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

IS THERE A DISCRETION TO EXCLUDE DEFENCE EVIDENCE?
2.41 The existence of a discretion to exclude defence evidence is in some doubt.
There are authorities which state that there is no such discretion, but some recent
dicta raise the possibility that the issue has not been finally decided. 85
2.42 The possibility of a discretion to exclude evidence which is prejudicial to a codefendant
was canvassed by Evans LJ in Thompson, Sinclair and Maver. 86 He
noted that the only discretionary safeguard for a defendant who risks having
prejudicial evidence adduced by the co-defendant is the “cumbersome device of
separate trials”. 87 He went on “This seems undesirable, and it might be preferable
to allow a discretion where the prejudice is substantial and the evidence is of only
limited benefit to the co-defendant”. 88 He argued that under the current
authorities, the protection for the co-accused lay in the strict application of
89 90
relevance, as illustrated by Bracewell and Neale, and that the Court of Appeal
in the former might have been referring to a discretion by saying that “There are
obvious objections to putting a co-accused in the position of having to fight two
quite different battles at the same time”. 91 Evans LJ continued: “We should not
like it to be thought that we have concluded that such a discretion can never
exist, although the authorities make it difficult to hold that it does”. 92
(III): Adducing bad character evidence in cross-examination
2.43 Section 1 of the Criminal Evidence Act 1898, as amended, provides:
Every person charged with an offence shall be a competent witness
for the defence at every stage of the proceedings, whether the person
so charged is charged solely or jointly with any other person.
Provided as follows –
(e) A person charged and being a witness in pursuance of this
Act may be asked any question in cross-examination
notwithstanding that it would tend to criminate him as to
the offence charged:
(f) A person charged and called as a witness in pursuance of
this Act shall not be asked, and if asked shall not be required
to answer, any question tending to show that he has
committed or been convicted of or been charged with any
85 See, eg, Myers [1997] 3 WLR 552, 571, where Lord Hope of Craighead expressed the view
that “worthless” defence evidence could be excluded, although in that case, which
concerned hearsay evidence, the House of Lords decided that there was no such discretion.
86 [1995] 2 Cr App 589.
87 [1995] 2 Cr App R 589, 597.
88 Ibid, 596–597.
89 (1979) 68 Cr App R 44.
90 (1977) 65 Cr App R 304.
91 (1979) 68 Cr App R 44, 51, per Ormrod LJ.
92 [1995] 2 Cr App R 589, 597.
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