Page 424 - Magistrates Conference 2019

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direction is required should be the provisions of the section 101 of the CJA. If the evidence has not been adduced at the
behest of the prosecution, this will be because it does not satisfy the gateway provisions of S.101 (1) or because it has
been excluded in the exercise of the court's power under S.101(3), at common law or under S.78 Police and Criminal
Evidence Act 1984. Where the judge concludes that the evidence falls into the former category and has no or too little
probative value to be admissible, Mr Blaxland advanced the bold submission that the defendant should be entitled, as of
right, to a good character direction. Only where the court has ruled that the evidence has some probative value but
excluded it because it would be unjust to admit it, would it be appropriate for the judge to decline to give some kind of
good character direction. This approach, he claimed, would have the benefit of synchronising the judge's exercise of his
residual discretion with the admissibility of a defendant's bad character under the CJA.

56. Mr Blaxland also addressed the consequences of a failure to give a direction or to give an inadequate direction.
He placed heavy reliance on the decision in Hoyte and the "long line of authorities" to which reference was made in
which it was held that a failure to give the direction is usually fatal. Mr Blaxland invited us to go further. He suggested
the omission of a good character direction to which the defendant is entitled is always fatal to the safety of the
conviction. He emphasised that the appeals before us are all cases in which the jury had to make critical decisions about
the credibility of the witnesses. Although it may be possible to say that on paper the prosecution case was strong, the
court cannot also say that the jury would have convicted even if a proper direction had been given, because so much
turns on the assessment of the quality of the witnesses' evidence.

57. He invited us to reject the respondent's suggestion that the court should be slow to quash a conviction unless there
is a marked difference between the direction which should have been given and the one that was given because this
would lead to uncertainty.

RESPONDENT'S GENERAL SUBMISSIONS

58. Mr Richard Whittam QC and Mr Tom Little for the respondent urged the court to take this opportunity to put the
law back on an even keel. They maintain that the law has been extended without justification far too far from the
principles in Vye and Aziz. Both the court in Vye and the House of Lords in Aziz were considering defendants who did
not have previous convictions, not defendants with previous convictions as seems to have been assumed in some later
cases. This is an important distinction. A defendant with previous convictions does not have a good character. He is not
entitled to be treated as if he did. To the extent that any of the decisions cited (for example Payton referred to at
paragraph 47 above) suggest otherwise, they are wrong.

59. Where a defendant has previous convictions, the judge has a discretion. Where a defendant has convictions which
are old, spent and of a totally different nature the Judge must decide whether fairness demands that s/he be treated as if
he had never been in trouble. If the Judge decides that this is the case then a good character direction must be given but
the jury must not be misled into thinking that the defendant has no previous convictions. The direction should not be in
terms that give the jury the impression that it is open for them to disagree with the legal direction. Where a defendant
has previous convictions but for offences of a completely different nature from those charged, a judge may (but is not
obliged to) give the defendant the benefit of a modified propensity direction. Mr Whittam suggested this is not the
narrowly circumscribed discretion to which Lord Steyn referred and argued the CACD has been rather too ready to
criticise and intervene in a way not envisaged by Lord Taylor in Vye.

60. Where a defendant has no previous convictions but has admitted other reprehensible conduct the judge also has a
discretion as to whether to give a direction and if so what kind. To the extent that decisions such as Durbin and PD
suggest otherwise they have misinterpreted Vye and Aziz and are wrong. Lord Steyn described this as a more narrowly