R v Goncalves [2025] EWCA Crim 1260: Post‑Brexit proof of foreign convictions via hearsay and the defendant’s right to assert good character

Introduction

This Court of Appeal (Criminal Division) decision addresses two interlocking trial issues that frequently arise in fraud prosecutions and will increasingly matter in the post‑Brexit landscape: (i) whether a defendant may be prevented from asserting her own good character and (ii) how, if at all, a foreign conviction can be adduced to rebut such an assertion when the traditional statutory route for proving overseas convictions is unavailable.

The applicant, Ms Goncalves, was convicted of two frauds and sentenced to an aggregate term of three years’ imprisonment. She had no UK convictions on the Police National Computer at the time of trial, but the prosecution held Portuguese criminal records suggesting a 2010 conviction for deception and other matters. Those documents were not then in a form meeting the authentication requirements of section 7 of the Evidence Act 1851. The trial judge refused to give a good character direction and, crucially, prohibited the applicant from giving evidence asserting she had no previous convictions/was of good character. The jury convicted.

On appeal, the central questions were:

Whether, absent admissible proof of a foreign conviction, the defendant was entitled to give evidence asserting good character and to a corresponding good character direction.
Whether the judge erred in law by forbidding the defendant from giving evidence of her own character.
Whether, if the defendant had asserted good character, the prosecution could have properly adduced the Portuguese conviction via the Criminal Justice Act 2003 hearsay provisions to correct a false impression under section 101(1)(f).
Whether any trial error rendered the convictions unsafe.
Whether the sentence should have taken the applicant’s asserted good character into account.

Summary of the Judgment

The Court of Appeal granted leave to appeal against conviction but dismissed the appeal, holding that the convictions are safe. It accepted that the trial judge fell into error by prohibiting the applicant from giving evidence asserting good character (a defendant is ordinarily entitled to do so). However, had she done so, the prosecution would have been permitted to rebut that false impression by adducing the Portuguese materials as hearsay under the Criminal Justice Act 2003, and the jury would very likely have been sure that the applicant had been convicted in Portugal of deception. Further, the Court held that the trial evidence against the applicant was (even aside from character) overwhelming.

On sentence, the Court refused leave. It held that the judge was not obliged to proceed on the basis of good character and, even if the applicant had been of previously good character, the total sentence was not manifestly excessive.

Factual Background (in brief)

The two counts concerned separate victims:

The “Bye” count (April 2018): The prosecution alleged that the applicant falsely held herself out as a barrister and extracted urgent payments (£14,340, then a stopped further £6,550) from a 71‑year‑old architect, purportedly to secure immediate legal steps to protect his daughter in family proceedings and prevent contact with an imprisoned spouse. The defence denied she posed as a barrister, portraying herself instead as a mere intermediary.
The “Kaur” count (November 2022): While on bail, the applicant (a regional manager) allegedly told a care worker that the police were about to arrest her for alleged theft, her children would be taken into care, and that she must transfer her money to the applicant for safekeeping; she again invoked being a barrister. The defence said the fraud was fabricated and the money was a loan.

Procedurally, two digital case files were never combined; one file showed a clean UK PNC, the other contained Portuguese records in the applicant’s name and DOB, and later a photograph, but those documents did not comply with the technical authentication route under section 7 of the Evidence Act 1851.

Key Issues on Appeal

Good character: Could the judge refuse to give a good character direction and, more starkly, prohibit the defendant from saying she was of good character?
Proof of foreign convictions post‑Brexit: With sections 73 and 74 of PACE no longer covering EU Member State convictions, can a foreign conviction be proved by hearsay under the Criminal Justice Act 2003 to correct a false impression if section 7 of the 1851 Act is not satisfied?
Safety of the conviction and impact on sentence.

Detailed Analysis

1) Statutory framework and its post‑Brexit landscape

The Court canvassed the changed statutory environment:

Police and Criminal Evidence Act 1984, sections 73 and 74: After EU exit, these no longer apply to convictions from “any other Member State”. They remain relevant to UK and service court convictions.
Evidence Act 1851, section 7: Provides a permissive mechanism for proving “judicial proceedings” of a foreign court by authenticated or examined copy (e.g., bearing the court seal or judge’s signature). Crucially, section 7 is not exclusive; it is one way, not the only way, to prove a foreign conviction. Identity must still be proved by admissible evidence linking the defendant to the foreign judgment (R v Mauricia [2002] EWCA Crim 676).
Criminal Justice Act 2003:
- Section 101(1)(f) permits bad character evidence “to correct a false impression” given by the defendant.
- Section 114(1)(d) allows hearsay where “in the interests of justice,” considering the statutory factors.
- Section 117 allows hearsay admission of business records.
The Court confirmed that foreign conviction documents can, in principle, be admitted as hearsay under these provisions to rebut an asserted good character, subject to identity being properly established.

2) Good character directions: the governing principles

The Court drew on the established authorities:

R v Hunter [2015] EWCA Crim 631 (special constitution) synthesised Vye and Aziz and emphasised:
- Good character directions have two limbs: credibility and propensity.
- There is a residual discretion to refuse a good character direction where it would be an “insult to common sense” or misleading.
- A jury must not be misled; judges should avoid absurd or meaningless directions.
R v Burns [2006] EWCA Crim 617: When the existence of prior misconduct or convictions is disputed, evidence must be called and the jury decide whether they are sure the previous conviction occurred. The Crown Court Compendium reflects that approach: if the jury is sure, a bad character direction is given; if not sure, the evidence is disregarded and an appropriate good character direction is given.

This case adds a clear procedural corollary: as a matter of principle, a defendant is generally entitled to give evidence asserting good character even if the prosecution holds information to the contrary. Any prohibition will be exceptional and rare, and must be justified by compelling case management necessity. A court must not pre‑emptively foreclose a defendant’s ability to testify to her character because the prosecution’s material is not yet in admissible form. The jury’s task will depend on what evidence is actually adduced.

3) Precedents cited and their influence on the decision

R v Hunter [2015] EWCA Crim 631; R v Vye; R v Aziz:
Hunter re‑affirmed that good character directions are not automatic, must not mislead, and can be withheld or modified when necessary. In Goncalves, the Court held that, at the initial stage of the trial, the judge was entitled to withhold a good character direction to avoid misleading the jury, given the strong (albeit then technically inadmissible) Portuguese material.
R v Mauricia [2002] EWCA Crim 676:
Mauricia establishes that proof of the fact of a foreign conviction and proof of identity can be by “any admissible evidence,” with fingerprint evidence being the “most sensible way.” Goncalves extends this by clarifying that section 7 of the 1851 Act is permissive and non‑exhaustive; other routes, including hearsay, are available, particularly where the defendant triggers the false‑impression gateway.
R v Burns [2006] EWCA Crim 617 and Crown Court Compendium:
Burns supports the approach that if the prior conviction is disputed, the jury must determine whether it is proved. Goncalves aligns with that, but also explains how, procedurally, the Crown can get material before the jury (via hearsay) where section 7 is not met, if the defendant puts her own good character in issue.

4) The Court’s legal reasoning

The Court’s reasoning unfolds in several steps:

Withholding a good character direction at the outset: The judge was entitled to be concerned that a full good character direction would mislead, given the Portuguese records (including name, date of birth, and a photograph later appearing to match the applicant). The Court endorsed the principle that a judge is not obliged to commit to a direction before evidence is adduced and must avoid misleading or meaningless directions.
Error in prohibiting the defendant’s testimony on character: The core error was to forbid the defendant from saying she had no prior convictions or was of good character. The Court emphasised that a defendant is in principle entitled to give such evidence. Exceptional case‑management circumstances might justify restriction, but “such circumstances will be very rare.”
Rebuttal via hearsay under CJA 2003 if a false impression is created: Had the defendant asserted good character, the prosecution could have sought to admit the Portuguese materials as hearsay to correct a false impression under section 101(1)(f). The Court accepted that the documents could have been admitted under section 114(1)(d) (interests of justice) or section 117 (business records), subject to identity proof. It noted two contextual factors strengthening admission in the interests of justice:
- The defence’s clear denial that the Portuguese conviction related to the applicant emerged late during the trial.
- The prosecution were not seeking to rely on bad character in their primary case but to respond to the defendant’s asserted good character.
Non‑collateral status and cross‑examination: Once the defendant puts character in issue, cross‑examination is not confined to the witness’s answers on a purely collateral issue of credit; the prosecution is not bound by the defendant’s denials and may seek to prove the contrary by admissible evidence.
Likely effect on the trial: The Court found that, in reality, if the defendant had been permitted to assert good character, the Crown would have successfully admitted the Portuguese materials as hearsay, the jury would likely have been sure that the deception conviction related to the applicant, and the resulting bad character evidence would have further supported the Crown’s case.
Safety of the convictions: Even if a full good character direction had been warranted, the Court considered the case against the applicant overwhelming on the facts, making the convictions safe in any event.

5) Sentencing

The judge treated the Portuguese deception conviction as too old to aggravate but nonetheless did not sentence on the basis that the applicant was of good character. The Court upheld that approach. It added that even if the applicant were of previous good character, any further reduction would have been modest and the total sentence (two years’ consecutive to one year) could not be deemed manifestly excessive. Totality and guideline application were appropriately considered.

Complex concepts simplified

Good character direction: A judge’s instruction to the jury that a defendant with no prior convictions or other established reprehensible conduct may be more credible (credibility limb) and less likely to have offended (propensity limb). It can be withheld or modified if it would mislead, for example where credible evidence suggests undisclosed prior dishonesty.
Bad character evidence: Evidence of misconduct other than the facts of the current offence. Under section 101 of the Criminal Justice Act 2003, it is admissible through specified “gateways,” including to correct a false impression created by the defendant (s101(1)(f)).
False impression gateway (s101(1)(f) CJA 2003): If a defendant asserts something about their character that is misleading (e.g., claiming to be of good character when they have a prior dishonesty conviction), the prosecution may adduce otherwise inadmissible bad character evidence to correct that impression.
Hearsay admission (CJA 2003, s114(1)(d) and s117): Documents and statements made out of court can be admitted if it is in the interests of justice (s114(1)(d)), considering reliability factors, or if they qualify as business records (s117). These routes can apply to foreign conviction records where the section 7 Evidence Act 1851 route is not available or not met.
Proof of identity for foreign convictions: It is not enough to show a foreign conviction exists; the prosecution must prove the person convicted is the defendant. This can be done by any admissible evidence (e.g., fingerprints, photographs, distinctive personal details, official records), subject to reliability and fairness.
“Collateral issue” and cross‑examination: Some topics affect credibility only and cannot be pursued beyond a witness’s answers. But when a defendant opens the door by asserting good character, the prosecution can adduce evidence in rebuttal and is not limited to the defendant’s answers.
Totality principle in sentencing: When imposing sentences for multiple offences, the court assesses overall criminality to ensure the aggregate sentence is just and proportionate, adjusting consecutive/concurrent terms accordingly.

Practical implications and impact

A. The new clarifications/benchmarks

Defendant’s right to assert good character: The Court sets a strong default rule that a defendant may testify to good character even if the Crown has contrary information not yet in admissible form. Judicial prohibition will be exceptional.
Non‑exclusivity of section 7 (Evidence Act 1851): Post‑Brexit, while section 7 remains a recognised route, it is not the only way to prove foreign convictions. Hearsay routes under the CJA 2003 are available—especially under the false impression gateway—subject to careful judicial scrutiny of identity and reliability.
Case management when foreign convictions are disputed: If the defendant asserts good character and disputes a foreign conviction, the prosecution may properly seek to adduce certified documents or hearsay materials, with the judge then giving a Burns‑style direction leaving the issue to the jury. This recalibrates trial practice where EU convictions were once more straightforwardly proved under PACE.

B. Guidance for trial judges

Early indication but avoid pre‑emptive commitment: At the start of a trial, if there is credible information of a foreign conviction but no admissible proof yet, the judge may indicate that a full good character direction might mislead. However, do not prohibit the defendant from asserting good character.
If the defendant asserts good character:
- Permit cross‑examination. If the defendant denies the foreign conviction, the Crown may apply under section 101(1)(f) CJA 2003 to correct a false impression.
- Consider hearsay admission under sections 114(1)(d) or 117 for the foreign documents. Scrutinise reliability, the circumstances in which the documents were created, and identity evidence linking the defendant to the conviction. Keep PACE section 78 fairness in mind.
- If the hearsay is admitted, direct the jury on how to evaluate it and on the bad character use (limited support for propensity/credibility as appropriate).
- If the jury is not sure the conviction is proved, they must disregard it and the judge should consider an appropriate good character direction.
Avoid misleading “modified” directions: Directions framed as “no convictions in this country” may invite prejudicial speculation. Use them only where they assist rather than mislead, and when consistent with fairness.
Keep a clear record: Where hearsay is admitted to rebut a false impression, record reasons addressing the section 114(2) factors, section 117 where applicable, identity proof, timing (including late defence denials), and overall fairness.

C. Implications for prosecutors

Prepare dual routes to proof: Seek authenticated copies satisfying section 7 of the 1851 Act where feasible. In parallel, be ready to justify hearsay admission under sections 114(1)(d)/117 with robust reliability and identity evidence.
False impression gateway: If the defence signals an intention to rely on good character, assemble applications under section 101(1)(f) and have cogent identity linkage (e.g., matching DOB, address, photos, official correspondence).
Timing and fairness: The Court viewed late defence denials as a factor supporting hearsay admission in the interests of justice, particularly where the Crown is responding rather than ambushing with bad character.

D. Implications for defence practitioners

Be precise in Defence Statements: If foreign convictions are disputed, say so early and clearly. Late denials can tilt the section 114(1)(d) balance towards admission against you.
Weigh the risks of asserting “good character”: If the prosecution holds detailed foreign records, asserting good character may open the section 101(1)(f) door. Consider whether silence on character is tactically preferable.
Challenge identity and reliability: If the Crown moves to adduce foreign conviction documents, contest identity proof, the reliability of the records, and invite a PACE section 78 exclusion where appropriate. If the jury is left in doubt, you preserve the benefit of a good character direction.

How this decision shifts or clarifies the law

Confirms that section 7 of the Evidence Act 1851 is permissive, not exclusive: It is a recognised, but not the only, pathway to proving foreign convictions.
Endorses the use of CJA 2003 hearsay routes to prove the fact of a foreign conviction and identity, particularly when deployed to correct a false impression (s101(1)(f)), with s114(1)(d) and/or s117 as the admission gateways.
Clarifies the defendant’s entitlement to assert good character: Judicial prohibitions will be rare; the proper remedy for the Crown is evidential (rebuttal), not gagging.
Re‑emphasises that good character directions are not automatic, especially where they risk misleading the jury; direction is a function of the evidence that is actually adduced.

Conclusion

R v Goncalves is a significant post‑Brexit decision at the intersection of character evidence and proof of foreign convictions. Its twin pillars are clear:

A defendant is, as a matter of principle, entitled to give evidence asserting good character, even where the prosecution holds contrary information not yet in admissible form. Any prohibition on such evidence will be exceptional and must be justified by genuine case‑management necessity.
Section 7 of the Evidence Act 1851 does not monopolise the proof of foreign convictions. Where a defendant creates a false impression of good character, the prosecution may adduce foreign conviction materials as hearsay under the Criminal Justice Act 2003 (s114(1)(d)/s117), through the s101(1)(f) gateway, provided identity is properly established and the interests of justice support admission.

Applying those principles, although the trial judge erred by forbidding the applicant from asserting good character, the Court of Appeal concluded that the convictions were safe: had the applicant made the assertion, the Crown would have been entitled to rebut it with the Portuguese materials, and the trial evidence was, in any event, overwhelming. The sentencing appeal likewise failed.

The decision supplies a practical blueprint for trial management in cases engaging disputed foreign convictions. It guides prosecutors to prepare alternative proof routes and instructs judges to calibrate directions to the evidential reality, while reaffirming the defendant’s core right to speak to her character. In doing so, Goncalves fills a post‑Brexit gap with workable, principled solutions anchored in the CJA 2003 framework.

Key takeaways

Do not prohibit a defendant from asserting good character save in truly exceptional circumstances.
Good character directions are not automatic; avoid misleading or speculative directions.
Section 7 of the 1851 Act is a permissive, not exclusive, route to proving foreign convictions.
Hearsay admission under CJA 2003 (s114(1)(d)/s117) can prove foreign convictions and identity to rebut a false impression (s101(1)(f)).
When prior misconduct is disputed, the jury decides; if not sure, disregard and consider good character direction; if sure, treat as bad character with appropriate directions.
Early, clear Defence Statements on disputed foreign convictions matter to the interests‑of‑justice balance.
On sentence, previous good character would have limited impact where offending is serious and persistent; totality remains key.