Page 433 - Magistrates Conference 2019

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occasion because the judge has not directed the jury in accordance with his/her stated intention.

100. Where the evidence is adduced without any notice to the judge, this is arguably in breach of Part 35 of the
Criminal Procedure Rules. Rule 35.4 (1) and (2) state:

a) This rule applies where a party wants to introduce evidence of the defendant's bad character.

b) That party must serve an application to do so on-

(a) the court officer; and

(b) each other party.

101. We have not heard argument on the issue. However we have no doubt that as a matter of good practice, if not a
rule, defendants should put the court on notice as early as possible that character and character directions are an issue
that may need to be resolved. The judge can then decide whether a good character direction would be given and if so
the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court
and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the
Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule.
The judge should then ensure that the directions given accord precisely with their ruling.

102. The Criminal Procedure Rule Committee may wish to clarify the scope of the Rule.

Postscript

103. We have deliberately conducted a very thorough review of the case law so that it will be unnecessary in future
for other courts to do the same. Reliance on this judgment, Vye and Aziz should suffice.

ANALYSIS OF THE INDIVIDUAL APPEALS

104. We shall now apply those principles to the individual appeals before us.

WALKER

(a) Facts

105. On Saturday 22 January 2011, the appellant (who is now aged 39) and the complainant met at a friend's house,
with others. The appellant made comments to the complainant which suggested that he found her sexually attractive. A
group of them, including the appellant and the complainant later went to sleep in the living room. In the early hours of
the morning the complainant awoke to feel fingers inside her vagina. She identified the appellant as the person
responsible and immediately complained to those in the room. He was ejected from the house.