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Flashcards in LG7 Deck (56):
1

Summary trial of juveniles in the youth court;
Trial of juveniles in adult courts (magistrates’ court or Crown Court);
Sentencing young offenders.

the categorisation of youths into ‘child’ and ‘young person’: D24.2
procedure in the youth court: paragraphs D24.8, D24.13, D24.17, D24.18, D24.45, D24.46, D24.48-24.55 and D24.69
circumstances in which a youth will appear in the adult magistrates’ courts and the Crown Court, including reference to how the dangerous offender provisions apply to youths: D24.6, D24.20, D24.21, D24.25-24.27, D24.37 and the final paragraph of D24.39
the sentences available to the youth court: D24.59, D24.101, E7.15, E7.18 (but only minimum and maximum terms of a DTO, not the periods in between) and E7.20 (but only the fact that they can be consecutive, no other detail required)

2

Juvenile/ young defendant

An accused who has not attained the age of 18 (i.e. 17 or under);
Must be 10 or over (because of the age of criminal responsibility).
Terminology:
Child: under 14;
Young person: 14-17.

3

Youth court: jurisdiction

The Youth Court has jurisdiction where the defendant is under 18.
The Youth Court can try all indictable-only offences except homicide (i.e. murder/ manslaughter).
MCA 1980, s 24(1): summary trial (in the youth court) unless s 24A applies.
Juveniles (unlike adults) have no right to elect Crown Court trial.
The basic procedure in the Youth Court is the same as the adult magistrates’ court, but there are some key differences.

4

Youth Court

Exclusion of the public (C&YPA 1933, s 47(2));
Terminology (e.g. use of first names for D and any juvenile witnesses);
No dock;
Attendance of a parent/guardian – the court must order attendance where D is under 16 unless it would be unreasonable to do so (C&YPA 1933, s 34A);
Composition of court: mixed gender bench of 3 justices, or a DJ alone (Youth Courts (Constitution etc.) Rules 2007;
All Youth Court justices receive additional training (C&YPA 1933, s 45);
Bona fide representatives of the media can attend (C&YPA 1933, s 47(2)), but
Automatic reporting restrictions protect the identity of D and any young witnesses (s 49).

5

Exceptional situations – trial in an adult court

(1) Crown Court trial where the juvenile is charged with:
homicide (i.e. murder or manslaughter);
an offence to which PCC(S)A 2000, s 91, applies (long-term detention for offences carrying at least 14 years’ imprisonment or listed in s 91);
an offence to which a mandatory minimum sentence applies (e.g. under Firearms Act 1968, s 51A);
a ‘specified offence’ under the CJA 2003, but only if a sentence under the ‘dangerous offender’ provisions (CJA 2003) is likely;
OR
(2) Trial in an adult court where the juvenile is charged with an adult [note: the first appearance is in an adult magistrates’ court].

6

PCC(S)A 2000, s 91

Section 91 is reserved for very serious cases: there is a strong presumption against sending juveniles to the Crown Court for trial unless it is clearly required;
Primarily applicable where a custodial sentence of over 2 years would be appropriate;
The court must consider that, if D is found guilty, ‘it ought to be possible to sentence him [under s 91]’ (CDA 1998, s 51A(3)(b)): a ‘real possibility’/‘real prospect’ of a s 91 sentence being imposed by Crown Court: R (H,A,O) v Southampton YC [2004] EWHC 2912 ; R (CPS) v Redbridge YC [2005] EWHC 1390;
More than one D: position of each must be considered separately (R (W and M) v Oldham Youth Court [2010] EWHC 661).

7

Determining mode of trial where s 91 applies

Plea before venue hearing (MCA 1980, s 24A):
Guilty plea:
The Youth Court passes sentence, or
If the Youth Court thinks that the Crown Court should have the power to deal with the juvenile under s 91, commits for sentence under PCC(S)A 2000, s 3B.
Not guilty plea:
Representations from the prosecution and defence on whether a sentence of over 2 years is a real possibility:
Youth court accepts jurisdiction: trial in youth court.
Youth court declines jurisdiction (because it ‘ought to be possible’ to sentence the juvenile under s 91): the juvenile is sent to the Crown Court for trial.

8

Juvenile and adult charged together; adult sent to Crown Court for trial

Juvenile pleads guilty:
The magistrates’ court passes sentence (note that their powers are very limited), or
The juvenile is remitted to the Youth Court for sentence
Juvenile pleads not guilty:
CDA 1998, s 51(7): the juvenile is sent to the Crown Court for trial as well IF it is ‘necessary in the interests of justice’ to do so.
R (W and R) v Leeds Crown Court [2011] EWHC 2326: the Crown Court has no power to remit the juvenile to the Youth Court if the adult subsequently pleads guilty in the Crown Court.

9

Determining mode of trial where s 91 applies

Plea before venue hearing (MCA 1980, s 24A):
Guilty plea:
The Youth Court passes sentence, or
If the Youth Court thinks that the Crown Court should have the power to deal with the juvenile under s 91, commits for sentence under PCC(S)A 2000, s 3B.
Not guilty plea:
Representations from the prosecution and defence on whether a sentence of over 2 years is a real possibility:
Youth court accepts jurisdiction: trial in youth court.
Youth court declines jurisdiction (because it ‘ought to be possible’ to sentence the juvenile under s 91): the juvenile is sent to the Crown Court for trial.

10

Juvenile and adult charged together; adult sent to Crown Court for trial

Juvenile pleads guilty:
The magistrates’ court passes sentence (note that their powers are very limited), or
The juvenile is remitted to the Youth Court for sentence
Juvenile pleads not guilty:
CDA 1998, s 51(7): the juvenile is sent to the Crown Court for trial as well IF it is ‘necessary in the interests of justice’ to do so.
R (W and R) v Leeds Crown Court [2011] EWHC 2326: the Crown Court has no power to remit the juvenile to the Youth Court if the adult subsequently pleads guilty in the Crown Court.

11

SGC Guidance: interests of justice?

12.16 Any presumption in favour of sending the youth to the Crown Court to be tried jointly with an adult must be balanced with the general presumption that young Ds should be dealt with in the youth court.
12.17 When deciding whether to separate the youth and adult defendants, the court must consider:
the age of offender, particularly where the age gap between the adult and youth is substantial,
the immaturity and intellect of the youth,
the relative culpability of the youth and the adult and whether the role played by the youth was minor, and
any lack of previous convictions on the part of the youth compared with the adult D.
12.18 A very significant factor will be whether the trial of the adult and the youth could be severed without inconvenience to witnesses or injustice to the case as a whole, including whether there are benefits in the same tribunal sentencing all the offenders. In most circumstances, a single trial of all issues is likely to be most in the interests of justice.

12

Adult magistrates’ court – sentencing options when dealing with a young offender

Very limited powers (PCC(S)A 2000, s 8(8)), e.g.
absolute/conditional discharge;
fine;
ancillary orders (e.g. costs; compensation);
or
referral order (PCC(S)A 2000, s 16).
OR
Remit to the Youth Court for sentence.

13

Juvenile and adult charged together; adult to be tried in magistrates’ court; adult pleads ‘guilty’

A plea is taken from the juvenile:
‘Guilty’:
The magistrates’ court passes sentence (note their very limited powers); or
The juvenile is remitted to the Youth Court for sentence.
‘Not guilty’:
The juvenile is tried in the adult magistrates’ court; or
The juvenile is remitted to the Youth Court for trial.

14

Juvenile and adult charged together; adult to be tried in magistrates’ court; adult pleads ‘not guilty’

A plea is taken from the juvenile:
‘Guilty’:
The magistrates’ court passes sentence (note their very limited powers); or
The juvenile is remitted to the Youth Court for sentence.
‘Not guilty’:
Joint charge: the juvenile MUST be tried in the adult magistrates’ court;
Aiding/abetting or a linked charge: the juvenile MAY be tried in the adult magistrates’ court (or remitted to the Youth Court for trial).

15

When can the Youth Court commit to the Crown Court for sentence?

Two specific committal powers:
PCC(S)A 2000, s 3B: empowers the Youth Court to commit a juvenile to the Crown Court for sentence where s/he indicates a guilty plea at ‘plea before venue’ hearing or is convicted following summary trial (s 91 cases).
PCC(S)A 2000, s 3C: enables the Youth Court to commit a juvenile to the Crown Court for sentence where s/he is convicted (either by guilty plea or after trial) of a ‘specified offence’ and it appears to the Youth Court that the criteria for the imposition of an extended sentence under CJA 2003, s 226B, would be met (i.e. there is ‘a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences’, and the appropriate custodial term would be at least 4 years).

16

Sentencing young offenders

http://sentencingcouncil.judiciary.gov.uk/docs/web_overarching_principles_sentencing_youths.pdf
R v Royston [2012] EWCA Crim 2624
Para 1.2: statutory requirements – to have regard to
(a) the principal aim of the youth justice system, namely to prevent offending by children and young persons: CDA 1998, s 37(1) (see para 2.6), and
(b) the welfare of the offender: C&YPA 1933, s 44(1) (see para 2.7-2.10).

17

When can the Youth Court commit to the Crown Court for sentence?

Two specific committal powers:
PCC(S)A 2000, s 3B: empowers the Youth Court to commit a juvenile to the Crown Court for sentence where s/he indicates a guilty plea at ‘plea before venue’ hearing or is convicted following summary trial (s 91 cases).
PCC(S)A 2000, s 3C: enables the Youth Court to commit a juvenile to the Crown Court for sentence where s/he is convicted (either by guilty plea or after trial) of a ‘specified offence’ and it appears to the Youth Court that the criteria for the imposition of an extended sentence under CJA 2003, s 226B, would be met (i.e. there is ‘a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences’, and the appropriate custodial term would be at least 4 years).

18

Sentences available for young offenders

Detention and training order;
Fine:
14 – 17 year olds: maximum fine £1,000,
10 – 13 year olds: maximum fine £250;
Youth rehabilitation order (similar pick-and-mix approach to adult community sentences);
Referral order (attend meetings of the youth offender panel + a contract for a programme of behaviour aimed at preventing re-offending by the offender);
Reparation order (reparation the victim or the community at large);
Absolute or conditional discharge;
Where the offender is under the age of 16, the court must consider binding over the parents to take proper care of, and exercise proper control over, the offender.

19

Detention and Training Orders (DTOs)

PCC(S)A 2000, s 100-105: for offenders under the age of 18.
Minimum age: 12;
If aged 12-14 at the date of conviction: the juvenile must be a “persistent offender” (R v Charlton (2000) 164 JP 685);
The custody threshold criteria have to be met;
Minimum length: 4 months;
Maximum length: 24 months;
Detention for the first half of the order;
Second half: the juvenile is released but is under supervision for the rest of the order (by a probation officer, social worker or member of the youth offending team);
Youth Court and Crown Court powers on DTOs are identical.

20

Character evidence

15.Character evidence
Evidence of bad character under the Criminal Justice Act 2003; gateways to admissibility of non-defendant bad character; gateways to admissibility and powers for exclusion of defendant bad character; procedure for adducing and opposing the introduction of bad character evidence; proof of convictions; bad character directions; evidence of good character and good character directions
See also the various examinable principles in the related Curriculum and the references give there to BCRimP.

21

What is evidence of ‘character’?

As a legal general concept- evidence of conduct, disposition or propensity- good or bad;
Evidence of bad character has been given a statutory definition- ‘misconduct’, see CJA 2003, s 98. Further defined as ‘commission of an offence or other reprehensible behaviour’, see CJA 2003, s112(1). This will be explored in more depth shortly.
Evidence of good character: absence of previous convictions or reprehensible acts which don’t result in convictions and, possibly extending to evidence of creditable acts. This is absolute good character. There is also, in respect of good character evidence, the concept of effective good character and this will be explored later when considering the guideline case of R v Hunter [2015] 2 Cr App R 9

22

Why a party may seek to admit character evidence

May be to do with alleged facts of the offence (which, as we shall see falls outside the definition of bad character under CJA 2003, s 98).

Generally, may be relevant to credibility – can D or a witness be believed?

Generally, may be relevant to guilt – did D commit the offence charged.

23

Character to do with the alleged facts of the offence

Examples of character as a fact in issue.
D charged with possession of a firearm within 5 years of release from prison sentence of not less than 3 months or more than 3 years contrary to the Firearms Act 1968, s. 21(2)

D charged with offence of driving whilst disqualified contrary to the Road Traffic Act 1988, s.103. See, DPP v Agyemang [2009] EWHC 1542, CA.
Note CJA 2003, s 98(a)- places such evidence outside the scope of the definition of bad character. Considered shortly.


.

24

CJA 2003 – Key Provisions

Section 98: definition - ‘misconduct’
Section 99: common law rules abolished
Section 100: admission of bad character of a person other than D
Section 101(1)(a)-(g): admission of D’s bad character
Section 101(3): exclusion of where the admission of the evidence would be unfairly prejudicial
Section 107: stopping the case where evidence is contaminated
Section 111 in conjunction with Criminal Procedure Rules, Part 21

25

Definition of bad character

S 98: ‘misconduct’ other than misconduct which is to do with the investigation or facts of the offence.

S112: ‘misconduct’ is the ‘commission of an offence or other reprehensible behaviour’

So, not confined to convictions. Very broad.

26

Admissibility of evidence of the defendant’s bad character

D’s bad Character- 7 gateways, s.101(1)(a)-(d)

All parties agree

Given by the defendant

Important explanatory evidence

(d) Relevant to an important matter in issue
between D and P

(e) Substantial probative value in relation to an
important matter in issue between D and Co-D

Corrects a false impression given by D

(g) Defendant has attacked another person's character

27

First two gateways- ss.101(1)(a) & (b)

S 101(1)(a): all parties agree. See R v Hussain [2008] EWCA Crim 1117, CA where, in a cut-throat, evidence of dishonesty was admitted by agreement since realistically it was bound to have been admitted without agreement.
S 101(1)(b): D admits the evidence. For example, minor misconduct admitted to avoid juries thinking the worst in the absence of a good character direction, or where it is old and irrelevant and D is going to ask the judge to treat him as someone who is of ‘effective good character’ to gain a good character direction, or where attack another is planned & his character might be adduced anyway under another gateway because of the planned attack.

28

Third gateway: s 101(1)(c) Important explanatory evidence

S 101(1)(c): without it jury would find it impossible or difficult to understand other evidence in the case and its value for understanding the case as a whole is substantial.

See R v Saint [2010] EWCA Crim 1924. Applying s 101(1)(c) properly, D’s interest in observing ‘dogging’ activity whilst a park warden in 1993 was not explanatory evidence in respect of an offence of rape in and around a car park by a Marina in 1989.

29

Fourth gateway- s 101(1)(d)

Relevant to an important matter in issue between D and P
An important matter in issue can be any matter of importance. See s 112(1)- ‘…a matter of substantial importance in the context of the case as a whole’.
S 103(1) states that, ‘ matter in issue’ includes:
propensity to commit offences (s103(1)(a))
propensity to be untruthful (s103(1)(b))
S 103(2): propensity may be established by a conviction of the same description or in the same category as the offence charged
S103(3): for the purposes of s 103(2), propensity is not established if by reason of the length of time since the conviction or for any other reason, it would be unjust

30

R v Hanson [2005] 2 Cr App R 21


Propensity to commit offences
Factors for assessing probative value of the evidence in showing
propensity
the fewer the number of convictions, the less likely they show propensity;
the older the convictions, the less likely they show propensity;
A single previous conviction in the same category (eg Theft Category) or of the same description of the offence charged, may establish propensity if it shows a tendency to unusual behaviour
An old conviction with no special features is likely to affect the fairness of the trial.


Propensity to be untruthful
Untruthfulness is not the same as dishonesty;
Conviction after trial where D has given evidence may show propensity to be untruthful.

31

R v N [2014] EWCA Crim 419

A decision in R v Campbell [2007] 1 WLR 2798, CA in which it was held that evidence of propensity to be untruthful is rarely admissible, is too restrictive.
Where credibility is a central issue in the case, evidence of a defendant’s lies may be admissible, which can include, as per R v Hanson, evidence that D gave oral evidence in his defence at a previous trial and he was disbelieved. It may also include evidence of offending which involved lies as part of the commission of the offence.
In R v N, which was a historic sex case, D defence was a denial and C was fabricating. Evidence of untruthfulness was admitted that a jury in a previous case rejected his account and that he had lied to his barrister to strengthen mitigation when was being sentenced sentencing.

32

Cross-admissibility

Evidence supporting one count in an indictment may be admissible to support another count in the same indictment.

As an example, see R v Chopra [2007] 1 Cr App R 225.

33

Gateway 5- s.101(1)(e). Defendant’s bad character admitted by a co-defendant


Evidence must have substantial probative value in relation to an
important matter in issue between the defendant and the co-defendant.

S 104(1)
Where important matter in issue is propensity to be untruthful, the nature or
conduct of D’s defence must first undermine Co-D's defence.

34

Cross-admissibility

Evidence supporting one count in an indictment may be admissible to support another count in the same indictment.

As an example, see R v Chopra [2007] 1 Cr App R 225.

35

Gateway 5- s.101(1)(e). Defendant’s bad character admitted by a co-defendant


Evidence must have substantial probative value in relation to an
important matter in issue between the defendant and the co-defendant.

S 104(1)
Where important matter in issue is propensity to be untruthful, the nature or
conduct of D’s defence must first undermine Co-D's defence.

36

S101(1)(e)- continued


Open to Co-D only (not prosecution).

Admissible if relevant to any matter which is an important matter in issue, eg. propensity to offend and propensity to be untruthful.

‘Propensity to be untruthful’ interpreted broadly: see R v Lawson [2007] 1 WLR 1191. Really, ‘credibility’.

Applies whether or not D gives evidence

37

R v Lawson [2007] 1 WLR 1191, CA

A less cautious test for admissibility is appropriate under s 101(1)(e)
than under s 101(1)(d) (per Hughes LJ).

But see also R v Phillips [2012] 1 Cr App R 25
‘Substantial probative value’ means enhanced capability to prove or
disprove a fact in issue and the threshold is not to be understated.



38

S101(1)(e)- continued


Open to Co-D only (not prosecution).

Admissible if relevant to any matter which is an important matter in issue, eg. propensity to offend and propensity to be untruthful.

‘Propensity to be untruthful’ interpreted broadly: see R v Lawson [2007] 1 WLR 1191. Really, ‘credibility’.

Applies whether or not D gives evidence

39

R v Lawson [2007] 1 WLR 1191, CA

A less cautious test for admissibility is appropriate under s 101(1)(e)
than under s 101(1)(d) (per Hughes LJ).

But see also R v Phillips [2012] 1 Cr App R 25
‘Substantial probative value’ means enhanced capability to prove or
disprove a fact in issue and the threshold is not to be understated.



40

Gateway 6- s101(1)(f)- evidence to correct a false impression

S101(1)(f): evidence of bad character may be admissible to correct a false impression.

S105: where D is responsible for making an express or implied assertion apt to give a false or misleading impression about his character, evidence of bad character may be called which goes no further than to correct the false impression. An assertion made in police interview after caution can open the gateway (see s 105(2)(b))

41

Gateway 7- S 101(1)(g)

S101(1)(g): evidence of bad character may be admitted where D has made an attack on another’s character.

See s106: D adduces evidence attacking another person’s character or evidence is given that he impugned another person’s character upon being questioned under caution or upon being charged. Where this occurs, evidence of D’s bad character may be called to counter D’s attack.

42

Offences when a child

See s 108
Where D is over 21, past offences alleged to have been committed when he was under the age of 14 are not admissible unless both offences are triable only on indictment and the court is satisfied that it is in the interests of justice to admit them
Past offences include offences for which D has been convicted under the law of any country outside England and Wales, but would have constituted an offence under the law of England and Wales if committed at the time of the proceedings for the offence with which D is now charged.

43

Proof of convictions and acquittals, and foreign convictions

See PACE 1984, ss 73 & 74: covers accused and persons other than accused
S 73(1): Convictions and acquittals in UK or any EU Member States may be proved by a certificate of conviction or acquittal and proving the name of the person in the certificate is the person whose conviction or acquittal is to be proved.
S74(1): the fact that a person had been convicted of an offence in a UK court or a court in a member state is admissible as evidence of the fact that the person committed the offence and evidence of facts on which it is based.
S 74(2): the person is taken to have committed the offence unless the contrary is proved. Rebuttable persuasive presumption imposing a legal burden on the party against whom the presumption operates.

44

Convictions outside EU

Not covered by PACE 1984, s 74.
May be admissible as bad character under the bad character provisions of CJA 2003.
If admissible may be proved under Evidence Act 1851
If conviction was a result of a trial to which ordinary standards of fairness would not apply, judge may exclude under CJA 2003, s 101(3) or PACE 1984, s 78

45

Safeguards Crim PR 2015, exclusion, power to stop a case where evidence is contaminated, judicial directions

Criminal Procedure Rules 2015, Part 21- compliance with notice requirements- see content of notice (21.2), time limits (21.4- admission, 21 days of not guilty plea in mags court,14 in Cr Ct, objection, 14 days from receiving notice to admit), determination (21.4 para 6: at a hearing in public or private, without a hearing, but must not determine the application unless party who served the notice has a reasonable opportunity to respond). See also, R v Ramirez [2009] EWCA Crim 1721: robust approach to a party who introduces character without notice.
S.101(3) CJA 2003: evidence must be excluded if admission would have such an adverse effect on fairness that it ought not to be admitted. But applies to s101(1)(d) and (g) only
S.78 PACE 1984: discretion to exclude. Mirrors s. 101(3)), only difference, use of word ‘may’ rather than ‘must’.
S.82(3) PACE 1984: common law

46

Safeguards- CJA 2003, s 107


S.107 CJA 2003: after bad character evidence is admitted and at any time after the close of the prosecution case, the judge may stop the case if s/he is satisfied that the evidence is contaminated and, considering its importance, any conviction would be unsafe.
Must direct the jury to acquit, or discharge the jury if s/he considers there ought to be a retrial (eg. in sexual abuse cases with multiple complainants where there is evidence of collusion or collaboration)

47

Safeguards- judicial directions

Crown Court Bench Book: judicial directions to juries on purpose and limits of bad character evidence. Key element- bad character alone cannot prove guilt.
See also, R v Hanson [2005] 2 Cr App R 21
- clear warning against the dangers of placing undue reliance on past convictions
- stress that evidence of bad character cannot be used to bolster
a weak case or prejudice the jury against the defendant
- emphasise that the jury should not infer guilt from the existence of convictions.

48

Evidence of the bad character of a person other than the defendant

Non-D’s Bad Character: s.100 CJA 2003

All parties agree

Important explanatory evidence

Substantial probative value in relation to a matter which is a matter in issue, and is of substantial importance in the context of the case as a whole
NB- leave required unless all parties agree. May facilitate consistency
with the leave requirement of YJCEA 1999, s 41 where sexual history
evidence is also bad character.
However, see R v Scott [2009] EWCA Crim 2457, obiter.
Leave requirement adds little to judge’s discretion to admit non- D’s bad
character.

49

Approach to admissibility under s. 100 where D makes the application

“The same degree of caution which is applied to the Crown application when considering relevance and discretion does not fall to be applied when what is at stake is an accused’s right to deploy relevant material to defend himself against a criminal charge…” (Hughes LJ R v Stephenson [2006] EWCA Crim 2325).
However, each case will turn on its own facts and the question will be whether a fair-minded tribunal would regard the convictions has having an impact on the worth of the witness’s evidence (R v Brewster [2011] 1 WLR 601, CA).

50

Good Character

full ‘Vye’ direction

Two limbs
First limb, credibility: less likely to have lied where he testifies or has made a mixed statement (first limb, R v Vye [1993] 1 WLR 471, CA; on mixed statement, see R v Aziz [1995] 2 Cr App R 478, HL).

Second limb, propensity/guilt: less likely to have committed the offence (second limb R v Vye [1993] 1 WLR 471, CA).


51

Good character direction- an affirmative statement in D’s favour.


Judge’s should avoid watering down with words and phrases like: “you are entitled to take good character into account”; “the defence ask you to consider…” (R v Gbajabiamila [2001] EWCA Crim 734); ‘”put good character into the scales” (R v Boyson [1991] Crim LR 274); “good character ‘might assist’ on credibility” (R v Gray [2004] 2 Cr App R 498).

52

D’s good character where he does not testify and/or no mixed statement


Credibility is not an issue

Good character only relevant to guilt



53

Meaning of good character and the entitlement to a direction

R v Hunter [2015] 2 Cr App R 9
Good character means ‘absolute good character’ or ‘effective good character’
Absolute good character refers to a person with no previous convictions or cautions and no other reprehensible conduct has been admitted, proved or alleged.
Under the principles in Vye and Aziz [1996] AC 41, a person who is guilty of past misconduct has no entitlement as of right to a good character direction, unless the judge decides in his discretion, to treat him as a person who is of effective good character.

54

R v Hunter [2015] 2 Cr App R 9

Effective good character refers to an accused who has previous convictions or cautions recorded which are old, minor and have no relevance to the charge. In this situation the judge must make a judgement on whether to treat the accused as someone who is of effective good character.
The discretion is an ‘open textured’ discretion as to whether to treat an accused as a person of effective good character.
If he does decide to treat the defendant as being of effective good character, both limbs should be given, but modified as necessary to take matters into account and ensure the jury or not misled.

55

R v Hunter [2015] 2 Cr App R 9- good character directions and the ‘absurdity principle

Under Aziz, where an accused has no previous convictions but has admitted other reprehensible conduct and the judge considers it would be an insult to common sense to give directions in accordance with Vye, the judge has a ‘narrowly circumscribed’ discretion to decline to give a good character direction. Under Hunter, the discretion is ‘open textured’.
Example might be where D adduces evidence of old and irrelevant reprehensible behaviour himself under s 101(1)(b) in order to come clean to the jury, but the judge takes the view, given the nature of the bad character, it would be an insult to common sense to give the direction.

56

Non-D’s good character

Non-D’s good character inadmissible (R v Turner [1975] QB 834, CA), unless to rebut an attack by D.