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

normally fall within the test in DPP v P into one. 20 On the other hand, in Butler, 21
(in which the case of Underwood was not cited) it was held that counsel should
assist the judge by agreeing an account of the background events so as not to
distract the jury from consideration of the central events, and failing such
agreement there should be a full analysis of the situation in the absence of the
jury.
Section 27(3) of the Theft Act 1968
The justification for section 27(3)
4.13 On a charge of handling stolen goods, section 27(3) of the Theft Act 1968
permits the prosecution to adduce in chief evidence of criminal disposition, in
the form of evidence of prior possession of stolen goods (section 27(3)(a)) or
previous convictions (section 27(3)(b)) in order to prove that the defendant
knew or believed the goods to be stolen. 22 Guilty knowledge in handling cases is
notoriously difficult to prove, and this is undoubtedly relied on as a justification
for the subsection. 23 People do from time to time acquire or deal with stolen
goods without knowing or believing them to be stolen, and this possibility can
make it difficult for the fact-finders to know whether a defence of lack of
knowledge or belief might be true in the case before them. Their doubts in such
cases can be resolved if they learn that the accused had dealt with other stolen
property in the past, or has previous convictions for handling or theft.
4.14 There can be no doubt that the risk of wrongful convictions is increased by
virtue of this provision. 24 Clearly, however, this is a risk which the legislature has
decided must be taken if habitual or professional receivers are to be prosecuted
effectively. The extent of the risk taken by the legislature is shown by the fact that
subsection 27(3) permits the prosecution to adduce evidence, under paragraph
(a), of a crime with which the defendant has never been charged, let alone
convicted.
4.15 We are not convinced that the difficulty of proving knowledge or belief justifies
the existence of this statutory exception to the general rule prohibiting bad
character evidence being adduced in chief. As we said in the consultation paper, 25
20 In Underwood [1999] Crim LR 227 evidence of violence on a different occasion, evidence
that the defendant prevailed upon the victim, his girlfriend, to have an abortion, and
evidence about his knowledge of the effect of violence upon her given that she had had a
stroke was all said to be part of the “essential background” to the relationship but also said
to be admitted applying DPP v P.
21 [1999] Crim LR 835.
22 See paras 2.27 – 2.30 above.
23 See Cross and Tapper, p 378.
24 A point made by the authors of Andrews and Hirst on Criminal Evidence (3rd ed 1997)
para 15–056.
25 At para 14.13.
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