Gray, R v [2004] EWCA Crim 1074

Case No 2002/05214/D2[2004] EWCA Crim 1074
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM MANCHESTER CROWN COURT
His Honour Judge Sir Rhys Davies QC)
Venue Royal Courts of JusticeDate Friday 30 th April 2004
Strand,
London, WC2A 2LL
Before
THE RIGHT HONOURABLE LORD JUSTICE RIXTHE HONOURABLE MR JUSTICE KEITHHIS HONOUR JUDGE PAGET QC(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
THE QUEENRespondentJohn GRAYAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Anton Lodge QC appeared for AppellantMr James Pickup QC appeared for Crown
Judgment
[1]On 1 August 2002 in the Crown Court at Manchester before HHJ Sir Rhys Davies QC, the honorary recorder of Manchester, and a jury the appellant, John Gray, was convicted on one count of murder and sentenced to detention for life in a young offenders’ institution. The offence occurred on 6 March 2002, when the appellant, who was born on 11 December 1983, was a few months over 18. He was still 18 at the time of trial.[2]His co-defendant at trial, Christopher Lambe, was also convicted of murder, and sentenced to life imprisonment.[3]The evidence at their trial also implicated a third man, the appellant’s father, also called John Gray. He, however, had disappeared and was arrested and tried only subsequently to the trial with which we are concerned. He was convicted at that further trial on 15 April 2003, also at Manchester Crown Court, before Treacy J. We shall refer to John Gray junior as the appellant, and to John Gray senior as the father.[4]The appellant appeals against conviction by leave of the single judge, who gave leave in respect of two grounds of appeal: one relates to the judge’s direction to the jury on the question of the appellant’s character, since it is submitted that he had an effective good character and ought to have received a good character direction on both credibility and propensity, which he did not; and the other relates to the judge’s direction pursuant to section 34 of the Criminal Justice and Public Order Act 1994 as to the appellant’s no comment interview (the “1994 Act”).[5]At the time when that leave was granted a further possible witness had not come forward. She is Ms Geraldine McCloy, who left her name with the appellant’s grandmother after reading of his conviction and seeing his photograph in a newspaper in September 2002. She was seen by the appellant’s solicitors in June 2003 and then gave a statement to the effect that she had seen the appellant outside the premises where the murder had occurred: it is suggested that this supports the appellant’s case at trial that he was waiting outside while the murder was committed inside on the second floor of the premises. Moreover, a Paul Abella, who was a drinking companion of the appellant, his father and Lambe on the day of the murder, but did not participate in the later violence, gave evidence at the father’s trial that he had seen the father in a nearby park, in the company of the other two men, sling a knife out of a pouch. The appellant now seeks leave to add two new grounds to his appeal by reference to the new evidence of Ms McCloy and Mr Abella. We will refer further to the nature and possible relevance of their evidence after we have set out something about the basic facts of the case, to which we now turn.

The evidence at trial

[6]On 6 March 2002 the appellant, his father and Lambe, who is the father’s half-brother, and Mr Abella, went drinking in the Hope Inn in Hulme. The evidence at the first trial was that they each consumed three or four pints of beer chased by an equal number of doubles of spirits. Mr Abella did not give evidence at the first trial, but at the second trial, that of the father, he put the consumption of alcohol at up to seven pints of beer and as many chasers.[7]At 1511 hours (as recorded on CCTV, which thus enabled this and other precise timings to be agreed) the appellant, his father and Lambe left the pub, without Mr Abella, and went to the premises next door, an employment agency called Impact Employment. Lambe apparently knew two of the employees there, a Paul Wynne and a Jason Pickering. Mr Pickering was to become the Crown’s most important witness. The three drinkers, if we may so refer to them, then returned briefly to the pub, but after a few minutes went again to Impact’s premises (at 1518). When the three drinkers returned, one of the partners of Impact, Nathaniel Jacobs, went up to speak to them. A struggle ensued – the appellant said that it had begun between Mr Jacobs and Lambe. Mr Jacobs, who was to become the murder victim, was head-butted, but both the appellant and Lambe denied responsibility for that. Mr Wynne was hit in the mouth, receiving a wound which required five stitches. The appellant admitted that assault and said that he did it because Mr Wynne was restraining Lambe. The appellant also admitted throwing a metal tray into the air. A job-seeking customer of the agency who was sitting down minding his own business, Matthew King, was injured by a metal tray stand which was smashed on his head. The appellant denied doing that, accepting only that he had thrown the tray into the air, because he was wound up; but a number of eye witnesses said that it was the appellant who had picked up a stack of trays and smashed them down on Mr King’s head. There was a call at this time from Impact to the police, timed at 1523.[8]Mr Jacobs ran from this fracas, which occurred on the ground floor of the premises, and ran up the stairs to an office on the second floor. He was followed by at least the father and Lambe. The appellant said that he remained below and did not go up, did not go past the first step or two from the ground floor. On the second floor Mr Jacobs met his death. He was stabbed 17 times, but also hit with a shovel, stamped upon, punched and kicked. No one saw him meet his death, but the Crown’s critical witness was Mr Pickering who had gone up to the second floor between the time of the three drinkers’ first visit to the agency and these later events. He was working up there as a joiner. He said that after a few minutes Mr Jacobs came running up with blood on his face, saying “Grab whatever you can, John Gray is here”, meaning the father, who had a bad reputation for violence in the area. Mr Pickering passed him a claw hammer. The father, closely followed by the appellant and Lambe, Mr Pickering could not say in what order, came up to the second floor. All of them were known to him. The father was holding something in his hand, he could not say what, and attacked Mr Jacobs, who defended himself with the hammer, and they fell to the floor. The appellant and Lambe possessed between them a knife and a shovel, but Mr Pickering could not say who had which. The one with a knife, holding it in his left hand, stabbed Mr Jacobs in the area of the buttocks. (Mr Jacobs did receive three wounds in the back of his legs. Both the appellant and Lambe were left handed. The appellant said his right hand was stronger but he accepted he wrote with his left hand.) He, Mr Pickering, tried to intervene but was hit with the shovel and retreated downstairs, leaving the three men with Mr Jacobs. After he had gone, Mr Jacobs met his death.[9]The appellant’s case, as we have said, was that he had never followed his father up. Lambe’s case was that he followed the father up but then was passed by the father coming down again, holding his head. He, Lambe, continued up to the second floor, where Mr Jacobs threw tins of paint at him. He retreated downstairs, passing the father on the way up again. Lambe said that he found the appellant outside the back door of the premises, where the two then waited for the father.[10]Mr Pickering’s evidence was contrary to both those defendants’ cases, for he said that all three had gone up, and they were there with Mr Jacobs when he, Mr Pickering, fled downstairs. The contrast between his evidence and that of the two defendants was the essential issue for the jury at the trial.[11]There was no forensic evidence to link the appellant with the killing. He received no injuries.[12]There was also evidence about what happened after the killing. A number of witnesses spoke of the father appearing on the ground floor, covered in blood, and carrying something. One witness mentioned a spade, Mr Pickering spoke of a pickaxe. Mr Pickering did not see the appellant or Lambe again. The appellant said he saw his father come downstairs: he handed his father a pickaxe at the latter’s request. He then saw his father use the pickaxe to smash up some computers on the ground floor. The three left together and went into a nearby park, where they saw Mr Abella. The appellant said he never saw a knife at any stage.[13]A laptop with the father’s blood on it was carried from the premises and thrown into the garden of 18 Manson Avenue, where the appellant had been living with his grandmother, although it was currently being refurbished. The pickaxe was also found there. The knife was found in the park. It had the victim’s and also the father’s blood on it, but no one else’s. Who was carrying what? The three men left the premises by the rear door. The appellant said that it was he who had taken the laptop out of the agency’s premises and thrown it against a wall on the far side of a grassy area at the back of those premises. Lambe said that it was he, Lambe, who then picked up the laptop and then threw it into the garden at 18 Manson Avenue. Lambe also said that the pickaxe was thrown into the garden by the father.[14]What of the knife?

The judge said this towards the beginning of his summing-up:

“What about the knife – who had the knife? We know that all three of the men went down into that park, and the knife that was undoubtedly used to stab Mr Jacobs, was found discarded in the area at the back of the park, near to the trees which go around the edge of that park. By whom it was thrown away, again, there is no direct evidence. Both Mr Lambe and Mr Gray junior said that they never saw a knife. They never saw the father with it, they didn’t have it themselves and they never saw it being thrown away. Again, that is what the evidence was, before you. So far as that is concerned, however, both defendants confirmed that indeed all three of them were in that park, and that nearby was that other man, Mr Abella, who had been in the public house with the other three earlier that afternoon, but it is not suggested that he was involved in any way in this matter.”
[15]In a later passage the judge returned to this subject, after referring to evidence about the father wielding the pickaxe against computers on the ground floor of the premises:
“The importance of that, to an extent, you may think, is this: not so much that Mr Gray senior had an item with which he was armed at that stage, but what he did with it, because the scientific evidence confirmed that he smashed computers with it. It is what he was doing with his hands at that stage, long two handled implement of that kind. “Where does that leave the knife? This is where you will remember no doubt, Mr Jennings’ [Lambe’s counsel’s] submissions to you about that. Had he slipped the knife into his pocket or did somebody else in fact have the knife at that time, or was it lying about, did somebody pick it up – we simply don’t know. The only inference that you may think it proper to bear is at that time anyway, his [sc Mr Gray senior’s] hands were occupied and he was therefore extremely unlikely to be actually carrying the knife at that time. Mr Jennings submits, of course, that he may have slipped it into his pocket at that stage.”
[16]The judge thus invited the jury to infer that at this stage of events at any rate the knife was possessed not by the father, but by one of the other two men. Then a little later the judge returned again to the question of the knife, after the murder:
“What happened to it after that? Did it transfer from the hand of one of these two defendants to John Gray senior? We don’t know. What we do know is that his blood was found on the handle of the knife, no sign of anybody else’s blood on the knife, of course apart from Mr Jacob’s.”
[17]What on the appellant’s case was he doing while his father was upstairs? Mr Anton Lodge QC, his counsel on this appeal and at trial, told us that while the other two were upstairs the appellant had taken the laptop, gone out the back, thrown the laptop against the wall, and stayed outside. The account of his evidence given in the summing-up is not entirely clear about such details, but we have had the benefit of the transcript of his evidence as well, from which the following is established (and is consistent with what is said in the summing-up). The appellant said that his father had gone up the stairs twice (in this respect his evidence was consistent with that of Lambe, but differed from that of Mr Pickering). After the first ascent, his father had come tumbling downstairs again, dazed, and bleeding from his head. It was at this point that he, the appellant, was on the first or second step up from the ground floor, and it was on this occasion that his father told him not to go up. His father then went back up the stairs, leaving him below. He then went into the ground-floor office, took the laptop and went out with it. There was a back door just at the bottom of the staircase. He threw the laptop against the wall. He did this in temper, because he had seen his father bleeding. He sat on a wooden fence for a few minutes, and then went back in, meeting Lambe on the way out by the back door. He next saw his father coming down the stairs. It was then that his father asked him to pass him the pickaxe which was by the door. He saw his father smash computers with it. He then left again by the back door. Finally, his father joined him and Lambe and they went off together down Manson Avenue.[18]We have described these further details relating to the judge’s comments about the knife and to the appellant’s evidence about his whereabouts during the murder because of the nature of the new evidence, to which we now turn.

The new evidence: Ms Geraldine McCloy

[19]Ms McCloy’s evidence was presented only in the form of witness statements. There was no oral evidence and no cross-examination.[20]Ms McCloy had given two statements. The first was dated 17 June 2003. She said that at about 2.30 pm on 6 March 2002 (the day of the murder) she had passed at the back of Impact’s premises and there seen a young man sitting on the wooden fencing. She first saw him when she was about 60/70 metres away. When she was about 15 feet away, she saw two older and bigger men come out of a doorway in front of the young man, shouting aggressively. The young man said “fuck off”. She became frightened and walked off. A little later she glanced back. She saw the young man bend down and pick something up at the far end of the grassy area and walk off down Manson Avenue out of her sight, while the two older men continued to argue in the doorway from which they had emerged.[21]She had thought nothing of this incident until she had seen a report about the murder and trial, including a photograph of the appellant, in a newspaper in September 2002. She recognised the photograph as the young man she had seen on the fence. She traced the appellant’s grandmother and left her name and telephone number in an envelope which she had pushed through the grandmother’s letterbox. It was only on the day of her statement that she was contacted by the appellant’s solicitors.[22]A difficulty with this evidence was Ms McCloy’s timing. The critical visit to Impact took place at 1518 that afternoon, the murder occurred after 1523. This was pointed out in Mr Lodge’s further advice on appeal dated 27 August 2003. Ms McCloy put her sighting of the appellant at around 2.30 pm. She addressed this factor in a second statement dated 17 September 2003. She then said that her timing of about 2.30 pm overlooked the fact that she had spent about twenty minutes on a routine matter which she had overlooked.[23]On the basis of this evidence Mr Lodge submitted that it gave support to the appellant’s account that he had not gone upstairs or participated in the murder, and had instead gone outside to wait for the others. The continuing difficulty with Ms McCloy’s timings did not matter: she identified the appellant, and her evidence confirmed his own that he had sat on the fence for a while by himself.[24]On behalf of the Crown, however, Mr James Pickup QC submitted that on any view of the evidence at trial the appellant had been outside for a while by himself. Lambe said he saw him there. Moreover Mr Pickering’s sister, who had fled with others for safety to a nearby motorcycle showroom from which she could observe the back of Impact’s premises, said that at various times she had seen two men and then again one man alone outside. In this important respect, therefore, Ms McCloy’s evidence added nothing new other perhaps than to identify the man alone as the appellant. But in other matters of detail her evidence was inconsistent with the accounts of various witnesses at the trial, including, significantly, the appellant’s. Thus he said that he had gone back inside and had there seen his father smash up the computers, first meeting and then rejoining Lambe by the back door, and that he had ultimately gone off with the other two, carrying nothing. Mr Pickering and his sister confirmed that they had seen the three walk off together. Ms McCloy, however, did not see the appellant going back in and then later leaving with the other two, but on the contrary described the other two coming out while he remained on the fence, and ultimately had him going off until he was out of sight by himself, carrying something he had picked up (perhaps the laptop?) while the other two remained behind by the back door. She said nothing about one of those men being covered in blood. There remained also the problem of the timing of Ms McCloy’s account. Mr Pickup therefore challenged her accuracy and reliability. He also pointed out that there was no explanation of why it had taken so long (from September 2002 to June 2003) for her to be contacted.[25]We would accept Ms McCloy’s evidence as capable of belief, and be prepared to assume that she had seen the three men involved in these events, father, son and Lambe, so that her inaccuracy of timing would not be crucial. On the other hand, apart from confirming the appellant’s evidence that he was outside for a while by himself, which was not in itself inconsistent with the prosecution case, her evidence is at odds with much of the detailed evidence at trial, including the appellant’s, and did nothing to affect the Crown’s critical evidence, that of Mr Pickering, which had the appellant as a participant in the murderous attack on Mr Jacobs. We would conclude that even if the jury had heard Ms McCloy’s evidence it would not have affected their decision. We would not therefore be prepared to receive her evidence. In any event we would not have received it without hearing her give and be tested on her evidence or in the absence of further evidence about the delay in obtaining it.

The new evidence: Mr Paul Abella

[26]Mr Abella’s evidence was presented in the form of a transcript of his evidence at the trial of the father. He had disappeared and only came forward when he learned that the father was in custody. He described how he was walking home through the park when he had come across his three erstwhile drinking companions. The father was streaming with blood from his head: he was covered in blood, screaming hysterically that he had been hit on the head with a hammer. From beneath his trousers, in the area of his belly, he pulled out a pouch with a knife handle sticking out, and, holding the pouch by its tip, he slung the knife within it out of the pouch and over a wall.[27]Mr Lodge relied on this evidence as tending to undermine the judge’s suggested inference, referred to above, that, at the time when the father’s hands were busy smashing computers with the pickaxe, one of the other two was possessed of the knife. He submitted that there was no reason why it had not already been tucked within the father’s trousers. Moreover, Mr Abella’s evidence tended to show that the knife, with its pouch, was the father’s, and this went to undermine Mr Pickering’s evidence that it was wielded by one of the other two men, just as the judge’s suggested inference went to support that.[28]In our judgment, however, this evidence was by the way. It did suggest that the knife was the father’s, but in matters of joint enterprise it does not matter who had the knife, if its presence and potential use were known about. The critical question for the jury therefore remained whether the appellant was with his father upstairs. The judge reminded the jury that only the father’s blood was found on the knife; but also that all three men had been together in the park, which is where the knife was found. The judge fairly left for the jury’s consideration the full range of possibilities regarding possession of the knife, including the possibility, suggested by Lambe’s counsel, that the father had pocketed it. Moreover, Mr Abella’s evidence would have compromised the appellant in that it would have confirmed that the knife was thrown away in the park in the presence of all three men, whereas the appellant had denied ever seeing it. We conclude that this new evidence is not capable of affording any ground for allowing the appeal.

The section 34 direction

[29]We now turn to the original grounds of appeal and will first deal with that concerning the judge’s section 34 direction. The appellant had gone to Nottingham with his father but two days later, on 8 March 2002, he left his father and returned to Manchester. On 12 March he surrendered himself to the police and had then given a no comment interview on his solicitor’s advice. His father remained at large. In his evidence at trial he was asked to say why he had made no comment in his interview and answered “That’s what my solicitor advised me to do.” He also said that he had never been in a situation like that in a police station before. He did not say, as he might perhaps have done, that, being his father’s son, he was not in a position to assist the police further without putting his father and his relationship with his father in great difficulties.[30]In these circumstances the judge was obliged to direct the jury on the significance of his silence at interview in accordance with section 34 of the 1994 Act and the leading authorities concerning it. Only one criticism is made of the direction, and that is that the judge had failed to remind the jury “of the circumstances existing at the time”. This is a reference to the passage in section 34(1) which speaks of a failure to mention a fact – “which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned…”[31]In R v. Argent [1997] 2 Cr App R 27 at 32/33 Lord Bingham of Cornhill CJ listed this as one of the six formal conditions that had to be met before section 34 could operate and also said (at 33B) that – “The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant.”[32]That dictum is reflected in the model Judicial Studies Board specimen direction in paragraph 5 of which is found the following passage dealing with silence at interview on legal advice:
“The defendant has given evidence that he did not answer questions on the advice of his solicitor…Take into account also [here set out the circumstances relevant to the particular case…]…”

The judge directed the jury in this respect as follows:

“Mr Gray has said again, “My solicitor advised me to make no comment.”
It was put to him that the account he had given to you was simple and short, so why didn’t he mention it to the police? He said:
“I was going to, but the solicitor advised me not to.”
He also added that, in his particular case, to explain his reliance upon the advice he was given, he said, “I had never been in a situation like that in a police station before”, that was his point on that… “Of course, you will take into account all the circumstances as you find them to be, relating to each defendant. You have heard Mr Lodge addressing you upon the nature and character of his client, for example, in coming to your conclusion about it. Having done so, then decide whether the defendant, in the circumstances of this case, could reasonably have been expected to mention the facts that he now relies upon before you.”[34]Mr Lodge submits that this direction was inadequate, and that the judge himself should have specified the age and character of the appellant, his fear of his father and the fact that his father was still on the run. However, we do not accept that submission. The appellant’s age and general circumstances were well known to the jury. The jury was specifically reminded of the evidence that the appellant had himself given as to why he had followed his solicitor’s advice, evidence which did not extend to fear of his father or on the other hand to reluctance to compromise his father. The jury was specifically reminded to take into account the submissions on this issue made by Mr Lodge in his final speech. To the extent that those submissions went beyond the evidence, for instance in respect of fear of or filial concern for his father, such a direction could have caused the appellant no prejudice.[35]We therefore reject this ground of appeal

The character direction

[36]The appellant had one previous conviction, about which he volunteered evidence himself. On 28 November 2000, when he was just under 17, he had driven a car with excess alcohol, and, given his age, without a licence or insurance. He was fined and disqualified.[37]In his summing up the judge gave no direction at all about the appellant’s character. There had been no previous discussion on the subject between counsel and judge. At the end of the summing-up, and still in the presence of the jury, Mr Lodge responded to the judge’s invitation to mention anything relating to his directions by discreetly suggesting that – “Your Lordship may wish to look at the case cited at paragraph 8-185 [of Archbold] that because of those matters he may be regarded as a young man of previous good character, and be entitled to the two part directions relating to good character?” Archbold para 8-185 is headed “Effect of previous convictions being “spent” and refers inter alia to R v. Nye (1982) 75 Cr App R 247, which holds that a judge has a discretion to deal with a defendant with spent convictions as a person of good character, a discretion which “should be exercised, so far as it can be, favourably towards the accused person” (per Talbot J at 251).

The judge responded to Mr Lodge as follows:

“No, he has a conviction, and the jury have heard it. It is not an offence connected with either violence or dishonesty, in the sense that offences of dishonesty are described. I will say, of course, to the jury that they can take that into account and consider that apart from that matter he is a man of good character, and that might assist them in deciding as to whether they can accept his evidence in the case. As to the second issue [ie propensity], I say nothing further, but I will say that they may wish to consider those matters as being of some importance to them in considering whether they can accept what he said to them, in his evidence. Mr Lodge: Not take part in such a conduct? Judge Sir Rhys Davies: No, there is a conviction, they have heard what it is. It is a matter for the jury.”

Mr Lodge: Not take part in such a conduct?

[39]On this appeal, Mr Lodge takes a slightly different position. He does not found himself so much on the discretion referred to in Nye in relation to spent convictions, but on the more recent authorities deriving in particular from R v. Vye (1993) 97 Cr App R 134, [1993] 1 WLR 471, R v. Durbin [1995] 2 Cr App R 84 and R v. Aziz [1996] 1 AC 41 (see Archbold, 2004, at paras 4-406/9) relating to the importance of the second, propensity, limb of a good character direction and to the need to give a full good character direction, covering both credibility and propensity in cases where past misconduct can be regarded as irrelevant or of no significance in relation to the offence charged. He submits that the judge therefore erred in giving only a reluctant direction as to credibility and none at all as to propensity, and that only after rather than before he had reviewed the evidence for the jury.[40]Since Lord Taylor of Gosforth CJ in Vye gave the law in this area a push in a new direction there have been a number of cases considering the ramifications of his judgment. It is therefore necessary to consider this jurisprudence, to which we have been taken.

The authorities

[41]Vye was heard together with two other cases, Wise and Stephenson. Vye was a 50 year old defendant of previous good character who had been convicted of rape: in his summing-up the judge had made no reference to his character at all, and when the jury was brought back to court, they were merely reminded of it. Wise was a 35 year old of previous good character convicted of dishonesty: he had received a direction only as to credibility. Stephenson raised the problem of co-defendants, one of good and the other of bad character. Vye’s and Wise’s appeals were allowed, Stephenson’s was not. At 139 Lord Taylor said this:
“We have considered the whole spectrum of the situations likely to face the trial judge. At one extreme there is the case of an employee who has been entrusted with large sums of money over many years by his employer and, having carried out his duties impeccably, is finally charged with stealing from the till. There a second limb direction is obviously relevant and necessary. At the other extreme is a case such as Richens where the defendant, charged with murder, admits manslaughter. It might be thought that in such a case a second limb direction would be of little help to the jury. The defendant’s argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was in issue was intent and he had never shown any intent to use murderous violence in the past. “We have reached the conclusion that the time has come to give some clear guidance to trial judges as to how they should approach this matter. It cannot be satisfactory for uncertainty to persist so that judges do not know whether this Court, proceeding on a case by case basis, will hold that a “second limb” direction should or need not have been given. Our conclusion is that such a direction should be given where the defendant is of good character… “Having stated the general rule, however, we recognise it must be for the trial judge in each case to decide how he tailors his direction to the particular circumstances. He would probably wish to indicate, as is commonly done, that good character cannot amount to a defence. In cases such as that of the long serving employee exemplified above, he may wish to emphasise the “second limb” direction more than in the average case. By contrast, he may wish in a case such as the murder/manslaughter example given above, to stress the very limited help the jury may feel they can get from the absence of any propensity to violence in the defendant’s history. Provided that the judge indicates to the jury the two respects in which good character may be relevant, i.e. credibility and propensity, this court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case.”
[42]R v. Teasdale (1994) 99 Cr App R 80 concerned a young woman of only 17 at the time of trial and of previous good character who had admitted a count of actual bodily harm but stood trial on a further count of causing grievous bodily harm with intent (section 18) which related to a different aspect of the fight. The judge made no reference to her previous good character. When he was asked to do so, the judge said that in the light of her plea on the count of actual bodily harm he did not propose to give any direction. This court, on the basis of Vye, held that he should have given a full two-limb direction, and allowed the appeal. Morland J said (at 82):
“In our judgment, on the question of intent, the fact that the appellant admitted the lesser offence and a different part of the assault or fracas involving Sarah Jeffs, was a matter that might indeed, in a sense, be in her favour that she was frank enough to admit what part she had played in the incident. In this case clearly the judge would have had to tailor his direction on character to take into account the appellant’s plea of guilty on the second count of the indictment.”
[43]In R v. Challenger [1994] CLR 202 the defendant, of previous good character, was charged with possession of cannabis with intent to supply, simple possession, and possession of an offensive weapon. He pleaded guilty to simple possession and was tried and convicted on the other two counts. The judge refused to give a good character direction on the ground of the plea to simple possession. This appeal was heard just a few weeks after Teasdale, which was relied upon, but the appeal on this occasion was dismissed. Teasdale was distinguished on the (in our respectful judgment, mistaken) ground that the plea in that case was to an alternative charge of unlawfully causing grievous bodily harm (section 20), described as “the narrow circumstances which existed in Teasdale”. The decision was described as appearing illogical in the commentary of Professor Birch which follows the report.[44]R v. H [1994] CLR 205 concerned a defendant convicted of indecent assault on his step-daughter. The incident occurred in 1984 and was reported to the police in 1991. H had a previous conviction in 1980 for possession of an offensive weapon, for which he was given community service. The judge told the jury that it would be wrong to take into consideration a minor and different offence of so long before, but he did not give a proper good character direction on either limb. The appeal was allowed. This court, presided over by Lord Taylor, held that where a defendant’s previous character was not absolute it was a matter of discretion whether a good character direction was given; but that, since the judge had treated the earlier conviction as irrelevant, he should have given a full Vye direction. Professor Birch’s commentary, however, was sceptical (at 206):
“It is a matter for some concern that appeals may succeed where the jury have been given all the relevant information about the defendant’s character and have decided the issue of credibility against him and in favour of the complainant having seen and heard them both, simply on the basis that a Vye direction might have given something extra to chew over. Exactly what, one wonders?”
[45]A full transcript of Lord Taylor’s judgment (R v. H, 5 October 1993, No 93/2635/W2) indicates that he said that – “the learned judge, although it was a matter for his discretion, ought to have regarded the appellant as a man of previous good character.”[46]R v. Heath (1 February 1994, no 92/1102/Y3, unreported) was a case very like H. The defendant was charged with the importation of 211 kilos of cannabis. He had three spent convictions, two for theft and one for a domestic assault. The judge was regarded as treating him as a man of good character, for he had told the jury that it would probably think it appropriate “entirely to ignore them as far as this case is concerned. They were long ago and minor in character”; but otherwise he said nothing at all on the subject of credibility or propensity. Russell LJ, giving the judgment of this court, pointed out that that had been all very well at the time of the summing-up, but Vye “had radically changed the law”. He went on to refer to H and said – “So that in R v. [H], whilst acknowledging that the obligations of the trial judge were not mandatory, the court interfered in the exercise of the judge’s discretion because it plainly took the view that if the judge believed that the convictions were of no materiality and in effect rendered the appellant a man of good character, then the twin direction found in R v. Vye should be given. “We are of the view that the instant case is indistinguishable from R v. [H] because here too the previous convictions were regarded by the learned judge, as we have earlier indicated, as lacking in significance to the extent that the appellant should be regarded as a man of good character.”[47]Russell LJ might have gone on to say, but did not, that H had also said, in the passage cited from it above, which Russell LJ also cited, that where the facts were as they were in that case, the judge “ought to have regarded the appellant as a man of previous good character”. In any event, the appeal in Heath was allowed.[48]R v. Durbin [1995] 2 Cr App R 84 is an important authority for Mr Lodge, for it gave detailed consideration in the post-Vye world to a defendant who suffered the double difficulty of having spent convictions and admitting dishonest conduct in connection with the offence charged against him. The defendant was convicted of importing 875 kilos of cannabis. In interview he admitted being engaged in smuggling goods (other than drugs). Moreover at trial he admitted having misled two prosecution witnesses in relation to his dealings with a co-accused. He was nevertheless treated by the trial judge as a person of good character, but (erroneously in view of Stephenson) refused a good character direction out of consideration for his co-accused, who was of bad character. His appeal was allowed on the ground that, having been treated as of good character, he should have been given a good character direction albeit modified to take into account his particular circumstances.[49]Evans LJ considered H, Heath and a third case, then thought to be unreported now to be found as R v. Zoppola-Barrazza [1994] CLR 833. As for H, Evans LJ (at 88) pointed out, correctly as it seems to us, that there Lord Taylor had concluded that the judge not only had in fact treated the defendant as of good character but also “ought” to have done so. As for Heath, Evans LJ (at 89) also remarked, mistakenly if we may respectfully say so, that there Russell LJ had similarly held that the previous convictions were lacking in significance to the extent that the defendant there should be regarded as a man of good character, whereas Russell LJ only in fact went as far as saying that the trial judge had come to that conclusion. As for Zoppola-Barrazza, that was a case somewhat like Durbin itself in that the defendant, charged with importing cocaine, had admitted having been involved in smuggling gold to avoid duty and VAT and said that he had not known that cocaine was involved on this one occasion. The trial judge had given him a credibility direction only. This court held “not without hesitation” that it would be wrong to treat that defendant as a man of good character and that therefore he had been fortunate in obtaining a first limb direction at trial. Alliott J said:
“It is an affront to common sense to hold that such a person is entitled to the same direction that is intended to benefit those who can be truly considered to be of good character.”
[50]Evans LJ however considered that Zoppola-Barrazza was materially different from Durbin because in the former the dishonest smuggling had already been in existence at the time of the matters charged, whereas in Durbin the admitted dishonesty was only tied up with the events subject to trial. In such a case the defendant was entitled to be treated as of previous good character and a full, if modified, direction should be given. This was because of Lord Taylor’s murder/manslaughter example in Vye. The court’s judgment set out the following conclusions (at 91/92):
“In our judgment the law now is as follows: (1) Where the defendant is of previous good character, then he is entitled to the good character direction (both limbs if his credibility is in issue, the second limb only if it is not), notwithstanding that he may have admitted telling lies in interview (Kabariti) and may have admitted other offences or disreputable conduct in relation to the subject matter of the charge, as we hold here (contrast Zoppola-Barrazza and Buzalek and Schiffer). In such cases, however, the terms of the direction should be modified to take account of the circumstances of the case, including all facts known to the jury, either as regards credibility or propensity, or both. (2) Where the defendant is not of absolutely good character, the trial judge has a discretion as to whether or not to give a “good character” direction, and if so in what terms, but he cannot properly decide not to do so, and in unqualified terms, if the blemishes can only be regarded as irrelevant, or of no significance, in relation to the offence charged (H, and contrast Zoppola-Barrazza). (3) By the same token, there will be cases where the defendant is not of absolutely good character but where the only proper course is to give a qualified direction in suitably modified terms, assuming of course that the fact of the previous conviction or other character blemish is known to the jury. This is likely to mean that careful consideration will have to be given to the distinction between the two limbs of credibility and propensity. (4) Character, bad or good, is not simply a matter of the presence or absence of previous convictions, nor is it the same as reputation though the one may be evidence of the other. (5) In all cases where the qualified direction is given, we consider it essential that it should be in realistic terms, taking account of all the facts as they are known to the jury. The jury should not be directed to approach the case on a basis which, to their knowledge, is artificial or untrue.”
On the basis of these principles, the court held that a full, albeit modified, good character direction should have been given and the appeal was allowed.[51]Within a few months of the decision in Durbin the House of Lords heard the appeal in R v. Aziz [1996] 1 AC 41, but Durbin was not cited. Aziz, and two other appellants, Tosun and Yorganci, had been convicted of the fraudulent evasion of VAT. Aziz had no relevant previous convictions and Tosun and Yorganci had no previous convictions at all but they admitted acts of dishonesty in relation to the matters charged (false invoices). 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 House of Lords held that a full two-limb, albeit modified, Vye direction ought to have been given in the case of all three and that the court of appeal had been right to quash their convictions, albeit that had been done with reluctance.[52]Lord Steyn, in giving the leading speech, said that “in recent years there has been a veritable sea-change in judicial thinking” in this area and that Vye was the culmination of a development from discretion to rules of practice. He also posed the question: “why should a judge be obliged to give directions on good character?” and said: “The answer is that in modern practice a judge almost invariably reminds the jury of the principal points of the prosecution case. At the same time he must put the defence case before the jury in a fair and balanced way. Fairness requires that the judge should direct the jury about good character because it is evidence of probative significance. Leaving it entirely to the discretion of trial judges to decide whether to give directions on good character led to inconsistency and to repeated appeals” (at 50G/51A).[53]Turning to the problem of whether and how a defendant could lose his good character by reason of other criminal behaviour in the absence of convictions, Lord Steyn said that that was a complex problem where generalisations are hazardous. He added (at 53B/F):
“A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant’s claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced in thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists: Reg. v. H. [1994] Crim.L.R. 205 and Reg. v. Zoppola-Barraza [1994] Crim L.R. 833. “That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye [1993] 1 W.L.R. 471 and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them.”
[54]The only further authority post-Aziz discussed before us was R v. Martin [2000] 2 Cr App R 42. There the defendant admitted two robberies in which he had wielded a hammer, but raised a defence of duress. He had no previous convictions but had received two cautions in relation to possession of an offensive weapon, about which the defendant had not told the jury. The judge gave a brief credibility direction but no propensity direction. Mantell LJ, giving the judgment of this court, considered that the cautions could not be ignored and raised a matter for the judge’s residual discretion and concluded (at 46) – “In this case the defendant did not choose to make a clean breast of his past conduct. It was open to him to have done so. If he had, then the judge would have had to consider very carefully whether or not to give the kind of qualified direction referred to by Lord Steyn. In the event to give the “propensity” direction would have been quite absurd, and, more than that, misleading. The judge cannot be criticised from taking the course that he did.”[55]We would also refer to Shaw v. The Queen [2001] 1 WLR 1519 at paras 30/31, where Lord Steyn’s dictum about a defendant without previous convictions who is “shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment” was held to apply to an appellant convicted of murder (whose appeal however was allowed on other grounds) who had on his own admission dealt in a substantial quantity of cocaine and had been a member of an armed posse which had set out to exact reparation from the victim for having sold fake cocaine to his gang.

Discussion and conclusions

[56]The present case involves problems relating to these principles in two separate areas. The first relates to a defendant with a past conviction which is minor in itself and insignificant compared to the charge which he faces at trial. The second relates to criminal behaviour admitted in the course of trial. Both problems raise the question whether the defendant should be treated as a person of previous good character entitled to a Vye direction on both limbs of credibility and propensity, however qualified, or whether the matter can simply be left to the discretion of the judge, subject to the difficult task of showing that the exercise of that discretion was wrong to the extent of needing to be set aside.[57]In our judgment the authorities discussed above entitle us to state the following principles as applicable in this context:(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).(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).[58]In the light of these authorities and the principles for which we consider that they stand, we return to the facts of the present appeal.[59]The appellant was a few months over 18 at the time of the murder. We consider that his previous convictions, for the offences of driving with excess alcohol while without licence or insurance at a time when he was under 17, offences to which he pleaded guilty, were minor and of no relevance or significance compared to the charge of murder. Mr Lodge so submitted and on that ground said that he was not on account of those previous convictions to be deprived of a full Vye direction. As for the violence in the earlier stages of the incident on the ground floor, that could not have led to the forfeit of either limb of the Vye direction, although it would have been appropriate to qualify the propensity limb by reference to that earlier violence, to the extent that it was admitted. Mr Pickup on the other hand submits that, in the light of the previous convictions, it was a matter entirely for the discretion of the judge whether to treat him as a man of effective good character. The judge declined to do so and was fully entitled to his decision, and as a result no direction needed to have been given at all. As it was, the judge gave a direction on credibility, which was a bonus to the appellant. In any event, the two admitted assaults (the cut lip and the tray thrown up in the air) and the malicious damage to the laptop would have made a direction on propensity absurd: any claim to good character was spurious.[60]It seems to us that the first question is whether the judge did or did not treat the appellant as a man of previous good character. In our judgment, agreeing in this respect with both counsel, he did not. He was asked to do so, but said “No, he has a conviction, and the jury have heard it.” However, in the next few sentences he came close to reversing that initial reaction, for he said “It is not an offence connected with either violence or dishonesty…I will say, of course, to the jury that they can take that into account and consider that apart from that matter he is a man of good character”. It was on that basis that the judge went on to say that “that might assist them in deciding whether they can accept his evidence in this case” and that “they may wish to consider those matters as being of some importance to them in considering whether they can accept what he said to them, in his evidence.” We think that if the judge had been asked to consider these matters before his summing-up, as should have been the case, he might well have concluded that, compared to the charge of murder, the previous convictions were of no relevance and that the appellant should have been treated as of effective good character. That would not have held back from the jury the previous convictions, about which they had in any event heard, but it would have put them, in our judgment, in their proper context.[61]The second question is whether, even though the judge did not exercise his discretion in the appellant’s favour, he nevertheless ought to have done so. In our judgment, he ought to have: that is the effect of what Lord Taylor said in H (albeit there the judge did exercise his discretion in the defendant’s favour) and what this court laid down as a principle in Durbin. The House of Lords did not have Durbin cited to it, but Lord Steyn did cite H with approval, albeit in a different context; and everything that he said in Aziz about the nature of a trial judge’s discretion in relation to a Vye direction, although we again accept that he did not have this particular problem in mind, was consistent with the view that the discretion is not an open-textured one.[62]The third question is whether the appellant’s admitted violence in the context of his trial should have deprived him of a Vye direction, or should only have led to its qualification. This was not a question which the judge posed to himself, at any rate so far as the transcript suggests. Thus when Mr Lodge pressed the judge for a propensity direction (“Not take part in such a conduct?”), the judge again gave as his reason the existence of the previous conviction, not the admitted wrongdoing at Impact that day (“No, there is a conviction, they have heard what it is. It is a matter for the jury.”) It cannot therefore be said that the judge has exercised his discretion to refuse a propensity (or any) direction on the ground of such admitted wrongdoing. If, as Mr Pickup submits, it would be absurd or spurious in the light of such wrongdoing to afford the appellant any part of a Vye direction, then that is a decision which must fall to this court.[63]We have to consider therefore the judge ought to have withheld a Vye direction in whole or at any rate as far as propensity is concerned on the ground of the appellant’s misconduct at Impact prior to or after the murder. We remind ourselves that this is, expressly in Lord Steyn’s terms, a narrowly confined residual discretion. We have wavered on this question but ultimately do not consider that a qualified Vye direction would have been absurd in the light of that misconduct, nor would it have been an insult to common sense, or spurious. In saying this, we rely on Lord Taylor’s manslaughter/murder example (the appellant’s admitted conduct in this case falls a very long way short of manslaughter) and this court’s decision in Durbin; also on Lord Steyn’s reference to “serious criminal behaviour similar to the offence charged in the indictment” (at 53B). Murder, on the other hand, is the most serious crime of all, requiring specific intent; and unpleasant as the appellant’s admitted conduct was, it would not fall within Lord Steyn’s description.[64]We consider therefore that the judge ought to have given a Vye direction so far as credibility was concerned and should also have given a modified propensity direction. Such a direction might have referred to the appellant’s admitted wrongdoing, but contrasting it with the nature of the armed assault which the prosecution said took place upstairs and in that context asking the jury to consider whether a person of the defendant’s character would be likely to have participated in murder, and perhaps warning them not to assume that he would. We have in mind that even where a jury have heard of previous bad character they are told that the previous convictions do not mean that a defendant is guilty of the offence presently charged. This appellant did not receive the benefit of that kind of direction either. We have asked ourselves whether an appropriately qualified direction would have done the appellant more harm than good, or at any rate would have been useless: but we have not been able to conclude that it would.[65]Finally, there was discussion as to whether the judge’s direction was sufficient, viewed purely as a direction as to credibility. Given that he did not treat the appellant as a man of effective good character, his direction on credibility could well have come across more as mitigating the previous conviction than as something positively in the appellant’s favour. We think this possibility is increased because the jury would have heard the appellant’s counsel making a request which

the judge had turned down using these final words on the subject:

“No, there is a conviction, they have heard what it is. It is a matter for the jury.”
Even if we discount that possibility, the fact remains that the judge’s direction was given grudgingly and went no further than to say that the appellant’s good character apart from his previous conviction “might” assist them in deciding whether they could accept his evidence. That, however, is far from the standard direction which is to the effect that the jury should consider that a defendant’s good character supports his credibility. Since in his own mind the judge was not treating the appellant as of effective good character, he no doubt considered himself entitled to modify a good character credibility direction, for anything he said would be, as Mr Pickup submitted, a bonus to the appellant. Since, however, we consider that the judge should have treated the appellant as of previous good character, we remain concerned that even on the first limb of credibility the judge undermined the direction to which the appellant was entitled. We recognise that, quite apart from previous convictions, a judge might be entitled to modify the credibility part of his direction by reason of admissions at trial: but we do not see the admissions in this case as going to credibility (see Teasdale); and neither, it would seem, did the judge.[66]Again, we would suggest that if there had been discussion between judge and counsel at an appropriate time and in the absence of the jury, these matters might have been considered more thoroughly. As it was, we have sympathy for the judge who, in a difficult situation, was asked for his immediate response.[67]We therefore conclude that in the important respect of the good character direction there has been a material irregularity. On that basis, it has not been submitted that the conviction remained safe. Ultimately, the jury had to choose between the accuracy of the evidence of Mr Pickering and the contrary evidence given by the appellant that he remained below. There was nothing else to connect him with the murder upstairs. Therefore a good character direction was of real significance in the structure of the case. We therefore allow this appeal and quash the conviction, and will hear counsel as to the question of a retrial.

Cited in 14 later judgments

and 5 more of the most senior