Page 432 - Magistrates Conference 2019

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admissibility or as to the consequences of non compliance with the regulations for the giving of notice of intention to
rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to
establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense"
(Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B. 223 ) sense (compare R. Makanjuola
(1995) 2 Cr.App.R. 469 at 473E, [1995] 1 W.L.R. 1348 at 1352).

95. This was further endorsed in relation to both rulings on admissibility and directions in R v Raymond Renda and
others [2005] EWCA Crim 2826:

"3 We have some general observations. Several of the decisions or rulings questioned in these appeals represent either
judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion.
The circumstances in which this Court would interfere with the exercise of a judicial discretion are limited. The
principles need no repetition. However we emphasise that the same general approach will be adopted when the Court is
being invited to interfere with what in reality is a fact specific judgment. As we explain in one of these decisions, the
trial judge's "feel" for the case is usually the critical ingredient of the decision at first instance which this Court lacks.
Context therefore is vital. The creation and subsequent citation from a vast body of so-called "authority", in reality
representing no more than observations on a fact specific decision of the judge in the Crown Court, is unnecessary and
may well be counterproductive. This legislation has now been in force for nearly a year. The principles have been
considered by this Court on a number of occasions. The responsibility for their application is not for this Court but for
trial judges.

4 Finally, even if it is positively established that there has been an incorrect ruling or misdirection by the trial judge, it
should be remembered that this Court is required to analyse its impact (if any) on the safety of any subsequent
conviction. It does not follow from any proved error that the conviction will be quashed."

96. An appellate court should only interfere if, on the facts, it was not properly open to the judge to reach the
conclusions he did, for example to refuse to treat the defendant as a person of effective good character or to refuse to
give a particular limb of the direction. As Sir Igor Judge then President of the Queen's Bench Division observed in
Renda the circumstances in which this Court would interfere with the exercise of a judicial discretion or a fact specific
judgment are limited. Context is all and the trial judge is likely to have a far better feel for the dynamics of a criminal
trial and the interests of justice than an appellate court.

97. Thus, in future we expect this court to approach the exercise of judgment/ discretion on whether to give a
character direction in relation to evidence admitted under section 101 and, if so, its terms, on a similar basis to the one
upon which it approaches decisions whether to admit bad character evidence under section 101.

98. We should also add that if defence advocates do not take a point on the character directions at trial and or if they
agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. The
trial was considered fair by those who were present and understood the dynamics. In those cases this court should be
slow to grant extensions of time and leave to appeal.

(i) Procedure

99. The difficulties that have arisen most commonly arise because inadequate discussion has taken place between the
advocates and the judge before the evidence has been adduced, before speeches, and before the summing up, and on