Moustakim, R v

A defendant of good character is entitled to a clear and positive direction that good character may support credibility and may make commission of the charged offence less likely. It is insufficient to present those matters merely as arguments available to the defence or to dilute the propensity limb.

Whether a defective direction renders a conviction unsafe depends on the case. Where the defendant’s credibility is the central issue, a materially inadequate good-character direction is a crucial summing-up defect and may require the conviction to be quashed.

The appellant was convicted at Croydon Crown Court of being knowingly concerned in the fraudulent evasion of the prohibition on importing cocaine. Her defence was that she did not know that cocaine had been concealed in three bottles of baby powder which she had brought from St Lucia.

She appealed against conviction with a substantial extension of time. The sole material ground was that the judge’s summing-up gave an inadequate direction on her undisputed good character. The central issue was whether the resulting defect made the conviction unsafe.

1. Appeal allowed. The conviction was unsafe and was quashed.

2. A proper good-character direction must identify its two distinct relevance limbs. It must direct the jury that good character supports the defendant’s credibility where the defendant has testified or made relevant pre-trial statements. It must also direct that good character may make the defendant less likely to have committed the offence. The court applied the principles stated in R v Vye (1993) 97 Cr App R 134 and the guidance derived from R v Lloyd [2000] 2 Cr App R 355.

3. The judge’s direction was inadequate. It gave no explicit positive instruction to take the appellant’s good character into account in her favour. Saying that she was as worthy of belief as anyone did not say that good character supported her credibility. Saying that the defence could argue that she was perhaps less likely to have offended did not give the required propensity direction. Both limbs were wrongly put as matters the appellant could say or argue, rather than directions from the judge.

4. The prosecution case was capable of being regarded as strong, and the appellant’s account had been shown false in one respect. However, the decisive issue was her credibility. The good-character direction was therefore a crucial part of the summing-up. As in R v Lloyd [2000] 2 Cr App R 355, the absence of an appropriate direction made the conviction unsafe.

5. The court directed a fresh indictment within 14 days and re-arraignment within 28 days. A retrial was ordered at Croydon, before a different judge, or at another venue directed by the court. The appellant remained in custody but could apply for bail to the trial court.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction, and ordered a retrial: [2008] EWCA Crim 3096.
• Court of Appeal (Criminal Division): On 6 November 2006, the Full Court dismissed a renewed application for leave to appeal against sentence.
• Crown Court at Croydon: On 24 May 2006, convicted the appellant of being knowingly concerned in the fraudulent evasion of the prohibition on importing a Class A controlled drug, cocaine, and sentenced her to 10 years’ imprisonment.