Despaigne-Pellon, R. v

A previous caution may place an accused outside the class entitled automatically to a full good-character direction. The trial judge must then consider submissions and exercise a discretion as to whether to give a full or partial direction. Where the caution cannot bear on credibility, a direction on the credibility limb may nevertheless be appropriate.

A Lucas direction is appropriate where the prosecution relies on alleged lies. The jury must distinguish a deliberate lie from a mere inconsistency and may treat a lie as supporting the prosecution only if sure that it had no innocent explanation. An erroneous omission of a credibility direction does not require a conviction to be quashed where the appellate court is satisfied that the conviction remains safe.

The appellant was convicted at the Crown Court at Southwark, by a majority of 10 to 2, of possessing an imitation firearm with intent to cause fear of violence. He had exposed a pistol-shaped belt buckle, which an off-duty police officer initially believed to be a real firearm. His defence was that its exposure while he rearranged his clothing was accidental and lacked the required intent.

He appealed against conviction on two grounds. First, the trial judge had refused a good-character direction despite the appellant having no previous convictions but one caution for common assault. Secondly, the judge had given a Lucas direction concerning asserted inconsistencies in the appellant’s accounts. The central issues were whether those directions involved material error and whether any error rendered the conviction unsafe.

1. Appeal dismissed. The court held that the conviction was safe despite an error concerning the good-character direction.

2. The judge should have heard argument and considered the relevant authorities before refusing any good-character direction. Under R v Gray [2004] 2 Cr.App.R 30, a person of unqualified good character ordinarily receives a full direction on credibility and propensity. The appellant’s common-assault caution made the matter discretionary. Applying R v Martin [2002] Cr.App.R 42, the court concluded that the discretion should probably have been exercised by giving a direction on credibility, since the caution did not impugn credibility.

3. The omission did not affect safety. The jury had been told that the appellant had no previous convictions and that the caution was irrelevant. Although a credibility direction would have taken the matter further, it would have added little on the facts. The appellant’s credibility was in issue, but the court was satisfied that the failure did not impinge on the safety of the conviction.

4. The Lucas direction gave the jury proper safeguards. The Crown had relied on alleged lies, particularly the differing accounts of how the belt buckle became visible. The direction required the jury first to be sure that an asserted inconsistency was a deliberate lie and then to consider whether it had an innocent explanation. Only a lie without an innocent explanation could support the prosecution case. The court rejected the second ground.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.
• Crown Court at Southwark: convicted the appellant on 24 November 2008 of possessing an imitation firearm with intent to cause fear of violence; sentenced him on 22 December 2008.