Vye direction

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This article describes the circumstances in which a judge should direct the jury to take unto account the good character of the defendant.

Please note that it is not entirely clear whether the case law on the good character direction entirely survives the enactment of the Criminal Justice Act 2003. To the extent that the Act deals only with 'bad character' it would appear to. However, at the time of writing this is not entirely clear.

In outline, A 'Vye direction' is a direction given by the judge to the jury concerning the weight that should be given to evidence of the defendant's good character (see evidence of good character). The view of the CourtOfAppeal is that such a direction must be given, tailored to the facts of the case, if the defendant is entitled to it. So two issues arise for discussion: the form the direction should take, and the question who is entitled to such a direction.

The form of the Vye direction

If the defendant testifies in his own defence, or adduces evidence from witnesses that exculpate the defendant, then the Court of Appeal ruled that the defendant of good character is entitled to a 'first limb direction'. This direction is to the effect that the jury ought to have regard to the defendant's good character when assessing the credibility of his testinony (or the testimony of other witnesses that tends to exclupate him).

Whether or not the defendant testifies, he is entitled to a 'second limb' direction. This direction is to the effect that the jury ought to take into account the defendant's good character when determining whether he had a disposition to committing the offence charged.

The post- Vye caselaw has stressed the importance of giving both limbs of the direction, where appropriate; failure to do so has generally led to convictions being quashed.

Entitlement to a Vye direction.

Where the defendant is genuinely a person with no taint of criminality, there is usually no problem with the Vye direction. Problems arise when the defendant has a blemished character but, nevertheless, might be considered to be of good character for the purposes of the offence being tried. It cannot be the case that a person with a blemished record can never be a person of good character -- this would be in conflict with Vye as well as an affront to common decency. The case law reveals three particular categories of defendant that pose a problem:

  1. defendants with minor or long-spent convictions
  2. defendants with no convictions, but against whom there is some evidence of criminality
  3. defendants who are charged with a serious offence, but plead guilty to a lesser one

Minor and spent convictions

That a defendant has minor or spent convictions does not prevent him being treated as a person of good character, although judicial attibutes do vary. For example, in R v timson and hales (1993), the CourtOfAppeal held that the judge should have treated the appellant, who had a five-year-old conviction for drunk driving, as a person of good character for the purposes of his trial for an offence of dishonesty. However, this case probably represents the high-water mark of judicial generosity in this respect. In RVOshea1993, for example, the Court of Appeal refused to disturb the verdict in a case where the defendant -- who had minor convictions at least twenty years old -- was not treated as a man of good character. This decision probably does not go to say that it was appropriate in such circumstances to refuse to treat the defendant as of good character, as the judge had referred to in dismissive terms of the defendant's convictions. However, it does support the view that the Vye direction can be tailored to the defendant, including mentioning past convictions where appropriate.

Defendants with no convictions, but evidence of criminality

This situation is not at all uncommon -- a defendant may have no criminal record but, during the investigation of the offence or the course of the trial, evidence comes to light that implicates the defendant in criminal activity in addition to the present charge. The leading authority is R v aziz (1995).

Defendants who please guilty to lesser offences

The case law in this area is a complete mess, and does not bear close strutiny. In R v Micallef, The Times, 25 November 1993, for example, a defendant who had pleaded guilty to an offence under s.18 of the offences against the person act (1861) was held to have been entitled to a good character direction even though he had pleaded guilty to the 'lesser' s.20 offence. In short, the defendant admitting stabbing the victim, but only recklessly, not intentionally. On the other hand, However, in R v Shepherd [1995] Crim LR 153, the Court of Appeal refused to overturn the conviction for obtaining property by deception of a defendant who had pleaded guilty to an offence of social security fraud.

On the whole, the balance of authority seems to suggest that a person who pleads guilty to a lesser offence, and has no previous convictions, is entitled to a good character direction in respect of a more serious offence if the offences are alternatives (e.g., s.18 and s.20). Otherwise, if the offences are distict, then he is not so entitled.