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When a judge determines that fairness requires a defendant with old, spent or unrelated convictions to be treated as of good character, the jury must receive the full good-character direction. It must identify both favourable consequences: credibility and absence of propensity to commit the charged kind of offence. The jury should not be invited to re-decide whether that treatment is fair. Evidence of a complaint may support a complainant only if its content is consistent with the alleged offending. The jury must be directed to material discrepancies. In a case turning on credibility, omission of these safeguards can render convictions unsafe.

The appellant was convicted at Birmingham Crown Court on 15 May 2007 of four assaults upon his niece by marriage, a child under 13. He was acquitted of a separate allegation of oral rape. He appealed against conviction with leave of the single judge.

The appeal challenged the judge’s directions on the appellant’s good character and on evidence that the complainant had made a complaint to a school friend. The central question was whether those directions, in a case substantially dependent on the relative credibility of the complainant and the appellant, rendered the convictions unsafe.

1. Appeal allowed. The four convictions were unsafe. The court made no order for a retrial.
2. Although the appellant had two old, spent convictions for unrelated criminal damage, the judge had correctly decided that fairness required him to be treated as of good character. Having made that decision, the judge was required as a matter of law to give the full direction. The direction had to identify both the relevance of good character to credibility and the absence of propensity to commit sexual offending. The judge’s direction inadequately addressed credibility and wholly omitted propensity. The approach to old convictions was consistent with R v Nye 75 Cr App R 247 and the requirement for a full direction with R v Lloyd [2000] 2 Cr App R 355.
3. The court added that, once the judge has decided that the defendant is to be treated as of good character, the jury should not be invited to decide whether that is right or fair. The approach suggested in R v Ian Stewart MacDonald (25th March 1999), and later adopted in R v MW [2008] EWCA Crim 3091, wrongly left open a question already determined by the judge.
4. The judge also failed adequately to direct on the complaint evidence. Such evidence could support the complainant only if the jury found the friend’s account consistent with the complainant’s account of the alleged offending. The material discrepancies, including timing and content, required express identification and direction.
5. Because credibility was fundamental, these misdirections prevented the court from being satisfied of the safety of the verdicts. A retrial was not in the interests of justice. Following the acquittal, much of the original surrounding evidence would probably be unavailable, including evidence from the friend under section 120 of the 2003 Act. The appellant had also served a substantial part of his sentence.

• Court of Appeal (Criminal Division): By [2009] EWCA Crim 158, allowed the appeal against all four convictions as unsafe and made no order for a retrial.
• Birmingham Crown Court: On 15 May 2007, convicted the appellant of four assaults upon a child under 13; he was acquitted of a separate rape allegation.