#16089 - Character Evidence - BPC Criminal Litigation (formerly BPTC) 2024/2025

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:

  • (1) accused is less likely to have committed the offence because he lacks the PROPENSITY to do so; AND

  • (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:

  • Restored law to more principled basis

  • CA: thoroughly reviewed good character directions;

  • 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.

  • 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.

  • CA, henceforth, ret he law: only necessary to refer to Hunter, Vye and Aziz.

  • So Hunter now has set down the definitive law re good character

  • 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:

  • 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.

  • 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.

  • 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.

  • 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.

  • 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:

1. XX of a police officer who can confirm that D has no pre-cons;

2. Formal admissions (s10 CJA 1967)

3. Calling a character witness as part of the defence case

4. 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.

  • 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:

  • the 1^st limb (credibility) is a positive feature, which should be taken into account.

  • The 2^nd limb (propensity) means the good character may make it less likely that D acted as alleged.

  • 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 1^st limb should not be implied from a direction under the 2^nd limb, or be conveyed by a vague phrase.

(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.

  • 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):

  • 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.

  • (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:

• Hunter if pre-cons/cautious have no relevance, D cannot automatically be treated as of effective good character, even if the convictions/cautious are also old and minor instances of offending.

  • Judge should consider all circumstances of the offence and offender; and decide what ‘fairness’ dictates.

  • Rejection of notion that absence of relevant convictions = automatic...