McCarthy, R v

Where an appeal challenges an apparently inconsistent good-character direction, the decisive question is whether the inconsistency could have affected the jury’s resolution of the actual issue. A direction should address the weight of character evidence consistently and relate it to the specific factual question the jury must decide.

Evidence that an accused has generally driven carefully may be incapable of assisting where the sole issue is whether, on the occasion charged, the accused should have seen a pedestrian in time to avoid a collision. In that situation, ambiguity in the direction does not render the conviction unsafe if clear evidence independently establishes that the pedestrian was there to be seen.

The appellant was convicted at Chichester Crown Court on 17 January 2014 of causing the death of a pedestrian by careless driving, contrary to section 2B of the Road Traffic Act 1988.

She had turned right at a junction and collided with the pedestrian, whom she accepted she had not seen. Her case was that low sun had blinded her. The prosecution contended that she should have seen the pedestrian before turning. CCTV footage was central to that issue.

The appellant had no convictions or cautions and relied on evidence from seven people, including a driving instructor, that she was ordinarily a careful and prudent driver. The appeal against conviction challenged the trial judge’s treatment of that evidence in the good-character direction. The central issue was whether the direction created confusion that undermined the safety of the verdict.

1. Appeal dismissed. Although the trial judge’s directions about the appellant’s driving-character evidence were capable of causing confusion, the conviction was safe.

2. The judge had correctly identified that the opinions of people who had previously travelled with the appellant could not decide whether she drove carefully and competently on the day of the collision. However, telling the jury both to ignore, or give no weight to, that evidence on that issue and later that her good character might make the offence less likely created an apparent inconsistency.

3. A direction of this kind should be framed consistently. The proper course is to explain the weight which the particular character evidence can bear and to relate that explanation to the precise factual issue for the jury.

4. Here, the sole issue was whether the appellant should have seen the pedestrian before beginning her right turn. Her previous record as a careful and competent driver could not properly assist the jury on that discrete question. She accepted that she had not seen him, and the CCTV footage clearly showed that he was present to be seen while her view along the road was not impeded by the setting sun.

5. Accordingly, any capacity of the good-character direction to confuse the jury did not undermine the verdict’s safety. The appeal against conviction was dismissed.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2014] EWCA Crim 1963.
• Chichester Crown Court: On 17 January 2014, the appellant was convicted after trial of causing death by careless driving.