Chapter 18 Selected guidance on approaching questions

Evidence of character: evidence of the good character of the accused
  1. Where an accused has no previous convictions or cautions and has not been guilty of past misconduct or none is alleged, he is entitled to a full good character direction, in accordance with the principles in R v Vye [1993] 1 WLR 471, CA (see The Modern Law of Evidence (MLE) 13th ed pp 540-542).  However, what is the position in respect of an accused who has no previous convictions, but has been guilty of past misconduct? In R v Aziz [1996] AC 41, HL, it was stated that a good character direction should be given in this situation, but may be qualified as appropriate and subject to a residual, narrowly circumscribed discretion to withhold a direction which would be absurd (the ‘absurdity’ principle). However, the law developed in an unsatisfactory way after Aziz. In R v Durbin, the Court of Appeal held that an accused guilty of past misconduct was entitled as of right to a qualified good character direction under the principles in Vye and Aziz. See MLE 13th ed p543.
  2. It was held in R v Hunter [2015] 1 WLR 5367, CA, which is now the leading authority on good character directions, that R v Durbin was wrongly decided and that after it, the law had taken a ‘wrong turn’, with a line of authorities misinterpreting Vye and Aziz and concluding that an accused could claim entitlement to a good character direction as of right when he was clearly not of good character (see, MLE 13th ed at pp544-545). Hunter sought to clarify the law, particularly in the light of the bad character provisions of the Criminal Justice Act 2003 (CJA 2003), which defined ‘bad character’ as ‘misconduct’ (see CJA 2003 s 98, MLE 13th ed at pp556-559).  In Hunter it was stated that as a result of the CJA 2003, the landscape of the law in relation to character evidence has changed, so that a person without convictions and cautions, but who has been guilty of past misconduct can legally be treated as someone who is of bad character.   According to Hunter, such a person has no entitlement to claim a good character direction.
  3. Hunter clarifies the meaning of good character, so that now ‘good character’, legally speaking, means someone who is of ‘absolute good character’ (no previous conviction or cautions, and against whom no other past misconduct is alleged) or ‘effective good character’ (old, minor, or irrelevant convictions, cautions or other misconduct): see MLE 13th ed at pp546-547.  In respect of ‘effective good character’, if an accused has been guilty of misconduct which is old or irrelevant, he may ask the judge to treat him as a person who is of ‘effective good character’, but the decision is entirely at the judge’s discretion and there is no obligation on the judge to treat such an accused as being of effective good character.
  4. This marks a change in the nature of the judge’s discretion, from the narrowly circumscribed discretion to withhold the direction if it offended the absurdity principle (Aziz), to a broad ‘open textured’ discretion as to whether to give the direction at all (Hunter). If the judge, in his discretion, does decide to treat the accused as being of ‘effective good character’, then he must give a favourable direction, subject to the absurdity principle. He should modify the direction to take account of the misconduct and requirements of fairness in the trial, and to ensure the jury are not misled. The upshot is that, by virtue of Hunter, a person who has been guilty of past misconduct is not entitled to a good character direction as of right.  He is only entitled to a good character direction if, as a matter of judicial discretion, he is deemed to be of effective good character.
  5. Hunter also addresses the issue of good character directions in circumstances where evidence of an accused’s misconduct is admitted as bad character under the Criminal Justice Act 2003, s 101(1) (see MLE 13th ed at pp571-572). The accused’s misconduct could, for example, be admitted by the accused himself under s 101(1), in the hope of being treated as someone who is of effective good character, or by the prosecution in support of its case. Such an accused has no entitlement to a good character direction and the judge should have regard to the overall fairness of the trial in deciding whether or not to say anything favourable about his character.  R v Styles [2015] EWCA Crim 1619, provides an example of a case where the accused adduced evidence of his own bad character and should have been given a modified good character direction, or even an effective good character direction. See MLE 13th ed at p548 and footnote 61.
  6. The decision in Hunter goes a long way towards resolving problems over the entitlement to a good character direction of an accused who has no previous convictions but has been guilty of misconduct or against whom misconduct has been alleged. However, problem areas remain in relation to an accused without convictions, but whose misconduct is admitted by the prosecution under the bad character provisions of the CJA 2003. Hunter says that in these circumstances it may be appropriate, having regard to fairness, to weave into a bad direction on the misconduct, a modified good character direction (akin to a ‘combined’ bad and good character direction of the type suggested in R v Doncaster (2008) JP 202, CA, (see MLE 13th ed at p548 and footnote 65). However, it is not easy to see how a good character direction could be woven into a bad character direction. There is a risk that such a direction could fall foul of the absurdity principle.
  7. Another issue is the practical difficulty juries will have in making sense of a direction on bad character where the judge has weaved in a modified good character direction. It would be particularly difficult for juries to follow and apply such a direction where misconduct is adduced but the accused disputes it, and absent the misconduct he would be of good character.  Case law suggests that in such circumstances, the judge should, in addition to a bad character direction, direct the jury that if they accept that the accused did not commit the disputed misconduct they should treat him as a person of good character, and further direct them to approach his good character in accordance with the principles of Vye (see also MLE 13th ed at p551 and R v Olu [2011] 1 Cr App R 405 (33) at footnote 84). Another layer of complexity is added here because juries will first have to consider whether they are sure the accused is guilty of the misconduct, before going on to consider whether, if they are sure, he can still be treated as being of good character or whether the misconduct should count more as evidence of bad character relevant to an issue in the case.

Question 2

  1. The general principles which apply to the facts of this question are contained in the following key authorities on good character directions: R v Vye [1993] 1 WLR 471, CA; R v Aziz [1996] AC 41, HL; and R v Hunter [2015] 1 WLR 5367, CA. See MLE 13th ed at pp540-549.
  2. For the purposes of the question, the relevant principles from these authorities can be summarized as follows: (a) an accused may be of absolute or effective good character; (b) he is of absolute good character if he has no previous convictions or cautions and no other reprehensible conduct is admitted or alleged; (c) if he is of absolute good character he is entitled to a full good character direction which comprises both a credibility limb and a propensity limb; (d) if he is of absolute good character but does not give evidence, he is entitled to a propensity limb direction but is only entitled to a credibility limb direction if he has made a pre-trial mixed statement which has been adduced in evidence; (e) if he has previous convictions or cautions which are old or minor and irrelevant, he can ask the judge in her discretion to be treated as a person who is of effective good character and if the judge decides to do this, she must give both limbs, but may modify them to take account of the old matters; (f) where evidence of convictions or cautions are adduced by the defence which are different to the offence charged with the aim of obtaining a good character direction on propensity, there is no entitlement to the direction, but it may be given in the discretion of the judge provided it would not be absurd.

    3. Adam

  3. Let us apply these principles to Adam’s character, first of all. Adam has one previous conviction for being drunk and disorderly and three fixed penalty notices for parking offences. He wishes to give evidence of the conviction, presumably under the Criminal Justice Act 2003, s 110(1)(b). The conviction is very old, minor and irrelevant, and he will almost certainly ask the judge to treat him as being of effective good character. And it is likely that the judge in her discretion will accede to this because it would not be absurd (see R v Hunter). In R v Benjamin [2015] 2 Cr App R 9 an accused charged with theft, was not of good character where he had a very old previous conviction for drunk and disorderly and a more recent previous conviction for assault in France. But Adam does not have any other convictions apart from the conviction for being drunk and disorderly. See MLE 13th ed at p546 and footnote 50.
  4. In respect of the three fixed penalties for parking offences, the judge is likely to disregard them completely. In R v Hamer [2011] 1 WLR 528, CA, it was held that fixed penalty notices have no effect on an accused’s good character because they do not involve an admission of guilt, nor do they prove a crime has been committed. See MLE 13th ed at p543 and footnote 32.
  5. If Adam is treated as being of effective good character (likely), the judge must give both limbs of the good character direction, namely the credibility limb and the propensity limb (see R v Vye; R v Hunter; The Crown Court Compendium (July 2019), Part 1, 11, Example 1). It is likely that the judge would tell the jury to disregard the conviction completely and give a full good character direction, without modification of any kind.

    6. Malachi

  6. Malachi appears to be of absolute good character. He has no previous convictions and there is no suggestion that he has been cautioned for anything, or that he has admitted any past misconduct, or that such misconduct is being alleged. The issue is whether he will receive the (first) credibility limb of the good character direction. He will receive the (second) propensity limb, but the problem in respect of him receiving the credibility limb of the direction is that he will not be giving evidence. But he has made statements to the police. Where an accused is of good character and is not giving evidence, but his pre-trial statements are before the jury, he should receive the credibility limb of the direction if the pre-trial statements are mixed statements. Mixed statements, although exculpatory, contain an inculpatory element capable of supporting the prosecution case in some way; e.g. ‘I was present [inculpatory] but I did not participate in the offence [exculpatory]’, the inculpatory part, which can support the prosecution case, being the admission of presence. Adam’s statements are wholly exculpatory however, so he would not be entitled to the credibility limb (see R v Aziz; R v Hunter). See MLE 13th ed at p542.

    7. Sandeep

  7. Sandeep has three motoring convictions, two for speeding and one for driving without insurance. Two are old, one is from eight years ago, and none relevant to the offence charged. He might ask the judge to treat him as someone who is of effective good character, but he would be wise to adduce the evidence of the convictions himself under s101(1)(b) of the Criminal Justice Act 2003 and come clean with the jury before doing so.
  8. Whether he should be treated as someone who is of effective good character will be a matter for the judge in the exercise of discretion, taking into account the need to be fair to all (including Adam). In R v Goss [2005] Crim LR 61, CA, it was held that irrelevant motoring convictions will not prevent an accused from being treated as a person of good character where there is no evidence of a deliberate intent by the accused to flout road traffic law). See MLE 13th ed at p543 and footnote 32.
  9. The judge might well treat Sandeep as being of effective good character, but might modify the direction in some way. If there was evidence of a deliberate intention to flout road traffic law, Sandeep would not be treated as a person of good character (this would be absurd), but the judge might still give a modified direction, perhaps withholding the first (credibility) limb, but giving the second (propensity) limb.

    10. Wayne

  10. Nothing can be said to the jury in respect of Wayne which might suggest he was of good character. To do so would not only mislead the jury, but would offend the absurdity principle (see R v Aziz and R v Hunter). Wayne is obviously not of good character. Indeed, the prosecution intend to admit evidence of his single conviction for robbery as evidence of his propensity to commit the offence with which he is charged (see the Criminal Justice Act 2003, s 101(1)(d)). In respect of Wayne, the judge will have to give a bad character direction (See MLE 13th ed at pp574-575).
Back to top