Hunter & Ors v R.

A defendant of absolute good character is entitled to directions on both credibility and propensity. A defendant with old, minor and irrelevant convictions may be treated as of effective good character, but that is for the judge, who must then give both limbs in terms that do not mislead the jury.

A defendant with convictions or other bad character has no right to a good character direction merely because the Crown does not rely on that material. Under the Criminal Justice Act 2003, the trial judge has a broad discretion as to whether a modified direction is fair. A misdirection does not automatically make a conviction unsafe. The appellate court must assess safety in the context of the whole trial.

Five otherwise unrelated appeals against conviction were heard together by a specially constituted court because each raised the scope of the good character direction. The appellants had differing criminal histories and had received full, modified or no positive directions on credibility and propensity.

The court reviewed the development of the common-law directions and the effect of the bad-character regime under the Criminal Justice Act 2003. It then considered the safety of each conviction. Johnstone also challenged the treatment of complaint evidence. Lonsdale additionally challenged references to jurors’ instinct in the summing-up.

The central issue was when a defendant is entitled to a good character direction, what discretion the trial judge has where character is qualified or adverse, and how an appellate court should assess an alleged misdirection.

1. All five appeals against conviction were dismissed.

2. The court reaffirmed the principles in R v Vye [1993] 1 WLR 471 and R v Aziz [1996] AC 41. A defendant of absolute good character is entitled to directions that good character may bear on credibility, where the defendant has testified or made exculpatory statements, and on propensity. The judge must tailor both limbs to the trial.

3. Effective good character is not automatic. Where convictions or cautions are old, minor and irrelevant, the judge must assess all the circumstances and decide what fairness requires. If the judge elects to treat the defendant as of effective good character, both limbs must be given, with qualifications needed to avoid misleading the jury.

4. A defendant with convictions or other bad character has no entitlement to a direction merely because the Crown did not adduce the material under the Criminal Justice Act 2003. The court disapproved the extension of good-character principles in R v Durbin [1995] 2 Cr App R 84 and related decisions. In the statutory regime, decisions about a modified direction for a defendant with bad character are broadly discretionary. The judge must avoid directions that are absurd, meaningless or unfairly favourable.

5. The only appellate question is whether the conviction is safe. There is no rule that an omitted or defective good character direction is necessarily, or usually, fatal. The court will ordinarily be slow to interfere with a trial judge’s fact-sensitive exercise of judgment or discretion.

6. On the individual appeals, the modified directions were fair or any omission did not affect safety. In Johnstone’s case, the jury would plainly understand that the complainant’s complaints came from her and were not independent support. In Lonsdale’s case, reference to “gut instinct” was undesirable, but the summing-up as a whole was balanced and directed the jury to decide the case on the evidence.

1. Court of Appeal (Criminal Division): Dismissed the five conjoined appeals against conviction.

2. Crown Court trials: Walker, Johnstone, Hunter, Saruwu and Lonsdale were each convicted following separate jury trials. No neutral citations for the trial decisions are stated in the judgment.