Page 423 - Magistrates Conference 2019

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"...the paragraphs in Halsbury should not read as if they are contained in a statute. The rules as to precedent reflect the
practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of
justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to
the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as
so rigid that they cannot develop in order to meet contemporary needs."

Lord Woolf then referred to two statements made by Lord Diplock. The first, as Diplock LJ in R v Gould [1968] 2 QB
65 at p. 68 was to the effect that the Criminal Division of the Court of Appeal is not rigidly bound by the doctrine of
stare decisis. The second, in DPP v Merriman [1973] AC 584 at p. 685 stated that the liberty of the Criminal Division to
depart from precedent which it was convinced was erroneous was restricted to cases where the departure was in favour
of the accused.

Lord Woolf commented:

"There is nothing to suggest in Merriman that Lord Diplock was reminded of what he said in Gould. We appreciate that
there may be a case for not interpreting the law contrary to a previous authority in a manner that would mean that an
offender who otherwise would not have committed an offence would be held to have committed an offence. However,
we do not understand why that should apply to a situation where a defendant, as here, wishes to rely upon a wrongly
decided case to provide a technical defence. While justice for a defendant is extremely important, justice for the public
at large is also important. So is the maintenance of confidence in the criminal justice system. If the result in the Palmer
case had to be applied to other cases even though the Court of Appeal had acted in ignorance of the appropriate
approach this would indeed, reveal a most unattractive picture of our criminal justice system's ability to protect the
public."

APPELLANTS' GENERAL SUBMISSIONS

52. Mr Henry Blaxland QC made two primary submissions on behalf of all five appellants.

53. First, the law in relation to good character is settled and has been for many years. It does not require refinement.
What began as good practice and has become a rule of practice stems from a duty to sum up a case fairly to a jury. The
good character direction requirements are an example of the Common Law developing as judges recognised that the
defendant must be protected from the danger of miscarriage of justice arising from an unbalanced summing up. The
respondent's argument that it is unfair to allow a defendant but not the prosecution witnesses a good character direction
misses the point and is contrary to authority. Without the benefit of a good character direction there is a risk that the
summing up will not present the case for the defendant fairly. It is an essential protection for the defendant.

54. Mr Blaxland acknowledged that some practical difficulties may have arisen from the question of whether a judge
should exercise his discretion to withhold a good character direction in circumstances where the defendant has a history
of reprehensible conduct or previous criminal convictions. That apart, he insisted that the essence of the requirement to
give a good character direction and the terms in which it should be given is straightforward. The Crown Court Bench
Book explains the law in clear terms and there should be no difficulty in applying it. All of the appeals in the instant
cases arise from a failure to follow well established principles, rather than from any uncertainty as to those principles.
Any interference with them risks promoting inconsistency and a lack of clarity in the approach taken by trial judges.

55. His second primary submission was that a good starting point in any discussion about whether a good character