GAI v R

A defendant of effective good character should ordinarily receive a modified direction on both credibility and propensity. A judge may withhold such a direction only within a narrowly confined residual discretion, where giving it would be meaningless, absurd or contrary to common sense.

Other misconduct does not itself remove the entitlement. The judge must assess whether it has real probative value on credibility or on propensity to commit the offence charged. Tangential background evidence, including conduct incapable of suggesting a propensity for the alleged offending, should be addressed by qualification rather than by withholding the direction. Where a case turns substantially on the competing accounts of complainant and defendant, an unjustified omission may render convictions unsafe.

The appellant was convicted at a retrial in Snaresbrook Crown Court of five counts of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003, and was sentenced to 15 years’ imprisonment. The first trial had ended without verdicts.

There was limited circumstantial support for the complainant’s account, but no independent evidence of the alleged rapes. The appellant denied sexual misconduct and gave evidence. Although he had an old conviction and a caution for common assault on his partner, the prosecution had anticipated a modified good character direction. The trial judge refused to give one. The appeal concerned whether that refusal was justified and whether it made the convictions unsafe.

1. Appeal allowed. The convictions were quashed. A retrial was ordered, with directions for the preferment of a new indictment.

2. The appellant should have been treated as a person of effective good character. The governing practice, derived from Vye, Aziz & Others [1996] 1 AC 41, and Gray [2004] EWCA Crim 1074, requires a full direction for a defendant of previous good character. Where convictions or other misconduct qualify that position, the usual course is to give a realistic, modified direction. The residual discretion to withhold it is narrow and applies only where a direction would make no sense, be meaningless, absurd, or affront common sense.

3. The caution for common assault did not materially undermine either limb of the direction. The appellant admitted the conduct, so it said little or nothing about his credit as a witness. Nor could an assault on his partner suggest a propensity to commit sexual offences against a child. Poor relations with his partner were relevant background, but were at most tangential to the issues at trial. Relevance in that limited sense did not disentitle him to a good character direction.

4. The judge should therefore have directed the jury, in modified terms, that the appellant’s record could assist their assessment of his credibility and that it disclosed no propensity for sexual offending. The direction could also have reminded the jury to assess its proper weight in light of all the evidence.

5. The omission affected safety. The case substantially depended on the respective evidence of the complainant and the appellant, and the circumstantial evidence provided only limited support. The court could not dismiss the importance of the omitted direction.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed all five convictions, and ordered a retrial.
• Crown Court at Snaresbrook: At the retrial before HH Judge Pardoe QC, the appellant was convicted on all counts and sentenced to 15 years’ imprisonment.
• Crown Court at Snaresbrook: The first trial, before HH Judge Bing, ended when the jury failed to reach verdicts.