Page 418 - Magistrates Conference 2019

Page 11

30. Section 103 defines 'matters in issue' to include whether the defendant has a propensity to commit offences of the
kind charged (1) (a) and propensity to be untruthful (1) (b). Specific provision is made for spent convictions. Where
subsection (1) (a) applies, a defendant's propensity to commit offences of the kind with which he is charged may be
established by evidence that he has been convicted of an offence of the same description or of the same category as the
one with which he is charged, unless a court is satisfied that by reason of the length of time since the conviction or for
any other reason, that it would be unjust to apply the provision.

31. In each of the cases with which we are concerned evidence of the defendant's bad character has been adduced as
evidence of 'bad character' under section 101 (b) by the defendant himself. This then enables the defence advocate to
address the jury on the likelihood of the defendant having committed the offence charged. It may also be possible to
persuade the judge to give a modified good character direction, endorsing the defence argument. This has become
increasingly common since the introduction of section 101. Yet, the possible impact on good character directions of
section 101 has been scarcely acknowledged.

32. The only reported case that we can find in which there is a recognition of the fact that the introduction of the CJA
may have made a difference to the approach to good character directions is Doncaster [2008] EWCA Crim 5, [2008]
Crim LR 709. The defendant was charged with cheating the Revenue and false accounting. He admitted repeated lying
to the Revenue and non-disclosure but denied dishonesty in respect of the offences charged. He had one minor and very
stale conviction which was irrelevant to the offence charged. Evidence of his dealings with the Revenue over a number
of years, arguably admissible under section 98, having to do with the facts of the case, was admitted under section 101.
Complaint was made about the very limited nature of the good character directions given.

33. At para. 42, Rix LJ. pointed out that Aziz had been decided before the enactment of the CJA 2003 and observed
"it is difficult to think that the new law (as to bad character) has no impact on the old law (as to good character)". The
court concluded that "... where bad character is admitted under the 2003 Act on the grounds that it is relevant both to
propensity and credibility it would make no sense for a judge to give a standard good character direction, stating its
relevance to propensity and credibility in precisely the opposite direction." The appeal was dismissed.

34. The court did, however, provide a possible modified good character direction for this situation at paragraph 43.

"We consider that in the post 2003 Act world, where bad character directions as to propensity have more frequently
become necessary, even in the absence of previous convictions, it may be possible similarly to tailor a modified bad
character direction, along the following lines. Thus when a judge is directing the jury about the relevance of bad
character to propensity or propensities, he could remind them that the defendant had no previous convictions and say
that, in the ordinary case, where there was no evidence of bad character, a defendant of no previous convictions would
have been entitled to a direction that the jury should consider that that counted in his favour on the questions of both
propensity and credibility; as it was, it was for the jury to consider which counted with them more - the absence of
previous convictions or the evidence of bad character; and if the former, then they should take that into account in
favour of the defendant, and if the latter, then they would be entitled to take that into account against him."

(j) Approach of the Privy Council

35. The Privy Council has considered the issue on a number of occasions. We have already referred to Shaw. We
wish to mention others. The first is Thompson v R [1998] AC 811 PC. One of the grounds of appeal was that both limbs
of the good character direction should have been given in respect of a defendant charged with murder who had one
conviction some 13 years before for a relatively minor offence of theft. Their Lordships considered that the conviction