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Cite as: [2001] EWLC 273(8)

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PART VIII BAD CHARACTER AND THE LEAVE REQUIREMENT

8.1 In this Part we consider the kinds of evidence that should fall within our proposed exclusionary rule, and should thus be prima facie inadmissible. In the consultation paper we proposed that the rule should extend to all evidence which the court thinks would be prejudicial, and to no other evidence. We are now persuaded that this approach was too broad brush, and that the rule needs to be more focused and easier to apply. We have concluded that there are three issues which need to be separately considered, namely:

(1) How should evidence of bad character be defined, for the purpose of a rule that such evidence is prima facie inadmissible (that is, admissible, if at all, only with leave)? Our provisional proposal was that such a rule should apply to any evidence about a person which, in the opinion of the court, the fact-finders might in fact find prejudicial. We have concluded, however, that such a rule would exclude too much. Under our recommendations, evidence would count as evidence of a person's bad character only if it reveals conduct (or a disposition towards conduct) of which reasonable people might disapprove. The possibility of wholly unreasonable prejudice is for this purpose disregarded.^[1]

(2) Should evidence be exempt from the exclusionary rule if, though within the definition of bad character evidence, it relates directly to the offence charged? Our conclusion is that it should. For this purpose we have decided to make use of the concept of a central set of facts in defining the scope of the rule of prima facie exclusion. Evidence of bad character which falls within the central set of facts should be admissible without the need to obtain leave. Only bad character evidence which falls outside those facts should be prima facie inadmissible.

(3) Are there circumstances in which, though not directly related to the offence charged, bad character evidence should nevertheless be exempt from the requirement of leave which is the hallmark of the exclusionary rule? Our conclusion is that evidence which all parties agree should be admitted, and evidence of a defendant's bad character adduced by that defendant, need not be subject to the requirement of leave.

8.2 We recommend that the rule of prima facie inadmissibility should be structured as follows:

(1) Evidence of a person's bad character is admissible only with leave of the court, unless

(a) it falls within the central set of facts, or

(b) all parties agree it should be admitted, or

(c) the evidence is of a defendant's bad character and is adduced by that defendant.

(2) Leave may only be granted, where required, if the evidence falls within one of a number of categories which are the subject of detailed provisions.

8.3 The recommendations made in this Part are given effect by clauses 1 and 2 of the draft Bill.

DEFINING EVIDENCE OF BAD CHARACTER

The options considered in the consultation paper

8.4 In the consultation paper we discussed three different ways of drawing up a rule excluding bad character evidence.^[2] The first, option A, was as follows. The most obvious approach is to confine the rule to evidence of certain kinds of fact. It might be provided, for example, that the rule should extend to any evidence that (or from which the fact-finders are likely to infer that) the defendant has committed a criminal offence, or done anything else that is likely to reflect adversely on the defendant in the minds of the fact-finders, other than the commission of the offence charged.^[3]

8.5 This approach seemed attractively straightforward but we were concerned that distinguishing between conduct alleged to constitute the offence charged and other conduct was not a simple matter. In particular, there were difficulties inherent in the law on "background" evidence and so it would be hard to say what was "background" and what part of the offence itself.^[4] We therefore provisionally rejected this option.

8.6 Whereas option A focused on the kinds of facts in question, option B focused on the kinds of inferences the fact-finders are invited to draw, or, put another way, the purpose of the evidence. We stated that it

would involve asking what kinds of inference the fact-finders would be invited to draw from the evidence if it were admitted. In most cases of the kind with which we are concerned, the fact-finders are asked to infer that the defendant is likely to have committed the offence charged either

(1) because the evidence shows that the defendant has a propensity to commit offences of the kind with which he or she is charged, or

(2) because the evidence reveals a combination of circumstances that is highly unlikely to be attributable to coincidence alone.

The exclusionary rule might be formulated so as to extend to any evidence which is adduced as the basis for an inference of either of these kinds.^[5]

8.7 Our principal criticism of option B was that, while it was capable of including the kinds of cases where a conviction is wrongly reached by a logical inference from bad character evidence (reasoning prejudice), it inevitably omitted the kinds of cases where a conviction was reached irrationally on the basis of such evidence (moral prejudice). Our view is that both kinds of prejudice need to be guarded against.

8.8 We therefore provisionally proposed option C, namely:

(1) that [subject to the exceptions proposed] evidence should be inadmissible if, in the opinion of the court, its admission would be prejudicial; and

(2) that, for the purpose of this rule, the admission of evidence should be regarded as prejudicial if there is a risk that

(a) the fact-finders might treat the evidence as being more probative of guilt than it really is, or

(b) it might lead them to convict the defendant without being satisfied that he or she is guilty as charged.^[6]

This option focused on the actual risk of prejudice to the defendant – in other words, the prejudicial qualities of the evidence, irrespective of the use to which it might rationally be put. It had the advantages, in our view, first that no evidence which bore a risk of prejudice would be outside the rule, because the rule itself required the court to consider that risk, and secondly that it avoided the problem identified with option

A. Objections to our provisional proposal

8.9 Various respondents raised the issues of the impossibility of second-guessing the jury and the danger of usurping the role of the jury which seemed to be thrown up by option C. The underlying concern is the difficulty of assessing exactly how fact-finders will use a particular piece of evidence. Some respondents were concerned that an exclusionary rule drawn in this way, although purporting to cover all prejudicial evidence, would in fact become impotent as regards certain pieces of evidence.

Evidence of criminal offences

8.10 Paul Roberts, Reader in Criminal Justice at Nottingham University, wrote:

However, the Commission seems unaware of potential drawbacks in its own preferred scheme. For one thing, if the existing statute and common law on a defendant's previous misconduct were abrogated without specific statutory replacement, the courts would be at liberty to decide that the new statutory scheme was narrower in scope than the old common law. The judges might, for example, decide to adopt a practice of routinely allowing defendants' credibility to be impeached by evidence of their previous convictions of dishonesty offences, the specific prohibition on questions tending to show convictions currently contained in proviso (f) having been replaced by the new, non-specific statutory wording. On one view of the meaning of credibility, the prosecution might even be permitted to adduce such evidence in chief, regardless of whether the defendant testifies or not. No doubt this argument is tendentious, or even disreputable, but that fact alone is not proof against its success. And if this type of argument were to find favour with the courts, the Commission's carefully worded exceptions to its general exclusionary rule would be pro tanto pre-empted, outflanked like an adjectival Maginot Line.^[7]

8.11 We find this objection persuasive. We agree that, where the evidence in question shows or tends to show that a person has committed a criminal offence, it should not be possible for a court to by-pass the exclusionary rule by deciding that that evidence is not prejudicial. Moreover, to be strictly accurate, evidence of a conviction is not itself a form of bad character: it is merely what the court accepts as prima facie conclusive evidence that the person convicted had committed the offence of which he or she was convicted. It is the act of committing the offence that amounts to bad character. We do not think it is necessary to exempt minor criminal conduct (such as parking offences) from the exclusionary rule altogether, on the basis that it is unlikely to be prejudicial: that can be taken into account in deciding whether one of the exceptions to the rule applies. In our view, evidence that a person has committed a criminal offence should automatically count as evidence of that person's bad character. This is one respect in which our recommendation departs from our provisional proposal.

Evidence of bad character not amounting to an offence

8.12 Clearly, however, "bad character" cannot be defined solely in terms of committing an offence. Evidence of conduct can be highly prejudicial even if that conduct is not a crime. The conclusion reached in the preceding paragraph is therefore not a complete solution to the problems inherent in making the exclusionary rule hinge solely on the court's assessment of the evidence's likely prejudicial effect. The problem would still arise in the case of evidence that a person has acted in a way which, though arguably discreditable and therefore prejudicial, would not amount to any criminal offence. It would similarly arise in the case of attitudes or beliefs, as distinct from conduct, or personal qualities (such as sexual orientation).

8.13 The focus of this report has changed somewhat from the consultation paper. We are concerned to seek to achieve a single consistent approach to the admissibility of evidence of bad character in respect both of defendants and non-defendants. Thus the concept is to be applied to a wider range of persons and, in particular, includes those of whom the fact-finders are not required to make a decision to which criminal sanctions attach. Given the wider range of persons for whose protection our recommendations seek to provide, it would not be satisfactory, in our view, for the question whether evidence is even prima facie inadmissible to be determined on the basis of the court's guess whether the fact-finders would be prejudiced by it. In particular, for reasons connected with ensuring that the defendant has the maximum freedom to conduct his or her case, we do not recommend that prejudicial impact should be a factor when determining whether a non-defendant's bad character should be adduced in evidence. The only condition we require to be satisfied is that the evidence is of substantial probative value on a matter of substantial importance in the context of the case as a whole. It would undercut this approach to require the court to assess the likely prejudicial effect of the evidence at the prior stage of deciding whether the evidence in question is evidence of bad character at all, and therefore requires leave to be adduced. Even in the case of a defendant's character, we think the perceived prejudicial impact of the evidence is best considered in relation to whether leave should be granted, not at the stage of determining whether leave is necessary.

8.14 It would be particularly unsatisfactory if the question whether leave is required in the magistrates' court were to depend whether the magistrates think the evidence would prejudice them. One respondent wrote:

Magistrates might be tempted to turn the test on its head, quickly and instinctively reaching the conclusion (perhaps based on perceptions of experience) that a piece of evidence is likely to be more probative than prejudicial. This might lead to decisions that the evidence is not prejudicial and so does not come within the scope of the exclusionary rule at all. If there was a tendency for this to happen, full arguments might not be heard and the desired structured regime for full consideration of admissibility of the evidence might be truncated.

8.15 Another respondent thought, "The magistrate, having estimated the true probative value of the evidence, is then to consider whether there is a risk that he might treat the evidence as being of more probative value than it really is! Of course he wouldn't." Unsurprisingly, some magistrates who responded had rather more confidence in the ability of magistrates to keep their various functions distinct.

8.16 In view of this difficulty we have concluded that the concept of bad character evidence, and thus the scope of the exclusionary rule, should not (as we proposed in the consultation paper) be defined in terms of the effect that the evidence, if admitted, would in fact be likely to have on the particular fact-finders. Rather, it should, as far as possible, be defined according to objective criteria. It seems to us that the most appropriate criterion for this purpose is whether a reasonable person might disapprove of what the evidence reveals about the person to whom it relates. If the definition of bad character were to include that which only the wholly unreasonably intolerant or irrational might find morally dubious, the court would become embroiled in a guessing game as to the particular moral views of the fact-finders in the particular case. That would be wrong in principle and utterly impracticable. If an advocate thinks that the magistrates or jury will display unreasonable prejudices there are other avenues, concerning time, venue, discharge of jurors, or even staying of the proceedings, by which the defendant can be protected from that prejudice.

8.17 Sometimes, of course, even the question of whether a reasonable person would disapprove of particular conduct will be a matter of opinion. Some kinds of conduct are thought discreditable by some people, but are not criminal and are thought by many to be morally inoffensive. In these cases we think a court should be capable of deciding, in a judicial manner, whether disapproval is within the range of responses open to a reasonable person. An affirmative answer would not amount to judicial disapproval of the conduct in question, because the court might recognise that some reasonable people would disapprove of it while others would not.

DISPOSITION

8.18 We have considered whether evidence that a person has a disposition to commit offences or otherwise to act in a way of which reasonable people might disapprove should be within the concept of "bad character". Although our terms of reference refer to "previous misconduct", we do not think it would be sensible to draw a distinction between evidence of conduct and evidence of a disposition which has not (or cannot be shown to have) manifested itself in conduct. For example, a rule incorporating such a distinction would fail to require leave for evidence that a man had admitted to a sexual interest in children, whilst denying ever having acted on that interest; yet such an inclination would clearly be a highly prejudicial fact about his character, and we think that whilst it may be right to adduce it as evidence it should be justified before leave is given for it to be adduced. The same would apply to evidence of manifestations of attitudes or views which might be highly eccentric or obnoxious and capable of giving rise to high levels of prejudice and which similarly should be subject to justification before they may be adduced with leave.

Our recommendation

8.19 We recommend that evidence of a person's bad character should be defined as evidence which shows or tends to show that that person

(1) has committed an offence, or

(2) has behaved, or is disposed to behave, in a way of which a reasonable person might disapprove.

BAD CHARACTER EVIDENCE NOT SUBJECT TO THE EXCLUSIONARY RULE

The central set of facts

8.20 An unattractive feature of the proposal made in the consultation paper is that it would have required the exclusionary rule to be applied even to evidence of the alleged offence itself which on any view is evidence of "bad character". It would be ludicrous if the prosecution had to seek leave to adduce such evidence. We had tried to meet this point in our option A by distinguishing between the offence itself and "other" misconduct, but rejected that option on the ground that the distinction was too hard to draw. ^[8] Having now rejected option C, however, we have to renew the attempt.

8.21 The response of our consultant on the consultation paper, Peter Mirfield of Jesus College at the University of Oxford, was very helpful on this point. He wrote:

I am not really clear about the line between option A and option C. I can pose a question which describes my doubt. In para 9.76, it is said that to define the rule in terms of discreditable nature of the facts which the evidence tends to establish leads to problems with so-called "background evidence". Clearly, the prosecution must be able to adduce evidence of the crime charged. … But, the problem is not so much in drawing a line between evidence of commission of the crime charged and evidence of other crimes or bad conduct, but one of drawing a line between evidence without which it is impossible to provide a coherent account of the commission of the crime charged and other evidence. … Let me put it this way. Does the Commission wish (genuine) res gestae evidence to be caught by the exclusionary rule or not?

8.22 The answer to Peter Mirfield's question was "no". As we note above, one aspect of the difficulty of distinguishing between the offence itself, and "other" misconduct, was the law as it stood on "background" evidence. In the consultation paper ^[9] we had identified four "indicators" which had, in some cases, taken evidence outside the normal exclusionary rule. They were:

(i) the evidence may be close in time, place or circumstances to the facts or circumstances of the offence charged;

(ii) the evidence may be necessary to complete the account of the circumstances of the offence charged, and thus make it comprehensible to the jury;

(iii) the accused may have had a relationship with the victim of the offence charged, and the previous misconduct evidence may relate to this victim rather than the victims of other offences;

(iv) the evidence may assist in establishing the motive behind the offence charged.

8.23 We discuss categories (ii)–(iv) and our solution in Part X below, but note here that only category (i) seems to describe evidence which ought properly to avoid an exclusionary rule altogether (as distinct from possibly qualifying for admission under an exception to that rule). Having concluded that bad character should be defined in terms of objective facts rather than the risk of prejudice, we must now formulate the exclusionary rule in such a way that it does not exclude evidence which goes directly to the facts of the alleged offence, or evidence of misconduct in the course of that offence or close to that offence in time, place or circumstances.

8.24 We took account of our tenet that fact-finders are, prima facie, entitled to have placed before them all the relevant evidence which is available, and of the general weaknesses and risks entailed in extraneous evidence of bad character, and formed the view that the distinction between central and extraneous evidence should be one of the organising principles of our recommendations.

8.25 We were encouraged to note that, in the context of restrictions on evidence going to a defendant's credibility, section 104 of the Australian Evidence Act 1995 (Cth) referred to

(a) the events in relation to which the defendant is being prosecuted; or

(b) the investigation of the offence for which the defendant is being prosecuted

and that this formulation did not appear to have generated major problems of interpretation.

8.26 It seemed to us that this offered a way forward, and that evidence of the events charged, and of the investigation of that offence, should be admissible without being subject to any exclusionary rule, no matter which party seeks to adduce it. This would include any incidental misconduct, such as the criminal damage caused by a burglar who broke items in the course of the burglary. It would extend too to the surrounding facts (such as the appropriation, the day before, of a car which was to be used in the burglary) and to an allegation that a witness is lying about the alleged facts of the offence.

8.27 The reference to the investigation of the offence charged would mean that a defendant would not need leave to adduce evidence that, for example, an alleged cell confession was never made, or that a confession was extracted under threat or the offer of a reward, or that an officer had destroyed evidence inconsistent with the defendant's guilt. It would extend only to misconduct committed in the course of the investigation or prosecution, and not to evidence of misconduct on other occasions which was uncovered in the investigation. For example, it would not permit an officer, when innocently asked "And what did you do then?" to reply, "I rounded up all those with known records of offences of this type, including the defendant."

8.28 We also think that the exclusionary rule should not apply to evidence about things done in the course of the proceedings, if relevant, even if they cannot be said to be part of the investigation – for example, evidence that a defendant has absconded in the course of the proceedings, or has sought to dissuade a witness from testifying. Such evidence might of course be excluded on the grounds that it has no relevance or under section 78(1) of PACE on the ground that it is too prejudicial, but we do not think it should be prima facie inadmissible on the basis that it is evidence of bad character. Similarly, it would be anomalous if the defence had to ask leave to adduce evidence that, after the trial had started, an officer in the case had tried to discourage a defence witness from testifying: this kind of allegation is on a par with an allegation that evidence was fabricated in the course of the investigation.

Evidence which all parties agree should be admitted

8.29 Clearly no purpose would be served by requiring leave to adduce bad character evidence if all the parties consent to the evidence being admitted. In these circumstances, therefore, our proposed exclusionary rule would not apply.

Evidence of a defendant's bad character, adduced by that defendant

8.30 In the consultation paper we proposed that the defendant should not have to obtain leave to adduce evidence of his or her own bad character.^[10] We still take this view. As one respondent wrote,

The defence should … always have the right to adduce evidence of a defendant's previous convictions if it felt that it would be helpful to do so. The most obvious example is where the defendant had an alibi because he was in prison at the relevant time.

Our recommendations

8.31 We recommend that evidence of a person's bad character should be automatically admissible if

(1) it has to do with the offence charged, or is evidence of misconduct in connection with the investigation or prosecution of that offence; or

(2) all parties agree to its admission; or

(3) it is evidence of the defendant's bad character which the defendant seeks to adduce.

8.32 We recommend that

(1) all other evidence of bad character should be admissible only with the leave of the court, and

(2) leave should be granted only if the evidence falls within one of the exceptions we recommend below.

8.33 The definition of bad character is key, and appears at the head of the Bill, in clause 1. Clause 2 then describes the circumstances in which leave is not required for evidence of bad character to be admissible. The aim here is to "ring-fence" evidence of the offence itself, and it is important that this subclause delineates the boundary around the central set of facts as accurately as possible. The purpose of the examples given in the explanatory notes is to give as clear an indication as we can where the boundaries lie.^[11] The section would, of course, be interpreted in the light of the other clauses in the Bill, and that fact in itself would indicate that it, and in particular subsection (1)(a), is not an open door through which any evidence, however loose its connection with the charges, might pass.

8.34 The structure of the Bill is put into diagrammatic form on the next page.

Note 1   That possibility must, however, be taken into account in determining whether evidence which is evidence of bad character is admissible under an exception to the exclusionary rule.    [Back]

Note 2   Paras 9.74 – 9.92.    [Back]

Note 3   Para 9.75.    [Back]

Note 4   The law on background evidence was set out at paras 2.70 – 2.84 of the consultation paper, and is described more briefly at para 10.1 of this report. We had in mind particularly Ellis (1826) 6 B & C 145, 108 ER 406; Rearden (1864) 4 F & F 76, 176 ER 473; Bond [1906] 2 KB 389.    [Back]

Note 5   Para 9.77.    [Back]

Note 6   Para 9.92.    [Back]

Note 7   P Roberts, “All the Usual Suspects: A Critical Appraisal of Law Commission Consultation Paper No 141” [1997] Crim LR 75, 84–5.    [Back]

Note 8   See para 8.5 above.    [Back]

Note 9   At para 2.81. The footnotes are omitted. For the authorities supporting this para, see para 10.1 below.    [Back]

Note 10   Provisional proposal 21, and para 10.114 of the consultation paper.     [Back]

Note 11   We note that a court may have recourse, for the purposes of clarification, to explanatory notes attached to a statute, as stated by Lord Hope in A [2001] UKHL 25, para [82].    [Back]

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