Articles Criminal Defence 1st Jul 2015

Character: The Good, The Bad And The Somewhere In-between

A five-strong constitution of the Court of Appeal, including the Lord Chief Justice and the President of the Queen’s Bench Division, has acted to limit the scope and number of good character directions in cases where the Defendant is not, strictly speaking, of absolute good character.

In a robustly worded judgment in the conjoined appeals of R v Hunter & Ors [2015] EWCA Crim 631 CA, the Court said that the “the good character principles have been extended too far”. The law, the Court held, had been taken in the wrong direction in R v Durbin [1995] 2 Cr App R 84, CA – and the problem then compounded in a string of cases which followed.

After an extensive review of case law on the topic from the 1970s and 1980s, through R v Vye [1993] 97 Crim App R 134, CA and beyond, the Court re-stated the key principles relating to the issue of ‘good character’ and, perhaps for the first time post the Criminal Justice Act 2003, considered the way in which the introduction of the character provisions under that Act have impacted on the way the issue of good character should be dealt with in front of the jury.

But did the provisions of the CJA 2003 really make such a radical alteration to the way good character directions can or should operate? Their Lordships certainly seemed to think so.

In each of the cases under consideration, the Defendant had adduced his own ‘bad character’ in evidence, under CJA 2003 s101(1)(b). Presumably, this was in an attempt to persuade the trial judge to give a modified good character direction. Yet, said the Court, “the possible impact on good character directions of s101 has scarcely been acknowledged” (para 31).

In explaining the stance taken by the Court, Hallett LJ acknowledged that where ‘bad character’ evidence – such as old or irrelevant convictions, cautions, or different conduct admitted as part of the instant proceedings, for example – is before the jury, such as under s101(1)(b) or where other ‘reprehensible’ conduct as defined under s98 has been accepted or proved – this enables the Defence to address the jury as to the likelihood of the Defendant having committed the offence(s) charged. But it also potentially requires a modification of approach to character directions.

Their Lordships had only found one referable case post CJA 2003: R v Doncaster [2008] EWCA Crim 5, CA. Hallett LJ reminded us that since the 2003 Act, as Doncaster states, applications relating to bad character have become far more prevalent (even in the absence of previous convictions) and that a modified bad character direction may be required to deal with circumstances where such bad character has been adduced in evidence but in the absence of any convictions.

Following the lead of Doncaster, this could, it seems, come in the form of the judge giving the jury a modified direction on propensity when directed as to bad character, reminding the jury of a Defendant’s lack of convictions and informing them that, in the ordinary course of events, the Defendant with no previous convictions would have been entitled to a direction that counted in his favour on the questions of both propensity and credibility. But as it was, it was for the jury to decide which counted with them more – the absence of previous convictions or the evidence of bad character: per Doncaster para 43.

Re-stating the principles in Vye and R v Aziz [1996] AC 41, the Court held that those principles had been stretched to breaking point – to the point where “Defendants with bad criminal records… or who have no right to claim a good character are claiming an entitlement to a good character direction”.

Not any more. Dismissing all of the appeals before it, the Court held that in the post 2003 climate, the law has moved on. Good character “now means far more than not having previous convictions” (para 74). Whilst it is made clear that the trial judge retains a discretion as to how to treat Defendants with perhaps minor blemishes on their character, it is plain from this ruling that the Court will give short shrift to any appeals from those with such blemishes complaining of being deprived of the benefit of even a modified Vye direction. Advocates were advised to raise the issue with the trial judge before the evidence is adduced.

The clue is in the postscript: “We have deliberately conducted a very thorough review of the case law so that it will be unnecessary in future for other courts to do the same. Reliance on this judgment, Vye and Aziz will suffice.”

The doors remain fully open only to the unblemished.

Click here for the full case.

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