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

equires magistrates to give reasons for their rulings, although where a case is
appealed they may well do so. 35
17.15 We recommend that where a court
(1) rules on whether leave is required for evidence of bad character to
be admitted, or
(2) gives or withholds such leave, or
(3) rules on whether the case should be stopped because of such
evidence being contaminated,
it must give the reasons for the ruling in open court and those reasons
must be recorded.
17.16 This recommendation is given effect by clause 15. In the Crown Court, reasons
announced in open court must be entered in the record, by virtue of rule 18 of
the Criminal Appeal Rules 1968, so the Bill does not need to make any provision
in that respect, but there is no equivalent rule in respect of the magistrates’
courts, hence subsection (1)(b).
WARNINGS TO THE JURY
A warning against speculation
17.17 There will no doubt be cases where jurors become aware that evidence about the
defendant’s criminal record might be being withheld from them. (This is one of
the reasons that some put forward for disclosing the record in all cases.) 36 Our
view is that, where the defence agree, the best way to tackle this issue might be for
the judge to address the jury directly on the point. As a judge may warn the jury
not to speculate about any matter on which they have not heard evidence, so it
may be appropriate for the warning to include the absence of evidence about the
defendant’s character. 37 This is a course which is currently open to the court if
the defence so request.
A warning against placing too much weight on evidence of past
misconduct
17.18 One of the reasons that evidence of bad character should be treated with caution
is, as we have said, because of the risk that fact-finders will place too much weight
35 Eg, Jackson J held in R v Kingston Crown Court, ex p B (a juvenile) that the Crown Court
judge sitting in an appellate capacity was under a duty to give reasons, particularly as he
was reversing a well-reasoned decision of the magistrates: (2000) 164 JP 633.
In R v Crown Court at Canterbury ex p Howson-Ball the Divisional Court quashed the
Crown Court decision (rejecting the appeal from the magistrates) because “in the absence
of an analysis of the evidence that the Crown Court had heard, its reasons were
inadequate”: (2000) JP 164 910.
36 See para 6.18 above.
37 As we suggest at para 6.24 above.
208