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

explanation is that judges must not be seen to pick and choose between coaccused,
since the “fairness” shown to one may produce an appearance of
unfairness to another. 124
4.74 The traditional approach has given precedence to the interests of the defendant
seeking to admit the bad character evidence over those of the defendant who
would be prejudiced by it, and this is the effect of the ruling in Murdoch v
Taylor. 125 An experienced practitioner argued that in the capacity of a prosecution
witness, it is only fair that the attacking defendant loses the shield. He said: “In
the practical world of the hard fights in contested criminal cases with, in so very
many instances, much hard lying taking place, it is improvident to put a premium
upon the invention of cunning false stories giving rise to immunity from credit
being properly tested”. This argument is also made by the CLRC, 126 but it
entirely overlooks the prejudicial impact the revelation of a criminal record can
have on a defendant’s case. 127
4.75 We see much force in the argument that one defendant should be entitled to
adduce properly relevant evidence without regard to the adverse effect that it has
on the case of another defendant. On the other hand we also see the force in the
suggestion that all persons who give evidence should be free to do so without
having irrelevant or marginal or barely relevant evidence of past misdeeds
dragged into the public arena. Thus whilst it should not be a matter of balancing
competing interests, it may be more satisfactorily approached by imposing
generally a raised standard of relevance on bad character evidence which does
not fall within the central facts of the case, and to require this standard to be
satisfied before one party may adduce evidence of, or cross-examine about, the
misconduct of another person on other occasions. 128
(ii) Defendants may be inhibited in their defence or may be deterred
from testifying
4.76 Although D2 may be inhibited in her defence if she is not permitted to adduce
evidence of D1’s bad character, D1 may be inhibited in his defence if he
automatically loses the shield through undermining the other’s defence. 129 Where
D1’s defence cannot be put forward without giving evidence “against” D2, it is at
[The accused] seeks to defend himself; to say to the jury that the man who is
giving evidence against him is unworthy of belief; and to support that assertion
by proof of bad character. The right to do this cannot, in my opinion, be fettered
in any way.
124 R Munday, “The Wilder Permutations of s 1(f) of the Criminal Evidence Act 1898” (1987)
7 LS 137, 144.
125 [1965] AC 574.
126 CLRC, Evidence Report, para 132.
127 See I H Dennis, “Evidence Against a Co-Accused” (1983) 36 CLP 177, 184.
128 See Part XIV below.
129 This point was referred to in the consultation paper: see paras 13.9 and 13.45.
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