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

On a prosecution under this section, 66 it shall not be necessary to
show that the accused person was guilty of any particular act tending
to show a purpose prejudicial to the safety or interests of the State,
and, notwithstanding that no such act is proved against him, he may
be convicted if, from the circumstances of the case, or his conduct, or
his known character as proved, it appears that his purpose was a
purpose prejudicial to the safety or interests of the State …
2.32 In the consultation paper we noted that this section constitutes an exception to
the general exclusionary rule at common law that evidence of a defendant’s bad
character may not be adduced as part of the prosecution case. 67 Therefore, the
provision runs contrary to the usual principles of justice. Whether or not it
represents a defect in the present law depends very much on whether it is viewed
as a defensible special case. We discuss this provision at paragraphs 11.56 – 11.61
below.
Special cases where bad character evidence is inadmissible in chief
SPENT CONVICTIONS
2.33 The philosophy of the Rehabilitation of Offenders Act 1974 68 is that, once a
conviction is “spent”, the rehabilitated person should be treated in law as a
person who has not been convicted of or charged with the offence. The Act does
not apply to the use of convictions in criminal proceedings. 69 Nevertheless, a
Practice Direction has been issued 70 under which “it is recommended that both
court and counsel should give effect to the general intention of Parliament by
never referring to a spent conviction [of a defendant or a witness] when such
reference can be reasonably avoided”. 71 To achieve this aim, no party may refer in
open court to a spent conviction without the authority of the judge or
66 Section 1(1) of the Act, as amended by the Official Secrets Act 1920, ss 10, 11(2),
Schedules 1 and 2, provides:
If any person for any purpose prejudicial to the safety or interests of the State –
(a) approaches, inspects, passes over or is in the neighbourhood of, or enters any
prohibited place … ; or (b) makes any sketch, plan, model, or note which is
calculated to be or might be or is intended to be directly or indirectly useful to
an enemy; or (c) obtains, collects, records, or publishes, or communicates to any
other person any secret official code word or pass word, or any sketch, plan,
model, article, or note, or other document or information which is calculated to
be or might be or is intended to be directly or indirectly useful to an enemy; he
shall be guilty of [an offence].
67 See para 3.5 and n 3 of the consultation paper.
68 The 1974 Act was the result of the report Living it Down (1972) published by a committee
set up by JUSTICE, the Howard League and the National Association for the Care and
Resettlement of Offenders.
69 Rehabilitation of Offenders Act 1974, s 7(2)(a).
70 Practice Direction (Crime: Spent Convictions) [1975] 1 WLR 1065. See Appendix A of the
consultation paper for the text of the Direction.
71 Practice Direction (Crime: Spent Convictions) [1975] 1 WLR 1065, para 4.
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