R v Durbin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVANS,MR JUSTICE MORLAND |
| Judgment Date | 03 February 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J0203-23 |
| Date | 03 February 1995 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 93/4796/X5 |
[1995] EWCA Crim J0203-23
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Evans Lord Justice Auld and Mr Justice Morland
No. 93/4796/X5
MR G COX appeared on behalf of the Appellant
MR D BARNARD appeared on behalf of the Crown
Friday 3rd February 1995
This appeal raises an important question regarding the circumstances in which the trial judge is required to include in his summing-up a direction as to the previous good character of the defendant, and a subsidiary question as to the contents of the direction, when it is given.
The appellant was convicted on 15th March 1993 by the majority decision of a jury at the Crown Court at Maidstone before His Honour Judge Balston of the offence of unlawful importation of a Class B drug, cannabis. On 6th April he was sentenced to ten years' imprisonment. He now appeals against conviction by leave of the Full Court given on 6th May 1994 and he renews his application for leave to appeal against sentence, after refusal by the Single Judge.
The appellant is a long-distance HGV driver. An enormous quantity of cannabis, 875 kiolgrams with a street value of about £2.5 million, was found in two crates forming part of his load on arrival at Dover from Calais on 16th November 1991. The bulk of the load consisted of 50 drums of chemicals which he had collected from Germany for delivery to Norwich. That was entirely legitimate. The appellant said that he had no knowledge of the drugs, and that the two crates had, as he thought, contained lawful goods and had been off-loaded at Calais.
A co-accused named Blackburn was acquitted of the same offence by the same jury. This fact is relevant to the appeal now before this Court, because Blackburn was a man with previous convictions which were not referred to in evidence, and inevitably the learned Judge made no reference to them or to Blackburn's previous character throughout the summing-up. The present appellant Durbin on the other hand was treated, so it is submitted, as a person of good character, yet this too was not referred to in the summing-up. The reason for omitting any reference to his previous good character was that the learned Judge, after some discussion with Counsel, followed the practice laid down in Gibson (1991) 93 Cr.App.R. 9 for cases where one defendant is entitled to a "good character" direction, but the other is not. The suggested course, which was followed, was to permit Counsel to refer to the matter in his closing address on behalf of the person who was of previous good character, but for the Judge to say nothing, or as little as possible, in the summing-up. The perceived danger was that any emphasis in favour of that defendant in the summing-up would inevitably create some unfairness for the other defendant, to whose character no reference would be made.
A radical change in the law was effected by the judgment of the Lord Chief Justice in Vye & Others (1993) 97 Cr.App.R. 134. That judgment was given on 18th February 1993. The trial in the present case took place during the following month but, regrettably, none of the six counsel involved nor the learned Judge was aware of the judgment even though it had been reported in The Times on 22nd February. This appeal, therefore, is not concerned with the retrospective application of Vye, but it does involve the application of Vye in a case where the old rules rather than the new were followed at the trial.
In Vye, the Court, presided over by the Lord Chief Justice, held that the trial judge is required to direct the jury that the good character of the defendant is or may be relevant to their decision in either or both of two ways. First, as to the creditworthiness of the defendant in all cases where he has given evidence at the trial or his defence "relies upon exculpatory statements made to the police or others" (page 138). Secondly, as to the likelihood of a person of his good character having committed the offence charged.
Before the judgment in Vye, the first limb of this direction, as to credibility, had been regarded as an invariable requirement in all cases where the defendant was of previous good character, even where he admitted telling lies to the police in interview ( Kabariti (1991) 92 Cr.App.R. 362; referred to in Vye at p.137). The second limb, however, as to "propensity" had come to be regarded as discretionary, or optional (see pages 138/9) although, as the judgment in Vye pointed out, the defendant was always permitted to put before the jury evidence as to his good character "to induce them to say whether they think it likely that a person with such a character would have committed the offence" ( Stannard (1837) 7 C. & P. 673). That was before the defendant was entitled even to give evidence in his own defence, the right finally given to him by statute (Criminal Evidence Act 1898 section 1).
That same Act, as is well known, provided that when the defendant did give evidence he could not be asked in cross-examination "any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character," unless his character has been put in issue (section 1 (f)). The words "or is of bad character" emphasise that the restriction is not limited to previous convictions or to previous offences, but to character generally.
It is important, too, in our judgment, that the reference is to character, rather than reputation. Although the two may largely overlap, they are not synonymous and a reputation, whether good or bad, may be undeserved. Clearly, however, evidence of reputation is relevant to the issue of character.
Vye also established that when a defendant who is of good character is charged jointly with one or more others who are not, then the same direction must be given as if he was tried alone, notwithstanding any potential disadvantage for the co-defendant whose character may not be referred to, or only in qualified terms (see page 140). Before Vye, the most recent authority was Gibson where Lord Lane L.C.J. recognised the difficulties of this situation and suggested that the trial judge might decide to say nothing himself, leaving it to counsel for the defendant of good character to make such submissions in his address to the jury as he saw fit. That was the course adopted by the trial judge in the present case, and in the absence of any reference to Vye he was justified in doing so.
The submission for the appellant is that, in the light of the judgment in Vye, the appellant was entitled to have both limbs of the good character direction included in the summing-up. The right thus asserted is of course the corollary of the rule that the trial judge shall give such a direction in all appropriate cases, and the question is whether this was such a case. It is clear that the reason given at the trial, following submissions by counsel both before and after the summing-up, namely, the fact that the co-defendant was not entitled to the direction, was contrary to Vye and therefore was erroneous as a matter of law. We therefore have to consider whether the appellant was entitled to the good character direction, as if he had been tried alone.
In fact, there were three blemishes on his character, used in the most general sense, and these were as follows. First, he had two previous convictions, and both were for offences of dishonesty, but they were both minor and `spent'. They were, first, for larceny before the Wakefield City Magistrates Court as long ago as 1966. He was fined £5 and ordered to pay £1 restitution, which indicates the trivial nature of the offence. Secondly, in January 1986 he was fined a total of £100 by the Arundel Magistrates on two charges including the fraudulent use of an excise licence and driving a vehicle without an excise licence. The second offence therefore became `spent' in January 1993, shortly before the trial.
The second blemish emerged from evidence given at the trial by two prosecution witnesses and by the appellant himself. He admitted having told lies to them, or at least seriously misleading them, in relation to his dealings with his co-defendant Blackburn, although not specifically in relation to the importation of the goods which gave rise to the charge against him. He led them to believe at some stage before the journey that Blackburn was in Denmark and in hospital there. He went through the charade of telephoning a hospital in Denmark in their presence and speaking in Danish to someone who, he then told them, had confirmed that Blackburn was a patient there. This was entirely false, and when asked about it in cross-examination the appellant said that he intended "to give the impression that it was a genuine thing and to placate them that the worries and their fears were unfounded". Asked if he thought that it was dishonest, he said "I don't think so, it goes on all the time, to placate people in business." This showed, it could be said, that he could not claim an unblemished good character, if that was intended to suggest that he was a truthful person. In addition, the appellant admitted giving an entirely false account of his movements on the Continent, when interviewed in connection with the present case.
Third, and perhaps most relevant to the question of propensity which the jury would be invited to consider, if the good character direction was given, was the fact that the appellant asserted both in interview and in his evidence that he had knowingly been engaged in smuggling goods across the frontiers of...
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