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

examination in chief, in a “cards on the table” gesture. Some respondents
thought this factor pointed towards option 1, because the dramatic effect would
not persist. We agree that the manner of introduction of the record is a factor to
consider. We do not agree that this is a good argument for automatic disclosure
in cases where, under the present law, the record would not be admissible at all.
The relevance of the record
6.10 A number of respondents cited, as a reason for preferring option 1, the relevance
of a criminal record to the question of the defendant’s guilt. This argument is, in
our view, crucial to the case for option 1. In the consultation paper we tried to
assess whether, and if so how, previous offences really are relevant for this
purpose.
RELEVANCE TO THE DEFENDANT’S PROPENSITY TO ACT IN THE MANNER
ALLEGED
6.11 Clearly, in some cases a defendant’s previous convictions may show a propensity
to act in the way in which he or she is now alleged to have acted, and may thus
help the fact-finders determine whether he or she did act in that way. However,
we argued in the consultation paper that
the bare bones of a criminal record do not give adequate information
from which fact-finders may reasonably make an assessment of
whether the accused is likely to have repeated past behaviour. If the
record is admitted automatically, evidence of little or no probative
value is admitted. 9
This argument was based on our understanding of the psychological research,
which we summarised as indicating that
Past behaviour can be probative on the question whether the
defendant is likely to have acted in the way alleged, but the probative
value of a single previous instance can be easily over-estimated. The
research supports the present approach, that past misbehaviour can be
admitted where there are close and unusual similarities between the
past and the present situations. 10
6.12 Nearly all of the respondents who expressly commented on this conclusion
agreed with it. 11 None of those who commented on it – not even those who
thought we had underestimated the relevance of previous misconduct –
supported option 1. We therefore cannot tell whether the supporters of that
option would dispute the factual conclusions suggested by the research, and if so
on what basis, or whether they think that evidence of previous offences should be
9 Para 9.16.
10 Para 6.93.
11 Professors McEwan and Murphy thought that the consultation paper failed to recognise
the particular probative value of evidence of certain kinds of disposition. See para 6.58
below.
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