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

evidence to be given of any act of handling even though no charge has been
brought. This is likely to lead to disputes as to whether the defendant was in
possession of stolen goods on a previous occasion. Further, paragraph (a) applies
only if the goods were stolen not more than 12 months before the alleged
handling: it is irrelevant when the alleged handler dealt with those goods. This
can lead to bizarre results. 42
4.22 Finally, prosecutors have said to us that it is almost impossible for them to be
confident that the court will permit them to adduce evidence under this
subsection. The Court of Appeal has given a clear indication that prosecutors
should be discouraged from seeking to introduce evidence just because it is
technically admissible under the subsection. 43 In exercising their discretion the
courts are mindful that “to let in evidence of circumstances from which the
existence of guilty knowledge on the prior occasion could be inferred would be
such a striking inroad into the general rule which excludes evidence of prior
unconnected offences that one would need clear words in the statute to justify it,
and section 27(3) is quite silent”. 44 This, prosecutors say, makes it difficult for
them to decide whether to institute a prosecution. Indeed, it appears to be
uncommon for prosecutors to seek to invoke the subsection, possibly because
they do not think they will be successful.
4.23 In summary, the subsection is faulty, not needed, and not justified. We consider
what respondents said about it, and whether it should be repealed, at paragraphs
11.53 – 55 below.
THE PROBLEMS IN DETAIL (II): CROSS-EXAMINATION OF THE DEFENDANT
4.24 The admissibility of evidence of the accused’s bad character in cross-examination
is governed by section 1 of the 1898 Act. 45 Below, we attempt to catalogue and
clarify the defects of the provisions.
Section 1(f)(i)
4.25 Section 1(f)(i) provides an exception to the general prohibition against the crossexamination
of the defendant on his or her bad character. This exception allows
the defendant to be asked about misconduct which has already been admitted in
chief as part of the prosecution case. 46 The subsection is defective because it
refers only to evidence of the commission of the crime or evidence of a conviction,
not to charges or to misconduct falling short of crime. If it is accepted that there
42 See J Parry, Offences against Property (1989) para 4.67.
43 Rasini, The Times 20 March 1986.
44 Wood [1987] 1 WLR 779, 784E–F, per Mustill LJ.
45 We describe the present law briefly in Part II above where sections 1(e) and 1(f) are set
out.
46 Eg, “similar fact evidence”, or evidence of a previous conviction for a road traffic offence
in later proceedings for driving while disqualified.
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