Page 417 - Magistrates Conference 2019

Page 9

24. We mention R v Fulcher [1995] 2 Cr App R 251 (which was decided on 8 December 1994 before the decision in
Aziz) only because reference is made to it in some of the authorities. The defendant who had no previous convictions
was charged with murdering his son. The court held the prosecution was entitled to lead evidence that suggested the
defendant had a propensity to react violently to his crying child. Nevertheless the court felt constrained by the authority
of Vye to hold that the judge's failure to give both limbs of the good character direction was a material irregularity and
quashed the conviction.

25. The Court of Appeal returned to the Zoppola-Barrazza approach in R v. Martin [2000] 2 Cr App R 42 as did the
Privy Council in Shaw v The Queen [2001] 1 WLR 1519; [2002] 1 Cr App R 77 where Lord Bingham gave the opinion
of the Board. Martin admitted two robberies in which he had wielded a hammer but claimed he acted under duress. He
had no previous convictions but had been cautioned twice in relation to possession of an offensive weapon. The court
held that to give the propensity direction would have been absurd and positively misleading. Shaw who had no previous
convictions was accused of killing a man who had sold his gang fake cocaine. On his own admission the defendant had
supplied a substantial quantity of cocaine and been a member of an armed group which had sought to punish the victim.
The court held that he fell into Lord Steyn's category of someone whose claim to a good character was spurious and he
was not entitled to a good character direction.

(h) Gray

26. The next significant judgment in which an attempt was made to summarise the principles of the good character
directions is to be found in R. v. Gray [2004] EWCA (Crim) 1074; [2004] 2 Cr App R 30. Rix LJ set out seven
propositions in relation to good character directions at paragraph 57:

"(1) The primary rule is that a person of previous good character must be given a full direction covering both credibility
and propensity. Where there are no further facts to complicate the position, such a direction is mandatory and should be
unqualified (Vye, Aziz).

(2) If a defendant has a previous conviction which, either because of its age or its nature, may entitle him to be treated
as of effective good character, the trial judge has a discretion so to treat him, and if he does so the defendant is entitled
to a Vye direction (passim); but

(3) Where the previous conviction can only be regarded as irrelevant or of no significance in relation to the offence
charged, that discretion ought to be exercised in favour of treating the defendant as of good character (H, Durbin, and,
to the extent that it cited H with apparent approval, Aziz.) In such a case the defendant is again entitled to a Vye
direction. It would seem to be consistent with principle (4) below that, where there is room for uncertainty as to how a
defendant of effective good character should be treated, a judge would be entitled to give an appropriately modified Vye
direction.

(4) Where a defendant of previous good character, whether absolute or, we would suggest, effective, has been shown at
trial, whether by admission or otherwise, to be guilty of criminal conduct, the prima facie rule of practice is to deal with
this by qualifying a Vye direction rather than by withholding it (Vye, Durbin, Aziz); but

(5) In such a case, there remains a narrowly circumscribed residual discretion to withhold a good character direction in
whole, or presumably in part where it would make no sense, or would be meaningless or absurd or an insult to common
sense, to do otherwise (Zoppola-Barrazza and dicta in Durbin and Aziz).