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

efused severance, the judge should have directed the jury to treat the charges
separately.
Is there a discretion to exclude similar fact evidence?
2.19 The courts have traditionally had a discretion to exclude similar fact evidence
even if it passes the test of admissibility. This discretion “flows from the duty of
the judge when trying a charge of crime to set the essentials of justice above the
technical rule if the strict application of the latter would operate unfairly against
the accused”. 42 In the consultation paper 43 we suggested that the principle stated
by the House of Lords in DPP v P 44 has the character of a rule of law – at least in
cases where the prosecution seeks to rely on the evidence as proof of the
defendant’s disposition, or where there is a risk that the jury will regard it as
such – and we questioned the existence of a residual discretion. There is no
room for any discretion which entails the weighing of probative value against
prejudicial effect, because that is itself the test of admissibility. 45
SUPERVENING DISCRETIONS: SECTION 78, AND THE COMMON LAW
2.20 Section 78(1) of PACE reads:
In any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.
2.21 The scope of section 78 is not limited merely to the balance of relevance and
prejudice. Extrinsic considerations of fairness come into play, such as the way in
which the evidence was obtained. It is therefore possible that the defence would
seek to exclude some item of bad character evidence on these grounds. 46
2.22 Section 82(3) of the same Act preserves the common law discretion to exclude
evidence, which is founded on the duty of the judge to ensure that every accused
person has a fair trial. 47 As with section 78, this discretion is not limited to
42 Harris v DPP [1952] AC 694, 707, per Viscount Simon.
43 At para 2.41.
44 DPP v P [1991] 2 AC 447.
45 As Peter Mirfield has said: “The judge is likely to invite counsel to explain to him how
evidence which, for the purposes of the similar fact rule, has more probative value than
prejudicial effect, can possibly be more prejudicial than probative as a matter of
discretion.” Mirfield, “Proof and Prejudice in the House of Lords” (1996) 112 LQR 1, 7-
8.
46 In H [1995] 2 AC 596 both Lord Mackay LC at p 612H and Lord Nicholls at p 627E
made the point that, even where evidence is admissible under the similar fact rules, the
trial judge can always use the s 78 discretion to exclude the evidence where appropriate.
47 See Sang [1980] AC 402, 452, per Lord Scarman; 447, per Lord Fraser; 445, per Lord
Salmon.
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