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

Responses on consultation
15.32 Thirty-two respondents addressed this issue. Of these, eleven respondents
unequivocally agreed with the proposal, and a further nine agreed with
reservations. Eight disagreed, two because they thought the current law already
covers the point. Two respondents were confident that a judicial direction would
be sufficient to prevent injustice.
15.33 Trial judges have the discretion to direct an acquittal where discredited confession
evidence has been admitted, so as to ensure that the defendant has a fair trial. 23
Recent cases have gone further, expressly stating that the judge may direct an
acquittal at any time from the close of the prosecution case to the end of the trial,
on the basis that there is no case to answer. This discretion should be used rarely,
but it can be used for any reason, so presumably it could be exercised if the judge
was concerned that some form of prejudicial evidence should not, after all, have
been admitted. 24 However, this recent development runs counter to the
traditional view as to the limits of a judge’s power. 25 Our proposal would oblige
the judge to direct an acquittal where discredited prejudicial evidence has been
admitted, thereby making explicit what may previously have been unclear and
discretionary.
15.34 Professor Tapper agreed with the proposal but felt that there may be “a danger
that the judge would not sufficiently address his mind to the issue, and might be
reluctant to reverse his previous considered view”. We believe that the contrary is
the case: a clear statutory duty will make it more, rather than less, likely that a
judge would be asked to address the issue. Moreover, the judge would not be
asked “to reverse his previous considered view”: the evidence would have been
admitted without enquiry into its quality. Once the evidence has been heard and
tested, the judge need not deal in assumptions about it, but can evaluate it afresh.
15.35 A different respondent thought the issue is one for the jury, not the trial judge.
We disagree. The fact that the judge must in our scheme take the reliability of the
evidence at face value necessitates the introduction of this safeguard for the
defendant. There already exist examples of the judge having to assess the quality
of evidence placed before the jury, for example, the second limb of Galbraith, 26 in
the case of identification evidence and, in the case of hearsay evidence,
23 In the case of Watson [1980] 1 WLR 991, the Court of Appeal accepted that the judge
retains control over the evidence that should be submitted to the jury throughout the trial.
If a confession is admitted, but the judge later decides that it should not have been, the
judge is empowered to direct the jury to disregard it, direct an acquittal or direct a new
trial (at p 995). This case was followed in Sat-Bhambra (1989) 88 Cr App R 55.
24 Boakye (Court of Appeal, 12 March 1992, unreported); Brown (Jamie) [1998] Crim LR
196; Anderson, The Independent, 13 July 1998; Brown (Davina) [2001] Crim LR 675.
25 See Archbold para 4–292.
26 [1981] 1 WLR 1039: where the judge is required to consider the prosecution case, taken at
its highest, the judge must make some kind of assessment of the quality of the evidence.
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