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(6) Approved examples of the exercise of such a residual discretion are not common. Zoppola-Barrazza is one. Shaw is
another. Lord Steyn in Aziz appears to have considered that a person of previous good character who is shown beyond
doubt to have been guilty of serious criminal behaviour similar to the offence charged would forfeit his right to any
direction (at 53B). On the other hand Lord Taylor's manslaughter/murder example in Vye (which was cited again in
Durbin) shows that even in the context of serious crime it may be crucial that a critical intent separates the admitted
criminality from that charged.

(7) A direction should never be misleading. Where therefore a defendant has withheld something of his record so that
otherwise a trial judge is not in a position to refer to it, the defendant may forfeit the more ample, if qualified, direction
which the judge might have been able to give (Martin)."

27. Proposition (3) is based in part on Durbin and arguably comes close to equating someone who has previous
convictions which are "irrelevant or of no significance" to the offence charged with someone who does not have
previous convictions and is of good character. That is not a correct understanding of Vye or Aziz. Both were concerned
with defendants who had no previous convictions.

28. Proposition (6) suggests that the advocates in Gray may not have brought to the court's attention many other
decisions which our researches have revealed and in which the exercise of judicial discretion has been upheld, as it was
in Zoppola-Barrazza and Shaw.

(i) The Criminal Justice Act 2003

29. The principles in relation to character evidence changed significantly with the bad character provisions of the
Criminal Justice Act 2003 (the "CJA"). Section 98 defines 'bad character' evidence as evidence of or of a disposition
towards misconduct on a defendant's part other than evidence 'to do with the alleged facts of the offence charged' or
evidence of misconduct in 'connection with the investigation or prosecution of that offence'. It is admissible 'if but only
if'it meets one of the criteria in section 101 (a) to (g). They provide:

a) all parties to the proceedings agree to the evidence being admissible,

b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in
cross-examination and intended to elicit it,

c) it is important explanatory evidence,

d) it is relevant to an important matter in issue between the defendant and the prosecution,

e) it has substantial probative value in relation to an important matter in issue between the defendant and a
co-defendant,

f) it is evidence to correct a false impression given by the defendant, or

g) the defendant has made an attack on another person's character.