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

(v) A temptation to fabricate
4.66 The current law could be construed as presenting a temptation to investigating
officers to break the rules in the knowledge that if the accused alleges in court
that this has happened, his or her previous convictions are likely to be admitted,
thus making a conviction more likely. 104 However likely or unlikely in practice, the
fact that such a temptation can present itself must be viewed as a defect of the
present law.
(vi) Inconsistent prosecution practice
4.67 Another matter to consider, although not strictly a defect of the statute, is
inconsistent prosecution practice in relation to the introduction of evidence of
bad character of prosecution witnesses. Our attention has been drawn 105 to a
“growing practice” among prosecutors of voluntarily disclosing the bad character
of any witnesses it proposes to rely on. The purpose of such disclosure is
“apparently to reveal the prosecution in a better light than where the evidence is
subsequently extracted by the defence by way of cross-examination”. The result
is that some defendants do not have to risk losing the shield because they will not
have to raise the issue of the character of a prosecution witness. The problem is
that the present practice is entirely voluntary, and can therefore lead to
unfairness in that defendants are being treated differently. Further, it diminishes
the protection to witnesses by assuming that certain issues will be raised when
they might not have been.
(vii) Lack of clarity
4.68 It is unclear in general what sort of allegation will amount to an imputation, 106
and also how the allegation has to be made to count as an imputation. Where
cross-examination is disallowed, it is not always clear whether this is a result of
the exercise of the judge’s discretion to exclude cross-examination where an
imputation has been made, or whether it is because no imputation has in fact
been made. This is particularly the case as regards “emphatic denials”. In
Britzman, 107 it was held that a denial which entails that a prosecution witness is
lying is an imputation, not merely an emphatic denial, 108 while in Desmond 109 it
was held that where defence counsel made a clear suggestion of lies and drew on
104 See para 12.13 of the consultation paper and see generally J D Heydon, “Can the Accused
Attack the Prosecution?” (1974) 7 Syd LR 166, 167. This point is also made by Latham
CJ in Curwood (1944) 69 CLR 561, 577.
105 See (1997) 161 JP 378.
106 See, eg, Courtney [1995] Crim LR 63, in which the Court of Appeal upheld the trial
judge’s decision that an allegation that a Customs officer had asked the accused’s mother
to have a quiet word with him and persuade him to admit the offence, constituted an
imputation.
107 [1983] 1 WLR 350.
108 Cf the House of Lords in Selvey v DPP which seemed to assume that an emphatic denial
would not be an imputation.
109 [1999] Crim L R 313.
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