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

Clause 9 (cont’d)
EXPLANATORY NOTES
This clause applies only where the defendant has suggested that another person has a
propensity to be untruthful. The defendant may do this by adducing evidence of that
person’s propensity, by cross-examining to that effect, or by making an assertion to that
effect after being cautioned (whether when being questioned or on being charged) of which
evidence is then given.
The clause does not apply where the allegation of untruthfulness has to do with the facts of
the offence charged or the investigation or prosecution of that offence. For example, the
defendant would not open the door to evidence of his own past untruthfulness merely by
suggesting that prosecution witnesses are lying about the offence charged, or that the
prosecution’s evidence has been fabricated by the police.
To obtain leave under this clause, the prosecution must satisfy the court that
• the evidence it wishes to adduce has substantial probative value in showing that the
defendant has a propensity to be untruthful; and
• without that evidence, the magistrates or jury would get an inaccurate impression of
the defendant’s propensity to be untruthful in comparison with that of the other
person; and
• either the evidence is unprejudicial, or it is so probative that, even taking account of
the risks of prejudice which do attach to it, the interests of justice require it to be
admissible. Subsection (6)(b) sets out the factors that the court must take into
account in determining whether the evidence has enough probative value to
outweigh any risk of prejudice. (“Prejudice” is defined at clause 17(2).)
Subsection (7) sets out a number of further factors to which the court must have regard in
determining whether these conditions are met.
In assessing the probative value of the evidence, the court must assume that it is true unless
it appears that no court or jury could reasonably find it to be true (see clause 14).