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

PART II
THE PRESENT LAW
2.1 In this Part we seek to set out the main features of the legal landscape with
enough detail to give the general reader an understanding of the relevant law. We
have not sought to answer every question that might be asked, nor to give an
account of how the law came to be what it is. The exceptions to the exclusionary
rule fall into three categories: those which relate to evidence that may be adduced
in chief against the defendant, those relating to evidence which a defendant may
adduce, and those relating to evidence which may be adduced in crossexamination
of a defendant. They are described at paragraphs 2.3 – 2.38, 2.39 –
2.42 and 2.43 – 2.86 respectively. We then set out the circumstances in which
separate trials of co-defendants might have to be ordered at paragraphs 2.88 –
2.90. Finally, we explain the rules as to when counts on an indictment (or
informations in the magistrates’ court) may be severed at paragraphs 2.91 – 2.95.
2.2 The prosecution may not, in general, adduce evidence of the defendant’s bad
character (other than that relating to the offence charged) nor of the defendant’s
propensity to act in a particular way even if relevant. This is a derogation from
the general rule that all relevant evidence is admissible, and has been described as
“one of the most deeply rooted and jealously guarded principles of our criminal
law”. 1 There are two bases for this exclusion of evidence of bad character: it is
often irrelevant in showing guilt; insofar as it is relevant, its prejudicial effect
outweighs its probative value.
EXCEPTIONS TO THE RULE OF EXCLUSION
(I): Adducing evidence of a defendant’s bad character in chief
2.3 Evidence which discloses previous misconduct which is an ingredient of the
offence is not subject to an exclusionary rule (for example commission of an
earlier driving offence for the charge of driving while disqualified, contrary to
section 103(1)(b) of the Road Traffic Act 1988). There are also charges where an
allegation of previous misconduct cannot be avoided (such as absconding on
bail, contrary to section 6(1) of the Bail Act 1976).
“Similar fact” evidence
2.4 The main exception to the exclusionary rule is known (somewhat misleadingly)
as “the similar fact rule”. The term “similar fact” evidence 2 covers evidence of
misconduct by the defendant, whether arising before or after the offence
charged, which is said to be evidence of his or her propensity or disposition to
misconduct himself or herself either in general or in specific ways. It extends to
1 Maxwell v DPP [1935] AC 309, 317, per Viscount Sankey LC.
2 This term is still causing confusion: in Beedles the defence submitted that the “similar fact
evidence” should be excluded, partly because it did not disclose a similar incident: 31 July
1996, CA No 96/1855/W4, 8.
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