A question of character

Judging whether to put your client's character before the jury is always a tricky task for a defence advocate. Sometimes the decision makes itself: if there has been a bad character application, or the conduct of the defence is such that the crown will inevitably apply to do it, then it is much better to bite the bullet and get the client to stumble through the sorry tale himself. His explanation of his past, freely given, gives a somewhat better impression than a prosecutor's lip-smacking renumeration of his misdeeds '“ although one must take care to avoid the two pitfalls of this voluntary disclosure. The first is a client who stoutly maintains his innocence of previous convictions: variants of 'it was only a common assault' and 'that jury got it well wrong' tend to go down badly. The second is blithely embarking on a trawl through the past convictions without checking they are both accurate and completely up to date. Behind bars once witnessed a young advocate make just that mistake. The prosecutor could not believe that his luck and his duty went for once in the same direction, and that happily he was obliged, so that the jury was not misled, to add on the witness intimidation conviction, the theft from the employer and the grievous bodily harm.

Although there can be no research into how real juries treat character applications and previous convictions, research into parallel juries found that they tended to disregard convictions very unlike the subject matter of the charge, although recent convictions of the same sort were highly persuasive. However, much as an advocate bangs on about giving dogs bad names, it is likely that juries treat personal history in the same way as everyone else does: as a pretty fair guide to the present and future. But where a defendant up on, for example, a sex charge, only has convictions for dishonesty it makes sense to disclose those to the jury, if only to stop the inevitable speculation about what else he might have been up to in the past.

Juries are neither stupid nor ignorant of the basic law: quite apart from anything else, the amount of TV courtroom drama ensures that some bright spark will certainly know that silence about character equals 'dodgy bloke'. Once disclosed, not only is the defendant freed to say what he likes about his own character and motivation without the risk of his convictions being dragged in by the crown in cross-examination under the gateway of giving a false impression '“ but there can be a modified character direction given by the judge. And those directions matter.

No direction

In PD v R [2012] EWCA Crim 19, an appeal was upheld where the judge had failed to give a character direction. The defendant was charged with anal rape of his wife, and although he had no previous convictions he had admitted violence towards her in the course of the marriage and it was agreed he was not entitled therefore to the full character direction. But the judge agreed he was entitled to a direction that he had no previous convictions for sexual offences and that was a factor to be taken into account in his favour in considering whether it was likely he had, for the first time in this life, committed the offence.

At trial the prosecution had not objected to that direction being given. Inexplicably, the judge did not in fact give that direction, nor did either counsel tell him he had omitted it. On appeal, the crown changed tack and argued that the direction ought not to have been given in any event, as on the facts propensity to anally rape was not the issue: there was some compelling evidence that the sex had been used as a punishment by the husband and not for sexual gratification. While accepting that the evidence might well undermine the positive effect of a 'propensity' character direction, the court said that could not justify declining to give one, and reiterated that it was for the jury alone to determine what weight they gave to the absence of relevant previous convictions.

This judgment underscored the importance of character directions, particularly in cases where the verdict turns on whether a complainant or a defendant is believed '“ which covers the overwhelming majority of sexual offences. It seems that research done for the hearing could not identify a single case where the Court of Appeal had upheld a conviction as safe where a character direction should have been given but was not.

The case raises an interesting question: if even modified character directions are as important to juries as the Court of Appeal thinks they are, should we be freer about disclosing them? Or play safe and do without?