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

Simplicity
6.5 Option 1 appealed to some because of its apparent simplicity. In the consultation
paper we said:
A further argument is that, given the tortuous nature of section 1 of
the 1898 Act and the uncertainties of the similar fact rules, the course
of a trial would be more predictable if a criminal record were put in
automatically. 7
6.6 We certainly agree with respondents who criticise the current law for its
complexity; indeed, we made this criticism ourselves more than once. However,
in our view, the apparent simplicity of option 1 would, in practice, turn out to be
illusory, because, assuming that only the bare record of offences was initially
disclosed, it would still have to be determined whether the fact-finders should
hear details of the previous misconduct. It is generally agreed, for example, that
such details should sometimes be admitted as part of the prosecution’s case.
Automatic disclosure of the bare record alone would do nothing to solve the
problem of when the details should also be admitted. The only way to ensure
simplicity would be by automatically disclosing not just the bare record but the
details too; and, given that some or all of the previous convictions may have no
relevance whatever to the issues in the case, this would be a waste of time which
would puzzle the jury if it did not irretrievably prejudice them against the
defendant.
6.7 Even if it were true that option 1 would simplify the law, we would not accept
that simplicity should be achieved at the expense of justice; and, for reasons
discussed below, 8 we do not think option 1 would be just.
Removal of injustices and anomalies in the current law
6.8 An attraction of option 1 for some was that it would get rid of some of the
perceived injustices in the present law – for example, the sometimes capricious
effects of section 1(f) of the 1898 Act. We agree that option 1 would rectify many
of these defects in the existing law. It is by no means the only option that would
do so. This is, therefore, not a reason per se for preferring it to alternatives which
would address many of the same defects.
Avoiding the prejudicial effect of revealing the defendant’s record in
cross-examination
6.9 More than one respondent referred to the prejudicial effect in a jury trial of the
way in which a defendant’s record is introduced. If admitted in crossexamination
under the 1898 Act, it has more impact than if it were routinely read
out at the beginning of the trial, because it is perceived as relevant information
which the defendant has tried to keep from the fact-finders. Defence advocates
often try to take the sting out of the record by introducing it in the defendant’s
7 Paras 9.10 – 9.11.
8 Paras 6.30 – 6.52 below.
82