PART V GENERAL PRINCIPLES
5.1 In Parts II and IV we have sought to describe the present law on evidence of bad character in all its uncertainty and complexity and to highlight the numerous defects which we and others have identified. We believe that it is necessary to try to produce a single statutory framework dealing with this particularly difficult problem which approaches it as a reflection of first principles. We therefore endeavour in this Part to formulate a series of guiding principles which will inform the overall scheme we propose, the details of which we flesh out in succeeding Parts. We believe that these principles can and should be set out in a series of short propositions.
5.2 The rules of evidence should so far as is consistent with fairness be simple, accessible and readily understood.
5.3 They should be capable of being applied predictably and consistently by the courts but be sufficiently flexible to cater for the infinite variety of factual situations to which they will apply.
5.4 Where arbiters of law are called on to decide questions of admissibility, as they must be from time to time, the rules of evidence must give clear guidance on the proper approach to the decision so that its correctness may be judged on appeal.
5.5 Where a court decides questions of admissibility of evidence, reasons for the decision must be given.
5.6 Fact-finders are, prima facie, entitled to have placed before them all the relevant evidence which is available.
5.7 Relevant, in this context, means having some probative value on a matter in issue in the proceedings.
5.8 Such probative value may be direct, in the sense of bearing upon the matters in issue, or indirect in the sense of bearing upon the truthfulness of a witness's account of matters in issue.
5.9 The rules for the admission of evidence should be such that they preclude factfinders being unnecessarily misled or left in the dark.
5.10 The rules for the admission of evidence should be such that they avoid deterring people who have relevant evidence to give from giving it.
5.11 Any person, whether a defendant, a witness, or otherwise involved, may only have their bad character referred to in evidence if it is relevant for the fact-finders to be aware of it for the performance of their task.
5.12 In any particular case certain instances of previous misconduct may be relevant and certain other instances of the same person's conduct may not. Where it is sought to adduce evidence of bad character it may only be admitted to the extent that it is relevant to the matters in issue in the proceedings.
5.13 A defendant may only be convicted on what he or she is proved to have done, and not merely on his or her character or past conduct on an occasion other than that the subject of the charge.
5.14 Evidence of a defendant's misconduct other than that of the offence charged may be of value on a number of bases:
(1) It is such an integral element of the offence charged that the trial would be impossible without the evidence of that previous misconduct being led.
(2) It is so much a part of the factual background that the fact-finders would be misled by incomplete evidence, or the case would be incomprehensible to them were it not to be adduced in evidence. In these two instances the evidence may be of value even though it does not go to the issue whether the defendant committed the offence currently alleged.
(3) It demonstrates the defendant's propensity to commit the particular crime charged because he or she has in the past committed the same or a similar type of offence or offences.
(4) It may assist the fact-finders to judge which of contending accounts they accept by assessing the respective credibility of those putting forward or supporting such accounts.
(5) It is required to prevent the fact-finders being at risk of being misled by something said or done by or on behalf of the defendant in the course of the trial.
5.15 Evidence of bad character may be admissible as between co-defendants where it is relevant on a matter in issue between them or where it concerns the credibility of one defendant, the nature or conduct of whose defence is such as to undermine the defence of the other.
5.16 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.
5.17 Rules of law require that evidence of this type need not be admitted despite its potential probative value, which the fact-finder might otherwise be expected to weigh.
5.18 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.
5.19 The concerns referred to above require that, unless evidence of previous misconduct is of substantial, as opposed to marginal, probative value in respect of a matter in issue in the proceedings, it should not be admitted as evidence.
5.20 People who are not defendants but are witnesses or otherwise involved are entitled not to have their bad character adduced in evidence unless
(1) it is relevant on the bases identified in paragraph 5.14(1) or
(2) above; or (2) it is of substantial, as opposed to marginal, probative value in relation to a matter in issue in the proceedings.
5.21 Whether evidence is of substantial probative value is a question of law to be determined by the arbiters of such questions, namely the judge in the Crown Court and the magistrates in the magistrates' courts. In so doing they should have regard to all relevant matters including (i) the nature of each instance of bad character sought to be admitted, (ii) the number of such instances, (iii) when they occurred, (iv) the nature and extent of any similarity or dissimilarity to the matter in issue to which it is claimed it is of substantial probative value, and (v) in cases where the issue is who committed the crime and evidence of other offences is tendered on that issue, the extent to which the evidence suggests that the same person committed all of them.
5.22 Where evidence of a defendant's bad character is of substantial probative value and is therefore capable of being admitted, it may only be admitted as evidence if the interests of justice so require, having had regard to its probative value and the risk that it would operate prejudicially in either of the ways described in paragraph 5.18 above.
5.23 Whether the interests of justice require evidence of a defendant's bad character to be admitted is a question of law to be determined by the arbiters of such questions. In so doing they should have regard to all matters, including each of the matters referred to in paragraphs 5.21 and 5.18 above, relevant to weighing, respectively, the probative value of, and the risk of the prejudicial effect of, such evidence.
5.24 It is for fact-finders to weigh the probative value of the evidence but they are entitled to be given guidance, as a matter of law, on how to approach certain types of evidence.
5.25 Wherever evidence of bad character is introduced in evidence the fact-finders must not use it prejudicially, must be aware of the risk of so doing and should remind themselves, or should be reminded, of this risk.
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