Introduction
This paper is concerned with the law on good character evidence in criminal trials and, in particular, the provision of good character directions to the jury following the Court of Appeal decision in R v Hunter (Nigel) (hereafter Hunter).Footnote 1 The court considered that there was uncertainty and a lack of consistency in the case law and, as a result, many trial judges felt they were required to provide unnecessary, over-generous directions to the jury.Footnote 2 This paper contends, with respect, that this assessment was unwarranted and that, prior to Hunter, the Privy Council was correct to hold that the law had been ‘clearly settled’Footnote 3 by the House of Lords decision in R v Aziz.Footnote 4 Lord Steyn, who provided the lead judgment, created a ‘simple and moderate rule’Footnote 5 that where there is evidence of good character, prima facie, a direction to the jury ‘must be given’, as a matter of law.Footnote 6 It is argued that the judgment in Hunter undermines this, as the Court of Appeal appears to have misunderstood the defeasible nature of the rule set out in Aziz.
Hunter was a conjoined appeal by five defendants, who had been convicted of a variety of serious sexual offences and appealed on the basis of their entitlement to good character directions. In a five-judge court, Hallett LJ, giving the lead judgment, reviewed the law on good character directions and sought to remedy what was described as a ‘wrong turn in the law’.Footnote 7 There have been relatively few further appellate decisions, as it appears that good character directions are now regarded, contrary to Aziz, as largely a matter of judicial discretion rather than law. Therefore, the absence of a direction is more difficult to challenge and the Court of Appeal has indicated that it will be ‘very slow’ to interfere with a trial judge's decision.Footnote 8
The paper begins by setting out the good character rule and when directions should be provided to the jury. It then analyses how the Court of Appeal suggested that changes to the law on bad character introduced by the Criminal Justice Act 2003 had, by default, also altered the law on good character. However, it is argued that the law was not changed, as it is clear Parliament deliberately left undisturbed the common law rules on good character and the obligatory requirement to direct the jury. Importantly, it accepted the Law Commission's finding that a good character direction was justified on the ground:
… that it is likely to prevent the conviction of the innocent… If it is of little relevance, it can at least do no harm to the accused, and if it is of great relevance then the defendant should have the benefit of it.Footnote 9
That is, Parliament recognised the historically ‘exceptional’ nature of good character evidenceFootnote 10 and that, although the scientific value of it may not be ‘clear cut’,Footnote 11 a direction may be viewed pragmatically as a plea for recognition, clemency or deliverance,Footnote 12 or a ‘special dispensation’ to the accused.Footnote 13 The direction acts as a counter-weight to the defendant's serious credibility problem,Footnote 14 which is caused by the jury's tendency to assume that the defendant in the dock has a bad character if they do not hear to the contrary.Footnote 15 As Redmayne observes, the provision of good character directions ‘helps to put jurors straight’Footnote 16 and it ‘bears directly’ on whether there has been a fair trial.Footnote 17 Thus, a direction may be regarded as a ‘backstop’ or, as Lord Hutton contended in Sealey v The State, a final ‘important safeguard’Footnote 18 against miscarriages of justice.
The Court of Appeal in Hunter recognised that it was bound by the judgment in Aziz Footnote 19 but, drawing on the decision in R v Doncaster,Footnote 20 considered that the impact of the Criminal Justice Act 2003 on the common law on good character had been significant. However, this paper argues that the obligation to provide a good character direction was unaffected by the 2003 Act. It is further contended that good character directions are an aspect of the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter the European Convention on Human Rights). That is, as well as acting as a safeguard or ‘backstop’ against injustice, good character directions should also be regarded as forming an important part of the ‘framework of fairness’ for a trial. As the Grand Chamber of the European Court of Human Rights stated in Taxquet v Belgium,Footnote 21 in the absence of a reasoned verdict, such a framework is valuable because it ‘serves to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society’.Footnote 22
The Court of Appeal's errors in Hunter appear to have been prompted, in part, by scepticism towards good character evidence, but also the influence of New Zealand jurisprudence. This was drawn upon in Munday's article ‘What constitutes a good character?’Footnote 23 to which the court referred and relied upon in particular, as is evident from it echoing precisely Munday's contention that the law had taken a ‘wrong turning’.Footnote 24 However, before considering these issues it is, first, necessary to address the meaning of the good character rule and how the law on good character directions to the jury has developed.
1. What is the good character rule?
Somewhat surprisingly, the Court of Appeal in Hunter did not consider the meaning in law of ‘good character’. At common law, a rule emerged that the accused was entitled to prove his general good character, as an exception to the rule that character evidence was generally inadmissible. Sir James Stephen described the rule as ‘a sort of indulgence’ to the accused and traced its origins to before the Norman Conquest.Footnote 25 However, the earliest cited case to which he referred was R v Turner Footnote 26 and this appears to be generally accepted as the earliest known reference to the rule.Footnote 27
At one point it may have been limited to capital cases, where evidence of good character was admissible in favorem vitae and to ‘doubtful cases’, where the jury was not sure of guilt and character tipped the balance one way or another.Footnote 28 However, it came to be applied more widely when it was recognised there was no distinction between evidence of facts and evidence of character,Footnote 29 reflecting Russell's contention that good character: ‘… is an ingredient which ought always to be submitted to the consideration of the jury, together with the other facts and circumstances of the case’.Footnote 30 It is a statement of the special status of good character evidenceFootnote 31 that still resonates today.
The meaning of ‘good character’ was not finally settled until the judgment in R v Rowton,Footnote 32 where there was a vigorous attempt to dislodge its definition in terms of the accused's good ‘general reputation’ in the community.Footnote 33 In this important decision, a 13-strong Court of Crown Cases Reserved held that evidence was admissible as to the accused's ‘general reputation’ in order to show ‘the tendency and disposition of the man's mind towards committing or abstaining from committing the class of crime with which he stands charged’.Footnote 34 However, evidence adduced solely for the purpose of proving the accused's actual disposition, such as evidence of specific good acts and individuals’ personal opinions of the accused's character, was inadmissible. The proof of such ‘isolated facts’ was regarded as insufficient to amount to evidence that the accused had a good general reputation and was, therefore, of good character.Footnote 35 Notwithstanding that, an absence of previous convictions or other indications of bad character was admissible evidence of the accused's general reputation because the strongest evidence of a person's good character and best of all tributesFootnote 36 may be that ‘he is not talked about at all’.Footnote 37
The ruling in Rowton continues to be criticised, despite its high authority, and is commonly stated in practice to be ‘more honoured in the breach than in the observance’.Footnote 38 However, it is also evident that the definition has not been overruled and remains good law.Footnote 39 It follows that a question also arises as to whether the judge should direct the jury on good character.
2. The provision of good character directions to the jury
Prior to Hunter, juries were routinely directed on good character as a matter of law and failures to do so were taken very seriously by appellate courts.Footnote 40 However, that has not always been the position. At one time, directions on good character appear to have been at the complete discretion of the trial judge. In R v Aberg Footnote 41 the appellant relied on R v Bliss Hill Footnote 42 to argue that the omission of a good character direction was a misdirection and good grounds for appeal. However, Lord Goddard CJ held that so long as the summing-up was otherwise fair, an omission to direct on good character was no reason to quash a conviction.Footnote 43 His Lordship distinguished Bliss Hill on the basis that it was concerned with a faulty direction rather than no directions and, importantly, held that defendants had no prima facie entitlement to a good character direction at common law, although one could be provided at the judge's discretion.
Lord Goddard CJ appears, in general, to have taken a laissez faire approach to the provision of directions to the jury. For example, he omitted to direct the jury on the standard of proof when presiding over the notorious Derek Bentley trial and his summing-up was later described by Lord Bingham as clearly contrary to the right to a fair trial.Footnote 44 However, it is also important to bear in mind that Lord Goddard's summing-up was endorsed by the Court of Criminal AppealFootnote 45 and that his Lordship was sitting at a time when questions about an accused's rights to a particular direction were regarded as not even arguable because the issue was purely a question of the trial judge's discretion.Footnote 46
It is contended here that it was this old, discretionary approach to judicial directions that the liberal-minded Waterhouse LJFootnote 47 repudiated in his pivotal judgment in Berrada.Footnote 48 His Lordship was an early advocate of reasoned verdictsFootnote 49 and asserted unequivocally in Berrada that good character directions should be provided as part of the right to a fair trial and as a matter of law:
… if good character is raised by the defendant, it should be dealt with in the summing-up. Moreover, when it is dealt with, the direction should be fair and balanced …Footnote 50
This nascent Taxquet analysisFootnote 51 was regarded by the Court of Appeal in Vye and, in turn, by the House of Lords in Aziz,Footnote 52 as a watershed in the law on good character directions, as it marked a distinct change from the ‘unacceptable methods of Lord Goddard’ and other judges.Footnote 53 In Vye, the Court of Appeal clarified the law, which had become overly technical, uncertain and inconsistentFootnote 54 and, as Griew observed, lacking in a rational basis.Footnote 55 The court confirmed the fundamental principle in Berrada that, where relevant, a good character direction was a mandatory requirement in relation to a defendant's credibility.Footnote 56 It also extended the rule by requiring a mandatory ‘second limb’ direction on the defendant's propensity to commit the offence,Footnote 57 further entrenching the direction's status as a ‘backstop’ or ‘important safeguard’Footnote 58 against miscarriages of justice. Notwithstanding this, the Court of Appeal in Hunter repeated Munday's contention that the law took a ‘wrong turning’ in Berrada because good character directions were required as a matter of law.Footnote 59
The Court of Appeal in Hunter also asserted that the circumstances in which good character directions were given had ‘extended too far’ to include what it considered to be unmeritorious defendants.Footnote 60 However, following Aziz, it is apparent that evidence of relevant bad character continued to render accused ineligible for a direction. For example, the defendant in Martin,Footnote 61 who had been charged with two robberies committed with the aid of a hammer, was held not to qualify for a direction on his lack of propensity to offend because he had two previous cautions for possession of an offensive weapon. Likewise, in R v Shaw,Footnote 62 Lord Bingham held that a good character direction was unnecessary for a defendant charged with murder, who admitted being a drug dealer and member of an ‘armed posse’ that set out to punish the deceased for tricking him in connection with a cocaine deal. More recently, the Court of Appeal in Doncaster also indicated that, in accordance with Aziz, a defendant with relevant bad character would not be eligible for a direction.Footnote 63
Nevertheless, the court in Hunter regretted that unnecessary good character directions were being provided and, like Dennis, was critical of ‘distinctly generous’ decisions to defendants that were described as ‘dubious’ and even ‘downright disreputable’.Footnote 64 Some of the cases that were criticised, such as R v PD,Footnote 65 were post-Aziz, but it is a puzzling feature of Hunter that much of the judgment concerns criticism of cases such as R v Durbin Footnote 66 and R v Teasdale,Footnote 67 all of which preceded Aziz. It is submitted that Lord Mance was clearly correct when he observed more than a decade before Hunter that such cases must be of ‘only historical interest’ and the subject should:
… now be approached in the first instance by reference to Lord Steyn's speech in [Aziz] …. It is not to be qualified or applied by making exhaustive attempts to fit in all previous authority into a coherent mould.Footnote 68
The court was particularly critical of the judgment in PD, which concerned a defendant accused of rape who admitted potentially fraudulent behaviour and that he had sometimes acted violently towards his wife. In view of these admissions and Moses LJ's cognisance of the rule in Aziz, it seems surprising that both the court and the prosecution at trial accepted the defendant's lack of previous convictions for sexual offences warranted a good character direction.Footnote 69 This may have been because the court drew a dubious distinction between sexual offences and those of violence which, as Redmayne contends, may be regarded as pushing the law into absurdity.Footnote 70 However, the judgment may also be explained on an alternative basis. PD was not actually convicted of offences relating to violence and the report does not reveal the level of violence to which PD made admissions. It may have been very minor and consented to by his wife, if she shared his highly orthodox reading of Christian scripture regarding the subservience of women.Footnote 71 Therefore, as it was uncertain to what he was admitting and the case turned on whether the defendant or the complainant was to be believed, the court allowed his appeal. Moreover, Moses LJ recognised that the strict rule in Aziz meant the discretion not to direct on good character was only to be exercised exceptionally and that normally it was for the jury to decide what weight to give evidence of good character having had the benefit of a direction. Presumably, it was for these reasons that his Lordship held the circumstances in PD did not fall into the narrow category of ‘rare cases’ referred to by Lord Steyn.Footnote 72
It is, of course, trite law that the doctrine of stare decisis required the court to follow the House of Lords judgment in Aziz Footnote 73 and the Court of Appeal in Hunter set out how it interpreted this in light of changes to the law that it contended had been caused by the Criminal Justice Act 2003. Accordingly, its guidance on good character directions purported to reflect the mandatory Vye directions on credibility and propensity that were endorsed and clarified by the House of Lords in Aziz:
77 We use the term ‘absolute good character’ to mean a defendant who has no previous convictions or cautions recorded against them and no other reprehensible conduct alleged, admitted or proven…. This category of defendant is entitled to both limbs of the good character direction. The law is settled.
78 The first credibility limb of good character is a positive feature which should be taken into account. The second propensity limb means that good character may make it less likely that the defendant acted as alleged and so particular attention should be paid to the fact…
79 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 judgment as to whether or not to treat the defendant as a person of effective good character. It does not follow from the fact that a defendant has previous convictions which are old or irrelevant to the offence charged that a judge is obliged to treat him as a person of good character. In fairness to all, the trial judge should be vigilant to ensure that only those defendants who merit an ‘effective good character’ are afforded one. It is for the judge to make a judgment, by assessing all the circumstances of the offence(s) and the offender, to the extent known, and then deciding what fairness to all dictates. The judge should not leave it to the jury to decide whether or not the defendant is to be treated as of good character.
In addition, the court held that the judge has a discretion to provide a direction in a range of other circumstances where the accused has previous convictions or cautions, or other bad character. For example, where the accused has no previous convictions but admits other ‘reprehensible behaviour’ under s 101(1)(b) of the Criminal Justice Act 2003. However, it is contended that, with respect, the Court of Appeal misunderstood the effect of the enactment of the 2003 Act on the law on good character directions.
3. Good character evidence and the Criminal Justice Act 2003
The Court of Appeal in Hunter observed that ‘bad character’ was defined by ss 98 and 112 of the Criminal Justice Act 2003 as ‘evidence of or a disposition towards misconduct’ and consisted of a criminal offence or ‘other reprehensible behaviour’, except where that was concerned with the alleged facts of the offence or misconduct in ‘connection with the investigation or prosecution of that offence’.Footnote 74 The court seems to have extrapolated from this an intention on the part of Parliament to define ‘good character’ as simply meaning the opposite. Accordingly, the court asserted that the 2003 Act's codification of the law on bad characterFootnote 75 had, by default, also changed the law on good character.Footnote 76 However, it is contended that the law remains unchanged and it is plain that Parliament did not intend to abolish or affect the common law rules on ‘good character’, but only those on ‘bad character’.
First, the Law Commission Consultation Paper, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant Footnote 77 that preceded the Criminal Justice Act 2003 and guided parliamentary debates did not recommend changing the law on good character. The final report focused expressly on bad character,Footnote 78 as neither the consultation paper nor its consultees suggested broadening the scope of the enquiry. Indeed, the Law Commission was unequivocal that the law on good character should be left unaltered: ‘The vulnerable position of the defendant justifies… the special dispensation afforded to the defendant to call evidence of his or her good character’.Footnote 79
Secondly, Parliament reflected this opinion in the contents of the Criminal Justice Act 2003. In s 118 it preserved specifically the common law rule that, in proving a person's good character according to the rule in Rowton, evidence of reputation is admissible despite it being hearsay. In addition, s 99(1) states expressly that ‘the common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished’, but makes no mention of the rules on good character.
In view of the vigorous debates in Parliament during the passage of the 2003 ActFootnote 80 and, in particular, MPs’ strong criticism of the admission of previous acquittals to undermine an accused's good character,Footnote 81 it is highly likely that any changes to the law on good character would have met with determined opposition. Moreover, it was part of the very purpose of the Act's new ‘inclusionary’ approach to bad characterFootnote 82 to resolve the much-criticised imbalance that resulted from admission of good character ‘as of right’, while bad character remained prima facie inadmissible.Footnote 83 Therefore, there can have been little or no expectation in Parliament or the courts that good character would become less admissible and juries directed less often.
Notwithstanding this, the Court of Appeal in Hunter asserted that the ‘whole landscape’ of the law on good and bad character had been changed by the 2003 Act and, in that regard, relied on the judgment in Doncaster.Footnote 84 However, although Rix LJ postulated that the 2003 Act had some impact on the common law, it is important to note, as Jackson LJ observed in Hoyte,Footnote 85 that the Court of Appeal in Doncaster actually drew back from reaching a decision on that basis. Instead, the court held that the trial judge's refusal to direct on good character was justified because the situation was ‘analogous’ to the narrow and ‘exceptional’ situation referred to in Aziz where a good character direction was not required.Footnote 86 The Court of Appeal in Hunter appears to have overlooked this endorsement of the common law and suggested that the meaning of good character had been altered by a broadening of the definition of ‘bad character’ by the 2003 Act.
The court stated that this now extended well beyond the absence of previous convictions, which it considered it to have been the prevailing definition before the Act.Footnote 87 Accordingly, it held that the circumstances in which good character directions were given should be restricted. However, it is not clear that the law on ‘bad character’ was broadened by the 2003 Act. The expression ‘reprehensible behaviour’ in s 98 of the 2003 Act is novel but its scope is ‘not at all clear’Footnote 88 and Lord Sumption has since stated, unequivocally, that good character was never so limited.Footnote 89 Nevertheless, the Court of Appeal in Hunter insisted that a broader definition of ‘bad character’ in the 2003 Act concomitantly narrowed the meaning of ‘good character’ and affected eligibility for a good character direction.
4. The narrowing of ‘protean’ good character
As we have seen, the Court of Appeal in Hunter conceded that a defendant with ‘bad character’ (which may consist of previous convictions, cautions or other ‘reprehensible behaviour’) might qualify as being of ‘effective’ good character. However, even this may be doubted, in view of the court's criticism of the decision in R v Payton Footnote 90 to allow an appeal where the judge omitted to direct on the defendant's effective good character. It is apparent that the default position following Hunter is that such a defendant is not of good character in what Hallett LJ described as ‘the proper sense’Footnote 91 of the term. Her Ladyship regarded this as ‘a statement of the obvious’Footnote 92 and observed when refusing leave to appeal in R v Morgans: ‘A defendant with convictions is not entitled as of right to any part of the good character direction, for the simple reason he does not have a good character’.Footnote 93
It is an opinion that has been readily endorsed by the courtsFootnote 94 but it is contended that it is an absolutist view that ignores the variable or ‘protean’ nature of good character referred to recently by Lord Sumption in Layne.Footnote 95 The analysis in Hunter also has potentially serious consequences. It means, for example, that a defendant charged with a substantial financial fraud, who has a minor motoring conviction from 30 years ago, is prima facie not considered to be deserving of a good character direction. This may be regarded as a form of what Lacey has termed ‘character essentialism’ or ‘character determinism’.Footnote 96 That is, an approach that demonstrates a reluctance to accept the variability of a defendant's character and that bad character is not necessarily fixed. It may, in time, diminish in relevance or importance to such an extent that a good character direction becomes appropriate. It is possible, following Hunter, that a judge will direct the jury that the defendant can be treated as being of ‘effective’ good character, provided the bad character consists of previous convictions that are ‘old, minor and irrelevant’. However, it is submitted that this represents a significant narrowing of what was previously regarded as ‘good character’ simpliciter.
This narrowing is all the more apparent because Hallett LJ insisted that the words ‘old, minor and irrelevant’ must be read conjunctivelyFootnote 97 and appears to privilege them over the usual test of relevance for determining whether past misconduct will undermine an accused's good character. Lord Sumption was clear in Layne that Hallett LJ had fallen into error in this regard and that the true test is the broader one of relevance.Footnote 98 That is, past misconduct must be material to the defendant's character at the time that it falls for evaluation for it to undermine good character,Footnote 99 and ‘old and minor previous convictions’ are only particular examples of what may fall to be taken into account in deciding whether the accused may still be regarded as being eligible for a good character direction.
Lord Sumption's analysis in Layne also reflects the approach before Hunter. Thus, Glidewell LJ held in R v Liacopoulous,Footnote 100 at a time when he was head of the Judicial Studies Board, that a defendant with a ‘very minor’ irrelevant previous conviction was undoubtedly of ‘positive’ good characterFootnote 101 and not just ‘effective’ good character. Moreover, this broad interpretation of good character was repeated in Glidewell LJ's Court of Appeal judgment in Aziz, where he stated that the appellant could be of good character because his convictions were not of ‘any relevance or significance’,Footnote 102 and was referred to with approval by Lord Steyn in the House of Lords.Footnote 103 Indeed, it is arguable that to suggest otherwise would be to mislead the jury about the defendant's character, which was a matter of particular concern to the Court of Appeal in Hunter.Footnote 104 It is also apparent from Layne Footnote 105 that, contrary to Hunter, past misconduct that does not undermine good character is not necessarily limited to minor convictions. The Privy Council in Layne was called upon to decide whether the appellant could be of good character despite his previous convictions for the murder of 10 people, including the Prime Minister of Grenada and his cabinet. The appeal was dismissed, but Lord Kerr dissentedFootnote 106 and the majority did not rule out the possibility of a person being treated as being of good character in similar circumstances in the future, even where the previous convictions were for murder.Footnote 107
As well as making errors in the law, the court in Hunter also appears to have made certain errors of fact, which compounded the problem. That is, it stated the appellant in Aziz had no previous convictions, but he had two.Footnote 108 The court also seems to have misconstrued Taylor LJ's judgment in Vye.Footnote 109 While it is correct that Vye concerned appellants with no previous convictions, a few months later in R v Horrex,Footnote 110 Taylor LJ clarified that a defendant with a previous conviction could also be treated as being of ‘good character’, just like the appellant in Vye who had no previous convictions. Accordingly, contrary to Hallett LJ's finding, it was not an ‘important distinction’ from later case law that both Aziz and Vye ‘were concerned with defendants with no previous convictions’.Footnote 111 However, more importantly, the Court of Appeal appears to have also misunderstood the nature and essence of the unanimous House of Lords’ judgment in Aziz, which had been the subject of regular approval at a high level.Footnote 112 In particular, the process for the provision of good character directions was wrongly changed from being a matter of ‘judgment’ to a matter of ‘discretion’.Footnote 113
5. Directing the jury: discretion, law and defeasibility
The Court of Appeal in Hunter held that only defendants with ‘absolute’ or ‘effective’ good character were entitled ‘as of right’ to a good character directionFootnote 114 and that qualification for the latter appellation was at the judge's discretion. As a result of the narrowing of good character discussed above, and contrary to previous authority, it is apparent that if Hunter is followed there will now only be a few instances when a direction will be given ‘as of right’ and that much will be left to the individual judge's discretion.
The Court of Appeal stated that it was bound by Aziz,Footnote 115 but only in the light of the Criminal Justice Act 2003. However, it has been argued here that, contrary to Hunter, the 2003 Act did not change the law on good character. It follows that the Court of Appeal's focus ought to have been confined to Aziz. Prior to Hunter, a judge would come to an objective assessment of whether past misconduct or convictions were relevant to whether the defendant should be regarded as being of good character. This was a matter of judgment rather than discretion, as a question of law was involved and not the judge's individual choice.Footnote 116 Vye was an attempt to avoid the ‘judicial idiosyncrasy and variance’ as to when a direction should be provided that had prevailed under the previous discretionary regime.Footnote 117 The House of Lords in Aziz provided further certainty by laying down a strict, ‘clear-cut’ rule that a good character direction should normally be provided where there was evidence of good character.Footnote 118 That is, the House of Lords confirmed that what had once been a question of discretionFootnote 119 had crystallised into an obligation to direct the jury on good character as a matter of law.Footnote 120 Whether a direction was provided was an objective exercise,Footnote 121 but it could only not be provided in exceptional circumstances. Lord Steyn described the discretion not to direct on good character as ‘residual’ but, arguably, the discretion might have been more properly described as ‘liminal’ or ‘existing at the very outer margins of the rule’ to convey more accurately the intention that non-direction would be a rarity.Footnote 122 Critically, the Court of Appeal appears to have misunderstood the narrowness of Lord Steyn's exception to good character directions being provided because it did not appreciate the defeasible nature of the rule set out by his Lordship in Aziz.
HLA Hart, the philosopher of legal positivism, has been credited with introducing the idea of ‘defeasibility’ into legal analysis.Footnote 123 ‘Defeasibility’ may be described as the notion that a legal concept or rule is open to implied exceptions, which cannot be known ex ante and, accordingly, only provides prima facie and not conclusive obligations.Footnote 124 That is, a rule that appears certain may, nevertheless, be contradicted or defeated by the discovery of further facts, as exceptions to rules are ‘incapable of exhaustive statement’.Footnote 125 The thesis is that there is, unavoidably, an element of indeterminacy in the application of rules. This recognises that due to the ‘open texture of law’Footnote 126 a general rule, such as that a good character direction should be given where a defendant is judged to be of good character, will rarely be constructed so clearly and precisely that it leaves no room for doubt and no loopholes, or no uncertainty at the borderline.Footnote 127
Lord Steyn acknowledged his debt to legal positivismFootnote 128 and HLA Hart in particular, who he described as the ‘great master of English legal philosophy’.Footnote 129 He was also a confirmed critic of what Hart described as the ‘vice of formalism’Footnote 130 in statutory interpretation. So, it should come as no surprise that his Lordship would apply defeasibility in Aziz and, therefore, accept a degree of flexibility in the provision of a legal rule on good character directions.
What Lord Steyn outlined in Aziz was that, to avoid the previous uncertainty in the law, there was a mandatory rule in relation to good character directions – that prima facie the direction is obligatory where a person is of good character.Footnote 131 As we have seen, ‘good character’ is broadly understood in law to mean the defendant's good ‘general reputation’, which includes a lack of previous convictions (or ones of relevance).Footnote 132 These standard instances represented a ‘core of certainty’,Footnote 133 the plain cases where it was clear that a good character direction should be given. However, his Lordship also accepted that there should, nevertheless, be a very limited discretion for a direction not to be given, in exceptional circumstances, where it would be a complete absurdity to do so. This followed from Hart's contention that it is logically impossible to eliminate the need for discretion because the ‘open texture’ of the law means it is always possible to find a borderline case for the application of a rule.Footnote 134
Therefore, Lord Steyn held that a direction would not be necessary where this would be an ‘insult to common sense’Footnote 135 due to the peculiar facts of the case.Footnote 136 However, it should not be overlooked that these are ‘very strong words’,Footnote 137 as false mortgage applications and tax declarations were held insufficient for a good character direction to be lost in Aziz, despite it being a case concerned with defrauding the tax authorities and the Crown describing a direction in these circumstances as ‘absurd’.Footnote 138 Accordingly, it is evident that Lord Steyn meant the discretion to omit a good character direction to be exercised at the very fringes or, if we utilise the terminology of positivism, ‘in the penumbra’ of the rule,Footnote 139 with the form of any such direction being left to the ‘good sense of trial judges’.Footnote 140 Therefore, criticism of the judgment for leaving a void because it did not adequately identify those circumstancesFootnote 141 is misplaced, as it does not acknowledge the narrow scope for non-direction and its resulting rarity under the rule in Aziz.Footnote 142 It also follows that it is erroneous to suggest that Aziz actually broadened this discretion in order to discourage judges from their supposed ‘indulgent’ tendencies’ towards defendants.Footnote 143
In Aziz, his Lordship noted, clearly utilising the language of Hart and defeasibility, how discretions ranged from ‘open-textured’ to ‘narrowly circumscribed’Footnote 144 and described the discretion not to direct on good character as the latter. It is apparent that Lord Steyn meant by this ‘heavily constrained by established principles’, as he drew the same distinction in R v Bey Footnote 145 when considering the discretion to direct the jury on a defendant's lies:
Discretions vary greatly in nature. At one end of the spectrum one has a completely open-textured discretion. At the other end one has a discretion heavily constrained by established principles.Footnote 146
It is also contended that when he referred to ‘established principles’, Lord Steyn had in mind the rule in Berrada and Vye Footnote 147 that fairness demanded that a good character direction would normally be provided as part of the right to a fair trial and as a matter of law rather than discretion. However, as the Court of Appeal in Hunter seemed to misunderstand the defeasible nature of the rule in Aziz, it held that there was no ‘fixed rule’ that failing to direct the jury would render a conviction unfair.Footnote 148
The Court of Appeal was sceptical about the importance of good character directions. This is apparent from the tone of the judgments in both Hunter Footnote 149 and Morgans,Footnote 150 as well as Hallett LJ's extra-judicial remarksFootnote 151 that, as a ‘democratic branch of the judiciary’, the jury has no need for good character directions.Footnote 152 The court stated:
… many have questioned, with some justification in our view, whether the fact someone has no previous convictions makes it any the more likely they are telling the truth and whether the average juror needs a direction that a defendant who has never committed an offence of the kind charged may be less likely to offend.Footnote 153
It is likely that the ‘many’ the Court of Appeal had in mind included, in particular, the New Zealand Court of Appeal. Its sceptical judgment on good character in R v Falealili Footnote 154 was referred to with particular approval in Munday's article ‘What constitutes a good character?’Footnote 155 which, as we have noted, the Court of Appeal relied upon.Footnote 156 It is, therefore, necessary to examine the state of the law on good character directions in New Zealand.
6. The impact of sceptical New Zealand jurisprudence on Hunter
The New Zealand law on good character directions was strongly influenced by a sceptical scientific position, which also shaped Munday's view and led to questioning of the value of good character evidence in cases such as Falealili Footnote 157 and now Hunter. Thus, the New Zealand Court of Appeal treated a lack of previous convictions as ‘generally neutral’Footnote 158 and insufficient to demonstrate good character.
Munday observed ‘it is surely disturbing that the law should for so long have been totally out of step with received scientific wisdom’.Footnote 159 He cited, in particular, the work of Hartshorne and May,Footnote 160 who propounded a theory of ‘situationism’ to the effect that it is impossible to conclude that people have certain traits that cause them to behave consistently from one situation to another. It follows that traits of good character can be of no real value in predicting behaviour and deciding a person's guilt. However, although this was the scientific orthodoxy at the time of his writing, the science has since moved on. This is not the place to examine that science in full, but it is worth noting that Redmayne, when reviewing it in Character in the Criminal Trial,Footnote 161 observed that there had been a significant change since Munday's article. It is evident that there is now a consensus that both personality traits and situations are relevant factors in explaining behaviour – the so-called ‘interactionism’ theory.Footnote 162 It is accepted that there is evidence of broad consistencies in stable individual differences over time. As a result, contrary to the theories that influenced Munday and then the Court of Appeal in Hunter, personality traits continue to be relevant in the current ‘five-factor’ and ‘alternative five-factor’ models of personality,Footnote 163 even if some regard character as ‘fragmented’.Footnote 164
It may be concluded that the science on character is not straightforward and, further, because the research is invariably situated in workplace or educational contexts, rather than the courtroom, such scientific insights as there are on character may not always be helpful in evaluating good character evidence. Psychology is evidently still finding its way in this field and, as Jill Hunter has observed, ‘much work lies ahead’.Footnote 165 However, it is also worth heeding the comments of the eminent Australian jurist, Kirby J, who was critical of this approach to the law because of its association with what has been described as the ‘scientization of inquiry’.Footnote 166 He argued that a good character direction should be required in all cases where there is evidence of good characterFootnote 167 and cautioned that even if the science were to be more compelling, we might still consider that the law should rest on legal history and policy rather than science.Footnote 168
In Falealili,Footnote 169 the New Zealand Court of Appeal held that a good character direction should only be required where evidence of the defendant's ‘positive’ good character is provided and not where an accused simply lacks previous convictions. This confirmed Munday's opinion that compared to the courts in England and Wales, the New Zealand courts were more sceptical about good character and less inclined to ‘bend over backwards’ for defendants who relied on an absence of previous convictions as evidence of good character.Footnote 170 However, the Court of Appeal's reliance on Falealili in Hunter, albeit indirectly through the influence of Munday's article,Footnote 171 was misplaced. Falealili has not been good law since at least 2010, as it was overruled by the New Zealand Supreme Court in Wi v R Footnote 172 and superseded by the codification of law brought about by the Evidence Act 2006.
In what was a ‘substantial departure’ from the common law’,Footnote 173 the admissibility of evidence of good character in New Zealand is now governed under the Evidence Act 2006, solely by a ‘veracity rule’ (s 37) and a ‘propensity rule’ (s 40). As a consequence, evidence of good character is admissible in assessing a person's veracity, which is defined as the ‘disposition of a person to refrain from lying’,Footnote 174 only if it is ‘substantially helpful’. It is also potentially admissible under the propensity rule, but subject to a lower test of relevance, namely that it ‘tends to show a person's propensity to act in a particular way or to have a state of mind’.
These provisions were closely examined in Wi Footnote 175 and, preferring Aziz, the Supreme Court overruled Falealili. The Justices considered the latter led to ‘uncertainties’ in the law and that:
The English approach to the admissibility of lack of previous convictions has the advantage of both simplicity and consistency with long-standing criminal trial practice. For the reasons given we consider the Act can and should be construed to the same effect… The common law approach in England fortifies the appropriate construction of the Act.Footnote 176
It is contended that if the Court of Appeal in Hunter had been aware of the current law in New Zealand and the Supreme Court's preference for ‘long-standing criminal trial practice’ and the judgment in Aziz, it would have been less influenced by Munday's Falelalili-inspired critique of the position in England and Wales. It was held in Wi, contrary to Falealili, that there is no requirement for ‘positive’ evidence of good character. It was further held that a lack of previous convictions is not ‘neutral’ but, rather, admissible evidence of good character in relation to a defendant's propensity to not act in a particular way. The Justices found that a lack of previous convictions was relevant evidence of good character, as it has a tendency to show that the defendant had never committed any such offence.Footnote 177
It follows that the New Zealand Supreme Court accepted that a defendant's good character, in the form of a lack of previous convictions, is potentially relevant evidence of the defendant's propensity and veracity. The Justices stated that its probative value can be only ‘marginal’ or ‘slight’, but this does not mean that it is necessarily unimportant to a fair trial. As Lord Steyn stated in Aziz,Footnote 178 echoing the European Court of Human Rights, the judge has an important obligation to put the defendant's character to the jury in a ‘fair and balanced way’Footnote 179 and in sufficient detail.Footnote 180 However, as we have noted, the good character direction may also be regarded as acting as a ‘backstop’ against miscarriages of justice and, in lieu of reasoned judgments, as a necessary part of the ‘framework of fairness’ for a trial.
7. The ‘framework of fairness’ and jury directions
It has been argued that the requirement for a good character direction in Aziz was derived from the right to a fair trial and a desire to avoid miscarriages of justice. In that regard, it is pertinent to observe that Lord Steyn's judgment in Aziz came only a few years after the ‘Birmingham Six’ and Judith Ward appeals, which concerned gross miscarriages of justice. The importance of having a ‘backstop’ or ‘final safeguard’, in the form of a good character direction, is likely to have weighed particularly heavily on both Lord Steyn and Glidewell LJ, who sat on the appeals in Aziz before the House of LordsFootnote 181 and the Court of AppealFootnote 182 respectively. Both also sat in the appeal of Judith Ward,Footnote 183 who was convicted due to what Lord Steyn described as ‘lamentable failures’ by the prosecution to disclose critical information and documents.Footnote 184
Of course, good character directions will not always prevent wrongful convictions, but they may, at least, cause a jury to pause for thought before convicting a person of previous good character on what appears to be strong prosecution evidence. This may not be reliable and, moreover, critical evidence may not have been disclosed by the prosecution, as in R v Ward Footnote 185 and, more recently, in Liam Allan's case.Footnote 186 Therefore, it is submitted that good character directions remain relevant to a fair trial for the same reasons of pragmatism and ‘sombre realism’ that led Lord Steyn and Glidewell LJ to conclude in Ward:
The law is of necessity concerned with practical affairs, and it cannot effectively guard against all the failings of those who play a part in the criminal justice system.Footnote 187
Research suggests that juries can be largely relied upon to make appropriate use of judicial directionsFootnote 188 and any potential negative consequences of requiring such a direction ‘as of right’ appear to be limited. As Kirby J suggested in Melbourne,Footnote 189 even if a good character direction is provided that appears unrealistic to a jury, it is likely to be treated with some doubt and ignored or regarded as ‘at worst, a manifestation of the law's proclaimed solicitude for those accused of crime’.Footnote 190 That is, although the provision of the direction is a matter of law, the weight to be given to the evidence of good character is a matter for the jury.Footnote 191
This contrasts sharply with the sceptical analysis of the law provided by the Court of Appeal in Hunter, which doubted whether, even where good character was relevant, the jury ever needed a direction to understand its significance because it was a matter of common sense.Footnote 192 However, it is contended that we should be cautious about relying on ‘common sense’ in a more heterogeneous society, as the extent to which individuals believe in the significance of good character may vary.Footnote 193 Moreover, Pennington and Hastie have argued that juries frequently make decisions by using stories in order to comprehend the trial and, consequently, different jurors will construct different stories based on their experience.Footnote 194 It follows that, without a judicial direction, some jurors will take account of an accused's good character as significant or even over-emphasise its importance, while others may take a much more sceptical view.
Even if a jury might understand the significance of good character, it was cogently argued in Tang Siu Man v HKSAR Footnote 195 that ‘it is a commonplace of the criminal law that certain jury directions are standard’ and unclear why, if ‘good character’, broadly understood, is relevant evidence, that it should be treated differently.Footnote 196 It is likely, for example, that jurors will be aware by the end of a trial of the law on the onus and standard of proof. They will have been informed of these at the commencement of the trial, reminded by advocates and the judge and may have been already aware of them from their general knowledge. Nevertheless, it remains an essential requirement of a fair trial that a direction is given to the juryFootnote 197 and, following Taxquet v Belgium,Footnote 198 particularly in the absence of a reasoned judgment.Footnote 199
The European Court of Human Rights held in Taxquet that Article 6(1) of the European Convention obliges courts, in general, to give reasons for their judgments in both civil and criminal proceedings as a safeguard against arbitrariness.Footnote 200 This is regarded as vital not only for the defendant but also for the maintenance of confidence in the administration of justice.Footnote 201 However, as juries do not provide reasons for their verdicts, and the Grand Chamber was not prepared to require it,Footnote 202 the Justices in Taxquet held it was important that both the defendant and the publicFootnote 203 should be able to understand the reasons for a conviction. Transparency in reasoning is strongly associated with the right to a fair trial, as without it parties are unable to protect their rights, and it has emerged as a benchmark of good practice in criminal proceedings.Footnote 204 Accordingly, the Grand Chamber indicated in Taxquet that appropriate safeguards to prevent unfairness would be:
… directions or guidance by the presiding judge to the jurors on the legal issues arising or the evidence adduced… forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury's answers.Footnote 205
The Grand Chamber's judgment might have been regarded as simply reflecting the nature of trials in England and Wales and the symbiotic relationship between the judge and the jury.Footnote 206 However, despite that, the decision in Taxquet, which was confirmed in Lhermitte v Belgium,Footnote 207 appears to have had limited impact on the Court of Appeal. For example, the judgment was dismissed in R v Ahmad (Benjamin) Footnote 208 as ‘not remotely relevant’ to jury trials in England and Wales.
The Strasbourg Court has stated on a number of occasions that, in deciding the fairness of proceedings, it will have regard to them as a whole, including that errors may be rectified on appeal.Footnote 209 However, in relation to good character in England and Wales, this is increasingly unlikely in practice. This is because the good character direction post-Hunter is regarded as a matter of discretion rather than law and such evidence is treated with the same scepticism that resonated throughout the judgment in Hunter.Footnote 210 It is also contended that an appeal on its own would not address the wider concern that neither the accused nor the public would be aware of the reasons for the verdict and that, accordingly, the accused's ability to participate in proceedings as a ‘responsible agent’ guided by reasons will not be respected.Footnote 211 As Tribe argues, no better way has been found of generating the sense that justice has been done than the sense of ‘interchange’ that comes from a hearing:
Whatever its outcome, such a hearing represents a valued human interaction in which the affected person experiences at least the satisfaction of participating in the decision… and receiving an explanation of why the decision is being made in a certain way.Footnote 212
Although there are compelling arguments for reasoned verdicts,Footnote 213 it seems unlikely that they will become part of the law of England and Wales in the near future. Therefore, it is submitted that it is necessary in law for a standard good character direction to be provided where there is evidence of good character, as part of the overall ‘framework of fairness’ required by the Grand Chamber.Footnote 214 That is, following Taxquet, it is an important element of a fair trial, where a reasoned judgment has not been given, that clear, relatively fullFootnote 215 directions are provided as part of a ‘properly structured summing up’Footnote 216 in order to appropriately assist the jury in deciding guilt or innocence.Footnote 217 The right to a fair trial implies that the court has a ‘duty effectively to examine the grounds, arguments and evidence adduced by the parties’.Footnote 218 Accordingly, if neither the reasons for the verdict nor full directions are provided to the jury, it is plain that the defendant and the public cannot be reassured that a defendant's good character formed a necessary link in the ‘chain of reasoning’Footnote 219 of an impartial jury, as part of the accused's ‘right to be heard’Footnote 220 in a fair trial. Although research indicates that juries try defendants on the evidence before them,Footnote 221 one cannot know for certain that a jury has the shared common sense that good character is relevant and taken it into account.Footnote 222 Therefore, directions provide some reassurance that, when called to answer at trial, the defendant's case has been properly heard and, in particular, where character is central to guilt.Footnote 223 Moreover, in the absence of a reasoned decision, misdirections at least afford a party a ground on which to have the decision reviewed by an appellate body.Footnote 224
Conclusion
This paper has contended that the Court of Appeal in Hunter misinterpreted the law on good character evidence and, in particular, the leading House of Lords authority of Aziz by which it was bound. The court appeared to underestimate the strictness of the rule on good character directions in Aziz and misunderstood its defeasible nature. Therefore, instead of Lord Steyn's ‘simple and moderate rule’Footnote 225 that ‘prima facie the directions must be given’,Footnote 226 the law set out in Hunter appears ‘somewhat complex’Footnote 227 and spells a return to the ‘judicial lottery’ and inconsistency of the pre-Vye days.Footnote 228
It has been argued that this occurred, in part, because the Court of Appeal considered erroneously that good character directions were being given where the accused was of bad character and the judgment in Aziz required reassessment in light of changes to the law on bad character brought about by the Criminal Justice Act 2003. What Lord Sumption described as the ‘protean phrase of good character’Footnote 229 was then interpreted very narrowly and the influence of a sceptical academic critique of the law on the Court of AppealFootnote 230 has permitted judges to exercise an extensive discretion to not direct the jury on good character.Footnote 231 The relatively few further reported appeals on the provision of good character directions that have followedFootnote 232 is a good indication that the ‘golden metwand of the law’ in Aziz has been displaced by the ‘crooked cord of discretion’Footnote 233 in Hunter, so that the possibility of appeal is more limited.
It is contended here that the House of Lords in Aziz regarded good character directions in the same light as directions on the burden and standard of proof and on confessions, that is, as ‘protection necessary to preserve a fair trial’.Footnote 234 They act as an important counter-weight to the serious credibility problem that the defendant faces because of the jury's tendency to assume that the defendant in the dock has a bad character.Footnote 235 However, the Court of Appeal in Hunter did not seem to fully appreciate this aspect of the law and that, in the absence of reasoned jury verdicts, good character directions also form part of the ‘framework of fairness’ referred to in Taxquet v Belgium, reassuring the defendant and the public that good character has been taken into account by the jury.Footnote 236
It follows that if good character directions should be regarded as an aspect of the right to a fair trial, we can also assume, as Lord Steyn argued elsewhere, that ‘Parliament would not curtail such rights by a side-wind, but only by the clearest provision in the plainest English’.Footnote 237 The Criminal Justice Act 2003 could not have been clearer that only the law on bad character was abolished and not the law on good character. It is submitted that the judgment in Doncaster Footnote 238 is of no assistance in this regard and Aziz remains the leading common law authority that, where there is evidence of good character, a jury direction should normally be provided as a matter of law and as part of the right to a fair trial.
As, in practice, the law is unable to guard effectively against all the failings of the criminal justice system, ‘sombre realism’Footnote 239 dictates that the good character direction remains an important ‘backstop’ or safeguard against potential miscarriages of justice.Footnote 240 As such, it continues the historic ‘exceptionalism’ of good character evidence. The direction is a ‘special dispensation’Footnote 241 that asks the jury to pause before they convict a fellow citizen called to answer for alleged wrongdoing, to consider whether, notwithstanding the evidence that they have heard, they are sure that this defendant is guilty. Thus, as the Law Commission has stated, the good character direction has an important role in ‘preventing the conviction of the innocent’Footnote 242 and accords with common principles of justice by treating the particular defendant with respect, as an end in themselves, rather than a means to an end.Footnote 243 Accordingly, it is submitted that, contrary to Hallett LJ's contention, it is Hunter that was the ‘wrong turn’ in the law,Footnote 244 which should be remedied by the United Kingdom Supreme Court at the earliest opportunity.
