In essence when an individual is put on trial it’s not just what is alleged against them in the spotlight but also them as a person. The Court will be asking themselves whether that individual is the type of person to commit the crime(s) in question.
Whilst a history of bad character is not necessary to secure a conviction it is arguably very persuasive evidence, especially if the earlier behaviour strongly mirrors that for which the defendant is currently on trial for.
A lot of other legal jurisdictions simply do not allow this type of evidence into court citing that its inclusion is too prejudicial.
The system in England and Wales appreciates the risk of prejudicial effect but looks to balance this with the risk of not admitting evidence that could be highly probative.
The definition of what bad character constitutes is relatively wide. It relates to past misconduct not just an individual’s formal Police record.
The default position in criminal procedure is that such evidence is not admissible unless it falls within the remit of one of the permitted gateways.
There are gateways for both defendants and non-defendants meaning that evidence relating to the bad character of defendants, victims and witnesses can all be permitted into Court under the requisite conditions.
There are only three gateways of admissibility for non-defendants when compared to seven for defendants. This suggests a much more guarded response regarding allowing evidence pertaining to the bad character of non-defendants. Perhaps the rationale for this is concern about the Court getting distracted by matters that are further and further away from the matters in issue.
The admission of bad character evidence can become very important when there is more than one defendant, and they are blaming each other. Arguably and perhaps understandably the defendant with admissible bad character is more likely to be considered guilty and/or not credible in his witness testimony when compared by a co-defendant without bad character.
There is an ethical and underlying question that is beyond the scope of this post, but it does deserve personal reflections. The question is what does the admission of bad character do to the fundamental principle that a person is presumed innocent until proven guilty?
Post written by Laura Webb, Barrister, Director and Senior Tutor
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