Highton & Ors, R v [2005] EWCA Crim 1985

Case No 200501806/C1, 200501360/D3, 200500995/B1[2005] EWCA Crim 1985
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
(1) His Honour Judge Morton Jack at the Oxford Crown Court
Venue (2) His Honour Judge Ensor at the Manchester Crown Court
(3) Recorder Marston at the Taunton Crown Court
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 28 July 2005
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE MOORE-BICKMR JUSTICE RICHARDS
Between
RCrown(1) Edward Paul HightonDefendant(2) Dong Van NguyenDefendant(3) Anthony Mark CarpDefendant
Mr Peter Du Feu for Appellant HightonMiss Fiona Horlick for Respondent in HightonMr Michael Goldwater for Appellant Van NguyenMr William Baker for Respondent in Van NguyenMr Terry Munyard for Appellant CarpMr Peter Ashman appeared for Respondent in Carp
JudgmentLord Woolf:This is the judgment of the Court:THE GENERAL POSITION
[1]We are hearing these three appeals together because they each concern the bad character provisions contained in the Criminal Justice Act 2003 (the “2003 Act”), Part XI, Chapter 1, sections 98-113. There are already 3 previous decisions of this Court dealing with these provisions. The cases are those of R v Hansen [2005] EWCA Crim 824, R v Bovell & Dowdes [2005] EWCA Crim 1091 and R v Edwards, Fysh, Duggen and Chohan [2005] EWCA Crim 1813. The principal issue which arises on these appeals is whether evidence admitted under s.101(1)(g) as a result of an attack by the defendant on another person’s character is admissible as evidence of a propensity to commit offences of the kind with which the defendant is charged, or is only admissible in relation to his credibility, that is, as evidence tending to show that he is likely to be untruthful. That issue did not arise in those earlier appeals and this judgment is the first judgment relating to it.[2]The issue arises because s.101 of the 2003 Act identifies 7 different gateways, at least one of which must be complied with before evidence of a defendant’s bad character is admissible in criminal proceedings. However, the 2003 Act does not expressly identify the purpose for which the bad character evidence can be used if it passes through one of those gateways and is therefore admissible. Two different interpretations are contended for by counsel appearing for the appellants and the Crown. The appellants contend that the purposes for which admissible evidence of bad character can be used are confined by the terms of the gateway through which the evidence is admitted. The Crown, on the other hand, contends that once the evidence becomes admissible by passing through any gateway, it can be used for any purpose for which bad character evidence is relevant in the particular case.[3]The dimensions of the issue are apparent when the relevant provisions of the sections of the 2003 Act are considered. They start with s.101(1) itself. “101 Defendant’s bad character(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person’s character.(2) Sections 102 to 106 contain provisions supplementing subsection (1).(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that 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.(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.” (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person’s character. (2) Sections 102 to 106 contain provisions supplementing subsection (1). (3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that 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. (4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.”[4]The meaning of the words “the defendant’s bad character” is dealt with in s.98 which provides: “98 “Bad character” References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –(a) has to do with the alleged facts of the offence with which the defendant is charged, or(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.” The interpretation section, s.112, provides: (1). In this Chapter: 6. “bad character” is to be read in accordance with s.98; 7. “criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply; and 8. “misconduct” means the commission of an offence or other reprehensible behaviour. S.99 abolishes the common law rules governing the admissibility of evidence of bad character in criminal proceedings but the abolition is subject to s.118 (1), in so far as it preserves the rules under which, in criminal proceedings, a person’s reputation is admissible for the purposes of good or bad character.[5]It is next necessary to refer to s.102 which is linked to s.101(1)(c). S.102 provides: “For the purposes of section 101(1)(c) evidence is important explanatory evidence if-(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and(b) its value for understanding the case as a whole is substantial. (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial.[6]Next, we come to s.103 which played a significant part in the argument.

(d) It reads:

“(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include- (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect. (2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of- (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason that it would be unjust for it to apply in his case. (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect. (2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of- (a) an offence of the same description as the one with which he is charged, or (b) an offence of the same category as the one with which he is charged. (3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason that it would be unjust for it to apply in his case. (a). two offences are of the same description as each other if the statement of the offence in a written charge or indictment would, in each case, be in the same terms; (b). two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State. (5) A category prescribed by an order under subsection (4)(b) must consist of offences of the same type.

(d) ”

[7]Section 104 deals with matters in issue between the defendant and co-defendant (dealt with in s.101(1)(e)). Section 105 deals with evidence to correct a false impression (dealt with in s.101(1)(f)) and s.106 deals with attacks on another person’s character (dealt within s.101(1)(g)). These sections did not feature in argument and it is not necessary to refer to them further.[8]If, however, we return to s.103(1), it is to be noted that it deals with propensity. The argument before us was as follows: as subsection 101(1)(d) is the only gateway that is referred to in s.103(1), the reference it contains to propensity makes it clear that it is only if the evidence is admitted under s.101(d) that bad character evidence can be used to show a propensity on the part of the defendant to commit the offences of which he is charged or a propensity to be untruthful.[9]In our view, however, the force of this argument is diminished for a number of reasons. First, s.103(1) prefaces s.103(1)(a) and (b) with the word “include”. This indicates that the matters in issue may extend beyond the two areas mentioned in this sub-section. More importantly, while this argument can be advanced in relation to s.101 (d), it can also be advanced in respect of the other parts of sub-section (1), in particular in relation to s.101(1)(a) and (b). In addition, s.101(1) itself states that it is dealing with the question of admissibility and makes no reference to the effect that admissible evidence as to bad character is to have. We also consider that the width of the definition in s.98 of what is evidence as to bad character suggests that, wherever such evidence is admitted, it can be admitted for any purpose for which it is relevant in the case in which it is being admitted.[10]We therefore conclude that a distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted. It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted. That is not true, however, of all the gateways. In the case of gateway (g), for example, admissibility depends on the defendant having made an attack on another person’s character, but once the evidence is admitted, it may, depending on the particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged.[11]This approach underlines the importance of the guidance that was given in the case of Hanson and others as to the care that the judge must exercise to give the jury appropriate warnings when summing up. (We refer in particular to para 18 of that judgment and para 3 of the judgment of Edwards and its commendation of the summing up of Judge Mort in the case of Chohan). In Edwards The Vice-President, Lord Justice Rose said: “What the summing up must contain is a clear warning to the jury against placing undue reliance on previous convictions, which cannot, by themselves, prove guilt. It should be explained why the jury has heard the evidence and the ways in which it is relevant to and may help their decision. Bearing in mind that relevance willdepend primarily, though not always exclusively, on the gateway in s.101(1) of the Criminal Justice Act 2003, through which the evidence has been admitted. For example, some evidence admitted through gateway (g), because of an attack on another person’s character, may be relevant or irrelevant to propensity, so as to require a direction on this aspect.” (para 3) (emphasis added)[12]Protection is also provided for the defendant at the stage of admissibility by the terms of s.101(3) if the admission of the evidence could cause unfairness, and by the reference in s.103(3) to convictions which it would be unjust to admit as evidence of a propensity to commit offences of the kind with which he is charged because the Court is satisfied, “by the reason of the length of time since the conviction or for any other reason” that it would be unjust for sub-section 103(2) to apply. In this context, there is a very close relationship between the requirements of fairness and the general requirement of the rules of evidence that, unless evidence is relevant, it should not be admitted.[13]Those provisions protect against unfairness arising out of the admission of bad character evidence under s.101(1)(d) or (g). The question also arises as to whether reliance can be placed on s.78 of Police and Criminal Evidence Act 1984 (“PACE”). The application of s.78 does not call directly for decision in this case. We, therefore, do not propose to express any concluded view as to the relevance of s.78. However, it is right that we should say that, without having heard full argument, our inclination is to say that s.78 provides an additional protection to a defendant. In light of this preliminary view as to the effect of s.78 of PACE, judges may consider that it is a sensible precaution, when making rulings as to the use of evidence of bad character, to apply the provisions of s.78 and exclude evidence where it would be appropriate to do so under section s.78, pending a definitive ruling to the contrary. Adopting this course will avoid any risk of injustice to the defendant.[14]In addition, as s.78 serves a very similar purpose to Article 6 of the European Convention on Human Rights, following the course we have recommended should avoid any risk of the court failing to comply with Article 6. To apply s.78 should also be consistent with the result to which the court would come if it complied with its obligation under s.3 of the Human Rights Act 1998 to construe sections 101 and 103 of the 2003 Act in accordance with the Convention. THE APPEAL OF HIGHTON The Facts

THE APPEAL OF HIGHTON

[15]Having given this general guidance, we turn to the appeal of Edward Paul Highton (“Highton”). Highton is now 24 years of age. On 28 February 2005, at Oxford Crown Court, he was unanimously convicted of two counts of kidnapping, two offences of robbery and one count of theft. He was sentenced to four and a half years’ imprisonment on each count to run concurrently. Highton’s application for leave to appeal against conviction was referred directly to this Court by the Registrar. We give Highton leave to appeal. Highton had a co-accused, Dean Wilson. He was also convicted of the counts on which Highton was convicted. In addition, he pleaded guilty to a separate offence of theft. He received a total of six and a half years’ imprisonment.[16]The prosecution’s case was that on 29 September 2004, the two victims, Stephen Duckett and Alan McPherson, were kidnapped by Dean Wilson in Milton Keynes and forced to drive to Highton’s house in Oxford. At that house, they were robbed at knife-point and thereafter, taken to a cash point where Highton withdrew and stole £330 from Duckett’s account. It was said by the Crown that Highton and Wilson were engaged in a joint enterprise.[17]The defence’s case was that the two victims went to Oxford voluntarily to buy drugs. Neither the robberies nor the kidnapping took place, and the cash was stolen by the dealer from whom the victims were trying to buy the drugs. They said that the victims had originally lied to the Police in their statements, stating that Highton had been present in Milton Keynes at the alleged kidnapping, which they stated was at random by two strangers. Not surprisingly in these circumstances the credibility both of the defendants and of the complainants, that is to say who was speaking the truth, was one of the main issues at the trial.[18]Wilson and Highton both had previous convictions, details of which were allowed to go before the jury. Wilson had convictions for various offences of dishonesty and for offences of violence, including convictions for two robberies in 2002. Highton also had convictions for offences of dishonesty and for offences of violence, including four offences of assault occasioning actual bodily harm, one of causing grievous bodily harm, two relating to the possession of offensive weapons, and one of affray, all in the period 1998 to 2004.[19]The grounds of appeal were: a) that the judge wrongly admitted the appellant’s previous convictions under s.101(g) of the 2003 Act. b) that he also wrongly directed the jury as to the significance of the appellant’s conviction in relation to the issue of propensity.

Our Conclusions

[20]There was no answer to the contention that this was a case that fell within s.101(1)(g). Mr Du Feu based his argument upon s.101(3). He argued that the judge should exclude evidence as to Highton’s previous convictions as a matter of discretion under that subsection. Against the co defendant, Wilson, the prosecution also relied on s.101(1)(d). S.101(1)(d) was never clearly relied upon by the prosecution against Highton. Furthermore, at the end of the argument, Judge Jack said with regard to Highton “he is not at risk from a propensity argument”.[21]However, when the judge came to sum up, he unfortunately does not appear to have recalled his exchange with Mr Du Feu, since when dealing with the evidence as to bad character he told the jury:
“Well, plainly that is a substantial attack on the prosecution witnesses’ character, and in those circumstances, the law says that it is only right that you should hear what character those who are making such an attack bear. But you also heard about their characters because it may help you to resolve an issue in the case, which is this: the prosecution argue that the defendants have a propensity to commit offences of the sort that you are considering. You may therefore use the evidence of the defendant’s bad character in relation to those two matters which explains why you have heard about it, but only if you find it helpful to do so.”
[22]The evidence having been properly admitted through the s.101(1)(g) gateway, for the reasons we have explained, it can be, in the appropriate circumstances, relied upon as evidence of a propensity to commit offences of the kind with which the defendant is charged as well as as evidence going to the defendant’s credibility. However, in the course of the exchange which took place between the judge and Mr Du Feu during argument, the judge led counsel and the appellant to believe that he would not direct the jury that they could take his previous convictions into account when deciding whether he was guilty of the offences with which he was charged. In those circumstances, the judge was in error in summing up in the terms that he did.[23]This was not a case where the judge was required to exclude the previous convictions under s.101(3). Mr Du Feu candidly acknowledged that he did not ask the judge to exclude the evidence, but any such application would have been doomed to fail. It may be worth pointing out, however, that the exclusion of evidence under the provisions of section 101(3) depends on there being an application by the defendant. If no such application is made, no criticism can be made of the judge for failing to act of his own motion under this section.[24]The appellant’s previous convictions, which included convictions for offences of violence and for the possession of offensive weapons, did provide evidence of a propensity to commit offences of the kind with which he was charged. In addition, the judge did direct the jury carefully as to the limits of the value of character evidence. In the result, therefore, we have come to the conclusion that, while the judge did make the error that we have identified in this summing up, the error was not such as to make the verdicts of the jury unsafe. Accordingly, Highton’s appeal is dismissed. The Appeal of Dong Van-Nguyen The Background to The Appeal

The Appeal of Dong Van-Nguyen

[25]On 16 February 2005, at the Crown Court of Manchester before His Honour Judge Ensor, Dong Van-Nguyen was convicted of cultivating a controlled drug, namely a plant of the genus cannabis. He was sentenced to 30 months’ imprisonment. In addition, an order was made for the forfeiture and the destruction of the cannabis. We gave Mr Van Nguyen leave to appeal, his application for leave having been referred to the Court by the Registrar.[26]Mr Van Nguyen was jointly indicted with his brother. The brother pleaded guilty to the same offence.[27]19 Halliwell Street West, in Manchester, is the property of a Housing Association. The tenancy was in the name of the appellant’s father, who had become a tenant on 15 April 2004.[28]On 15 May 2004, the appellant had a visit from a Police Constable Ludlow who was investigating the appellant’s complaint of having had £10 stolen in a public lavatory. The police constable did not enter the premises but spoke to the appellant on the doorstep.[29]On 11 August 2004, the police called again at the premises. On this occasion, it was to search for a wanted man who used to live at the premises. The reason for the visit was unconnected with this appeal. When the police arrived, they saw the appellant run upstairs to the loft. He remained there until he was approached by officers.[30]Upon entry into the house, the police found a large quantity of cannabis and other material. They also found a total of 193 cannabis plants in various stages of maturity. A large number were little more than seedlings, but there were 85 large mature plants which the police estimated would have yielded 1.3 kg of cannabis at a value of between £3,800 and £6,400 pounds. The plants were in the dining room and in one of the upstairs bedrooms. These rooms had been converted into growing rooms and had been fitted with lighting, heating equipment, fans, silver foil and various electrical equipment. In addition, two empty containers of methadone were found. But fingerprints of the appellant were not found on any of the cannabis plants or the equipment used in the cultivation process. Fingerprints of the appellant’s brother were, however, found. It was the appellant’s case that he had no knowledge that the plants were cannabis plants, he was not involved in the cultivation and he had been living in the premises for only 3 weeks. However, in the circumstances, he could hardly deny he was aware that plants that were controlled drugs were being grown in the premises and did not do so. This meant that the only live issue in the cases was whether the appellant was engaged in the cultivation of the plants. Was this joint enterprise or was it solely the activity of the brother?[31]At the outset of the trial, Mr Goldwater, who appeared on behalf of the appellant, made an application to His Honour Judge Ensor, the trial judge, to exclude from the evidence evidence of an interview which had taken place between the appellant and the police. This was evidence that indicated that he took heroin and used methadone. Mr Baker, on behalf of the prosecution, contended that the evidence was relevant and admissible at common law and admissible under the provisions of s.101(1)(d) of the 2003 Act. He argued that the important issue to which it was relevant, was whether the appellant knew that the plants were cannabis, and the fact that the appellant was very conversant with the drug scene made it more likely that he would know that they were cannabis. He contended that there was an obvious link between those who took drugs of any kind and those who took cannabis. The judge accepted the prosecution’s submissions and allowed the evidence to be given.[32]As a result of the evidence being admitted, during the course of the defendant’s cross examination, the prosecution suggested that his heroin addiction meant that he would be desperate for money to fund his habit and that was the reason for his becoming involved in the cultivation of cannabis.[33]In addition, the appellant had previous convictions consisting of 4 offences of shoplifting in 2001. The prosecution served notice to introduce these convictions under the provisions of s.101. The introduction was not resisted and in the event they were introduced by the appellant himself when he gave evidence. This was no doubt because the appellant wished to establish that he had no convictions for drug offences. However, the prosecution suggested that the shoplifting offences were carried out to fund his addiction. There was no evidence to support this assumption. There was no evidence, for example, that the goods which were stolen had a significant re-sale value.[34]The appellant was also cross-examined on the basis that his connections with drug dealers through his purchases of heroin would mean that he had ready means of access to persons who could dispose of the cannabis crop.[35]Finally, the prosecution relied on the complaint which the appellant made of being robbed of £10 and which resulted in Police Constable Ludlow making the initial call to the house. The prosecution alleged the robbery demonstrated that the defendant, at the time, had been trying to buy drugs in the toilet. This it was suggested, showed that he was the sort of person who did heroin deals in the lavatories of public houses and that the person from whom he was buying heroin could be the dealer in the cannabis that was being cultivated.[36]Mr Goldwater contended with some justification that, since the appellant accepted that he thought the plants were probably some form of controlled drug, the offence for which he was charged did not depend on it being established that he knew the drug that was being grown was cannabis. What was critical was that the appellant was engaged in the cultivation of cannabis.

The Summing up

[37]The very experienced trial judge summed up to the jury that they had to be satisfied that “cannabis was being cultivated, the defendant played a part in the cultivation and that he knew it was cannabis.” He also made it clear that the case for the prosecution was that this was a joint enterprise between the appellant and his brother. The judge also gave a perfectly adequate direction about the relevance of lies which the appellant had undoubtedly told.[38]Mr Goldwater’s complaint about the trial and the summing up following the initial ruling is that, because of the emphasis that was being placed upon the fact that the appellant was a heroin consumer, the real issue was being lost sight of. The issue was not whether he knew that the plants were cannabis but solely whether he was engaged in the cultivation of the plants which he accepted he appreciated were probably some form of drug. He submits accurately that the judge failed to give the jury any assistance as to how to approach the defendant’s admission that he was a heroin user, its relevance or the weight to be attached to it.

Conclusion

[39]In our view Mr Goldwater’s submission is well-founded. Once the appellant had admitted that he thought the plants were a controlled drug of some kind and thereby ruled out any possibility of a defence under s.28(3) of the Misuse of Drugs Act 1971, it did not matter for the purposes of proving the offences whether he knew they were cannabis. The only issue was whether he was involved in growing them and we do not think that any knowledge he might have had of the precise nature of the plants was likely to shed much light on that question. In our view, therefore, the judge was wrong to hold that the evidence was relevant to an important issue between the defendant and the prosecution so as to render it admissible under s.101(1)(d).[40]Another criticism that is made of the judge’s ruling was that he did not take into account s.101(3), namely the adverse affect on the fairness of the proceedings. By s.110 of the 2003 Act, the court must give reasons for any ruling on the admissibility of evidence under s.101 and on any application made under s.101(3) to exclude evidence on the grounds of unfairness. In the present case the judge’s ruling clearly dealt with the question of admissibility, but he made no mention of s.101(3) in the ruling, nor did he give any reasons for holding that it would not be unfair to admit it. However, it had been the subject of argument and we do not accept that the admission of evidence that the appellant was a heroin addict was unduly prejudicial, provided that the jury was given a proper direction about its place in the case as a whole. The judge may have been technically wrong to regard the situation as one where the evidence could be admitted under s.101(1)(d) as relating to an important matter in issue, but it certainly assisted in understanding the issues in the case.[41]There is the further problem that, having allowed the evidence of the appellant’s heroin addiction to be put before the jury, its relevance was not explained to the jury. In our judgment, there is force in Mr Goldwater’s submission that the fact that a person is addicted to heroin does not mean that he is more likely to recognise a cannabis plant than someone who is not addicted to heroin. More importantly, the fact that he is addicted and therefore a user of drugs in their processed form, is not evidence he was engaged in their cultivation or even that he has an enhanced ability to identify a particular controlled drug.[42]What is unfortunate about the trial is that once the evidence of the appellant’s heroin addiction was placed before the jury, it became the centre of focus of the trial. It was a major subject of cross-examination and played a disproportionate part in the trial, not least because of the nature of the cross-examination of the appellant when he gave evidence.[43]The fact was that the only evidence that the appellant was engaged in cultivation was that he lived in the house were cultivation was taking place and behaved as though he had something to hide when the police arrived at the house. Having regard to this, it was incumbent upon the judge to clearly explain to the jury that the appellant’s heroin addiction was no more than background to the offence alleged. A warning of its limited relevance did not appear in the summing up, which indeed contained no guidance on the use to which the evidence might be put. It should have done so because the focus of the trial was distorted as a result of the cross-examination which took place and the emphasis on the appellant’s addiction. Accordingly, we have come to the conclusion that this conviction is unsafe. The Appeal of Anthony Carp The Background

The Appeal of Anthony Carp

[44]On 9 February 2005 at the Crown Court at Taunton, Anthony Carp was convicted of 2 counts of common assault. He was sentenced in respect of the first assault to two months’ imprisonment suspended for 2 years and in relation to the second offence, he was sentenced to 4 months’ imprisonment, consecutive to the sentence on count 1, suspended for 2 years. He was also ordered to pay £400 towards the costs of the prosecution.

The Facts

[45]The victim of both assaults had cohabited with the appellant for many years. At the time of the two alleged incidents, and for some time previously, she and the appellant had been living together in the appellant’s house. There is no doubt that the relationship at times was stormy. The appellant had obtained an injunction against the complainant as he claimed that she had been violent towards him.[46]On New Year’s Eve 2003, the couple had an argument in a public house. They both made their separate ways home where the row continued. The complainant alleged that she was slapped by the appellant who also punched her in the face. This was the first assault. On 9 January 2004, there was another incident in the home in which the complainant alleged that she had been assaulted by the appellant who had punched her in the face. On both occasions, the complainant had been drinking.[47]It was the appellant’s case that he had acted in self defence.[48]At the start of the prosecution’s evidence, the defence applied under s.100 of the 2003 Act to cross-examine the complainant about her violent background. The Recorder granted the application. At the commencement of the appellant’s case, the Recorder also ruled that a number of the previous convictions of the appellant could be admitted in evidence under s.101(1)(g). They included a number of offences of violence (including wounding with intent, assault occasioning actual bodily harm, and assault on a police officer) in the period 1982 to 1993; offences of theft, handling and deception dealt with in 1993; and two drink-related driving offences (failing to provide a specimen, and driving with excess alcohol) in 2000 and 2004[49]In his evidence, the appellant admitted that he had been a tearaway in the past but he did not attack women. A baby-sitter who was regularly employed by the complainant and the appellant gave supporting evidence of an incident in September 2003. On that occasion the complainant had returned home very drunk. She abused the appellant and physically assaulted him by hitting him on the head with a cordless phone and slapping him.[50]The appellant now appeals against his conviction by leave of the single judge. In support of the appeal, he relies on 3 grounds: i) that evidence of the convictions admitted under the s.101(1)(g) is relevant only in relation to credibility, as would have been permissible if the case were being determined under the old law. ii) that if evidence of previous convictions admitted under s.101(1)(g) can be relevant to propensity in either sense, the judge should not have admitted evidence of the convictions for theft and deception; iii) the Recorder failed properly to direct the jury as to the relevance of previous convictions or to warn them of the dangers of placing too much reliance on them.[51]At the start of the presentation of the case for the prosecution, counsel for the defence applied under s.100 of the 2003 Act to cross-examine the complainant about her violent background. That background included a significant psychiatric history, incidents of self-harm, at least one incident of violence towards the appellant and the grant of an injunction restraining the complainant from using violence against the appellant. The application under s.100 was granted by the Recorder. As the evidence of the complainant’s character was admitted under s.100, an application by the prosecution under s.101(1)(g) of the 2003 Act was irresistible and the Recorder ruled that the previous convictions were admissible.[52]In his summing up, the Recorder said, having referred to the complainant’s conduct:
“You also heard that the defendant has previous convictions for a number of offences of violence. Last being April 1993. A number of offences of dishonesty, last of those also being in 1993 and two drink related offences, which took place during the time of the defendant’s relationship with Miss Byron. This has been given in evidence because the defendant has attacked the character of Miss Byron and it is right in those circumstances that you should know the character of the person making the attack as well. You may use the evidence of the defendant’s bad character, his previous convictions in the following ways. First, if you think it is right you may take it in to account when deciding whether or not the defendant's evidence is truthful. A person with previous convictions for dishonesty may be less likely to tell the truth but of course it doesn’t follow that he is incapable of doing so. You must decide to what extent if at all his character helps you when judging his evidence. If you think it is right you can also take into account when deciding whether or not the defendant committed the offences – with which he is now being charged – his previous convictions. These allegations are of violence and Miss Byron has also said that she had been drinking when he had allegedly committed these offences. You have got to decide to what extent if at all his convictions help you when you are considering whether or not he is guilty, but bearing in mind that his bad character itself cannot prove anything, it cannot prove anything. It cannot prove his guilt on its own. It would therefore be wrong to jump to the conclusion that he is guilty just because of his bad character. ”

Conclusion

[53]Since the appellant had attacked the character of the complainant, evidence of his bad character became admissible under s.101(1)(g), subject only to the judge’s duty to exclude it under s.101(3) if he considered that to admit it would render the proceedings unfair. Here the convictions which were relied on did not occur so long ago that it could be said that in the circumstances the evidence was so prejudicial that it must have been wrong for the evidence to be admitted. The Recorder exercised his discretion and there is no basis upon which this Court can properly interfere with the exercise of the Recorder’s discretion.[54]As we have already made clear, the fact that the evidence of the appellant’s bad character was admitted under s.101(1)(g) does not prevent the evidence from being used for purposes other than establishing the appellant’s credibility. It could be used to show that he was more likely to commit the offences with which he was charged. That is to say, the evidence could be used to show a propensity on his part to commit the sort of assaults with which he was charged, subject to the question of relevance and the evidence not being unduly prejudicial.[55]The appellant relies on paragraphs 7-13 of the judgment of the Vice-President in Hanson. We do not consider that the guidance given by Lord Justice Rose VP in these paragraphs is inconsistent with the approach adopted by the Recorder, but it is necessary to deal with one particular aspect of the appellant’s case which arises out of what was said in paragraph 13 of the judgment in that case.[56]Although the second ground of appeal in this case is apparently directed to the admissibility of the appellant’s previous convictions, it is apparent from counsel’s skeleton argument and the advice on appeal that what it is really directed to is the use of which that evidence may properly be put. Mr Munyard submitted that the Recorder was wrong to direct the jury that they could take the appellant’s bad character into account when deciding whether his evidence was truthful without any further qualification. In Hanson the court pointed out that convictions for dishonesty (and the same applies to convictions for other kinds of offences) do not necessarily provide reliable evidence of a propensity to be untruthful: it all depends on the nature and circumstances of the conviction. Accordingly, it is said, the Recorder should have warned the jury that they could not place any weight on the fact that the appellant had previous convictions when considering whether they could believe what he said.[57]Since the appellant’s previous convictions included three offences of obtaining by deception in addition to offences of theft, this is not a particularly meritorious point. In our view his convictions for obtaining by deception were evidence of a propensity to be untruthful and in that context his convictions for theft added little. (The Recorder did not suggest that previous convictions for offences of violence were relevant in this context). It would have been better, therefore, if the Recorder had given the jury more detailed guidance on the relevance of the appellant’s convictions to the issue of his truthfulness, but in the circumstances of this case we do not think that his failure to do so affected the outcome of trial so as to render his convictions unsafe.[58]In the course of argument Mr Munyard submitted on behalf of the appellant that the Recorder was wrong to have admitted evidence of his two drink-related driving offences. The Recorder was asked to exclude them in the exercise of his powers under s.101(3), but he decided that in all the circumstances they were relevant to the offences with which the appellant was charged and that it would not be unfair for them to be admitted. We can see no grounds on which the exercise of his discretion in this matter can properly be challenged.[59]In paragraph 18 of the judgment in Hanson, Lord Justice Rose VP emphasises the need for warnings to be given to a jury not to place undue reliance on previous convictions. In particular, the jury should be directed that they should not conclude that the defendant is guilty or untruthful merely because he has convictions. Looking at the language used by the Recorder, we find that the Recorder gave the necessary warnings in a manner which adequately brought home to the jury the need to take proper care when deciding how much weight, if any, to place on the appellant’s previous convictions. In particular he dealt separately with issues of truthfulness and guilt and indicated how different convictions might be relevant to those issues. We therefore do not accept that there is any substance in any of the grounds of appeal relied upon by the appellant and dismiss his appeal.

Cited in 25 later judgments

and 16 more of the most senior