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

PART XIV
THE CO-DEFENDANT EXCEPTION
INTRODUCTION
14.1 Evidence of a co-defendant’s bad character may presently be adduced by two
different routes, under the common law provisions and under section 1(f)(iii) of
the 1898 Act. Under the common law, if the evidence of the bad character of a
co-defendant is relevant to the defendant’s defence it may be adduced. The
reason for this is that a defendant should not be inhibited in the presentation of
his or her defence. The test of relevance is strictly applied but there is no
discretion to exclude the evidence. 1 Under statute, section 1(f)(iii) of the 1898
Act allows evidence of a co-defendant’s bad character to be adduced in crossexamination
if the co-defendant has given evidence against the defendant. That
evidence is only admitted as relevant on the issue of the defendant’s credibility
and not on the issue of his or her propensity to commit the offence charged. If
the case falls within the subsection the co-defendant has a right to cross-examine
the defendant on his or her character. There is no discretion in the court to
decline to admit such evidence.
14.2 In this Part, for clarity we shall refer to the defendant who gives evidence against
his co-defendant as D1 (male) and the co-defendant as D2 (female). Typically
this rule comes into play where two defendants run “cut-throat” defences, that is,
each in their evidence blames the other for the offence or where, falling short of
the full “cut-throat” defence, evidence is given by D1 which supports the
prosecution case against D2 or undermines D2’s defence. In either of these
circumstances D2 has the right to cross-examine D1 on his bad character for the
purpose of suggesting that D1’s evidence should not be relied on. 2 The court has
a discretion to order separate trials of the defendants to prevent the prejudice
that might otherwise result.
14.3 The central problems with the present law are: that the court has no discretion to
refuse to admit bad character evidence which may be of little probative value but
significant prejudicial effect; the difficulty that fact-finders, magistrates and juries
alike, inevitably experience in separating the evaluation of a defendant’s
truthfulness from that of the defendant’s propensity to commit crimes;
section 1(f)(iii), which only takes effect in cross-examination, may inhibit
defendants from giving evidence, for fear of exposing themselves to crossexamination
on their character; finally, it can produce an unbalanced and
misleading picture to the fact-finders by revealing the bad character evidence of
one defendant but not the other. 3
1 See para 2.40 above.
2 Although see n 201 in Part II above.
3 See paras 4.70 – 4.78 above.
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