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

section 1(f)(i). This was because the words “tending to show” meant “make
known to the jury”, and therefore the prohibition in section 1(f) did not apply.
The paragraph remains of importance where no revelation has been made in
chief; although the House of Lords in Jones v DPP held that the prosecution
should adduce some evidence of such a matter in chief, so as to allow the
defendant to challenge any supposed points of similarity between the two
offences or to cross-examine the witnesses for the prosecution. 105 The decision in
Anderson 106 “seems to erode the natural meaning of the words of the prohibition
still further”. 107 In this case, it was held that the prohibition did not apply where,
although the prohibited matter had not itself been revealed in chief, the defence
themselves revealed the commission of (another) crime, the justification being
that no further prejudice would be caused to the defendant by the crossexamination.
2.52 Section 1(f)(i) refers only to evidence of commission or conviction of a crime, and
not to charges or to misconduct falling short of crime. These omissions are
unfortunate, since they may require the exclusion of highly probative evidence. 108
The first limb of section 1(f)(ii): asserting good character
2.53 Where a defendant is of good character, the jury will be directed that this is
relevant both to the likelihood of the defendant’s guilt and, where applicable, to
his or her credibility. 109
2.54 The rationale of the exception in the first limb of section 1(f)(ii) is that
if the prisoner by himself or his witnesses seeks to give evidence of his
own good character, for the purpose of showing that it is unlikely that
he committed the offence charged, he raises by way of defence an
issue as to his good character so that he may fairly be cross-examined
to show the contrary. 110
105 It may be that the prosecution is unwilling or unable to offer such evidence in chief, as in
Jones itself.
106 [1988] QB 678.
107 Cross and Tapper, p 394.
108 See, eg, Cokar [1960] 2 QB 207. The prosecution were not permitted to cross-examine the
defendant in order to show that he had formerly been acquitted of the same type of offence
as in the present charge. They wished to show that, since he had used the same defence
previously, he was lying when he said that he did not know such a defence existed. This
was affirmed in Pommell [1999] Crim LR 578, where the defendant’s appeal was successful
on the grounds that cross-examination about his previous acquittal for possession of a
prohibited weapon was wrongly permitted by the judge.
109 Vye [1993] 1 WLR 471.
110 Maxwell v DPP [1935] AC 309, 319, per Viscount Sankey LC.
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