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

assessing the probative value of similar fact evidence (such as dissimilarities in the
evidence), 6 or in assessing its likely prejudicial effect.
4.6 Until recently, the common law did not adequately cover cases where identity is
in dispute. It was arguable that Lord Mackay preserved the requirement of
“striking similarity” for cases where identity is in dispute by his dicta in DPP v P.
However, the recent decision of John W 7 has limited the scope of those dicta to
cases where the only evidence to show identity is the similarity between the
offence charged and another offence which the defendant can be proved to have
committed.
Evidence of propensity admitted as similar fact evidence
4.7 In the consultation paper 8 we agreed with Blackstone that the demarcation
between what is permitted and what is prohibited is a matter of degree: “the
evidence must be shown to be of very specific significance to the issue before the
court. Viewed in this way ‘mere’ evidence of propensity is simply another way of
describing evidence which does not sufficiently specifically prove guilt.” 9
Nevertheless, recent authority indicates that “propensity reasoning” continues to
cause difficulties.
4.8 The Court of Appeal decision of B(RA) 10 illustrates the problem. The defendant
was charged with the indecent assault of his two grandsons. His defence was to
deny that there had ever been any sort of indecency. He appealed against his
conviction on the ground that evidence of his possession of homosexual
pornographic magazines ought not to have been admitted. The appeal was
allowed. It was held that, given that the thrust of his defence was a general denial,
the possession of the pornography was not probative of anything save propensity
and that, following the decision in Wright, 11 this “is not a proper basis to render
[it] admissible”. 12 The Court of Appeal in Wright had attempted, in the spirit of
Makin, 13 to determine the admissibility of evidence according to the legal
6
In Johnson [1995] Crim LR 53 the Court of Appeal allowed an appeal because the
similarities between the present charge and the previous misconduct were taken into
account but the clear dissimilarities were ignored.
7 [1998] 2 Cr App R 289.
8 At para 2.54.
9 Blackstone, para F12.8.
10 [1997] 2 Cr App R 88.
11 (1990) 90 Cr App R 325, which was not cited to the trial judge. Note that Wright predates
DPP v P and one might therefore have expected the approach in Wright to have been
subsumed within the general principle set out in DPP v P. In Wright the prosecution case
was that W, a headmaster of a school, had for his last two years at the school engaged in
homosexual activities with the pupils. The evidence in question was a booklet and a video,
both of which tended to show a sexual interest in males, especially young males, on the
part of whoever they belonged to. W denied that they were anything to do with him.
12 [1997] 2 Cr App R 88, 93C, per Rose LJ.
13 See para 2.15 above.
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