Bailey, R v

A defendant of good character who has given evidence is ordinarily entitled to a clear direction on both distinct aspects of good character: its relevance to the credibility of the defendant’s evidence and to the likelihood of having committed the offence. The jury should be told that they should take that evidence into account, not merely that they may do so.

Whether an omission renders a conviction unsafe depends on the case. Where dishonesty and the defendant’s asserted belief are central issues, an unclear and watered-down direction may make the conviction unsafe. The court applied the principles in Vye (1993) 97 Cr.App.R 134 and Lloyd [2002] Cr.App.R 355.

The appellant was convicted at Sheffield Crown Court of theft of four tonnes of nickel and was sentenced to a community punishment order, compensation and costs. He claimed that he believed he was legally entitled to take and sell the nickel as compensation for metal allegedly missing from stock assigned to him.

His defence relied on the absence of dishonesty and on a claim of right under Theft Act 1968, section 2(1)(a). He gave evidence and was of good character. The Recorder’s direction stated that the jury could take his lack of convictions into account in his favour, but did not clearly identify its relevance to credibility and propensity.

A single judge refused leave to appeal. The full court granted leave on the good-character direction and also referred the renewed sentence application. The central issue was whether the inadequate direction made the conviction unsafe.

1. Appeal allowed. The conviction was unsafe and was quashed. The Crown did not seek a retrial, and the court made none.

2. The appellant was entitled to the two-limbed good-character direction stated in Vye (1993) 97 Cr.App.R 134. Because he had given evidence, the jury should have been directed to take his good character into account when deciding whether to believe his evidence. They should also have been directed that it might make him less likely to have committed the offence.

3. The Recorder’s statement that the jury could take the absence of convictions into account did not adequately convey either limb. It did not clearly connect good character with credibility or with the likelihood of offending. It was also weaker than the plain instruction that the jury should take the evidence into account. As Lloyd [2002] Cr.App.R 355 showed, the direction should not be watered down.

4. The defect was material. The decisive questions were whether the appellant was dishonest and whether he believed that he had a legal right to deprive the owner of the nickel under section 2(1)(a) of the Theft Act 1968. His state of mind and the truthfulness of his evidence were therefore central. The court could not say that the conviction remained safe.

5. The court added that proposed good-character directions should ordinarily be discussed with counsel before closing speeches, and that counsel should draw an apparently inadequate direction to the trial judge’s attention before the jury retire where possible. A defence costs order was made in respect of the application for permission to appeal.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction and made no retrial order.

• Full court: Granted leave to appeal against conviction on 4 May 2004 and referred the renewed sentence application to the appeal court.

• Single judge: Refused leave to appeal against conviction and sentence.

• Sheffield Crown Court: Convicted the appellant of theft on 10 January 2003 and sentenced him on 18 February 2003.