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

admitted, but it will have more to do with the defendant’s propensity than with
his credibility.
4.50 A case where this occurred in a way which was unfair to the defendant was S. 89
Each of the Court of Appeal judges took the view that
it was not reliable to assume that because a man was a regular robber
he was to be disbelieved when he said that he did not commit a sexual
attack on a 14 year old girl. These two activities are so vastly different
that one is reluctant to import the one into the other. 90
The trial judge, however, must have reached a different view because he had
allowed the defendant’s record to be admitted on the ground that the defendant
had made imputations against the complainant, thus losing the shield under the
second limb of section 1(f)(ii). The conviction depended on the jury’s view as to
who was telling the truth. It was quashed. The doctrine of the indivisibility of
character 91 must have played a part here: given this doctrine, once the shield was
lost, it was open to the prosecution to adduce any evidence of bad character,
subject to the judge’s discretion to exclude it. The reason for admitting the
evidence (for the light it would shed on the defendant’s credibility) was lost sight
of.
(B) FAIRNESS
4.51 Some would argue that if the defendant attacks the characters of prosecution
witnesses then it is fair that the defendant should lose the special protection given
by the shield against cross-examination on bad character. 92 It is difficult to see
how it can be fair to promote a verdict which may be reached on the basis of
evidence which is more prejudicial than probative. The CLRC wrote in 1972 that
if relevant evidence is excluded during the case for the prosecution
because it may be too prejudicial to the accused, it does not become
any less prejudicial because the accused attacks the witnesses for the
prosecution. 93
4.52 The dangers which a defendant faces when evidence of bad character is admitted
do not, indeed, decrease simply because the defendant has cast imputations.
Although the probative value of the bad character evidence may in some cases be
such that it is nevertheless fair to admit it, this criticism of the statutory provision
89 S 98/1296/X4.
90 S 98/1296/X4 at p 6 of the transcript, per Schiemann LJ.
91 See para 4.27 above.
92 Eg, in Taylor and Goodman [1999] 2 Cr App R 163 (see para 4.42 above), Goodman made
serious imputations against prosecution witnesses. His own record showed that he was a
professional armed robber. The judge considered that “fairness required” that Goodman’s
record should go in. The charges were conspiracy to rob and possession of a firearm with
intent to commit robbery.
93 CLRC, Evidence Report, para 123(i).
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