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

Denmark case, the trial was before a jury, and “lay judges” (exact status
unknown) sat in the Austria case, so it cannot be argued that Continental
systems are to be distinguished because they have professional fact-finders.
LOSS OF SHIELD BY CASTING IMPUTATIONS
3.9 It follows from the above discussion that, with all the caveats mentioned above,
the fact of the revelation of previous convictions will not result in a breach of the
Convention.
3.10 It is undoubtedly the case that, by virtue of the second limb of section 1(f)(ii) of
the Criminal Evidence Act 1898, a defendant may fear revelation of his or her
criminal record as a consequence of the way the defence is conducted. 17 An
argument might be raised that the distortion of a defence as a result of the
defendant’s fear of losing the shield amounted to a violation of the right to a fair
trial. If it were to do so, it would have to arise under the residual guarantee
discussed in paragraph 3.2.
3.11 The particular want of fairness to which this argument might be addressed is
what the Court has described as the requirement of fairness in Article 6 in
placing the tribunal “under a duty to conduct a proper examination of the
submissions, arguments and evidence adduced by the parties, without prejudice
to its assessment of whether they are relevant to its decision”. 18 As Van Dijk and
Van Hoof emphasise, the Strasbourg authorities have deliberately avoided giving
a list of abstract criteria: “The proceedings as a whole may, for instance, create
the picture that the accused has had insufficient possibilities to conduct an
optimal defence, although none of the explicitly granted minimum guarantees
has been violated.” 19 Thus, the argument might run, the distortion of a defence
by fear of losing one’s shield could be described as something which detracts
from the possibility of conducting an optimal defence.
3.12 In our judgment, such an argument would be highly unlikely to succeed save in
highly individual circumstances. One cannot get away from the jurisprudence
supporting the fairness of reliance on previous convictions at trial. Although a
defendant in the position described is, in a sense, being “forced” to distort the
defence, he or she is only doing so to avoid a consequence that the Strasbourg
Court would not regard as in itself unfair. The distortion is a tactical decision to
take advantage of a state of affairs (the fact-finder’s ignorance of the previous
convictions) which is significantly more to the advantage of the defendant than
17 See para 4.37 below. In the research conducted for the Royal Commission it appeared this
fear was operative in a significant proportion of defended cases: M Zander and
P Henderson, Research Study No 19 (1993) for the Report of the Royal Commission, para
4.6.8.
18 Kraska v Switzerland (1994) 18 EHRR 188, para 30.
19 Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights
(3rd ed 1998) p 429.
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