In Search of Good Character
Under the Criminal Justice Act 2003, the prosecution can introduce as part of its case against the defendant ‘bad character’ evidence. This is defined as: “evidence of or a disposition towards misconduct”. Misconduct means the commission of an offence or other “reprehensible conduct”, but is a defendant able to rely on his ‘good character’ in support of his case? The answer is ‘yes’.
Recently, the Court of Appeal has clarified the rules on when a trial judge should give a good character direction to the jury in the five conjoined appeals of R v Hunter and others  EWCA Crim 631. This was before a panel of five judges, rather than the usual three, which perhaps emphasises the importance of the judgement.
For the vast majority of people prosecuted for health and safety offences this will be the first time they have ever been the subject of a criminal investigation. If they do have a previous conviction, it is more than likely to be for something like a motoring offence, which will be an unrelated offence.
The court reviewed previous case law and in particular sought to address the confusion that has arisen as to whether someone with old or irrelevant previous convictions should be treated as a person of good character or not, i.e. be deemed to have ‘effective good character’.
There are two parts to a good character direction:
1. Where the defendant gives evidence at trial, or where he does not give evidence but has made pre-trial statements e.g. at an interview under caution, the jury will be told that his good character supports his credibility, a factor to be taken into account when considering his evidence.
2. The fact of his good character may mean that he is less likely to have committed the alleged offence.
The Court of Appeal held that “only defendants with good character or deemed to be effective good character are entitled to a good character direction. A defendant who has a record of previous convictions or has a bad character of some other kind is not entitled as of right to a good character direction.”
The court said absolute good character is where the defendant has no previous convictions or cautions and there is no other reprehensible conduct that is alleged, admitted or proved. In those circumstances the defendant is entitled to both parts of the direction.
However, the court concluded that effective good character only applies where the convictions are old, minor and have no relevance to the charge. If a judge decides a person is of effective good character, he must give both parts of the direction, modified as necessary.
Where there are convictions for offences in a different category to the one charged (but are not old, minor and irrelevant), while the court was sceptical of the need for a good character direction it said that the trial judge has a broad discretion on whether to give a modified direction.
Similarly, where a defendant does not have previous convictions or cautions but there is evidence of other relevant misconduct, then it is again for the trial judge to use his discretion as to whether a good character direction is given and in what form.
Finally, the court stated that the failure by the trial judge to give an adequate good character direction will not inevitably lead to a conviction being quashed. The five appeals were all unsuccessful with the court concluding that the cases against each of the respective appellants were strong.
First published by SPH Magazine: http://www.shponline.co.uk/