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

there is no such thing known to our procedure as putting half a
prisoner’s character in issue and leaving out the other half. 123
Similarly, the accused cannot confine the inquiry to a particular period of time
when his or her character was good. 124
2.60 When the defence chooses to reveal some part of the accused’s character which is
not in any sense good character, the prosecution or a co-accused is, in general,
not then entitled to add further evidence of bad character. 125 There are, however,
two qualifications to this rule. First, there may be cases where a certain aspect of
bad character is asserted for the purpose of suggesting a lack of disposition to
commit the offence. The accused may, for example, seek to deny a charge of
raping a woman by claiming to be homosexual, 126 or claim to be a highly
professional burglar who would not be likely to commit the clumsy murder with
which he is charged. 127 Such claims appear to put the defendant’s character in
issue. Second, an accused may not pretend to have made a clean breast of
previous misconduct when he or she has not in fact done so. 128
THE DISCRETION TO EXCLUDE
2.61 This issue more usually arises in relation to the second limb of section 1(f)(ii),
but the existence of a discretion under this limb was recognised by the Court of
Appeal in Thompson, 129 and Marsh, 130 although in neither case was the discretion
exercised in the defendant’s favour. More recently, 131 the Court of Appeal has
held that the trial judge should have exercised his discretion to exclude previous
convictions for offences similar to those charged. They were so overwhelmingly
prejudicial as to outweigh any possible marginal relevance to the issue of
credibility, and only the defendant’s previous convictions for dissimilar
dishonesty offences should have been admitted, since these would have been
sufficient to deal with the issue of credibility.
123 Winfield (1940) 27 Cr App R 139, 141, per Humphreys J.
124 Shrimpton (1851) 2 Den 319; 169 ER 521.
125 Thompson [1966] 1 WLR 405.
126 Cf Redgrave (1982) 74 Cr App R 10, where the accused sought to put in evidence of his
heterosexual disposition (he was accused of importuning in a public lavatory). That
evidence was rejected by the Court of Appeal as irrelevant.
127 Bracewell (1979) 68 Cr App R 44; n 121 above.
128 Wattam (1953) 36 Cr App R 72, 78, obiter, per Oliver J. In that case, the defendant to a
charge of murder had given evidence that he was a thief and had spent time in Borstal. The
Court of Criminal Appeal held that this was not equivalent to a defendant saying that he or
she had been convicted of a crime once when in fact he or she has been convicted on
several occasions.
129 [1966] 1 WLR 405.
130 [1994] Crim LR 52.
131 Davison-Jenkins [1997] Crim LR 816.
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