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

allow D1 to undermine D2’s defence in the first place, since such evidence itself
was often insufficiently relevant.
14.20 Those respondents who disagreed that reform was desirable thought that the
introduction of an element of discretion would inhibit D2 in the presentation of
her defence, arguing that it was only fair that, in the capacity of a witness, D1
should be cross-examined as to his previous convictions. A prominent
practitioner said
In the practical world of the hard fights in contested criminal cases
with, in so very many instances, much hard lying taking place, it is
improvident to put a premium upon the invention of cunning false
stories giving rise to immunity from credit being properly tested.
14.21 However, this argument can be turned on its head and applied to D1. If D1
automatically loses the shield by undermining D2’s, his defence might be equally
inhibited. This point was endorsed by one judicial respondent. 10
Our proposal
14.22 Thirty-five respondents addressed the option we had provisionally proposed in
the consultation paper. 11 Twelve respondents agreed with the proposal. A further
seven respondents had some reservations, but generally agreed with our
proposal. Three respondents disagreed but suggested a scheme which was similar
to that proposed. 12 Eight respondents did not agree with our proposal.
14.23 Most of those who agreed with our preferred option did so without further
substantial comment. One respondent who agreed with the entire scheme of
proposals in the consultation paper thought it was logical that the same test
should be applied to the undermining of the co-accused. One academic stressed
that
Defendants should not generally be allowed to undermine the
defence of a co-accused except where the challenge concerns the coaccused’s
conduct in the incident or investigation in question, in
which case the shield would not be lost under the proposal.
A few other respondents agreed but had reservations about the rigidity of the
proposal.
14.24 There were two main reasons for not agreeing with our proposals: dislike of the
immunity afforded defendants who confine their attacks to the co-defendant’s
behaviour in the incident in question or the investigation, and dissatisfaction with
the operation of the discretion.
10 The point was also referred to in the consultation paper: see paras 13.16 and 13.45.
11 Provisional proposal 38. See para 13.46 in the consultation paper.
12 All three thought that there should not be an immunity for defendants who confined their
attacks to the co–accused’s behaviour in the incident in question.
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