Good character directions were inadequate

LAW REPORT v 16 June 1995

Regina v Aziz; R v Tosun; R v Yorganci House of Lords (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Mustill and Lord Steyn) 15 June 1995

A trial judge has a limited discretion to decline to give a direction on the relevance of a defendant's good character to his credibility and propensity to commit the offence charged where the defendant's claim to good character was spurious.

The House of Lords unanimously dismissed the Crown's appeal against the decision of Court of Appeal (Criminal Division) quashing the convictions of the three respondents.

The respondents were charged with offences involving cheating the Revenue of income tax and Value Added Tax. The first respondent gave no evidence but relied on exculpatory statements in his interviews to customs and excise officers which also contained admissions. The second and third respondents gave evidence denying the charges. All three respondents relied on the absence of previous convictions. The trial judge, when directing the jury about good character, said that, if a defendant had given evidence, it was relevant primarily to a defendant's credibility, and, if the defendant had not given evidence, it was relevant to a defendant's propensity to commit the offence.

The respondents' convictions were quashed on the basis that applying R v Vye [1993] 1 WLR 471, a direction as to the relevance of good character to credibility was to be given where a defendant had testified or made pre-trial statements and a direction as to the relevance of good character to propensity was to be given whether or not a defendant had testified or made pre-trial statements, and the judge' s directions were inadequate.

Richard Sutton QC and Janine Sheff (Customs & Excise Solicitor) for the Crown; Richard Ferguson QC and Keith Mitchell (Bindmans) for the respondents.

Lord Steyn said that both admissions and exculpatory assertions in a mixed statement where the defendant had not given evidence must be considered by the jury. Both the inculpatory and exculpatory parts of a mixed statement were admissible as evidence of their truth. A judge was entitled to comment adversely on the quality of the exculpatory parts of a mixed statement which had not been tested by cross- examination.

In modern practice a judge almost invariably reminded the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness required that the judge should direct the jury about good character because it was evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and appeals. Hence there had been a shift from discretion to rules of practice. Vye was the culmination of this development.

Vye was concerned with mixed statements. Where a defendant testified, the judge must give a direction as to the relevance of good character to the defendant's credibility. In Vye the court laid down that trial judges should also give a direction in respect of the relevance of good character to propensity. The policy decision involved in moving from a discretionary power to a settled rule of practice was justified.

Where the defendant did not testify, and given that an exculpatory part of a mixed statement was evidence in the case, it followed that the credibility of a defendant of good character, as well as the likelihood of that defendant committing the offence, were matters of evidential significance. Fairness demanded that the judge direct the jury on those two matters. The Court of Appeal in Vye was justified in concluding that the clear-cut rule that a judge must give both character and propensity directions was the best policy.

Cases occurred where a defendant, who had no previous convictions, was shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye where the defendant's claim to good character was spurious. A trial judge had a limited residual discretion to decline to give any character directions if the judge considered it an insult to common sense.

Prima facie the directions must be given. And the judge would often be able to place a fair and balanced picture by giving directions in accordance with Vye and then adding words of qualification concerning other criminal conduct of the defendant which emerged during the trial.

The Crown's appeals were dismissed.

Ying Hui Tan, Barrister