Bad Character: Deficient Direction
The Court of Appeal emphasised today that it remained critical that legal directions ensured that juries would approach the evidence of bad character correctly: Fanta & Anor v The Queen [2021] EWCA Crim 564: Fulford LJ (Vice-President CD), Jeremy Baker, Griffiths JJ
Courts must be careful not simply to assume that juries would understand the relevance of this kind of evidence in the same way as lawyers and judges.
Materially deficient directions, particularly complex evidence, were likely to lead to convictions being quashed, depending always on the circumstances of the particular trial.
It was submitted on behalf of Defendant L that the judge failed to direct the jury as to (i) the risk of unfair prejudice against L as a result of this evidence; (ii) the use to which this evidence could properly be put; (iii) the need for the jury to make their own evaluation of the evidence and not to place over-reliance on it; and (iv) the need to avoid the risk of convicting L wholly or mainly on the basis of it (I.e. that it was only supporting evidence).
The Vice-President said that the Court had no doubt that the learned Recorder should have given a fuller direction, broadly in line with the guidance given in Chapter 12 of the Crown Court Compendium covering expressly all of those issues.
It was critical that judges, when bad character evidence was admitted, clearly explained why it had been introduced, the limits of its potential usefulness, and by their directions ensured that all the protections for the accused against the misuse of such evidence had been properly explained.
The Court bore in mind the observation by Leggatt LJ in R v Donald Adams [2019] EWCA Crim 1363:
“… the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way. But we have not yet reached the point where evidence of a defendant’s bad character can be left as a free for all …”
Notwithstanding the inadequacy of the directions in the present case, the Recorder made it abundantly clear why the evidence had been introduced, namely, it was relevant to the question of whether (as the judge put it), “it is more than a lucky coincidence for Mr L that his fingerprint was found in very similar circumstances on two occasions in lorries that contained cocaine.”
The jury were directed that it was for them to decide whether this evidence helped resolve that issue.
Although the Court reflected carefully on the judge’s failure to direct the jury (i) against placing over-reliance on this evidence, (ii) not to convict Mr L wholly or mainly on the basis of it and (iii) to avoid unfair prejudice, in the particular circumstances of the case and in the context of the summing up, these matters would have been wholly apparent to the jury.
There was, in these very particular circumstances, no appreciable risk that the evidence would have led to unfair prejudice, or that the jury would have misunderstood its true purpose as being relevant to the issue identified or, moreover, that they would have accorded it undue evidential weight.
Because the bad character issues merited consideration by the full Court, extensions of time and leave to appeal to both applicants was granted, but the appeals against conviction for being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods (cocaine) contrary to section 170(2) Customs and Excise Management Act 1979, were dismissed.