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

OUR PROVISIONAL PROPOSALS
14.4 In the consultation paper we made several provisional proposals for reform of the
admissibility of the bad character evidence of a co-defendant.
Bad character evidence adduced by a co-defendant
14.5 To address the problem of lack of discretion to refuse bad character evidence on
the ground of its prejudicial effect, we sought views on the question whether one
defendant should always be entitled to call or elicit evidence of previous
misconduct by a co-defendant if it had some relevance, or whether the question
of admissibility should require the balancing of the evidence’s probative value
against its likely prejudicial effect. 4
Cross-examination of a co-defendant
14.6 We discussed seven possible options for the reform of cross-examination of a codefendant.
Six of them, which we provisionally rejected, were: (i) replicating the
existing law; (ii) introducing an unstructured judicial discretion to permit crossexamination
under section 1(f)(iii); (iii) repealing section 1(f)(iii) so neither
defendant would lose the shield; (iv) introducing a rule that both defendants lose
the shield if one attacks the other; (v) a presumption that evidence of D1’s
character may be admitted if he attacks D2 but a discretion to exclude this
evidence; and (vi) a presumption against the lost of shield coupled with a
discretion to admit evidence of bad character. 5
14.7 We provisionally proposed our seventh option 6 – that, where D1, in the course of
his evidence, or through his witness or representative, undermines the defence of
D2 charged in the same proceedings,
(i) if the challenge to D2’s account concerns her conduct in the incident in
question, or in the investigation of it, the shield should not be lost; but
(ii) if this is not the case, any party to the proceedings, that is D2 or the
prosecution or any other defendant, should be entitled to apply to the
court for leave to adduce evidence of D1’s character.
14.8 We provisionally proposed that once D1 had lost his shield in this manner,
evidence of his bad character should only be admitted with the leave of the court.
If D2 applied for leave we proposed a presumption in favour of leave unless it
would be contrary to the interests of justice. Conversely if another party to the
case applied for leave, the presumption should be against granting it unless it was
in the interests of justice to do so.
14.9 In deciding whether to grant leave, we proposed a court should have regard,
amongst any other relevant considerations, to
4 At para 10.118 of the consultation paper.
5 These are detailed in the consultation paper at paras 13.18 – 13.40.
6 See paras 13.41 – 13.47 of the consultation paper.
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