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

PART XV
THE QUALITY OF TENDERED EVIDENCE
INTRODUCTION
15.1 In this Part we consider what approach the court should take to the quality of the
evidence which a party wishes to adduce. Should the court make some
assumption about the veracity or reliability of the witnesses and the overall
quality of the evidence, or investigate for itself? We conclude that in considering
admissibility, the court should not make its own enquiry, but should take the
evidence at face value (unless it is unrealistic to do so).
15.2 The problems posed by this issue arise most acutely where it is alleged that the
quality of the evidence is affected by contamination or collusion. We therefore
consider additionally what a court should do where bad character evidence has
been admitted but turns out to be so affected. We conclude that, in the Crown
Court, the judge should be under a duty to discharge the jury where a conviction
would be unsafe because of the doubt cast on the quality of the evidence by
contamination and/or collusion.
WHAT ARE CONTAMINATION AND COLLUSION?
15.3 In the leading case, Lord Mustill explored the meaning which “collusion” had
been given in earlier authorities, and differentiated the true meaning of collusion
from contamination:
…, it is important to note the ambiguity of the word “collusion”. In
its more limited sense this may denote a wicked conspiracy in which
the complainants put their heads together to tell lies about the
defendant, making up things which never happened. It is however
clear that the argument for the appellant, and the authorities on which
it is based, give the word a much wider meaning; wide enough to
embrace any communications between witnesses, even without
malign intent, which may lead to the transfer of recollections between
them, and hence to an unconscious elision of the differences between
the stories which each would independently have told. …
For convenience, the two situations may be labelled “conspiracy” and
“innocent infection”. 1
15.4 The two situations thus described are the extremes of the spectrum: deliberate
fabrication of allegations resulting from an agreement between two or more
witnesses, and unconscious alteration of evidence, resulting from having become
aware of what the evidence of another will be or has been. There are variations in
between. We attempt below to illustrate the range within the spectrum:
(1) A and B have together decided to make false allegations against D.
1 H [1995] 2 AC 596, 616.
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