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Good Character, Misdirected

Date:

David Emanuel, Barrister, Garden Court Chambers

After the case of R v Hunter [2015] 2 Cr. App. R. 9, where the effect of the Court of Appeal’s judgment means that misdirections in good character directions will lead to far less convictions being quashed, it is important to note that the Court can still be troubled by errors made on the subject of good character.

I read with interest the judgment of the Court of Appeal in the case of R v Green in Crimeline 2017/85, where an unusual set of circumstances led to a successful appeal against conviction. This was the case where the judge had drawn attention to the complainant’s good character in his summing up and told the jury that there was a level playing field as far as character was concerned (thereby diminishing the effect of the Defendant’s good character).

While most practitioners will know that the admission of a prosecution witness’ good character is not admissible and has no relevance to whether he or she is telling the truth, it is reassuring that there is now recent authority to this effect.

However, I noted that at paragraph 24, the Court stated,

"24. As we said to counsel in the course of argument, it is the universal experience of the members of the court that directions of the type here in issue are never given in summing-up to a jury. We asked whether the point had arisen in any reported authority and both counsel told us that they had been unable to find any case dealing with the point."

In fact, there are at least two other authorities on this very point which demonstrate the Court has been consistent on this point over the course of the last 19 years.

While the case of Green leaves the point in no doubt, practitioners may wish to know that it does not stand alone.

In R v SB [2013] EWCA Crim 899 (the judgment of which is not easy to locate), the very same issue arose in a case of alleged historic sexual abuse. At the outset of the Defendant’s good character direction the judge stated the following:

“We now turn to character, members of the jury. In this case, nobody is suggested to be a person with convictions. In other words, all of the witnesses, and that includes crucially the accused as a witness, are people of good character.”

This was a surprising direction, not least because the first mention of the complainant’s character came from the judge in his summing up.

The Court of Appeal made it clear that this should never have happened at paragraph 15,

"15. The judge had no business telling the jury that S had no previous convictions. There was in fact no evidence of it, and, in any event, it is irrelevant.”

The Court of Appeal went on to quashed the conviction due to the cumulative effect of this and a number of other misdirections and non-directions to the jury (including the absence of a standard of proof direction).

Another case on point dates back to 1998, R v Erroll Hamilton, The Times , July 25, 1998. In this case the defence had accused the complainant of lying and the prosecution adduced the complainant’s good character to deal with this.

“…These considerations apply a fortiori to the calling by the prosecution of evidence of character to bolster the testimony of the prosecution witness who were attacked. Such evidence has no probative value in relation to any issue in the case, and is rightly excluded on grounds of collaterality. And so far as issues of the witnesses' character are concerned, those are concluded, without recourse to any such evidence, by the finality of the witness's answer to specific allegations.”

The Court went on to say, “For those reasons, therefore, we hold that the evidence of lack of previous convictions on the part of the complainant should not have been admitted. In a case that depended so largely on their evidence, and where the defence consisted almost entirely of an attack on the veracity of that evidence, it is impossible to say what effect that evidence may have had upon the jury. We cannot say that this conviction was safe.”

So, in fact, Green is just the latest in a line of little-known authorities making it clear that a complainant’s good character is irrelevant and inadmissible.