Mentor v R

Where a defendant with a spent conviction relies on positive character evidence, the trial judge must first decide whether the conviction is, or reasonably ought to be treated as, wholly irrelevant to the charge. If it is, the defendant is entitled to the full two-limbed good-character direction. If it is not, the form of a balanced and fair character direction lies within the judge’s discretion.

A spent conviction for violence which has only just become spent may properly qualify positive character evidence. The jury must not use it as proof of propensity or present guilt, but may take it into account when weighing the overall character evidence and deciding which account to accept.

The appellant was convicted at the Crown Court at Dorchester of attempted kidnapping and sentenced to six years’ imprisonment. He appealed against conviction and sentence.

The conviction appeal concerned the Recorder’s direction on character evidence. The appellant had called substantial favourable character evidence, but had also disclosed a spent conviction for affray. He contended that the conviction should have been ignored and that he should have received the full good-character direction on credibility and propensity.

The sentence appeal raised whether six years’ imprisonment was manifestly excessive for an attempted kidnapping which the judge was entitled to regard as sexually motivated, but which was not charged as attempted rape.

1. The court dismissed the appeal against conviction. The governing question was whether the spent conviction was wholly irrelevant, or ought reasonably to have been regarded as wholly irrelevant, to the offence charged. Only in that event was the appellant entitled to a full good-character direction with both limbs. Otherwise, the form of the direction was within the Recorder’s discretion, provided that it was balanced and fair.

2. The affray conviction was not irrelevant. It concerned violence, had only just become spent, and its underlying details had not been provided so as to establish irrelevance. The Recorder was therefore entitled to allow it to counterbalance the favourable character evidence. The jury was correctly told that the conviction did not show present guilt and could not make the appellant more likely to have committed the offence.

3. Read fairly and as a whole, the direction did not treat the guilty plea to affray as independently bearing on truthfulness. It directed the jury to weigh the favourable evidence of character and trustworthiness against the prior occasion on which the appellant had acted violently. That was proper. In any event, any failure expressly to state the credibility limb would have been minor, and the conviction was safe in light of the substantial evidence supporting the complainant’s account.

4. The court allowed the appeal against sentence. It accepted that the sentence for attempted kidnapping should be below that for attempted rape. Applying the approach in R v Lashley (1988) 10 CR.APP.R. (S) 396, it assessed the appropriate sentence by considering what would have been appropriate had rape or attempted rape occurred. Although the victim’s experience was terrifying and there was no guilty plea, four years’ imprisonment was appropriate. The sentence of six years was manifestly excessive and was reduced to four years.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and allowed the appeal against sentence, substituting four years’ imprisonment.

• Crown Court at Dorchester — convicted the appellant of attempted kidnapping on 5 December 2003 and imposed six years’ imprisonment.