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

the earlier offence reveals about the nature of the goods stolen or handled. 34 In
that case the charge was of handling the bodyshell of a Ford Escort RS Turbo
motor car, and the evidence of the previous handling conviction revealed that it
had also related to a Ford RS Turbo. The prosecution was not restricted, as the
defence had contended it should be, to the bare fact, time and place of the earlier
conviction.
4.19 The courts have assumed a discretion to exclude such evidence if there is a
danger of undue prejudice. 35 This discretion is exercised where there is a danger
of the jury regarding the evidence as relevant on the issue of possession. 36 The
judge should admit the evidence only if the demands of justice warrant its
admission. 37 This means that the judge has a duty to exclude it if, in the
circumstances of the case, it can be of only minimal assistance to the jury. 38
4.20 The section has been widely criticised: 39 its width means that “in their perfectly
proper concern for the liberty of the individual, the courts may have made
something of a nonsense of the provision”. 40 The courts have given an extremely
restrictive interpretation to these provisions whilst, at the same time, developing a
wide discretion to exclude their application. In addition to this, the subsection
contains a number of other particular defects.
4.21 In the first place, the subsection relates not only to previous misconduct, but also
to misconduct after the time of the alleged offence. 41 Second, paragraph (a) allows
33
[1994] 1 WLR 1659.
34 The reasoning was that paragraph (b) had to be read together with s 73(2) of PACE,
which defines the phrase “certificate of conviction”, in the case of a conviction on
indictment, as “a certificate … giving the substance and effect (omitting the formal parts)
of the indictment and of the conviction”. A certificate of a summary conviction consists of
“a copy of the conviction” signed by the clerk of the convicting court. The certificate must
record the nature of the goods stolen or handled, and Hacker shows that “the whole
certificate … is admissible”.
35 See Herron [1966] 2 All ER 26, 30B–C. For a recent example, see Irwin [1997] 1 CLY
1110.
36 Perry [1984] Crim LR 680.
37 Rasini, The Times March 20 1986.
38 Knott [1973] Crim LR 36. But in Canton 2 June1992, CA No 90/5242/X3 the Court of
Appeal emphasised the importance of the judge’s ascertaining the circumstances of the
conviction rendered admissible by paragraph (b) so that he or she may assess its relevance
and probative value; E Griew, The Theft Acts (7th ed 1995) p 255 n 18a.
39 See, eg, R Munday, “Handling the Evidential Exception” [1988] Crim LR 345. The
CLRC has recommended that the subsection be repealed: Evidence Report, para 101(vi).
Interestingly, A T H Smith, Property Offences (1994) para 30-65, n 65, points out that
similar provisions were not incorporated into the Victorian Crimes Act 1973 when the
Theft Act 1968 was adopted, following a recommendation by the Chief Justice’s Law
Reform Committee that they were unfair to defendants.
40 A T H Smith, Property Offences (1994) para 30-64.
41 The subsection states that the handling to be relied on must have occurred “not earlier”
than twelve months before the offence charged; see Davies [1972] Crim LR 431.
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