We talk about character a lot in criminal law, but mostly in the context of ‘bad character,’ or prior convictions that the prosecution will try to use to persuade a jury of the defendant’s guilt. After all, if he’s done it before, he’s more likely to have done it again, according to the general logic.
However, not every defendant facing a criminal trial has a criminal record, and in those cases, the question of ‘good character’ emerges.
Of course, this is the inverse of the prosecution’s argument: he is a man of good character and so less likely to have committed the alleged crime.
It’s actually a lot more complicated than that, and we believe it’s a component of case preparation that’s sometimes disregarded, to the detriment of the defendant.
What is the purpose of establishing good character?
It has long been established that proof of a defendant’s excellent character is acceptable in criminal proceedings.
The courts have agreed that good character evidence may be acceptable in the modern era:
- to bolster the accused’s credibility and
(ii) as relevant to the likelihood of guilt.
How is good character established?
In most circumstances, good character is a matter of fact; if a person has no prior convictions, he or she will be of good character by definition.
However, depending on the nature of any proof presented, a person’s good character status may be revoked, at least in part.
Similarly, even if a person does not start off with good character, he or she may be able to develop it. This is also known as ‘qualified or effective good character.’ A common circumstance is where any prior convictions are either too old or irrelevant to the case at hand, making it unreasonable to consider them.
Consider carefully whether character witnesses should be summoned on your behalf as part of the process of demonstrating good character. These are folks who are familiar with you and will talk good of you.
When it comes to character witnesses, it’s best to look for people who would be extremely believable in the eyes of the court or jury, people who would not lie about a person’s character or attributes simply because they care about that person.
Do I have to do anything?
During case preparation, it is vital that good character or qualifying good character be not disregarded. It is the responsibility of the defence to formally establish good character and ensure that the case is appropriately presented to the court for consideration.
If the defence attorneys do not object to the character directions at trial and/or agree with the judge’s suggested directions, this is a good sign that nothing went wrong. As a result, attempting to correct any error on appeal is unlikely to be successful.
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 specific direction to the court or jury will vary depending on the facts of the case, but below is an example of a comprehensive 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.
On behalf of the defendant, it has been stated that this is the first time in his life that he has been accused of dishonesty. He is not the type of person who would jeopardise his good reputation in this way. That is something to which you should give special consideration.
However, it is up to you to decide how much weight to give to the defendant’s good character and how much it helps on the circumstances of this case. You may consider all you’ve heard about him while making that judgement.’
In magistrates’ court, the defence attorney should make certain that the court clerk correctly instructed the magistrates on this direction.
How we can assist
At Levy & Co, we believe in proactive defence work, which involves doing everything necessary to establish a solid defence case while also responding to the prosecution’s case. Considerations of character, both good and poor, are only one part of the case preparation process, but it’s an important one.
How can we help?
We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact our team of criminal defence specialists on: 01376 511819