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

Clause 10
EXPLANATORY NOTES
This clause concerns evidence of a defendant’s bad character which the prosecution wishes
to adduce to correct a false or misleading impression about the defendant for which the defendant
is responsible. A defendant is responsible for such an impression if it results from an
assertion which is made
• by the defendant in the proceedings (either in the course of giving evidence, or
through his or her representative);
• in an assertion made out of court by the defendant after caution, and evidence of the
assertion is before the court;
• by a defence witness;
• by any witness in cross-examination by the defendant, unless the question was not
intended to produce the answer given; or
• by anyone out of court, and the defendant adduces evidence of it.
Under subsection (6) the court may also treat the defendant as responsible for creating a
false or misleading impression about himself or herself where it appears to the court that the
defendant is seeking to give the magistrates or jury such an impression by means of his or
her conduct.
To obtain leave under this clause, the prosecution must satisfy the court that
• the evidence has substantial probative value in correcting the false or misleading
impression; and
• either the evidence is unprejudicial, or it has such corrective value that, even taking
account of the risks of prejudice which do attach to it, the interests of justice require
it to be admissible. Subsection (4)(b) sets out the factors that the court must take
into account in determining whether the evidence has enough corrective value to
outweigh any risk of prejudice. (“Prejudice” is defined at clause 17(2).)