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The Law Commission

(LAW COM No 273)

EVIDENCE OF BAD CHARACTER

IN CRIMINAL PROCEEDINGS

Report on a reference under section 3(1)(e) of the Law

Commissions Act 1965

Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty

October 2001

Cm 5257

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Carnwath CVO, Chairman

Professor Hugh Beale

Mr Stuart Bridge

Professor Martin Partington

Judge Alan Wilkie QC

The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

The terms of this report were agreed on 8 August 2001.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

Abbreviations	Abbreviations
SUMMARY	Summary
PART I: INTRODUCTION AND SUMMARY	Part I
The background to this report	1.1
The area of law covered in this report	1.3
Our approach	1.4
Our main recommendations	1.12
The structure of this report	1.24
PART II: THE PRESENT LAW	Part II
Exceptions to the rule of exclusion:
(I): Adducing evidence of a defendant's bad character in chief	2.3
"Similar fact" evidence	2.4
Res gestae and background evidence	2.9
Can evidence of propensity be admitted as similar fact evidence?	2.10
How can similar fact evidence be used to rebut a defence?	2.13
Does the prosecution have to wait and see what defence is to be relied upon before adducing similar fact evidence?	2.16
Is there a special rule for sexual offences against persons of the same sex, or children?	2.18
Is there a discretion to exclude similar fact evidence?	2.19
Supervening discretions: section 78, and the common law	2.20
Identity cases
Striking similarity	2.23
How the evidence is to be approached	2.24
Special cases where bad character evidence is admissible in chief Section 27(3) of the Theft Act 1968	2.27
The application of section 27(3)	2.29
Section 1(2) of the Official Secrets Act 1911	2.31
Special cases where bad character evidence is inadmissible in chief Spent convictions	2.33
(II): Evidence adduced by the defendant	2.39
Evidence adduced against a co-accused	2.40
Is there a discretion to exclude defence evidence?	2.41
(III): Adducing bad character evidence in cross-examination	2.43
The meaning of section 1(f)	2.45
The relationship between section 1(e) and section 1(f)	2.48
Section 1(f)(i)	2.50
The first limb of section 1(f)(ii): asserting good character	2.53
What is an assertion of good character?	2.55
Character is indivisible	2.59
The discretion to exclude	2.61
Common law rules	2.62
The second limb of section 1(f)(ii): casting imputations against prosecution witnesses	2.63
The pre-conditions	2.64
Sexual cases	2.68
The discretion to exclude	2.71
Similarity of offences	2.73
Where the convictions do not reveal dishonesty	2.74
Defence necessarily involving imputations	2.75
Section 1(f)(iii): attacking a co-defendant	2.77
"has given evidence"	2.78
"against any other person charged in the same proceedings"	2.80
When section 1(f)(iii) is invoked	2.85
Severance of defendants	2.88
Section 1(f)(iii) and separate trials	2.89
Severance of counts/informations	2.91
PART III: THE EUROPEAN CONVENTION ON HUMAN RIGHTS	Part III
The structure of Article 6	3.2
Article 6 and rules of evidence	3.4
The fairness of the admission of previous convictions per se	3.7
Loss of shield by casting imputations	3.9
Victims of crime and the Convention	3.14
The effect of incorporation	3.21
The distinctive nature of Article 6	3.25
HRA, section 3	3.29
Reading down	3.32
Reading in	3.33
Conclusion	3.36
PART IV: DEFECTS OF THE PRESENT LAW	Part IV
The principal defects
The problems in detail (I): Evidence in chief
Lack of clarity in the "similar fact evidence" rules	4.2
Evidence of propensity admitted as similar fact evidence	4.7
Background evidence	4.11
Section 27(3) of the Theft Act 1968
The justification for section 27(3)	4.13
The defects of section 27(3)	4.17
The problems in detail (II): Cross-examination of the defendant	4.24
Section 1(f)(i)	4.25
The first limb of section 1(f)(ii): assertions of good character	4.26
(i) The doctrine that character is indivisible	4.27
(ii) The use that can be made of bad character evidence	4.28
(iii) It is unclear what kinds of assertions will trigger the loss of the shield	4.30
(iv) Previous convictions of other possible culprits	4.32
The second limb of section 1(f)(ii): imputations against prosecution witnesses and deceased victims
Summary	4.33
(i) No exception for necessary imputations	4.34
(ii) Over-reliance on judicial discretion	4.44
(iii) The foundations for the second limb of section 1(f)(ii) are unsound	4.47
(a) Credibility	4.48
(b) Fairness	4.51
(c) Deterring attacks on prosecution witnesses	4.53
(iv) Non-testifying defendants	4.60
(v) A temptation to fabricate	4.66
(vi) Inconsistent prosecution practice	4.67
(vii) Lack of clarity	4.68
Section 1(f)(iii): cross-examination of a co-accused	4.70
(i) Lack of judicial discretion	4.71
(ii) Defendants may be inhibited in their defence or may be deterred from testifying	4.76
(iii) The court may be misled	4.78
The hearsay exception for reputation	4.79
The need for change	4.80
PART V: GENERAL PRINCIPLES	Part V
PART VI: THE GENERAL APPROACH: THE OPTIONS	Part VI
Option 1: adduce the defendant's criminal record at the start of every trial	6.3
Arguments in favour of option 1	6.4
Simplicity	6.5
Removal of injustices and anomalies in the current law	6.8
Avoiding the prejudicial effect of revealing the defendant's record in cross-examination	6.9
The relevance of the record	6.10
Relevance to the defendant's propensity to act in the manner alleged	6.11
Relevance to the defendant's propensity to lie	6.14
The fact-finders know anyway	6.18
Is this true?	6.20
Is option 1 the only solution?	6.23
Is option 1 the best solution?	6.27
Arguments against option 1	6.30
Irrelevance	6.31
The risk of prejudice	6.33
The research	6.37
Minimising the prejudicial effect of automatic disclosure	6.43
The perceived risk of prejudice	6.46
Longer trials	6.47
Distraction	6.49
The fairness of the criminal justice system	6.50
Conclusion	6.53
Option 1A: adduce the defendant's record of similar offences at the start of every trial	6.54
Option 2: adduce the defendant's record of sex offences in sex cases	6.57
Option 3: allow evidence of the defendant's previous misconduct to be adduced only where it is an ingredient of the offence charged	6.62
Option 4: a single inclusionary rule with an exception for evidence whose likely prejudicial effect outweighs its probative value	6.64
Option 5: an exclusionary rule with a single exception for evidence whose probative value outweighs its likely prejudicial effect	6.66
Conclusion: the general approach we recommend	6.67
PART VII: OVERVIEW OF OUR RECOMMENDATIONS	Part VII
Inside or outside the central set of facts	7.4
"Substantial" probative value	7.8
Taking factors into account	7.18
The purpose of the evidence	7.20
Who is adducing the evidence?	7.21
PART VIII: BAD CHARACTER AND THE LEAVE REQUIREMENT	Part VIII
Defining evidence of bad character
The options considered in the consultation paper	8.4
Objections to our provisional proposal	8.9
Evidence of criminal offences	8.10
Evidence of bad character not amounting to an offence	8.12
Disposition	8.18
Our recommendation	8.19
Bad character evidence not subject to the exclusionary rule	8.20
The central set of facts	8.20
Evidence which all parties agree should be admitted	8.29
Evidence of a defendant's bad character, adduced by that defendant	8.30
Our recommendations	8.31
PART IX: EXCEPTIONS APPLICABLE TO NON-DEFENDANTS	Part IX
The current position	9.3
Judicial control	9.5
The option put forward in the consultation paper	9.8
The views of respondents	9.10
The dangers of bad character evidence
Its irrelevance	9.14
Its prejudicial effect	9.16
The effect of a statutory test of enhanced relevance	9.24
Would a test of enhanced relevance prevent the defendant from having a fair trial?	9.28
Our conclusion	9.35
Formulating the test of enhanced relevance	9.36
The importance of the matter in issue	9.38
Ensuring a fair trial	9.40
Our recommendations
Exceptions: non-defendants: substantial probative value	9.41
Exceptions: non-defendants: substantial explanatory value	9.42
The consequences for the defendant	9.44
The relationship with section 41 Youth Justice and Criminal Evidence Act 1999	9.45
PART X: THE EXPLANATORY EXCEPTION	Part X
The defects of the current law
Res gestae and background evidence	10.1
Our analysis	10.3
Evidence which is part of the narrative of the offence	10.4
Explanatory evidence	10.7
PART XI: THE INCRIMINATORY EXCEPTION	Part XI
Introduction	11.1
The options for reform and the response on consultation	11.3
Option 2: adducing bad character evidence to prove mens rea	11.4
Option 3: adducing bad character evidence to show disposition	11.8
Option 4: the Australian common law test, namely whether there is any reasonable explanation for the similar fact evidence other than that the defendant is guilty	11.11
Option 5: the scheme of the Australian Evidence Act 1995	11.14
Option 6	11.20
Our conclusions
A test of enhanced relevance	11.22
The relationship between probative value and prejudicial effect	11.23
The importance of the matter in issue	11.31
The defendant's propensity to be untruthful	11.32
The credibility of a defence	11.34
The additional value of the evidence	11.38
Statutory guidance	11.40
Provisional proposals on statutory guidelines	11.41
The recommendation: evidence of substantial probative value	11.46
The Theft Act 1968, section 27(3)	11.48
The defects of the current law and the proposals in the consultation paper	11.49
The response on consultation	11.53
The Official Secrets Act 1911, section 1(2)	11.56
The effect of an earlier acquittal	11.62
PART XII: THE CREDIBILITY EXCEPTION	Part XII
Introduction	12.1
The recommendation
The defendant will have obtained leave to attack the other's character	12.3
The comparison	12.7
The test of enhanced relevance	12.8
The interests of justice test	12.9
Attacks which do not relate to the person's propensity to tell the truth	12.22
PART XIII: THE CORRECTIVE EXCEPTION	Part XIII
When a defendant is responsible for the misleading impression	13.3
The non-testifying defendant	13.9
Implied and non-verbal assertions	13.13
The corrective evidence must have substantial value
Divisibility of character	13.22
The interests of justice test	13.29
Factors to take into account	13.30
Practice in the magistrates' courts	13.37
Use of the evidence	13.38
The recommendations	13.48
Where the defendant sets up a false or misleading comparison	13.51
PART XIV: THE CO-DEFENDANT EXCEPTION	Part XIV
Introduction	14.1
Our provisional proposals	14.4
Bad character evidence adduced by a co-defendant	14.5
Cross-examination of a co-defendant	14.6
Attacks on a co-accused by a defendant who does not testify	14.12
The views of respondents
A question of balance	14.13
Cross-examination of a co-defendant	14.17
Our proposal	14.22
Who should be able to apply?	14.26
Attacks on D2 by D1 where D1 does not testify	14.28
Relevance of bad character to guilt as well as credibility	14.31
Our recommendation	14.36
The operation of the exception	14.49
Severance	14.52
PART XV: THE QUALITY OF TENDERED EVIDENCE	Part XV
Introduction	15.1
What are contamination and collusion?	15.3
The quality of evidence and admissibility	15.8
The current law	15.9
The options in the consultation paper and the response on consultation	15.10
The policy considerations	15.15
What approach is a court to adopt to bad character evidence generally?	15.25
The recommendation	15.26
A duty to withdraw the case from the jury	15.27
Responses on consultation	15.32
The recommendation	15.37
PART XVI: SEVERANCE OF COUNTS OR INFORMATIONS	Part XVI
The response on consultation	16.3
Joinder and fairness	16.6
Option 1	16.9
Option 2	16.13
Option 3	16.16
The recommendation	16.21
Special rules for cases involving sexual offences?	16.24
PART XVII: PROCEDURAL AND ANCILLARY MATTERS	Part XVII
A notice requirement	17.1
Pre-trial rulings	17.6
A duty to give reasons
The common law	17.8
The ECHR jurisprudence	17.12
Conclusion	17.14
Warnings to the jury
A warning against speculation	17.17
A warning against placing too much weight on evidence of past misconduct	17.18
Service courts and professional tribunals	17.21
PART XVIII: THE COLLECTED RECOMMENDATIONS AND CONCLUSIONS	Part XVIII
DRAFT BILL	Bill
AND EXPLANATORY NOTES	Notes
APPENDIX A: RESEARCH: THE EFFECT ON MAGISTRATES OF KNOWING OF A DEFENDANT'S CRIMINAL RECORD	Appendix A
APPENDIX B: PERSONS AND ORGANISATIONS WHO COMMENTED ON THE CONSULTATION PAPER	Appendix B

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