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Character Evidence - Criminal Litigation (BPTC)
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Character Evidence(1) GOOD CHARACTER
Relevance and admissibility of good character
In any crim case the D is permitted to demonstrate to the tribunal of fact that
he is of good character.
Evidence of good character is admissible as of right; both to show that:
o (1) accused is less likely to have committed the offence because he
lacks the PROPENSITY to do so; AND
o (2) (where CREDIBILITY is in issue) to show he is more likely to be
truthful than a person who is not of good character.
Good character usually demonstrated by showing that D has no pre-cons.
Rule that fairness requires judge to give the jury specific directions on
relevance of evidence of good character Vye.
The impact of Hunter (2015, CA) & unmeritorious claims:
o Restored law to more principled basis
o CA: thoroughly reviewed good character directions;
o Said benefits of good character directions should not be extended to
Ds who, because of their convictions/cautions/misconduct do not
merit being treated as of good character. Had been over-extended
following Vye and Aziz.
o The question of what directions (if any) to give re Ds who are no
longer entitled to a full direction a matter for trial judge’s general
discretion, based on need to ensure a fair trial.
o CA, henceforth, ret he law: only necessary to refer to Hunter, Vye and
Aziz.
o So Hunter now has set down the definitive law re good character
o Hunter was out of sympathy with the importance accorded to good
character: CA nevertheless upheld the traditional entitlement to a
direction; but its scepticism may result in more likely for CA to uphold
safety of a conviction despite failure of judge to direct properly re
good character.
Failure to give a direction where one is required NOT automatically lead
to quashing of conviction as unsafe.
Meaning of ‘good character’ Impact of Bad character provisions (admitted
through s101 CJA 2003) on good character [[where D has no pre-cons; mixed good
and bad character direction?]]
R v Hunter & others (2015, CA): 5-judge CA held:
o the principles in Vye and Aziz hold good.
& considered effects of admission of bad character evidence in the course of
a trial of person who does not have pre-cons.
, No longer sufficient to establish good character only by showing that D has
no pre-cons: D with no pre-cons may nevertheless have bad character as
defined by s98 CJA 2003, by reference to his other misconduct or a
disposition towards misconduct.
o CA recognised changed law on bad character evidence: is now
admissible to prove propensity to offend or be untruthful, the same
issues to which the good character principles are directed.
o SO bad character evidence impacts on good character directions.
Hunter: the mere fact that no evidence of bad character was tendered is
NOT of itself reason for giving a good character direction.
o INSTEAD, good character direction only for defendants with
absolute good character or deemed effective good character.
Terminology
“(Absolute) Good character” (aka ‘absolute good character’) = the D has no
pre-cons & no other reprehensible conduct is alleged, admitted or proven.
o Is not necessary for D to go further and prove evidence of positive
good character.
“Effective good character” – D has pre-cons that are old, spent or related to
offences of a totally different character from the offence charged; thus D can
be treated as if he were of good character.
“Positive good character”: D can go further than saying he is of good
character and demonstrates positive good character by showing he has a
reputation for it, eg charitable work.
Methods of admission of evidence of good character [not on Blackstone reading]]
D can show good character or positive good character by following methods:
a) XX of a police officer who can confirm that D has no pre-cons;
b) Formal admissions (s10 CJA 1967)
c) Calling a character witness as part of the defence case
d) EIC of D as to his character.
D in Crown Court Trial of good character wants judge to give direction jury
re how they should approach the fact that D is of good character.
o Judge won’t give a direction unless evidence of D’s character has
been adduced in the court of trial.
Defence counsel should raise the issue of a good character direction, should
raise with the judge at end of the evidence and before closing speeches.
Where Defence Counsel wants D with pre-cons to be treated as of effective
good character best to raise the issue with judge at START OF THE TRIAL;
as Counsel will need to decide whether or not to adduce evidence of D’s
pre-cons.
The Good Character Direction
R v Vye; R v Wise; R v Stephenson: CA reviewed authorities re good character
direction, following guidance.
Hunter:
, o the 1st limb (credibility) is a positive feature, which should be taken
into account.
o The 2nd limb (propensity) means the good character may make it less
likely that D acted as alleged.
o What weight is to be given to each limb is a matter for the jury.
Judge should tailor the terms of the direction to the case; but should follow
the standard direction endorsed by the Judicial College (and in Crown Court
Compendium).
Judge should never be compelled to give ‘meaningless or absurd’ directions;
nor one that is misleading or an ‘insult to common sense’.
The 1st limb should not be implied from a direction under the 2nd limb, or be
conveyed by a vague phrase.
Limb When should the The direction Other
direction be given? considerations
First Limb 1. When D has given The jury should take D’s The direction must
(credibility) evidence; good character into be given, even
2. If D has made any account in weighing the when D has told lies
pre-trial statements credibility of the evidence in the police
on which he relies he gave in the trial/the interview.
at trial; OR statements/answers he
3. If D has answered gave pre-trial. The direction
questions, eg in should generally be
course of a police NB: the relevance of good given where the D
interview. character to credibility is has admitted to
NOT a matter for the jury; criminal conduct in
so a direction given in the the course of the
form of a rhetorical trial (eg where a D
question is a fatal charged with
misdirection (R v Lloyd). murder explains his
But the weight to be given presence at the
to the good character of D scene by saying that
IS a matter for the jury. he was there to
steal), unless it
would make no
sense to do so (R v
Aziz).
Second In ALL cases in which D The jury should take into The direction should
Limb is of good character. account D’s good character generally be given
(Propensity) in considering the where D has
likelihood of him having admitted to
committed the offence criminal conduct in
charged. the course of a trial
(as above, Aziz).
The judge should indicate
that good character cannot
amount to a defence.
, (1) Absolute good character
No pre-cons + no other reprehensible conduct entitled to good character
direction. NO need for D to go further and prove evidence of positive good
character.
Entitled to both limbs of Vye direction, no discretion of judge to refuse.
(2) Effective Good Character (spent/old/irrelevant convictions/Nye direction)
question of law for judge, if so gives modified Vye direction (Nye)
An accused deemed ‘of effective good character’ is entitled to the full good
character directions.
Where a D has convictions which are old/spent/unrelated to offences totally
different from the offence charge the judge must decide whether he can
be treated as a person of effective good character.
Where Defence claim effective good character; the matter is one of law on
which judgment is required; it is not sufficient to ask the jury whether they
consider the accused to be of good character.
R v NYE: CA: ‘the essence of this matter is that the jury must not be misled
and no lie must be told’.
So a D must give evidence re the old/spent/irrelevant convictions in the
course of the trial.
If judge rules that D is of effective good character (question of law) he
must give full good character direction, but appropriately modified to the
extent necessary to reflect the matters that preclude the accused being of
absolute good character.
o i.e. jury must not be misled into thinking that D has no pre-cons;
direction will be modified to allude to the existence of previous
offences.
Then the judge can give an appropriately modified good character direction ;
in which jury are told that they should treat the D as a man of effective good
character.
Where appropriate, judge can draw attention of jury to the length of time
that has elapsed since the last conviction; and the accused’s good character
during that period.
A person of effective good character is entitled to BOTH parts of good
character direction (re propensity and credibility):
o It follows that (from Hunter): a person who is not entitled to both
parts of direction is NOT of effective good character he falls into
categories of person who character will be dealt with in the
discretion of the court.
o (whereas before Hunter it was possible for D to be treated as entitled
to either part of a good character direction but not the other).
Deciding whether of effective good character impact of previous offences:
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