The Law Commission

 


PART XII THE CREDIBILITY EXCEPTION INTRODUCTION

12.1      In Part XI we explained when leave may be given under the incriminatory exception for evidence of the defendant's bad character which is of substantial probative value in relation to a matter in issue. We noted that evidence which is relevant to a matter in issue only by virtue of its relevance to the defendant's credibility may not be admitted under that exception. This Part explains when evidence going to the defendant's credibility might become admissible.

12.2      We have recommended that evidence going only to the defendant's credibility should not be admissible merely because the court thinks that its probative value outweighs the risk of prejudice. We nevertheless believe that in certain limited circumstances the interests of justice may require the admission of such evidence. In many cases, the fact-finders are presented with competing accounts and their task is to decide who to believe. In some cases the defendant will seek to support his or her case by obtaining leave to adduce evidence outside the central facts which shows that another person has a general propensity to be untruthful. If there is evidence available about the defendant which shows that he or she also has a propensity to be untruthful, our view is that, in those circumstances it would be misleading if the fact-finders were not provided with that information as well. It may, therefore, be fair for evidence of the defendant's propensity to be untruthful to be admitted.^[1] We now explain when evidence should be admissible on the issue of the defendant's credibility. At the end of this Part (paragraphs 12.22 – 12.24) we explain what kinds of attacks by the defendant will not trigger this exception.

THE RECOMMENDATION

The defendant will have obtained leave to attack the other's character

12.3      If the defendant wishes to attack another person's character by adducing evidence, or by eliciting evidence in cross-examination, of another's bad character falling outside the central set of facts then leave must be obtained by the defendant pursuant to clause 5. Leave will only be given if that evidence is of substantial probative value.^[2] We anticipate that this kind of attack, in turn potentially triggering a cross-application by the prosecution to adduce evidence of the defendant's character, ought to occur less frequently than it does now. To mount such an attack, the defendant's advocate would have to show that the person's history of truthfulness or character generally was substantially relevant to the likelihood that he or she was lying in the case in hand, and therefore to a fact in issue.

12.4      A defendant need not testify personally in order to make an attack on the general credibility of another person. An attack is also made if evidence is given of an attack made by the defendant out of court, on an occasion when he or she has been cautioned. An example would be where the defendant, when interviewed by the police, says of the principal prosecution witness, "You can't believe a word he says, given his record" and that part of the interview is evidence in the case.

12.5      One of the advantages of our recommendations requiring leave for the introduction by the defendant of evidence of a person's bad character outside the central set of facts^[3] is that they ensure the court is clear about the purpose of the defendant's proposed attack on the other person. Thus any application by the prosecution for leave to adduce the defendant's character on the basis of credibility may be judged by reference to the purpose, nature, extent and effectiveness of the defendant's attack. In that case only evidence of the defendant's character which relates to it will be admitted. Further, in the Crown Court, requiring the defendant to obtain leave gives the judge the opportunity before matters have gone too far to form a preliminary view whether permitting the attack might in turn trigger a successful application by the prosecution to adduce evidence of the defendant's character. The judge can then give an appropriate warning to the defence of the risk of pursuing the application in good time for them to consider it out of hearing of the jury so that if, on reflection, they think better of pursuing the application they may withdraw in good order and without embarrassment before the jury.

12.6      Where, therefore, the defendant makes an attack on a person's character on matters which fall outside the central set of facts and the effect of that attack is to suggest or support a suggestion that the person has a propensity to be untruthful, then the question arises whether evidence which shows a similar propensity in the defendant should itself be admissible.

The comparison

12.7      If the defendant's own credibility is in issue and there is evidence available which tends to show he or she also has a propensity to be untruthful, it could be misleading if that information were kept from the fact-finders. One of the guiding principles we have set out is that fact-finders should not be unnecessarily misled.^[4]

The test of enhanced relevance

12.8      In accordance with our principle that evidence of bad character which goes outside the central set of facts must have enhanced relevance, so in these circumstances, the evidence which, it is said, shows the defendant has a general propensity to be untruthful must have substantial probative value on that issue.

The interests of justice test

12.9      Wherever evidence of a defendant's bad character is tendered by the prosecution our scheme requires the court to take account of the risk of prejudice in deciding whether to admit it. Therefore, even where the bad character evidence in question has substantial value, and without it the fact-finders would have an inaccurate impression of the defendant's credibility as compared with the nondefendant's credibility, the overriding requirement is that the interests of justice require the admission of the evidence, having taken account of the risk of prejudice.

12.10      In making that judgment, the court must have regard to certain specific factors designed to limit the introduction of evidence on a tit-for-tat basis to those cases where it is truly required. The first is the extent to which the evidence sought to be adduced has probative value on the issue of the defendant's propensity to be untruthful. The second is the need to avoid an inaccurate impression of relative truthfulness in the context of the case as a whole. The third is whether the defendant's propensity to be untruthful may be shown by other evidence in the case.

12.11      The court is not, in this connection, concerned with bad character in any respect other than the relevance of the history of the defendant to his propensity to tell the truth. As Sir John Nutting QC put it:

If the motive for putting to the witness his previous convictions is limited to an attack on his credit, permission should be sought from the Judge in advance so that a proper analysis can be made of what aspects of the witness's record relate to his credit. The most obvious examples are lies on oath in previous trials and convictions for dishonesty.

12.12      This should avoid the kind of unfairness that arose in S^[5] where past convictions which had no obvious relevance to credibility were admitted.

12.13      We recommend that leave may be given to the prosecution to adduce evidence of the bad character of a defendant which is relevant only to whether the defendant has a propensity to be untruthful if

(1) the evidence has substantial probative value in showing that the defendant has such a propensity,

(2) the defendant has suggested that another person has such a propensity,

(3) the evidence adduced in support of that suggestion does not have to do with the offence charged, and is not evidence of misconduct in connection with the investigation or prosecution of that offence,

(4) without the evidence of the defendant's bad character the factfinders would get a misleading impression of the defendant's propensity to be untruthful in comparison with that of the other person, and

(5) the interests of justice require the evidence to be admissible, even taking account of its potentially prejudicial effect.

12.14      This recommendation is reflected in clause 9. Leave may only be sought under this clause by the prosecution (subsection (8)).^[6] If a co-defendant wishes to attack an accused's general credibility that would have to be done, if at all, under clause 11, as described in Part XIV.

D is charged with conspiracy to defraud. His advocate obtains leave to crossexamine one of the prosecution witnesses on her multiple convictions for theft, on the basis that they show she is generally untruthful. D can then expect his own conviction for perjury to be adduced by the prosecution under the credibility exception.

12.15      As with the incriminatory exception, we believe it is desirable for the courts to be given guidance in applying this exception.^[7] They will be particularly apposite on the issue whether the interests of justice require the evidence to be admissible. The draft Bill makes detailed provision in subsection (7) of clause 9.

12.16      The court should thus take into account the nature and number of the events to which the defendant's attack relates, and of those to which the evidence which the prosecution wishes to adduce in response relates.

12.17      Certain of the factors are tailor-made for this exception. Paragraph (c) requires the court to consider how important the defendant's propensity to be untruthful and the other person's propensity to be untruthful are, in the context of the case as a whole.

12.18      Paragraph (d) requires the court particularly to have regard to the question whether, although the defence advocate might have asked a witness questions which were clearly intended to elicit answers which would have been damaging to the witness's general credibility, those answers were in fact given. For example, the defendant might be given leave to put to the witness that she had been summarily dismissed from a job for misconduct involving the spreading of malicious and untrue rumours but which had not resulted in criminal proceedings. The witness might not agree but might assert that she had resigned to take up better paid employment. In that event, paragraph (d) requires the court to take into account the fact that the questions have not revealed any evidence of a tendency in the witness to be untruthful. The court might conclude that in view of her denials, the attack on her turned out to have little of substance in it. Alternatively, it might conclude that, even though the advocate did not obtain the answers he wanted, the witness's denials were so unconvincing that the fact-finders would still be likely to get an inaccurate impression of the defendant's propensity to be untruthful as compared with the witness's propensity to tell lies.

12.19      Paragraph (e) requires the court to assess how inaccurate the impression the factfinders would have of the defendant's propensity to be untruthful in comparison with the other person's. Where a conviction is spent, paragraph (f) directs the court to take that fact into account.

12.20      Paragraph (g) requires the court to consider the overall impact of allowing the prosecution to ask such questions on the course of the trial: that is whether admitting the evidence would run the risk of confusing or misleading the factfinders or would unduly prolong the proceedings.

12.21      In the Crown Court the judge may advise the jury on how they are to approach evidence admitted under this exception. Clearly, the purpose of any such evidence is to shed light on the defendant's propensity to tell the truth, and a judge would probably remind the jury of that. It may be that, in cases where the evidence also shows that the defendant has previously done the same kind of thing it will also be appropriate for the judge to explain why it is not being put forward for that purpose and to remind the jury they should not place undue weight on it. We think this approach is more realistic than the direction required by the current law, which is to the effect that the past behaviour is irrelevant to the question of whether the defendant committed the offence and directing the jury to ignore it for that purpose.

ATTACKS WHICH DO NOT RELATE TO THE PERSON'S PROPENSITY TO TELL THE TRUTH

12.22      An advocate may try to demonstrate that a person whose evidence is admitted is lying in the instant case in various ways and for different purposes. He or she may be cross-examined on, or the defendant may adduce evidence bearing on

(1) the possibility that the person is biased because there is a history of animosity between that person and the defendant;

(2) the possibility that that person is the real culprit; or

(3) by attacking the person's reputation for truthfulness, which may amount to a full attack on the person's character.^[8]

12.23      Evidence of the person's bad character on occasions other than covered by the central set of facts may bear on any of these matters or for purposes other than propensity to tell the truth. The exception described in this Part covers only the third. If the defendant adduces evidence of another's bad character for some other reason, that might render the defendant's own character admissible under the incriminatory exception (clause 8) but it would not do so under the credibility exception.

12.24      For example, if the advocate wishes to persuade the fact-finders that the witness is the real culprit, he or she may refer to previous convictions of the witness which indicate that he or she is disposed to commit, or has a history of committing, the kind of offence with which the defendant is charged. In such a case, if the defendant has a similar history, that may, by reason of the defence pursued attain increased probative value so as to become potentially admissible under the incriminatory exception. We thought the point was well put by Sir John Nutting QC:

I add this thought. The test of what the motive is in putting the record to the witness should not be the only test. If there is a sensible possibility that the Jury will regard the introduction of the witness record as indicative of propensity, the defendant should lose the shield in a similar fashion whatever the motive for introducing the evidence.

Note 1   As recommended by Sir John Nutting QC in his response, “Once a ruling has been obtained the witness can be cross-examined as to his credit. If that is done the defendant loses the shield and will be vulnerable to cross-examination on the same basis.”    [Back]

Note 2   See Part IX above.    [Back]

Note 3   See paras 8.26 and 8.31 above.    [Back]

Note 4   See para 5.9 above.    [Back]

Note 5   See para 4.50 above.    [Back]

Note 6   A simple false claim of good character by a defendant about his or her own propensity to tell the truth on oath might prompt the prosecution to seek leave to admit evidence showing that the defendant does have a general tendency to lie, but this will be under cl 10. See Part XIII below on corrective evidence.    [Back]

Note 7   See para 7.19 above.    [Back]

Note 8   See A Zuckerman, The Principles of Criminal Evidence (1989) pp 247–248.    [Back]