Bad Character and the Law Commission
| Published date | 01 July 2002 |
| Author | Peter Mirfield |
| Date | 01 July 2002 |
| DOI | 10.1177/136571270200600301 |
| Subject Matter | Article |
Bad character
and
the
Law
Commission
By
Peter
Mirfield
Zeitlyn fellow and Tutor
in
Law, Jesus College, Oxford
Abstract
Report
No.
273
of the Law Commission for England and Wales
proposes a new scheme for the law relating to evidence of bad character in
criminal teals, and no less in the case of witnesses other than the accused
than in the case of the accused himself. This article broadly welcomes the
governing general principles of the proposed scheme, whilst challenging
the soundness of some of the terminology recommended by the Commission,
as well as its conclusions on some important, albeit more specific issues.
eport
No.
273
of the Law Commission for England and Wales, published
in October
2001.’
bears on its face the change in emphasis as compared
with its earlier Consultation Paper
No.
141.
published over five years
before.z its title being
Evidence of Bad Character in Criminal Proceedings,
as opposed
to
Evidence in Criminal Proceedings: Previous Misconduct of
a
Defendant.
Following a
significant body of modern opinion. the Commission now asks itself what
protections should be provided, in general, for witnesses in criminal cases, from
having their (alleged) bad character exposed in court, then going on to ask what
additional protections should be enjoyed by the accused, whether as witness
or
otherwise. It is not that the Commission has changed its mind about whether
or
not to place the accused in the broader context. but, rather, it has decided that
its terms of reference were wider than it had originally thought? There is much
to be said for offering this additional dimension.
An
equally important change in the Commission’s approach is that it wishes to
discontinue the division in consideration of issues about the accused’s bad
character into
two
separate, albeit linked compartments, the one relating to
evidence called as part of the prosecution case. the other to cross-examination of
1
Cm. 5257.
In
this article, it will be referred to as the ‘Report’.
For
a further discussion of the
Report, see
M.
Redmayne. ‘The
Law
Commission’s Character Convictions’ (2002) 6
E
&
P
71.
2
1
May 1996. It will be referred to as the ‘Paper’.
3
Paper, para. 12.100:
6.
Report, para. 9.9.
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141
BAD CHARACTER AND THE LAW COMMISSION
the accused. Of course, it accepts that additional, and often different issues emerge
when the defence case is presented. However, much of the difficulty in the law
about the relationship between
s.
l(f)
and
s.
l(f)(i) of the Criminal Evidence Act
1898
flows from the difference in treatment of evidence relevant to guilt where
sought to be adduced, for the first time, in cross-examination, rather than as
part of the prosecution case. The leading example of the undesirable effects of
this feature of the law is
C~kar.~
There, what Cokar had allegedly discovered at an
earlier trial that had resulted in his acquittal emerged as being relevant to an
issue at his present trial only once he testified. Because
s.
l(f)(i), unlike
s.
1(f),
omits reference to ‘charges’. it was held that he could not be asked about the
earlier trial, even though, had its relevance emerged during the prosecution case,
evidence of the matters in question could have been addu~ed.~ Whilst a joining
together of the compartments would indeed be welcome, it does not at all follow
that the new compartment designed by the Commission
is
sound; that issue will
be addressed later.
It is not proposed to provide the reader with a fully comprehensive analysis of
the Commission’s recommendations. Rather, after a brief outline of the structure
of its approach, attention will be concentrated on what the writer regards as the
key features of the Report, some of which will be welcomed, some not.
Outline
of
the
proposals
The Law Commission’s concern is with what it terms ‘bad character evidence’.
This it describes as evidence showing
or
tending to show the commission by a
person of an offence,
or
that he has behaved,
or
is disposed to behave, in
a
way
that might be viewed with disapproval by a reasonable person.6 With three
exceptions, any such evidence would be admissible only with leave of the
These exceptions are for cases where the evidence ‘has to do with the offence
charged,
or
is evidence of misconduct in connection with the investigation
or
prosecution of that offence’ (a kind of
res gestae
exception), where the parties
consent, and where it is evidence of the accused’s bad character sought to be
adduced by him.* Otherwise, for leave
to
be granted, the evidence must have
4 119601 2 QB 207. Other examples
of
the difficulty emerging, though somewhat different from
Cokar
as regards evidential relevance, areJoiirs v
DPP
119621
AC
635 and
Ariilrrson
I
19881
QB
678. In
both. the appeal court managed to find a way
of
upholding the admissibility of the evidence in
question.
5
The evidence
in
Cokur
was relevant without any assumption being made that the accused had
been wrongly acquitted. Therefore, it satisfied
Sambasivam
v
Public
Prosrcutor.
Frdzrulion
ofMalaya
11950l AC 458. which has now been overturned by
Z
[2000]
2
AC 483.
6
See Report. Part
XVIII.
para. 2.
7 Ibid. para. 4(1).
8 Ibid. para.
3.
142
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