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

(3) the evidence adduced in support of that suggestion does not have to do
with the offence charged, and is not evidence of misconduct in
connection with the investigation or prosecution of that offence,
(4) without the evidence of the defendant’s bad character the fact-finders
would get a misleading impression of the defendant’s propensity to be
untruthful in comparison with that of the other person, and
(5) the interests of justice require the evidence to be admissible, even taking
account of its potentially prejudicial effect. 9
Evidence to correct a false or misleading impression about the
defendant’s character
10. We recommend that leave may be given to the prosecution to adduce evidence of
the bad character of a defendant if
(1) the defendant is responsible for an assertion (express or implied) which
creates a false or misleading impression about the defendant,
(2) the evidence has substantial probative value in correcting that impression,
and
(3) the interests of justice require it to be admissible, even taking account of
its potentially prejudicial effect. 10
11. We recommend that, where the prosecution seeks to rely on this exception in
summary proceedings, it should first indicate to the court that the impression
created is false or misleading and that the prosecution has evidence to controvert
it; the bench should then rule on whether the impression is important enough to
need controverting; only if the bench so rules may the prosecution detail the
nature of its corrective evidence, and proceed with the full application to
introduce it. 11
Evidence of the bad character of a co-defendant
12. We recommend that leave may be given to a co-defendant to adduce evidence of
the bad character of a defendant where it has substantial probative value in
relation to a matter in issue between the co-defendant and the defendant where
that issue is itself of substantial importance in the context of the case as a whole –
except that, if it has probative value only in showing that the defendant has a
propensity to be untruthful, leave may not be given unless, in addition, the
defendant’s case is such as to undermine that of the co-defendant. 12
9 Para 12.13; cl 9 of the draft Bill.
10 Para 13.48; cl 10 of the draft Bill.
11 Para 13.50; cl 10(9) of the draft Bill.
12 Para 14.53; cl 11 of the draft Bill.
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