Hunter & Others

A five-judge court reviews previous authorities on good character, rejecting some as wrong, and re-states the key principles. A trial judge is not obliged to give a good character direction where a defendant is of ‘effective good character’. Misdirection as to character does not necessarily render a conviction unsafe.

Five appeals concerning good character were heard together by a specially constituted five-judge court. The court conducted a thorough review of the authorities and, reaching the conclusion that the law had taken a wrong turn in the case of R v Durbin [1995] 2 Cr App R 84, clarified the correct principles to be applied. The court made clear that in future the court would only consider this case and Vye (1993) 97 Cr.App. R.134 and Asiz [1996] A.C. 41 on questions of good character.

Held

The court reached the following general conclusions:

Following the Criminal Justice Act 2003, good character now means far more than not having previous convictions. Convictions, cautions and reprehensible conduct may no longer be dismissed as insignificant.

Where a defendant is of 'absolute good character', in that they have no previous convictions or cautions recorded against them and no other reprehensible conduct alleged, admitted or proven, they are entitled to both limbs of the good character direction even where no evidence of good character is actively adduced by the Defence.

That the good character principles have been extended too far where a defendant is not of absolute good character.

Where a defendant has previous convictions or cautions recorded which are old, minor and have no relevance to the charge, the judge must make a judgement as to whether or not to treat the defendant as a person of ‘effective good character'. He or she is not obliged to do so.

It does not follow from the fact that the bad character is not considered probative of guilt that a defendant is entitled to be treated as if he had a good character. To the extent that previous decisions suggest otherwise they were wrongly decided.

If the judge decides to treat a defendant as a person of effective good character the judge does not have a discretion whether to give the direction. S/he must give both limbs of the direction, modified as necessary to ensure the jury is not misled.

There is no fixed rule or principle that a failure to give a good character direction or a misdirection is always or necessarily fatal. The jury can, and should be, trusted to a great degree to bear the evidence in mind and to assess the weight to be placed on it.

If defence advocates do not dispute character directions at trial then the Court of Appeal would be slow to grant extensions of time and leave to appeal.

Applying those principles to the facts of the appeals before the court, every appeal was dismissed.