6.5 Good Character, Proof of Convictions & Bad Character Procedure
Key Takeaways
- A defendant of good character is entitled to both limbs of the Vye direction: credibility, where they have testified or relied on exculpatory out-of-court statements, and propensity, in every case.
- Hunter [2015] restated the categories: absolute good character carries an entitlement to the direction, effective good character is a fact-specific discretion, and a defendant with recent or relevant convictions is entitled to nothing.
- A previous conviction is proved by a certificate of conviction under section 73 PACE 1984 together with proof that the defendant is the person named in it.
- Section 74 PACE 1984 makes the conviction of another person admissible where it is relevant to an issue in the proceedings, and the conviction is treated as proof of the facts on which it was based unless the contrary is proved.
- A prosecutor's notice to introduce a defendant's bad character must be served within 20 business days of a not guilty plea in a magistrates' court or 10 business days in the Crown Court, and a party objecting has 10 business days from service to apply.
6.5 Good Character, Proof of Convictions & Bad Character Procedure
Sub-topics 4 to 7 of syllabus Topic 15 are the ones candidates skip: the procedure for adducing bad character, the mechanics of proving convictions, the direction the judge gives about bad character, and the mirror-image good character direction. They are also the ones that generate the most straightforward marks.
1. Evidence of good character
The two limbs — Vye
Vye [1993] established that a defendant of good character is entitled to a direction with two distinct limbs:
| Limb | Content | When it is given |
|---|---|---|
| Credibility | Good character supports the defendant's credibility | Where the defendant has testified, or has relied on exculpatory statements made out of court (typically in police interview) |
| Propensity | Good character makes it less likely that the defendant committed the offence | In every case where good character is established, whether or not the defendant gives evidence |
Where two defendants are tried together and only one is of good character, that defendant is still entitled to the direction; the judge deals with the other by a suitable form of words rather than by withholding it.
Hunter — the categories
Hunter [2015] EWCA Crim 631 was a five-judge decision restating the law because judges were being asked to give directions to defendants with substantial records. It draws three categories:
- Absolute good character — no previous convictions or cautions and no other reprehensible conduct relied on. The defendant is entitled to both limbs.
- Effective good character — old, minor or irrelevant convictions, or a caution, such that the defendant may fairly be treated as of good character. Whether to give a modified direction is a fact-specific decision for the judge, and the court should not be pressed into treating a defendant with a real record as of good character.
- Neither — a defendant with recent or relevant convictions, or whose other misconduct the prosecution relies on, is entitled to nothing. A judge may nevertheless give a tailored direction in the exercise of discretion.
Hunter was blunt about unmeritorious claims: the good character direction is not a windfall for a defendant with a bad record, and earlier authorities suggesting a liberal approach should not be pressed.
Where the defendant does not testify but relied on interview answers, the judge should still direct on credibility in respect of those out-of-court statements — a point tested regularly, because the intuitive answer (no evidence, no credibility direction) is wrong.
2. Proving convictions and acquittals
| Provision | Effect |
|---|---|
| s.73 PACE 1984 | A conviction or acquittal may be proved by a certificate signed by the proper officer of the court, giving the substance and effect of the indictment or information and of the conviction or acquittal — plus proof that the person named is the defendant (fingerprints, admission, or evidence of identity) |
| s.74 PACE 1984 | The conviction of a person other than the accused is admissible where relevant to an issue in the proceedings; once proved, that person is taken to have committed the offence unless the contrary is proved |
| s.75 PACE 1984 | Where a conviction is admitted under s.73 or s.74, the contents of the indictment, information, complaint or charge sheet are admissible to identify the facts on which the conviction was based |
Section 74 is a live trap. It is most often used to prove that a co-conspirator or the principal offender has been convicted — for example, on a charge of handling, that the burglary in fact took place. But it must be handled carefully: where the conviction of the third party effectively decides the defendant's guilt, the court should exclude it under s.78, because its admission would be unfair (Robertson and Golder; Kempster). Section 74(3) applies the same principle to a defendant's own conviction.
Convictions as proof of facts. By s.74(3) and s.75, where a defendant is proved to have been convicted, they are taken to have committed the offence unless the contrary is proved on the balance of probabilities — the burden being on the defendant who seeks to go behind it.
3. The bad character direction
Where bad character evidence is admitted, the judge must tell the jury:
- What the evidence is capable of showing — propensity to commit offences of the kind charged, propensity to be untruthful, or a matter going to a specific issue;
- What it cannot be used for — the jury must not convict wholly or mainly because of the bad character, and previous convictions do not prove the present offence;
- How to reason — propensity is one factor among many; the jury must be sure of guilt on the whole of the evidence;
- Where relevant, the limited class of defendant against whom the evidence is admissible, and any defence explanation for the convictions.
Weight is entirely a matter for the jury. Where the evidence has been admitted under gateway (d) to show propensity, the Hanson warning applies: a single previous conviction will rarely show propensity unless it shows a tendency to unusual behaviour or shares striking features with the offence charged.
4. Procedure: CrimPR Part 21
| Party | Time limit |
|---|---|
| Prosecutor — notice to introduce a defendant's bad character (magistrates' court) | Not more than 20 business days after the defendant pleads not guilty |
| Prosecutor — same (Crown Court) | Not more than 10 business days after the defendant pleads not guilty |
| Co-defendant | As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based |
| Party objecting | Application served not more than 10 business days after service of the notice |
| Non-defendant bad character (s.100) | An application for permission, since s.100 evidence requires leave unless all parties agree |
The objecting party must explain which facts of the misconduct are disputed, what facts are admitted, why the evidence is not admissible, why it would be unfair to admit it, and any other objection. The court may determine an application at a hearing (in public or private) or without one, but must give the party who served the notice a reasonable opportunity to respond.
The court may shorten or extend a time limit, allow an application or notice in a different form, or dispense with a notice — but late service that ambushes the defence is a strong argument for exclusion under s.101(3) or s.78.
Exam traps in this section
- The propensity limb of Vye is given even where the defendant does not testify; the credibility limb needs testimony or exculpatory out-of-court statements.
- Hunter: effective good character is a discretion, not an entitlement.
- s.74 requires care — exclude under s.78 where a third party's conviction effectively decides the defendant's guilt.
- Prosecution bad character notice: 20 business days (magistrates) / 10 business days (Crown); objection within 10 business days of service.
A defendant with no previous convictions or cautions is tried for fraud. He gave a full exculpatory account in police interview but does not give evidence at trial. The judge gives a propensity direction only, refusing a credibility direction on the ground that the defendant did not testify. Is that correct?
On a charge of handling stolen goods, the prosecution wishes to prove that the burglary from which the goods came actually occurred, by adducing the conviction of the burglar. Which provision applies and what limit should the court bear in mind?
A defendant pleads not guilty in the Crown Court on 1 March. The prosecution serves notice of intention to adduce his previous convictions on 20 April. The defence wishes to object. What is the position?