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

The recommendation
15.26 We recommend that, where the court is required to assess the probative
value of evidence of a person’s bad character, it should be required to do
so on the assumption that the evidence is true, except where it appears,
on the basis of any material before the court, that no court or jury could
reasonably find it to be true.
15.27 This recommendation is given effect by clause 14 in the Bill.
A DUTY TO WITHDRAW THE CASE FROM THE JURY
15.28 The House of Lords in H stated that if the question of collusion has been raised
during the proceedings, the judge is obliged to draw the jury’s attention to its
importance, with a warning that, if they were not satisfied that the evidence could
be relied on as free of collusion, they could not properly rely upon it for any
purpose adverse to the defendant. 19 Their Lordships went on to consider the case
where similar fact evidence is admitted but is later shown to be such that no
reasonable jury could accept the evidence as free from collusion. In that case,
they believed that the jury should be given a direction that the evidence could no
longer be relied on for any purpose adverse to the defence.
15.29 This raises a stark issue: whether jurors are likely to be able to put out of their
minds discredited evidence which has already been admitted and which may be
extremely prejudicial. We are concerned that when such evidence has been
correctly admitted, but it later transpires that the evidence has been discredited
by contamination or collusion, the warnings referred to in H may not be
effectively followed. The jury will have been seriously prejudiced.
15.30 In the consultation paper 20 we suggested that a better course might be to require
the judge, if so requested, to withdraw the matter from the jury if he or she was
satisfied, after hearing all the evidence, that due to the contaminated nature of
the evidence given, the prejudicial effect of the bad character evidence outweighs
its probative value.
15.31 In making this suggestion, we noted the existence of a similar safeguard against
unreliable identification evidence. 21 A judge is obliged to withhold a case from
the jury if the prosecution is based largely or entirely on identification evidence
and the judge concludes that there is insufficient evidence on which a jury could
properly convict. 22 The same principle could be said to apply to certain types of
similar fact evidence.
19 [1995] 2 AC 596, 612.
20 At para 10.105.
21 Turnbull [1977] QB 224.
22 Daley v R [1994] 1 AC 117.
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