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

4.36 The Court of Appeal in Britzman 69 laid down guidelines for the exercise of the
discretion in this situation, but the guidelines do not directly take account of the
need of an accused to mount a defence to the charge.
4.37 The lack of an exception for necessary imputations may deter the defendant
from testifying, 70 and a defendant might not put forward his or her defence,
however true, if it is likely that the shield will be lost. As the Magistrates’
Association wrote, “The imputation might be necessary for the defence. The
defence ought not to be inhibited from making the imputation just because D
has a criminal record”. If the witness’ bad character is relevant, the defendant
should not have to risk losing the shield by drawing the court’s attention to it. 71
4.38 Several respondents argued that the lack of an exception for “necessary”
defences is a defect in the current law. As one experienced magistrate wrote:
Suppose that the imputations are in fact accurate, correct, true …
However true the imputations, however good the defence, the record
going before the jury will almost inevitably be damaging to the
accused and prejudice his chances of acquittal … The defence are
inhibited. The defence may feel unable to conduct the defence as
vigorously as they would like for fear of the record going in. It may
seem too dangerous for the defence to attack corrupt prosecution
witnesses. So the jury are led to believe that those corrupt prosecution
witnesses are honest and truthful and reliable.
4.39 As we said in the consultation paper, 72 a defendant who denies a confession
attributed to him by the police faces three unattractive options:
(a) deny the confession from the witness-box, be cross-examined on his
convictions and run the gauntlet of prejudice;
69 [1983] 1 WLR 350.
70 This danger was appreciated during the Second Reading of the 1898 Bill in the House of
Commons. Mr Atherley Jones MP said,
if it happened by chance that, although I was innocent of the particular offence
which was the subject of the charge which was brought against me, I was a man
of indifferent character and I had been in previous years convicted of a similar
offence, then nothing in the world would induce me, short of compulsion, to go
into the witness box and submit to cross-examination.
Hansard (HC) 25 April 1898, vol 56, col 1035.
In the research conducted for the Royal Commission, 28% of defence counsel thought
their clients’ defences had been inhibited by the statutory provision: M Zander and
P Henderson, Crown Court Study (1993) Research Study No 19 for the Report of the
Royal Commission, para 4.6.8.
71 The Court of Appeal has suggested that the onus should perhaps fall on the prosecution to
put evidence of their witness’ character before the fact-finders and not leave it to the
defence: Hickey and Robinson 30 July 1997, CA No 96/5131/S1/2/3/5. This avoids the
situation in Taylor and Goodman [1999] 2 Cr App R 163 discussed below at para 4.42. But
see also para 4.67 for the inconsistency of prosecution practice.
72 At para 12.41 (footnotes omitted).
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