R v Nye
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE TALBOT |
| Judgment Date | 19 February 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J0219-11 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4957/A/81 |
| Date | 19 February 1982 |
[1982] EWCA Crim J0219-11
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Talbot
and
Mr. Justice McCowan
No. 4957/A/81
MR. J. GRIGGS appeared on behalf of the Appellant.
MR. J. PENRY appeared on behalf of the Crown.
On 7th October 1981, in the Crown Court at Willesden, the appellant was convicted on all three counts of an indictment alleging that he had committed the offence of assault occasioning actual bodily harm. He was sentenced to 9 months, 6 months and 9 months' imprisonment respectively, the sentences to run concurrently.
He applied for leave to appeal against conviction to this court, which has granted him leave. His counsel (Mr. Griggs) has consented to the hearing of the application being treated as the hearing of the appeal.
Before going into the facts (one can state quite briefly they involved a fracas between the appellant and some police officers in connection with a minor motor collision) it is necessary to deal with the first matter which is the subject of this appeal.
This appellant, who is now some 32 years of age, had in the distant past (namely as long ago as April 1971 and October 1971) two previous convictions. The first was a conviction for criminal damage, when, we are informed, he broke the windscreen of a motor car, and the Hendon Magistrates fined him £20 with £40 compensation The second was a conviction of burglary by the Watford Magistrates, for which he was fined the sum of £25.
At the outset of the trial, counsel for the defence (Mr. Griggs) asked for the learned judge's ruling as to whether he might put him forward as a man of good character owing to the effect of the Rehabilitation of Offenders Act 1974. The formula, in view of the past convictions, that Mr. Griggs proposed might be followed was that the appellant should be referred to as a man of good character without relevant convictions. After some argument, the learned judge ruled that there should be no reference to character, that the previous convictions would not be referred to and that he might put himself forward as a married man with two children. It is against that ruling that Mr. Griggs now appeals and claims that it was wrong in law.
It is necessary first to refer to the relevant provisions of the Rehabilitation of Offenders Act 1974. That Act, as is well known, says that rehabilitated persons, after certain conditions have been complied with and after the passage of time, may then claim to be persons without previous convictions. The relevant section is 4 (1), which reads: "Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of lav; to the contrary, but subject as aforesaid -(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction;".
Pausing there, the two convictions against the appellant became spent convictions in the year 1976. Section 4, however, as the opening words state, is subject to section 7 of the Act. Section 7 (2) –which is the relevant subsection – reads as follows: "Nothing in section 4 (1) above shall affect the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions or to circumstances ancillary thereto - (a) in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter);" Thus the provision excluding any reference to previous convictions by section 7 (2) does not apply in the case or criminal proceedings.
The Act came into force on 1st July 1975. On the day before (30th June 1975) the Lord Chief Justice issued a practice direction upon this Act. The relevant paragraphs to which we would refer begin at paragraph 3, which reads: "During the trial of a criminal charge reference to previous convictions, and therefore to spent convictions, can arise in a number of ways. The most common is when the character of "the accused or a witness is sought to be attacked by reference to his criminal record, but there are, of course, cases where previous convictions are relevant and admissible as, for instance, to prove system.
"4. It is not possible to give general directions which will govern all these different situations, but it is recommended that both court and counsel should give effect to the general intention of Parliament by never referring to a spent conviction when such reference can be reasonably avoided. If unnecessary references to spent convictions are eliminated much will have been achieved."
"6. No one should refer in open court to a spent conviction without the authority of the judge, which authority should not be given unless the interests of justice so require."
Mr. Griggs' submission upon this first ground of appeal is that the effect of the Rehabilitation of Offenders Act and the spirit of the Act demand that when a man who has previously been convicted has reached the stage when his conviction or convictions are spent, then he should as of right be entitled to present himself as a man of good character and to claim such if he comes again to be tried for some offence. We do not accept that submission. The Act quite plainly from the sections to which we have referred excludes the provisions which prevent reference to previous convictions in criminal proceedings. In our view, when this question arises, it is entirely a question for the discretion of the judge. It may well be that the past spent conviction, as was instanced in argument, happened when the defendant being tried was a juvenile, for instance for stealing apples, a conviction of many years before. In those circumstances quite plainly a trial judge would rule that such a person ought to be permitted to present himself as a man of good character. At the other end of the scale, if a defendant is a man who has been convicted, shall we say, of some offence of violence, and his conviction has only just been spent, and the offence for which he is then standing trial involves some violence, then it would be plain, we would think, that a trial judge would rule that it would not be right for such a person to present himself as a man of good character. The essence of this matter is that the jury must not be misled and no lie must be told to them about this matter. The exercise of discretion of the trial judge in the cases which will fall inbetween the two extremes to which I have referred must be carried out having regard to the 1974 Act and to the practice direction. It should be exercised, so far as it can be, favourably towards the accused person.
In this particular case it may be, with convictions so long ago registered against this appellant, which had been spent some five years, that a trial judge might have thought it would...
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Nigel Hunter and Others v R
...the conviction was upheld. 6 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 spe......
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Kizza Sealey and Another v The State
...was essential that counsel for the appellant should have applied for his client to be treated as a man of good character ( R v Nye (1982) 75 Cr App R 247) and to be entitled to the full character/propensity direction (see R v Vye 97 [1993] 1 WLR 471) suitably adapted to instruct the jury h......
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Thomas v Commissioner of Police of the Metropolis
...is intended to allow an individual whose convictions are spent, "… to present himself as a person of good character …". (Talbot J in R v Nye). It cannot, in my judgment, be a sufficient reason for holding the section 7(3) test to be satisfied that the individual is so presenting himself. In......
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Sealey and Headley v State
...it was essential that counsel for the appellant should have applied for his client to be treated as a man of good character ( R v Nye (1982) 75 Cr App R 247) and to be entitled to the full character/propensity direction (see R v Vye 97 [1993] 1 WLR 471) suitably adapted to instruct the jury......