Good Character Evidence

 The accused as a general rule is allowed to give evidence of his good character
by himself or through his witnesses or by cross-examination of the
prosecution’s witnesses. However the difficulty lies as to the extent that he can
do this
 R v Rowton (1865)
The accused was charged for indecent assault of a 14 year old boy. He
was a headmaster, and he sought to give evidence of his good
character.
Held; Only the accused’s general reputation in the community was
admissible and not evidence of specific acts, disposition or the
witnesses’ personal opinion of him
However this decision although not overruled is no longer used in
practice and the courts take a wider view of ‘character’ in line with the
CEA 1898 to include the witnesses’ personal opinion of the accused, but
not prior acts.
 R v Redgrave (1981)
The accused was charged for importuning for immoral purposes by
masturbating in a public toilet while staring at male arresting officers.
He sought to introduce love letters and photographs of himself with
women to indicate that he was not homosexual.
This was an attempt at introducing evidence of disposition, and the Court
Of Appeal rejected it. However it is generally accepted today that the
state of law is unsatisfactory and legislative interference would be
welcome.
As such the Court of Appeal stated that admissibility of such evidence is
not as of right but at the judge’s discretion.
 Therefore, a defendant can give evidence of his good character but by doing
this the accused runs the risk of having his bad character being called as
evidence by the prosecution.
 If the accused is testifying, this can be done by the prosecution by virtue of
Section 1 (3) (ii) CEA 1898.
 However if the accused is not testifying, Criminal Evidence Act 1898 will not
apply but under common law where the accused has put his good character in
issue, the prosecution can as of right be called to give evidence of his bad
character in reply. (R v Rowton)
 Section 1(3)(ii) Criminal Evidence Act 1898
1 Competency of witnesses in criminal cases.
[F1Every person charged with an offence, [F2and the wife or husband, as the case may be, of
the person so charged], shall be a competent witness for the defence at every stage of the
proceedings, whether the person so charged is charged solely or jointly with any other person.
Provided as follows:—]

(3)][F10A person charged [F11in criminal proceedings who is called as a witness in the
proceedings] shall not be asked, and if asked shall not be required to answer, any question
 tending to show that he has committed or been convicted of or been charged with any offence
other than [F11one with which] he is then charged, or is of bad character, unless—

(i) the proof that he has committed or been convicted of such other offence is admissible
evidence to show that he is guilty of [F11an offence with which] he is then charged; or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution
with a view to establish his own good character, or has given evidence of his good character,
or the nature or conduct of the defence is such as to involve imputations on the character of the
prosecutor or the witnesses for the prosecution; or [F12the deceased victim of the alleged
crime; or]

(iii) he has given evidence against any other person charged [F13in the same proceedings]:]

 R v Bracewell (1978)
In common law, if the accused had given evidence of his good character
(to which he is restricted only to evidence of his general reputation) the
prosecution can bring evidence of his bad character to rebut this.
The prosecution however is not limited by Rowton and can be allowed
to elicit bad character beyond evidence of general bad reputation. In this
case evidence of specific bad acts was held to be admissible
 R v Butterwasser (1948)
If the accused does not testify in court and if he through his witnesses or
counsel attacks (cast imputations) on the character of the prosecutor or
the prosecution’s witnesses, the prosecution is not allowed to adduce
evidence of his bad character in rebuttal.
Therefore in common law if the accused does not give evidence,
Criminal Evidence Act 1898 does not apply, and the only way his bad
character can be adduced by the prosecution is where he has given
evidence of his good character or where the bad character/previous
conviction or charge constitutes Similar Fact Evidence.’
 R v Stannard (2005)
‘The object of laying it before the jury is to induce them to believe, from the improbability
that a person of good character should have conducted himself as alleged, that there
is some mistake or misrepresentation in the evidence of the prosecution, and it is
strictly evidence in the case’
Therefore good character evidence can be used not only to the question
of showing credibility of the accused (credit) but also as to issue. This
means that it can be used to show that the accused is not likely to have
committed the offence. By contrast bad character evidence can only be
used for purposes of credit except in the case of Similar Fact Evidence.
Vye Direction (R v Vye (1993))
 The Courts have issued guidelines in R v Vye (1993) as to the relevance of the
good character of a defendant.
  The judge is required to consider whether to issue directions to the jury as to
the use they make of the evidence of the good character of the defendant and,
if so, the contents of the direction.
 First Limb (Credibility Direction)
Good character maybe relevant as to the credibility of the defendant’s
testimony or pre-trial statements, i.e. whether the defendant is the sort
of person who would tell the truth.
When the defendant has not given given evidence at the trial but relies
on exculpatory statements made to the police or others, the judge should
direct a jury to have regard t the defendant’s good character when
considering the credibility of those statements.
If a defendant of a good character does not give evidence and has given
no pre-trial answers or statements, no issue as to his credibility arises
and a first limb direction is not required.
 Second Limb (Propensity Direction)
In addition, the judge is required to direct the jury as to whether the
defendant is a person likely to have committed the offense charged.
This direction should be given regardless of whether the accused
testified in trial or not.
 The two limb direction is required to be given where the defendant does not
testify, provided that he had made pre-trial statements to the investigating
authorities or other persons.
 Such directions are to be given where the defendant of good character is jointly
tried with a defendant of bad character.
 The judge is entitled to tailor his directions as to the particular circumstances of
each case.
 There is no rule in favor of separate trials for defendants of good and bad
character.
 In R v Aziz (1995)
The House of Lords approved the approach in Vye regarding the two-
limb direction.
In addition the court decided that the judge has residual discretion to add
words of qualification concerning other proved or possible criminal
conduct of the defendant which had emerged during the trial, so as to
place a fair and balanced picture before the jury.
In the limited case where the defendant’s claim to good character, other
than his lack of previous convictions, was s spurious that it would make
no sense to give the general character direction, the judge could
dispense with the direction in its entirety, for example where the
defendant has been guilty of dishonesty concerning his employer but has
not been charged with an offence.

Summary of Vye Direction

1. A direction as to relevance of his good character to a defendant’s credibility is

to be given where he has testified or made pre-trial answers or statements.
2. A direction as to the relevance of his good character to the likelihood of his
having committed the offence charged is to be given, whether or not he has
testified or made pre-trial answers or statements.
 3. Where defendant A of good character is jointly tried with B of bad character, (1)
and (2) still apply.
4. R v Aziz qualification
“The judge has residual discretion to decline to give any character directions in the case of a
defendant without previous convictions if the judge considers it an insult to common sense to
give directions in accordance with Vye”

“A sensible criminal justice system should not compel a judge to go through the charade of
giving directions in accordance with Vye in a case where the defendant’s claim to good
character is spurious”

Era of R v Hunter (2015)

 R v Hunter Nigel (2015)
In R v Hunter (Nigel) (2015) a specially constituted 5-member Court of
Appeal (Thomas CJ, Sir Brian Leveson P, Hallett LJ, Coulson & Globe
JJ) considered the question of when a good character direction is
required, and the effect on the safety of convictions where one is
required but is not given.
 Absolute Good Character
HALLETT LJ said that taking the various categories of “good character”,
their Lordships used the term “absolute good character” to mean a
defendant who had no previous convictions or cautions recorded against
him or her and no other reprehensible conduct alleged, admitted or
proven
The defendant did not have to go further and adduce evidence of positive
good character. This category of defendant was entitled to both limbs of
the good character direction
 Non-absolute Good character
Where a defendant had previous convictions or cautions recorded which
were old, minor and had no relevance to the charge, the judge had to
make a judgment as to whether or not to treat the defendant as a person
of “effective good character”.
It did not follow from the fact that a defendant had previous convictions
which were old or irrelevant to the offence charged that a judge was
obliged to treat him as a person of good character.
In fairness to all, the trial judge should be vigilant to ensure that only
those defendants who merited an “effective good character” direction
was afforded one.
It was for the judge to make a judgment, by assessing all the
circumstances of the offence/s and the offender, to the extent known,
and then to decide what fairness to all dictated.
The judge should not leave it to the jury to decide whether or not the
defendant was to be treated as of good character. If the judge decided
to treat a defendant as a person of effective good character, the judge
did not have a discretion whether to give the direction.
S/he had to give both limbs of the direction, modified as necessary to
reflect the other matters and thereby ensure the jury was not misled.
  Accused with bad character
Where previous convictions or cautions had been adduced, pursuant to
the provisions of the Criminal Justice Act 2003, a defendant had no
entitlement to either limb of the good character direction.
It was a matter for the judge’s discretion. Where a judge had declined to
give a modified good character direction to a defendant in this category,
the Court of Appeal, Criminal Division, should have proper regard to the
exercise of discretion by the judge who had presided over the trial.
If the judge had failed to give a good character direction or misdirected
the jury that was not necessarily fatal to the safety of the conviction. It
depended on the facts of individual cases

Spent Conviction (Rehabilitation of Offenders Act 1974)

 R v Bailey (1983)
Possible to still consider accused as being of good character with the
leave of court.
 R v O’shea (1993)
The accused cannot be referred to as a man with no convictions
 R v Timson (1993):
Even if the conviction is not a spent conviction, but it is
minor/insignificant, a Vye direction can still be given.
 Section 5 of Rehabilitation of Offenders Act 1974
The following convictions will never be spent:
(a) Sentence of Imprisonment for life
(b) Sentence of Imprisonment exceeding 48 months
(c) Sentence of detention during Her Majesty’s pleasure or for life
(d) Sentence of custody for life
(e) Sentence of imprisonment for public protection