In criminal law, we talk a lot about ‘character’.  This is, however, mainly in the context of ‘bad character’ rather than good character.  It is often the case that the prosecution will try to put previous convictions before a jury to persuade them of the defendant’s guilt. After all, the prosecution will say, if he’s done it before, he is more likely to have committed this crime too.

Of course, not all defendant’s facing criminal trial will have previous convictions.  In those circumstances the issue of ‘good character’ is likely to be important.

This will, of course, involve a reversal of the prosecution argument.  In cases where a person is of good character it will be said, therefore, that they are less likely to have committed the crime charged.

In fact the situation is much more complicated than that.  As a result we believe it is an aspect of case preparation that can often be overlooked.  This will be to the detriment of the person of good character standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.  In more recent years, the courts have accepted that evidence of good character may be admissible:

• to bolster the accused’s credibility; and,
• as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is simply a matter of fact.  If a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Similarly, although a defendant may not start off with good character they may be able nonetheless to obtain a good character direction. This is often referred to as ‘qualified or effective good character’. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

Should character witnesses be called?

An essential part of establishing good character will be to consider carefully whether character witnesses should be called on your behalf. These will be people who know a defendant well and who will speak positively about them.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury.  They ought to be people who would not be willing to lie about a person’s character and qualities simply due to allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

Good character and appeals

If defence advocates do not take a point on the character directions at trial and/or they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. This means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“…as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.”

What is the content of a ‘good character’ direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

‘You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant’s good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him.’

In the magistrates’ court, the defence advocate should ensure that the legal adviser provide the magistrates’ with the correct advice on this direction.

How we can assist as criminal trial specialists

We believe in proactive defence work.  This means that we do not merely respond to the prosecution case.  At the same time we are taking all of the positive steps possible to build a strong case for your defence.

An example of a Magistrates’ court trial where good character was important can be found here.

Considerations about character, both good and bad, will be just one aspect of this case preparation, although it may be a significant one.

Any application for legal aid is likely to be assisted where a conviction following trial will deprive a defendant of their good character.

Please contact your nearest office to make an appointment to speak with one of our expert criminal lawyers.  The contact details can be found here.

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