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

THE NEED FOR CHANGE
4.80 The law on “similar fact evidence” has merited criticism from the Royal
Commission on Criminal Justice, which described it as “difficult to comprehend,
embodied as it is in a series of judgments that are not always readily
reconcilable”. 134 The principal governing statute in this area of law, the 1898 Act,
has been described by a former Lord Chief Justice as “a nightmare of
construction”. 135 In 1998 Schiemann LJ said that section 1 of the 1898 Act “has
troubled the criminal courts ever since it was enacted at the end of the last
century.” 136
4.81 Many more respondents to the consultation paper welcomed reform than
wanted to keep the law unchanged. It did not, of course, follow that those who
thought change is needed necessarily supported the provisional proposals, and
more than one respondent sounded the cautionary note of Swinton Thomas LJ:
“whereas the law should be amended, we must be sure before doing so, that we
are putting something better in its place”. We believe that our recommendations
will, if adopted, bring about change for the better.
4.82 As can be seen from all the problems identified in this Part, many are matters of
substance, but some also arise from the fact that the law has to be disinterred
from so many sources. Thus part of the solution is to bring together all the rules
into one place. This Commission has long advocated the advantages of
codification of criminal law and procedure, including the law of evidence. 137 The
recent Government paper “Criminal Justice: the Way Ahead” 138 provides support
for our position and proposes a “consolidated, modernised core criminal code to
improve public confidence and make for shorter, simpler trials”. One element of
such a proposed code would be the rules of evidence. 139
4.83 Codification cannot remove all uncertainties and difficulties at a stroke. No code
can purport to second guess every situation which will be presented to a court
for decision. What it can do and what we, in our recommendations, try to
achieve, is to provide a clear, consistent and principled structure to support and
guide parties, decision-takers and advisers whilst giving the courts the freedom
to do justice in each case.
134 Report of the Royal Commission, ch 8, para 30.
135 Anderson [1988] QB 678, 686E, per Lord Lane CJ.
136 S 98/1296/X4, at p 3 of the transcript.
137 We have expressed these views more than once before: see our Twenty-Seventh Annual
Report (1993) Law Com No 210, para 2.15; our Twenty-Eighth Annual Report (1994)
Law Com No 223, para 2.27; and Evidence in Criminal Proceedings: Hearsay and Related
Topics (1997) Law Com No 245, para 1.6. Our views are supported by Professor Andrew
Ashworth, Principles of Criminal Law (3rd ed 1999) p 6.
138 (2001) Cm 5074.
139 (2001) Cm 5074, para 3.27.
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