Law Report: Directions to jury on good character: Regina v Vye and others. Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Judge and Mr Justice Hidden), 18 February 1993

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Guidance on the directions to be given by judges in regard to the good character of defendants was given by the Court of Appeal (Criminal Division) when dealing with three appeals against conviction.

The court allowed appeals by the defendants Vye and Wise, and dismissed an appeal by the defendant Stephenson.

Christopher Clark QC and Paul Garlick (assigned by the Registrar of Criminal Appeals) for the defendant Vye; Martin Wilson QC and James Bullen (CPS) for the Crown; Christopher Clark QC and Peter Digney (Registrar) for Wise; Martin Wilson QC and John Coveney (CPS) for the Crown; Michael Wolkind (Registrar) for Stephenson; Martin Wilson QC and Nicholas Browne (CPS) for the Crown.

LORD TAYLOR LCJ, giving the judgment of the court, said that until recently the trial judge was understood to have a broad discretion to comment on the defendant's good character or not as he thought fit. Now it was an established principle that where a defendant of good character had given evidence, it was no longer sufficient for the judge to comment in general terms. He was required to direct the jury about the relevance of good character to the defendant's credibility (the 'first limb' of a character direction). He was also entitled, but not obliged, to refer to the possible relevance of good character to the question whether the defendant was likely to have behaved as alleged by the Crown (the 'second limb').

Three problems remained unresolved: (a) whether a first limb direction (credibility) should be given where the defendant did not give evidence but made statements to the police or others; (b) whether the second limb direction (propensity) should now be regarded as discretionary or obligatory; and (c) what course the judge should take in a joint trial where one defendant was of good character but another was not.

(a) When the defendant had not given evidence at trial but relied on exculpatory statements made to the police or others, the judge should direct the jury to have regard to the defendant's good character when considering the credibility of those statements. If a defendant of good character did not give evidence and had given no pre-trial answers or statements, no issue as to his credibility arose and a first limb direction was not required.

(b) As a general rule, a second limb direction, as to the relevance of the defendant's good character to the likelihood of his having committed the offence charged, should be given whether or not the defendant had given evidence. It was up to the trial judge how he tailored his direction to the circumstances of each case.

In the case of an employee who had been entrusted with large sums of money over many years by his employer, and having carried out his duties impeccably was finally charged with stealing from the till, the judge might wish to emphasise the second limb direction more than in the average case.

By contrast, where a defendant, charged with murder, admitted manslaughter, he might wish to stress the very limited help the jury might feel they could get from the absence of any propensity to violence in the defendant's history.

(c) In R v Gibson (1991) 93 Cr App R 9, Lord Lane, Lord Chief Justice suggested that where a defendant of good character was tried jointly with one or more others of bad character, the trial judge, if he so decided, could say nothing about the good character of one defendant and leave it to be dealt with by his counsel. But that was only a possible solution, it did not lay down a firm rule of practice, and in their Lordships' judgment, it should not be followed.

A defendant of good character (A) was entitled to have the judge direct the jury as to its relevance in his case even if he was jointly tried with another defendant (B) of bad character.

That left the question as to what, if anything, should be said about B. In some cases, the judge might grasp the nettle and tell the jury that they must try the case on the evidence, there had been no evidence about B's character, they must not speculate and must not take the absence of information as to B's character as any evidence against B. In other cases, the judge might say nothing about the absence of evidence as to B's character. What course he took depended on the circumstances of each case.

The question had been raised whether defendants of disparate characters might require separate trials. In their Lordships' judgment, the possibility of separate trials was a matter for the judge and was to be decided in accordance with well-established principles. Generally, however, those jointly indicted should be jointly tried.