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

(1) the degree to which D2’s defence had been undermined;
(2) how unavoidable it was for D1 to undermine D2’s defence;
(3) the nature, number and age of the matters of bad character which it is
sought to adduce; and
(4) the relative characters of all the accused as they would appear to the factfinders
if the evidence of bad character were allowed.
14.10 We also provisionally proposed that where leave was given for one co-defendant
to adduce evidence of the other’s bad character, the fact-finders should be
permitted to use that character evidence on the issue of guilt as well as on the
issue of credibility, and that, in the Crown Court, the jury should be guided by
the judge in assessing its probative value, as well as being warned about its
potential for prejudice. 7
14.11 This option would result in D1 only losing his shield if the evidence adduced or
statement made against D2 did not concern the central facts of the case. This
would enable D1 to put forward his defence freely without fearing crossexamination
as to character. Where, however, D1 chooses to put in issue D2’s
character by raising matters outside the central facts, D1 would potentially expose
his own previous bad character. The court would retain a structured discretion
whether to give leave to adduce evidence of D1’s character.
Attacks on a co-defendant by a defendant who does not testify
14.12 Under this option it was not necessary for D1 to have given evidence about D2
in order to trigger the entitlement to adduce evidence about his character, nor
was it necessary for D1 to give evidence in order for the evidence of his character
to be placed before the fact-finders.
THE VIEWS OF RESPONDENTS
A question of balance
14.13 Forty-one respondents addressed this issue, on which we had simply invited
views. 8 Opinions were divided. Five were clear that there should be some
balancing of probative value and prejudicial effect, and a further five thought that
there should be a balancing test in some circumstances. Sixteen thought there
should be no balancing test and a further three held that same view subject to
certain conditions. Four respondents saw severance as the only solution. The
remainder either argued that the current law involves an element of balancing, or
submitted ambiguous or split responses.
14.14 Not all the respondents who supported a balancing test gave reasons for their
support. Two respondents recognised that there was a strong argument against
fettering the defendant’s right to adduce relevant evidence, but argued that the
7 See paras 13.51 – 13.53 of the consultation paper.
8 See para 14.5 above and paras 10.115 – 10.118 of the consultation paper.
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