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

2.8 The following sections address some specific points of difficulty in the current
law.
RES GESTAE AND BACKGROUND EVIDENCE
2.9 The similar fact rule does not apply to res gestae nor to evidence which forms
part of the background to the offence charged. The parameters of these two
categories are not clear. Background evidence is admitted because of the close
connection between it and the facts in issue, but, as Cross and Tapper points out, 10
this approach is potentially dangerous because it can be used to smuggle in
similar fact evidence which would otherwise be inadmissible. Evidence has been
admitted without application of the rule in DPP v P where it was part of the res
gestae, showed a pre-existing relationship between the victim and the accused,
revealed a motive for the offence charged, or where, without that evidence, “the
totality of … the account would be incomplete or incomprehensible”. 11
CAN EVIDENCE OF PROPENSITY BE ADMITTED AS SIMILAR FACT EVIDENCE?
2.10 The traditional view is that evidence of mere propensity to commit crimes of a
certain type is inadmissible. 12 Lord Hailsham, in Boardman, 13 spoke of “the
forbidden chain of reasoning”, which was any chain of reasoning leading directly
from propensity to guilt.
2.11 This view has been criticised 14 on the grounds that evidence of disposition may
occasionally have sufficient probative value to merit admission. 15 In the
consultation paper 16 we provisionally concluded that the admissibility of bad
character evidence in chief should depend upon the probative value of the
evidence, and not on the purpose for which it is proposed to adduce it; and that
the evidence should not, therefore, be inadmissible merely because it is relevant
10 Cross and Tapper, p 343.
11 Per Purchas LJ in the unreported case of Pettman, 2 May 1985, CA No 5048/C/82. See
further paras 4.11 – 4.12 below.
12 See, eg, A-G of Hong Kong v Siu Yuk-Shing [1989] 1 WLR 236, 239F, per Lord Griffiths;
and Lord Herschell LC’s dictum in Makin [1894] AC 57, 65: evidence should not be
adduced which tends to show that the accused has committed other criminal acts, for the
purpose of leading to the conclusion that the accused is likely from such conduct or
character to have committed the offence for which he is being tried.
13 Boardman [1975] AC 421, 453E–G.
14 Boardman [1975] AC 421, 456–457, per Lord Cross of Chelsea.
15 An example is Straffen [1952] 2 QB 911, where the charge was of murdering a young girl
by strangling in unusual circumstances: no attempt had been made to assault her sexually
or to conceal her body. The defendant came under immediate suspicion because he had
previously strangled two other girls, with each murder having the same peculiar feature.
He had also been in the neighbourhood at the time, having just escaped from Broadmoor,
and he admitted having seen the murdered girl. In those circumstances, very little other
evidence was required to convict him of the third murder. An attempt is currently being
made to have this case referred to the Court of Appeal by the Criminal Cases Review
Commission.
16 At paras 2.54, 10.14 and Part XVI, provisional proposal 14.
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