Page 415 - Magistrates Conference 2019

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too great an importance on the judge's directions and took little weight on the good sense of jurors. It has, however,
been endorsed on a number of occasions.

19. Reliance was again placed on the Vye principles in R v. Heath (1 February 1994, no 92/1102/Y3, unreported) to
extend them to a defendant without a good character. The appellant was charged with the importation of cannabis. He
had three spent convictions, two for theft and one for domestic assault. The judge directed the jury to ignore them
because they were long ago and minor in character. He said nothing on the subject of credibility or propensity. This was
considered a misdirection and the conviction quashed. The decision may be explained by the fact that the judge agreed
to treat the defendant as a man of effective good character. If so, it was said that he then became obliged to give some
kind of good character direction.

(e) Durbin

20. In January 1995 the appeal of Barry Henry Durbin (R v Durbin [1995] 2 Cr App R 84) was heard; the decision
was given on 3 February 1995. The court considered the effect of the judge's failure to give a good character direction to
someone with what Evans, LJ, giving the judgment of the court, referred to as "blemishes" on their character. The so
called blemishes fell into three categories. First, the defendant had three or four spent criminal convictions for theft and
for fraudulent use of an excise licence. Second, he admitted lying to the police and grossly misleading them in their
investigation by taking steps to establish the equivalent of a false alibi. Third, he admitted that he had knowingly
engaged in smuggling goods across Europe in order to avoid customs duties in the course of the visit to the Continent
which gave rise to the charge. It is difficult in our view to understand how such a man could be entitled to be treated as
a man of good character. Nevertheless, the court decided to distinguish Zoppola-Barrazza on the basis that the
smuggling in Zoppola-Barrazza was already in existence at the time of the matters charged, as opposed to being part
and parcel of the events subject of the trial. Such a distinction is difficult as a matter of logic to support and appears
inconsistent with the decision in Richens and Buzalek and Schiffer amongst others. Yet, reliance has been placed upon it
on several occasions since. The decision was criticised at the time (see What Constitutes Good Character? [1997] Crim
LR 247 at 255, Dr Roderick Munday). In this decision it is now clear the law took a wrong turn.

(f) R v. Aziz

21. Shortly after the judgment was handed down in Durbin, the House of Lords heard the appeal in R v. Aziz and
others. Durbin, probably not reported by then, was not cited. Aziz, and his fellow appellants, Tosun and Yorganci, were
convicted of the fraudulent evasion of VAT. Aziz had no relevant previous convictions. He admitted writing out false
invoices in interview but denied knowing they were false. Tosun and Yorganci had no previous convictions but
Yorganci admitted lying in interview and making a false mortgage application. Tosun admitted defrauding the Revenue
by under-declaring his income. The trial judge said that Aziz was to be treated as a person of good character for the
purposes of propensity, and Tosun and Yorganci for the purposes of credibility. The Court of Appeal held that a full
two-limb, albeit modified, Vye direction ought to have been given in the case of all three and quashed the convictions.

22. Their Lordships considered the following certified question:

"Whether directions in accordance with Vye et al (1993) 97 Cr.App.R. 134, must be given in all cases in which a
defendant has adduced evidence of previous good character, and if not, in what circumstances must such a direction be
given".