthiness. In such a case, the convictions may well be sufficiently relevant for
leave to be given.
13.36 A court could also consider whether the defendant has been unfairly caught out
by the prosecution or a co-defendant in the course of cross-examination.
Although a defendant will be held prima facie responsible for an assertion of
good character which he or she makes when being cross-examined, if the court
thinks the defendant has been tricked or unfairly led (possibly through
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