The Law Commission's Character Convictions
| Author | Mike Redmayne |
| DOI | 10.1177/136571270200600201 |
| Published date | 01 March 2002 |
| Date | 01 March 2002 |
| Subject Matter | Article |
The
Law
Commission’s
character convictions
By Mike Redmayne
London
School
of
Economics
Abstract
This article assesses the proposals made by the Law Commission
for England and Wales in its recent report on bad character evidence. Rather
than looking at the technical details of the Commission’s proposed
admissibility scheme, it concentrates on the foundational principles behind
it. The Commission does not propose wholescale reform
of
this area
of
the
law. It recommends retaining the general rule that evidence of a defendant’s
bad character is
prima
facie
inadmissible. It also proposes an exception to
this general rule, allowing bad character evidence to be used to attack a
defendant’s credibility if the defendant runs his defence in a particular way.
This, too, mirrors the current law, though the Commission’s exception would
be more tightly drawn than the present rule. Another exception to the
general rule of exclusion relates to similar fact evidence. Here, the
Commission recommends replacing the current rule with a more carefully
structured one. It is suggested that the Commission offers no cogent
justification
for
any of these proposals.
here is much to praise in the Law Commission’s report and Draft Bill on
evidence of bad character.’ If implemented, the Commission’s proposals
will replace the grotesque edifice of the Criminal Evidence Act
1898
with
a simpler and fairer structure. Defendants will no longer be automatically
penalised
for
running a defence which ‘casts imputations’ on the character of a
prosecution witness. Those prosecution witnesses will themselves be better
protected than under the present law, for, in a welcome rupture with the thinking
which governed its Consultation Paper, the Commission proposes a
prima
facie
presumption against introducing bad character evidence, and this presumption
applies to witnesses as well as to defendants. Defendants will also gain protection
from the poorly defined category of ‘background evidence’,2 which at present
appears to escape the exclusionary regime of the similar fact rule. In this article,
1
Law
Commission,
Evidence
of
Bad
Character
in Criminal Proceedings,
Law
Com.
No.
273,
Cm
5257
2
For
an example, see
R
v
M
and
Others
[2000]
1
All
ER
148.
r
(2001).
The report
is
available at www.lawcom.gov.uk.
THE INTERNATIONAL JOURNAL OF EVIDENCE
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THE LAW COMMISSION’S CHARACTER CONVICTIONS
however,
I
shall not say much about the detailed structure of the Commission’s
proposals, and even less that is complimentary. Instead,
I
shall question the basic
assumptions which underlie the recommendations in three principal areas: the
general exclusionary rationale; the use of previous convictions as evidence of a
defendant’s lack of veracity: and the similar fact rule.
Are previous convictions prejudicial?
Of
course, previous convictions are prejudicial in one sense. Prosecutors do not
seek to adduce evidence which paints defendants in rosy colours. But when people
say that a defendant’s previous convictions should not be admitted because they
are prejudicial, they do not mean prejudicial in the basic sense of ‘incriminating’.
They mean-and this is how the word will be used here-‘unfairly prejudicial’;
put another way, that previous convictions are more prejudicial than probative.
The assumption that this is
so
governs much of the Law Commission’s report
(‘the Report’).
1
shall refer to this as the ‘prejudice presumption’. Is there a sound
argument for it?
There is a certain amount of looseness in the Commission’s case for the prejudice
presumption. The argument first emerges in a chapter where the general
principles governing the Report are set out. One such principle is that:
Some types of evidence, such as of identification and confessions,
are intrinsically
so
potentially powerful in their operation on the
minds of fact-finders that they cannot safely be left to weigh such
evidence without special rules and guidance.
...
Evidence of the
defendant’s bad character is one such category of evidence. Where it
is introduced it is capable of being prejudicial and hindering rather
than aiding the fact-finders in the proper performance of their
function in that:
(1)
they may give it weight out
of
all proportion to
any reasonable view of its significance; and/or
(2)
the nature of the
misconduct may
so
poison their minds against the defendant as to
cause them to convict in circumstances where the other evidence
would not have persuaded them
to
do
so?
(It is convenient to follow convention and to refer to
(1)
as reasoning prejudice
and to
(2)
as moral prejudice.) This passage makes it sound as though evidence of
a defendant’s bad character is strong stuff indeed:
‘so
...
powerful’; ‘out of all
proportion’; ‘poison’. The argument for the prejudice presumption is then taken
up in the following chapter where we are offered some empirical evidence for it.
3
Above
n.
1
at
paras.
5.16-5.18.
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