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

only to propensity. Support for this view can be found in the dicta of Lord
Mackay LC in DPP v P. 17
2.12 It is by no means clear, however, that this view has been universally adopted by
the courts. It seems that there remains a reluctance to accept the proposition that
propensity reasoning is not necessarily “forbidden” in all cases. We discuss this
issue when we consider the defects in the current law. 18
HOW CAN SIMILAR FACT EVIDENCE BE USED TO REBUT A DEFENCE?
2.13 Where similar fact evidence is sought to be admitted to rebut a defence, its
purpose is to put a different complexion on what occurred – perhaps by
demonstrating a criminal purpose 19 or knowledge, 20 or by showing that a death is
attributable not to natural causes but to the actions of the accused. 21 The
evidence is admissible if it is clear that the link between the events cannot be put
down to coincidence.
2.14 Similar fact evidence must be directed to an issue in the case. 22 Clear
identification of the issue to which it is said to be relevant is important, because
evidence may bear on one issue, but not on another. There are various cases in
which it has been suggested that similar fact evidence would necessarily be
inadmissible if the defence was a general denial of the prosecution’s case. One
17 DPP v P [1991] 2 AC 447, 460.
18 See paras 4.7 – 4.10 below.
19 Eg, in Bond [1906] 2 KB 389 the prosecution case was that a doctor had operated upon a
woman who was pregnant with his child, with intent to procure her miscarriage. To rebut
the defence that he was carrying out a lawful medical examination of the woman, the
prosecution was allowed to rely on the evidence of another woman who claimed that nine
months previously the defendant had operated on her when she had become pregnant by
him, with the intention of terminating her pregnancy, and that he had told her that he had
“put dozens of girls right”.
20 Eg, in Peters [1995] 2 Cr App R 77 the defendant was charged with importing
amphetamine sulphate. He denied any involvement with drugs and claimed that the drugs
must have been concealed in his car without his knowledge. Evidence was admitted that
small quantities of cannabis had been found at his address. The Court of Appeal held that
the evidence was relevant and admissible because the jury were entitled to consider the
coincidence that an accused who denied knowledge of the drugs in his car also had drugs
at his home.
21 Thus in Smith (1915) 11 Cr App R 229 the defendant, charged with the murder of his
wife, claimed that she had drowned in the bath through natural causes. To rebut this
defence, the prosecution was permitted to adduce evidence that two other women whom
the defendant had induced to marry him had met with the same fate, and that, in each case,
the defendant had insured the woman’s life, with the result that he benefited from their
deaths.
22 Thus in Lunt (1987) 85 Cr App R 241, 245, it was said that in order to decide whether
evidence is positively probative in relation to the crime charged, it is first necessary to
identify the issue to which it relates. In our provisional proposal 16 we suggested that the
specific fact in issue be identified when a court considered whether bad character evidence
should be admissible.
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