Does the decision in R v Mader 2018 EWCA Crim 2454 open the door wider to non-defendant good character

As a general rule, evidence cannot be adduced whether by way of good character or expert evidence intending to show that a witness is more likely to be telling the truth. As Lawton LJ put it in R v Turner 1975 1 QB 834 at page 842C, in general, evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up. This is known as oath-helping and is designed to suggest that a particular witness is more worthy of belief or less likely to be untruthful. If a jury is told that a prosecution witness has no previous convictions or as happened in R v SJ and MM 2019 EWCA Crim 1570, a counsellor, portrayed as an expert, was allowed to express the view that the child victim of rape was telling the truth, a jury could see that as persuasive but good character evidence carries all the dangers of evidence of bad character; just because a witness has not been known to have done wrong in the past does not necessarily mean (s)he did not act out of character on the occasion in question. Further, good character evidence relating to a witness would risk watering down the good character direction given for a defendant without previous convictions or enhancing any defendant bad character evidence admitted.

These issues were considered R v Mader. M met the complainant (W) and his partner (C) in a pub and invited them back to his narrow boat where alcohol and cannabis were consumed. After an amicable start, things took a turn for the worse and W and C said that M launched an unprovoked attack on W with a knife, causing lacerations to his face, neck and right hand, which was the basis of the charge and conviction under section 18 the Offences against the Person Act 1861. M on the other hand claimed that W and C had taken a ring and some cannabis and when he tried to retrieve the ring from C, W had grabbed him and he had only acted in self-defence. W and C had no criminal convictions or cautions but neither did M.

After M had given evidence, the Crown applied to admit the good character of W and C to rebut the defence assertion that C was dishonest and W was the aggressor. The trial judge allowed this; whilst acknowledging the general rule that this was inadmissible, she relied on Amado-Taylor 2001 EWCA 1898 for the proposition that cases may arise where the dispositional character of a witness may be relevant to an issue in the case and found that the good character of W and C went to the heart of the issues in the case before her. She directed that their good character was something the jury could take into account when deciding if they were sure it was M and not W who started the violence and that the use of force was unlawful. She also gave a full and fair standard direction on the good character of M.

It was argued for the defence that a legitimate but robust defence had been advanced but not one which justified bolstering the credibility of the prosecution witnesses by adducing evidence of their good character, which was in any event for too broad.

In Amado-Taylor, the relevance is more obvious; the defence to rape was enthusiastic participation with a person who was very nearly a stranger to the complainant and evidence from her and her boyfriend as to her previous virginity, her objection to intercourse before marriage and her religious beliefs on the topic were relevant to the issue of consent.

Likewise, in R v Lodge 2013 EWCA Crim 987, the relevance was clearly identifiable. After L had stopped his car and a female passenger opened a door and was sick in the road, L took exception to the reaction of the complainant (S) and attacked him. L claimed that S shouted racist abuse at the woman being sick and became threatening when L asked him to stop. Evidence was admitted that S had taken part in a charity climb to raise money for people in Tanzania and had been photographed carrying a young black Tanzanian boy. The Court of Appeal agreed that this was evidence the jury could consider in deciding whether S was the sort of person who would have started the incident by using racist language.

The court in Amado-Taylor quoted Phipson on Evidence with approval:

If the accused’s defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former.

In Mader, this was adopted as an example of the category of issue to which evidence of disposition may be relevant. The Court was of the view that the trial judge had correctly identified that the issue to which the good character of the prosecution witnesses was relevant was the context in which the applicant had picked up the knife with which he stabbed W. The defence raised in the Court’s view went far beyond the normal, robust defence.

However, the question remains how the lack of convictions on the part of W and C was sufficiently probative of how M came to stab W. The Court did not provide any guidance on how to assess whether such evidence might be relevant, nor explain how the defence went beyond normal and robust. The test for non-defendant bad character could offer a suitable route i.e evidence which has substantial probative value to a matter in issue of substantial importance. Applying that test, should the good character of W and C have been admitted?

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