Hunter & Ors v R.

These five otherwise unrelated appeals have been heard together because they each raise the same issue: namely the extent and nature of the good character direction. This is becoming a significant problem for the Crown Court and the Court of Appeal Criminal Division (the “CACD”). Hence this specially constituted five judge court.

Reporting restrictions apply to each of these appeals so that the complainants and child witnesses must not be identified.

We shall address the development of the law relating to good character directions and reach some general conclusions, before going on to apply those conclusions to each of the five appeals.

Background

The law and practice in relation to character evidence has taken some dramatic turns during the twentieth and twenty first centuries. It has long been recognised that defendants are permitted to adduce evidence of their good character relevant to their propensity to offend. It was only when defendants became competent to give evidence, pursuant to section 1 of the Criminal Evidence Act 1898, that evidence of good character was deemed also relevant to credibility. Initially, the law went no further: the evidence was admissible but there was no obligation on the trial judge to remind the jury of the evidence of good character let alone give the jury directions upon it. If the judge did choose to give directions, good character evidence was considered relevant primarily to credibility and then only where the defendant gave evidence. The practice changed as the appellate courts were confronted with a flood of appeals from defendants complaining that they had been treated unfairly by the trial judge. This culminated in the decisions in Vye and others [1993] 1 WLR 471; [1993] 3 All ER 241; [1993] 97 Cr.App.R.134 and R v. Aziz [1996] AC 41 considered the two leading authorities on good character directions.

Early developments

We begin our review of the case law with Bryant and Oxley [1978] 2 All ER 689; 67 Cr App R 157 in which the court held that, although evidence of good character went primarily to the issue of credibility, it was also capable of being relevant to propensity. The court held that the judge was wrong to direct the jury that because the defendant did not give evidence, good character had very little if any part to play in their deliberations. Nevertheless, the conviction was upheld.

Where a defendant is not of good character because he has spent convictions, the court in R v Nye (1982) 75 Cr App R.247 held that he is not entitled as of right to put himself forward as a man of good character. The trial judge has a discretion. Nye had two spent convictions on his record, one for criminal damage and one for burglary, from many years before. He was charged with assault. The judgment suggests that the members of this court would have been prepared to treat the defendant as a man of good character but did not criticise the judge for refusing to do so. The conviction was quashed on grounds other than the judge’s direction, namely the use made of the convictions at trial by the prosecution.

Berrada (1990) 91 Cr.App.R. 131 and Marr (1990) 90 Cr.App.R. 154 were appeals from the same trial judge. In both cases the judge failed to direct the jury on the significance of the good character evidence to credibility and watered down its significance. The principal ground of appeal was that the summing up in each case was unfairly weighted in favour of the prosecution and diminished the defence. The court in Berrada held that “modern practice” required that where good character is raised by the defence, the judge was obliged to deal with it in the summing up in a fair and balanced way, stressing its relevance primarily to the defendant’s credibility. Both convictions were quashed on the basis of the cumulative effect of judicial errors, which included the failure to give an appropriate good character direction. It is to be noted that by this time the second limb of the direction on propensity was not considered a standard part of modern practice.

Another decision from that same year is R v Kabariti 92 Cr App R 362. Kabariti was accused of rape and buggery. His defence was consent and credibility was therefore very much in issue. He had lied to the police but had no previous convictions. The court decided that a good character direction should have been given but upheld the conviction because the evidence was overwhelming.

Both Marr and Berrada were considered and endorsed in Buzalek and Schiffer [1991] Crim L R 116. Taylor LJ, giving the judgment of the court, acknowledged that it had become established practice that where the defendant is of good character the judge should direct the jury on credibility and in an appropriate case on propensity. However, the principle only applied where the defendant was of previous good character ‘in the proper sense’. If a defendant had been dishonest he could not be regarded as man of good character. Both Buzalek and Schiffer had admitted dishonesty in relation to the subject matter at trial. The judge referred to the fact that the defendants had no previous convictions but made no specific mention of the relevance of character to credibility or propensity. This was not considered a misdirection in the circumstances.

The decision in Richens [1994] 98 Cr App R 43 provided some useful guidance on the proper approach to a defendant who admits another offence. Richens was a teenager, who had no previous convictions, and who was charged with murder. He admitted manslaughter. The court, over which Lord Taylor CJ presided, held that the judge had a discretion whether or not to give the propensity direction in the light of his having admitted the alternative offence. The court felt that it might have been preferable had the judge given Richens the benefit of the second limb of the direction, but it was open to him to decline to do so. The possible relevance of good character to propensity was described as much more tenuous in Richens’ case than in the case of the long standing trusted employee of good character who is accused for the first time of stealing from his employers.

Vye, Wise and Stephenson

Lord Taylor returned to the subject of good character directions in the conjoined appeals of Vye, Wise and Stephenson. The appellant Vye was convicted of rape. The trial judge made no reference to the fact that Vye had no previous convictions until prompted and then only reminded the jury of the fact that the defendant was of good character. He made no mention of its relevance to credibility or propensity. Wise was convicted of dishonesty offences. He too was of previous good character in the sense that he had no previous convictions and no other misconduct was alleged or proven against him. The judge under the then understandable impression that a direction as to propensity was “optional” gave only the credibility limb. Stephenson was convicted of a drugs offence. He had previous convictions for burglary and drugs. One of his co-accused with whom he was tried was a man of good character. Stephenson complained of the effect of the good character direction for the co-accused upon him. The court focussed on three issues, only the first two of which are strictly relevant to this judgment.

As to the first category the court declared that where a defendant has a good character and relies upon exculpatory statements made in or out of court, he is entitled to both limbs of the direction whether or not he gives evidence.

As to the second category, at page 139 Lord Taylor said this:

"We have considered the whole spectrum of the situations likely to face the trial judge. At one extreme there is the case of an employee who has been entrusted with large sums of money over many years by his employer and, having carried out his duties impeccably, is finally charged with stealing from the till. There a second limb direction is obviously relevant and necessary. At the other extreme is a case such as Richens where the defendant, charged with murder, admits manslaughter. It might be thought that in such a case a second limb direction would be of little help to the jury. The defendant's argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past.

We have reached the conclusion that the time has come to give some clear guidance to trial judges as to how they should approach this matter. It cannot be satisfactory for uncertainty to persist so that judges do not know whether this Court, proceeding on a case by case basis, will hold that a "second limb" direction should or need not have been given. Our conclusion is that such a direction should be given where the defendant is of good character…

Having stated the general rule, however, we recognise it must be for the trial judge in each case to decide how he tailors his direction to the particular circumstances. He would probably wish to indicate, as is commonly done, that good character cannot amount to a defence. In cases such as that of the long serving employee exemplified above, he may wish to emphasise the "second limb" direction more than in the average case. By contrast, he may wish in a case such as the murder/manslaughter example given above, to stress the very limited help the jury may feel they can get from the absence of any propensity to violence in the defendant's history. Provided that the judge indicates to the jury the two respects in which good character may be relevant, i.e. credibility and propensity, this court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case."

Post Vye

The suggestion in Vye that a defendant with no previous convictions may not always demand a full character direction was adopted in Zoppola-Barrazza [1994] Crim.L.R. 833. The defendant who had no previous convictions was charged with importing cocaine. He admitted having been involved in smuggling gold to avoid duty and Value Added Tax and said that he had not known that the importation charged involved cocaine. The judge gave only a propensity direction. Noting that the appellant was fortunate to have received any part of a good character direction, the court held it would be an ‘affront to common sense’ to give him the benefit of a direction intended for those ‘truly considered to be of good character’.

It might have been thought, therefore that the principles were relatively straightforward. The general rule was that a defendant with no previous convictions should receive the benefit of a full good character direction. However, there were exceptions to the general rule. A defendant who could not be described as of good character should not benefit from the good character directions simply on the basis that he has no previous convictions.

The court in R v. Teasdale [1994] 99 Cr App R 80, decided on 9 July 1993, and before Zoppola-Barrazza, took a rather different approach. The 17 year old Teasdale was of previous good character. She admitted one count of actual bodily harm and faced a further count of causing grievous bodily harm with intent, arising from the same incident. The judge made no reference to her previous good character because of her plea. This court, purportedly relying on the judgment in Vye, held that the full direction should have been given. No mention was made of Richens which had been cited in Vye with approval.

This decision was followed swiftly by R v Challenger [1994] Crim L R 202 in which the defendant was also of previous good character. He was charged with possession of cannabis with intent to supply, simple possession, and possession of an offensive weapon. He pleaded guilty to simple possession and was tried and convicted on the other two counts. The judge declined to give a good character direction because of the plea and his decision was upheld. Teasdale was distinguished. Both decisions have been the subject of criticism in subsequent years. As will become apparent, we are persuaded that the decision in Challenger is far more in keeping with the principles expressed in Vye and is to be preferred.

R v H [1994] Crim LR 205 is an early example of the consequences of the judge deciding to treat a defendant as someone of effective good character. H had a previous conviction in 1980 for possession of an offensive weapon, for which he was given community service. He was accused of indecent assault on his step-daughter. Despite accepting that the previous conviction was irrelevant, the judge did not give the good character direction. The appeal was allowed. This court, again presided over by Lord Taylor CJ reaffirmed that where a defendant's previous character was not “absolute”, it is a matter of discretion whether a good character direction should be given. However, where the judge decides to treat the defendant as a man of effective good character, he should give a full Vye direction. This decision too has been subject to adverse criticism by Professor Di Birch, Dr Roderick Munday and others on the basis that it places too great an importance on the judge’s directions and took little weight on the good sense of jurors. It has, however, been endorsed on a number of occasions.

Reliance was again placed on the Vye principles in R v. Heath (1 February 1994, no 92/1102/Y3, unreported) to extend them to a defendant without a good character. The appellant was charged with the importation of cannabis. He had three spent convictions, two for theft and one for domestic assault. The judge directed the jury to ignore them because they were long ago and minor in character. He said nothing on the subject of credibility or propensity. This was considered a misdirection and the conviction quashed. The decision may be explained by the fact that the judge agreed to treat the defendant as a man of effective good character. If so, it was said that he then became obliged to give some kind of good character direction.

Durbin

In January 1995 the appeal of Barry Henry Durbin (R v Durbin [1995] 2 Cr App R 84) was heard; the decision was given on 3 February 1995. The court considered the effect of the judge’s failure to give a good character direction to someone with what Evans, LJ, giving the judgment of the court, referred to as “blemishes” on their character. The so called blemishes fell into three categories. First, the defendant had three or four spent criminal convictions for theft and for fraudulent use of an excise licence. Second, he admitted lying to the police and grossly misleading them in their investigation by taking steps to establish the equivalent of a false alibi. Third, he admitted that he had knowingly engaged in smuggling goods across Europe in order to avoid customs duties in the course of the visit to the Continent which gave rise to the charge. It is difficult in our view to understand how such a man could be entitled to be treated as a man of good character. Nevertheless, the court decided to distinguish Zoppola-Barrazza on the basis that the smuggling in Zoppola-Barrazza was already in existence at the time of the matters charged, as opposed to being part and parcel of the events subject of the trial. Such a distinction is difficult as a matter of logic to support and appears inconsistent with the decision in Richens and Buzalek and Schiffer amongst others. Yet, reliance has been placed upon it on several occasions since. The decision was criticised at the time (see What Constitutes Good Character? [1997] Crim LR 247 at 255, Dr Roderick Munday). In this decision it is now clear the law took a wrong turn.

R v. Aziz

Shortly after the judgment was handed down in Durbin, the House of Lords heard the appeal in R v. Aziz and others. Durbin, probably not reported by then, was not cited. Aziz, and his fellow appellants, Tosun and Yorganci, were convicted of the fraudulent evasion of VAT. Aziz had no relevant previous convictions. He admitted writing out false invoices in interview but denied knowing they were false. Tosun and Yorganci had no previous convictions but Yorganci admitted lying in interview and making a false mortgage application. Tosun admitted defrauding the Revenue by under-declaring his income. The trial judge said that Aziz was to be treated as a person of good character for the purposes of propensity, and Tosun and Yorganci for the purposes of credibility. The Court of Appeal held that a full two-limb, albeit modified, Vye direction ought to have been given in the case of all three and quashed the convictions.

Their Lordships considered the following certified question:

“Whether directions in accordance with Vye et al (1993) 97 Cr.App.R. 134, must be given in all cases in which a defendant has adduced evidence of previous good character, and if not, in what circumstances must such a direction be given”.

Judgment was handed down on 5 June 1995. The substantive speech was made by Lord Steyn. In his speech at page 486 B Lord Steyn provided the following justification for the admission of good character evidence of a defendant and why the jury should be directed upon it:

“The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals. Hence there has been a shift from discretion to rules of practice. And Vye was the culmination of this development.”

Lord Steyn addressed the question of what amounts to good character on the part of a defendant and when s/he is entitled to a good character direction in the following way at page 488 B:

“The certified question, although phrased in very general terms, was intended to raise the problem whether a defendant without any previous convictions may "lose" his good character by reason of other criminal behaviour. It is a question which was not directly before the Court of Appeal in Vye. It is a complex problem. It is also an area in which generalisations are hazardous. …

A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give character directions in the case of the defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced in thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists: H. [1994] Crim.L.R. 205; Zoppola-Barrazza [1994] Crim. L.R..

That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye the judge may in his discretion dispense with them. Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges. It is worth adding, however, that whenever a trial Judge proposes to give a direction, which is not likely to be anticipated by counsel, the judge should follow the commendable practice of inviting submissions on his proposed directions.”

Thus, H and Zoppola-Barrazza were both cited with approval in relation to the existence of the discretion. Their Lordships confirmed that a trial judge has a residual discretion whether or not to treat a man with an arguably spurious claim to a good character as a man of good character. Even if Lord Steyn and the other members of the Judicial Committee were aware of Durbin, which purported to extend the law far further, they did not approve it.

Post Aziz

We mention R v Fulcher [1995] 2 Cr App R 251 (which was decided on 8 December 1994 before the decision in Aziz) only because reference is made to it in some of the authorities. The defendant who had no previous convictions was charged with murdering his son. The court held the prosecution was entitled to lead evidence that suggested the defendant had a propensity to react violently to his crying child. Nevertheless the court felt constrained by the authority of Vye to hold that the judge’s failure to give both limbs of the good character direction was a material irregularity and quashed the conviction.

The Court of Appeal returned to the Zoppola-Barrazza approach in R v. Martin [2000] 2 Cr App R 42 as did the Privy Council in Shaw v The Queen [2001] 1 WLR 1519; [2002] 1 Cr App R 77 where Lord Bingham gave the opinion of the Board. Martin admitted two robberies in which he had wielded a hammer but claimed he acted under duress. He had no previous convictions but had been cautioned twice in relation to possession of an offensive weapon. The court held that to give the propensity direction would have been absurd and positively misleading. Shaw who had no previous convictions was accused of killing a man who had sold his gang fake cocaine. On his own admission the defendant had supplied a substantial quantity of cocaine and been a member of an armed group which had sought to punish the victim. The court held that he fell into Lord Steyn’s category of someone whose claim to a good character was spurious and he was not entitled to a good character direction.

Gray

The next significant judgment in which an attempt was made to summarise the principles of the good character directions is to be found in R. v. Gray [2004] EWCA (Crim) 1074; [2004] 2 Cr App R 30. Rix LJ set out seven propositions in relation to good character directions at paragraph 57:

“(1)

The primary rule is that a person of previous good character must be given a full direction covering both credibility and propensity. Where there are no further facts to complicate the position, such a direction is mandatory and should be unqualified (Vye, Aziz).

(2)

If a defendant has a previous conviction which, either because of its age or its nature, may entitle him to be treated as of effective good character, the trial judge has a discretion so to treat him, and if he does so the defendant is entitled to a Vye direction (passim); but

(3)

Where the previous conviction can only be regarded as irrelevant or of no significance in relation to the offence charged, that discretion ought to be exercised in favour of treating the defendant as of good character (H, Durbin, and, to the extent that it cited H with apparent approval, Aziz.) In such a case the defendant is again entitled to a Vye direction. It would seem to be consistent with principle (4) below that, where there is room for uncertainty as to how a defendant of effective good character should be treated, a judge would be entitled to give an appropriately modified Vye direction.

(4)

Where a defendant of previous good character, whether absolute or, we would suggest, effective, has been shown at trial, whether by admission or otherwise, to be guilty of criminal conduct, the prima facie rule of practice is to deal with this by qualifying a Vye direction rather than by withholding it (Vye, Durbin, Aziz); but

(5)

In such a case, there remains a narrowly circumscribed residual discretion to withhold a good character direction in whole, or presumably in part where it would make no sense, or would be meaningless or absurd or an insult to common sense, to do otherwise (Zoppola-Barrazza and dicta in Durbin and Aziz).

(6)

Approved examples of the exercise of such a residual discretion are not common. Zoppola-Barrazza is one. Shaw is another. Lord Steyn in Aziz appears to have considered that a person of previous good character who is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged would forfeit his right to any direction (at 53B). On the other hand Lord Taylor's manslaughter/murder example in Vye (which was cited again in Durbin) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted criminality from that charged.

(7)

A direction should never be misleading. Where therefore a defendant has withheld something of his record so that otherwise a trial judge is not in a position to refer to it, the defendant may forfeit the more ample, if qualified, direction which the judge might have been able to give (Martin).”

Proposition (3) is based in part on Durbin and arguably comes close to equating someone who has previous convictions which are “irrelevant or of no significance” to the offence charged with someone who does not have previous convictions and is of good character. That is not a correct understanding of Vye or Aziz. Both were concerned with defendants who had no previous convictions.

Proposition (6) suggests that the advocates in Gray may not have brought to the court’s attention many other decisions which our researches have revealed and in which the exercise of judicial discretion has been upheld, as it was in Zoppola-Barrazza and Shaw.

The Criminal Justice Act 2003

The principles in relation to character evidence changed significantly with the bad character provisions of the Criminal Justice Act 2003 (the “CJA”). Section 98 defines ‘bad character’ evidence as evidence of or of a disposition towards misconduct on a defendant’s part other than evidence ‘to do with the alleged facts of the offence charged’ or evidence of misconduct in ‘connection with the investigation or prosecution of that offence’. It is admissible ‘if but only if‘it meets one of the criteria in section 101 (a) to (g). They provide:

Section 103 defines ‘matters in issue’ to include whether the defendant has a propensity to commit offences of the kind charged (1) (a) and propensity to be untruthful (1) (b). Specific provision is made for spent convictions. Where subsection (1) (a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may be established by evidence that he has been convicted of an offence of the same description or of the same category as the one with which he is charged, unless a court is satisfied that by reason of the length of time since the conviction or for any other reason, that it would be unjust to apply the provision.

In each of the cases with which we are concerned evidence of the defendant’s bad character has been adduced as evidence of ‘bad character’ under section 101 (b) by the defendant himself. This then enables the defence advocate to address the jury on the likelihood of the defendant having committed the offence charged. It may also be possible to persuade the judge to give a modified good character direction, endorsing the defence argument. This has become increasingly common since the introduction of section 101. Yet, the possible impact on good character directions of section 101 has been scarcely acknowledged.

The only reported case that we can find in which there is a recognition of the fact that the introduction of the CJA may have made a difference to the approach to good character directions is Doncaster [2008] EWCA Crim 5, [2008] Crim LR 709. The defendant was charged with cheating the Revenue and false accounting. He admitted repeated lying to the Revenue and non-disclosure but denied dishonesty in respect of the offences charged. He had one minor and very stale conviction which was irrelevant to the offence charged. Evidence of his dealings with the Revenue over a number of years, arguably admissible under section 98, having to do with the facts of the case, was admitted under section 101. Complaint was made about the very limited nature of the good character directions given.

At para. 42, Rix LJ. pointed out that Aziz had been decided before the enactment of the CJA 2003 and observed “it is difficult to think that the new law (as to bad character) has no impact on the old law (as to good character)”. The court concluded that “… where bad character is admitted under the 2003 Act on the grounds that it is relevant both to propensity and credibility it would make no sense for a judge to give a standard good character direction, stating its relevance to propensity and credibility in precisely the opposite direction.” The appeal was dismissed.

The court did, however, provide a possible modified good character direction for this situation at paragraph 43.

“We consider that in the post 2003 Act world, where bad character directions as to propensity have more frequently become necessary, even in the absence of previous convictions, it may be possible similarly to tailor a modified bad character direction, along the following lines. Thus when a judge is directing the jury about the relevance of bad character to propensity or propensities, he could remind them that the defendant had no previous convictions and say that, in the ordinary case, where there was no evidence of bad character, a defendant of no previous convictions would have been entitled to a direction that the jury should consider that that counted in his favour on the questions of both propensity and credibility; as it was, it was for the jury to consider which counted with them more – the absence of previous convictions or the evidence of bad character; and if the former, then they should take that into account in favour of the defendant, and if the latter, then they would be entitled to take that into account against him.”

Approach of the Privy Council

The Privy Council has considered the issue on a number of occasions. We have already referred to Shaw. We wish to mention others. The first is Thompson v R [1998] AC 811 PC. One of the grounds of appeal was that both limbs of the good character direction should have been given in respect of a defendant charged with murder who had one conviction some 13 years before for a relatively minor offence of theft. Their Lordships considered that the conviction was of such a minor and non-violent nature that, had the issue been raised, the judge would have treated the defendant as a man of effective good character and he would have given both limbs of the direction. It was not and the judge was under no duty to raise the issue himself.

Similarly in Bally Balson [2005] UKPC 2 evidence of good character which could have been adduced was not adduced. Several criticisms were made of trial counsel including the fact that he failed to adduce evidence of the defendant’s good character. They were all dismissed as lacking in substance save for the complaint about character. Nonetheless, their Lordships were of the opinion that a good character direction would have made no difference to the result. All the circumstantial evidence pointed to the appellant. In those circumstances the issues about the appellant’s propensity to violent conduct and his credibility were outweighed by the nature and coherence of the circumstantial evidence.

However, a month later, the Privy Council considered the topic again in Teeluck and John v The State [2005] 2 Cr.App.R 25. The issue of good character was one of a number of grounds. At para 33 Lord Carswell observed:

“The principles to be applied regarding good character directions have been much more clearly settled by a number of decisions in recent years, and what might have been properly regarded at one time as a question of discretion for the trial judge has crystallised into an obligation as a matter of law. There is already quite a substantial body of case-law on the various aspects of the application of the principles, not all of which is relevant to the present appeals. Their Lordships consider that the principles which are material to the issues now before them can conveniently be encapsulated in the following series of propositions:

i)

When a defendant is of good character, i.e. has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit the circumstances of the case: Thompson v The Queen [1998] AC 811 following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471.

ii)

The direction should be given as a matter of course, not of discretion. It will have some value and will therefore be capable of having some effect in every case in which it is appropriate for such a direction to be given: R v Fulcher [1995] 2 Cr App R 251, 260. If it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial: R v Kamar The Times, 14 May 1999.

iii)

The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged.

iv)

Where credibility is in issue, a good character direction is always relevant: Berry v The Queen [1992] 2 AC 364, 381; Barrow v The State [1998 AC 846]850; Sealey and Headley v The State [2002] UKPC 52 para 34.

v)

The defendant's good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v The State [1998] AC 846, 852, following Thompson v The Queen [1998] Ac 811, 844. . It is a necessary part of counsel's duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising the issue is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen, ibid.”

The Board’s principle i) has been interpreted by some as meaning that a defendant who has a long record of offending but not for offences in the same category as the offence charged is entitled to a good character direction on propensity. That is a misunderstanding of principle i). The defendant must be a person of good character, or, if he has previous convictions, deemed to be a person of effective good character, before he will be entitled to benefit from a good character direction.

As for the stark assertion at the Board’s principle ii) above as to the consequences of a failure to give the direction, in Singh v the State [2005] UKPC 35 20061 WLR 146 at paragraph 30 Lord Bingham on behalf of the Board added a rider:

"The significance of what is not said in a summing-up should be judged in the light of what is said.  The omission of a good character direction on credibility is not necessarily fatal to the fairness of the trial or to the safety of a conviction.  Much may turn on the nature of and issues in a case, and on the other available evidence.  The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated."

The principle that there is no inflexible rule that a failure to give a direction will inevitably prove fatal has been followed on a number of occasions by the Board, albeit on the facts in Singh the conviction was quashed.

Duty of the judge

A number of decisions have confirmed that it is the duty of the judge to decide whether or not a defendant is to be treated as having a good character. The judge cannot leave it to the jury to decide. If he does decide to treat the defendant as having an effective good character then he must give both limbs of the good character direction in appropriate terms. There must be an explicit positive direction that the jury should take the defendant’s good character into account. These propositions have not been challenged before us. We give three detailed examples.

The appellant David Lloyd [2000] 2 Cr App R 355 had no previous convictions. He was charged with indecent assault and buggery. The Recorder’s directions were phrased in terms of leading questions rather than statements. He asked: “Is it not less likely he would be involved in offences of this kind. … Is it not more likely he is telling you the truth”. The court took exception to this form of direction, held that directions should be in the form of affirmative statement and quashed the convictions.

In R. v MW [2008] EWCA Crim 3091 the appellant had two spent previous convictions, one for driving with excess alcohol and one for theft from an employer when he was 17 or 18 years old, for which he had received a conditional discharge 24 years before the trial. The court described him as not literally of good character but, in the context of the trial, “for practical purposes so”. The court acknowledged that in these circumstances the judge had a discretion as to the terms of a direction to the jury, but held that once the judge has decided a good character direction should be given there was no room for a jury to disagree with him/her. In a clear case where the only possibly relevant conviction is “so old as to be scarcely material”, the judge should “give a standard good character direction modified only to ensure that the jury are not misled”. In Moustakim [2008] EWCA Crim 3096 the trial judge misdirected the jury because he failed to give an explicit positive direction in respect of a defendant with no previous convictions and had failed properly to explain the two limbs. The convictions in both appeals were quashed. See also a number of cases that followed including R v M (CP) [2009] 2 Cr.App.R. 54, Baquiri [2010] EWCA Crim 1729, Remice [2010] EWCA Crim 1952, Gbajabiamila [2011] EWCA Crim 735 [2011] All ER 200 and more recently in Aneela Ahmed [2014] EWCA Crim 2466).

In Baquiri Maurice Kay LJ added at paragraph 8:

"It was for the judge to decide upon the appropriate direction. However, there are parameters. In a case where there was a defendant aged 37, a solitary motoring-related offence and an allegation of serious sexual offences against a 16-year-old girl, the only reasonable conclusion was that he should have treated the appellant as a man of effective good character entitled to both limbs of the good character direction, albeit with reference to the previous conviction and its irrelevance in the circumstances."

Consequences of misdirection

Where the court holds that a judge falls into error or possible error the consequence may mean the quashing of the conviction. There are a number of decisions to this effect some of which we have already cited and which include Fulcher, MW, M (CP), Gbajabiamila, and Aneela Ahmed. A number were considered in Hoyte [2013] EWCA Crim 1002 in which Jackson LJ giving the judgment of the court posed the question:

“What is the effect of this omission on the safety of the conviction? There is a long line of authorities to the effect that the omission of a good character direction to which the defendant is entitled is usually fatal - see Vye [1993] 97 Cr.App.R 134; Moustakim [2008] EWCA Crim. 3096, Gbajabiamila [2011] EWCA Crim. 734; Denton [2012] EWCA Crim. 19, in particular at paragraph 17”

However, the court does not seem to have been referred to another long line of authorities in which the failure to give a good character direction did not prove fatal; see for example, Remice, Castrillo [2009] EWCA Crim 2908, R v Despaigne-Pellon [2009] EWCA Crim 2580, BS [2010] EWCA Crim 2691, Olu [2010] EWCA Crim 2975 Yee-Mon [2011] EWCA Crim 1069, R v Anigbugu [2011] EWCA Crim 199, Bell [2011] EWCA Crim 2117, Khan [2013] EWCA Crim 381 and McCarthy [2014] EWCA Crim 1963, R v Stiedl (Bjorn) [2005] EWCA Crim 3278, R v H [2005] EWCA Crim 3411 R v Ahmed (Muhammed) [2007] EWCA Crim 2870. Even where credibility is very much in issue and a good character direction is not given, when it should have been, this court has been known to uphold the conviction, on the basis that the failure can have made no difference to the safety of the verdict.

Three recent examples

The Durbin approach came back to the fore in R v Payton [2006] EWCA Crim 1226. A defendant had previous convictions and cautions for possession of drugs; he was charged with possession with intent to supply. His defence was that the drugs were for his own use. The judge directed the jury simply not to hold the convictions against him. The court seems to have assumed that this meant the judge had decided to treat the defendant as of ‘effective good character’ (albeit this would not have been justified) and held that the defendant was entitled to a good character direction to the effect that his ‘credibility was in tact’. The judge’s failure was described as a fatal misdirection and the conviction quashed.

In R v PD [2012] 1 Cr.App.R.33. The defendant was indicted for anal rape and actual bodily harm committed against his wife. He had no previous convictions but admitted violence towards his wife and had written an article in which he had described anal rape as the “ultimate punishment”. He had also admitted misusing charitable funds. He was not, therefore, a man of good character of the kind Lord Taylor had in mind in Vye. But, encouraged by the parties, for reasons that escape us, the judge appears to have agreed to give the propensity limb of the good character direction. He then failed to do so. This court acknowledged that the judge is not required to give a meaningless or absurd direction. Relying on what it understood to be a prima facie rule of practice (as described in Gray), the court held that the defendant had been entitled to a modified character direction that he was less likely to have committed the offences of anal rape and quashed the conviction. The only explanation for this approach that we can discern is that the judge decided to treat the defendant as a man of effective good character as far as propensity was concerned and then did not do so.

R v Gai [2012] EWCA Crim 2033 the defendant was indicted for offences of rape of a child under 13 years. His bad character consisted of a previous conviction for burglary which resulted in a suspended sentence of 3 months imprisonment and a more recent caution for common assault on his wife in 2008 (the same year as one of the offences alleged). At his re-trial the Judge declined to give a good character direction. Although the defendant was not of good character, having cited PD amongst other decisions, the court held that the defendant was entitled to a modified good character direction which made reference to both credibility and propensity. The conviction was quashed.

Stare decisis

Before concluding our review of the case law, we should refer to the doctrine of stare decisis, in so far as it relates to the Court of Appeal Criminal Division.

A helpful summary of what the court should do if faced with a previous decision or decisions it considers wrong is provided by Hooper LJ in Ahmed and another [2012] EWCA Crim 391. At paras 54 and 55 he stated:

“54.

In our view Waller was clearly wrong. Are we bound by it?

55.

The principles can be found set out in R v Rowe [2007] EWCA Crim 635; [2007] QB 975 by the then Lord Chief Justice, Lord Phillips:

22.

Giving the judgment of the court [in R v Simpson [2003] EWCA Crim 1499], Lord Woolf CJ started by setting out the established situations in which the Court of Appeal could depart from one of its previous decisions, as summarised in Halsbury's Laws of England 4th Ed Vol 37 para 1242:

(i)

where the Court has acted in ignorance of a previous decision of its own court or a court of coordinate jurisdiction which covered the case before it. If this is the case the Court must decide which case to follow;

(ii)

where the Court has acted in ignorance of a decision of the House of Lords;

(iii)

where the Court has given its decision in ignorance of the terms of a statute or a rule having statutory force; or

(iv)

where in exceptional and rare cases, the Court is satisfied that there has been a manifest slip or error and there is no prospect of an appeal to the House of Lords.”

None of these was applicable. Lord Woolf then commented at paragraph 27:

“…the paragraphs in Halsbury should not read as if they are contained in a statute. The rules as to precedent reflect the practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs.”

Lord Woolf then referred to two statements made by Lord Diplock. The first, as Diplock LJ in R v Gould [1968] 2 QB 65 at p. 68 was to the effect that the Criminal Division of the Court of Appeal is not rigidly bound by the doctrine of stare decisis. The second, in DPP v Merriman [1973] AC 584 at p. 685 stated that the liberty of the Criminal Division to depart from precedent which it was convinced was erroneous was restricted to cases where the departure was in favour of the accused.

Lord Woolf commented:

“There is nothing to suggest in Merriman that Lord Diplock was reminded of what he said in Gould. We appreciate that there may be a case for not interpreting the law contrary to a previous authority in a manner that would mean that an offender who otherwise would not have committed an offence would be held to have committed an offence. However, we do not understand why that should apply to a situation where a defendant, as here, wishes to rely upon a wrongly decided case to provide a technical defence. While justice for a defendant is extremely important, justice for the public at large is also important. So is the maintenance of confidence in the criminal justice system. If the result in the Palmer case had to be applied to other cases even though the Court of Appeal had acted in ignorance of the appropriate approach this would indeed, reveal a most unattractive picture of our criminal justice system's ability to protect the public.”

Mr Henry Blaxland QC made two primary submissions on behalf of all five appellants.

First, the law in relation to good character is settled and has been for many years. It does not require refinement. What began as good practice and has become a rule of practice stems from a duty to sum up a case fairly to a jury. The good character direction requirements are an example of the Common Law developing as judges recognised that the defendant must be protected from the danger of miscarriage of justice arising from an unbalanced summing up. The respondent’s argument that it is unfair to allow a defendant but not the prosecution witnesses a good character direction misses the point and is contrary to authority. Without the benefit of a good character direction there is a risk that the summing up will not present the case for the defendant fairly. It is an essential protection for the defendant.

Mr Blaxland acknowledged that some practical difficulties may have arisen from the question of whether a judge should exercise his discretion to withhold a good character direction in circumstances where the defendant has a history of reprehensible conduct or previous criminal convictions. That apart, he insisted that the essence of the requirement to give a good character direction and the terms in which it should be given is straightforward. The Crown Court Bench Book explains the law in clear terms and there should be no difficulty in applying it. All of the appeals in the instant cases arise from a failure to follow well established principles, rather than from any uncertainty as to those principles. Any interference with them risks promoting inconsistency and a lack of clarity in the approach taken by trial judges.

His second primary submission was that a good starting point in any discussion about whether a good character direction is required should be the provisions of the section 101 of the CJA. If the evidence has not been adduced at the behest of the prosecution, this will be because it does not satisfy the gateway provisions of S.101 (1) or because it has been excluded in the exercise of the court’s power under S.101(3), at common law or under S.78 Police and Criminal Evidence Act 1984. Where the judge concludes that the evidence falls into the former category and has no or too little probative value to be admissible, Mr Blaxland advanced the bold submission that the defendant should be entitled, as of right, to a good character direction. Only where the court has ruled that the evidence has some probative value but excluded it because it would be unjust to admit it, would it be appropriate for the judge to decline to give some kind of good character direction. This approach, he claimed, would have the benefit of synchronising the judge’s exercise of his residual discretion with the admissibility of a defendant’s bad character under the CJA.

Mr Blaxland also addressed the consequences of a failure to give a direction or to give an inadequate direction. He placed heavy reliance on the decision in Hoyte and the “long line of authorities” to which reference was made in which it was held that a failure to give the direction is usually fatal. Mr Blaxland invited us to go further. He suggested the omission of a good character direction to which the defendant is entitled is always fatal to the safety of the conviction. He emphasised that the appeals before us are all cases in which the jury had to make critical decisions about the credibility of the witnesses. Although it may be possible to say that on paper the prosecution case was strong, the court cannot also say that the jury would have convicted even if a proper direction had been given, because so much turns on the assessment of the quality of the witnesses’ evidence.

He invited us to reject the respondent’s suggestion that the court should be slow to quash a conviction unless there is a marked difference between the direction which should have been given and the one that was given because this would lead to uncertainty.

Mr Richard Whittam QC and Mr Tom Little for the respondent urged the court to take this opportunity to put the law back on an even keel. They maintain that the law has been extended without justification far too far from the principles in Vye and Aziz. Both the court in Vye and the House of Lords in Aziz were considering defendants who did not have previous convictions, not defendants with previous convictions as seems to have been assumed in some later cases. This is an important distinction. A defendant with previous convictions does not have a good character. He is not entitled to be treated as if he did. To the extent that any of the decisions cited (for example Payton referred to at paragraph 47 above) suggest otherwise, they are wrong.

Where a defendant has previous convictions, the judge has a discretion. Where a defendant has convictions which are old, spent and of a totally different nature the Judge must decide whether fairness demands that s/he be treated as if he had never been in trouble. If the Judge decides that this is the case then a good character direction must be given but the jury must not be misled into thinking that the defendant has no previous convictions. The direction should not be in terms that give the jury the impression that it is open for them to disagree with the legal direction. Where a defendant has previous convictions but for offences of a completely different nature from those charged, a judge may (but is not obliged to) give the defendant the benefit of a modified propensity direction. Mr Whittam suggested this is not the narrowly circumscribed discretion to which Lord Steyn referred and argued the CACD has been rather too ready to criticise and intervene in a way not envisaged by Lord Taylor in Vye.

Where a defendant has no previous convictions but has admitted other reprehensible conduct the judge also has a discretion as to whether to give a direction and if so what kind. To the extent that decisions such as Durbin and PD suggest otherwise they have misinterpreted Vye and Aziz and are wrong. Lord Steyn described this as a more narrowly circumscribed discretion but Mr Whittam invited us to view this observation in the light of subsequent statutory developments.

Purpose of the summing up

We begin our conclusions with the purpose of the summing up. Pitchford LJ describes the purpose of the summing up in his 2010 Bench Book in this way:

“The task of the trial judge in summing up is to present the law and a summary of the evidence in such a way as best to enable the jury to reach a just conclusion. That can be achieved only if the trial judge communicates effectively to the jury the issues which they need to resolve and their legitimate approach to the evidence relevant to those issues.”

However, effective communication depends upon a judge being allowed to focus on the issues and the applicable law. There has been an unfortunate tendency in recent years to require judges to direct juries at length on matters which most would regard as matters of common sense: this has been frequently restated by this court (see for example the judgment of this court given by Lord Phillips CJ in R v Campbell [2007] 1 WLR 2798 at paragraphs 21-25). Summings-up have become overly long and complicated as a result. This is more likely to prove a hindrance to a just outcome than a help.

Sir Brian Leveson, President of the Queen’s Bench Division, observed in his Review of Efficiency in Criminal Proceedings at para 285.

“The role, desirability and efficiency of judicial summing up of the facts at the end of a case have been questioned by many, both here and abroad. In the current climate, shortening the duration of trials through a focus on the issues in the case and by more effective trial management is a proper goal. That focus on shortening trial lengths properly leads to a consideration of a number of procedural issues surrounding the way in which the jury are assisted by advocates and Judge. Most significant concerns the need for the trial Judge to sum up the facts of the case which is an exercise that can add hours, days or, in extreme cases, weeks to the length of a trial”

A judge’s directions on good character relate to the law not the facts; nevertheless the extension of the circumstances in which advocates demand of judges a direction on good character has not helped effective trial management. It has led to lengthy discussions at trial about directions to juries, some convoluted directions to a jury, and a flood of applications for leave to appeal. As stated in the current edition of the Bench Book at page 162:

“The application of the (good character) principles is not always straightforward in practice. The exercise of judgement as to the terms in which the good character direction will be framed usually arises where the defendant argues that he should be treated as being of good character notwithstanding the presence of (usually minor and/or spent) convictions or where a defendant with previous convictions seeks a favourable direction as to propensity”.

Our review of the case law leaves us in no doubt that those observations are justified. The application of the principles is not straightforward; attempts by this court to promote consistency of approach have failed.

The Vye and Aziz principles began life as good practice. Good practice became a rule of practice in Vye because the court needed a pragmatic solution to a problem of inconsistency and uncertainty. The underlying principle was not, as some have assumed, that a defendant who had no previous convictions could never receive a fair trial unless he benefited from a good character direction. Yet, the principles in Vye and Aziz have now been extended to the point where defendants with bad criminal records (as in these appeals) or who have no right to claim a good character are claiming an entitlement to a good character direction. Many judges feel that, as a result, they are being required to give absurd or meaningless directions or ones which are far too generous to a defendant. Fairness does not require a judge to give a good character direction to a man whose claim to a good character is spurious (per Lord Steyn in Aziz page 488 E and Taylor LJ in Buzalek and Schiffer).

Further, many have questioned, with some justification in our view, whether the fact someone has no previous convictions makes it any the more likely they are telling the truth and whether the average juror needs a direction that a defendant who has never committed an offence of the kind charged may be less likely to offend.

Impact of Vye and Aziz

We return therefore to the principles we derive from Vye and Aziz and by which we remain bound.

It is also important to note what Vye and Aziz did not decide:

It is clear to us that the good character principles have therefore been extended too far and convictions have been quashed in circumstances we find surprising. The decisions in H and Durbin are usually cited as justification but it is sometimes forgotten that the previous conviction in H was old, minor and irrelevant to the charge. The defendant H fell into the category of someone with an effective good character. His conviction was not simply irrelevant to the charge. Further, the court in Durbin, perhaps unaware of the decision in Buzalek and Schiffer, does not seem to have appreciated that the principle of giving a good character direction only applied where the defendant was of previous good character “in the proper sense”. This led the court in Durbin to proceed on the false basis that a man with an undoubtedly bad character as far as propensity and credibility were concerned was entitled to the benefit of a good character direction. We are satisfied that the law thereby took a wrong turn.

In any event, Durbin was decided before Aziz in which Lord Steyn stated expressly that judges should not be required to give absurd or meaningless directions. A good character direction on the facts of Durbin and, in our view, PD, would have been absurd and meaningless. Subsequent reliance upon Durbin in cases like Gray and PD (in so far as PD relied on Gray) to extend the principles of good character to defendants who do not have a good character was therefore misplaced.

It may sound like a statement of the obvious but only defendants with a good character or deemed to be of effective good character are entitled to a good character direction. A defendant who has a record of previous convictions or has a bad character of some other kind is not entitled as of right to a good character direction; it matters not for this purpose who has adduced the evidence and whether the bad character evidence is relied upon as probative of guilt. It does not follow from the fact that the bad character is not considered probative of guilt that a defendant is entitled to be treated as if he had a good character. Once evidence of bad character is admitted, a judge cannot ignore it and give directions to a jury which would make no sense. To the extent that decisions such as Payton suggest otherwise they were wrongly decided, no doubt in ignorance of the decisions put before us. Where a defendant has a bad character, a judge is not obliged to give a good character direction, s/he has a discretion.

Conscious of the number of decisions in which reliance has been placed on Durbin and decisions like it, we have hesitated before coming to this conclusion. The system of criminal justice demands a degree of certainty. But, as Lord Woolf observed in Simpson it also requires a degree of flexibility: principles should not be regarded as so rigid that they cannot develop to meet contemporary needs and the demands of fairness. While justice for a defendant is extremely important, justice for the public at large is also important. So is the maintenance of confidence in the criminal justice system.

Moreover, the law has moved on. The concept of good and bad character in the law has changed. Good character now means far more than not having previous convictions. A defendant who has no previous convictions may nevertheless have a bad character under section 98 of the CJA. Evidence of bad character may only be adduced (even by the defence) under section 101 of the CJA. Convictions, cautions and reprehensible conduct may not be dismissed as insignificant, irrelevant or mere “blemishes” in the way that they once were. Much, if not all, of the appellants’ reprehensible conduct summarised by Lord Steyn in Aziz and Evans LJ in Durbin would now be admissible as bad character evidence. Similarly the middle aged defendant with no previous convictions charged with theft from his employer, who had made false insurance claims, given as an example in Aziz, may also be the subject of a section 101 bad character application by the Crown.

Parliament has decided that evidence that was once considered inadmissible is now admissible. It is admissible to prove propensity to offend or to be untruthful, the very issues to which the good character principles are directed. This has an inevitable impact on the court’s approach to character directions.

We shall consider each of the main categories in turn to provide as much guidance as possible and in the hope (yet again) of promoting consistency of approach in the Crown Court and in this court.

We use the term “absolute good character” to mean a defendant who has no previous convictions or cautions recorded against them and no other reprehensible conduct alleged, admitted or proven. We do not suggest the defendant has to go further and adduce evidence of positive good character. This category of defendant is entitled to both limbs of the good character direction. The law is settled.

The first credibility limb of good character is a positive feature which should be taken into account. The second propensity limb means that good character may make it less likely that the defendant acted as alleged and so particular attention should be paid to the fact. What weight is to be given to each limb is a matter for the jury. The judge must tailor the terms of the direction to the case before him/her, but in the name of consistency, we commend the Judicial College standard direction in the Crown Court Bench Book as a basis.

Effective good character.

Where a defendant has previous convictions or cautions recorded which are old, minor and have no relevance to the charge, the judge must make a judgement as to whether or not to treat the defendant as a person of effective good character. It does not follow from the fact that a defendant has previous convictions which are old or irrelevant to the offence charged that a judge is obliged to treat him as a person of good character. In fairness to all, the trial judge should be vigilant to ensure that only those defendants who merit an ‘effective good character’ are afforded one. It is for the judge to make a judgement, by assessing all the circumstances of the offence/s and the offender, to the extent known, and then deciding what fairness to all dictates. The judge should not leave it to the jury to decide whether or not the defendant is to be treated as of good character.

If the judge decides to treat a defendant as a person of effective good character, the judge does not have a discretion whether to give the direction. S/he must give both limbs of the direction, modified as necessary to reflect the other matters and thereby ensure the jury is not misled.

Previous convictions/cautions adduced under section 101 by the defence.

Defendants frequently adduce previous convictions or cautions under section 101 (1) (b) which are not in the same category as the offence alleged, in the hope of obtaining a good character direction on propensity from the judge. As we have indicated, we have our doubts as to whether the average juror needs to hear judicial endorsement of this kind to understand the significance of the point made, no doubt with some force, by the defence advocate.

In any event, a defendant with previous convictions or cautions to his name has no entitlement to either limb of the good character direction. It is a matter for the judge’s discretion. The discretion is a broad one of the “open textured variety” referred to in Aziz at page 489A whether to give any part of the direction and if so on what terms. It is not narrowly circumscribed. The judge will decide what fairness dictates. Fairness may well suggest that a direction would be appropriate but not necessarily. Where a judge has declined to give a modified good character direction to a defendant in this category, this court should have proper regard to the exercise of discretion by the judge who has presided over the trial.

Bad character adduced under section 101 relied on by the prosecution

Where the defendant has no previous convictions or cautions, but evidence is admitted and relied upon by the Crown of other misconduct, the judge is obliged to give a bad character direction. S/he may consider that as a matter of fairness they should weave into their remarks a modified good character direction. However, there will be occasions when this will undoubtedly offend Lord Steyn’s absurdity principle. This must therefore be left to the good sense of trial judges. This too is a broad discretion. Where a judge has declined to give a direction or has given a modified good character direction to a defendant in this category, this court should have proper regard to the exercise of discretion by the judge who has presided over the trial.

Where the defendant has previous convictions and bad character is relied upon it is difficult to envisage a good character direction that would not offend the absurdity principle.

Bad character adduced by defence under section 101 and not relied on by the Crown

That leaves the category of defendants who have no previous convictions but who admit reprehensible conduct that it is not relied on by the Crown as probative of guilt. Lord Steyn in Aziz concluded that a judge has a residual discretion but prima facie, the judge should give the good character directions, unless it would defy common sense to do so. It is common ground the discretion remains despite the changes effected by the CJA. The question for this court is whether the nature of the discretion has changed. In Aziz Lord Steyn described the discretion as “narrowly circumscribed” rather than open textured.

We are satisfied that, in the light of the changes brought about by the CJA, the discretion is now of the open textured kind. As we have endeavoured to explain, the whole landscape in relation to evidence of character has changed.

First this is now evidence which can only be adduced, as bad character evidence, pursuant to the provisions of section 101. Second, the evidence may be potentially probative of guilt (as the evidence of bad character was in many of the previous decisions put before us) but no application is made by the Crown to rely upon it under section 101. If Mr Blaxland’s second submission was correct, that would mean the judge is then obliged to give a good character direction or that the judge has a narrowly circumscribed discretion to decline to do so. Such an approach, for the reasons already given would be wrong in principle and might have an unfortunate consequence. Prosecutors are expected to use their discretion fairly and proportionately in deciding whether or not to make an application under section 101. It would be most unfortunate if by adopting what many consider an unfair and over generous approach to defendants, this court were to encourage prosecutors to apply to adduce evidence of bad character under section 101 so as to pre-empt any application by the defence for a good character direction.

In all those circumstances, we consider it preferable to leave the decision as to what directions to give in this situation to the good sense of the trial judge. He or she will be far better placed to assess what fairness demands and we would, therefore, allow them the usual generous ambit of discretion.

Safety

What if the judge does go wrong? The sole statutory test for the Court of Appeal Criminal Division is now one of safety of the conviction. There can be no fixed rule or principle that a failure to give a good character direction or a misdirection is necessarily or usually fatal. It must depend on the facts of individual cases. It follows that all the decisions put before us in which convictions were quashed as a result of a misdirection were entirely fact specific. They provide no guidance at all. As we have endeavoured to demonstrate, there are two lines of authorities not just the one put before the court in Hoyte. For every decision in which it has been held that the failure to give a direction or a misdirection was fatal to the safety of the conviction, there is likely to be another decision which points the other way.

The true guidance is to be found in Singh (per Lord Bingham at paragraph 30) to which we have already referred and in Vye per Lord Taylor (at page 139):

“Provided that the judge indicates to the jury the two respects in which good character may be relevant, i.e. credibility and propensity, this court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case."

We see force in the respondents’ submission that this court has not always been slow to criticise and to intervene. It is sometimes forgotten that the extent to which a direction on the defendant’s good character is likely to impact upon a jury’s deliberations is not the same in every case. More often than not the significance of good character is obvious. Members of a jury are more likely to believe the trusted employee example in Vye and can no doubt work out for themselves that he is less likely to have stolen. To our mind there is a tendency to underestimate the average juror, assuming that unless a judge endorses defence submissions to the full extent the jury will ignore them and relevant character evidence. We prefer to assume that the jury can and should be trusted to bear the evidence in mind and to assess the weight to be placed on it.

It would be wrong therefore to assert, as Mr Blaxland did, that if a defendant is entitled to a good character direction and the judge fails to give it in proper form, the conviction will be quashed as a matter of course.

This approach has the advantage of according with the now settled approach to decisions on bad character evidence relied on by the Crown under s 101.

The leading case remains R. v Hanson and others [2005] 2 Cr. App. R. 21 which provided guidance on the proper approach to be adopted when the prosecution seek to rely on evidence of bad character under section 101.

“15 If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of non compliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense” (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 ) sense (compare R. Makanjuola (1995) 2 Cr.App.R. 469 at 473E, [1995] 1 W.L.R. 1348 at 1352).

This was further endorsed in relation to both rulings on admissibility and directions in R v Raymond Renda and others [2005] EWCA Crim 2826:

“3 We have some general observations. Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion. The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the trial judge's “feel” for the case is usually the critical ingredient of the decision at first instance which this Court lacks. Context therefore is vital. The creation and subsequent citation from a vast body of so-called “authority”, in reality representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for trial judges.

4 Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent conviction. It does not follow from any proved error that the conviction will be quashed.”

An appellate court should only interfere if, on the facts, it was not properly open to the judge to reach the conclusions he did, for example to refuse to treat the defendant as a person of effective good character or to refuse to give a particular limb of the direction. As Sir Igor Judge then President of the Queen’s Bench Division observed in Renda the circumstances in which this Court would interfere with the exercise of a judicial discretion or a fact specific judgment are limited. Context is all and the trial judge is likely to have a far better feel for the dynamics of a criminal trial and the interests of justice than an appellate court.

Thus, in future we expect this court to approach the exercise of judgment/ discretion on whether to give a character direction in relation to evidence admitted under section 101 and, if so, its terms, on a similar basis to the one upon which it approaches decisions whether to admit bad character evidence under section 101.

We should also add that if defence advocates do not take a point on the character directions at trial and or if they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. The trial was considered fair by those who were present and understood the dynamics. In those cases this court should be slow to grant extensions of time and leave to appeal.

Procedure

The difficulties that have arisen most commonly arise because inadequate discussion has taken place between the advocates and the judge before the evidence has been adduced, before speeches, and before the summing up, and on occasion because the judge has not directed the jury in accordance with his/her stated intention.

Where the evidence is adduced without any notice to the judge, this is arguably in breach of Part 35 of the Criminal Procedure Rules. Rule 35.4 (1) and (2) state:

We have not heard argument on the issue. However we have no doubt that as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.

The Criminal Procedure Rule Committee may wish to clarify the scope of the Rule.

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 should suffice.

We shall now apply those principles to the individual appeals before us.

Facts

On Saturday 22 January 2011, the appellant (who is now aged 39) and the complainant met at a friend’s house, with others. The appellant made comments to the complainant which suggested that he found her sexually attractive. A group of them, including the appellant and the complainant later went to sleep in the living room. In the early hours of the morning the complainant awoke to feel fingers inside her vagina. She identified the appellant as the person responsible and immediately complained to those in the room. He was ejected from the house.

Scientific analysis connected the applicant’s DNA to the complainant’s underwear. Upon arrest the applicant denied any contact with the complainant. During his police interview he said that he had no recollection of touching the complainant and denied he would have acted as alleged. He expressly denied that he had any sleep disorder.

The appellant was tried by Mr Recorder Clarke QC and a jury at Burnley Crown Court in March 2012. By then, his case had changed significantly. He accepted that he had touched the complainant in the way alleged but he, and his wife, claimed that he was suffering from ‘sexsomnia’ (a sleep disorder where the subject behaves sexually in his sleep) and therefore he had not formed or been capable of forming the mens rea for the offence.

At the time of the trial, the appellant had 8 previous convictions relating to 16 offences. The offences principally involved dishonesty (including burglary of dwellings) but there were also 3 convictions for assault. They were all over 20 years old: the year of his last conviction was 1988. Evidence of these convictions was led by the defendant, without any prior warning either to the prosecution or to the Recorder.

The Recorder discussed with counsel before his summing-up the appropriate directions in the case. As to character, he referred to it as “a mixed bag, but of some antiquity”. At the conclusion of the discussion, he indicated that he would give a full good character direction on propensity (because none of the previous convictions were for sex offences) and that, whilst the convictions meant that he could not give a positive direction on credibility, he would make clear to the jury that the age of the convictions meant that they were “likely to have very little weight”. This approach was agreed by counsel then acting for the appellant.

The Recorder directed the jury in these terms as to credibility:

“You have to decide whether you believe him when he gives his evidence. He has given evidence on oath. You know all about his background. Sometimes when people have got a long history of previous convictions for dishonesty that would adversely affect whether a jury would believe them or not. Here it’s a mixed bag. He has committed offences but they were a very long time ago. In short he’s got nothing for very many years. He’s certainly been of good character for the recent past and he’s behaved in a good way, working for his family and as you have heard. So you will have to assess what impact if any those old convictions have in relation to the question whether you believe what he says. Obviously the weight that you give to those convictions is a matter for you but I highlight the fact that they are a very long time ago and since then he has behaved very well. But ultimately you will have to decide whether you can accept what he says.” [page 13A-G of the transcript of the summing-up]

The direction as to credibility was, therefore, in accordance with the prior discussion with counsel. The Recorder then went on to give a full propensity direction favourable to the appellant, which direction is not now challenged.

On 8 March 2012 the applicant was convicted of assault by penetration and later sentenced to 2 years imprisonment. He has the leave of the full court to appeal against conviction.

Ground of Appeal

On behalf of the appellant, it is argued that, although he chose to introduce evidence of his previous convictions, this was so that he might benefit from both limbs of a positive good character direction. No complaint is made about the propensity direction but complaint is made about the direction on credibility.

Mr Blaxland maintained, first, that the fact that no application was made by the Crown at trial to introduce his convictions under the Criminal Justice Act 2003 amounted to a concession at trial that the convictions were not probative, and meant that the judge was bound to give a modified good character direction. Secondly, in breach of the principle in M (CP) the judge abrogated his responsibility to decide whether the appellant was entitled to a credibility direction and left it to the jury to decide. Thirdly, the direction that the jury would have “to assess what impact if any those old convictions have in relation to the question of whether you believe what he says” was a serious misdirection because it invited the jury to consider holding his convictions against him, despite the lack of any probative value. No such direction would have been given had the appellant himself not elected to put his convictions before the jury. Fourthly, Mr Blaxland did not accept that this was necessarily a strong case, and the fact that the appellant had said something, which indicated a sexual attraction to the complainant, earlier in the evening, did not assist on the question of whether his sexual touching was conscious as opposed to unconscious. Had the appellant been awake he would inevitably have been aware of the reaction his behaviour would provoke from the complainant.

Respondent’s detailed Submissions

Mr Whittam submitted that the appellant’s extensive previous convictions meant that he was not a man of good character and was not entitled to be treated as such. There was no entitlement to a positive credibility direction. The appellant chose to put his previous convictions before the jury and there was no evidence that he was not advised as to the risks. He plainly did so to establish the absence of any previous convictions for sexual offences. However, once before the jury, the offending had to be addressed by the judge: it could not simply be left. A direction which invited the jury to ignore the convictions would have been a significant indulgence to the appellant and would have been an affront to common sense. In addition, Mr Whittam submitted that, faced with a difficult situation, the Recorder provided a balanced and ultimately fair direction, and that to describe the appellant’s character as something of a “mixed bag” was arguably generous to him.

Mr Whittam also submitted that this was a strong case. The appellant had paid unwelcome compliments to the victim on the night in question. There was a significant inconsistency between his interview under caution and his evidence at trial. In interview he stated that he did not know how his DNA could have got on to the victim’s underwear and he denied that he had a sleeping disorder that could account for what had taken place. His case at trial, in contrast, was that he had inserted his finger in to the victim’s vagina whilst he was asleep and that he did have a sleeping disorder. The jury plainly disbelieved the evidence of both the appellant and his wife. In all the circumstances therefore any misdirection that the court might conclude occurred does not render the conviction unsafe.

Analysis and Conclusions

First, for the reasons already set out above, we reject Mr Blaxland’s submission that, because the evidence of bad character was not adduced by the Crown under s.101, it follows that the defendant was entitled to a good character direction. That is a fallacious proposition for the reasons that we have explained.

Secondly, we do not agree that the Recorder abdicated his responsibility by leaving questions of character to the jury. This was not similar to the situation that arose in M(CP). On the contrary, the Recorder gave a full and positive direction on propensity about which no issue was taken. The only part of the character direction that is now in issue concerns credibility.

In his discussions with counsel, the Recorder concluded that a modified direction was appropriate and gave an appropriate direction. We consider that the direction given was as fair to the appellant as was possible in the circumstances. Even though the convictions were of some antiquity, the Recorder was quite entitled to conclude that the appellant was not entitled to a positive good character direction as to credibility; and that the weight that the jury gave his previous convictions was a matter for them. He fairly went on to highlight to the jury both the antiquity of the convictions and the fact that, since those offences were committed, “he has behaved very well”.

Finally, we conclude that, even if there had been a misdirection, it had no effect on the conviction. We agree with Mr Whittam that this was a strong case. The appellant had already made a remark to the complainant indicating his sexual attraction to her earlier in the evening; there could be no doubt that he had sexual touched the complainant whilst she was asleep; and although at trial his defence was that he had a sleep disorder, that was directly contrary to the answers which he had given in his police interview.

For those reasons, we consider that Walker’s appeal against conviction must be dismissed.

Facts

The mother of the complainant was a long-standing friend of the appellant. The appellant, who is now aged 51, spent a lot of time at their home. On 1 May 2010, C (then aged 15) complained that the appellant had sexually assaulted her on a number of occasions between 2008 and 2010. The police were informed and C was interviewed on two occasions, during which she made detailed complaints about the appellant’s conduct. These formed the basis of the indictment. They ranged from French kissing and love bites to two allegations of oral sex.

The appellant was tried by Her Honour Judge Mowat and a jury at Reading Crown Court in October 2011. The defence case was a compete denial. It was suggested that C had fabricated her account so that she could return home to live with her mother.

At the time of the trial, the appellant had 20 previous convictions for a total of 89 offences. 30 of these were offences of dishonesty, committed over a period of 17 years, including numerous burglaries and two offences of conspiracy to steal. He also had convictions for arson, common assault and a range of motoring offences. His last conviction had been in 1996.

In the discussion prior to the summing up, the judge agreed with counsel that the appellant was entitled to a modified good character direction. She went on to give that direction in these terms:

“We know about the defendant’s criminal past, but we also know that he has not been convicted of any offences since 1996 and he has never been convicted of any sexual offences. Please bear that in mind in deciding, first of all, whether or not he committed the offences you are considering today and, secondly, in deciding whether or not you can believe the evidence that he gives before you. Do not be tempted to convict him just because he has a criminal record or just because, if this be the case, you find his manner and attitudes unattractive. You have to look at the evidence that the prosecution put before you and decide whether you can be sure it’s true, that’s what it comes to.” [page 8D-G of the transcript of the summing up]

On 21 October 2011, the appellant was convicted on five counts of sexual activity with a child contrary to section 9(1) of the Sexual Offences Act 2003 (counts 1, 2, 4 and 7 were by majority verdict 10:2, and count 5 was by majority verdict 11:1) The jury failed to reach a verdict on two counts of sexual activity with a child, one of which related to an allegation made by C. He was sentenced to a total of 8 years imprisonment.

He appeals against conviction with leave of the single judge.

Grounds of Appeal

The first ground of appeal is that, although the judge set out C’s complaints to others in some detail in her summing up, she failed to direct the jury that such complaints were not independent evidence of the truth of her allegations. The question is whether this failure renders the conviction unsafe.

The relevant passages in the summing up were these:

“Now the prosecution, clearly, depends upon (C) and, to a lesser extent, [X]. If you cannot be sure that their evidence is true you can’t convict. That is the bottom line. What is encompassed in the expression ‘their evidence’? Well, it includes the video taped interviews you saw in (C)’s case, that is part of her evidence. It includes, in the case of both girls, what they said under examination in court and it also includes what they may have said to others, essentially before the matter was taken to the police or, indeed, after. That also is part of the evidence you can consider in deciding what happened.

When you are looking at their accounts to others you should, obviously, compare and contrast them with the sworn evidence that they gave (or their evidence under promise) in court. Decide whether they had been consistent or inconsistent because that may have a bearing on their reliability. Also, consider the circumstances in which allegations were first made; the background to the making of the allegations; the background to any additional information that was later provided because all of that, too, may well have a great bearing on the reliability of the girl concerned…” [pages 6H – 7E]

[Having reminded the jury of the accounts that C gave to the police]

“So there are the various accounts that C has given, all of them put together so that [you] can think about them, their consistency or otherwise in the circumstances in which they were given.” [page 25C-D]

The second ground of appeal is that the direction on character was inadequate because it did not emphasise how and why what is said to be the appellant’s good character was to be considered in his favour. The single judge observed in granting leave that she was “not wholly persuaded that the judge was right to agree that you were entitled to a modified good character direction.”

Appellant’s detailed submissions

Mr Blaxland relied on the authority of R v AA [2007] EWCA Crim 1779 and Pritchard [2011] EWCA Crim 2749, where the court considered the principle in R v AA and reviewed the authorities. The court held that, if a direction (that the evidence of complaint was not independent evidence of the events complained of) was not given, it may render a conviction unsafe, but that whether it did would depend on all the circumstances, including a consideration of the summing-up and the evidence as a whole. Further Mr Blaxland relied on R v AC [2011] EWCA Crim 1430, where the court quashed a conviction due to a failure to give an appropriate direction (in a case where the jury had convicted on counts in respect of which there had been a complaint, but acquitted in respect of counts where there had not); and R v Thompson [2014] EWCA Crim 743, where the court quashed a conviction in a rape case on the basis of a combination of a failure to give a sufficient good character direction, a failure to give a recent complaint direction and a failure to give a proper direction concerning the jury’s approach to the complainant’s demeanour.

Mr Blaxland therefore argued that the judge’s directions as to complaint in this case were inadequate, saying that he did no more than direct the jury that the evidence of the complaints “may well have a great bearing on the reliability of the girl concerned” and, having reminded the jury in detail of what the complainant had said to others, concluded with the comment: “So there are the various accounts that( C ) has given, all of them put together so you can think about them, their consistency or otherwise in the circumstances in which they were given.” Mr Blaxland also noted that the Crown relied on the consistency between her complaints to others and C’s evidence at trial and suggested that it was significant that the jury returned a verdict of not guilty in respect of an allegation made to the police officer, which had not been made to the aunt. He suggested that this indicated the importance that the jury attached to the evidence of the complaints when considering credibility.

Respondents’ detailed submissions

Mr Whittam, on behalf of the respondent, accepted that the learned judge failed to direct the jury that the complaint statements did not come from an independent source. He also conceded that it would have been preferable had the learned judge made that clear. However, he maintained that this did not (either separately or in conjunction with the other ground) render the conviction unsafe. He submitted that only one of the decisions cited actually assisted the appellant, and he relied upon the decisions of this court in R v Ashraf [2011] EWCA Crim 1571 and R v H [2012] 1 Cr App R 30. In the latter case, Rix LJ considered many of the other decisions and went on:

“It may be said moreover that it must have been obvious that the evidence of complaint was not independent of the children. It was their complaint. Nor did it have the immediacy and impact of truly “recent” complaint; and it was not a case where the conduct was acknowledged and the sole issue was consent.”

Mr Whittam said that, similarly, the directions given here rightly required the jury to concentrate on the evidence of the complainant. Indeed, when the judge referred to what she had subsequently told others, it was in the context of what she herself had said. Accordingly her complaints to others were placed in their proper context by the structure of the summing-up and, just as in Ashraf and H, it would have been obvious to the jury what the position was.

Further, in supporting the overall safety of the convictions, Mr Whittam noted that the jury were unable to agree on two counts on the indictment. One of those counts related to C and one to her sister. This revealed that the jury were able to assess the strength of the evidence on each count, and that the alleged misdirection in relation to the complaint evidence had no impact. That submission was supported by the fact that the count on which they could not agree which related to C was the allegation about which she had not initially informed her mother, but did subsequently inform a police officer. Mr Whittam said that this illustrated that the jury had focussed on the importance of the consistency of C’s various accounts.

Ground 1: Recent Complaint: Analysis and Conclusion

In our judgment, the submissions of the respondent on ground 1 are to be preferred. Despite Mr Blaxland’s attempts to distinguish both cases, we consider that the position here was very similar to that in Ashraf and R v H. It would have been quite clear to the jury that the complaints were made by C herself, so that there was no question of independent support. Moreover, the judge reinforced this with repeated references to the need for the jury to consider carefully the consistency between C’s various accounts (including the complaints).

In addition we consider that the summing-up, when considered as a whole, properly stressed the importance of whether or not the jury could be sure that C was telling the truth, both in respect of her evidence in court and her earlier accounts to others. The central issue for the jury was therefore properly and fairly highlighted. Accordingly, we conclude that there is nothing in ground 1 of this appeal.

Appellant’s detailed submissions

The second ground of appeal concerns the good character direction. Again, Mr Blaxland said that the Crown’s failure to adduce the appellant’s previous convictions under s.101 entitled him to a good character direction. The judge had failed to give such a direction, and instead directed the jury to “bear in mind” the age of the offences, and the fact that they did not include sexual offences, when considering whether the appellant had committed the offences with which he was charged and whether his evidence was to be believed. This failure to spell out the positive effect of the appellant’s recent good character and the lack of similar offending, alongside a warning about reliance on the defendant’s criminal record, Mr Blaxland complained, significantly diminished the necessary protection of the good character direction.

Respondent’s detailed submissions

Mr Whittam submitted that, although it was correct that there were no convictions for sexual offending, and no recent convictions, the appellant had a prolific record. The modified good character direction provided by the judge could not be criticised. His past offending was summarised crisply with the words “we know about the defendant’s criminal past”, with proper emphasis on the fact that he had not been convicted of any offences since 1996 and that he had never been convicted of any sexual offences. There was no misdirection.

Ground 2: Good Character Direction: Analysis and Conclusion

As to credibility, our analysis and conclusions are the same as that in the previous appeal of Walker. There was no automatic entitlement to a positive good character direction, regardless of the position under s.101. This was a defendant with a considerable number of previous convictions for both dishonesty and violence, and it would have been an affront to commonsense to say that he was entitled to a positive good character direction on credibility. He plainly was not.

In the circumstances, the appellant received a modified good character direction which, in our view, was generous to him. It referred to the previous offences but stressed their age. In addition, the judge made it plain that he had not been convicted of any sexual offences, and that the jury were not to convict the appellant just because he had a criminal record. The direction finished with the proper emphasis on the need for the Crown to prove its case.

Further and in any event, we consider that the case against the appellant was extremely strong. We are in no doubt that even a more positive direction on propensity would have had no consequence at all at the trial. We have concluded that the appellant’s conviction is entirely safe. Johnstone’s appeal against conviction is therefore dismissed.

Facts

The appellant is now 38. The complainant, C, who was born on 7 March 1995 lived with the appellant, his wife and their three other children in Manchester. On 22 March 2011, one of C’s friends noticed that she appeared to be very upset and asked what the matter was. C told her that the appellant had been sexually abusing her for the past year. Her friend told her to speak to a teacher, which she did. The police were contacted and C was interviewed. In her ABE interview, C described frequent sexual abuse from the age of 14 which included rubbing her vagina with his fingers, touching her breast while he masturbated to ejaculation, attempted vaginal intercourse and forcing her to give him oral sex. Shortly before her 16^th birthday, C claimed that the appellant inserted his penis in her vagina and then removed it and told her to suck it. He licked her vagina and again masturbated himself to ejaculation. The appellant was arrested on 23 March 2011. When interviewed he denied the offences. He said that he thought he had a good relationship with C and did not know why she was making up the allegations. He speculated that she might be attention seeking, or seeking to get him out of the family home because he might be considered too controlling.

The appellant was tried by HHJ Stockdale QC and a jury at Manchester Crown Court in January 2012. The appellant gave evidence that none of the allegations were true, and that all had been fabricated. He said that he suffered from diabetes, weight problems and physical conditions affecting his mobility and depression.

At the time of the trial the appellant had one previous conviction for obtaining property by deception on 20 September 2000, for which he received a Community Service Order. This conviction was admitted into evidence by agreement.

During the discussion prior to the summing-up, the judge said that he proposed “to give a standard direction” on character. He went on to say:

“It seems to me that the previous conviction of the defendant was for a wholly unrelated matter some time ago…and, subject to that, which is a matter of record, his character is, of course, good, and I will direct the jury accordingly.”

The judge’s direction to the jury was in these terms:

“Apart from one conviction for obtaining property by deception in September 2000 for which he received Community Service, he has no convictions of any kind for any sort of criminal offence. He has never been convicted of any sort of sexual offence. Members of the Jury, this is a matter to be taken into account by you. Whether the defendant, Mr Hunter, is the sort of man to commit serious sexual offences is relevant to your consideration of the case against him. The absence in his record of any previous such behaviour is a feature which you should consider in his favour. The weight you attach to his character is a matter for your judgment. In assessing its significance, you are entitled to take into account all the evidence you have heard about him. Good character cannot of course amount to a defence to the charges which the defendant now faces” [page 31D-G of the transcript of the summing-up].

On 30 January 2012, the appellant was convicted unanimously of five counts of sexual assault, two counts of rape, and one count of attempted rape. On 9 March 2012 he was sentenced on each count involving rape or attempted rape to Imprisonment for Public Protection with a minimum term of 7 years, less 39 days spent on remand; and on each of the other counts he was sentenced to 3 years imprisonment, concurrent.

On 3 August 2012, the full court refused a renewed application by the appellant for leave to appeal against that sentence. He now appeals against conviction, following a much later application, with leave of the single judge, who also granted the necessary extension of time.

Ground of Appeal

The single ground of appeal complains that the judge failed to give the credibility limb of the good character direction, despite indicating during discussions with counsel that he intended to give such a direction. We note that, to the extent that this was a simple omission, no-one pointed it out to the judge either at the time of the summing up or immediately thereafter. Indeed the point was not first raised until over two years after the trial had concluded.

Appellant’s Detailed Submissions

Again, Mr Blaxland advanced the argument that, because the bad character evidence was not adduced by the Crown, the defendant was entitled to a good character direction. This would have involved the judge reminding the jury of the appellant’s previous conviction and then going on to direct them that, because of the age of the conviction, they should treat the defendant as a man of good character and should take that into account in his favour when considering whether he was to be believed.

In so far as the respondent sought to uphold the conviction by reference to the strength of the case against the appellant, Mr Blaxland invited the court to bear in mind that this was a familiar case of one person’s word against another. The appellant was acquitted of two counts, so the jury plainly had some doubt about the reliability of the complainant. He relied on what he called ‘an abundance of authority’ to the effect that, even in a strong evidential case, a significant misdirection in relation to good character will result in the conviction being quashed.

Respondent’s Detailed Submissions

Mr Whittam conceded that, when the judge referred to his giving a “standard direction” he was referring to a standard good character direction. However, the appellant had a previous conviction for a single offence of dishonesty, so he was not a man of good character and he did not merit such a description. Thus, despite the omission, Mr Whittam submitted that the conviction was not unsafe. In particular, he said, the unusual description provided by the victim of the repeated nature of the offending was corroborated by the appellant’s description of his own sexual activities with his wife. In addition there was no realistic motive or reason for the victim to make up her allegations.

Analysis and Conclusions

The first point to note is that the judge promised to give, and did give, a full and positive good character direction on propensity. Thus the only point on appeal concerns the credibility limb of the direction.

We accept that the judge intended to give a positive direction on this aspect too. His failure to do so was a simple omission, albeit one that was not regarded as particularly important at the time, because the matter was not raised with him by either side. More importantly, in our view, for the same reasons as set out in the conclusions of the appeals of Walker and Johnstone, the appellant was not entitled to a positive good character direction. He had a conviction for an offence of dishonesty, so it would have been inappropriate for the judge to say that he was effectively a man of good character and that this reinforced his credibility. Instead, the direction that the judge did give made it plain that the appellant only had one conviction and that this was not for a sexual offence. We also note that the direction itself expressly referred to (and assumed) that the defendant was effectively a man of good character, because the concluding sentence of this part of the summing-up stated that “good character cannot of course amount to a defence to the charges which the defendant now faces”.

Furthermore, to the extent that the failure to refer expressly to credibility was an omission by the judge, we do not consider that this renders the conviction unsafe. There is no doubt that one of the telling elements of the evidence in this case was that, on the appellant’s own admission, he only ejaculated if he masturbated himself or his wife masturbated him. All of the sexual offences for which he was convicted involved ejaculation through masturbation. In our view, looked at in the round, the appellant’s conviction was safe. Hunter’s appeal against conviction is therefore dismissed.

Facts

The appellant, who is now 25 and his friend Conrad Makova went to a club on the night of 24 October 2011. The two of them met up with the complainant and her friend Charmaine Merchant. In the early hours they left together and returned to the appellant’s flat. The appellant’s brother, Mark, Mark’s friend DJ Sparks and the appellant’s friend, Farhad Zeewa, were also at the flat. The complainant had had too much to drink and went to lie down in the appellant’s bedroom. At around 5am Ms Merchant went into the bedroom and saw a man on top of the complainant, naked from the waist down. The complainant was asleep or unconscious. Ms Merchant and Mr Makova managed to get the complainant outside and into a car. A neighbour heard commotion and arguing outside and called the police. The appellant was arrested. In interview he denied the allegations and lied about his child being in the bedroom.

A sample of the complainant’s urine was analysed. The levels of alcohol indicated intoxication in a normal, social drinker that would have caused symptoms such as slurred speech, drowsiness, dizziness and nausea. Vaginal swabs and swabs from her thighs showed no semen in the vagina or on her body. DNA samples taken from her knickers showed a mixed DNA profile of the complainant’s and the appellant’s DNA, which were both major contributors to the profile. The DNA of at least one other person was found. DNA could be transferred through sexual contact or from another surface such as a bed. In addition, swabs taken from the appellant’s penis and from inside his boxer shorts showed his DNA profile mixed with the profile of at least three other people. It was not possible to ascertain whether the complainant had contributed to those profiles because of the complexity of the samples.

The appellant was tried by Her Honour Judge Lees and a jury at Snaresbrook Crown Court in October-November 2013. The prosecution case was that the man seen on top of the complainant was the appellant. The complainant was unconscious and so could not have consented to sex, and neither could the appellant have reasonably believed that she was consenting. His account in evidence was different from his account in his police interview.

The defence case was that he was not the man on top of the complainant. He did not enter the room that the complainant was sleeping in and he did not get on top of her. He said that he did not mention certain facts in his interview because he was only allowed to answer the questions he was asked.

The appellant had the following previous convictions: a conviction for drink driving in 2009 for which he was disqualified from driving and two convictions for driving while disqualified and without insurance in 2010. These previous convictions were admitted by agreement between the parties so that a good character direction could be given without misleading the jury.

The judge directed the jury in these terms:

“Joseph Saruwu, who is now 24 years old, 22 at the time of this, has told you that he has criminal convictions recorded against him …While that means he is not a man who criminal lawyers would call a person of good character because that would be someone without convictions, he does not have any convictions of a sexual nature and those he does have are quite different from anything of a sexual nature. The fact the defendant does not have any similar criminal convictions in his past may make it less likely that he acted as is now alleged against him. That is one thing for you to bear in mind. He also, it is agreed, pleaded guilty to all of his previous matters and, as you know, none of them involved offences of dishonesty either. In those circumstances you, I am sure, will agree that the convictions could not assist you with whether he has told the truth on this occasion or not and so do not be tempted to use them against him for that purpose. However, as I say, the judgment as to what weight should be given to the fact he has no previous relevant convictions and the extent to which that assists you on the facts of this particular case are for you to make. In making that assessment you are entitled to take into account everything you heard about him.” [pages13E –14F of the transcript of the summing up]

On 6 November 2013 the appellant was convicted, by a majority of 10:2, of attempted rape (count 2). On 14 November 2013 he was sentenced to 5 years’ imprisonment. He appeals against that conviction with leave of the single judge.

Ground of Appeal

The appellant complains that the good character direction was defective in that there was no positive direction in respect of credibility. No issue arises as to the propensity limb of the direction given by the judge.

The automatic entitlement to a modified good character direction was again urged upon us. Mr Blaxland argued that the question for the court was not whether the judge was right to treat the appellant as a man of effective good character, but whether she correctly directed the jury in relation to the relevance of the appellant’s character to his credibility. He insisted that it was settled law that a positive credibility direction is required in a case such as this. The judge therefore, misdirected the jury.

Respondent’s Detailed Submissions

The appellant’s previous convictions meant that he could not be regarded as being of good character. They were recent and repeated and involved breaches of court orders. Although they may have fallen short of establishing that he would take risks (especially when intoxicated) they were not irrelevant. The appellant may have been fortunate to have been given a direction in the terms set out by the judge. Although Mr Whittam accepted that the credibility limb of the direction was expressed in the negative as opposed to the positive, he said that that of itself should not render the appellant’s conviction unsafe. The fact that trial counsel did not raise any complaint at the time may be thought to provide some support for the submission that any misdirection did not render the conviction unsafe. If, as the respondents submit, the appellant was fortunate to get the direction that he did then it must also follow that the conviction is not unsafe.

Analysis and Conclusions

Again, for the reasons that we have already given, we do not consider that this appellant was entitled to a full good character direction, whether by reference to s.101 or at all. The judge concluded that the appellant was entitled to a modified good character direction and that is what she provided. As to propensity, the judge highlighted the fact that the appellant had no convictions of a sexual nature and those convictions that he did have were “quite different” from anything of a sexual nature. She went on to add that the fact that he did not have any similar criminal convictions “may make it less likely that he acted as is now alleged against him”. She also stressed that none of those previous offences related to dishonesty. Accordingly, we do not consider that any criticism can be made of the propensity direction.

As to credibility, as we have already said, the direction stressed that the appellant had not been convicted of any offences of dishonesty and that “the convictions could not assist you with whether he has told the truth on this occasion and so do not be tempted to use them against him for that purpose”. Given that, for the reasons that we have previously given, this appellant was not entitled to a positive credibility direction because of his previous convictions, we consider that the modified good character direction that he was given was eminently fair and reasonable. Indeed, we agree with the respondent that, in some ways, the appellant was fortunate to receive the direction in the terms that he did.

Saruwu’s appeal against conviction is therefore dismissed.

Facts

The complainant C was born in 1986. For a number of years she lived with the appellant, who is now aged 48. In about 2010, approximately a year before she complained to the police, C watched a television programme about child abuse with her boyfriend, and told him that something similar had happened to her. He encouraged C to tell her mother.

On 11 January 2011 C told her mother that the appellant had once asked her to have sex with him. Her mother confronted the appellant about the allegation, and he admitted that he had asked C for sex when she was 14 years old.

On 13 January 2011 C visited her aunt. She told her that the appellant had been coming into her bedroom at night. On 26 January 2011 the aunt reported to the police that the appellant had been sexually abusing C since she was 10 years old. C gave a detailed account in an interview with the police the following morning.

The appellant was tried by His Honour Judge Bartfield and a jury at the Crown Court in Bradford in June-July 2012. At the trial, the prosecution case was that, when C was between 10 and 16 years of age, the appellant had entered her bedroom at night on hundreds of occasions, stood in front of her, and masturbated himself.

The defence case was that the allegations were fabricated. Even though the appellant had asked C for sex on one occasion, he could not remember why he had done this, and he maintained that this had not disturbed their relationship. He thought C may have been motivated to make the allegations in order to secure a financial interest in a property which he owned.

At the time of the trial, the appellant had 15 previous convictions relating to 44 offences. Among these were 26 theft offences (including burglary and robbery) and 4 fraud offences. The most recent conviction was in 1991, when the appellant was 25. In addition, the appellant had received a caution in 2002 for the possession of cannabis resin. There were no previous convictions for sexual offences.

The defence adduced the appellant’s previous convictions to establish that he had no record of convictions for sexual offences.

There was a discussion prior to the summing-up as to the appropriate direction as to character. The judge said that, because of the previous convictions, positive good character did not apply, “other than to say, as it were, the negative. My intention is to direct the jury that these things do not take the matter any further one way or the other.” Experienced counsel who then appeared for the appellant agreed with that approach, emphasising that he had no offences recorded against him of a sexual nature.

In addition, there was a discussion about the admission made by the appellant that he had asked the complainant for sex. The appellant’s counsel said that she would be inviting the jury to consider, if the appellant had never made that admission, whether they would find the evidence good enough to convict him of the sexual offences. The judge agreed that she was entitled to take that course.

The judge directed the jury in the following terms in relation to propensity:

“You know that this defendant has a number of previous convictions for crimes of dishonesty but they are many years ago now and in the context of a troubled boyhood. I would be wholly wrong for you, in any way, to hold against him the fact that he has a list of previous convictions when he was a very young man and those criminal convictions are to play no part in your decision. The defence put them before you so as to demonstrate – and this is right- that he has no convictions for sexual matters. Obviously, if he was somebody who had a long record for convictions against young girls then that is something you would be entitled to take into account. But that is not the position here. And so his previous convictions play, as I have said, no part in your decision making in this case.”

On 2 July 2012 the appellant was convicted (by a majority of 10 to 2) of four counts of gross indecency with a child under sixteen years old, contrary to s.1 (1) Indecency with Children Act 1960. He was acquitted of three counts of rape. On 2 July 2012, he was sentenced to a total of 42 months imprisonment. He appeals against conviction with leave of the single judge.

Grounds of Appeal

There are two grounds of appeal. The first is that the judge erred in failing to give the appellant the benefit of an effective good character direction. The complaint is that, although the judge’s direction was in accordance with the discussion with counsel, it ought to have been put in positive terms, both in respect of propensity and credibility.

The second ground of appeal is that, during his summing up, the judge said to the jury that they should “use your instinct” and later, when talking about the impression made on the jury by the witnesses, he emphasised that “you are perfectly entitled to take your gut instinct into account and you should act upon it.” The complaint is that there was a real risk that the jury convicted the appellant not on a dispassionate and comprehensive assessment of all the evidence, but on an instinctive reaction to, or distrust of, the appellant. We note that this second ground of appeal was not something on which the single judge expressed a view.

Appellant’s detailed submissions

Again it was said that, the judge having concluded that the previous convictions were irrelevant and the prosecution having made no application to rely upon them in respect of credibility, the appellant was entitled to a full Vye direction. So far as the propensity direction was concerned, the accepted fact that the appellant had asked the complainant for sex when she was aged 14 was part of the factual allegation against him, and he should have had the benefit of a modified propensity direction along the following lines: ‘You know that the defendant has admitted that he asked C for sex when she was fourteen years old. You will have to decide what relevance that has to the charges, which he faces. On the other hand there is no evidence that he has ever in the past committed offences of a sexual nature. You should take this into account in his favour as, it may make it less likely that he acted as is now alleged against him. It is for you to judge what weight you give to this.”

Instead, Mr Blaxland argued that the direction given in relation to propensity involved reminding the jury that the defence had introduced the criminal convictions in order to show that the appellant had no convictions for sexual matters and then commenting: “Obviously if he were somebody with a long record for convictions against young girls, then that is something you would want to take into account. But that is not the position here. And so his previous convictions play no part in your decision making in this case.” He said that, in putting it that way round, the judge failed to give a positive propensity direction.

Respondent’s detailed submissions

Mr Whittam submitted that, such was the nature, scope and extent of the appellant’s previous convictions, it was an affront to common sense to call him a man of good character. Any detailed direction would have had to have addressed the sheer number of convictions for dishonesty so that, however phrased, it would not have assisted the appellant. That was the view that the judge formed and he informed defence counsel of that fact. Mr Whittam submitted that the direction that the appellant was given was to his advantage, simply referring to “a number of previous convictions for crimes of dishonesty”. Further, he relied on the appellant’s admission in his police interview that, when the victim was 14 years of age, he had asked if he could have sexual intercourse with her. This was plainly an admission of reprehensible conduct within the meaning of the CJA. The appellant was not entitled to a positive propensity direction. The direction that he was actually given was fairly balanced.

Analysis and Conclusions

We accept the respondent’s submissions. The appellant was a man with a lengthy criminal record. It offends against commonsense to suggest that he was entitled to a positive credibility direction in his favour. Moreover, as to propensity, the judge was careful to point out (just as in the case of Saruwu) that the appellant had no previous convictions for sexual matters. Given the scale and nature of the appellant’s offending, we conclude that this was the most this appellant could have expected, particularly in the light of his approach to the complainant when she was 14.

Furthermore, we are bound to note that the direction that the judge gave was precisely that which it was agreed he would give, following discussion with experienced counsel representing the appellant at trial. The direction which it is now said that he should have provided in respect of the incident when the complainant was 14 (paragraph 181 above) was never suggested to him; instead, that was what the appellant’s counsel said she would say in her speech, a course that the judge agreed. There was no requirement for the judge to give any such direction.

For all those reasons, we conclude that there is no basis for the first ground of appeal.

Appellant’s detailed submissions

The second ground of appeal complains of the judge’s observation towards the beginning of what was a short summing-up that in assessing the credibility of the witnesses the jury should use their ‘gut instinct’. The appellant maintains that, not only did the judge direct the jury to decide the case on instinct, but he completely failed to give any direction about the need to approach the case without emotion. Mr Blaxland described the failure to give such a direction in a case involving allegations which were likely to provoke hostility towards the appellant as a serious omission. The judge failed to provide the appellant with a sufficient safeguard against the danger of wrongful conviction.

The fact that the appellant was acquitted of the more serious offences indicates that the jury had some doubt about the reliability of the evidence of the complainant. His conviction was by a majority. This suggests, it was said, a measure of doubt as to the reliability of the complainant. This was a finely balanced case. The court cannot, therefore, be confident that the jury would necessarily have convicted had they been correctly directed in the summing-up.

Respondent’s detailed submissions

Mr Whittam invited our attention to the summing-up as a whole. The learned judge directed the jury clearly on the burden and standard of proof and on their function. He made it clear to the jury in relation to counts 1 – 4 that “either she is telling the truth about these things and you are sure about it, or you are not”. He also made clear to them “you decide who you believe and who you do not. You decide in respect of any particular witness to what extent the witness may be honest, but mistaken … this case could be summed up in four words. Who do you believe?”

Mr Whittam accepted that it would have been preferable if the words “gut instinct” had not been used. However, when looked at as a whole it is submitted that the summing-up was balanced and fair. Moreover the overall safety of the convictions was reinforced by the fact of the mixed verdicts. This illustrates that the jury considered which evidence they accepted and when they did not and how carefully they approached their task.

Analysis and Conclusions

We agree that it would have been better if the judge had not used the words ‘gut instinct’. But we also agree that the summing up has to be looked as a whole. We consider that, when that exercise is undertaken, no sensible criticism can be made of it. It properly identified the critical issue as being whether or not the complainant was credible. Furthermore, the mixed verdicts make only too clear the fact that the jury took this issue very seriously.

In addition, we do not consider that it is necessary for a judge in every sex case to warn the jury about their emotions. In many cases, it will be quite apparent to everyone that the background to the case is emotionally charged, and that it is for the jury to act dispassionately, on the basis of the evidence. We consider that the judge’s directions in this case made that abundantly clear. This was a cool and unemotional summing-up, and would have sent an unequivocal message to the jury that they had to consider their verdicts in the same way.

Accordingly, for the reasons set out above, we dismiss Lonsdale’s appeal against conviction.