Gray, R v

A defendant of previous good character is ordinarily entitled to a direction on both credibility and propensity. A defendant with a minor or irrelevant previous conviction should ordinarily be treated as of effective good character and receive an appropriately qualified direction.

Proved misconduct arising during the trial will usually justify qualification rather than withholding of the direction. The residual discretion to withhold it is narrow and arises only where the direction would be meaningless, absurd or an insult to common sense. A failure to give the required direction is material where credibility is central to the verdict.

The appellant, aged 18, was convicted of murder at Manchester Crown Court and sentenced to detention for life in a young offenders’ institution. The prosecution case was that he joined his father and a co-defendant in a fatal attack. His case was that he remained downstairs or outside while the killing occurred.

He appealed on the adequacy of the direction under section 34 of the Criminal Justice and Public Order Act 1994, and on the absence of a full good-character direction. He also sought to rely on fresh evidence said to support his account and to bear on possession of the murder weapon.

The central issue was whether his minor previous conviction and admitted lesser misconduct deprived him of entitlement to directions on both credibility and propensity.

1. Appeal allowed; conviction quashed. The failure to give a proper good-character direction was a material irregularity. The court would hear counsel on whether there should be a retrial.

2. A defendant of previous good character is entitled to directions on credibility and propensity under R v Vye [1993] 1 WLR 471. A defendant with a previous conviction may be treated as of effective good character. Where the conviction is irrelevant or insignificant compared with the charge, the judge ought to exercise that discretion in the defendant’s favour.

3. Admitted criminal conduct during the events tried does not automatically remove that entitlement. The normal course is to qualify the direction realistically. The residual discretion to withhold it is narrowly confined to a case where a direction would be meaningless, absurd or an insult to common sense. The appellant’s minor motoring conviction and admitted ground-floor violence did not meet that threshold. He should have received a credibility direction and a modified propensity direction contrasting that conduct with participation in murder.

4. The judge’s limited credibility observation did not cure the omission. It was expressed as a reluctant mitigation of the previous conviction rather than a positive direction that the appellant’s effective good character supported his credibility. Since the case depended substantially on choosing between the appellant’s account and the principal eyewitness’s evidence, the omission could affect the safety of the conviction.

5. The section 34 direction under the Criminal Justice and Public Order Act 1994 was adequate. The jury had been directed to consider all the circumstances, including the appellant’s explanation that he acted on legal advice. The fresh evidence would not have affected the jury’s decision and afforded no separate ground for allowing the appeal.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2004] EWCA Crim 1074.
• Manchester Crown Court: On 1 August 2002, before HHJ Sir Rhys Davies QC and a jury, convicted the appellant of murder and imposed detention for life in a young offenders’ institution.