Campbell v R

Prior to the Criminal Justice Act 2003 it was rare for a jury to be given details of a defendant’s previous criminal record. Since that Act has come into force it has become much more common. There have been a number of appeals in relation to the direction given by the judge to the jury in relation to a defendant’s previous convictions. This is another such case. Two previous convictions of the appellant were placed before the jury. The appellant contends that his conviction is unsafe because the judge gave the jury a direction in relation to the relevance of his previous convictions that was not appropriate. This appeal raises not only the question of the approach of the trial judge when summing up in relation to previous convictions. It raises the more general question of the approach of the trial judge and of this court to directions that deal with what are essentially matters of common sense.

On 7 September 2006 in the Crown Court at Reading before HH Judge Risius the appellant was convicted of one offence of false imprisonment and one offence of assault occasioning actual bodily harm. On 30 November 2006 he was sentenced by Judge Risius in respect of the first offence to an indeterminate sentence for public protection pursuant to section 225 of the Criminal Justice Act 2003, with a minimum term to be served before being considered for release of 2 years. 208 days on remand was ordered to count towards this sentence. No separate penalty was imposed in relation to the second offence. The appellant was granted permission to appeal against conviction by Eady J.

At the end of the hearing we dismissed the appeal. The following are our reasons for doing so.

The complainant’s evidence was that she lived in a one bedroom house in Reading. She met the appellant through a former girlfriend of his and he would visit her house to take drugs with her. Several other people were staying there. The relationship with the appellant was, at times, sexual, but she found him frightening. In the middle of March 2006 the appellant gained access to her house by kicking down the door and then moved a television set and a commode into her bedroom. He told her to remain in that room and she did so because she was frightened of him. The next day she attempted to leave her house, but he dragged her back by her hair. He left the house occasionally for short periods and, on Friday 17 March, went to the Doctor’s surgery, which was, however, within sight of the flat, so that she was too frightened to leave then.

That evening, when the appellant was asleep, the complainant enlisted the help of a friend and ran away to the house of another friend, Declan, where she stayed the night. The appellant arrived at Declan’s house on the evening of 18 March, very angry. He dragged her into the hall by her shoulders, catching her neck and the back of her head against a fire extinguisher. He then banged her head against the wall and tried to strangle her. The police were called but she did not at that stage complain of any injuries. The following day, however, she attended the police station and reported the appellant’s behaviour. The police noticed scratches on her neck and found blood in the hall of Declan’s house. The complainant declined to submit herself to a medical inspection.

The appellant gave evidence. He confirmed that the complainant was his girl friend and that they smoked crack cocaine together. He said that he had been sleeping at her flat but spent the days away from the flat. He had never done anything to prevent the complainant from leaving the flat. There had been no arguments and no violence. He had visited the Doctor, two blocks away, on the 17 March. The complainant left on her own accord to go to Declan’s. The complainant’s allegations of assault and false imprisonment were invented.

The 2003 Act makes lengthy provision for the circumstances in which evidence of a defendant’s bad character is admissible:

“101 Defendant’s bad character

(1)

In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if –

(a)

all parties to the proceedings agree to the evidence being admissible,

(b)

the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it,

(c)

it is important explanatory evidence,

(d)

it is relevant to an important matter in issue between the defendant and the prosecution,

(e)

it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,

(f)

it is evidence to correct a false impression given by the defendant, or

(g)

the defendant has  made an attack on another person’s character.

(2)

Sections 102 to 106 contain provision supplementing subsection (1).

(3)

The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(4)

On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.

…

103 ‘Matter in issue between the defendant and the prosecution’

(1)

For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include-

(a)

the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(b)

the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

(2)Where subsection (1)(a) applies a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of-

(a)

an offence of the same description as the one with which he is charged, or

(b)

an offence of the same category as the one with which he is charged.

(3)

Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case.

(4)

For the purposes of subsection (2)-

(a)

two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms;

(b)

two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.

(5)

A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(6)

Only prosecution evidence is admissible under section 101(1)(d).”

The appellant has many previous convictions, starting with one for criminal damage in 1984. These include offences of violence and a number of offences of dishonesty. The Crown sought and obtained permission from the judge to adduce evidence of only two previous offences. The first was a conviction on 8 November 2002 for actual bodily harm to Janet Williams, a former girlfriend. The second was a conviction on 22 September 2004 for battery of his then current girlfriend, Susan Addison. His conduct on those occasions included hair pulling, grabbing by the throat and strangulation. He pleaded guilty on each occasion. The ground upon which permission was sought and given to adduce this evidence was that it showed a propensity to commit acts of violence towards women and was thus admissible pursuant to section 101(1) (d) of the Act. Although the admission of this evidence was opposed at the time, the judge’s decision to admit it was not challenged before us.

The judge started his summing up by directing the jury as to the relevant law, dealing with the burden and standard of proof and the ingredients of the offences with which the appellant was charged. He then went on to give the jury directions as to the relevance of evidence that they had heard in relation to the bad character both of the appellant and of the complainant. Those directions were as follows:

“Next, a word about Mr Campbell’s character.  You have heard evidence that he has a bad character in the sense that he has a criminal conviction from 2002 for assaulting someone called Janet Williams, thereby causing her actual bodily harm, and another conviction from the year 2004, this time for the offence of battery.  ‘Battery’ is another word for an assault where physical contact is made but which does not necessarily cause injury, and that was in relation to another woman called Susan Addison.  It is important that you should understand why you have heard this evidence and how you may use it.  As I will explain in a little more detail in a moment, you must not convict Mr Campbell only because he has a bad character.  The reason you heard about these convictions is because it might help you to resolve an issue that has arisen between him and the prosecution – namely whether or not he has a propensity, or a tendency, to be violent towards women.  The prosecution says he does have such a tendency; he says he does not.  You may therefore use the evidence of those two previous convictions to resolve that particular issue if you find it helpful to do so.  You may also use the evidence of those two convictions in the following ways: first, if you think it right, you can take them into account in deciding whether or not his evidence to you yesterday was truthful.  A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so.  You must decide to what extent, if at all, his character helps you when judging his evidence.  Further if you think it right to do so, you may take the evidence of those convictions into account when deciding whether or not he committed the offences against Miss Lee with which he is now charged, but I emphasise that it is for you to decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty.  Bear in mind that his bad character cannot by itself prove that he is guilty, and so it would be quite wrong to jump to the conclusion that he is guilty just because of his bad character.

Then a word about Miss Lee’s bad character, which is along similar lines.  You heard about her bad character, too, not in the sense of any previous convictions but in the sense that she has an admitted history of abusing illegal drugs, both crack cocaine and heroin.  The reason you heard about that is because both Mr Bendall and Mr Fortson agreed that you should because her history was really part and parcel of the evidence in this case.  When considering Miss Lee’s evidence and whether it was truthful, bear in mind that although a woman with a history of serious drug abuse may as a result be less likely to tell the truth, it does not follow that she is incapable of telling the truth, and once again it is for you to decide to what extent, if any, the evidence of bad character helps you when assessing her evidence.”

The latter, general, part of the direction in relation to the appellant’s bad character accorded with a specimen direction published by the Judicial Studies Board, with the advice that it could be used “in any case”. The writer of the direction added this note:

“The writer’s view is that evidence of bad character may be admitted to impugn (or bolster) the credibility of a defendant and/or to show that the defendant is more (or less) likely to be guilty through any of the ‘gateways’ provided by section 101(1), depending of course on the evidence and issues in the particular case”

The judge gave the jury the following short direction in relation to the credibility of the witnesses:

“Just a couple more things.  The credibility of the witnesses you have heard is, you may feel, a particularly important aspect of this case, because the accounts given to you by Miss Lee and Mr Campbell are so different that they cannot, you may agree, be explained in any way except that at least one of them must have given deliberately untruthful evidence.  As I have already told you, the credibility of the witnesses is a matter entirely for you, which witnesses struck you as being truthful and reliable, how a particular witness stood up to the test of cross-examination.  Bear in mind that people can make mistakes, bear in mind, too, that evidence includes the demeanour of the witness – in other words, their manner and their appearance in the witness box.  The question you should ask yourselves is whether the witness is done his or her best to assist you in arriving at true verdicts.”

The jury retired to consider their verdict at 1.05 pm. At 3.35 pm they sent a note with two questions. The second was as follows:

“What was the significance of revealing the defendant’s two previous assault convictions? Anything else we should know?”

The judge discussed with counsel how he should answer this question. It was agreed that the judge should direct the jury that there was nothing else that they should know. The judge suggested that he should repeat the direction that he had previously given in relation to character, observing that while it may not have been very clear the first time, it was very much in the standard terms. Mr Fortson, who was acting for the appellant, agreed that this was the appropriate response because “elaboration will simply get us into difficulty”. After the judge had repeated his earlier direction and the jury had retired again, Mr Fortson raised the question as to whether it had been appropriate for the judge to include the direction that the jury could take the appellant’s bad character into account when deciding whether he had been truthful. That is the question that is raised on behalf of the appellant by this appeal.

The primary ground of appeal advanced by Mr Fortson was as follows. The fact that the appellant had two previous offences of violence, to which he had pleaded guilty, had no bearing on his propensity to tell the truth. The judge should not have directed the jury that his previous convictions might have relevance to his credibility. This material misdirection rendered the jury’s verdict unsafe, having particular regard to the fact that they had returned to seek additional guidance in relation to the appellant’s evidence of bad character.

Mr Fortson sought to buttress this proposition by a submission that was a little more complex. Section 101 of the 2003 Act sets out a number of different ‘gateways’ through which evidence of a defendant’s bad character can be admitted. In directing the jury as to the relevance of such evidence, the judge should have regard only to the gateway through which the evidence was introduced, or any other gateway through which the evidence could have been introduced. Thus he argued that if evidence was introduced under section 101(1)(g) it could only be used by the jury to show propensity to offend as charged if it also satisfied the requirements of section 101(1)(d). In the present case the evidence was introduced under section 101 (1)(d). The ‘important matter in issue’ was whether the appellant had a propensity to commit offences of the kind with which he was charged. The evidence had not and could not have been introduced because it bore on the question of whether the appellant had a propensity to be untruthful. It followed that the judge should not have directed the jury that it was open to them to treat the evidence as bearing on his credibility.

In support of his submissions, Mr Fortson referred us to the judgment of this court, delivered by Fulford J, in R v Meyer [2006] EWCA Crim 1126. The appellant in that case had been convicted of causing grievous bodily harm with intent. He had struck the victim’s face with his fist, fracturing his cheekbone, and asserted that he had done so in self defence. An important issue of fact was whether he had a stone in his clenched fist when he struck the blow. Evidence was given that the appellant had two recent previous convictions, one for unlawful wounding and one of causing actual bodily harm. He had pleaded guilty to both offences. The judge gave a bad character direction that included a direction that this was potentially relevant to credibility. This was in the same terms as the direction given by Judge Risius – the JSB specimen direction.

 At the start of his judgment Fulford J recorded that it was agreed between prosecution and defence that the previous convictions were not relevant to the appellant’s credibility. Later he commented that once evidence of bad character was admitted it was incumbent on the judge to give the jury a careful and focused direction as to its true relevance. As to this, he commented:

“In our judgment it is clear, as Mr Wainwright has submitted, the convictions of this appellant did not establish a propensity on his part to be untruthful.  However, the judge did not suggest to the jury that they did or that they could be used for that purpose.  Instead the judge directed the jury that they were relevant to the appellant’s credibility.  In other words he suggested that a person with this particular bad character may be less likely to be honest/believable than a person of good character.  Whilst it is undoubtedly the case that once bad character is introduced properly via one of the gateways created by section 101 it can have relevance (in appropriate circumstances) to issues beyond those that led to its admission, in this case it is difficult to understand how these convictions for violence (in relation to which the appellant had entered guilty pleas) could be said to have any meaningful impact on his credibility.

…

The appellant’s truthfulness was a central issue in the case, but these convictions would not have assisted the jury in reaching conclusions on that matter.  Guilty pleas to these convictions for violence could not be said to be relevant to his credibility and therefore on the facts of this case we consider it inappropriate for the judge to have given this direction. (We interpolate to note that when on 29^th April 2005 the judge delivered his ruling on the prosecution’s application to admit the convictions, his reasons for admitting them related solely to their tendency to prove a propensity/a greater likelihood on the appellant’s part to commit offences of this kind.)”

Mr Fortson submitted that the present case was on all fours with Meyer. The judge’s direction on credibility was inappropriate and the appeal should be allowed.

Before 2003 it was unusual for a jury to be told of a defendant’s bad character. When they were, directions in relation to that character were a problem area.  This was because of a reluctance to permit the jury to draw natural inferences from the fact that the defendant had previous convictions. The reason for that reluctance was concern that, unless restrained by the direction of the judge, the jury would attach more significance to the defendant’s bad character than it merited.

Section 1(f) of the Criminal Evidence Act 1898 permitted cross-examination of a defendant who gave evidence as to his previous convictions or bad character in specified circumstances, the most common being if he attacked the character of a prosecution witness. In that event the judge was required to direct the jury that the defendant’s previous convictions were relevant only to his credibility; they were no indication that he was more likely to have committed the offence with which he was charged. Such a direction was contrary to common sense, particularly where the previous convictions showed a propensity to commit the very type of offence with which the defendant was charged.

The duty to give such a direction contrasted with the duty of the judge, where a defendant had a good character, to direct that good character not merely made it more likely that the defendant was telling the truth but made it less likely that he had committed the offence with which he was charged. Although the latter was no more than common sense that one might have expected a jury to be capable of applying without assistance, failure to give either limb of the direction automatically resulted in the quashing of a conviction.

This lamentable state of affairs kept the Court of Appeal and, not infrequently, the House of Lords, busy with appeals against jury directions in respect of character. It is an extreme example of the way that directions that are desirable by way of assisting the jury to draw logical conclusions from the evidence have become treated as if they are mandatory requirements of law.

This often occurs in the following way. The Court of Appeal criticises an aspect of a judge’s summing up and suggests an alternative direction that would have been appropriate. The Judicial Studies Board then incorporates this suggestion in a specimen direction. Thereafter, if the specimen direction is not given, this is treated as a defect in the summing up that warrants permission to appeal and has, on occasion, been treated in this court as rendering the conviction unsafe without considering whether the jury would have reached the same conclusion by the application of common sense to the evidence, whether or not the specimen direction was given. Failure to give a direction that is no more than assistance in applying common sense to the evidence should not automatically be treated as a ground of appeal, let alone as a reason to allow an appeal.

The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.

We reject Mr Fortson’s submission that the jury can only use evidence of bad character for a particular purpose if it could have been introduced through the relevant gateway. Once the evidence has been admitted through a gateway it is open to the jury to attach significance to it in any respect in which it is relevant. To direct them only to have regard to it for some purposes and to disregard its relevance in other respects would be to revert to the unsatisfactory practices that prevailed under the old law.

Lord Woolf CJ made plain that it was open to the jury to use character evidence, once admitted, in any respect in which it was relevant when giving the judgment of this court in R v Highton and others [2005] EWCA Crim 1985; [2005] 1 Cr App R 7. In each of the three appeals before the court evidence of the appellant’s bad character had been ruled admissible under section 101(1)(g) of the 2003 Act on the ground that the appellant had attacked the character of another person. It was, as we understand it, argued for each appellant that the jury should have been directed that this evidence could only be used in relation to credibility, rather than as evidencing a propensity to commit the offences charged or to be untruthful. In short, reliance was placed on the old approach to character evidence. Lord Woolf swept this away with the following short but important paragraph:

“We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted.  The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted.  It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted.  That is not true, however, of all the gateways.  In the case of gateway (g), for example, admissibility depends on the defendant having made an attack on another person’s character, but once the evidence is admitted, it may, depending on the particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged.”

What should a jury’s common sense tell them about the relevance of the fact that a defendant has, or does not have, previous convictions? It may tell them that it is more likely that he committed the offence with which he is charged if he has already demonstrated that he is prepared to break the law, the more so if he has demonstrated a propensity for committing offences of the same nature as that with which he is charged. The extent of the significance to be attached to previous convictions is likely to depend upon a number of variables, including their number, their similarity to the offence charged and how recently they were incurred and the nature of his defence.

In considering the inference to be drawn from bad character the courts have in the past drawn a distinction between propensity to offend and credibility. This distinction is usually unrealistic. If the jury learn that a defendant has shown a propensity to commit criminal acts they may well at one and the same time conclude that it is more likely that he is guilty and that he is less likely to be telling the truth when he says that he is not.

Section 101 (1) (d) of the 2003 Act renders admissible bad character evidence where it is ‘relevant to an important matter in issue between the defendant and the prosecution’. Section 103 (1)(b) provides that matters in issue between the prosecution and defence include ‘the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect’. It will be comparatively rare for the case of a defendant who has pleaded not guilty not to involve some element that the prosecution suggest is untruthful. It does not, however follow, that, whenever there is an issue as to whether the defendant’s case is truthful, evidence can be admitted to show that he has a propensity to be untruthful.

The question of whether a defendant has a propensity for being untruthful will not normally be capable of being described as an important matter in issue between the defendant and the prosecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal of criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a defendant has lied to the jury is not likely to help them. If they apply common sense they will conclude that a defendant who has committed a criminal offence may well be prepared to lie about it, even if he has not shown a propensity for lying whereas a defendant who has not committed the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies. In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on whether or not he committed the offence charged. The jury should focus on the latter question rather than on whether or not he has a propensity for telling lies.

For these reasons, the only circumstance in which there is likely to be an important  issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the context of committing criminal offences, in which case the evidence is likely to be admissible under section 103(1)(a)

The practice has developed in this country, unlike some other common law jurisdictions, of trying to assist the jury to evaluate the evidence that they have heard by giving a summary of the relevant parts of the evidence and directions as to how to approach the evidence which are essentially matters of common sense. In such circumstances it is plainly desirable to give the jury a direction in respect of character evidence. In R v Hanson and others [2005] EWCA Crim 824; [2005] 2 Cr App R 21 the Vice-President, Rose LJ, gave guidance as to how the court should apply the provisions as to admissibility of character evidence introduced by the 2003 Act. He added:

“Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful, the judge in summing up should warn the jury clearly against placing undue reliance on previous convictions.  Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant.  In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions; that although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity  as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.  We do not purport to frame a specimen direction but the Judicial Studies Board may wish to consider these observations in relation to their helpful specimen direction No 24 on bad character.”

This general observation immediately led to appeals on the ground that the summing-up had not been complied with. This led the Vice-President to proffer further guidance in R v Edwards and others [2005] EWCA Crim 1813; [2006] 1 Cr App R 3:

“The guidance proffered in paragraph 18 of Hanson as to what  a summing –up should contain was, as is apparent, from the last sentence of the paragraph, not intended to provide a blueprint, departure from which will result in the quashing of a conviction.  What the summing-up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt.  It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision, bearing in mind that relevance will depend primarily, though not always exclusively, on the gateway in section 101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person’s character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect.  Provided the judge gives such a clear warning, explanation and guidance as to use, the terms in which he or she does so can properly differ.  There is no rigid formula to be adhered to.  That said, there is, in the case of Chohan, a summing-up by Judge Mort which seems to us to be almost impeccable and which could serve as a model in many cases where evidence of bad character is admitted.  We shall rehearse the relevant passage in that summing-up when dealing with Chohan’s application”

The summing up in Chohan, to which the Vic-President referred, was indeed exemplary. It was not simply a recital of principles but was tailored to the particular facts of the case. It drew attention to features in the defendant’s previous criminal behaviour that were alleged to have been replicated in the offence with which he was charged. It referred to both prosecution and defence counsel’s submissions on the relevance of the evidence of previous convictions and contained a very helpful warning against placing too much weight on the defendant’s previous convictions:

“If you do conclude that, at the time of these offences in May, 2003, Mr Chohan did have a propensity to commit offences of that type, namely robberies with weapons or targeting the elderly with bogus explanations to get entry into the property, then you can consider whether it makes it more likely that he committed the offences in May, 2003.  You have to decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty.  You must not convict simply because of his convictions nor mainly because of them.  The propensity or tendency amounts to some additional evidence pointing to guilt, but please bear in mind, even if he did have such a tendency, it does not necessarily prove that he would commit further offences or that he has committed these offences.”

          It also included the following direction in relation to truthfulness:

“You are also entitled to consider the evidence of Mr Chohan’s previous convictions in the following way.  If you think it right, you may take into account, when deciding whether or not his evidence to you was truthful, because a person with convictions for dishonesty may be less likely to tell the truth, but it does not follow that he is not capable of telling the truth.”

Everything that the judge said to the jury in Chohan accorded with common sense, including the last direction, for the defendant’s previous convictions were for offences which involved dishonesty. As the decision in Meyer indicates, however, such a direction will not always be appropriate and, for reasons that we shall explain, may in other cases be of limited assistance to the jury.  

The relevant Judicial Studies Board specimen directions in relation to bad character are as follows:

“1.

In this case you have heard evidence that the defendant has a bad character in the sense that he [has criminal convictions] [has otherwise mis-conducted himself].  It is important that you should understand why you have heard this evidence, and how you may use it.  As I will explain in more detail later, you must not convict him only because he has a bad character. 

2.

You have heard of his bad character because (as appropriate):

(a)

all parties to the proceedings have agreed to it;

(b)

the defendant has told you about it [and/or] asked questions [by his barrister/solicitor] that brought it up;

(c)

it may help you to understand other evidence in the case [namely…] and the case as a whole ;

(d)

it may help you to resolve an issue that has arisen between the defendant and the prosecution [namely…] ;

(e)

it may help you to resolve an issue that has arisen between the defendant and his co-defendant [X] [namely…]

(f)

it may correct a false impression [said to have been] (see Note 5) given by the defendant [namely…];

(g)

the defendant has made an attack on the character of [Y] [namely…].

3.

(Only if one or more of cases (c) to (f) above apply and, if case (f) applies, it is accepted that the defendant has given a false impression:) You may therefore use the evidence of the defendant’s bad character for the particular purpose[s] I have just indicated, if you find it helpful to do so .

4.

(Only if case (f) alone applies, and it is disputed that the defendant has given a false impression:) If you are not sure that the defendant has given you that false impression, you should disregard the evidence of his bad character altogether.  But if you are sure, you may use that evidence to correct the false impression, if you find it helpful to do so.

5.

(In any case:) You may [also] use the evidence of the defendant’s bad character in the following ways:

(a)

If you think it right, you may take it into account when deciding whether or not the defendant’s evidence to you was truthful.  A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so.  [Indeed, the defendant argues that his character means that he is more likely to be telling the truth.] You must decide to what extent, if at all, his character helps you when judging his evidence.

(and/or)

(b)

If you think it right, you may [also] take it into account when deciding whether or not the defendant committed the offence[s] with which he is not charged.  (Here summarise any arguments that arise in this connection and give any direction that may be appropriate where the prosecution rely on other similar offences or misbehaviour).  You must decide to what extent, if at all, his character helps you when you are considering whether or not he is guilty.  But bear in mind that his bad character cannot by itself prove that he is guilty.  It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character. [Indeed, the defendant argues that his character means that he is less likely to be guilty].”

We would make the following observations about these specimen directions. They direct the judge to identify the gateway or gateways through which the bad character has been admitted by reference to the wording of the Act. We question the desirability of this. It is right that in Edwards the Vice-President said that ‘it should be explained why the jury has heard the evidence’ but we think that reciting to the jury the statutory wording in relation to the relevant gateway is likely to be unhelpful. It cannot assist the jury to be told “this evidence has been admitted because it may help you to resolve an issue between the defendant and the prosecution, namely whether the defendant has a propensity to commit offences of the kind with which he is charged”.  Nor is that part of the specimen direction that relates to gateway (f) likely to assist the jury.

If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted.

In the rare case where evidence of bad character has been admitted because the question of whether the defendant has a propensity to be untruthful is an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which make that matter important.

Where evidence of a criminal or otherwise blameworthy act on the part of the defendant is adduced because it bears on a particular issue of fact and this evidence has no bearing on the defendant’s propensity to commit the offence charged, this should be made plain to the jury.

In general we do not consider it helpful to include this passage of the specimen direction:

“You may also use the evidence of the defendant’s bad character in the following ways: If you think it right, you may take it into account when deciding whether or not the defendant’s evidence to you was truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so”

The reason why this is of little assistance is not because it is not accurate but because a defendant’s lack of regard for truthfulness is, of itself, normally of limited assistance when deciding whether in the instant case he is telling the truth, as we have explained earlier.

We also question whether it is helpful to tell the jury that they can, if they think it right “take the evidence into account when deciding whether or not the defendant committed the offences with which he is charged”. The only reason that the jury have heard the evidence is that it may assist them in deciding that question and they hardly need to be told this in those terms.

It is, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.

In the present case the judge gave the jury the Judicial Studies Board’s specimen directions without relating them to the facts of the case. We doubt whether this can greatly have assisted the jury, which may explain why they came back to seek further guidance.  We do not criticise him for doing so, for he was adopting what was a common approach. But a more helpful direction would have been along the following lines:

“Members of the jury. In the old days juries were usually not told about a defendant’s previous convictions. This was because of the fear that such information would prejudice the jury against the defendant and that they would give it more weight than it deserved. Today such evidence is often admitted because a jury understandably want to know whether what the defendant is alleged to have done is out of character, or whether he has behaved in a similar way before. Of course a defendant’s previous convictions are only background. They do not tell you whether he has committed the offence with which he is charged in this case. What really matters is the evidence that you have heard in relation to that offence. So be careful not to be unfairly prejudiced against the defendant by what you have heard about his previous convictions

In the present case you have heard evidence from Miss Lee that the defendant shut her in her bedroom and would not allow her to go out. That he threatened her and frightened her. That on one occasion when she tried to escape he dragged her back upstairs by her hair. Then, when she did escape, he banged her head against a wall and tried to strangle her. The defendant says that this is all a pack of lies; Miss Lee has made it all up; he never tried to stop her leaving her flat and was not violent to her.

You can only convict the defendant if you are sure that it is Miss Lee who has been telling you the truth. When considering that you may consider it relevant that the defendant has been convicted of using violence on two previous girlfriends in the manner that you have heard. The prosecution say that this shows that he had a tendency to use violence on his girlfriends and that this supports Miss Lee’s evidence that he treated her in the same way. He, for his part, says that whatever he may have done in the past, Miss Lee’s evidence is simply invention. It is for you to decide the extent to which, if at all, the defendant’s previous convictions assist you in deciding whether Miss Lee has been telling you the truth.”

Had such a direction been given it would have conveyed more simply to the jury why the evidence of the appellant’s convictions was before them and what its potential relevance was. We should emphasise that we are not ourselves attempting to provide a specimen direction to be used in future cases. We are simply illustrating one way in which a bad character direction could helpfully have been tailored to the facts of this particular case.

The judge did not adopt this course. We do not, however, consider that his directions can have led the jury astray. For the reasons that we have given, we do not consider that it was helpful to include that part of the specimen direction that referred to a person with bad character being less likely to tell the truth, true though this may be. In Meyer the court concluded that such a direction, in circumstances where it was not appropriate, rendered the verdict unsafe. It is, however, seldom helpful to rely upon previous decisions on particular facts as if they are legal precedents.  In the present case the direction cannot have affected the jury’s verdict. Apart from anything else, the judge gave a similar direction in relation to the implications of Miss Lee’s history of drug abuse.

The reality in this case was that the appellant’s previous convictions for violence to women of a similar nature to that spoken to by Miss Lee gave cogent support to her evidence. The terms of the summing up can have had no impact on the safety of the verdict.

These are the reasons why we dismissed the appeal.