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

four respondents who argued that where a defendant does not testify, his or her
credibility cannot be in issue. He said:
… the defendant’s credibility cannot be in issue unless he chooses to
become a witness in the trial! As Lord Goddard CJ made pellucidly
clear in Butterwasser itself, when defence counsel cross-examines a
prosecution witness to credit, it is the prosecution witness’s credibility
that is put in issue, not the defendant’s. 101
4.63 The other respondents who favoured the retention of the current position did so
either on the basis that the Criminal Justice and Public Order Act 1994 makes it
more difficult for a defendant to hide behind silence, and so it is less likely that
defendants would choose not to testify simply in order to be able to attack
prosecution witnesses, or on the basis that if a defendant does not give evidence,
any attack on a witness’s credit is of no weight anyway, unless the witness admits
the matter or the defendant calls evidence to prove it (in which case the witness
can be cross-examined on it). In either event, change is not warranted.
4.64 The remaining thirty-three respondents thought the law in this area ought to be
reformed. Twenty-one of these respondents thought that evidence of the
defendant’s previous misconduct should be adduced whenever imputations are
made against prosecution witnesses. It seems likely that these respondents
thought that credibility is in issue, even if the accused does not testify, although
only two said so expressly. Eleven respondents argued that the defendant’s
previous misconduct should be adduced if the nature of the imputations was
such as to put the defendant’s credibility in issue.
4.65 We do not agree that a defendant’s credibility can only be in issue if he or she
gives evidence in person. The traditional view seems to ignore the reality that a
defendant may put his or her credibility in issue even without testifying: it
depends on whether a particular version of events is being put forward as the
case for the defence. Where this occurs, the fact-finders will inevitably assess the
credibility of the prosecution witness in relation to the credibility of the
defendant in deciding whose version of events to believe. We note that in
Woodward and Dobson 102 the court held that the defendants were entitled not only
to a propensity direction but also to a direction about the significance of their
good characters on their credibility (following Vye) 103 because, although neither
testified at trial, out-of-court answers in interviews had been admitted in
evidence.
101 Paul Roberts, “All the Usual Suspects: A Critical Appraisal of Law Commission
Consultation Paper No 141” [1997] Crim LR 75, 89. See also Paul Roberts, “Evidence of
Previous Misconduct” [1997] Crim LR 369.
102 [1996] Crim LR 207.
103 [1993] 1 WLR 471.
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