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

The current law
15.9 The question how a court should approach such evidence was considered in H. 2
The defendant appealed against his convictions for sexual offences against his
adopted daughter and step daughter. There were similarities in the two
complainants’ accounts but each denied that they had collaborated or concocted
a story. The House of Lords held that, in relation to “similar fact evidence” the
assessment of credibility should be left to the jury: for the purpose of deciding
whether the evidence is admissible, the trial judge should not make any enquiry
into the quality of the evidence. Thus the issues of collusion and contamination
are not relevant considerations for the judge on the question of admissibility.
The options in the consultation paper and the response on consultation
15.10 In the consultation paper we looked at three possibilities: 3 replicating the law in H
(option A); requiring the judge to assess the cogency of the evidence on the basis
of the documents (option B); and requiring the judge to hold a voir dire to make
an assessment of the quality of the evidence before ruling on admissibility
(option C). We provisionally rejected option B, but expressed no view as between
options A and C. We asked respondents’ whether “juries can now be entrusted
with the task of evaluating for themselves evidence which exhibits appreciable
risks of contamination and collusion”. 4
15.11 Forty respondents addressed this issue. Twenty agreed in unequivocal terms
with option A. Three agreed with it but stated that in exceptional cases option C
ought to be available to the judge. (This is in fact the position under H, because
their Lordships left open the possibility of a voir dire, although they did not give
examples of when it might be appropriate.) Two expressed a preference for
option B. Two suggested the use of option B as a precursor to option C. Nine
preferred option C, and the remainder did not favour any of the three options.
15.12 The main argument in support of option A was that allegations of collusion and
contamination essentially raise issues of credibility and ought to be left to the
arbiters of fact. As one respondent wrote, “If we cannot expect juries to deal with
cases in which two witnesses may have fabricated their stories together, or in
which one may be feeding off or contaminating the other, we should abandon
hope and do away with trial by jury.”
15.13 The Law Reform Committee, General Council of the Bar thought option B
merited further thought and that where there was cogent evidence of collusion
and/or contamination, the judge ought to be able to express a view at the outset.
We have no doubt a judge would do so where the contamination was glaring
from the papers alone. Such a case would be rare, as Lord Mustill said in H, “I
find it hard to envisage that where the committal papers are so frank or artless
2 [1995] 2 AC 596.
3 Paras 10.94 – 10.97.
4 Para 10.97.
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