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You are here: BAILII >> Databases >> The Law Commission >> Evidence of Bad Character in Criminal Proceedings (Report) [2001] EWLC 273(9) (October 2001) URL: http://www.bailii.org/ew/other/EWLC/2001/273(9).html Cite as: [2001] EWLC 273(9)

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PART IX EXCEPTIONS APPLICABLE TO NONDEFENDANTS

9.1      As regards defendants, the principle that evidence of other misconduct should be prima facie inadmissible is already embedded in English law. ^[1] There are two bases for this principle. The first is that such evidence is irrelevant; the second is that it is prejudicial. This principle does not extend to witnesses, but there are sound arguments for saying that it should.

9.2      In the consultation paper we raised the possibility of restricting crossexamination of witnesses to that which would be substantially relevant to the witness's credibility. We now take the view that a requirement of enhanced relevance for all evidence of the bad character of non-defendants, not just that going to credibility, is an important element in the package of measures we now recommend to secure a trial which is fair to the defendant, but which also safeguards witnesses and others from gratuitous attack.

THE CURRENT POSITION

9.3      It is trite law that only "relevant" evidence is admissible. That is the only evidential restriction on bad character evidence that may be adduced about a person who is not a defendant.^[2] Where a person testifies, questions put in crossexamination which go to the witness's credibility "must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence".^[3]

9.4      Where a person's credibility is the issue, he or she may be asked questions about his or her criminal record, associations or way of life which might discredit his or her testimony in the eyes of the fact-finders.^[4] Questions can be put to a witness about any improper conduct to test his or her credit. The general rule is that where a witness is cross-examined as to credit, evidence is not admissible to contradict his or her answers.^[5] There are a number of exceptions to this general rule. Evidence is admissible to contradict a witness's answer under crossexamination on credit to prove bias;^[6] previous convictions;^[7] reputation for untruthfulness;^[8] or medical reasons for unreliability of evidence.^[9] The list of exceptions is not closed.

Judicial control

9.5      The court has the power to control cross-examination. Cross-examination is not confined to issues raised in evidence in chief, but if the cross-examiner strays outside the issues in the case (including the credit of the witness), then the court should disallow questions which are irrelevant or vexatious, or which are designed to prolong the case unnecessarily.^[10] It is erroneous for a court to take the view that cross-examination cannot be stopped because there is some tenuous legal reason for it.^[11] Where the defendant is unrepresented, the court still has the power to control cross-examination conducted by the defendant.^[12]

9.6      The court does, moreover, have a discretion to excuse an answer to a question when that answer would not, in the court's opinion, affect the credibility of the witness.^[13] One could argue that, given the dictum of Lawton J in Sweet-Escott,^[14] the court has a duty, not just a discretion, to excuse an answer in these circumstances.

9.7      Questioning by an advocate is also subject to the professional Code of Conduct.^[15]

THE OPTION PUT FORWARD IN THE CONSULTATION PAPER

9.8      In the consultation paper^[16] we thought that the time had come "to question how far it is appropriate to allow a party free rein in attacking witnesses' characters, on the basis that the focus of cross-examination should be the probative credibility^[17] of the witness … The onus should be on the party seeking to introduce the incriminating evidence to show how it is directly relevant, or of significant weight." We referred to the Australian Evidence Act 1995 (Commonwealth), sections 102–103, which provide that evidence going only to credibility must have "substantial probative value", and to section 2 of the Sexual Offences (Amendment) Act 1976.^[18] We considered the possibility of a rule that "evidence may be called, and questions asked, as to an aspect of a witness's character only where it would be unfair to the defendant for them not to be asked – in other words, where the evidence (or the question) might reasonably lead the factfinders to take a different view of the witness's evidence". Provisional proposal 35(D) set out for consultees' consideration the following option:

allowing imputations to be made against a witness only where, if true, they would substantially undermine the witness's credibility.^[19]

9.9      We stated that we saw some merit in this option, but did not feel able to put it forward as a proposal because, by going beyond admissibility of a defendant's bad character, it appeared that it might raise issues going beyond the subject-matter of the consultation paper.^[20] We therefore simply invited views.

The views of respondents

9.10      Four respondents were in favour of this proposal and thought that it did not fall outside the scope of this paper. Three respondents argued against it. Among the four in favour, the justices of Uxbridge Magistrates' Court said there was some practical support for this option. They felt that, although it could present practical difficulties, it would make for a "clearer" trial and allow magistrates to concentrate more on the facts of the case.

9.11      Professor Jackson addressed the point in detail in his response. He thought that judges should take

a much firmer stance against … allowing witnesses' characters being attacked. In this regard I would adopt option D in para 35. I consider the Commission is wrong to consider that the question of crossexamination lies outside the scope of a paper on the previous misconduct of defendants. If a tougher line were to be taken by judges to limit the scope of cross-examination as to credit, then many of the tit-for-tat problems which the 1898 Act have given rise to could be avoided. The suggestion in para 12.91 that this would amount to requiring a higher standard of legal relevance for character evidence than for other evidence is questionable in the light of the low probative value that character evidence generally has in relation to both credibility and facts in issue. In any event, the suggestion that bad character imputations should only be made where they would substantially undermine the witness's credibility is not far removed from the existing common law boundaries on cross-examination. According to Sankey LJ in Hobbs v Tinling [1929] KB 1, 50-51, such questions are only proper if they are of such a nature that the truth of the imputation conveyed would seriously affect the opinion of the court on the credibility of the witness. The problem would seem to be that trial judges are reluctant to circumscribe cross-examination to this extent. More stringent limits on cross-examination as to credit would not merely protect defendants but would also go a long way to protect the dignity of victims who are so commonly castigated during cross-examination.

Professor McEwan shared this view: "We should be instead be looking closely at ways to control unacceptable cross-examination." ^[21]

9.12      Those who argued against provisional proposal 35(D) were concerned that the test of "substantiality" was too vague and would provoke legal argument, and that it would involve the court in the difficult task of determining when a witness's credibility is substantially undermined. We discuss the test of substantiality and conclude that it is not too vague to be useful at paragraphs

7.8      – 7.17 above.

9.13      It is, however, clear that if a test of enhanced relevance were to apply only to evidence which is relevant via credibility, as we suggested, then this would add unwelcome complications to the law. There would be a high risk that advocates and courts would become embroiled in analyses of the ways in which evidence is said to be relevant.^[22] In what follows, therefore, we have in mind a rule which 21 22 extends to all bad character evidence which is outside the central set of facts,^[23] not just to evidence going to credibility.

THE DANGERS OF BAD CHARACTER EVIDENCE

Its irrelevance

9.14      We have considered in Part VI above what evidence there is to show how and to what extent past conduct might be relevant at trial (to propensity and to credibility) in relation to defendants. The conclusions we draw have the same force in relation to non-defendants. We concluded that in relation to propensity, past behaviour can be probative on the question whether the defendant is likely to have acted in the way alleged, but the probative value of a single previous instance can be easily over-estimated, and this would seem to be as true for nondefendants as for defendants. In relation to credibility, we concluded that previous misconduct may be relevant to a witness's general credibility; but, since little significance can in any event be attached to that credibility or the lack of it, the witness's previous misconduct is generally of little value in determining the issues in the case. A person's specific credibility – that is, the extent to which, in the circumstances of the individual case, the witness appears to have a reason to lie – is of far more importance in a case, as Professor Eggleston, an Australian judge, wrote:

For my own part, I would … limit severely the scope of crossexamination as to credit. As most witnesses will lie if the motive is strong enough, and many will lie merely to save lengthy explanations about matters that they think have nothing to do with the case, I do not regard the demonstration that a witness has lied about some irrelevant matter as affording much help in deciding whether he is telling the truth about the facts in issue.^[24]

9.15      The New Zealand Law Commission took the view that bad character evidence is generally unhelpful on matters of truthfulness, and that restrictions are needed in respect of truthfulness, evidence showing a propensity in the defendant, and evidence about the sexual experience of a complainant. The restriction on evidence going to a person's truthfulness reads:

A party may offer evidence in a civil or criminal proceedings about a person's truthfulness only if the evidence is substantially helpful in assessing that person's truthfulness.^[25]

The Commission has also recommended special rules for propensity evidence about defendants and about sexual experience of complainants.^[26]

Its prejudicial effect

9.16      It does not necessarily follow that just because evidence has little probative value it should be inadmissible. As the ALRC said, "If one accepts the view that [evidence of character] is of little value in a trial setting, that does not necessarily justify its exclusion".^[27] However, the case for excluding evidence of bad character of non-defendants rests not just on its general irrelevance, but also on its potential for distorting the verdict by the prejudice which such evidence may introduce in respect of a witness whose evidence may be crucial. That this is so is demonstrable by the panoply of special rules and statutory provisions on limiting cross-examination about the previous sexual experience of complainants in sex cases where it is not merely the question of irrelevance which is to the fore but also the invitation to prejudice which underpins its attractiveness as a tool for the defence. In this respect we can see little reason, in principle, to treat witnesses any less favourably than defendants in considering the level of probative value which should be achieved before evidence should be admissible.

9.17      We note the words of Lord Steyn in A, where he accepted that past sexual behaviour has been adduced to the unfair disadvantage of the complainant:

Nevertheless, it has to be acknowledged that in the criminal courts of our country, as in others, outmoded beliefs about women and sexual matters lingered on. In recent Canadian jurisprudence they have been described as the discredited twin myths, viz "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief": R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape cases.^[28]

9.18      Two questions arise: (1) does evidence of the bad character of non-defendants also have potential for distorting the verdict? and (2) are there considerations other than irrelevance and distortion of verdict which militate against admitting such evidence?^[29] The ALRC sought to justify a raised threshold on the grounds that the existing law has "underestimated" the capacity of character evidence "to distort the fact-finding process".^[30] These distortions arise because there is "a real danger that evidence from which a character inference can be drawn will be given disproportionate weight …", and, particularly in the case of complainants in sexual cases, the fact-finders will be inclined to make a general moral assessment of the complainant.^[31]

9.19      The Australian and New Zealand views are confirmed by research in this jurisdiction. The research concentrates on rape trials, where the problem seems to be especially acute. It has been found that, in some cases, advocates ask questions which are clearly irrelevant, or even questions which breach their own professional code.^[32] Professor Temkin has written of research into the views and experience of barristers who prosecute and defend in rape trials. She found that defence counsel tend to avoid hectoring and harassing witnesses, partly because it can be counter-productive. She found also that both prosecuting and defence counsel took seriously the limitations on sexual history evidence which were then in force, and thought judges took them seriously too. Nevertheless, the applications of defence counsel to cross-examine on the basis of the complainant's sexual history were frequently made and rarely turned down. Discrediting the complainant was a "central strategy in the defence armoury" – as confirmed by recent Home Office research^[33] – and one that was likely to succeed, despite the court's power to control cross-examination and specific legislative provisions designed to give the court control over the fairness of attacks on the witness's credibility. As Lord Steyn recently concluded, the regime provided for by section 2 of the Sexual Offences (Amendment) Act 1976 had not been effective in protecting complainants:

Section 2(2) provides that the judge shall only give leave "if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked." The statute did not achieve its object of preventing the illegitimate use of prior sexual experience in rape trials. In retrospect one can now see that the structure of this legislation was flawed. In respect of sexual experience between a complainant and other men, which can only in the rarest cases have any relevance, it created too broad an inclusionary discretion. Moreover, it left wholly unregulated questioning or evidence about previous sexual experience between the complainant and the defendant even if remote in time and context. There was a serious mischief to be corrected.^[34]

9.20      We would add a further concern: even if the fact-finders did base their verdict on the evidence unaffected by the relative moral standing of the parties, the witness might suffer humiliation and distress in the process. The feelings of the witness are a matter of public interest – witnesses who undergo humiliating or distressing cross-examination will report this experience to others, and witnesses will be deterred from testifying.^[35]

W is a middle-aged woman, who is raped by an acquaintance. D says she consented. The police explain to her that, when she gives evidence, which she must for the prosecution to succeed, she might be asked about a 20-year old shoplifting conviction. Neither her husband nor her children nor her friends know about this conviction. The fear that it would be mentioned in public is enough to dissuade her from giving evidence.

9.21      We do not argue that the sensibilities of witnesses should be protected at the expense of the defendant's rights, but, where the questions which the defence would like to ask do not substantially advance the defence case, then we do say that such questions should not be allowed.^[36]

9.22      We therefore agree with the conclusion of the ALRC: evidence which distorts the fact-finding process and promotes an inaccurate verdict should be subject to restriction, whether the distortion favours the defendant or disadvantages the defendant.

9.23      While it may be right for a complainant in a sexual case to be protected from questioning about previous sexual experience which is irrelevant or insufficiently relevant, it does not follow that any other kind of character attack on a witness is justifiable. (Indeed, unequal treatment of prosecution and defence witnesses could itself lead to unfairness.)^[37] Our conclusions relate, therefore, to all nondefendants, not just complainants, and across all kinds of cases.

The effect of a statutory test of enhanced relevance

9.24      Putting the requirement that bad character evidence achieve a certain standard of relevance into statutory form, and raising that required standard, would require advocates and courts to consider whether questions put will elicit evidence which indeed has that enhanced level of relevance. For example, presently judges and magistrates may be reluctant to intervene to prevent irrelevant questioning because they are not confident that an appellate court would agree that the question was wholly irrelevant. Given the existence of a statutory structure by which leave was required, the advocate would need to show that the evidence had some relevance and that it is of more than minimal significance. If a line of questioning is not relevant at all, the advocate will not be able to argue either that it is directly probative or that it casts light on the person's truthfulness, let alone that it does so to an enhanced degree.

9.25      In making the application for leave, an advocate would have to point to the features of the evidence which support the argument that the evidence is substantially relevant – for example, how recent was any alleged misconduct, and how similar to any misconduct alleged in relation to the facts of the offence charged (which may include the giving of false evidence as to those facts).

9.26      Applying the rigour of requiring the advocate to satisfy the court of the enhanced level of relevance would mean that evidence going to the "specific credibility" of a witness (that is, evidence which suggests that the witness has an incentive to lie on this occasion) would be more likely to have the required level of relevance than evidence which merely suggests that the witness might lie if he or she did have an incentive to do so.

9.27      A leave requirement would also have the effect, first, that the court would turn its mind to the question of the relevance of the evidence; and second, that where the court decides to admit it, the process of reasoning by which the evidence is deemed to be substantially probative would be made explicit.^[38]

Would a test of enhanced relevance prevent the defendant from having a fair trial?

9.28      A test of enhanced relevance would represent a restriction on the evidence that a defendant may adduce. We have considered very carefully the argument that a defendant should not be fettered in the presentation of his or her defence, and especially whether there would be any danger of a wrongful conviction resulting from a court's refusal to permit bad character evidence which would be permitted under the current law.

9.29      The question whether the defendant receives a fair trial also has significance in the light of Article 6 of the European Convention on Human Rights. The Strasbourg Court leaves evidential rules to the domestic courts and looks at the totality of the evidence against someone when deciding whether there has been a fair trial.^[39] Moreover, following the incorporation of the Convention into English law, where evidence is inadmissible on the ordinary rules of construction, the English courts will consider whether the trial is thereby rendered unfair, with explicit reference to Article 6 and the rights implicit in it. The approach a court is recommended to adopt is described in general terms at paragraphs 3.21 – 3.36 above.

9.30      Given this context, would a rule preventing a defendant from putting certain questions to a prosecution witness render the trial unfair, and thus infringe Article 6? We do not think so, for the following reasons. We note two general points first: that rules of evidence are a domestic matter, and the important question is not whether a rule in the abstract is fair, but whether the defendant has had a fair trial, and second, that there is no explicit right in the Convention to adduce whatever evidence the defence wishes to adduce.^[40] The right to present one's defence is a constituent part of the right to a fair trial.

9.31      The recent authority of A^[41] is instructive in this regard. That case concerned the application of sections 41–43 of the Youth Justice and Criminal Evidence Act 1999, which, subject to certain exceptions, provide that a defendant charged with a sexual offence may not cross-examine a complainant about his or her sexual behaviour on other occasions in support of a defence of consent. It was argued that these provisions infringed the defendant's right to a fair trial under Article 6. The House of Lords agreed that a literal reading might result in the exclusion of evidence necessary to a fair trial, particularly where the evidence was of a previous sexual relationship between the complainant and the defendant himself. With the help of section 3 of the HRA 1998,^[42] however, their Lordships construed the legislation so as not to exclude any evidence which is so relevant to the issues that its exclusion would endanger the fairness of the trial under Article 6.^[43]

9.32      The importance of this decision for present purposes lies not so much in the fact that the House was prepared to give the legislation a flexible interpretation in order to avoid finding it incompatible with Article 6: we strive to produce draft legislation that is Convention-compatible even if it is read in accordance with ordinary principles of statutory interpretation and without resort to section 3 of the HRA.^[44] Rather, the crucial point is their Lordships' recognition that the exclusion of relevant defence evidence does not in itself render the trial unfair.^[45] It depends how relevant the excluded evidence is to the crucial issues in the case.

D is charged with theft. W, who was D's employee at the time of the alleged offence, is a witness who will give incriminating evidence which a jury could hardly accept without convicting D. The bad character evidence in question is the fact (not disputed by the prosecution) that, in her previous job, four years before the time of D's alleged offence, W was dishonest in her expenses claims. D says that the witness is incompetent and therefore mistaken. It is hard to conceive that the evidence would be admissible under our enhanced test.

Alternatively, D is charged with theft, and wishes to ask W about an allegation that she was dishonest in her previous job. In this example, D's case is that W is lying, not incompetent. The fact that in the relatively recent past she has been guilty of dishonesty at the work place might well surmount the test of enhanced relevance.

A third variation: D is charged with theft and wishes to ask W about an allegation of dishonesty 10 years previously, or in a non-work context. The court might well take the view that it did not pass the enhanced relevance test.

9.33      Presently, the evidence of W's past might well be put in or allowed in under all three scenarios or, at the least, under the latter two on the basis that as there is a general dispute about the reliability of her evidence any evidence which might reflect on her reliability as a witness could be admitted, especially if the defendant does not himself have any previous convictions. Under an enhanced relevance test, the court would force the advocate to consider and articulate why it is that the evidence should be admitted as satisfying that test. The outcome might be that a witness was saved a public humiliation for a cause which could not sensibly have been thought to advance the defendant's case. At the very least the defence will have been forced to sharpen up the focus of its attack.

9.34      It follows, from the decision in A, that a requirement of enhanced relevance for bad character evidence would risk infringing Article 6 only if the required level of relevance were set so high that evidence sufficiently probative to be necessary for a fair trial might nevertheless fail to satisfy it. This result could be avoided by formulating the requirement in such a way that it will inevitably be satisfied whenever the exclusion of the evidence might render the trial unfair. We therefore do not accept that the introduction of a test of enhanced relevance would necessarily risk infringing Article 6. That risk can be eliminated if the test is properly formulated and applied. OUR CONCLUSION

9.35      We think it right to have a rule of law that, where evidence of the bad character of a non-defendant is barely or only minimally relevant, it should be excluded. We have reached this conclusion because

(1) of the special power of bad character evidence to distort the fact-finding process;

(2) of the need to encourage witnesses to give evidence, by making it known that witnesses will not have their past exposed publicly where it is at best of only minimal relevance to the questions in issue, such as whether they are telling the truth; and

(3) it will give courts a clear supportive framework to control gratuitous and offensive cross-examination which has little or no purpose other than to intimidate or embarrass the witness or muddy the waters.

FORMULATING THE TEST OF ENHANCED RELEVANCE

9.36      We argued above that the risk of rendering the trial unfair by excluding relevant defence evidence can be avoided by ensuring that evidence would not be excluded if that would be its effect. We will need to do this if the rule we recommend is not to infringe Article 6. One way to do it would be by expressly formulating the test in terms of whether the defendant could have a fair trial if the evidence were excluded. This would ensure that the trial was not rendered unfair; but it would go further than we think necessary. Our object in raising the standard of relevance is not to exclude as much bad character evidence as Article 6 will allow. Rather, it is to exclude only bad character evidence which is of trivial relevance – the kind of evidence which cannot be said to be entirely irrelevant, but which adds very little. We are not seeking to raise the standard as high as that currently applicable to "similar fact evidence".^[46] Nor do we suggest that evidence of bad character should be excluded merely because it could be excluded without depriving the defendant of a fair trial.

9.37      We therefore conclude that the criterion should be formulated, not in terms of whether the defendant can have a fair trial, but expressly in terms of the degree of relevance that the evidence has to the issues in the case. This means, however, that we must express the required degree of relevance in such a way that evidence will inevitably satisfy that requirement if its exclusion would render the trial unfair. We now consider how this can be done.

The importance of the matter in issue

9.38      The value of evidence is made up of its relevance to a matter in issue and the importance of that matter in issue in the context of the case as a whole. Even bad character evidence which is highly probative on a particular issue may not have sufficient probative value to justify its admission if that issue is itself of trivial importance. For example, a fact may have substantial relevance to the credibility of a person whose credibility is in issue, and thus to the matter in issue on which she gives evidence, although that matter is not of substantial importance in the context of the case as a whole. If the matter on which she gives evidence is of only marginal relevance to the central issues in the case, then no amount of relevance to her credibility can ever amount to substantial importance in the context of the case as a whole.

9.39      We conclude that, in order to meet the purposes for which it is designed, the test of enhanced relevance should be whether the evidence has substantial probative value in relation to a matter in issue which is itself of substantial importance in the context of the case as a whole. Our use of the word "substantial" in this context is parallel to its use as described in Part VII above.

Ensuring a fair trial

9.40      We now return to the question whether such a test would risk infringing Article 6, by excluding evidence which needs to be admitted if the defendant is to have a fair trial. This depends whether a court might conceivably decide that certain bad character evidence which a defendant seeks to adduce is not of substantial probative value (or is of substantial probative value only in relation to a matter in issue which is not itself of substantial importance to the case) although the defendant cannot have a fair trial if the evidence is excluded. We think this would be a self-evidently contradictory position for a court to adopt. If it is unfair to the defendant to exclude the evidence, this can only be because the evidence does have substantial probative value in relation to the crucial issues in the case. Indeed, a court might reasonably approach the question of whether particular evidence has substantial probative value by first asking itself whether the defendant could have a fair trial if the evidence were excluded. A negative answer to this question would inevitably mean that the evidence did have sufficient relevance to be admitted.

OUR RECOMMENDATIONS

Exceptions: non-defendants: substantial probative value

9.41      We recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial probative value in relation to a matter in issue in the proceedings which is of substantial importance in the context of the case as a whole.^[47] Exceptions: non-defendants: substantial explanatory value

9.42      As we explain in relation to bad character evidence to be adduced against defendants,^[48] some character evidence is not strictly speaking probative, in that it does not of itself prove any fact, but it is nevertheless significant in making other evidence comprehensible. Some evidence about people other than defendants may serve this kind of purpose in a trial, and we therefore recommend that leave may be given to adduce evidence of the bad character of a person other than a defendant if it has substantial explanatory value.^[49]

9.43      Thus, for example, in a case of intra-familial abuse, it was not only abusive behaviour by the defendant on occasions other than that charged which was valuable in explaining the case as a whole to the jury, but also abusive behaviour by other members of the family.

The consequences for the defendant

9.44      Where the defendant does obtain leave to adduce evidence of another's bad character under either of these recommendations, this may make it possible for the prosecution to apply for the defendant's own bad character to be admitted. It is possible that evidence of the defendant's own bad character will attain a probative value it did not have before the bad character evidence of the other person was adduced, and so the prosecution might make an application under the rules that we recommend in Parts X, XI, and XII respectively.

The relationship with section 41 Youth Justice and Criminal Evidence Act 1999

9.45      At the time of writing, section 41 of the Youth Justice and Criminal Evidence Act 1999 lays down rules for the admissibility of sexual history evidence of complainants in sexual cases, as described above. Our recommendations would involve no changes to those provisions. Where those provisions apply, our proposed test of substantial probative value would have to be satisfied as well; but it is almost certain that evidence of sexual experience which is ruled admissible under section 41 will have substantial probative value, with the result that it would be ruled admissible under our recommendations too. Our recommendations, however, cover a far wider range of cases and people than does section 41, as they are not restricted to complainants, nor to sexual cases, nor even to witnesses.

D is charged with rape. He wants to ask the complainant about her convictions for possession of unlawful drugs. It is not "sexual behaviour" so section 41 does not apply. He will, however, have to obtain leave under clause 4 or 5 of our draft Bill.

D is charged with indecent assault. He says the complainant consented. He wants to question the complainant about his sexual experiences with a mutual friend. He will have to obtain leave under section 41(3) of the 1999 Act. If, and only if, evidence of those sexual experiences count as "bad character" then he will have to obtain leave under clause 4 or 5 of our draft Bill as well.

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Note 1   Viscount Sankey LC described it as “one of the most deeply rooted and jealously guarded principles of our criminal law” in Maxwell v DPP [1935] AC 309, 317.    [Back]

Note 2   With the exception of complainants in “sexual offences”: see para 2.69 above.    [Back]

Note 3   Sweet-Escott (1971) 55 Cr App R 316, 320, per Lawton J.    [Back]

Note 4   See Archbold para 8–138.    [Back]

Note 5   Harris v Tippett (1811) 2 Camp 637.    [Back]

Note 6   Thomas v David (1836) 7 C & P 350.    [Back]

Note 7   Criminal Procedure Act 1865, s 6.    [Back]

Note 8   Brown and Hedley (1867) LR 1 CCR 70.    [Back]

Note 9   Expert medical evidence is admissible to show that a witness suffers from some disease, defect or abnormality of mind which affects the reliability of his or her evidence: Toohey v Metropolitan Police Commissioner [1965] AC 595.    [Back]

Note 10   Kalia (1974) 60 Cr App R 200; Maynard (1979) 69 Cr App R 309.    [Back]

Note 11   Flynn [1972] Crim LR 428.    [Back]

Note 12   Brown (Milton) [1998] Cr App R 364.    [Back]

Note 13   Hobbs v Tinling [1929] 2 KB 1, 51, per Sankey LJ.    [Back]

Note 14   See para 9.3 above.    [Back]

Note 15   The Code of Conduct of the Bar of England & Wales, para 708(g), reads: “[Counsel] must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person”. This Code does not, however, bind the courts: McFadden (1976) 62 Cr App R 187. The Law Society’s Code for Advocacy replicates these provisions at para 7.1(e) and (f).    [Back]

Note 16   At para 12.92.     [Back]

Note 17   This is Zuckerman’s term. What he calls “probative credibility” we called “specific credibility”. See A Zuckerman, The Principles of Criminal Evidence (1989) p 248    [Back]

Note 18   Since repealed: see para 2.69 above. Section 2(1) of the Sexual Offences (Amendment) Act 1976 provided that “no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant” unless the court gives leave. Section 2(2) specified that leave should be given “if and only if” the judge was satisfied “that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”    [Back]

Note 19   Para 12.118 and provisional proposal 35(D) in Part XVI.     [Back]

Note 20   In fact, the terms of reference ask the Commission to “consider the law of England and Wales relating to … evidence of previous misconduct in criminal proceedings; and to make appropriate recommendations, including, if they appear to be necessary in consequence of changes proposed to the law of evidence, changes to the trial process.” There is no explicit restriction to previous misconductof the defendant.    [Back]

Note 21   Jenny McEwan, “Law Commission Dodges the Nettles in Consultation Paper No. 141” [1997] Crim LR 93, 102.    [Back]

Note 22   Eg, if it is part of the defence case that a witness for the prosecution is the culprit, the advocate may initially argue that evidence of the witness’s character is relevant to his or her credibility, so attracting the test of enhanced relevance. However, the advocate could argue that the witness’s character is directly relevant to a fact in issue, in which case the enhanced relevance requirement would not bite. The difference an analysis can make is illustrated also by Edwards [1991] 1 WLR 207. It was argued that the confession obtained from the defendant was fabricated, and in order to support this contention the defence sought to adduce evidence of how the police officers had fabricated confessions in other cases. On one analysis it is the defendant’s credibility which is in fact at stake, namely the credibility of his evidence that he never made the confession, and in that event a test of enhanced relevance limited to attacks on a witness’s credibility would not be applicable. But if the officers are cross-examined on the existence of the confession, which they presumably were, then the evidence of what happened in the other cases reflects on their credibility, and so the test would be satisfied.    [Back]

Note 23   The concept of the “central set of facts” is explained at paras 8.26 – 8.28 and 8.31 above.    [Back]

Note 24   R Eggleston, Evidence, Proof and Probability (2nd ed 1983) p 77.    [Back]

Note 25   Clause 39(1). Additional rules apply if the person whose truthfulness is in issue is a defendant in criminal proceedings.    [Back]

Note 26   Propensity evidence which the prosecution seeks to adduce about a defendant must be about acts or omissions that are prima facie those of the defendant, relate to an issue in dispute, and have a “probative value … which clearly outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant” (cl 45). Clause 46 contains the restrictions on evidence of a complainant’s sexual experience.    [Back]

Note 27   ALRC Interim Report No 26 (vol I), para 799.    [Back]

Note 28   [2001] UKHL 25, para [27]. See also A Zuckerman, The Principles of Criminal Evidence (1989) pp 271–275.    [Back]

Note 29   We address the second of these questions at paragraph 9.19 below.    [Back]

Note 30   ALRC Interim Report No 26 (vol I), para 799.In its Final Report, the ALRC proposed a general exclusionary rule prohibiting the use of evidence of character, reputation or conduct, or tendencies to prove a tendency (cl 86), with an exception for evidence of conduct, and a general rule for evidence of credibility, limiting it to evidence of substantial probative value (cl 96(2)).    [Back]

Note 31   Ibid, para 807 ff.    [Back]

Note 32   See, eg, S Lees, Carnal Knowledge: Rape on Trial (1995) pp 136–142, 192–3, and 249. See also Paul Rook, The English Crown Court for examples of cross-examination at Wood Green Crown Court, and Helena Kennedy QC, Eve Was Framed (1992) ch 5. We note that only one respondent expressly doubted that this problem exists.    [Back]

Note 33   Professor Temkin writes: “In the Home Office study, barristers considered that ‘the defence has little choice but to seek to undermine the credibility of the complainant’”, referring to A Question of Evidence? Investigating and Prosecuting Rape in the 1990s (1999) Home Office Study 196, p 36: J Temkin, “Prosecuting and Defending Rape: Perspectives From the Bar” Jo Law and Society 27(2) (2000) 219-48, 234. She also cites a report from the Scottish Office which found the same approach: G Chambers and A Millar, Prosecuting Sexual Assault (1986) Scottish Office Central Research Unit.    [Back]

Note 34   A [2001] UKHL 25, para [28].    [Back]

Note 35   Consider the case of Eccleston [2001] EWCA Crim 1626, where the witness was not a complainant. Her evidence supported that of the complainant in one important respect. It was not put to her that she was lying. The defence appealed on the basis that the conviction was not safe because the witness’s convictions for loitering as a prostitute, use of a controlled drug, and theft were not adduced. The Court of Appeal held that they made no difference because they were of only marginal relevance, but might she not have been deterred from giving evidence if she had thought they would be brought out in open court?    [Back]

Note 36   See the guiding principle at para 5.20 above.    [Back]

Note 37   As described in debate by Dale Campbell-Savours (MP for Workington): Another important question is whether the witnesses were treated equally. Why was J [the complainant] given anonymity, whereas the character of the only other eye-witness [a witness for the defence] was torn to shreds before the jury? Hansard (HC) 5 March 1998, col 1277. The complainant was protected from certain kinds of questions by s 2 of the Sexual Offences (Amendment) Act 1976, but this protection did not extend to the eye-witness. The verdict depended on whether the jury believed the complainant or the eye-witness.    [Back]

Note 38   See our recommendation that a court should give its reasons, at para 17.15 below.    [Back]

Note 39   See para 3.4 above.    [Back]

Note 40   See, eg, Breen [2001] EWCA Crim 1213 in which it was made quite clear that D was not entitled to adduce evidence of a defence not recognised in English law.    [Back]

Note 41   [2001] UKHL 25.    [Back]

Note 42   See paras 3.29– 3.35 above.    [Back]

Note 43   .[2001] UKHL 25, para [46], per Lord Steyn.    [Back]

Note 44   Any Bill that is presented to Parliament has to be certified by a Minister as compatible with the Convention rights: HRA 1998, s 19. It does not have to be compatible without recourse to s 3 for the purpose of certification    [Back]

Note 45   [2001] UKHL 25, para [34], per Lord Steyn.    [Back]

Note 46   See para 2.5 above.    [Back]

Note 47   This recommendation is given effect by cl 5 of the draft Bill.    [Back]

Note 48   See Part X below.    [Back]

Note 49   This recommendation is given effect by cl 4 of the draft Bill.    [Back]