Commentary on Sections Part 11 - Evidence Chapter 1 : Evidence of Bad Character Section 106: “Attack on another person’s character”
379.Section 106 deals with evidence that becomes admissible as a result of the defendant attacking another person’s character (see section 101(1)(g)). A defendant attacks another person’s character if he gives evidence that they committed an offence (either the one charged or a different one) or have behaved in a reprehensible way – section 106(1)(a) and 106(2). This is similar to the definition of evidence of bad character in section 98 but it also includes evidence relating to the facts of the offence charged and its investigation and prosecution. Thus, a defendant would be attacking a prosecution witness if he claimed that they were lying in their version of events or adduced evidence of their previous misconduct to undermine their credibility. But a suggestion that a witness is mistaken is not intended to engage this provision.
380.A defendant also attacks another person’s character if he or his representative ask questions that are intended (or are likely) to elicit evidence of this sort or if the defendant makes an allegation of this nature when questioned under caution or on being charged with the offence and this is heard in evidence – (section 106(1)(b) and (c)).
381.Where a defendant has attacked another person’s character, evidence of his own bad character becomes admissible (but only by the prosecution – see section 106(3)). Evidence admissible on this basis may, however, be excluded under section 101(3).
382.Evidence admissible under section 101(1)(g) – as under section 101(1)(f) - will primarily go to the credit of the defendant. Currently a jury would be directed that evidence admitted in similar circumstances, under the 1898 Act, goes only to credibility and is not relevant to the issue of guilt. Such directions have been criticised and the new statutory scheme does not specify that this evidence is to be treated in such a way. However, it is expected that judges will explain the purpose for which the evidence is being put forward and direct the jury about the sort of weight that can be placed on it.