Nigel Hunter and Others v R
| Jurisdiction | England & Wales |
| Judge | ,,Lady Justice Hallett DBE |
| Judgment Date | 16 April 2015 |
| Neutral Citation | [2015] EWCA Crim 631 |
| Docket Number | Case No: 2014/1625 2014/3472 2014/0544 2014/3286 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 April 2015 |
[2015] EWCA Crim 631
LORD CHIEF JUSTICE OF ENGLAND AND WALES
PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Lady Justice Hallett DBE, VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION.
Mr Justice Coulson
Mr Justice Globe
Case No: 2014/1625
2014/1004
2014/3472
2014/0544
2014/3286
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr H Blaxland QC and Mr D Emanuel for Nigel Hunter
Mr H Blaxland QC and Mr M Biggs for Joseph Saruwu
Mr H Blaxland QC and Mr M Stanbury for Ian Johnstone
Mr H Blaxland QC and Mr D Emanuel for Alan Walker
Mr H Blaxland QC and Ms G Thomas for Paul Lonsdale
Mr R Whittam QC and Mr T Little for the Respondent
Hearing dates: Tuesday 27 th January 2015
The Vice President of the Court of Appeal Criminal Division:
INTRODUCTION
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.
REVIEW OF CASE LAW AND STATUTORY DEVELOPMENTS
(a) 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.
(b) 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.
(c) 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.
a) Whether the first limb of the good character direction (as to credibility) is required where the defendant does not give evidence but relies on exculpatory statements to the police or others.
b) Whether the second limb of the direction (the propensity to offend in the way charged) is discretionary or obligatory.
c) What course a judge should adopt where co-defendants have different characters.
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...
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