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

sought to adduce evidence of bad character it may only be admitted to the extent
that it is relevant to the matters in issue in the proceedings.
5.13 A defendant may only be convicted on what he or she is proved to have done,
and not merely on his or her character or past conduct on an occasion other than
that the subject of the charge.
5.14 Evidence of a defendant’s misconduct other than that of the offence charged may
be of value on a number of bases:
(1) It is such an integral element of the offence charged that the trial would
be impossible without the evidence of that previous misconduct being led.
(2) It is so much a part of the factual background that the fact-finders would
be misled by incomplete evidence, or the case would be incomprehensible
to them were it not to be adduced in evidence.
In these two instances the evidence may be of value even though it does
not go to the issue whether the defendant committed the offence
currently alleged.
(3) It demonstrates the defendant’s propensity to commit the particular
crime charged because he or she has in the past committed the same or a
similar type of offence or offences.
(4) It may assist the fact-finders to judge which of contending accounts they
accept by assessing the respective credibility of those putting forward or
supporting such accounts.
(5) It is required to prevent the fact-finders being at risk of being misled by
something said or done by or on behalf of the defendant in the course of
the trial.
5.15 Evidence of bad character may be admissible as between co-defendants where it
is relevant on a matter in issue between them or where it concerns the credibility
of one defendant, the nature or conduct of whose defence is such as to
undermine the defence of the other.
5.16 Some types of evidence, such as of identification and confessions, are intrinsically
so potentially powerful in their operation on the minds of fact-finders that they
cannot safely be left to weigh such evidence without special rules and guidance.
5.17 Rules of law require that evidence of this type need not be admitted despite its
potential probative value, which the fact-finder might otherwise be expected to
weigh.
5.18 Evidence of the defendant’s bad character is one such category of evidence.
Where it is introduced it is capable of being prejudicial and hindering rather than
aiding the fact-finders in the proper performance of their function in that:
(1) they may give it weight out of all proportion to any reasonable view of its
significance; and/or
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