ABSTRACT
The common law recognised two different ways in which evidence of character could be relevant. First, it could make allegations against a defendant more likely to be true. Evidence of a defendant’s bad character was admissible in order to support the allegations made against him, whether in civil or criminal proceedings, if it could be said to fall within the scope of what was called ‘similar fact evidence’. Conversely, at least in criminal proceedings, evidence of a defendant’s good character could be adduced in order to show that the allegations made against him were less likely to be true.1 Secondly, in relation to any witnesses in either civil or criminal trials, evidence of bad character could be relevant to credibility; so also could the good character of a defendant in a criminal trial. The theory behind this was that a conviction for any offence was relevant to the credibility of a witness because of what it was supposed to reveal about the moral character of that person. For example, in Clifford v Clifford,2
Cairns J said, ‘It has never, I think, been doubted that a conviction for any offence could be put to a witness by way of cross-examination as to credit, even though the offence was not one of dishonesty’. Witnesses in civil and criminal proceedings could therefore be cross-examined about their previous convictions in order to show that they should not be believed on their oath. This rule gave rise to special problems when defendants in criminal trials were given a general right to give evidence in their own defence by the Criminal Evidence Act 1898.3
Such a cut and dried distinction between the two types of relevance – relevance to ‘issue’ and relevance to ‘credit’ – was not always easy to maintain. Nevertheless, the common law did its best, and came in for some criticism in consequence.
