Guidance on answering the questions in the book: Chapter 17

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) 12th ed pp 491 and 496-497). 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 12th ed p 495.
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 12th ed 495). 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 12th ed p 506). 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.
Hunter clarified 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 12the ed p496-497. 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.
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.
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 12th ed p 497). 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 12th ed p 498 and footnote 58).
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 subject to the absurdity principle (akin to a ‘combined’ good and bad character direction of the type suggested in R v Doncaster, see MLE 12th ed p498 and footnote 61). It is difficult to reconcile this with what Hunter says about the entitlement to a good character direction arising only where an accused guilty of misconduct is treated as being of effective good character. This will only occur where the misconduct is old, minor or irrelevant. If evidence of an accused’s bad character is admitted by the prosecution, then it is not old, irrelevant or minor, and it is difficult to see how there can be a basis for weaving in a good character direction.
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 MLE 12th ed p 501 and R v Olu [2011] 1 Cr App R 405 (33) at foot note 80). 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.