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

Clause 10 (cont’d)
EXPLANATORY NOTES
Subsection (8) sets out a number of further factors that the court must take into account in
determining whether these two conditions are met.
In assessing the corrective 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).
Subsection (9) provides that, where the prosecution proposes to apply for leave under this
clause in the magistrates’ court, the court must first rule whether, in the context of the case
as a whole, the impression in question is sufficiently important to need correcting. If the
court rules that it is not, the prosecution may not pursue that application. The court must
make its ruling without hearing about the evidence which it is said would correct the
impression given.
Clause 11
This clause concerns evidence of a defendant’s bad character which a co-defendant wishes to
adduce (or to elicit in cross-examination) for the sake of its probative value. (If the codefendant
wishes to adduce it for the sake of its explanatory value, leave may be sought
under clause 7.) The prosecution may not apply under this clause.
Leave will be given under this clause if the evidence has substantial probative value in
relation to a matter in issue between the defendants concerned, which is of substantial
importance in the context of the case as a whole. For this purpose the court must have
regard to the factors listed at clause 5(2), and must assume that the evidence is true unless
it appears that no court or jury could reasonably find it to be true (see clause 14). There is
no need for the court to consider whether the evidence is prejudicial or, if so, whether the
interests of justice require it to be admitted despite that risk.
Subsection (2), however, provides that evidence of a defendant’s propensity to be untruthful
cannot be admitted under this clause unless that defendant has undermined the codefendant’s
defence. The defendant may do this either by running a particular defence (for
example, that the co-defendant was solely responsible) or by running the defence in a
particular way (for example, by attacking the credibility of the co-defendant’s witnesses).