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

defendant, the hope that the witness will profit from a conviction, or the existence
of pressure to give particular testimony. 13 As a magistrate of 17 years’ experience
put it, “Any witness is likely to divert from the truth if it is in his/her interest to
do so.” Previous misconduct may be relevant to a witness’s general credibility;
but, since little significance can in any event be attached to that credibility or the
lack of it, the witness’s bad character is generally of little value in determining the
issues in the case.
6.17 If we are right in concluding that it is not difficult to envisage circumstances in
which a person’s previous convictions have no conceivable relevance to his or her
guilt, either on the basis of propensity or credibility, then option 1 necessarily
involves admitting non relevant evidence, presumably on the basis that, if it has
no relevance, then no harm is done anyway. As the research to which we refer
below indicates, that is by no means a sound conclusion. The prejudice attached
to the fact of conviction, particularly for certain types of offence, is such as to
give the lie to the assertion that fact-finders, even experienced ones, can be relied
on to disregard irrelevant, though prejudicial, evidence. Thereby the risk is run
that the fact-finders will convict where they are not persuaded of the defendant’s
guilt on the relevant evidence to the requisite standard, because they are
influenced by irrelevant evidence which they should have disregarded. The
defendant may thus be convicted, not on the basis of what he or she has done,
but on the basis of one aspect of his or her character.
The fact-finders know anyway
6.18 A criticism often made of the current rules is that they do not acknowledge the
reality, namely that the fact-finders will usually realise that the defendant is of
bad character in any event. In the consultation paper we acknowledged that
Any lay magistrate or jury with a week’s experience knows that if the
court is not told that the defendant is of good character then he or
she must have a criminal record; so, the argument runs, it might as
well be put in. 14
6.19 Several respondents supported this argument. Michael McMullan, formerly the
resident judge at Wood Green Crown Court, argued not only that a substantial
percentage of jurors will assume the defendant to be of bad character if they are
not told otherwise, but that that percentage is likely to increase as knowledge of
the legal rules becomes more widespread; and that it would be better to tell
jurors the truth than to proceed on the increasingly unrealistic assumption that
they will not work it out for themselves.
The present system may actually generate speculation about such
convictions or, worst of all, suggest that there is an element of
charade about the trial generally and that nods and winks are
13 On the distinction between general and specific credibility see A Zuckerman, The
Principles of Criminal Evidence (1989) p 248.
14 Para 9.7.
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