Stewart, R. v [1998] EWCA Crim 3398

EWCA-Crim
Stewart, R. v
[1998] EWCA Crim 3398 · 1998-11-27
Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 180 Fleet Street, London EC4A 2HD Tel No: 0171 421 4040 Fax No: 0171 831 8838 (Official Shorthand Writers to the Court)MR M TOMASSI appeared on behalf of the Appellant MR S DRAYCOTT appeared on behalf of the Crown

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LORD JUSTICE KENNEDY: On 12th March 1998, in the Crown Court at Northampton, this appellant was convicted of six offences, one offence of kidnapping, three offences of robbery, one offence of attempted robbery and one offence of threatening to kill. He was sentenced to a total of 6 years' imprisonment. He now appeals against conviction by leave of the Single Judge.

In October 1997, JD, who lived in Farringdon, was a former client of a Swindon prostitute named HM, a woman of 27 years of age. On 3rd October 1997 JD arrived home at about 4.20 am. Shortly afterwards HM knocked on his door, apparently seeking help. There was, it seems, a video film which JD had taken of HM having sexual intercourse with a friend of his and she said it had got into the "wrong hands". There was another knock and this appellant, Gordon Michael Stewart, appeared. There were, according to the prosecution, then threats made to JD or his son; an indication that the son would be killed or seriously injured if JD did not comply with the demands of those who were there. His understanding was that the demands were for money. He produced £140 from his wallet. It was stuffed for a short time into his mouth. There was talk of killing him. The episode ended by, according to him, he being taken off in his car and forced to withdraw cash from cash points. Those withdrawals constituted the offences of robbery and in respect of one attempted withdrawal, where no cash was forthcoming, the offence of attempted robbery. The conducting him away in the car was the offence of kidnapping. He was, he said, threatened with being killed, and that was the offence of threatening to kill.He ended up in Bristol. He managed there to give the slip to this appellant, and to make his position known to the police. On 9th October 1997, the appellant was arrested. He said:
"I'm not having any pervert blackmailing my girlfriend, I should have battered him."
His defence at trial was that he was collecting a debt from a customer, and that the complainant handed over the money voluntarily, and went with him and HM entirely voluntarily.The slight difficulty about that was that on 19th December 1997 HM had pleaded guilty to the five counts in the indictment which concerned her. She was not involved in the count which alleged threatening to kill.In those circumstances, the prosecution invited the attention of the trial judge to section 74 of the Police and Criminal Evidence Act and sought leave to adduce the evidence of her plea in front of the jury. Section 74(1) reads thus:
"In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom or by a Service court outside the United Kingdom shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given."
It is said, on behalf of the prosecution, that the issue was plain. The issue which the prosecution needed to prove by resort to her pleas was that a robbery, indeed several robberies, and an attempted robbery had taken place, and that a kidnapping had taken place, and that her pleas were probative of those matters.A difficulty from Mr Tomassi's point of view was that the defence which his client wished to put forward was that no such offences had been committed. He submitted that to admit the pleas of HM would really be to determine the case against his client. He invited the Court to have regard to the provisions of section 78(1) of the 1984 Act which provides:
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given, if it appears to the court that having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings, that the court ought not to admit it."
Certainly, the provisions of section 78 do have to be borne in mind when an application is made to take advantage of the provisions of section 74.Furthermore, it was made clear by Lord Lane CJ in R v Robertson and Golder 1987 QB 920, that section 74 is a provision to be used sparingly. But it can, and indeed should be used in a proper case. Recently inR v Mahmood and Mansoor the Court set out the propositions to which any judge, faced with an application under section 74, should have regard. They are listed in that case at page 417 thus:
"The conviction must be clearly relevant to an issue in the case;
(ii) section 74 should be used sparingly;(iii) the judge should consider section 78 and whether the probative value of the convictions outweighs the prejudicial value."With respect to the Court in Mahmood and Mansoor , it seems to us preferable to adhere to the words of section 78, that is to say to consider whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.Fourthly, the judge must direct the jury clearly as to the issues to which the conviction is not relevant and also why the evidence is before them and to what issue it is directed.In this case, Mr Draycott submits that all of those requirements were satisfied. The conviction was clearly relevant to an issue in the case, as indeedMr Tomassi concedes.The issue could be defined in another way; it could be said that the real issue here was whether the complainant was acting under duress or voluntarily and, of course, the convictions were relevant to the issue thus expressed.It was recognised by the trial judge that section 74 should be used only sparingly. It was recognised that he had to have regard to the discretionary power granted to him by section 78, and when he came to direct the jury, he directed the jury thus:
"...the second question concerns HM's known pleas of guilty to charges 1 to 5. Now, her pleas explain why she is not up in front of you. A jury verdict is not required in the English criminal law system if an accused tells the judge that he or she is guilty. What else does it show? Well, it also shows that HM for her part admits that the charges against her (my emphasis) were true, and it follows that she is not saying JD consented to leave his home and give over his money, but what it does not show in any way is that this accused in your charge is guilty of any of the charges. Just as any charge is separate, as I told you at the beginning, her case is separate from this accused."
Thus, as it seems to us, the learned judge, in clear terms, spelt out for the jury the issues which the conviction was not relevant, as well as the way in which the knowledge could be of assistance to them.In those circumstances, what really is left of this challenge to his decision? In our judgment, in order to show that the decision of the learned judge was wrong, Mr Tomassi would have to demonstrate to us that, in the exercise of a discretionary power granted to the judge by section 78, the decision at which he arrived was a wholly unreasonable one, one at which no tribunal, properly instructing itself, could have arrived.We are quite unable to come to that conclusion. It seems to us that this was a case in which the judge was entirely within the parameters of the section to decide as he did. The fact that having decided as he did, his decision placed the defendant in difficulty, is neither here nor there. The Crown was entitled to have resort to the pleas of HM in order to demonstrate that a robbery, in fact several robberies, and an attempted robbery and a kidnapping had taken place. The defendant's misfortune was that his particular defence was that no such offences had been committed. But that does not, for a moment, mean that in the context of section 78, because that evidence was admitted before the jury, it had such an adverse effect on the fairness of the proceedings that the court ought not to admit it. As has been said on many occasions, the fairness of the proceedings in the context of section 78, must have regard not only to the interests of a particular defendant, but also the interests of the prosecution and the interests of justice as a whole.This appeal, therefore, is dismissed.

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