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(1) GOOD CHARACTER
Relevance and admissibility of good character
-In any crim case the D is permitted to demonstrate to the tribunal of fact that he is of good character.
-Evidence of good character is admissible as of right; both to show that:
o (1) accused is less likely to have committed the offence because he lacks the PROPENSITY to do so; AND
o (2) (where CREDIBILITY is in issue) to show he is more likely to be truthful than a person who is not of good character.
-Good character usually demonstrated by showing that D has no pre-cons.
-Rule that fairness requires judge to give the jury specific directions on relevance of evidence of good character ? Vye.
-The impact of Hunter (2015, CA) & unmeritorious claims:
o Restored law to more principled basis
CA: thoroughly reviewed good character directions;
o Said benefits of good character directions should not be extended to
Ds who, because of their convictions/cautions/misconduct do not merit being treated as of good character. Had been over-extended following Vye and Aziz.
o The question of what directions (if any) to give re Ds who are no longer entitled to a full direction ? a matter for trial judge's general discretion, based on need to ensure a fair trial.
o CA, henceforth, ret he law: only necessary to refer to Hunter, Vye and
o So Hunter now has set down the definitive law re good character
Hunter was out of sympathy with the importance accorded to good character: CA nevertheless upheld the traditional entitlement to a direction; but its scepticism may result in more likely for CA to uphold safety of a conviction despite failure of judge to direct properly re good character.
-Failure to give a direction where one is required ? NOT automatically lead to quashing of conviction as unsafe.
Meaning of 'good character'? Impact of Bad character provisions (admitted through s101 CJA 2003) on good character [[where D has no pre-cons; mixed good and bad character direction?]]
-R v Hunter & others (2015, CA): 5-judge CA held:
o the principles in Vye and Aziz hold good.
-& considered effects of admission of bad character evidence in the course of a trial of person who does not have pre-cons. ?No longer sufficient to establish good character only by showing that D has no pre-cons: D with no pre-cons may nevertheless have bad character as defined by s98 CJA 2003, by reference to his other misconduct or a disposition towards misconduct.
o CA recognised changed law on bad character evidence: is now admissible to prove propensity to offend or be untruthful, the same issues to which the good character principles are directed.
o SO bad character evidence impacts on good character directions.
Hunter: the mere fact that no evidence of bad character was tendered is
NOT of itself reason for giving a good character direction.
o ? INSTEAD, good character direction only for defendants with absolute good character or deemed effective good character.
-"(Absolute) Good character" (aka 'absolute good character') = the D has no pre-cons & no other reprehensible conduct is alleged, admitted or proven.
o Is not necessary for D to go further and prove evidence of positive good character.
-"Effective good character" - D has pre-cons that are old, spent or related to offences of a totally different character from the offence charged; thus D can be treated as if he were of good character.
-"Positive good character": D can go further than saying he is of good character and demonstrates positive good character by showing he has a reputation for it, eg charitable work.
Methods of admission of evidence of good character [not on Blackstone reading]]
-D can show good character or positive good character by following methods:
a) XX of a police officer who can confirm that D has no pre-cons;
b) Formal admissions (s10 CJA 1967)
c) Calling a character witness as part of the defence case d) EIC of D as to his character.
-D in Crown Court Trial of good character ? wants judge to give direction jury re how they should approach the fact that D is of good character.
o Judge won't give a direction unless evidence of D's character has been adduced in the court of trial.
-Defence counsel should raise the issue of a good character direction, should raise with the judge at end of the evidence and before closing speeches.
-Where Defence Counsel wants D with pre-cons to be treated as of effective good character? best to raise the issue with judge at START OF THE TRIAL;
as Counsel will need to decide whether or not to adduce evidence of D's pre-cons.
The Good Character Direction
-R v Vye; R v Wise; R v Stephenson: CA reviewed authorities re good character direction, following guidance.
o the 1st limb (credibility) is a positive feature, which should be taken into account.
o The 2nd limb (propensity) means the good character may make it less likely that D acted as alleged.
o What weight is to be given to each limb is a matter for the jury.
Judge should tailor the terms of the direction to the case; but should follow the standard direction endorsed by the Judicial College (and in Crown Court
Judge should never be compelled to give 'meaningless or absurd' directions;
nor one that is misleading or an 'insult to common sense'.
The 1st limb should not be implied from a direction under the 2nd limb, or be conveyed by a vague phrase.
When should the direction be given?
1. When D has given evidence;
2. If D has made any pre-trial statements on which he relies at trial; OR
3. If D has answered questions, eg in course of a police interview.
In ALL cases in which D
is of good character.
The jury should take into account D's good character in considering the likelihood of him having committed the offence charged.
The jury should take D's good character into account in weighing the credibility of the evidence he gave in the trial/the statements/answers he gave pre-trial.
NB: the relevance of good character to credibility is
NOT a matter for the jury;
so a direction given in the form of a rhetorical question is a fatal misdirection (R v Lloyd).
But the weight to be given to the good character of D
IS a matter for the jury.
The judge should indicate that good character cannot amount to a defence.
The direction must be given, even when D has told lies in the police interview.
The direction should generally be given where the D
has admitted to criminal conduct in the course of the trial (eg where a D
charged with murder explains his presence at the scene by saying that he was there to steal), unless it would make no sense to do so (R v
The direction should generally be given where D has admitted to criminal conduct in the course of a trial
(as above, Aziz). (1) Absolute good character
-No pre-cons + no other reprehensible conduct ? entitled to good character direction. NO need for D to go further and prove evidence of positive good character.
-Entitled to both limbs of Vye direction, no discretion of judge to refuse.
(2) Effective Good Character (spent/old/irrelevant convictions/Nye direction) ?
question of law for judge, if so gives modified Vye direction (Nye)
-An accused deemed 'of effective good character' is entitled to the full good character directions.
-Where a D has convictions which are old/spent/unrelated to offences totally different from the offence charge ? the judge must decide whether he can be treated as a person of effective good character.
-Where Defence claim effective good character; the matter is one of law on which judgment is required; it is not sufficient to ask the jury whether they consider the accused to be of good character.
-R v NYE: CA: 'the essence of this matter is that the jury must not be misled and no lie must be told'.
-So a D must give evidence re the old/spent/irrelevant convictions in the course of the trial.
-If judge rules that D is of effective good character (question of law) ? he must give full good character direction, but appropriately modified to the extent necessary to reflect the matters that preclude the accused being of absolute good character.
o i.e. jury must not be misled into thinking that D has no pre-cons;
direction will be modified to allude to the existence of previous offences.
-Then the judge can give an appropriately modified good character direction ;
in which jury are told that they should treat the D as a man of effective good character.
-Where appropriate, judge can draw attention of jury to the length of time that has elapsed since the last conviction; and the accused's good character during that period.
-A person of effective good character is entitled to BOTH parts of good character direction (re propensity and credibility):
o It follows that (from Hunter): a person who is not entitled to both parts of direction is NOT of effective good character ? he falls into categories of person who character will be dealt with in the discretion of the court.
o (whereas before Hunter it was possible for D to be treated as entitled to either part of a good character direction but not the other).
Deciding whether of effective good character ? impact of previous offences:
-Hunter ? if pre-cons/cautious have no relevance, D cannot automatically be treated as of effective good character, even if the convictions/cautious are also old and minor instances of offending. ??????
o Judge should consider all circumstances of the offence and offender;
and decide what 'fairness' dictates.
o Rejection of notion that absence of relevant convictions = automatic good character
D not automatically entitled to be effective good character simply because previous offending is irrelevant.
o Factors whether pre-cons are old/minor/irrelevant.
Cautions (even minor ones) cannot be ignored re calculating effective good character; it is essential that jury are not misled by any claim made by the accused.
Accused cannot conceal the fact he has been found guilty by a foreign court where its findings are not regarded as 'convictions' until confirmed on appeal.
But the issuing of a Penalty Notice for disorder (PND) should be kept from jury when giving a good character direction. Doesn't involve either proof of the commission of a crime, nor admission that a crime has been committed.
Where a warning has been issued by a foreign authority -? essential that the court understands its status before determining its effect.
Re an old binding-over order: an inquiry may need to be conducted before treating this as an impediment to a good character direction (as the significant of such order has changed over time, and might have been imposed without evidence of misconduct).
Is part of prosecution's onus of proof to establish the impediment to the direction to which accused is otherwise entitled.
Cannot be explicit re what minor blemishes an accused may have but still be deemed effective good character.
Hunter: all decisions are fact-specific
Minor offending/misconduct which no relevant to credibility OR propensity
-is unlikely to impede a finding of effective good character (eg minor motoring conviction irrelevant where charged with sexual assault).
More difficult: cases of old convictions/cautions, which are relevant (either to credibility or propensity) BUT of little weight: If old, and strong evidence of good character since, the old conviction/caution might not impede effective good character.
Remember direction will be modified to allude to the existence of the previous offences; so jury are not misled.
(3) Accused who are not of good character [[no pre-cons, but other bad character]]
Where Defence itself admits previous convictions/cautions (under s101 CJA) ?
Admissibility by Defence of evidence of bad character evidence (of convictions/cautions of D) (who is not of effective good character) ?discretion to give modified good character direction
-An accused judged not of effective good character; & who has convictions/cautions, is still entitled to adduce them himself under s101(1)
(b) CJA, where they are relevant, eg to pave the way for an argument that he has no record for offences of the type charged. ???Hunter -> discretion of judge to give a modified good character direction to such an accused; 'fairness' may well suggest that a direction would be appropriate but not necessarily'.
Judge has broad discretion whether to give any part of the direction, and if so on what terms.
Where evidence of previous misconduct is so adduced by the defence, and is not relied on by Prosecution as evidence of guilt ? it has been said to be wrong to direct a jury that the evidence can be used to provide support for the prosecution case. If correct, this rule must be based on fairness rather than logic (if the evidence has a rational connection to guilt).
But it does not follow that the jury should be warned against drawing a rational inference, if it thinks the adduced misconduct might be relevant to the offence charged.
Notice required when bad character evidence is adduced by the Defence :
CrimPR 21.4 ? notice should be given as soon as reasonably practicable; and in any event before the evidence is introduced.
In Crown Court, such a D should also, at same time, give notice of any direction he seeks regarding his character.
Accused with no convictions/cautions whose other misconduct is relied on by the prosecution (under s101 CJA) ? judge must give bad character direction; but discretion to weave with a modified good character direction, if not absurd
-Accused with no pre-cons/cautions, but other misconduct relied on by prosecution as part of their case ? will attract a 'bad character direction'
-Where evidence of bad character has been heard by the jury ?> the judge is obliged to give a bad character direction in summing up (see below).
o ? Trial judge has a discretion to weave into the bad character direction, observations about D's residual good character;
o The judge may consider that, as a matter of fairness, they should weave into the bad character direction a modified good character direction, to take account of the fact that there are no pre-cons recorded against the Defendant.
-UNLESS to do so would render the totality of the direction an ABSURDITY
(the 'absurdity principle', Aziz).
o In some cases, giving both directions together would result in absurdity ? in those cases, there is a broad discretion for judge to decline to give a good character direction.
o Judge should never be obliged to give a 'meaningless/absurd'
o Eg absurdity principle, no good character direction appropriate despite no pre-cons:
o Eg where an accused, with no pre-cons, is nonetheless shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged; in such a case, a good character direction would be a charade. ?
o Eg, significant admission of dishonesty in relation to the subjectmatter of the charge;
o Eg where accused admitted being a member of an armed group that had sought to punish the victim but denied killing him;
o Where accused admitted lying to and grossly misleading the police.
Hunter: the judge's discretion (re whether or not to omit good character into) is wide, is about fairness.
Joint trials [NOT on Blackstone reading]
-Where a person of good character is jointly tried with Ds who are not of good character ? he is still entitled to a full good character direction.
o Judge will have to decide what, if anything, to say about the character of the other Defendants.
-A D who is not of good character, whose case is joined on an indictment with a D who is of good character ? may fear that he will be adversely affected if his co-defendant has the benefit of a good character direction and he does not.
o Remedy = to seek severance (though in general defendants jointly charged will be tried together)
NB: very good summary of the types of direction:
SUMMARY, types of direction (good character)
o (1) Credibility limb: direction as to relevance of D's good character to
D's credibility, only IF:
-(a) D has given evidence; or
-(b) if D does not give evidence but relies on own pre-trial mixed statements/answers
(2) Propensity limb (ALWAYS given): direction as to relevance of D's good character to the likelihood of him having committed the offence charged (always given).
o Where D of good character
D of positive good character
o Applies if judge decides D is of effective good character, where:
-D has pre-cons; AND
-Those pre-cons are irrelevant/old/spent; AND
-Fairness demands that D be treated as if no pre-cons
= a modified Vye direction: give both limbs; but cannot mislead jury into thinking D has no pre-cons
a matter for judicial discretion whether of effective good character
-WHICH DIRECTION will D get?
o (1) Absolute good character ? Vye:
-If D is of good character;
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