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

(5) there were a series of factors to be considered in exercising the discretion
involving consideration of the damage done to D2’s case, how gratuitous
the attack had been, the number and nature of D1’s convictions sought to
be adduced, and the impact of admitting the evidence.
14.37 We have retained a number of features of our provisional proposals but have
recalibrated them in order to achieve a uniformity of approach in the overall
scheme we propose. We regard such uniformity of approach as an important
feature of our recommendations.
14.38 We have, however, abandoned certain elements of the provisional proposals as we
have been persuaded by the responses to the consultation paper that they were
erroneous as a matter of principle.
14.39 In particular we think it right that D2 should be entitled as of right to adduce
evidence of D1’s bad character if the requirements are satisfied. We accept that
each defendant should be permitted to pursue his or her defence legitimately
without regard to the impact on the other defendants. On the other hand, we
accept that the only party who should, on this ground, be free to adduce evidence
of the bad character of D1 should be D2. If D2 does not wish to do so then we
do not now think that the prosecution, or other defendants, should be able to
jump on that bandwagon and adduce such evidence where they have no
independent entitlement to do so.
14.40 Our first recommendation is that each defendant should be free to make attacks
on the character of co-defendants in respect of matters falling within the central
set of facts, as we have defined them, 21 without seeking leave of the court and
without thereby automatically entitling co-defendants to adduce evidence of bad
character which goes outside the central set of facts. 22 In this respect their
freedom to adduce evidence will be no different from their freedom to adduce
evidence attacking prosecution witnesses or others.
14.41 In common with our other recommendations, if a defendant wishes to adduce
evidence about another defendant which goes outside the central set of facts then
the leave of the court must be obtained.
14.42 Consistent with our recommendations in respect of adducing evidence of the
defendant’s character by the prosecution, or of a non defendant’s character by
any party, such leave will only be given if the evidence is of substantial probative
value to an issue between the defendants, which issue is itself of substantial
importance in the context of the case as a whole.
14.43 This recommendation mirrors our other recommendations in respect of
evidence sought to be adduced about bad character evidence outside the central
21 See para 8.31 above.
22 Though the co-defendant may be granted leave to adduce such evidence: see paras 14.44 –
14.46 below.
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