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

Clause 12
EXPLANATORY NOTES
Subsection (1) amends section (5) of the Indictments Act 1915 so as to provide for the
situation where counts are properly joined in an indictment and where evidence of the
defendant’s bad character is admissible on one count but inadmissible on another. If the
defendant applies for the counts to be tried separately, the paramount consideration for the
court is whether the defendant can receive a fair trial. If the court is not so satisfied, there
must be separate trials.
Subsection (3) makes similar provision for summary trials.
Clause 13
This clause comes into play where, in a trial on indictment, evidence of a defendant’s bad
character has been admitted with leave, but, after the close of the prosecution’s case, the
court is satisfied that that evidence is “contaminated”. By virtue of subsection (5), evidence
might be “contaminated” as a result of: deliberate fabrication of allegations resulting from
an agreement between witnesses; concoction of an allegation by one person (no
conspiracy); collusion between witnesses to make their evidence sound more credible falling
short of concoction of allegations; deliberate alteration of evidence or unconscious
alteration of evidence, resulting from having become aware of what the evidence of another
will be or has been.
Where the court is satisfied that the contamination is such that a conviction would be
unsafe, it must stop the trial on that charge (and on any lesser offence: subsection (2)).