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Good Character Directions and Blemished Defendants
Jennifer James LLB, BCL
Senior Lecturer in LawUniversity of Reading
< j.james@reading.ac.uk>
Copyright © 1996 Jennifer James.
First Published in Web Journal of Current Legal Issues in association with Blackstone
Press Ltd.
Summary
Contents
Bibliography
Introduction
It is now almost three years since the landmark decision on the appropriate direction to give to a jury in respect of an accused of good character handed down by the Court of Appeal in R v Vye; R v Wise and R v Stephenson [1993] 1 WLR 471, CA, (hereafter Vye). The decision which was designed to give "clear guidance on the relevant principles", while followed in innumerable cases did not dam the flood of litigation on the issues of good character directions which had begun with R v Berrada (1989) 91 Cr App Rep 131, CA (1). Despite Lord Taylor CJ's attempt to provide clear guidance on good character directions there have been at least eighteen Court of Appeal decisions in this area since Vye.One significant stream of cases (2) has concerned the appropriate direction to give in respect of an accused, who while not of absolutely good character, is at least of goodish character - the so-called blemished defendant. The House of Lords has also had one bite at this particular cherry in R v Aziz [1995] 3 WLR 52. Has this extensive appellate activity left us with clear principles applicable to character directions in respect to blemished defendants? Let us consider first the context in which this issue arises.
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What is evidence of character?
Generally, when evidence of character - good or bad - is admissible at all it must be illustrative of the disposition of the accused. Moreover, the law does not, other then in exceptional cases (see for example Lowery v R [1974] AC 85, PC), admit such evidence unless the accused has manifested this disposition by objectively demonstrable actions. Hence, for bad character, previous criminal acts (whether the accused has been convicted or not) or other highly relevant, proven discreditable conduct is required. Traditionally, for evidence to be probative of good character (see for example the Criminal Evidence Act 1898, s 1(f)(ii)), good works or positive, demonstrable character trait, were required. However, for the purposes of the Vye direction the absence of discreditable acts or convictions may suffice.A line of cases deriving from R v Rowton (1865) LJMC 57, CCR, has taken a different view of what constitutes evidence of character. It held that evidence of character (good or bad) must be limited to testimony as to the general reputation of the accused without reference to any specific acts. According to Rowton, a witness can refer neither to his own knowledge of the accused nor to specific incidents involving the accused since neither reveal general reputation. The decision has been much criticised; clear judicial criticism is to be found in Selvey v DPP [1970] AC 304, HL and there are many cases in which Rowton is just ignored. Academic criticism of Rowton began early (see Stephen 1882, p 450); more recent criticism can be found in Cross and Tapper (Cross and Tapper 1995, p 349) and Murphy (Murphy 1995 pp 114, 115). Rowton cannot be applied if it is the accused who is giving evidence for he can hardly be limited to relating the reputation he has in the eyes of other people. In the recent case of R v Durbin [1995] 2 Cr App Rep 84, CA, the court took the view that character was not synonymous with reputation although evidence of reputation could be relevant to the issue of character.
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The admission of good character evidence
No clear explanation of why good character evidence can be given by an accused is to be found in the law reports; it is usually described as a concession to the accused (see, for example, R v Miller [1952] All ER 667, CA). Stephen said that: "[e]vidence as to the character of the accused person is admitted in criminal cases as a sort of indulgence though character is usually treated as irrelevant." (Stephen 1882) (3). Nor is it certain when good character evidence became admissible although the practice is hallowed by long usage (see for example R v Turner (1664) 6 St Tr 565 and R v Harris (1680) 7 St Tr 926) although a clear rule emerges in the eighteenth century - see particularly, R v Hardy (1794) 13 St Tr 267 and R v Horne Tooke (1794) 14 St Tr 123. Evidence of good character may be given in evidence in chief by a defendant or his witnesses or be elicited from a witness in cross-examination on his behalf.Top | Contents | Bibliography
The evidential effect of good character evidence
In 1989, in R v Berrada, the Court of Appeal took the view that where a defendant of good character has given evidence, the judge must direct the jury about the relevance of good character to the credibility of the defendant - this is now known as the 'first limb' of a good character direction: Berrada did not deal with a non-testifying defendant nor did it consider the issue of co-accused with different characters. In Vye, Lord Taylor CJ confirmed the necessity for a 'first limb' (credibility) direction where the accused testifies. He then ruled that a non- testifying defendant is also entitled to a 'first limb' direction: "when the defendant has not given evidence at trial but relies on exculpatory statements made to the police of others, the judge should direct the jury to have regard to the defendant's good character when considering the credibility of those statements." He added that the judge would be entitled to point out that such statements were not on oath (4). The justification for the mandatory direction being "when the jury is considering the truthfulness of any such statement it would be logical for them to take good character into account, just as they would in regard to a defendant's character."Lord Taylor CJ further ruled that where a defendant is of good character, whether he had testified or not, the judge should give a 'second limb' direction, namely the effect of good character on the issue of propensity. The court accepted that the form of the direction is for the judge to determine and it should be tailored to the particular circumstances but that the appeal court "will be slow to criticise any qualifying remarks he may make based on the facts of the individual case."
Cases since Vye have stressed that failure to give both limbs of the good character direction where appropriate (the credibility direction will depend upon the accused testifying or relying on out of court exculpatory statements; the second limb direction applies to any defendant, since propensity is relevant even in respect of a non-testifying defendant who has made no exculpatory statement) will generally lead to a conviction being quashed (5). This may be the case even where the jury have heard all the character evidence but the direction is omitted or incomplete (6). Given the importance now laid upon the appropriate directions for an accused with a good character it is critical to discover who falls within this category.
The Court of Appeal in Vye did not provide guidance on what constituted evidence of good character, while accepting that the defendants in the three cases there considered fell within that category (7). Particular difficulty has arisen in respect of 'blemished defendants', that is defendants whose record is not wholly free of discredit.
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Blemished defendants
The court in Vye seemed willing to treat an accused with convictions or other blemishes as being of good character and thus entitled to one or both (depending on the case) limbs of the good character direction. Indeed, the co-accused in the third of the Vye cases was so treated despite having a youthful conviction. This raises two possibilities: either, an accused with a blemished character may be of 'good' character and entitled to a Vye direction, albeit tailored to the facts of the case: or, such an accused may be regarded as not of good character at all and thus not entitled to any part of the Vye direction.The House of Lords has recently had its first opportunity to consider the appropriate direction to be given to a jury when faced with a defendant of 'good' character, that is with no convictions, whose character is in fact blemished. In the case in question, R v Aziz [1995] WLR 53, A, Y and T had been convicted of conspiracy to cheat the public revenue by the evasion of VAT and offences contrary to of the Value Added Tax Act 1983, s 39(3). Their convictions were quashed by the Court of Appeal; the prosecution appealed to the House of Lords and the Court of Appeal certified the following question:
"Whether directions in accordance with R v Vye [1993] 3 All ER 241 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 evidence be given?"
In fact the appeal was concerned with a narrower question (8). Namely, whether a defendant with a good character, but who admits he has committed crimes (there are other types of character blemish: see below for an analysis of differing types) was entitled to a direction on character in accordance with Vye. Who may be said to fall into the category of a blemished defendant?
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Who is a blemished defendant?
A defendant may have a blemish on his character in any number of ways. There are three main categories:
- a. The accused who has minor or long past convictions (the convictions
group).
- b. An accused who has no convictions but who admits the commission of other crimes or in respect of whom there is evidence that he has committed other offences (the criminal group - the category in Aziz itself).
- c. The accused with no past convictions who is charged with two offences based on the same incident, to the lesser of which he pleads guilty (the concurrent group).
- b. An accused who has no convictions but who admits the commission of other crimes or in respect of whom there is evidence that he has committed other offences (the criminal group - the category in Aziz itself).
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a. Minor or long-past convictions
First, it should be noted that the Rehabilitation of Offenders Act 1974 does not apply to evidence in court although a spent conviction can be referred to only with the leave of the judge. However, it seems arguable that, at least in relation to the scope of the judicial direction in respect of good character, a defendant can have past convictions and still be of good character. It is clear that whether such a defendant is to be treated as of good character is for the judge to determine. Equally clearly, if a convicted person is ruled to be of good character the two limbs of the Vye direction (appropriately modified if necessary) must be given.In a number of cases a convicted person has been treated as being of good character for the purposes of the direction on character. Lord Taylor CJ in R v Horrex (1993) unreported, CA, put it thus: "[i]t must be a matter for the judge's discretion where the previous character is not absolutely good, in the sense of there being no blemish upon it at all" and in R v Micallef, The Times, 25 November 1993, the Court of Appeal took the view that: "[u]nless the trial judge reaches a clear conclusion that a defendant is not a man of good character the direction should be given." Not all cases are as inclined towards giving the accused the benefit of the doubt. In R v O'Shea [1993] Crim LR 951, CA, the accused who was charged with possession of cannabis with intent to supply, had two convictions for minor offences many years previously (1962 and 1973) and his counsel argued that he should be treated as a man of good character. The judge had ruled that the issue of whether a person was of good character was a matter of judicial discretion but was resolute in refusing to disregard convictions (even long past convictions) in his direction on character if he would, in any way, be misleading the jury. In this case the judge had told the jury that the accused's convictions were minor, that he was sure the jury would not hold such convictions against him and that he had never been in trouble over drugs. The Court of Appeal upheld the conviction.
O'Shea, a case decided some months after Vye and which case was not cited, can not mean that a person with convictions can never be of good character (and thus never entitled to either limb of the Vye direction) since that would be contrary to Vye itself. However, the case seems to suggest that a defendant with minor, long past and non-relevant convictions must always have those convictions referred to in any character direction since to say that such a person had no convictions would mislead the jury. While Lord Taylor CJ in Vye spoke of tailoring the direction to the accused the tenor of that case seems to support the notion that such a defendant could be treated as of absolute good character and that the judge need not refer to the past convictions at all; this interpretation seems more consistent with other post-Vye decisions. O'Shea was referred to by the Court of Appeal in R v Hitchens (1995) unreported, CA, but its import was not discussed since the judge in this case fell into the larger error of failing to say anything about the character of the appellant because of the markedly different character of a co-accused. However, the court seemed to suggest, obiter, that the appropriate direction in respect of Hitchens would be to describe him as of good character, and thus entitled to both limbs of the Vye direction, albeit he had one minor conviction many years previously. This seems to offer some support to the O'Shea view.
Some past offences may be such as to lead to the accused losing the mantle of good character entirely. Similarity between the offences emerging and the current trial tend to diminish the chances of the accused being of good character as will repeated offences and more recent criminal activity. Lying about the existence of past convictions is also likely to lead a judge to rule a defendant is not of good character (9). Blemishes which have not precluded the accused being treated as of good character include: a recent conviction for possession of cannabis (R v Wren [1993] Crim LR 952, CA, charge of indecency against qualified barrister, aged 39, practising in industry); convictions for dissimilar offences 12 years previously (R v Arif, The Times, 17 June 1993, CA, reputable restaurant owner charged with fraudulent importation of cannabis): a conviction five years previously for a drink-driving offence (R v Timson and Hales [1993] Crim LR 58, CA, unqualified solicitor's assistant charged with the solicitor with obtaining property by deception by making fraudulent claims on the 'Green Form' Legal Advice scheme); a conviction 13 years before for possession of an offensive weapon (R v H [1994] Crim LR 205, step-father charged with indecent assault on his step-daughter); and, two convictions for theft 20 years previously (R v Heath, The Times, 10 February 1994,CA, long distance lorry driver charged with fraudulent importation of 211 kilogrammes of cannabis).
Apart from the inherent uncertainty of knowing in advance whether a court will disregard past convictions, the approach manifested in these cases seems eminently sensible.
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b. Unconvicted criminals
Turning to cases involving an accused with no convictions but who has committed other offences, which fact emerges during the trial. In Aziz, for example, a number of people were prosecuted in respect of a widespread scheme to evade income tax and VAT; three of the defendants were A, Y and T, none of whom had prior convictions. A did not testify but put forward the defence that he had been misled by his co-defendants. A had made exculpatory statements to investigating officers but had also made damaging admissions. The judge gave the second limb direction (propensity). Y and T did testify, both of them admitted they had committed offences for which they had not been prosecuted (knowingly making a false mortgage application, under-declaring income to the Inland Revenue and allowing employees to under-declare income to the Revenue). The judge gave the first limb direction (credibility) in respect of both of them. The House accepted that the judge had erred in failing to give both the credibility and the propensity direction if the accused were of good character and that the conviction was rightly quashed by the Court of Appeal.Of wider interest is the discussion of whether the accused who admitted other offences (Y and T) were of good character at all and thus entitled to a Vye direction. Lord Steyn (with whom the rest of the House concurred) considered two propositions. First, that an absence of convictions meant an accused was of good character and the Vye directions, qualified if necessary, must be given. Second, that an accused's criminal behaviour may, despite the absence of convictions, permit a judge to terminate the accused's status as a person of good character and decline to give a Vye direction. He plumped unhesitatingly for the latter saying that "a sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with R v Vye in a case where the defendant's claim to a good character is spurious." Hence, he ruled, a judge has a discretion to decline to give a character direction if to do so is an insult to common sense. He added that the discretion to dispense with a Vye direction is of a limited variety and prima facie the direction should be given.
Thus, in many cases it may be appropriate to give the directions and then add words of qualification concerning other proved or possible criminal conduct of the accused which has emerged during the trial in order to ensure the jury receive a fair and balanced picture. However, in those limited cases where it would make no sense to give directions they may be dispensed with altogether. Lord Steyn left the determination of whether the accused receives a qualified direction or no direction to the good sense of the trial judge.
Two earlier cases, approved in Aziz, provide some guidance on the type of situation where it would be farcical to give Vye directions. From these one could conclude that the critical issues appear to be the relative degree and type of criminality which the accused has admitted. In R v Zoppola-Barraza , The Times, 6 May 1994, CA, the court was strongly influenced by the similarity between the offences admitted (illegal importation of gold in order to evade VAT) and that with which he was charged (illegal importation of cocaine). In R v Buzalek and Schiffer [1991] Crim LR 116, CA, B and S were charged with fraudulent trading. The dishonesty they admitted at trial was in respect of false financial references and similar incidents; the accused were held not of good character since they had admitted dishonesty in respect of incidents other than that with which they were charged. Further, in R v Akram [1995] Crim LR 50, CA, a case in which the jury knew that the accused, who was charged with possession and possession with intent to supply heroin, had used heroin, he was not treated as of good character. Little enthusiasm can be felt for this decision in which the Court of Appeal seemed to suggest that, since A could have been cross examined about his use of heroin because he had cast imputations on a prosecution witness (i.e. under the Criminal Evidence Act 1898, s 1(f)(ii) - the second part) this justified failure to give the full character direction. However, cross examination under section 1(f)(ii) is aimed only at the credibility of the accused and is anyway subject to a discretion to disallow it where it might, as here, lead a jury to argue that previous use of heroin was relevant to the issue of guilt. Surely, that A might, or might not, have been cross examined with a view to shaking his credibility should not affect whether there should be a direction on propensity for a person with no convictions.
Cases involving an unconvicted, but criminal, accused give rise to greater difficulty than those relating to defendants with petty past convictions. It has been argued by Professor Birch (Birch 1994, p 834) that the simplest approach would be to treat all unconvicted defendants as of good character and leave it to the judge to tailor the character direction appropriately when the defendant has, until now, evaded detection rather than failed to commit crimes and this approach finds support in R v Micallef which was not discussed in Aziz. In support of Lord Steyn, it would seem very odd for a judge, who has admitted evidence of past criminality under the similar fact rule as demonstrating a propensity to commit the crime charged, still to give, even in suitably tailored form, a character direction saying that the accused's lack of convictions can be taken into account in determining whether he has the propensity to commit the type of crime with which he is charged (10). Consequently, the House of Lords decision in Aziz, provided the directions are not lightly discarded, is to be welcomed.
Perhaps surprisingly, the House in Aziz did not refer to the Court of Appeal decision in R v Durbin [1995] 2 Cr App Rep 84, CA, decided some two months before the hearing in Aziz (and some four months before judgment). In Durbin, the accused, a lorry-driver, was charged with knowing importation of a controlled drug. D admitted that he was engaged in smuggling goods (which he believed to be computers) across borders in mainland Europe to evade VAT or other Customs duties and also had two minor, old convictions; the judge did not give any direction in his summing up on the issue of D's character (having fallen into the same trap as in Hitchens, above, of saying nothing about the character of one co-accused when the other co-accused was of manifestly bad character). The facts of this case bear a similarity to those of Zoppola-Barraza where Alliott J had described it as "an affront to common sense to hold that such a person is entitled to the same direction that is intended to benefit those who can truly be regarded as of good character." The Court of Appeal agreed that, on its facts, Zoppola- Barraza was correctly decided but felt able to distinguish it in this case. In the former case, the accused had a smuggling business of which the importation which formed the subject matter of the charge was but a part, whereas here the smuggling was put forward by the accused as an explanation of the particular transaction in which the importation of drugs was discovered but he was not admitting an organised smuggling business. Clearly, held Evans LJ, D could not be regarded as a model citizen but the circumstances did not disentitle him to any direction on character. The appropriate course where a defendant was "entitled to a good character direction, based on his previous good character" was to give a good character direction "even though its terms may have to be modified in the light of admissions made by the defendant as to the circumstances of the offence charged against him". Where a qualified direction is given it should be "in realistic terms, taking account of all the facts as they are known to the jury. The jury should not be directed to approach the case on a basis which, to their knowledge, is artificial or untrue." On the facts, D was to be regarded as of good character and a direction should have been given - a retrial was ordered.
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c. No convictions prior to the current incident
Finally, what of a defendant who pleads guilty to an offence arising out an incident but not guilty to a more serious charge based on the same event - a special type of the previous category of defendant. Four Court of Appeal cases are in point: R v Teasdale [1993] 4 All ER 290; R v Challenger [1994] Crim LR 202; R v Micallef, The Times, 25 November 1993; and R v Shepherd [1995] Crim LR 153.In Teasdale, there had been a fight between the former and current boy friends of J at J's home; the fight turned into a fracas and J and T became involved. J suffered minor and serious injuries. The accounts given by J and T differed markedly as to the cause of the serious injury (an attack by T or an incidental blow emanating from the principal fight between the boyfriends) but T admitted the minor assault. The case turned on the jury's assessment of the evidence of J and T; the Court of Appeal considered a character direction was required - particularly since the relative credibility of the protagonists was crucial to the issue. Morland J pointed out that in Vye the Court of Appeal agreed that a character direction on credibility was mandatory even in respect of an accused who had lied to the police so that similar credit must be given to an accused "who has frankly admitted an offence in the indictment."
This case was not followed in Challenger in which C, who had no prior convictions, pleaded guilty to possession of cannabis but denied the further charges arising from his arrest - possession of cannabis with intent to supply and possession of an offensive weapon (a knife). The judge declined to give any direction on character. The Court of Appeal upheld the convictions in respect of all counts and distinguished Teasdale on the basis that it was applicable only where the charge to which the accused pleaded guilty was, in effect, a lesser alternative to the charge in issue. As Roch LJ put it:
"[i]n our judgment, once a person has pleaded guilty to an offence he ceases to be a person of good character and the full character direction becomes inappropriate in such a case, unless the offence to which he has pleaded guilty is an alternative to that on which he is being tried and the facts are such, that if his conviction on the greater offence is brought home then his guilty plea on the lesser offence has to be vacated, so there is no conviction." (Lexis Transcript)
The court then accepted that, depending on the circumstances of the case, a judge had a discretion as to whether to give a direction on the defendant's character in so far as it related to credibility.
The basis of the distinction between these cases seems unconvincing and introduces a yet further twist in respect of the direction to be given in respect of defendants with no previous convictions. The Teasdale approach requires the judge to give a direction and then leave it to the jury to determine the weight the unsullied character has in the scales - such an approach seems both more consistent with Vye and more likely to promote consistency of practice.
Neither of these cases was discussed in Micallef (11) or Shepherd. In Micallef there was history of acrimony in respect of custody and access to C, the son of the accused and X. The accused approached X (in itself a breach of undertakings) and tried to talk to her, he admitted he had a knife with him and waved it about near her face in order to emphasise his words. During this discussion X's face was cut. M admitted reckless wounding (Offences Against the Person Act 1861 s 20) but denied wounding with intent (contrary to s 18). The full character direction was not given. The Court of Appeal, in quashing the section 18 conviction, concerned itself principally with the previous breach of undertakings by M (see above) and, rather surprisingly, ignored the contemporaneous offence. The court was clearly of the view that the full good character direction should be given to a person with no convictions other than in the most exceptional of cases, albeit suitably tailored in the light of any adverse character evidence. Clearly, this case could come within Teasdale as explained in Challenger but the tenor of the judgment is markedly in favour of treating an accused without prior convictions as of good character in most cases.
Finally, in Shepherd the accused was charged with multiple counts of obtaining state benefits by deception and obtaining property (mortgage advances) by deception. He pleaded guilty to the social security frauds. The court upheld the convictions for the mortgage frauds and did not dispute the judge's decision not to give a direction that S was of good character: ie the contemporaneous fraud rendered S other than of good character. This decision is in line with Challenger rather than Teasdale but neither case seems to have been discussed and the appeal was principally concerned with implicit comment on S's character provided by the good character direction about a co-accused. It should be noted that counsel for S had down-played the social security frauds so that the failure to give a Vye direction, which would have been heavily qualified to reflect the admitted fraud, was probably beneficial to S.
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Conclusion
The valiant attempt by the Court of Appeal in Vye to clarify the position relating to good character evidence has solved one question but rendered another - is the accused of good character - of crucial importance. Perhaps no consistent pattern can be expected given the differing types of blemish which an accused of predominately good character may manifest. However, it seems desirable for some attempt to be made to classify some common blemishes as fatal or otherWise to the possession of a good character.Perhaps convictions which are for other purposes spent should be disregarded in determining if the accused is of good character. More recent convictions might also be disregarded if non-relevant to the current charge though this seems less satisfactory and more productive of uncertainty. It could be argued that more recent (or more serious) convictions should be drawn to the attention of the jury who should be directed as to the relevance or otherWise of such convictions.
An accused who admits criminal acts but who has no convictions is perhaps best left to the discretion of the judge who can assess the relative degree of good and bad within the accused's character and this may also be appropriate for an accused who admits a contemporaneous offence. However, even in these case it is surely appropriate to remember that the starting assumption is that an accused is entitled to be treated as of good character unless the contrary is established.
Judges are surely capable of distinguishing those accused with long-past, minor convictions (who could be regarded as of good character) from those who have committed serious crimes which have remained undetected until raised at the trial for some other offence (not of good character). Certainly what should be avoided is the pre-Vye free for all which seemed to appeal to the Court of Appeal in R v Wood. Perhaps even more fervently to be resisted is statutory intervention: a cry of trust the judges or even trust the juries is not always heard in the field of evidence but the cry of trust the politicians is a very rare bird.
Bibliography
Birch, D (1994) comment on R v Zoppola-Barraza [1994] Criminal Law Review 833, 834.Cross, R and Tapper, C (1995) On Evidence, 8th ed. (London: Butterworths).
Murphy, P (1995) A Practical Approach to Evidence, 5th ed. (London: Blackstone Press).
Stephen, J (1882) History of the Common Law (London: MacMillan & Co).
Footnotes
(1) The decision in Vye was a trifle slow in percolating through to some courts and appeals are still being heard on cases where the judge failed adequately to implement that decision. It seems that there is only one case where a court has expressed reservations about the correctness of Vye: R v Wood, The Times, July 11, 1995,CA. Back to text
(2) The other major source of litigation has been the appropriate direction when an accused of good (or goodish) character is tried with a person of bad character. Back to text
(3) The concession is two-edged since a defendant by adducing evidence of general good character opens up the possibility of specific incidents of bad character being given in rebuttal by the prosecution or a co-accused. Back to text
(4) Section 35 of the Criminal Justice and Public Order Act 1994 would now require the judge to direct the jury that they can draw such inferences as appear proper from the failure to testify. Back to text
(5) See, for example, R v Liacopoulos, Ifill and Marulanda (1994) unreported - no first limb direction, retrial ordered; in R v Heath , The Times, February 10, 1994; R v Micallef, The Times, November 25, 1993, no second limb direction was given and the convictions were quashed; in R v Durbin [1995] 2 Cr App Rep 84, CA and R v Wood, The Times, July 11, 1995, CA - no second limb direction - a retrial was ordered. However, in R v Hitchens , The Times, February 13, 1995,CA, the judge's failure to refer to the accused good(ish) character when defence counsel had made much of that evidence and the other evidence against the accused was "overwhelming" was not treated as sufficient to quash the conviction. Back to text
(6) Where, however, the judge omits the credibility direction but the case manifestly raises the issue of credibility, ie the issue is anyway before the jury, such an omission should not, it is argued, lead to a conviction being quashed. It also seems arguable that to omit the second limb direction, particularly in respect of an accused whose good character evidence is limited to an absence of convictions, should not be an automatic ground for quashing a conviction. Back to text
(7) The relevant good character possessed by the defendants or co-defendants in Vye, Wise and Stephenson were as follows: Vye, 50 and with no previous convictions; Wise, 35 and "had worked in the secondhand car trade for some eight years and had not fallen foul of the law"; and while Stephenson was not of good character his co-accused, H, was "save for one 'peccadillo' at the age of 16". H was treated him as of good character despite the blemish on his record. Back to text
(8) In addition the House of Lords considered arguments adduced by counsel for the Crown that R v Sharp [1988] 1 All ER 65, HL, was wrongly decided. Back to text
(9) R v H [1994] Crim LR, CA, was a case where the accused may have lied about the circumstances of the conviction. The Court of Appeal refused to find him disentitled to the good character direction because there was no certain evidence that he had lied. It might be preferable to find that lies about the circumstances of a conviction should be disregarded, and the conviction alone considered, in determining if a person is of good character. Back to text
(10) See the comment of Lord Taylor CJ in Vye discussed below concerning the accused whose conduct in participating in the incident at all could be said to affect good character. Back to text
(11) The existence of these cases was drawn to the attention of the court after the judgment was drafted and the court said they did not affect its judgment. Back to text